BOOK 926 PAGE 404
FILED
OCT 3 1989
SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
SEA PRIDE INDUSTRIES, INC.
FIRST: The name of the Corporation is SEA PRIDE INDUSTRIES, INC.
SECOND: The registered office of the Corporation in the State of Delaware
is located at
the Corporate Agents, Inc., 1013 Center Road, Wilmington, New Castle County,
Delaware, and
the name of its registered agent will be Corporate Agents, Inc.
THIRD: The nature of the business, objects and purposes to be transacted,
promoted or
carried on by the Corporation is to engage in any lawful act or activity for
which
corporations may be organized under the General Corporation Act of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall
have authority to issue shall be 30,000,000 shares, of which 5,000,000 shares
will be
preferred stock of the par value of one cent each ($.01) (hereinafter called the
Preferred
Stock) and of which 25,000,000 shares shall be common stock of the par value of
one cent
each ($.01) (hereinafter called the Common Stock).
The following is a statement of the powers, preferences and rights, and
the
qualifications, limitations and restrictions, of classes of stock of the
Corporation, and the
authority with respect thereto expressly vested in the Board of Directors of the
Corporation.
BOOK 926 PAGE 405
A. Serial Preferred Stock
1. Shares of Serial Preferred Stock may be issued from time to time in one or
2. more series,
each such series to have distinctive serial designations, as shall hereafter be
determined
in the resolution or resolutions providing for the issue of such Serial
Preferred Stock
from time to time adopted by the Board of Directors pursuant to authority so to
do which
is hereby vested in the Board of Directors.
2. Each Series of Serial Preferred Stock
(a) may have such number of shares;
(b) may have such voting powers, full or limited, or may be without voting
powers;
(c) may be subject to redemption at such time or times and at such prices;
(d) may be entitled to receive dividends (which may be cumulative or
noncumulative), at
such rate or rates, on such conditions, from such date or dates, and at
such times, and
payable in preference to, or in relation to, the dividends payable on any
other class
or classes or series of stock;
(e) may have such rights upon the dissolution of, or upon any distribution of
the assets of,
the Corporation;
(f) may be made convertible into, or exchangeable for, shares of any other
class or
classes of any other series of the same or any other class or classes of
stock of the
Corporation at such price or prices or at such rates of exchange, and with such
adjustments;
(g) may be entitled to the benefit of a sinking fund or purchase fund to be
applied to the
purchase or redemption of shares of such series in such amount or amounts;
(h) may be entitled to the benefit of conditions and restrictions upon the
creation of
indebtedness of the Corporation or any subsidiary, upon the issuance of any
additional stock
(including additional shares of such series or of any other series and upon the
payment of
dividends or the
BOOK 926 PAGE 406
making of other distributions on and the purchase redemption or other
acquisition by
the Corporation or any subsidiary of any outstanding stock of the
Corporation; and
(i) may have such other relative, participating, optional or other special
rights, and
qualifications, limitations or restrictions thereof; all as shall be stated in
said
resolution or resolutions providing for the issuance of such Serial Preferred
Stock. Except
where otherwise set forth in the resolution or resolutions adopted by the
Board of
Directors providing for the issuance of any series is Serial Preferred Stock,
the number of
shares comprising such series may be increased or decreased (but not below the
number of
shares then outstanding) from time to time by like action of the Board of
Directors
(3) Shares of any series of Serial Preferred Stock which have been redeemed
(whether through
the operation of a sinking fund or otherwise) or purchased by the Corporation,
or which, if
convertible or exchangeable, have been converted into or exchanged for shares of
stock of
any other class or classes shall have the status of authorized and unissued
shares of Serial
Preferred Stock and may be reissued as a part of the series of which they were
originally a
part or may be reclassified and reissued as part of a new series of Serial
Preferred Stock to
be created by resolution or resolutions of the Board of Directors or as part of
any other
series of Preferred Stock, all subject to the conditions or restrictions on
issuance set
forth in the resolution or resolutions adopted by the Board of Directors
providing for
the issuance of any series of Serial Preferred Stock and to any filing required
by law.
BOOK 926 PAGE 407
B. Common Stock
1. Except as otherwise provided by law or by the resolution or resolutions of
2. the Board of
directors providing for the issuance of any series of the Serial Preferred
Stock, the Common
Stock shall have the exclusive right to vote for the election of Directors and
for all other
purposes, each holder of the Common Stock being entitled to one vote for each
share held.
3. Subject to all of the rights of the Serial Preferred Stock or any series
4. thereof, the
holders of the Common Stock shall be entitled to receive, when, as and if
declared by the
Board of Directors, out of funds legally available therefor, dividends payable
in case, stock
or otherwise.
3. Upon any liquidation, dissolution or winding up of the Corporation, whether
4. voluntary or
involuntary, and after the holders of the Serial Preferred Stock of each series
shall have
been paid in full the amounts to which they respectively shall be entitled, or a
sum
sufficient for such payments in full shall have been set aside, the remaining
net assets of
the Corporation shall be distributed pro rata to the holders of the Common Stock
in
accordance with their respective rights and interests, to the exclusion of the
holders of the
Serial Preferred Stock.
C. General Provisions
Whenever the vote of stockholders at a meeting thereof is required or permitted
to be taken
for or in connection with any corporate action, the meeting and vote of
stockholders may be
dispensed with and such action may be taken with the written consent of
stockholders having
not less than the minimum percentage of the vote required by statute for the
proposed
corporation action, provided that prompt notice shall be given to all
stockholders of the
taking of the corporate action without a meeting and by less than unanimous
consent.
BOOK 926 PAGE 408
FIFTH: No stockholder of this Corporation shall by reason of his holding shares
of any class
have nay pre-emptive or preferential right to purchase or subscribe to any
shares of any
class of this Corporation, now or hereafter to be authorized, or any notes,
debentures,
bonds, or other securities convertible into or carrying warrants or options to
purchase
shares of any class, now or hereafter to be authorized, whether or not the
issuance of any
such shares or such notes, debentures, bonds or other securities would
adversely affect the
dividend or voting rights of such stockholder other than such rights, if any, as
the Board of
Directors, in its discretion, may fix; and the Board of Directors may issue
shares of any
class of this Corporation, or any note, debentures, bonds or other securities
convertible
into or carrying options or warrants to purchase shares of any class, without
offering any
such shares of any class, whether in whole or in part, to the existing
stockholders of any
class.
SIXTH: The name and mailing address of the incorporator is:
Name Mailing Address
Julian M. Meer 14135 Midway Road
Dallas, Texas 75244
SEVENTH: The Corporation is to have perpetual existence.
EIGHTH: The number of directors constituting the original Board of Directors is
three (3).
The number of directors shall be fixed by, or in the manner provided in, the By-
Laws of the
Corporation. The names and addresses of the initial directors of the
Corporation who are to
serve until the first annual meeting of the shareholders or until their
successors are
elected and qualified are:
Names Mailing Addressee
Felix Einsohn 5315 Lobello Drive
Dallas, Texas 75231
BOOK 926 PAGE 409
John D. Ericsson 2870 Red Valley Run
Rockwall, TX 75087
Patrick J. Meadows 1705 Plumber Drive
Rockwall, TX 75087
NINTH: In furtherance and not in limitation of the powers conferred by statute,
the Board of
Directors is expressly authorized:
1. To make, alter or repeal the By-Laws of the Corporation.
2. To authorize and cause to be executed mortgages and liens upon the real and
personal
property of the Corporation.
3. To set apart out of any of the funds of the Corporation available for
dividends a reserve
or reserves for any proper purpose and to abolish any such reserve in the manner
in which it
was created.
5. By a majority of the whole Board of Directors, to designate one or more
6. committees, each
committees, each committee to consist of two or more of the directors of the
Corporation.
The Board of Directors may designate one or more directors as alternate members
of any
committee, who may replace any absent or disqualified member at any meeting of
the committee.
Any such committee, to the extent provided in the resolution or in the by-laws
of the
Corporation and may authorize the seal of the Corporation to be affixed to all
papers which
may require it; provided, however, the by-laws may provide that in the absence
or
disqualification of nay member of such committee or committees the member or
members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute
a quorum, may unanimously appoint another member of the Board of Directors to
act at the
meeting in the place of any such absent or disqualified member.
5. When and as authorized by the affirmative vote of the holders of a majority
6. of the stock
issued and outstanding having voting power given at a
BOOK 926 PAGE 410
stockholder's meeting duly called upon such notice as is required by statute, or
when
authorized by the written consent of the holders of a majority of the voting
stock issued
and outstanding, to sell, lease or exchange all or substantially all the
property and assets
of the Corporation, including its goodwill and its corporate franchises, upon
such terms and
conditions and for such consideration, which may consist in whole or in part of
money or
property including securities of any other corporation or corporations, as the
Board of
Directors shall deem expedient and for the best interests of the Corporation.
TENTH: Meetings of the stockholders may be held within or without the State of
Delaware, as
the by-laws may provide. The books of the Corporation may be kept (subject to
any provisions
contained in the statutes) outside 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 by-laws of the
Corporation.
Elections of Directors need not be by written ballot unless the by-laws of; the
Corporation
shall so provide.
ELEVENTH: A director of the Corporation shall not be personally liable to the
Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for
liability (i) for any breach of the director's duty of loyalty to the
Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General
Corporation Law, as the same exists or hereafter may be amended, or (iv) for any
transaction
from which the director derived an improper personal benefit. If the Delaware
General
Corporation Law hereafter is amended to authorize the further elimination or
limitation of
the liability of directors, then the liability of a director of the Corporation,
in addition
to the limitation on personal liability provided herein, shall be limited to the
fullest
extent permitted by the amended Delaware General Corporation Law.
BOOK 926 PAGE 411
Any repeal or modification of this paragraph by the stockholders of the
Corporation shall be
perspective only, and shall not adversely affect any limitation on the personal
liability of
a director of the Corporation existing at the time of such repeal or
modification.
The Corporation shall, to the extent permitted by Section 145 of the Delaware
General
Corporation Law, as amended from time to time, indemnify and reimburse all
persons who it may
indemnify and reimburse pursuant thereto. Expenses incurred by an officer or
director in
defending a civil or criminal action, suit or proceedings shall be paid by the
Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as
authorized in Section 145(e) of the Delaware General corporation Law. Not
withstanding the
foregoing, the indemnification provided for herein shall not be deemed exclusive
of any other
rights to which those entitled to receive indemnification or reimbursement
hereunder may be
entitled under any by-law of this Corporation, agreement, vote of stockholders
or
disinterested directors or otherwise.
TWELFTH: No contract or transaction between this Corporation or any person,
firm,
association, or corporation and no act of this Corporation shall, in the absence
of fraud, be
invalidated or in any way affected by the fact that any of the directors of this
Corporation
are pecuniarily or otherwise interested, directly or indirectly, in such
contract,
transaction or act, or are related to or interested in, as a director,
stockholder, officer,
employee, member or otherwise such person, firm, association or corporation.
Any director so
interested or related who is present at any meeting of the Board of Directors or
committee of
directors at which action on any such contract, transaction or act is taken may
be counted in
determining the presence of a quorum at such meeting and may vote thereat with
BOOK 926 PAGE 412
respect to such contract, transaction or act with like force and effect as if he
were not so
interested or related. No director so interested or related shall, because of
such interest
or relationship, be disqualified from holding his office or be liable to the
Corporation or
to any stockholder or creditor thereof for any loss incurred by this Corporation
under or by
reason of such contract, transaction or act, or be accountable for any gains or
profits he
may have realized therein.
THIRTEENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of
forming a corporation pursuant to the General Corporation Law of the State of
Delaware, does make this Certificate, hereby declaring and certifying that this
is my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 18th day of September, 1989.
/c/Julian M. Meer
-----------------
Julian M. Meer
STATE OF TEXAS )
COUNTY OF DALLAS)
Before me, the undersigned a Notary Public in and for the State of Texas
personally appeared Julian M. Meer, who acknowledges to me that he signed the
foregoing certificate of incorporation as incorporator and that it is his act
and the facts stated wherein are true.
/c/ Joyce Nazario
------------------
Joyce Nazario
Notary Public in and
for the State of Texas
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SEA PRIDE INDUSTRIES, INC.
SEA PRIDE INDUSTRIES, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware.
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of SEA PRIDE INDUSTRIES,
Inc. resolutions were duly adopted setting forth a proposed amendment of the
Certificate of Incorporation of said corporation, declaring said amendment to
be advisable and calling a meeting of the stockholders of said corporation for
consideration thereof. The resolution setting forth the proposed amendment is
as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended
by changing the Article thereof numbered FIRST so that, as amended said
Article shall be and read as follows:
FIRST: The name of the corporation is BioMarine Technologies, Inc.
SECOND: that thereafter, pursuant to resolution of this Board of Directors, a
special meeting of the stockholders of said 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
as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, and SEA PRIDE INDUSTRIES, Inc. has caused this
certificate to be signed by its Authorized Officer this 30 day of December,
1998.
BY: \s\ John D. Ericsson Signature
Name: John D. Ericsson-please print
Title: President -please print
Authorized OFFICER
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 11/12/1999
991482979 - 2209474