Exhibit 3.1.4
The Commonwealth of Massachusetts
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL J. CONNOLLY, Secretary
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
Certificate of Vote of Directors Establishing
A Series of A Class of Stock
FEDERAL IDENTIFICATION
NO. ___________________
General Laws, Chapter 156B, Section 72
We, John B. Green, Vice President and Lynnette C. Fallon, Clerk of:
Genzyme Transgenics Corporation
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(Name of Corporation)
located at: One Mountain Road, Framingham, MA 01701
do hereby certify that at a meeting of the directors of the corporation held on
March 4, 1998, the following vote establishing and designating a series of a
class of stock and determining the relative rights and preferences thereof was
duly adopted: VOTED: To adopt the Certificate of Vote of Directors Establishing
a Series of a Class of Stock attached as Exhibit A hereto (the "Certificate of
Designation"), pursuant to the authority granted to the Board of Directors in
the Company's Restated Articles of Organization to fix by resolution or
resolutions the designations and the powers, preferences, and rights and the
qualifications, limitations, or restrictions of one or more series of Series A
Convertible Preferred Stock, par value $0.01 per share, to the extent permitted
by Section 26 of Chapter 156B of the General Laws of Massachusetts; the officers
of the Company at the time in office be and each of them acting singly is hereby
authorized and empowered, in the name and on behalf of the Company, to execute
the Certificate of Designation and that the proper officers of the Company be
and each of them acting singly is hereby authorized to file such Certificate of
Designation with the Secretary of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 20th day of March in the year 1998.
/s/ John B. Green Vice President
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/s/ Lynnette C. Fallon Assistant Clerk
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THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing A
Series of a Class of Stock
(GENERAL LAWS, CHAPTER 156B, SECTION 26)
I hereby approve the within articles of amendment and, the filing
fee in the amount of $________ having been paid, said articles
are deemed to have been filed with me this ____ day of
__________, 19__.
MICHAEL J. CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF CERTIFICATE TO BE SENT
TO: Lynnette C. Fallon, Esquire
Palmer & Dodge LLP
One Beacon Street
Boston, Boston, MA 02108
Telephone: (617) 573-0220
STATEMENT OF TERMS OF SERIES A CONVERTIBLE PREFERRED STOCK
I. DESIGNATION AND AMOUNT
The designation (this "Certificate of Designation") of this series, which
consists of 20,000 shares of Preferred Stock of Genzyme Transgenics Corporation,
a Massachusetts corporation (the "Company"), is the Series A Convertible
Preferred Stock (the "Preferred Stock" or "Preferred Shares") and the face
amount per share shall equal $1,000 (the "Face Amount").
II. CERTAIN DEFINITIONS
For purposes of this Certificate of Designation, the following terms shall have
the following meanings:
"Anniversary Date" means the date that is 9 months following the Closing
Date.
"Business Day" means any day other than a Saturday, Sunday or a day on
which banks in New York, New York are permitted or required by law
to be closed.
"Closing Bid Price" means, for any security as of any date, the closing
bid price of such security on the principal securities exchange or
trading market where such security is listed or traded as reported
by Bloomberg Financial Markets or a comparable reporting service of
national reputation selected by the Company and reasonably
acceptable to the Holders
then holding a majority of the outstanding shares of Preferred Stock
("Majority Holders") if Bloomberg Financial Markets is not then
reporting closing bid prices of such security (collectively,
"Bloomberg"), or if the foregoing does not apply, the last reported
sale price of such security in the over-the-counter market on the
electronic bulletin board of such security as reported by Bloomberg,
or, if no sale price is reported for such security by Bloomberg, the
average of the bid prices of any market makers for such security as
reported in the "pink sheets" by the National Quotation Bureau, Inc.
If the Closing Bid Price cannot be calculated for such security on
such date on any of the foregoing bases, the Closing Bid Price of
such security on such date shall be the fair market value as
mutually determined by the Company and the Majority Holders, or, if
they are unable to agree on such value, it shall be determined by an
investment banking firm selected by the Company and reasonably
acceptable to the Majority Holders.
"Closing Date" means the date on which the Preferred Shares are initially
issued.
"Common Stock" means the common stock, $0.01 par value, of the Company.
"Conversion Price" means (1) on and prior to the Anniversary Date, $14.55
and (2) beginning on the day following the Anniversary Date, the
lesser of (i) $14.55 and (ii) the Market Price.
"Effective Date" means the date the Registration Statement registering the
resale of the shares of Common Stock into which the Preferred Shares
are convertible is declared effective by the Securities and Exchange
Commission.
"Holders" means the initial Holders of the Preferred Stock and their
permitted transferees.
"majority of the outstanding shares of Preferred Stock" means greater than
66.6% of the outstanding shares of Preferred Stock.
"Market Price" means the average of the Closing Bid Prices of the Common
Stock over any 5 trading days, selected by the Holder, in the 20
trading days immediately preceding the Conversion Date.
"Registration Deadline" means the 90th day following the Closing Date.
"Registration Statement" means a registration statement filed with the
Securities and Exchange Commission under the Securities Act of 1933,
as amended.
"Securities Purchase Agreement" means the Securities Purchase Agreement
dated as of March 20, 1998, among the Company and the purchasers
named therein, as amended from time to time in accordance with the
terms thereof.
"Warrants" means certain stock purchase warrants to acquire shares of
Common Stock issued by the Company to the initial Holders in
connection with the transactions contemplated by the Securities
Purchase Agreement.
III. DIVIDENDS
A. General. Each Holder of the Preferred Stock shall be entitled to
receive cumulative dividends at the rate of ten percent (10%) of the Face Amount
per annum (the "Dividend") of the Preferred Stock held by such Holder commencing
on and continuing through any period that shares of Common Stock equal to such
Holder=s Maximum Share Amount (as defined below) have been issued in conversion
of Preferred Stock with respect to such Holder of the Preferred Stock. Such
cumulative Dividends shall be payable at the end of each fiscal quarter of the
Company in arrears in cash or additional Preferred Shares, at the Company's
option; provided however, that the Company's option to pay such Dividends in
additional Preferred Shares shall be subject to and contingent upon the
effectiveness of a Registration Statement for the Common Shares underlying the
Preferred Shares and Warrants. Dividends on the Preferred Stock shall accrue and
be cumulative on a daily basis from the date payable (with appropriate proration
for any partial dividend period), whether or not earned and whether or not in
any dividend period there shall be surplus or net profits of the Company legally
available for the payment of such dividends. In no event, so long as any
Preferred Stock shall remain outstanding, shall any dividend whatsoever be
declared or paid upon, nor shall any distribution be made upon, any Junior
Securities (as defined below), nor shall any shares of Junior Securities be
purchased or redeemed by the Company nor shall any moneys be paid to or made
available for a sinking fund for the purchase or redemption of any Junior
Securities, without, in each such case, the written consent of the Holders of a
majority of the outstanding shares of Preferred Stock, voting together as a
class.
B. Payment of Dividend in Preferred Shares. Should the Company elect to
pay accrued but unpaid Dividends in additional shares of Preferred Stock, the
number of Preferred Shares to which the Holder shall be entitled will be equal
to the aggregate cash value of such unpaid Dividends, divided by the Face
Amount.
IV. CONVERSION
A. Conversion at the Option of Holder. Subject to Article V(B), beginning
on the earlier to occur of the Effective Date and the Registration Deadline,
each Holder may, at any time and from time to time convert each of its shares of
Preferred Stock into a number of fully paid and nonassessable shares of Common
Stock determined by dividing the aggregate Face Amount of the Preferred Shares
being converted by the then applicable Conversion Price, subject to adjustment
as provided in Article X; provided, however, that, unless the Holder delivers a
waiver in accordance with the immediately following sentence, in no event shall
a Holder of shares of Preferred Stock be entitled to convert any such shares to
the extent that (x) the number of shares of Common Stock beneficially owned by
the Holder and its affiliates (other than shares of Common Stock which may be
deemed beneficially owned through the ownership of the unconverted portion of
the shares of Preferred Stock or unexercised portion of warrants or any other
securities containing analogous limitations) plus (y) the number of shares of
Common Stock issuable upon the conversion of the shares of Preferred Stock with
respect to which the determination of this proviso is being made, would result
in beneficial ownership by a Holder and such Holder's affiliates of more than
4.99% of the outstanding shares of Common Stock. For purposes of the proviso to
the immediately preceding sentence, (i) beneficial ownership shall be determined
in accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Rules 13(d) through (g) thereunder, except as otherwise provided in
clause (x) of such proviso, and (ii) a Holder may waive the limitations set
forth therein by written notice to the Company upon not less than sixty-one (61)
days prior written notice (with such waiver taking effect only upon the
expiration of such sixty-one (61) day notice period).
B. Mechanics of Conversion. To convert the Preferred Shares, a Holder
shall: (i) fax , confirming receipt (or otherwise deliver by other means
resulting in notice), a copy of the fully executed Notice of Conversion in the
form of Exhibit A hereto to the Company and (ii) surrender or cause to be
surrendered to the Company (or satisfy the provisions of Article XIII(A), if
applicable) the certificates representing the Preferred Stock being converted
(the "Preferred Stock Certificates") accompanied by duly executed stock powers
and the original executed version of the Notice of Conversion as soon as
practicable thereafter. The date the Holder faxes to the Company a the Notice of
Conversion described in clause (i) or such later date specified in the Notice of
Conversion shall be the "Conversion Date".
C. Timing of Conversion. No later than the third Business Day following
the Conversion Date (the ADelivery Date@), provided that the Company has
received prior to such date the Preferred Stock Certificates (or the Holder has
satisfied the provisions of Article XIII(A), if applicable), the Company shall
issue and deliver to the Holder (or at its direction) that number of shares of
Common Stock issuable upon conversion of the number of Preferred Shares being
converted. The person or persons entitled to receive shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such shares at the close of business on the Conversion
Date, unless the Notice of Conversion is revoked as provided in Section IV(D).
The Delivery Date shall be extended until the Business Day following the date of
surrender to the Company of Preferred Stock Certificates to be converted or
satisfaction of the provisions of Article XIII(A), if applicable.
D. Continuing Rights. In addition to any other remedies which may be
available to the Holder, in the event the Company fails for any reason to effect
delivery to the Holder of certificates representing the shares of Common Stock
receivable upon conversion of the Preferred Shares by the Business Day following
the Delivery Date (which certificates shall be unlegended as and when required
pursuant to the Securities Purchase Agreement, Registration Rights Agreement
dated as of March 20, 1998, by and among the Company and the other signatories
thereto (the "Registration Rights Agreement") and this Certificate of
Designation), the Holder shall, unless the Holder otherwise elects to retain its
status as a holder of Common Stock by so notifying the Corporation, regain the
rights of a Holder with respect to such unconverted shares of Preferred Stock.
and the Company shall immediately return the subject Preferred Stock
certificates and other conversion documents, if any, delivered by Holder, to the
Holder, or, if shares of Preferred Stock have not been surrendered, adjust its
records to reflect that such shares of Preferred Stock have not been converted;
provided however, that the Company shall remain liable for payment of the
amounts determined pursuant to Article VI(A) hereof for each day falling between
the trading day following the Delivery Date and the date of the revocation
notice is received by the Company, and shall also remain liable for any damages
suffered by Holder.
E. Stamp, Documentary and Other Similar Taxes. The Company shall pay all
stamp, documentary, issuance and other similar taxes which may be imposed with
respect to the issuance and delivery of the shares of Common Stock pursuant to
conversion of the Preferred Stock; provided that the Company will not be
obligated to pay stamp, transfer or other taxes resulting from the issuance of
Common Stock to any person other than the registered holder of the Preferred
Stock.
F. No Fractional Shares. No fractional shares of Common Stock are to be
issued upon the conversion of Preferred Stock, but the Company shall make a cash
payment equal to such fraction multiplied by the per share face value in respect
of any fractional share which would otherwise be issuable; provided that in the
event that sufficient funds are not legally available for the payment of such
cash adjustment any fractional shares of Common Stock shall be rounded up to the
next whole number.
G. Electronic Transmission. In lieu of delivering physical certificates
representing the Common Stock issuable upon conversion, provided the Company's
transfer agent is participating in the Depository Trust Company ("DTC") Fast
Automated Securities Transfer program, upon request of a Holder who shall have
previously instructed such Holder's prime broker to confirm such request to the
Company's transfer agent and upon the Holder=s compliance with Section IV(B),
the Company shall use its commercially reasonable efforts to cause its transfer
agent to electronically transmit the Common Stock issuable upon conversion to
the Holder by crediting the account of Holder's prime broker with DTC through
its Deposit Withdrawal Agent Commission ("DWAC") system. The Company shall
within three (3) Business Days issue a new certificate representing the
Preferred Stock not converted pursuant to any Notice of Conversion.
V. RESERVATION OF AUTHORIZED SHARES OF COMMON STOCK;
LIMITATION ON NUMBER OF CONVERSION SHARES
A. Reservation of Common Stock. Subject to the provisions of this Article
V, the Company shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock a sufficient number of shares of
Common Stock to provide for the conversion of all outstanding Preferred Shares
upon issuance of shares of Common Stock and the exercise of all Warrants (the
"Reserved Amount"). The Reserved Amount shall be increased from time to time in
accordance with the Company=s obligations pursuant to Section 4(g) of the
Securities Purchase Agreement. In addition, if the Company shall issue any
securities or make any change in its capital structure which would change the
number of shares of Common Stock into which each share of the Preferred Stock
shall be convertible at the then current Conversion Price, the Company shall at
the same time also make proper provision so that thereafter there shall be a
sufficient number of shares of Common Stock authorized and reserved, free from
preemptive rights, for conversion of the outstanding Preferred Stock.
B. Limitation on Number of Common Shares to be Issued. Notwithstanding
anything to the contrary contained herein, if, at any time, the aggregate number
of shares of Common Stock then issued upon conversion of the Preferred Stock
equals
3,479,641 shares, subject to adjustments for stock dividends, stock splits,
combinations or similar events, the Preferred Stock shall, from that time
forward, cease to be convertible into Common Stock in accordance with the terms
of Article IV, unless the Company (i) has obtained approval of the issuance of
the Preferred Stock by a majority of the total votes eligible to be cast on such
proposal, in person or by proxy, by the holders of the then-outstanding Common
Stock, (ii) shall have otherwise obtained permission to allow such issuances
from Nasdaq or such other principal exchange upon which the Common Stock is then
trading; or (iii) is no longer governed by a rule promulgated by a stock
exchange, Nasdaq or other applicable body prohibiting the issuance of Common
Stock upon conversion of the Preferred Stock in excess of 3,479,641 shares
without shareholder approval. The maximum number of shares of Common Stock
issuable as a result of the limitation set forth in the first sentence of this
Section V(B) is hereinafter referred to as the "Maximum Share Amount." The
Company shall as promptly as possible, at any time that the Maximum Share Amount
has been reached with respect any Holder, exercise best efforts to obtain the
required stockholder or Nasdaq approval to issue shares of Common Stock upon
conversion of additional shares of Preferred Stock pursuant to Notices of
Conversion delivered by the Holders. With respect to each Holder of Preferred
Stock, the Maximum Share Amount shall refer to such Holder's pro rata share
thereof determined in accordance with Article X below. In the event that the
Company obtains stockholder approval, the approval of Nasdaq or otherwise
concludes that it is able to increase the number of shares to be issued above
the Maximum Share Amount (such increased number being the "New Maximum Share
Amount"), the references to Maximum Share Amount, above, shall be deemed to be
instead, references to the greater New Maximum Share Amount. In the event that
stockholder approval is not obtained, there are insufficient reserved or
authorized shares or a registration statement covering the additional shares of
Common Stock which constitute the New Maximum Share Amount is not effective
prior to the Maximum Share Amount being issued (if such registration statement
is necessary to allow for the public resale of such securities), the Maximum
Share Amount shall remain unchanged; provided, however, that the Holder may
grant an extension to obtain a sufficient reserved or authorized amount of
shares or of the period for obtaining effectiveness of such registration
statement
C. Allocation of Reserved Amount, Maximum Share Amount. The Reserved
Amount and the Maximum Share Amount shall be allocated among the initial Holders
according to the number of Preferred Shares issued to each such Holder on the
Closing Date. Any Common Shares which were initially allocated to any Holder
remaining after such Holder no longer owns any Preferred Shares shall be
allocated among the remaining Holders pro rata, based on the number of Preferred
Shares then held by such Holders.
VI. FAILURE TO CONVERT
A. If, at any time, (x) the Conversion Date has occurred and the Company
fails for any reason to deliver, on or prior to the third Business Day following
the expiration of the Delivery Date for such conversion (said period of time
being the
"Extended Delivery Period"), such number of shares of Common Stock to which such
Holder is entitled (taking into account the limitations on conversions imposed
by such Holder=s allocated portion of the Reserved Amount and the Maximum Share
Amount) upon such conversion, or (y) the Company provides notice (including by
way of public announcement) to any Holder at any time of its intention not to
issue shares of Common Stock upon exercise by any Holder of its conversion
rights in accordance with the terms of this Certificate of Designation (other
than because such issuance would exceed such Holder's allocated portion of the
Reserved Amount) (each of (x) and (y) being a "Conversion Default"), then the
Company shall pay to the affected Holder, in the case of a Conversion Default
described in clause (x) above, and to all Holders, in the case of a Conversion
Default described in clause (y) above, an amount equal to 1% of the Face Amount
of the Preferred Stock with respect to which the Conversion Default exists
(which amount shall be deemed to be the aggregate Face Amount of all outstanding
Preferred Stock in the case of a Conversion Default described in clause (y)
above) for each day thereafter until the Cure Date. "Cure Date" means (i) with
respect to a Conversion Default described in clause (x) of its definition, the
date the Company effects the conversion of the portion of the Preferred Stock
submitted for conversion and (ii) with respect to a Conversion Default described
in clause (y) of its definition, the date the Company undertakes in writing to
issue Common Stock in satisfaction of all conversions of Preferred Stock in
accordance with the terms of this Certificate of Designation. The Company shall
promptly provide each Holder with notice of the occurrence of a Conversion
Default with respect to any of the other Holders.
The payments to which a Holder shall be entitled pursuant to this
Article VI(A) are referred to herein as "Conversion Default Payments."
Conversion Default Payments shall be paid in cash. Such payment shall be made in
accordance with and be subject to the provisions of Article XIII(B).
VII. REDEMPTION DUE TO CERTAIN EVENTS
A. Redemption Events. A "Redemption Event" means any one of the following
(after expiration of any applicable cure period):
(i) the Company fails, and any such failure continues uncured for
seven (7) Business Days after the Company has been notified thereof in writing
by the Holder, to (x) remove any restrictive legend on any certificate for any
shares of Common Stock issued after the Effective Date to the Holders upon
conversion of the Preferred Stock or upon exercise of the Warrants, or (y) to
cause its transfer agent to transfer any certificate for shares of Common Stock
issued to a Holder upon conversion of the Preferred Stock, in each case as and
when required by this Certificate of Designation, the Warrants, the Securities
Purchase Agreement or the Registration Rights Agreement; or
(ii) The Company fails to issue shares of Common Stock to any
Holder of Preferred Stock upon exercise by such Holder of its conversion rights
in accordance with the terms of this Certificate of Designation for a period of
10 Business Days following the expiration of the Extended Delivery Period ; or
(iii) The Company fails to fulfill any of its obligations pursuant
to the Registration Rights Agreement (or makes any statement that it does not
intend to honor such obligations) and any such failure shall continue uncured
(or any statement not to honor its obligations shall not be rescinded) for ten
(10) business days.
B. Redemption By Holder. During the continuation of a Redemption Event,
each Holder shall have the right to elect at any time and from time to time by
delivery of a Redemption Notice (as defined herein) to the Company while such
Redemption Event continues, to require the Company to purchase for cash for an
amount per share equal to the Redemption Amount (as defined herein) any or all
of the then outstanding shares of Preferred Stock held by such Holder.
Notwithstanding the foregoing, any Holder of Preferred Stock who does not sign a
Redemption Notice shall retain such Holder's shares of Preferred Stock, the
rights of which shall continue to be governed by the terms of this Certificate
of Designation
C. Optional Redemption by the Company. The Company may, at its option,
upon five (5) Business Days= notice, redeem the Preferred Stock, as follows:
(i) If, notwithstanding the exercise by the Company in good faith of
best efforts, the registration statement required by the Registration Rights
Agreement is not effective within 90 days following the Closing Date, the
Company may, on or prior to the date that is 120 days following the Closing
Date, at its option, redeem for cash out of funds legally available therefor,
all (but not less than all) of the outstanding Preferred Shares at a price per
share equal to the 110% of the Face Amount of the Preferred Shares plus accrued
and unpaid dividends, if any, and any other amounts payable thereon.
(ii) Beginning upon the earlier to occur of (a) the date that the
Company completes an underwritten public offering of its Common Stock in an
amount of at least $10,000,000, or (b) the date that is eighteen months
following the Closing Date, the Company may, at its option, redeem for cash out
of funds legally available therefor, all (but not less than all) of the
outstanding Preferred Shares at a price per share (the "Redemption Amount")
equal to accrued and unpaid dividends on the outstanding Preferred Stock and any
other amounts payable hereunder plus the greater of (x) 115% of the Face Amount
of the Preferred Shares or (y) the product of (1) the Market Price of the Common
Stock as determined on the trading day preceding
the Company's redemption notice to the Preferred Shareholders, multiplied by (2)
the number of shares of Common Stock issuable upon conversion of the outstanding
Preferred Shares at the then applicable Conversion Price.
(iii) Beginning on the date any Holder reaches such Holder=s Maximum
Share Amount, the Company may, at its option, redeem for cash out of funds
legally available therefor, all (but not less than all) of the outstanding
shares of Preferred Stock held by the Holder who has reached its Maximum Share
Amount at a price per share equal to 100% of the Face Amount such shares of
Preferred Stock plus accrued and unpaid dividends, if any, and any other amounts
payable thereon.
Nothing in this Section VIII(C) shall prohibit conversions of Preferred
Stock otherwise permitted pursuant to the terms of this Certificate of
Designation during the pendency of any notice of optional redemption by the
Company hereunder.
D. Maturity; Required Redemption. Subject to the limitations contained in
Section VII(F) hereof each share of Preferred Stock outstanding on the third
anniversary of the Closing Date (the "Maturity Date") will be redeemed at the
Company=s sole option, (a) in cash equal to the aggregate face value thereof
plus accrued and unpaid dividends, if any, and any other amounts payable thereon
or, (b) by delivery of a number of shares of Common Stock issuable upon
conversion of all of the Preferred Stock at the then-applicable Conversion
Price, provided that (i) any necessary approval for the issuance of additional
shares has been obtained, and (ii) all shares of Common Stock issuable upon
conversion of all outstanding shares of Preferred Stock are then (x) authorized
and reserved for issuance, (y) registered under the Securities Act for resale by
all Holders of such Preferred Shares and (z) eligible to be traded on either the
Nasdaq, Nasdaq Small Cap Market, the New York Stock Exchange or the American
Stock Exchange.
E. Redemption Defaults. If the Company fails to pay any Holder the
Redemption Amount with respect to any share of Preferred Stock, as provided in
this Article VII, within five (5) Business Days of its receipt or delivery, as
applicable, of a notice requiring such redemption, then each Holder (i) shall be
entitled to interest on the Redemption Amount at a per annum rate equal to the
lower of (x) the sum of prime rate published from time to time by the Wall
Street Journal plus three percent (3%) and (y) the highest interest rate
permitted by applicable law from the date of the Redemption Notice until the
date of redemption hereunder. In the event the Company is not able to redeem all
of the shares of Preferred Stock subject to Redemption Notices, the Company
shall redeem shares of Preferred Stock from each Holder, pro rata, based on the
total number of shares of Preferred Stock included in the Redemption Notice
relative to the total number of shares of Preferred Stock in all of the
Redemption Notices. In the case of a Redemption Event, if the Company fails to
pay the Redemption Amount for each share for any reason (including, without
limitation, the circumstances specified in paragraph VII(F)), within five (5)
Business
Days of the applicable Redemption Notice then (assuming there are sufficient
authorized shares) in addition to all other available remedies, each Holder of
Preferred Stock shall have the right at any time, so long as the Redemption
Event continues, to convert, upon written notice, in lieu of the Redemption
Amount, each outstanding share of Preferred Stock held by such Holder, into the
number of shares of Common Stock of the Company equal to the Redemption Amount,
divided by the Conversion Price then in effect, subject in all cases to each
such Holder=s Maximum Share Amount.
F. Capital Impairment. In the event that any section of the Massachusetts
Corporation Law ("MCL"), would be violated by the redemption of any shares of
Preferred Stock that are otherwise subject to redemption pursuant to this
Article VII, the Company: (i) will redeem the greatest number of shares of
Preferred Stock possible without violation of said Section; (ii) the Company
thereafter shall use its best efforts to take all necessary steps permitted
pursuant to this Certificate of Designation and the agreements entered into in
connection with the issuance of Preferred Stock pursuant hereto in order to
remedy its capital structure in order to allow further redemptions without
violation of said Section; and (iii) from time to time thereafter as promptly as
possible the Company shall redeem shares of Preferred Stock at the request of
the Holders to the greatest extent possible without causing a violation of the
MCL.
VIII. RANK; PARTICIPATION
A. Rank. All shares of the Preferred Stock shall rank (i) prior to the
Common Stock; (ii) prior to any class or series of capital stock of the Company
hereafter created (unless, with the consent of the Holders of a majority of the
outstanding shares of Preferred Stock obtained in accordance with Article XII
hereof, such class or series of capital stock specifically, by its terms, ranks
senior to or pari passu with the Preferred Stock) (collectively, with the Common
Stock, "Junior Securities"); (iii) pari passu with any class or series of
capital stock of the Company hereafter created (with the consent of the Holders
of a majority of the outstanding shares of Preferred Stock obtained in
accordance with Article XII hereof) specifically ranking, by its terms, on
parity with the Preferred Stock (the "Pari Passu Securities"); and (iv) junior
to any class or series of capital stock of the Company hereafter created (with
the consent of the Holders of a majority of the outstanding shares of Preferred
Stock obtained in accordance with Article XII hereof) specifically ranking, by
its terms, senior to the Preferred Stock (the "Senior Securities"), in each case
as to distribution of assets upon liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary.
B. Participation. Subject to the rights of the Holders (if any) of Pari
Passu Securities and Senior Securities, the Holders shall, as such Holders, be
entitled to such dividends paid and distributions made to the Holders of Common
Stock to the same extent as if such Holders had converted their shares of
Preferred Stock into Common Stock (without regard to any limitations on
conversion herein or elsewhere contained) and had been issued such Common Stock
on the day before the record date for said dividend or distribution. Payments
under the preceding sentence shall be made concurrently with the dividend or
distribution to the Holders of Common Stock.
IX. LIQUIDATION PREFERENCE
A. Liquidation of the Company. If the Company shall commence a voluntary
case under the U.S. Federal bankruptcy laws or any other applicable bankruptcy,
insolvency or similar law, or consent to the entry of an order for relief in an
involuntary case under any law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or make an assignment for
the benefit of its creditors, or admit in writing its inability to pay its debts
generally as they become due, or if a decree or order for relief in respect of
the Company shall be entered by a court having jurisdiction in the premises in
an involuntary case under the U.S. Federal bankruptcy laws or any other
applicable bankruptcy, insolvency or similar law resulting in the appointment of
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any such decree or
order shall be unstayed and in effect for a period of sixty (60) consecutive
days and, on account of any such event, the Company shall liquidate, dissolve or
wind up, or if the Company shall otherwise liquidate, dissolve or wind up (a
"Liquidation Event"), no distribution shall be made to the Holders of any shares
of capital stock of the Company (other than Senior Securities and, together with
the Holders of Preferred Stock the Pari Passu Securities) upon liquidation,
dissolution or winding up unless prior thereto the Holders shall have received
the Liquidation Preference (as herein defined) with respect to each share. If,
upon the occurrence of a Liquidation Event, the assets and funds available for
distribution among the Holders and holders of Pari Passu Securities shall be
insufficient to permit the payment to such Holders of the preferential amounts
payable thereon, then the entire assets and funds of the Company legally
available for distribution to the Preferred Stock and the Pari Passu Securities
shall be distributed ratably among such shares in proportion to the ratio that
the Liquidation Preference payable on each such share bears to the aggregate
Liquidation Preference payable on all such shares.
B. Certain Acts Not a Liquidation. The purchase or redemption by the
Company of stock of any class, in any manner permitted by law, shall not, for
the purposes hereof, be regarded as a liquidation, dissolution or winding up of
the Company. Neither the consolidation or merger of the Company with or into any
other entity nor the sale or transfer by the Company of less than substantially
all of its assets shall, for the purposes hereof, be deemed to be a liquidation,
dissolution or winding up of the Company.
C. Definition of Liquidation Preference. The "Liquidation Preference" with
respect to a share of Preferred Stock means an amount equal to the Face Amount
thereof plus any other amounts that may be due from the Company with respect
thereto, including any accrued and unpaid dividends, pursuant to this
Certificate of Designation through the date of final distribution. The
Liquidation Preference with respect to any Pari Passu Securities shall be as set
forth in the Certificate of Designation filed in respect thereof.
X. ADJUSTMENTS TO THE CONVERSION PRICE; CERTAIN PROTECTIONS
The Conversion Price shall be subject to adjustment from time to time as
follows:
A. Stock Splits, Stock Dividends, Etc. If at any time on or after the
Closing Date, the number of outstanding shares of Common Stock is increased by a
stock split, stock dividend, reclassification or other similar event, the number
of shares of Common Stock issuable upon conversion of the Preferred Shares shall
be proportionately increased, or if the number of outstanding shares of Common
Stock is decreased by a reverse stock split, combination or reclassification of
shares, or other similar event, the number of shares of Common Stock issuable
upon conversion of the Preferred Shares shall be proportionately reduced. In
such event, the Company shall notify the Company's transfer agent of such change
on or before the effective date thereof.
B. Major Transactions. If the Company shall consolidate with or merge into
any corporation, sell all or substantially all of its assets, effectuate a
transaction or series of transactions in which 50% or more of the voting power
of the Company is disposed of or reclassify its outstanding shares of Common
Stock (other than by way of subdivision or reduction of such shares) (each a
"Major Transaction"), then each Holder shall thereafter be entitled to receive
consideration, in exchange for each share of Preferred Stock held by it, equal
to the greater of, as determined in the sole discretion of the Holders of at
least 50.1% of the outstanding shares of Preferred Stock: (i) the number of
shares of stock or securities or property of the Company, or of the entity
resulting from such consolidation or merger (the "Major Transaction
Consideration"), to which a Holder of the number of shares of Common Stock
delivered upon conversion of such shares of Preferred Stock would have been
entitled upon such Major Transaction (without regard to any limitations on
conversion herein contained) and had such Common Stock been issued and
outstanding and had such Holder been the holder of record of such Common Stock
at the time of such Major Transaction, and the Company shall make lawful
provision therefore as a part of such consolidation, merger or reclassification;
and (ii) 125% of the Face Amount of such shares of Preferred Stock plus accrued
and unpaid dividends, if any, in cash. No sooner than ten (10) days nor later
than five (5) days prior to the consummation of the Major Transaction, but not
prior to the public announcement of such Major Transaction, the Company shall
deliver written notice ("Notice of Major Transaction")
to each Holder, which Notice of Major Transaction shall be deemed to have been
delivered one (1) Business Day after the Company's sending such notice by
telecopy (provided that the Company sends a confirming copy of such notice on
the same day by overnight courier). Such Notice of Major Transaction shall
indicate the amount and type of the Major Transaction Consideration which such
Holder would receive under clause (i) of this Article X(B). If the Major
Transaction Consideration does not consist entirely of United States dollars,
the value of such other property shall be determined by a reputable accounting
firm selected by the Company that is reasonably acceptable the Holders of a
majority of the outstanding shares of Preferred Stock.
C. Adjustment Due to Distribution. If at any time after the Closing Date,
the Company shall declare or make any distribution of its assets (or rights to
acquire its assets) to holders of Common Stock as a partial liquidating
dividend, by way of return of capital or otherwise (including any dividend or
distribution to the Company's stockholders in cash or shares (or rights to
acquire shares) of capital stock of a subsidiary (i.e. a spin-off)) (a
"Distribution"), then the minimum Conversion Price per share shall be reduced by
the value of such Distribution per share. If the Distribution does not consist
entirely of U.S. Dollars, the value of such other property shall be determined
by a reputable accounting firms selected by the Company that is reasonably
acceptable to the Holders of a majority of the outstanding shares of Preferred
Stock.
D. Purchase Rights. If at any time after the Closing Date, the Company
issues any Convertible Securities or rights to purchase stock, warrants,
securities or other property (the "Purchase Rights") pro rata to the record
holders of any class of Common Stock, then the Holders will be entitled to
acquire, upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which such Holder could have acquired if such Holder had held
the number of shares of Common Stock acquirable upon complete conversion of the
Preferred Stock (without regard to any limitations on conversion or exercise
herein or elsewhere contained) immediately before the date on which a record is
taken for the grant, issuance or sale of such Purchase Rights, or, if no such
record is taken, the date as of which the record holders of Common Stock are to
be determined for the grant, issue or sale of such Purchase Rights.
E. Adjustment to Conversion Price. If at any time when Preferred Stock is
issued and outstanding, the number of outstanding shares of Common Stock is
increased or decreased by a stock split, stock dividend, combination,
reclassification, below-market price rights offering to all holders of Common
Stock or other similar event, which event shall have taken place during the
reference period for determination of the Conversion Price for the Preferred
Stock, then the Conversion Price shall be calculated giving appropriate effect
to the stock split, stock dividend, combination, reclassification or other
similar event during the calculation period preceding the Conversion Date. In
such event, the Company shall notify the Transfer Agent of such change on or
before the effective date thereof.
F. Adjustment for Restricted Periods. If (i) the Company fails to obtain
effectiveness of the Registration Statement prior to ninety (90) days following
the Closing Date, or (ii) the Registration Statement, once effective, lapses in
effect, or sales cannot otherwise be made thereunder, whether by reason of the
Corporation=s failure or inability to amend or supplement the prospectus
included therein (AProspectus@) in accordance with the Registration Rights
Agreement or otherwise, then the 20 trading days period (ALookback Period@) used
for determining the AMarket Price@ shall be extended to include (x) in the case
of an event described in clause (i), the 20 trading days immediately preceding
the 90th day following the Closing Date plus all Trading Days through and
including the date of effectiveness of the Registration Statement, and (y) in
the case of an event described in clause (ii), the number of trading days
preceding the date on which the Holder is first notified that sales may not be
made under the Prospectus, which would otherwise then be included in the
Lookback Period plus all trading days through and including the date on which
the Holder is notified that sales may again be made under the Prospectus. If a
Holder of the Preferred Stock reasonably determines that sales may not be made
pursuant to the Prospectus, it shall notify the Company in writing and, unless
the Company provides Holder with an opinion of Company=s counsel to the
contrary, such determination shall be binding for purposes of this paragraph.
G. Notice of Adjustments. Upon the occurrence of each adjustment or
readjustment of the Conversion Price pursuant to this Article X, the Company, at
its expense, shall promptly compute such adjustment or readjustment and prepare
and furnish to each Holder a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Company shall, upon the written request at any time
of any Holder, furnish to such Holder a like certificate setting forth (i) such
adjustment or readjustment, (ii) the Conversion Price at the time in effect and
(iii) the number of shares of Common Stock and the amount, if any, of other
securities or property which at the time would be received upon conversion of a
share of Preferred Stock.
XI. VOTING RIGHTS
No Holder of the Preferred Stock shall be entitled to vote on any matter
submitted to the shareholders of the Company for their vote, waiver, release or
other action, except as may be otherwise expressly required by law.
XII. PROTECTION PROVISIONS
So long as any Preferred Shares are outstanding, the Company shall not,
without first obtaining the approval of the Holders of majority of the
outstanding shares of Preferred Stock: (a) alter or change the rights,
preferences or privileges of the
Preferred Stock; (b) alter or change the rights, preferences or privileges of
any capital stock of the Company so as to affect adversely the Preferred Stock;
(c) create any Senior Securities; (d) create any Pari Passu Securities; (e)
increase the authorized number of shares of Preferred Stock; or (e) do any act
or thing not authorized or contemplated by this Certificate of Designation which
would result in any taxation with respect to the Preferred Stock under Section
305 of the Internal Revenue Code of 1986, as amended, or any comparable
provision of the Internal Revenue Code as hereafter from time to time amended,
(or otherwise suffer to exist any such taxation as a result thereof).
XIII. MISCELLANEOUS
A. Lost or Stolen Certificates. Upon receipt by the Company of (i)
evidence of the loss, theft, destruction or mutilation of any Preferred Stock
Certificate(s) and (ii) (y) in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to the Company, or (z) in the case of
mutilation, upon surrender and cancellation of the Preferred Stock
Certificate(s), the Company shall execute and deliver new Preferred Stock
Certificate(s) of like tenor and date. However, the Company shall not be
obligated to reissue such lost, stolen, destroyed or mutilated Preferred Stock
Certificate(s) if the Holder contemporaneously requests the Company to convert
such Preferred Stock.
B. Payment of Cash; Defaults. Whenever the Company is required to make any
cash payment to a Holder under this Certificate of Designation (as a Conversion
Default Payment, Redemption Amount or otherwise), such cash payment shall be
made to the Holder by the method (by certified or cashier's check or wire
transfer of immediately available funds) elected by such Holder. If such payment
is not delivered when due such Holder shall thereafter be entitled to interest
on the unpaid amount until such amount is paid in full to the Holder at a per
annum rate equal to the lower of (x) the sum of prime rate published from time
to time by the Wall Street Journal plus three percent (3%) and (y) the highest
interest rate permitted by applicable law.
C. Remedies, Characterizations, Other Obligations, Breaches and Injunctive
Relief. The remedies provided in this Certificate of Designation shall be
cumulative and in addition to all other remedies available under this
Certificate of Designation, at law or in equity (including a decree of specific
performance and/or other injunctive relief), no remedy contained herein shall be
deemed a waiver of compliance with the provisions giving rise to such remedy and
nothing herein shall limit a Holder's right to pursue actual damages for any
failure by the Company to comply with the terms of this Certificate of
Designation. Company covenants to each Holder that there shall be no
characterization concerning this instrument other than as expressly provided
herein; provided, however, that the Company shall be entitled to prepare
summaries of this Certificate of Designation for purposes of complying with its
disclosure obligations and in connection with bona fide disputes as to the
operations of the provisions of this Certificate of Designation.
D. Failure or Indulgency Not Waiver. No failure or delay on the part of a
Holder in the exercise of any power, right or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.
E. Notices. Any notice from a Holder to the Company hereunder shall be
given to the Company in accordance with Section 8(f) of the Securities Purchase
Agreement. Any notices from the Company to a Holder shall be given to such
Holder at such Holder=s address as shown in the stock register of the Company
and otherwise in accordance with Section 8(f) of the Securities Purchase
Agreement.
IN WITNESS WHEREOF, the Company has caused this Certificate of Designation
to be duly executed this 20th day of March, 1998.
Genzyme Transgenics Corporation
By: /s/ John B. Green
---------------------------
Name: John B. Green
Title: Vice President, Finance
EXHIBIT A
GENZYME TRANSGENICS CORPORATION
CONVERSION NOTICE - SERIES A CONVERTIBLE PREFERRED STOCK
Reference is made to the Statement of Terms (the "Certificate of Designation")
of the Series A Convertible Preferred Stock, face amount $1,000 per share (the
"Preferred Shares"), of Genzyme Transgenics Corporation, a Massachusetts
corporation (the "Company"). In accordance with and pursuant to the Certificate
of Designation, the undersigned hereby elects to convert the number of Preferred
Shares indicated below into shares of Common Stock, par value $0.01 per share
(the "Common Stock"), of the Company, by tendering the stock certificate(s)
representing the share(s) of Preferred Stock specified below as of the date
specified below.
Date of Conversion:
---------
Number of Preferred Shares to be converted:
---------
Stock certificate no(s). of Preferred Shares to be converted:
---------
Please confirm the following information:
Conversion Price:
---------
Number of shares of Common Stock
to be issued:
---------
Please issue the Common Stock and, if applicable, any check drawn on an account
of the Company into which the Preferred Shares are being converted in the
following name and to the following address:
Issue to:
-----------------------
-----------------------
-----------------------
Facsimile Number:
-----------------------
Authorization: -----------------------
By:
-----------------------
Title:
-----------------------
Dated: -----------------------
The undersigned hereby represents and covenants that it has complied, or will
comply, with any and all prospectus delivery requirements with respect to its
sale of the Common Stock of the Company being issued herewith.
[ADD INFORMATION RE: DTC / DWAC PROCEDURES]
[ACKNOWLEDGED AND AGREED:
GENZYME TRANSGENICS CORPORATION
By:
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Name:
Title:
Date:
-----------------------]