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 Pharmaceutical 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 Stack 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 definitions 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.
[SIGNATURE PAGE FOLLOWS]
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 maybe issued
infractions 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.
----------------------------------------
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
--------------------------------------
Fredric D. price
Chairman and Chief Executive Officer of
BioMarin Pharmaceutical Inc.
CERTIFICATE OF AMENDMENT
TO AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
BIOMARIN PHARMACEUTICAL INC.
BioMarin Pharmaceutical Inc., a corporation duly organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify that:
1. By unanimous written consent, the Board of Directors of the Corporation
duly adopted resolutions setting forth the following amendment to the
Corporation's Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation"), declaring said amendment to be advisable and
providing for the consideration of such amendment at the Corporation's annual
meeting of stockholders.
2. Thereafter, pursuant to the resolution of the Corporation's Board of
Directors, the annual meeting of stockholders of the Corporation was duly called
and held, upon notice in accordance with Section 222 of the General Corporation
Law of the State of Delaware, at which meeting the necessary number of shares
required by statute were voted in favor of the amendment.
3. Said amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
4. Article of IV of the Certificate of Incorporation is hereby amended and
restated in its entirety to read as follows:
"The Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The number of
shares of Common Stock which the Corporation is authorized to issue is One
Hundred Fifty Million (150,000,000) 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")."
5. The capital of the Corporation shall not be reduced under or by reason
of said amendment.
IN WITNESS WHEREOF, BioMarin Pharmaceutical Inc. has caused this
Certificate of Amendment to be executed by its authorized officer, on this 12th
day of June, 2003.
/s/ Louis Drapeau
--------------------------------
Louis Drapeau, Secretary