Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
BIOMARIN PHARMACEUTICAL INC.
BioMarin Pharmaceutical Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
A. The name of the Corporation is BioMarin P harmaceutical Inc. The
Corporation was originally incorporated under the same name and the original
Certificate of Incorporation of the Corporation was filed with the Delaware
Secretary of State on October 25, 1996, and subsequently restated on May 6,
1997. An Amended and Restated Certificate of Incorporation was filed with the
Delaware Secretary of State on March 22, 1999, and was subsequently corrected on
April 21, 1999.
B. Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware, this Amended and Restated Certificate of Incorporation
restates and amends the provisions of the Amended and Restated Certificate of
Incorporation of this Corporation previously filed on March 22, 1999, as
corrected.
C. The text of the Amended and Restated Certificate of Incorporation
previously filed on March 22, 1999, as corrected, is hereby amended and restated
in its entirety to read as follows:
ARTICLE I.
The name of the corporation (the "Corporation") is BioMarin Pharmaceutical
Inc.
ARTICLE II.
The address of the Corporation's registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of
New Castle, Delaware 19801. The name of its registered agent at such address is
The Corporation Trust Company.
ARTICLE III.
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation law of
Delaware.
ARTICLE IV.
The Corporation is authorized to issue two classes of stock to be
designated, respectively, as "Common Stock" and "Preferred Stock." The number of
shares of Common Stock which the Corporation is authorized to issue is Seventy
Five Million (75,000,000) shares, par value $0.001 per share (the "Common
Stock"). The number of shares of Preferred Stock which the Corporation is
authorized to issue is one million (1,000,000) shares, par value $0.001 per
share (the "Preferred Stock").
Shares of Common Stock may be issued from time to time for such
consideration as the Board of Directors may determine pursuant to a resolution
or resolutions providing for such issue duly adopted by the Board of Directors
(authority to do so being hereby expressly vested in the Board). Shares of
Preferred Stock may be issued from time to time in one or more series pursuant
to a resolution or resolutions providing for such issue duly adopted by the
Board of Directors (authority to do so being hereby expressly vested in the
Board). The Board of Directors is further authorized to determine or alter the
rights, preferences, privileges and restrictions granted to or imposed upon any
wholly unissued series of Preferred Stock and to fix the number of shares of any
series of Preferred Stock and the designation of any such series of Preferred
Stock. The Board of Directors, within the limits and restrictions stated in any
resolution or resolutions of the Board of Directors originally fixing the number
of shares constituting any series, may increase or decrease (but not below the
number of shares in any such series then outstanding) the number of shares of
any series subsequent to the issue of shares of that series.
The Corporation shall from time to time in accordance with the laws of the
State of Delaware increase the authorized amount of its Common Stock if at any
time the number of shares of Common Stock remaining unissued and available for
issuance shall not be sufficient to permit conversion of the Preferred Stock.
Except as otherwise required by law or herein, the holder of each share of
Common Stock issued and outstanding shall have one vote with respect to such
share and the holder of each share of Preferred Stock shall be entitled with
respect to such share to a number of votes equal to the number of shares of
Common Stock into which such share of Preferred Stock could be converted at the
record date for determination of the stockholders entitled to vote on such
matters, or, if no such record date is established, at the date such vote is
taken or any written consent of stockholders is solicited, such votes to be
counted together with all other shares of stock of the Company having general
voting power and not separately as a class (except as required by the General
Corporation Law of Delaware). Holders of Common Stock and Preferred Stock shall
be entitled to notice of any stockholders' meeting in accordance with the Bylaws
of the Corporation. Fractional votes by the holders of Preferred Stock shall
not, however, be permitted and any fractional voting rights shall (after
aggregating all shares into which shares of Preferred Stock held by each holder
could be converted) be rounded to the nearest whole number.
ARTICLE V.
The Corporation reserves the right to amend, alter, change, or repeal any
provisions contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon the stockholders
herein are granted subject to this right.
ARTICLE VI.
The Corporation is to have perpetual existence.
ARTICLE VII.
1. Limitation of Liability. To the fullest extent permitted by the
General Corporation Law of the State of Delaware as the same exists or as may
hereafter be amended, 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.
2. Indemnification. The Corporation shall indemnify to the fullest
extent permitted by law any person made or threatened to be made a party to an
action or proceeding, whether criminal, civil, administrative or investigative,
by reason of the fact that such person or his or her testator or intestate is or
was a director, officer or employee of the Corporation, or any predecessor of
the Corporation, or serves or served at any other enterprise as a director,
officer or employee at the request of the Corporation or any predecessor to the
Corporation.
3. Amendments. Neither any amendment nor repeal of this Article VII,
nor the adoption of any provision of the Corporation's Amended and Restated
Certificate of Incorporation inconsistent with this Article VII, shall eliminate
or reduce the effect of this Article VII, in respect of any matter occurring, or
any action or proceeding accruing or arising or that, but for this Article VII,
would accrue or arise, prior to such amendment, repeal, or adoption of an
inconsistent provision.
ARTICLE VIII.
Elections of Directors need not be by written ballot unless the Bylaws of
the Corporation shall at the time of any such election so provide.
ARTICLE IX.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the Bylaws of the Corporation.
ARTICLE X.
Following the date of the final prospectus in connection with the initial
public offering of the Corporation's Common Stock pursuant to a firm commitment
underwriting, no action shall be taken by the stockholders of the Corporation
except at an annual meeting of the stockholders or special meeting of the
stockholders called, in accordance with the Bylaws, by the Chairman of the Board
of Directors or by a majority of the then-current directors, and no action shall
be taken by the stockholders by written consent. The affirmative vote of
sixty-six and two-thirds percent (66 2/3%) of the then issued and outstanding
voting securities of the Corporation, voting together as a single class, shall
be required to amend, repeal or modify the provisions of this Article X of this
Amended and Restated Certificate of Incorporation or Sections 2.3 (Special
Meeting), or 2.10 (Stockholder Action by Written Consent Without a Meeting) of
the Corporation's Bylaws.
ARTICLE XI.
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
ARTICLE XII.
The name and mailing address of the incorporator are:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
Attn: Francis S. Currie, Esq.
D. The Amended and Restated Certificate of Incorporation set forth
herein has been duly approved by the Board of Directors of the Corporation
pursuant to Section 242 of the Delaware General Corporation Law. This Amended
and Restated Certificate of Incorporation has been duly approved by the required
vote of stockholders in accordance with Sections 228 and 242 of the Delaware
General Corporation Law. The number of shares of Common Stock voting in favor of
the amendment and restatement equaled or exceeded the vote required. The
percentage vote required was more than 50% of the outstanding Common Stock.
E. I declare under penalty of perjury under the laws of the State of
Delaware that the matters set forth in the foregoing Amended and Restated
Certificate of Incorporation are true and correct of my own knowledge.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by John C. Klock, its President and Secretary, this 22nd day of July,
1999.
/s/ John C. Klock
------------------
John C. Klock, President and Secretary
CERTIFICATE OF DESIGNATION
OF
SERIES A NON-VOTING NON-CONVERTIBLE PREFERRED STOCK
OF
BIOMARIN PHARMACEUTICAL INC.
(Pursuant to Section 151 of the General Corporation Law of the State of
Delaware)
The undersigned, Louis Drapeau, the Secretary of BioMarin Pharmaceutical
Inc., a corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "Corporation"), does hereby
certify, in the name of and on behalf of the Corporation, and as its corporate
act, that in accordance with the Corporation's Bylaws, the Board of Directors of
the Corporation has adopted the following preamble and resolution at a meeting
of the Board of Directors held on August 13, 2002:
WHEREAS, the Amended and Restated Certificate of Incorporation of the
Corporation as filed with the Secretary of State of the State of Delaware on
March 22, 1999 provides for a class of shares of stock designated "Preferred
Stock," issuable from time to time in one or more series, and vests in the Board
of Directors of the Corporation the authority to fix the designations and the
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, and to fix the number of shares constituting any such
series.
NOW, THEREFORE, BE IT RESOLVED that there shall be a series of Preferred
Stock of the Corporation to be designated as follows and that the powers,
preferences and relative, participating, optional or other rights of the shares
of such series of Preferred Stock and the qualifications, limitations and
restrictions thereof shall be as follows:
Section 1. Designation. There is hereby provided a series of Preferred
Stock designated the Series A Non-Voting Non-Convertible Preferred Stock (the
"Series A Preferred Stock").
Section 2. Number. The number of shares constituting the Series A
Preferred Stock is fixed at one hundred thirteen and six hundred seventy-six
thousandth (113.676) shares.
Section 3. Definitions. For purposes of this Certificate of Designation
the following definition shall apply:
(a) "Board" shall mean the Board of Directors of the Corporation.
(b) "Common Stock" shall mean the Common Stock, $0.001 par value
per share, of this Corporation.
(c) "Corporation" shall mean BioMarin Pharmaceutical Inc.
(d) "Original Issue Date" shall mean the date this Certificate of
Designation is filed with the Secretary of State of the State of Delaware.
(e) "Original Issue Price" shall mean $425,000 per share of the
Series A Preferred Stock.
(f) "Redemption Date" shall have the meaning set forth in Section
8(b).
(g) "Redemption Notice" shall have the meaning set forth in
Section 8(b).
(h) "Series A Liquidation Preference" shall have the meaning set
forth in Section 5(a).
Section 4. Dividends. The holders of shares of Series A Preferred Stock
shall be entitled to receive, when and as declared at the discretion of the
Board, out of funds legally available for that purpose, noncumulative dividends
payable at a per annum rate of five percent (5%) of the Original Issue Price on
each share of Series A Preferred Stock outstanding (as adjusted for any stock
dividends, combinations, splits, recapitalizations and the like with respect to
such shares). Dividends on the Series A Preferred Stock shall not be cumulative,
and no rights shall accrue to the holders of the Series A Preferred Stock in the
event that the Corporation shall not declare dividends on the Series A Preferred
Stock.
Section 5. Liquidation, Dissolution or Winding Up.
(a) In the event of a Liquidation Event (as defined in Section
5(c)) of the Corporation, the holders of the Series A Preferred Stock shall be
entitled to receive, prior and in preference to any distribution of any of the
assets or surplus funds of the Corporation to the holders of the Common Stock,
an amount per share equal to the Original Issue Price and, in addition, an
amount equal to all declared but unpaid dividends on the Series A Preferred
Stock (the "Series A Liquidation Preference"). If the assets and funds to be
distributed among the holders of the Series A Preferred Stock are insufficient
to permit payment to the holders of the Series A Preferred Stock of their full
preferential amounts, then the assets and funds of the Corporation legally
available for distribution shall be distributed ratably in proportion to the
full preferential amounts each Series A Preferred Stock holder would be entitled
to receive. After payment of the full amount of the liquidating distribution to
which any holder of Series A Preferred Stock is entitled pursuant to this
Section 5(a), the holder of such share or shares shall not be entitled to any
further participation in any distribution of assets of the Corporation.
(b) After payment has been made to the holders of the Series A
Preferred Stock, the remaining assets of the Corporation available for
distribution to the stockholders shall be distributed among the holders of the
Common Stock pro rata based on the number of shares of Common Stock held by each
such holder.
(c) For purposes of Section 5(a), a Liquidation Event shall
mean a voluntary or involuntary liquidation, dissolution or winding up of the
Corporation.
(d) The dollar amounts specified in Section 5(a) shall be
equitably adjusted in the event of any stock dividends, combinations, splits,
recapitalizations and the like with respect to the Common Stock or the Series A
Preferred Stock after the filing of this Certificate of Designation.
(e) Insofar as any distribution pursuant to Section 5(a)
consists of property other than cash, the value thereof shall, for purposes of
the provisions of Section 5(a), be the fair value at the time of such
distribution, as determined in good faith by the Board, and provided that any
securities shall be valued as follows:
(i) Securities not subject to investment letter or
other similar restrictions on free marketability covered by (ii) below:
(1) If traded on a securities exchange or
through the Nasdaq National Market, the value shall be deemed to be the average
of the closing prices of the securities on such quotation system over the thirty
(30) day period ending three (3) days prior to the date of distribution;
(2) If actively traded over-the-counter, the
value shall be deemed to be the average of the closing bid or sale prices
(whichever is applicable) over the thirty (30) day period ending three (3) days
prior to the date of distribution; and
(3) If there is no active public market, the
value shall be the fair market value thereof, as determined in good faith by the
Board.
(ii) The method of valuation of securities subject to
investment letter or other restrictions on free marketability (other than
restrictions arising solely by virtue of a stockholder's status as an affiliate
or former affiliate) shall be to make an appropriate discount from the market
value determined as above in (i) (1), (2) or (3) to reflect the approximate fair
market value thereof, as determined in good faith by the Board.
Section 6. Voting. Except as required by applicable law, the holders of
the Series A Preferred Stock shall not be entitled as such to receive notice of
or to attend any meeting of the stockholders of the Corporation or to vote at
any such meeting.
Section 7. Conversion. The shares of Series A Preferred Stock shall not
be convertible into shares of Common Stock or any other securities of the
Corporation.
Section 8. Redemption.
(a) Redemption and Redemption Price. At any time after the
Original Issue Date either (i) the Corporation may, at its option, redeem the
Series A Preferred Stock, in whole or in part, at the Redemption Price
hereinafter specified; or (ii) any holder of the shares of Series A Preferred
Stock may, at its option, require the Corporation to redeem the Series A
Preferred Stock, in whole or in part, owned by such holder at the Redemption
Price; provided, however, that the Corporation shall not redeem or be required
to redeem any shares of Series A Preferred Stock or give notice of any
redemption unless the Corporation has sufficient and lawful funds to redeem the
shares to be redeemed. The redemption price of the Series A Preferred Stock
shall be an amount per share equal to the Original Issue Price plus all accrued
and unpaid dividends thereon, up to and including the Redemption Date (the
"Redemption Price"). The Redemption Price may be paid in cash, by delivery of a
promissory note in the principal amount of the Redemption Price, by transfer of
property having a fair market value equal to the Redemption Price (as determined
in good faith by the Board of Directors of the Corporation), or any combination
of the foregoing.
(b) Redemption Notice. The Corporation shall, not less than
thirty (30) days nor more than sixty (60) days prior to the date of redemption,
give written notice to each holder of record of Series A Preferred Stock to be
redeemed. A holder of Series A Preferred Stock shall, not less than thirty (30)
days nor more than sixty (60) days prior to the date of redemption, give written
notice to the Corporation of the shares of Series A Preferred Stock required to
be redeemed. For purposes of this Certificate of Designation, the date upon
which the Corporation or a holder of Series A Preferred Stock, as the case may
be, desires the redemption to take effect, shall be the "Redemption Date," and
the written notice given by the Corporation to each holder of Series A Preferred
Stock or by a holder of Series A Preferred Stock to the Corporation, as the case
may be, in connection with such redemption, shall be the "Redemption Notice."
The Redemption Notice shall state:
(i) The total number of shares being redeemed by the
Corporation or required by a holder of Series A Preferred Stock to be
redeemed, as applicable;
(ii) In the case of a Redemption Notice given by the
Corporation, the number of shares of Series A Preferred Stock held by
the holder which the Corporation intends to redeem;
(iii) The Redemption Date and Redemption Price; and
(iv) In the case of a Redemption Notice given by the
Corporation, the time, place and manner in which the holder is to
surrender to the Corporation the certificate or certificates
representing the shares of Series A Preferred Stock called for
redemption by the Corporation. Promptly following receipt of a
Redemption Notice given by a holder of Series A Preferred Stock, the
Corporation shall notify such holder of the time, place and manner in
which the holder is to surrender to the Corporation the certificate or
certificates representing the shares of Series A Preferred Stock
required to be redeemed.
(c) Payment of Redemption Price and Surrender of Stock. On the
Redemption Date, the Redemption Price of the Series A Preferred Stock called for
redemption by the Corporation or required by the holder thereof to be redeemed,
as the case may be, shall be payable to the holder(s) of the Series A Preferred
Stock being so redeemed. On or before the Redemption Date, each holder of Series
A Preferred Stock to be redeemed by the Corporation or required by the holder
thereof to be redeemed, as the case may be, shall surrender the certificate or
certificates representing such shares to the Corporation, in the manner and at
the place designated in the Redemption Notice (given by the Corporation) or in
the notice of the Corporation described in Section 8(b)(iv) above, and thereupon
the Redemption Price for such shares shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner thereof, and
each surrendered certificate shall be cancelled and retired.
(d) Termination of Rights. If the Redemption Notice is duly
given, and if at least ten (10) days prior to the Redemption Date the Redemption
Price is either paid or made available for payment through the arrangement
specified in subsection (e) below, then notwithstanding that the certificates
evidencing any of the shares of Series A Preferred Stock so called for
redemption by the Corporation or required by a holder thereof to be redeemed, as
the case may be, have not been surrendered, all rights with respect to such
shares shall forthwith after the Redemption Date cease, except only the right of
the holders to receive the Redemption Price without interest upon surrender of
their certificates therefor.
(e) Deposit of Funds. At least ten (10) days prior to the
Redemption Date, the Corporation may, but shall not be obligated to, deposit
with any bank or trust company in San Francisco, California, having a capital
and surplus of at least $1 billion as a trust fund, a sum equal to the aggregate
Redemption Price of all shares of the Series A Preferred Stock called for
redemption by the Corporation or required by a holder thereof to be redeemed, as
the case may be, and not yet redeemed, with irrevocable instructions and
authority to the bank or trust company to pay, on or after the Redemption Date
or prior thereto, the Redemption Price to the respective holders upon the
surrender of their share certificates. The deposit, if made, shall constitute
full payment of the shares to their holders, and from and after the date of such
deposit (even if prior to the Redemption Date), the shares shall be deemed to be
redeemed and no longer outstanding, and the holders thereof shall cease to be
shareholders with respect to such shares and shall have no rights with respect
thereto, except the right to receive from the bank or trust company payment of
the Redemption Price of the shares, without interest, upon surrender of their
certificates therefor. Any monies so deposited and unclaimed at the end of one
(1) year from the Redemption Date (or earlier at the election of the
Corporation) shall be released or repaid to the Corporation, after which the
holders of shares called for redemption by the Corporation or required by a
holder thereof to be redeemed, as the case may be, shall be entitled to receive
payment of the Redemption Price only from the Corporation.
Section 9. No Re-issuance of Preferred Stock. No shares of Series A
Preferred Stock redeemed, purchased or acquired by the Corporation shall be
reissued, and all such shares shall be canceled and eliminated from the shares
the Corporation shall be authorized to issue.
Section 10. Amendment, Supplement and Waiver. Without the consent of any
holder or holders of the Series A Preferred Stock, the Corporation may amend or
supplement this Certificate of Designation to make any change that would grant
any additional rights or benefits to the holders of the Series A Preferred Stock
or that does not affect the legal rights under this Certificate of Designation
of any such holder.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be executed by the below named officer of the Corporation.
Dated: August 23, 2002
BIOMARIN PHARMACEUTICAL INC.,
a Delaware corporation
By: /s/ Louis Drapeau
------------------------
Name: Louis Drapeau
Title: Secretary
BIOMARIN PHARMACEUTICAL INC.
Certificate Of Designation, Preferences And Rights
of
Series B Junior Participating Preferred Stock
of
BioMarin Pharmaceutical Inc.
----------------------------
The undersigned officer of BioMarin Pharmaceutical Inc. (the
"Corporation"), a corporation organized and existing under the Delaware General
Corporation Law (the "DGCL"), does hereby certify that, pursuant to the
authority conferred upon the Board of Directors of the Corporation (the "Board
of Directors") by Article IV of the Amended and Restated Certificate of
Incorporation of the Corporation (the "Certificate of Incorporation"), the Board
of Directors on September 11, 2002 adopted the following resolution creating a
series of 750,000 shares of preferred stock designated as Series B Junior
Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors
by Article IV of the Certificate of Incorporation of the Corporation, a series
of preferred stock of the Corporation be, and it hereby is, created, and that
the designation and amount thereof and the voting powers, preferences and
relative, participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are as
follows:
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
Section 1. Designation and Amount. The shares of such series shall be
designated as Series B Junior Participating Preferred Stock, $.001 par value per
share (the "Series B Preferred Stock"), and the number of shares constituting
the Series B Preferred Stock shall be seven-hundred fifty thousand (750,000).
Such number of shares may be increased or decreased by resolution of the Board
of Directors; provided, that no decrease shall reduce the number of shares of
Series B Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into Series B
Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares
of any class or series of stock of this Corporation ranking prior and superior
to the Series B Preferred Stock with respect to dividends, the holders of shares
of Series B Preferred Stock, in preference to the holders of Common Stock, par
value $.001 per share (the "Common Stock"), of the Corporation, and of any other
stock ranking junior to the Series B Preferred Stock, shall be entitled to
receive, when, as and if authorized by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable in cash on the
fifteenth day of January, April, July and October of each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series B Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $0.01 or (b) an amount, subject
to the provision for adjustment hereinafter set forth, equal to 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) 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 reclassification or
otherwise), declared on 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 any share or fraction of a share of
Series B Preferred Stock. In the event the Corporation shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision, combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of Series B
Preferred Stock were 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 is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is 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 the
Series B Preferred Stock as provided in paragraph (A) of this Section 2
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided 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 $0.01 per share on the
Series B Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series B Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series B 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
the shares of Series B Preferred Stock in an amount less than the total amount
of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series B Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
(D) In determining whether a distribution (other than upon voluntary or
involuntary liquidation), by dividend, redemption or other acquisition of shares
of stock of the Corporation or otherwise, is permitted under the DGCL, amounts
that would be needed, if the Corporation were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon dissolution of holders of
the Series B Preferred Stock shall not be added to the Corporation's total
liabilities.
Section 3. Voting Rights. The holders of shares of Series B Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series B Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the holders of Common Stock. In the event
the Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series B Preferred Stock
were entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided herein, in the Certificate of
Incorporation, or in any other Certificate of Designation, Preferences and
Rights creating a series of Preferred Stock or any similar stock, the holders of
shares of Series B Preferred Stock and the holders of shares of Common Stock and
any other shares of stock of the Corporation having general voting rights shall
vote together as one class on all matters submitted to a vote of stockholders of
the Corporation.
(C) Except as set forth herein, or as otherwise provided by law, holders
of Series B Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series B Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series B Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up)
to the Series B Preferred Stock;
(ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up)
with the Series B Preferred Stock, except dividends paid
ratably on the Series B Preferred Stock and all such parity
stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the
Series B Preferred Stock, provided that the Corporation may
at any time redeem, purchase or otherwise acquire shares of
any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (both as to dividends and
upon dissolution, liquidation or winding up) to the Series
B Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series B Preferred Stock, or any shares of
stock ranking on a parity with the Series B 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 shares upon such terms as
the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(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 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series B Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock subject to the conditions
and restrictions on issuance set forth herein, in the Certificate of
Incorporation, or in any other Certificate of Designation, Preferences and
Rights creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding up of the Corporation,
voluntary or otherwise no distribution shall be made (1) to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred Stock unless, prior
thereto, the holders of shares of Series B Preferred Stock shall have received
an amount per share (the "Series B Liquidation Preference") equal to $10,000 per
share, plus an amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment, provided that the
holders of shares of Series B Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount to be distributed per share
to holders of shares of Common Stock, or (2) to the holders of shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series B Preferred Stock, except distributions made ratably
on the Series B Preferred Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series B Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that are
outstanding immediately prior to such event.
(B) In the event, however, that there are not sufficient assets available
to permit payment in full of the Series B Liquidation Preference and the
liquidation preferences of all other classes and series of stock of the
Corporation, if any, that rank on a parity with the Series B Preferred Stock in
respect thereof, then the assets available for such distribution shall be
distributed ratably to the holders of the Series B Preferred Stock and the
holders of such parity shares in proportion to their respective liquidation
preferences.
(C) Neither the merger or consolidation of the Corporation into or with
another corporation nor the merger or consolidation of any other corporation
into or with the Corporation shall be deemed to be a liquidation, dissolution or
winding up of the Corporation within the meaning of this Section 6.
Section 7. 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 changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series B Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times 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 changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series B Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series B Preferred Stock shall
not be redeemable by the Company.
Section 9. Rank. The Series B Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up, junior to the Series A Non-Voting Non-Convertible
Preferred Stock and all other series of any other class of the Corporation's
Preferred Stock, except to the extent that any such other series specifically
provides that it shall rank on a parity with or junior to the Series B Preferred
Stock.
Section 10. Amendment. At any time any shares of Series B Preferred Stock
are outstanding, neither the Certificate of Incorporation nor this Certificate
of Designation, Preferences and Rights shall be amended in any manner which
would materially alter or change the powers, preferences or special rights of
the Series B Preferred Stock, as set forth herein, so as to affect them
adversely without the affirmative vote of the holders of at least two-thirds of
the outstanding shares of Series B Preferred Stock, voting separately as a
single class.
Section 11. Fractional Shares. Series B Preferred Stock may be issued in
fractions of a share that shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series B Preferred Stock.
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1. The shares of Series B Preferred Stock have been classified and
designated by the Board of Directors under the authority contained in
the Certificate of Incorporation.
2. This Certificate of Designation, Preferences and Rights has been
approved by the Board of Directors in the manner and by the vote
required by law.
3. The undersigned officer acknowledges this Certificate of Designation,
Preferences and Rights to be the corporate act of the Corporation and,
as to all matters of fact required to be verified under oath, the
undersigned officer acknowledges that to the best of his knowledge,
information and belief, these matters and facts are true in all
material respects and that this statement is made under the penalties
for perjury.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Designation, Preferences and Rights on September 11, 2002.
By: /s/ Fredric D. Price
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Fredric D. Price
Chairman and Chief Executive Officer of
BioMarin Pharmaceutical Inc.