RESTATED CERTIFICATE OF INCORPORATION
OF
PE CORPORATION
(Originally incorporated November 16, 1998 under the name of The Perkin-Elmer
Corporation, which name was subsequently changed to PE Corporation upon the
filing of an amendment to the first Restated Certificate of Incorporation on
January 29, 1999)
ARTICLE I.
NAME
The name of the corporation is Applera Corporation (the "Corporation").
ARTICLE II.
ADDRESS OF REGISTERED OFFICE;
NAME OF REGISTERED AGENT
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, 19801. The name of its registered agent at
that address is The Corporation Trust Company.
ARTICLE III.
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law (the "DGCL").
ARTICLE IV.
CAPITAL STOCK
Section 1. Authorization. The aggregate number of shares of stock which
the Corporation shall have authority to issue is one billion two hundred
thirty-five million (1,235,000,000) shares, of which one billion (1,000,000,000)
shares shall be shares of a class of common stock designated as "Applera
Corporation--Applied Biosystems Group Common Stock," having a par value of $0.01
per share (the "Applied Biosystems Stock"), two hundred twenty-five million
(225,000,000) shares shall be shares of a class of common stock designated as
"Applera Corporation--Celera Genomics Group Common Stock," having a par value of
$0.01 per share (the "Celera Genomics Stock"), and ten million (10,000,000)
shares shall be shares of a class of preferred stock having a par value of $.01
per share (the "Preferred Stock") and issuable in one or more series as
hereinafter provided. The Applied Biosystems Stock and the Celera Genomics Stock
shall hereinafter collectively be called "Common Stock" and either shall
sometimes be called a class of Common Stock. For purposes of this Article IV,
references to the
"Board of Directors" shall refer to the Board of Directors of the Corporation,
as established in accordance with Article V of the certificate of incorporation
of the Corporation, and references to "the Certificate of Incorporation" shall
refer to this Restated Certificate of Incorporation as the same may be amended
from time to time. Certain capitalized terms used in this Article IV, shall have
the meanings set forth in Section 2.6 of this Article. For purposes of this
Article IV, the Applied Biosystems Stock, when issued, shall be considered
issued in respect of the Applied Biosystems Group and the Celera Genomics Stock,
when issued, shall be considered issued in respect of the Celera Genomics Group.
The number of authorized shares of any class or classes of capital stock of the
Corporation may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of a majority
of the voting power of the stock of the Corporation entitled to vote generally
in the election of directors.
Section 2. Common Stock. The voting powers, preferences and relative,
participating, optional or other special rights of the Common Stock, and the
qualifications and restrictions thereon, shall be as follows in this Section 2.
Section 2.1 Dividends. Subject to any preferences and relative,
participating, optional or other special rights of any outstanding class or
series of preferred stock of the Corporation and any qualifications or
restrictions on either class of Common Stock created thereby, dividends may be
declared and paid upon either class of Common Stock, upon the terms with respect
to each such class, and subject to the limitations provided for below in this
Section 2.1, as the Board of Directors may determine.
(a) Dividends on Applied Biosystems Stock. Dividends on Applied
Biosystems Stock may be declared and paid only out of the lesser of (i) the
funds of the Corporation legally available therefor and (ii) the Applied
Biosystems Group Available Dividend Amount.
(b) Dividends on Celera Genomics Stock. Dividends on Celera Genomics
Stock may be declared and paid only out of the lesser of (i) the funds of the
Corporation legally available therefor and (ii) the Celera Genomics Group
Available Dividend Amount.
(c) Discrimination in Dividends Between Classes of Common Stock. The
Board of Directors, subject to the provisions of Sections 2.1(a) and 2.1(b), may
at any time declare and pay dividends exclusively on Applied Biosystems Stock,
exclusively on Celera Genomics Stock, or on both such classes, in equal or
unequal amounts, notwithstanding the relative amounts of the Available Dividend
Amount with respect to either Group, the amount of dividends previously declared
on either class, the respective voting or liquidation rights of either class or
any other factor.
(d) Shares Distributions. Except as permitted by Sections 2.4(a) and
2.4(b), the Board of Directors may declare and pay dividends or distributions of
shares of Applied Biosystems Stock or Celera Genomics Stock (or Convertible
Securities convertible into or exchangeable or exercisable for shares of Applied
Biosystems Stock or Celera Genomics Stock) on shares of a class of Common Stock
or shares of a class or series of preferred stock of the Corporation only as
follows:
(i) dividends or distributions of shares of Applied Biosystems
Stock (or Convertible Securities convertible into or exchangeable or
exercisable for shares of Applied Biosystems Stock) on shares of
Applied Biosystems Stock or shares of preferred stock attributed to the
Applied Biosystems Group;
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(ii) dividends or distributions of shares of Celera Genomics
Stock (or Convertible Securities convertible into or exchangeable or
exercisable for shares of Celera Genomics Stock) on shares of Celera
Genomics Stock or shares of preferred stock attributed to the Celera
Genomics Group; and
(iii) dividends or distributions of shares of Celera Genomics
Stock (or Convertible Securities convertible into or exchangeable or
exercisable for shares of Celera Genomics Stock) on shares of Applied
Biosystems Stock or shares of preferred stock attributed to the Applied
Biosystems Group, but only if the sum of (1) the number of shares of
Celera Genomics Stock to be so issued (or the number of such shares
which would be issuable upon conversion, exchange or exercise of any
Convertible Securities to be so issued) and (2) the number of shares of
Celera Genomics Stock which are issuable upon conversion, exchange or
exercise of any Convertible Securities then outstanding that are
attributed to the Applied Biosystems Group is less than or equal to the
Number of Celera Genomics Designated Shares.
Section 2.2 Voting Rights. (a) General. Except as otherwise provided by
law, by the terms of any outstanding class or series of preferred stock of the
Corporation or by any provision of the Certificate of Incorporation restricting
the power to vote on a specified matter to other stockholders, the entire voting
power of the stockholders of the Corporation shall be vested in the holders of
the Common Stock, who shall be entitled to vote on any matter on which the
holders of stock of the Corporation shall, by law or by the provisions of the
Certificate of Incorporation or By-laws of the Corporation, be entitled to vote,
and both classes of Common Stock shall vote thereon together as a single class.
(b) Number of Votes for each Class of Common Stock. On each matter to
be voted on by the holders of both classes of Common Stock voting together as a
single class, the number of votes per share of each class shall be as follows:
(i) each outstanding share of Applied Biosystems Stock shall
have one vote; and
(ii) each outstanding share of Celera Genomics Stock shall
have a number of votes (including a fraction of one vote) equal to the
quotient (rounded to the nearest three decimal places) of the average
Market Value of one share of Celera Genomics Stock during the
20-Trading Day Period ending on the tenth Trading Day prior to the
record date for determining the stockholders entitled to vote, divided
by the average Market Value of a share of Applied Biosystems Stock
during such 20-Trading Day period.
Notwithstanding the foregoing, if shares of only one class of Common Stock are
outstanding on the record date for determining the holders of Common Stock
entitled to vote on any matter, then each share of that class shall be entitled
to one vote and, if either class of Common Stock is entitled to vote as a
separate class with respect to any matter, each share of that class shall, for
purpose of such vote, be entitled to one vote on such matter.
In addition to any provision of law or any provision of the Certificate
of Incorporation entitling the holders of outstanding shares of Applied
Biosystems Stock or Celera Genomics Stock to vote as a separate class, the Board
of Directors may condition the approval of any matter submitted to stockholders
on receipt of a separate vote of the holders of outstanding shares of Applied
Biosystems Stock or Celera Genomics Stock.
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Section 2.3 Liquidation Rights. In the event of any voluntary or
involuntary dissolution, liquidation or winding up of the Corporation, after
payment or provision for payment of the debts and other liabilities of the
Corporation and the full preferential amounts (including any accumulated and
unpaid dividends) to which the holders of any outstanding shares of preferred
stock of the Corporation are entitled (regardless of the Group to which such
shares of preferred stock were attributed), the holders of the Applied
Biosystems Stock and Celera Genomics Stock shall be entitled to receive the
assets, if any, of the Corporation remaining for distribution to holders of
Common Stock on a per share basis in proportion to the respective liquidation
units per share of such class. Each share of Applied Biosystems Stock shall have
one liquidation unit and each share of Celera Genomics Stock shall have a number
of liquidation units (including a fraction of one liquidation unit) equal to the
quotient (rounded to the nearest five decimal places) of the average Market
Value of one share of Celera Genomics Stock during the 20-Trading Day period
ending on the 40th Trading Day after the effective date of this certificate of
incorporation, divided by the average Market Value of one share of Applied
Biosystems Stock during such 20-Trading Day period. Neither the merger nor
consolidation of the Corporation into or with any other corporation, nor a sale,
transfer or lease of all or any part of the assets of the Corporation, shall,
alone, be deemed a liquidation or winding up of the Corporation or cause the
dissolution of the Corporation, for purposes of this Section 2.3.
If the Corporation shall in any manner subdivide (by stock split,
reclassification or otherwise) or combine (by reverse stock split,
reclassification or otherwise) the outstanding shares of Applied Biosystems
Stock or Celera Genomics Stock, or declare a dividend in shares of either class
to holders of such class, the per share liquidation units of either class of
Common Stock specified in the preceding paragraph of this Section 2.3, as
adjusted from time to time, shall be appropriately adjusted as determined by the
Board of Directors, so as to avoid dilution in the aggregate, relative
liquidation rights of the shares of any class of Common Stock.
Section 2.4 Conversion or Redemption of the Common Stock. Applied
Biosystems Stock is subject to conversion or redemption and Celera Genomics
Stock is subject to conversion or redemption, in each case, upon the terms
provided below in this Section 2.4; provided, however, that neither class of
Common Stock may be converted or redeemed if the other class of Common Stock has
been converted or redeemed in its entirety or notice thereof shall have been
given as required by this Section 2.4.
(a) Mandatory and Optional Conversion and Redemption of Applied
Biosystems Stock Other Than for Applied Biosystems Subsidiary Stock. (i) In the
event of the Disposition, in one transaction or a series of related
transactions, by the Corporation and/or its subsidiaries of all or substantially
all of the properties and assets attributed to the Applied Biosystems Group to
one or more persons or entities (other than the Disposition (w) by the
Corporation of all or substantially all of its properties and assets in one
transaction or a series of related transactions in connection with the
dissolution, liquidation or winding up of the Corporation and the distribution
of assets to stockholders as referred to in Section 2.3, (x) of the properties
and assets attributed to the Applied Biosystems Group as contemplated by Section
2.4(c) or otherwise to all holders of shares of Applied Biosystems Stock divided
among such holders on a pro rata basis in accordance with the number of shares
of Applied Biosystems Stock outstanding, (y) to any person or entity controlled
(as determined by the Board of Directors) by the Corporation or (z) in
connection with a Related Business Transaction in respect of the Applied
Biosystems Group), the Corporation shall, on or prior to the 95th Trading Day
after the date of consummation of such Disposition (the "Disposition Date"), pay
a dividend on Applied Biosystems Stock or redeem some or all of Applied
Biosystems Stock or convert Applied Biosystems Stock into Celera Genomics Stock
(or another class or series of common stock of the Corporation), all as provided
by the following
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Sections 2.4(a)(i)(1) and 2.4(a)(i)(2) and, to the extent applicable, by Section
2.4(f), as the Board of Directors shall have selected among such alternatives:
(1) provided that there are funds of the Corporation legally
available therefor:
(A) pay to the holders of the shares of Applied Biosystems
Stock a dividend pro rata in accordance with the number of shares of
Applied Biosystems Stock held by each such holder, as the Board of
Directors shall have declared subject to compliance with Section 2, in
cash and/or in securities (other than a dividend of shares of a class
of Common Stock) or other property having a Fair Value as of the
Disposition Date in the aggregate equal to the Fair Value as of the
Disposition Date of the Net Proceeds of such Disposition; or
(B) (I) subject to the last sentence of this Section
2.4(a)(i), if such Disposition involves all (not merely substantially
all) of the properties and assets attributed to the Applied Biosystems
Group, redeem or exchange as of the Redemption Date determined as
provided by Section 2.4(f)(iii), all outstanding shares of Applied
Biosystems Stock in exchange for, on a pro rata basis, cash and/or for
securities (other than shares of a class of Common Stock) or other
property having a Fair Value as of the Disposition Date in the
aggregate equal to the Fair Value as of the Disposition Date of the Net
Proceeds of such Disposition; or
(II) subject to the last sentence of this Section 2.4(a)(i),
if such Disposition involves substantially all (but not all) of the
properties and assets attributed to the Applied Biosystems Group,
redeem or exchange as of the Redemption Date determined as provided by
Section 2.4(f)(iv) such number of whole shares of Applied Biosystems
Stock (which may be all, but not more than all, of such shares
outstanding) as have in the aggregate an average Market Value during
the period of ten consecutive Trading Days beginning on the 26th
Trading Day immediately succeeding the Disposition Date closest to the
Fair Value as of the Disposition Date of the Net Proceeds of such
Disposition in consideration for, on a pro rata basis, cash and/or
securities (other than shares of a class of Common Stock) or other
property having a Fair Value as of the Disposition Date in the
aggregate equal to such Fair Value of the Net Proceeds; or
(2) declare that each outstanding share of Applied Biosystems
Stock shall be converted as of the Conversion Date determined as
provided by Section 2.4(f)(v) into a number of fully paid and
nonassessable shares of Celera Genomics Stock (or, if Celera Genomics
Stock is not Publicly Traded at such time and shares of another class
or series of common stock of the Corporation (other than Applied
Biosystems Stock) are then Publicly Traded, of such other class or
series of the common stock of the Corporation as has the largest Market
Capitalization as of the close of business on the Trading Day
immediately preceding the date of the notice of such conversion
required by Section 2.4(f)(v)) equal to 110% of the ratio, expressed as
a decimal fraction rounded to the nearest five decimal places, of the
average Market Value of one share of Applied Biosystems Stock over the
period of ten consecutive Trading Days beginning on the 26th Trading
Day immediately succeeding the Disposition Date to the average Market
Value of one share of Celera Genomics Stock (or such other class or
series of common stock) over the same ten Trading Day period.
Notwithstanding the foregoing provisions of this Section 2.4(a)(i), the
Corporation shall redeem shares of a class of Common Stock as provided by
Section 2.4(a)(i)(1)(B)(I) or (II) only if the
5
amount to be paid in redemption of such stock is less than or equal to the
Applied Biosystems Group Available Dividend Amount as of the Redemption Date.
(ii) For purposes of this Section 2.4(a): (1) as of any date,
"substantially all of the properties and assets" attributed to the Applied
Biosystems Group shall mean a portion of such properties and assets (A) that
represents at least 80% of the Fair Value of the properties and assets
attributed to the Applied Biosystems Group as of such date or (B) from which
were derived at least 80% of the aggregate revenues for the immediately
preceding twelve fiscal quarterly periods of the Corporation (calculated on a
pro forma basis to include revenues derived from any of such properties and
assets acquired during such period) derived from the properties and assets
attributed to the Applied Biosystems Group as of such date; (2) in the case of a
Disposition of the properties and assets attributed to the Applied Biosystems
Group in a series of related transactions, such Disposition shall not be deemed
to have been consummated until the consummation of the last of such
transactions; and (3) the Board of Directors may pay any dividend or redemption
price referred to in Section 2.4(a)(i) in cash, securities (other than shares of
a class of Common Stock) or other property, regardless of the form or nature of
the proceeds of the Disposition.
(iii) The Board of Directors may at any time declare that each
outstanding share of Applied Biosystems Stock shall be converted, as of the
Conversion Date provided by Section 2.4(f)(v), into a number of fully paid and
nonassessable shares of Celera Genomics Stock (or, if Celera Genomics Stock is
not Publicly Traded at such time and shares of any other class or series of
common stock of the Corporation (other than Applied Biosystems Stock) are then
Publicly Traded, of such other class or series of common stock of the
Corporation as has the largest Market Capitalization as of the close of business
on the fifth Trading Day immediately preceding the date of the notice of
conversion required by Section 2.4(f)(v)) equal to 110% of the Market Value
Ratio of Applied Biosystems Stock to Celera Genomics Stock as of the fifth
Trading Day prior to the date of the notice of such conversion required by
Section 2.4(f)(v); provided that, if a Tax Event has occurred, such number of
fully paid and nonassessable shares shall equal 100% of such ratio.
(b) Mandatory and Optional Conversion and Redemption of Celera Genomics
Stock Other Than for Celera Genomics Subsidiary Stock. (i) In the event of the
Disposition, in one transaction or a series of related transactions, by the
Corporation and/or its subsidiaries of all or substantially all of the
properties and assets attributed to the Celera Genomics Group to one or more
persons or entities (other than the Disposition (w) by the Corporation of all or
substantially all of its properties and assets in one transaction or a series of
related transactions in connection with the dissolution, liquidation or winding
up of the Corporation and the distribution of assets to stockholders as referred
to in Section 2.3, (x) of the properties and assets attributed to the Celera
Genomics Group as contemplated by Section 2.4(d) or otherwise to all holders of
shares of Celera Genomics Stock divided among such holders on a pro rata basis
in accordance with the number of shares of Celera Genomics Stock outstanding,
(y) to any person or entity controlled (as determined by the Board of Directors)
by the Corporation or (z) in connection with a Related Business Transaction in
respect of the Celera Genomics Group), the Corporation shall, on or prior to the
95th Trading Day after the date of consummation of such Disposition (the
"Disposition Date"), pay a dividend on Celera Genomics Stock or redeem some or
all of Celera Genomics Stock or convert Celera Genomics Stock into Applied
Biosystems Stock (or another class or series of common stock of the
Corporation), all as provided by the following Sections 2.4(b)(i)(1) and
2.4(b)(i)(2) and, to the extent applicable, by Section 2.4(f), as the Board of
Directors shall have selected among such alternatives:
6
(1) provided that there are funds of the Corporation legally
available therefor:
(A) pay to the holders of the shares of Celera Genomics Stock
a dividend pro rata in accordance with the number of shares of Celera
Genomics Stock held by each such holder, as the Board of Directors
shall have declared subject to compliance with Section 2.1, in cash
and/or in securities (other than a dividend of shares of a class of
Common Stock) or other property having a Fair Value as of the
Disposition Date in the aggregate equal to the Fair Value as of the
Disposition Date of the Net Proceeds of such Disposition; or
(B) (I) subject to the last sentence of this Section
2.4(b)(i), if such Disposition involves all (not merely substantially
all) of the properties and assets attributed to the Celera Genomics
Group, redeem or exchange as of the Redemption Date determined as
provided by Section 2.4(f)(iii), all outstanding shares of Celera
Genomics Stock in exchange for, on a pro rata basis, cash and/or for
securities (other than shares of a class of Common Stock) or other
property having a Fair Value as of the Disposition Date in the
aggregate equal to the Fair Value as of the Disposition Date of the Net
Proceeds of such Disposition; or
(II) subject to the last sentence of this Section 2.4(b)(i),
if such Disposition involves substantially all (but not all) of the
properties and assets attributed to the Celera Genomics Group, redeem
or exchange as of the Redemption Date determined as provided by Section
2.4(f)(iv) such number of whole shares of Celera Genomics Stock (which
may be all, but not more than all, of such shares outstanding) as have
in the aggregate an average Market Value during the period of ten
consecutive Trading Days beginning on the 26th Trading Day immediately
succeeding the Disposition Date closest to the Fair Value as of the
Disposition Date of the Net Proceeds of such Disposition in
consideration for, on a pro rata basis, cash and/or securities (other
than shares of a class of Common Stock) or other property having a Fair
Value as of the Disposition Date in the aggregate equal to such
product; or
(2) declare that each outstanding share of Celera Genomics
Stock shall be converted as of the Conversion Date determined as
provided by Section 2.4(f)(v) into a number of fully paid and
nonassessable shares of Applied Biosystems Stock (or, if Applied
Biosystems Stock is not Publicly Traded at such time and shares of
another class or series of common stock of the Corporation (other than
Celera Genomics Stock) are then Publicly Traded, of such other class or
series of the common stock of the Corporation as has the largest Market
Capitalization as of the close of business on the Trading Day
immediately preceding the date of the notice of such conversion
required by Section 2.4(f)(v)) equal to 110% of the ratio, expressed as
a decimal fraction rounded to the nearest five decimal places, of the
average Market Value of one share of Celera Genomics Stock over the
period of ten consecutive Trading Days beginning on the 26th Trading
Day immediately succeeding the Disposition Date to the average Market
Value of one share of Applied Biosystems Stock (or such other class or
series of common stock) over the same ten Trading Day period.
Notwithstanding the foregoing provisions of this Section 2.4(b)(i), the
Corporation shall redeem shares of a class of Common Stock as provided by
Section 2.4(b)(i)(1)(B)(I) or (II) only if the amount to be paid in redemption
of such stock is less than or equal to the Celera Genomics Group Available
Dividend Amount as of the Redemption Date.
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(ii) For purposes of this Section 2.4(b): (1) as of any date,
"substantially all of the properties and assets" attributed to the Celera
Genomics Group shall mean a portion of such properties and assets (A) that
represents at least 80% of the Fair Value of the properties and assets
attributed to the Celera Genomics Group as of such date or (B) from which were
derived at least 80% of the aggregate revenues for the immediately preceding
twelve fiscal quarterly periods of the Corporation (calculated on a pro forma
basis to include revenues derived from any of such properties and assets
acquired during such period) derived from the properties and assets attributed
to the Celera Genomics Group as of such date; (2) in the case of a Disposition
of the properties and assets attributed to the Celera Genomics Group in a series
of related transactions, such Disposition shall not be deemed to have been
consummated until the consummation of the last of such transactions; and (3) the
Board of Directors may pay any dividend or redemption price referred to in
Section 2.4(b)(i) in cash, securities (other than shares of a class of Common
Stock) or other property, regardless of the form or nature of the proceeds of
the Disposition.
(iii) The Board of Directors may at any time declare that each
outstanding share of Celera Genomics Stock shall be converted, as of the
Conversion Date provided by Section 2.4(f)(v), into a number of fully paid and
nonassessable shares of Applied Biosystems Stock (or, if Applied Biosystems
Stock is not Publicly Traded at such time and shares of any other class or
series of common stock of the Corporation (other than Celera Genomics Stock) are
then Publicly Traded, of such other class or series of common stock of the
Corporation as has the largest Market Capitalization as of the close of business
on the fifth Trading Day immediately preceding the date of the notice of
conversion required by Section 2.4(f)(v)) equal to 110% of the Market Value
Ratio of Celera Genomics Stock to Applied Biosystems Stock as of the fifth
Trading Day prior to the date of the notice of such conversion required by
Section 2.4(f)(v); provided that, if a Tax Event has occurred, such number of
fully paid and nonassessable shares shall equal 100% of such ratio.
(c) Redemption of Applied Biosystems Stock for Applied Biosystems
Subsidiary Stock. At any time at which all of the assets and liabilities
attributed to the Applied Biosystems Group (and no other assets or liabilities
of the Corporation or any subsidiary thereof) are held directly or indirectly by
one or more wholly-owned subsidiaries of the Corporation (each, an "Applied
Biosystems Subsidiary"), the Board of Directors may, provided that there are
funds of the Corporation legally available therefor, redeem all of the
outstanding shares of Applied Biosystems Stock, on a Redemption Date of which
notice is delivered in accordance with Section 2.4(f)(vi), in exchange for all
of the shares of common stock of each Applied Biosystems Subsidiary as will be
outstanding immediately following such exchange of shares, such shares of common
stock of each Applied Biosystems Subsidiary to be delivered to the holders of
shares of Applied Biosystems Stock on the Redemption Date either directly or
indirectly through the delivery of shares of another Applied Biosystems
Subsidiary that owns directly or indirectly all such shares, and to be divided
among the holders of Applied Biosystems Stock pro rata in accordance with the
number of shares of Applied Biosystems Stock held by each such holder on such
Redemption Date, each of which shares of common stock of such Applied Biosystems
Subsidiary shall be, upon such delivery, fully paid and nonassessable.
(d) Redemption of Celera Genomics Stock for Celera Genomics Subsidiary
Stock. At any time at which all of the assets and liabilities attributed to the
Celera Genomics Group (and no other assets or liabilities of the Corporation or
any subsidiary thereof) are held directly or indirectly by one or more
wholly-owned subsidiaries of the Corporation (each, a "Celera Genomics
Subsidiary"), the Board of Directors may, provided that there are funds of the
Corporation legally available therefor, redeem all of the outstanding shares of
Celera Genomics Stock, on a Redemption Date of which notice is delivered in
accordance with Section 2.4(f)(vi),
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in exchange for all of the shares of common stock of each Celera Genomics
Subsidiary as will be outstanding immediately following such exchange of shares,
such shares of common stock of each Celera Genomics Subsidiary to be delivered
to the holders of shares of Celera Genomics Stock on the Redemption Date either
directly or indirectly through the delivery of shares of another Celera Genomics
Subsidiary that owns directly or indirectly all such shares, and to be divided
among the holders of Celera Genomics Stock pro rata in accordance with the
number of shares of Celera Genomics Stock held by each such holder on such
Redemption Date, each of which shares of common stock of such Celera Genomics
Subsidiary shall be, upon such delivery, fully paid and nonassessable.
(e) Treatment of Convertible Securities. After any Conversion Date or
Redemption Date on which all outstanding shares of either Applied Biosystems
Stock or Celera Genomics Stock are converted or redeemed, any share of such
class of Common Stock that is to be issued on conversion, exchange or exercise
of any Convertible Securities shall, immediately upon such conversion, exchange
or exercise and without any notice from or to, or any other action on the part
of, the Corporation or its Board of Directors or the holder of such Convertible
Security:
(i) in the event the shares of such class of Common Stock
outstanding on such Conversion Date were converted into shares of the
other class of Common Stock (or another class or series of common stock
of the Corporation) pursuant to Section 2.4(a)(i)(2), 2.4(a)(iii),
2.4(b)(i)(2) or 2.4(a)(iii), be converted into the amount of cash
and/or the number of shares of the kind of capital stock and/or other
securities or property of the Corporation that number of shares of such
class of Common Stock that were to be issued upon such conversion,
exchange or exercise would have received had such shares been
outstanding on such Conversion Date; or
(ii) in the event the shares of such class of Common Stock
outstanding on such Redemption Date were redeemed pursuant to Section
2.4(a)(i)(1)(B)(I), 2.4(b)(i)(1)(B)(I), 2.4(c) or 2.4(d), be redeemed,
to the extent of funds of the Corporation legally available therefor,
for $.01 per share in cash for each share of such class of Common Stock
that otherwise would be issued upon such conversion, exchange or
exercise.
The provisions of the preceding sentence of this Section 2.4(e) shall not apply
to the extent that other adjustments in respect of such conversion, exchange or
redemption of a class of Common Stock are otherwise made pursuant to the
provisions of such Convertible Securities.
(f) Notice and Other Provisions. (i) Not later than the 20th Trading
Day following the consummation of a Disposition referred to in Section 2.4(a)(i)
(in the case of Applied Biosystems Stock) or Section 2.4(b)(i) (in the case of
Celera Genomics Stock), the Corporation shall announce publicly by press release
(1) the estimated Net Proceeds of such Disposition, (2) the number of shares
outstanding of the class of Common Stock relating to the Group subject to such
Disposition and (3) the number of shares of such class of Common Stock into or
for which Convertible Securities are then convertible, exchangeable or
exercisable and the conversion, exchange or exercise price thereof. Not earlier
than the 36th Trading Day and not later than the 40th Trading Day following the
consummation of such Disposition, the Corporation shall announce publicly by
press release which of the actions specified in Section 2.4(a)(i) or 2.4(b)(i),
as the case may be, it has irrevocably determined to take in respect of such
Disposition.
(ii) If the Corporation determines to pay a dividend pursuant to
Section 2.4(a)(i)(1)(A) (in the case of Applied Biosystems Stock) or Section
2.4(b)(i)(1)(A) (in the case of Celera Genomics Stock), the Corporation shall,
not later than the 40th Trading Day following the consummation of
9
the Disposition referred to in such Section, cause notice to be given to the
holders of shares of the class of Common Stock relating to the Group subject to
such Disposition and to each holder of Convertible Securities that are
convertible into or exchangeable or exercisable for shares of such class of
Common Stock (unless alternate provision for such notice to the holders of such
Convertible Securities is made pursuant to the terms of such Convertible
Securities), setting forth (1) the record date for determining holders entitled
to receive such dividend, which shall be not earlier than the tenth Trading Day
and not later than the 20th Trading Day following the date of such notice, (2)
the anticipated payment date of such dividend (which shall not be more than 95
Trading Days following the consummation of such Disposition), (3) the type of
property to be paid as such dividend in respect of the outstanding shares of
such class of Common Stock, (4) the Net Proceeds of such Disposition, (5) the
number of outstanding shares of such class of Common Stock and the number of
shares of such class of Common Stock into or for which outstanding Convertible
Securities are then convertible, exchangeable or exercisable and the conversion,
exchange or exercise price thereof and (6) in the case of notice to be given to
holders of Convertible Securities, a statement to the effect that a holder of
such Convertible Securities shall be entitled to receive such dividend only if
such holder properly converts, exchanges or exercises such Convertible
Securities on or prior to the record date referred to in clause (1) of this
sentence. Such notice shall be sent by first-class mail, postage prepaid, to
each such holder at such holder's address as the same appears on the transfer
books of the Corporation on the record date fixed for such notice.
(iii) If the Corporation determines to undertake a redemption pursuant
to Section 2.4(a)(i)(1)(B)(I) (in the case of Applied Biosystems Stock) or
Section 2.4(b)(i)(1)(B)(I) (in the case of Celera Genomics Stock), the
Corporation shall, not earlier than the 45th Trading Day and not later than the
35th Trading Day prior to the Redemption Date, cause notice to be given to the
holders of shares of the class of Common Stock relating to the Group subject to
the Disposition referred to in such Section and to each holder of Convertible
Securities convertible into or exchangeable or exercisable for shares of such
class of Common Stock (unless alternate provision for such notice to the holders
of such Convertible Securities is made pursuant to the terms of such Convertible
Securities), setting forth (1) a statement that all shares of such class of
Common Stock outstanding on the Redemption Date shall be redeemed, (2) the
Redemption Date (which shall not be more than 95 Trading Days following the
consummation of such Disposition), (3) the type of property in which the
redemption price for the shares of such class of Common Stock to be redeemed is
to be paid, (4) the Net Proceeds of such Disposition, (5) the place or places
where certificates for shares of such class of Common Stock, properly endorsed
or assigned for transfer (unless the Corporation waives such requirement), are
to be surrendered for delivery of cash and/or securities or other property, (6)
the number of outstanding shares of such class of Common Stock and the number of
shares of such class of Common Stock into or for which outstanding Convertible
Securities are then convertible, exchangeable or exercisable and the conversion,
exchange or exercise price thereof, (7) in the case of notice to be given to
holders of Convertible Securities, a statement to the effect that a holder of
such Convertible Securities shall be entitled to participate in such redemption
only if such holder properly converts, exchanges or exercises such Convertible
Securities on or prior to the Redemption Date referred to in clause (2) of this
sentence and a statement as to what, if anything, such holder will be entitled
to receive pursuant to the terms of such Convertible Securities or, if
applicable, this Section 2.4 if such holder thereafter converts, exchanges or
exercises such Convertible Securities and (8) a statement to the effect that,
except as otherwise provided by Section 2.4(f)(ix), dividends on shares of such
class of Common Stock shall cease to be paid as of such Redemption Date. Such
notice shall be sent by first-class mail, postage prepaid, to each such holder
at such holder's address as the same appears on the transfer books of the
Corporation on the record date fixed for such notice.
10
(iv) If the Corporation determines to undertake a redemption pursuant
to Section 2.4(a)(i)(1)(B)(II) (in the case of Applied Biosystems Stock) or
Section 2.4(b)(i)(1)(B)(II) (in the case of Celera Genomics Stock), the
Corporation shall, not later than the 40th Trading Day following the
consummation of the Disposition referred to in such Section, cause notice to be
given to the holders of shares of the class of Common Stock relating to the
Group subject to such Disposition and to each holder of Convertible Securities
that are convertible into or exchangeable or exercisable for shares of such
class of Common Stock (unless alternate provision for such notice to the holders
of such Convertible Securities is made pursuant to the terms of such Convertible
Securities) setting forth (1) a date not earlier than the tenth Trading Day and
not later than the 20th Trading Day following the date of such notice on which
shares of such class of Common Stock shall be selected for redemption, (2) the
anticipated Redemption Date (which shall not be more than 95 Trading Days
following the consummation of such Disposition), (3) the type of property in
which the redemption price for the shares to be redeemed is to be paid, (4) the
Net Proceeds of such Disposition, (5) the number of shares of such class of
Common Stock outstanding and the number of shares of such class of Common Stock
into or for which outstanding Convertible Securities are then convertible,
exchangeable or exercisable and the conversion, exchange or exercise price
thereof, (6) in the case of notice to be given to holders of Convertible
Securities, a statement to the effect that a holder of such Convertible
Securities shall be eligible to participate in such selection for redemption
only if such holder properly converts, exchanges or exercises such Convertible
Securities on or prior to the record date referred to in clause (1) of this
sentence, and a statement as to what, if anything, such holder will be entitled
to receive pursuant to the terms of such Convertible Securities or, if
applicable, this Section 2.4 if such holder thereafter converts, exchanges or
exercises such Convertible Securities and (7) a statement that the Corporation
will not be required to register a transfer of any shares of such class of
Common Stock for a period of 15 Trading Days next preceding the date referred to
in clause (1) of this sentence. Promptly following the date referred to in
clause (1) of the preceding sentence, the Corporation shall cause a notice to be
given to each holder of record of shares of such class of Common Stock to be
redeemed setting forth (1) the number of shares of such class of Common Stock
held by such holder to be redeemed, (2) a statement that such shares of such
class of Common Stock shall be redeemed, (3) the Redemption Date, (4) the kind
and per share amount of cash and/or securities or other property to be received
by such holder with respect to each share of such class of Common Stock to be
redeemed, including details as to the calculation thereof, (5) the place or
places where certificates for shares of such class of Common Stock, properly
endorsed or assigned for transfer (unless the Corporation shall waive such
requirement), are to be surrendered for delivery of such cash and/or securities
or other property, (6) if applicable, a statement to the effect that the shares
being redeemed may no longer be transferred on the transfer books of the
Corporation after the Redemption Date and (7) a statement to the effect that,
subject to Section 2.4(f)(ix), dividends on such shares of such class of Common
Stock shall cease to be paid as of the Redemption Date. Such notices shall be
sent by first-class mail, postage prepaid, to each such holder at such holder's
address as the same appears on the transfer books of the Corporation on the
record date fixed for such notice.
(v) If the Corporation determines to convert Applied Biosystems Stock
into Celera Genomics Stock or Celera Genomics Stock into Applied Biosystems
Stock (or, in either case, another class or series of common stock of the
Corporation) pursuant to Section 2.4(a)(i)(2) or 2.4(a)(iii) (in the case of the
conversion of Applied Biosystems Stock) or Section 2.4(b)(i)(2) or 2.4(b)(iii)
(in the case of the conversion of Celera Genomics Stock), the Corporation shall,
not earlier than the 45th Trading Day and not later than the 35th Trading Day
prior to the Conversion Date cause notice to be given to the holders of shares
of the class of Common Stock to be so converted and to each holder of
Convertible Securities that are convertible into or exchangeable or exercisable
for shares of such class of Common Stock (unless alternate provision for such
11
notice to the holders of such Convertible Securities is made pursuant to the
terms of such Convertible Securities) setting forth (1) a statement that all
outstanding shares of such class of Common Stock shall be converted, (2) the
Conversion Date (which, in the case of a conversion after a Disposition, shall
not be more than 95 Trading Days following the consummation of such
Disposition), (3) the per share number of shares of Common Stock (or another
class or series of common stock of the Corporation) to be received with respect
to each share of such class of Common Stock, including details as to the
calculation thereof, (4) the place or places where certificates for shares of
such class of Common Stock, properly endorsed or assigned for transfer (unless
the Corporation shall waive such requirement), are to be surrendered for
delivery of certificates for shares of such class of Common Stock, (5) the
number of outstanding shares of such class of Common Stock and the number of
shares of such class of Common Stock into or for which outstanding Convertible
Securities are then convertible, exchangeable or exercisable and the conversion,
exchange or exercise price thereof, (6) a statement to the effect that, subject
to Section 2.4(f)(ix), dividends on shares of such class of Common Stock shall
cease to be paid as of such Conversion Date and (7) in the case of notice to
holders of such Convertible Securities, a statement to the effect that a holder
of such Convertible Securities shall be entitled to receive shares of such class
of Common Stock upon such conversion if such holder properly converts, exchanges
or exercises such Convertible Securities on or prior to such Conversion Date and
a statement as to what, if anything, such holder will be entitled to receive
pursuant to the terms of such Convertible Securities or, if applicable, this
Section 2.4 if such holder thereafter converts, exchanges or exercises such
Convertible Securities. Such notice shall be sent by first-class mail, postage
prepaid, to each such holder at such holder's address as the same appears on the
transfer books of the Corporation on the record date fixed for such notice.
(vi) If the Corporation determines to redeem shares of Applied
Biosystems Stock pursuant to Section 2.4(c) or Celera Genomics Stock pursuant to
Section 2.4(d), the Corporation shall cause notice to be given to each holder of
shares of such class of Common Stock to be redeemed and to the holders of
Convertible Securities that are convertible into or exchangeable or exercisable
for shares of such class of Common Stock (unless alternate provision for such
notice to the holders of such Convertible Securities is made pursuant to the
terms of such Convertible Securities), setting forth (1) a statement that all
shares of such class of Common Stock outstanding on the Redemption Date shall be
redeemed in exchange for shares of common stock of each Applied Biosystems
Subsidiary or Celera Genomics Subsidiary, as applicable, (2) the Redemption
Date, (3) the place or places where certificates for shares of the class of
Common Stock to be redeemed, properly endorsed or assigned for transfer (unless
the Corporation shall waive such requirement), are to be surrendered for
delivery of certificates for shares of common stock of each Applied Biosystems
Subsidiary or Celera Genomics Subsidiary, as applicable, (4) a statement to the
effect that, subject to Section 2.4(f)(ix), dividends on shares of such class of
Common Stock being redeemed shall cease to be paid as of such Redemption Date,
(5) the number of shares of such class of Common Stock outstanding and the
number of shares of such class of Common Stock into or for which outstanding
Convertible Securities are then convertible, exchangeable or exercisable and the
conversion, exchange or exercise price thereof and (6) in the case of notice to
holders of Convertible Securities, a statement to the effect that a holder of
Convertible Securities shall be entitled to receive shares of common stock of
each Applied Biosystems Subsidiary or Celera Genomics Subsidiary, as applicable,
upon redemption only if such holder properly converts, exchanges or exercises
such Convertible Securities on or prior to the Redemption Date and a statement
as to what, if anything, such holder will be entitled to receive pursuant to the
terms of such Convertible Securities or, if applicable, this Section 2.4(f), if
such holder thereafter converts, exchanges or exercises such Convertible
Securities. Such notice shall be sent by first-class mail, postage prepaid, not
less than 35 Trading Days nor more than 45
12
Trading Days prior to the Redemption Date to each such holder at such holder's
address as the same appears on the transfer books of the Corporation on the
record date fixed for such notice.
(vii) If less than all of the outstanding shares of either class of
Common Stock are to be redeemed pursuant to Section 2.4(a)(i)(1) (in the case of
Applied Biosystems Stock) or Section 2.4(b)(i)(1) (in the case of Celera
Genomics Stock), the shares to be redeemed by the Corporation shall be selected
from among the holders of shares of such class of Common Stock outstanding at
the close of business on the record date for such redemption on a pro rata basis
among all such holders or by lot or by such other method as may be determined by
the Board of Directors to be equitable.
(viii) The Corporation shall not be required to issue or deliver
fractional shares of any capital stock or of any other securities to any holder
of either class of Common Stock upon any conversion, redemption, dividend or
other distribution pursuant to this Section 2.4. If more than one share of
either class of Common Stock shall be held at the same time by the same holder,
the Corporation may aggregate the number of shares of any capital stock that
shall be issuable or any other securities or property that shall be
distributable to such holder upon any conversion, redemption, dividend or other
distribution (including any fractional shares). If fractional shares of any
capital stock or of any other securities would be required to be issued or
distributed to the holders of either class of Common Stock, the Corporation
shall, if such fractional shares are not issued or distributed to the holder,
pay cash in respect of such fractional shares in an amount equal to the Fair
Value thereof (without interest).
(ix) No adjustments in respect of dividends shall be made upon the
conversion or redemption of any shares of either class of Common Stock;
provided, however, that if the Conversion Date or Redemption Date, as the case
may be, with respect to any shares of either class of Common Stock shall be
subsequent to the record date for the payment of a dividend or other
distribution thereon or with respect thereto, the holders of such class of
Common Stock at the close of business on such record date shall be entitled to
receive the dividend or other distribution payable on or with respect to such
shares on the date set for payment of such dividend or other distribution, in
each case without interest, notwithstanding the subsequent conversion or
redemption of such shares.
(x) Before any holder of shares of either class of Common Stock shall
be entitled to receive any cash payment and/or certificates or instruments
representing shares of any capital stock and/or other securities or property to
be distributed to such holder with respect to such class of Common Stock
pursuant to this Section 2.4, such holder shall surrender at such place as the
Corporation shall specify certificates for such shares of Common Stock, properly
endorsed or assigned for transfer (unless the Corporation shall waive such
requirement). The Corporation shall as soon as practicable after receipt of
certificates representing such shares of Common Stock deliver to the person for
whose account such shares of Common Stock were so surrendered, or to such
person's nominee or nominees, the cash and/or the certificates or instruments
representing the number of whole shares of the kind of capital stock and/or
other securities or property to which such person shall be entitled as
aforesaid, together with any payment in respect of fractional shares
contemplated by Section 2.4(f)(viii), in each case without interest. If less
than all of the shares of either class of Common Stock represented by any one
certificate are to be redeemed, the Corporation shall issue and deliver a new
certificate for the shares of such class of Common Stock not redeemed.
(xi) From and after any applicable Conversion Date or Redemption Date,
as the case may be, all rights of a holder of shares of either class of Common
Stock that were converted or
13
redeemed shall cease except for the right, upon surrender of the certificates
representing such shares of Common Stock as required by Section 2.4(f)(x), to
receive the cash and/or the certificates or instruments representing shares of
the kind and amount of capital stock and/or other securities or property for
which such shares were converted or redeemed, together with any payment in
respect of fractional shares contemplated by Section 2.4(f)(viii) (which shall
be held by the Corporation for the holder of such shares of Common Stock that
were redeemed until the receipt of certificates representing such shares of
Common Stock as provided in Section 2.4(f)(x)) and rights to dividends as
provided in Section 2.4(f)(ix), in each case without interest. No holder of a
certificate that immediately prior to the applicable Conversion Date or
Redemption Date represented shares of a class of Common Stock shall be entitled
to receive any dividend or other distribution or interest payment with respect
to shares of any kind of capital stock or other security or instrument for which
such class of Common Stock was converted or redeemed until the surrender as
required by this Section 2.4 of such certificate in exchange for a certificate
or certificates or instrument or instruments representing such capital stock or
other security. Subject to applicable escheat and similar laws, upon such
surrender, there shall be paid to the holder the amount of any dividends or
other distributions (without interest) which theretofore became payable on any
class or series of capital stock of the Corporation as of a record date after
the Conversion Date or Redemption Date, but that were not paid by reason of the
foregoing, with respect to the number of whole shares of the kind of capital
stock represented by the certificate or certificates issued upon such surrender.
From and after a Conversion Date or Redemption Date, the Corporation shall,
however, be entitled to treat the certificates for a class of Common Stock that
have not yet been surrendered for conversion or redemption as evidencing the
ownership of the number of whole shares of the kind or kinds of capital stock of
the Corporation for which the shares of such class of Common Stock represented
by such certificates shall have been converted or redeemed, notwithstanding the
failure to surrender such certificates.
(xii) The Corporation shall pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of the issuance
or delivery of any shares of capital stock and/or other securities upon
conversion or redemption of shares of either class of Common Stock pursuant to
this Section 2.4. The Corporation shall not, however, be required to pay any tax
that may be payable in respect of any transfer involved in the issuance or
delivery of any shares of capital stock and/or other securities in a name other
than that in which the shares of such class of Common Stock so converted or
redeemed were registered, and no such issuance or delivery shall be made unless
and until the person requesting such issuance or delivery has paid to the
Corporation the amount of any such tax or has established to the satisfaction of
the Corporation that such tax has been paid.
(xiii) Neither the failure to mail any notice required by this Section
2.4 to any particular holder of a class of Common Stock or of Convertible
Securities nor any defect therein shall affect the sufficiency thereof with
respect to any other holder of outstanding shares of a class of Common Stock or
of Convertible Securities or the validity of any such conversion or redemption.
(xiv) The Board of Directors may establish such rules and requirements
to facilitate the effectuation of the transactions contemplated by this Section
2.4 as the Board of Directors shall determine to be appropriate.
Section 2.5 Application of the Provisions of Article IV. (a) Certain
Determinations by the Board of Directors. The Board of Directors shall make such
determinations with respect to the businesses, assets, properties and
liabilities to be attributed to the Groups, the application of the provisions of
the Certificate of Incorporation to transactions to be engaged in by the
Corporation and the voting powers, preferences and relative, participating,
optional and other
14
special rights of the holders of either class of Common Stock, and the
qualifications and restrictions thereon, provided by the Certificate of
Incorporation as may be or become necessary or appropriate to the exercise of
such powers, preferences and relative, participating, optional and other special
rights, including, without limiting the foregoing, the determinations referred
to in this Section 2.5. A record of any such determination shall be filed with
the records of the actions of the Board of Directors.
(i) Upon any acquisition by the Corporation or its
subsidiaries of any assets or business, or any assumption of
liabilities, outside of the ordinary course of business of the Applied
Biosystems Group or the Celera Genomics Group, as the case may be, the
Board of Directors shall determine whether such assets, business and
liabilities (or an interest therein) shall be for the benefit of the
Applied Biosystems Group or the Celera Genomics Group or that an
interest therein shall be partly for the benefit of the Applied
Biosystems Group and partly for the benefit of the Celera Genomics
Group and, accordingly, shall be attributed to the Applied Biosystems
Group or the Celera Genomics Group, or partly to each, in accordance
with Section 2.6(b) or 2.6(f), as the case may be.
(ii) Upon any issuance of any shares of Celera Genomics Stock
at a time when the Number of Celera Genomics Designated Shares is
greater than zero, the Board of Directors shall determine, based on the
use of the proceeds of such issuance and any other relevant factors,
whether all or any part of the shares of Celera Genomics Stock so
issued shall reduce the Number of Celera Genomics Designated Shares and
the Number of Celera Genomics Designated Shares shall be adjusted
accordingly.
(iii) Upon any issuance by the Corporation or any subsidiary
thereof of any Convertible Securities that are convertible into or
exchangeable or exercisable for shares of Celera Genomics Stock, if at
the time such Convertible Securities are issued the Number of Celera
Genomics Designated Shares is greater than zero, the Board of Directors
shall determine, based on the use of the proceeds of such issuance and
any other relevant factors, whether, upon conversion, exchange or
exercise thereof, the issuance of shares of Celera Genomics Stock
pursuant thereto shall, in whole or in part, reduce the Number of
Celera Genomics Designated Shares and the Number of Celera Genomics
Designated Shares shall be adjusted accordingly.
(iv) Upon any issuance of any shares of any class or series of
preferred stock of the Corporation, the Board of Directors shall
attribute, based on the use of proceeds of such issuance of shares of
preferred stock in the business of the Applied Biosystems Group or the
Celera Genomics Group and any other relevant factors, the shares so
issued entirely to the Applied Biosystems Group or entirely to the
Celera Genomics Group or partly to the Applied Biosystems Group and
partly to the Celera Genomics Group in such proportion as the Board of
Directors shall determine.
(v) Upon any redemption or repurchase by the Corporation or
any subsidiary thereof of shares of preferred stock of any class or
series or of other securities or debt obligations of the Corporation,
the Board of Directors shall determine, based on the property used to
redeem or purchase such shares, other securities or debt obligations,
which, if any, of such shares, other securities or debt obligations
redeemed or repurchased shall be attributed to the Applied Biosystems
Group and which, if any, of such shares, other securities or debt
obligations shall be attributed to the Celera Genomics Group and,
accordingly, how many of the shares of such class or series of
preferred stock or of such other securities, or how much of such debt
obligations, that remain
15
outstanding, if any, are thereafter attributed to the Applied
Biosystems Group or the Celera Genomics Group.
(b) Certain Determinations Not Required. Notwithstanding the foregoing
provisions of this Section 2.5, the provisions of Section 2.6(b) or 2.6(f) or
any other provision of the Certificate of Incorporation, at any time when there
are not outstanding both (i) one or more shares of Applied Biosystems Stock or
Convertible Securities convertible into or exchangeable or exercisable for
Applied Biosystems Stock and (ii) one or more shares of Celera Genomics Stock or
Convertible Securities convertible into or exchangeable or exercisable for
Celera Genomics Stock, the Corporation need not (A) attribute any of the assets
or liabilities of the Corporation or any of its subsidiaries to the Applied
Biosystems Group or the Celera Genomics Group or (B) make any determination
required in connection therewith, nor shall the Board of Directors be required
to make any of the determinations otherwise required by this Article, and in
such circumstances the holders of the shares of Applied Biosystems Stock and
Celera Genomics Stock outstanding, as the case may be, shall (unless otherwise
specifically provided by the Certificate of Incorporation) be entitled to all
the voting powers, preferences and relative, participating, optional and other
special rights of both classes of Common Stock without differentiation between
the Applied Biosystems Stock and the Celera Genomics Stock.
(c) Board Determinations Binding. Subject to applicable law, any
determinations made in good faith by the Board of Directors of the Corporation
under any provision of this Section 2.5 or otherwise in furtherance of the
application of this Section 2 shall be final and binding on all stockholders.
Section 2.6 Certain Definitions. As used in the Certificate of
Incorporation, the following terms shall have the following meanings (with terms
defined in the singular having comparable meaning when used in the plural and
vice versa), unless the context otherwise requires. As used in this Section 2.6,
a "contribution" or "transfer" of assets or properties from one Group to another
shall refer to the reattribution of such assets or properties from the
contributing or transferring Group to the other Group and correlative phrases
shall have correlative meanings.
(a) Applera Corporation Earnings (Loss) Attributable to the Applied
Biosystems Group shall mean, for any period through any date, (i) the net income
or loss of the Applied Biosystems Group for such period determined in accordance
with generally accepted accounting principles in effect at such time, reflecting
income and expense of the Corporation attributed to the Applied Biosystems Group
on a basis substantially consistent with attributions of income and expense made
in the calculation of Applera Corporation Earnings (Loss) Attributable to the
Celera Genomics Group, including, without limitation, corporate administrative
costs, net interest and other financial costs and income taxes, increased by
(ii) the amount reducing Applera Corporation Earnings (Loss) Attributable to the
Celera Genomics Group for such period pursuant to clause (ii) of Section 2.6(b).
(b) Applera Corporation Earnings (Loss) Attributable to the Celera
Genomics Group shall mean, for any period through any date, (i) the net income
or loss of the Celera Genomics Group for such period determined in accordance
with generally accepted accounting principles in effect at such time, reflecting
income and expense of the Corporation attributed to the Celera Genomics Group on
a basis substantially consistent with attributions of income and expense made in
the calculation of Applera Corporation Earnings (Loss) Attributable to the
Applied Biosystems Group, including, without limitation, corporate
administrative costs, net interest and other financial costs and income taxes,
reduced by (ii) the aggregate amount of consolidated
16
allowable tax benefits for federal income tax purposes generated by the Celera
Genomics Group for such period which can not be utilized by the Celera Genomics
Group but can be utilized by the Corporation on a consolidated basis for such
period to the extent such amount was included in the calculation of net income
or loss under clause (i) for such period ("Excludable Celera Tax Benefits")
(provided that the amount referred to in clause (i) shall be reduced only to the
extent the cumulative amount of Excludable Celera Tax Benefits from July 1, 1998
exceeds $75 million).
(c) Applied Biosystems Group shall mean, as of any date:
(i) the interest of the Corporation or any of its subsidiaries
on such date in all of the businesses, assets, properties and
liabilities of the Corporation or any of its subsidiaries (and any
successor companies), other than any businesses, assets, properties and
liabilities attributed in accordance with this Article to the Celera
Genomics Group;
(ii) all businesses, assets, properties and liabilities
transferred to the Applied Biosystems Group from the Celera Genomics
Group (other than in a transaction pursuant to Section 2.6(c)(iii))
pursuant to transactions in the ordinary course of business of the
Applied Biosystems Group and the Celera Genomics Group or otherwise as
the Board of Directors may have directed as permitted by the
Certificate of Incorporation;
(iii) all properties and assets transferred to the Applied
Biosystems Group from the Celera Genomics Group in connection with a
reduction of the Number of Celera Genomics Designated Shares; and
(iv) the interest of the Corporation or any of its
subsidiaries in any business or asset acquired and any liabilities
assumed by the Corporation or any of its subsidiaries outside of the
ordinary course of business and attributed to the Applied Biosystems
Group, as determined by the Board of Directors as contemplated by
Section 2.5(a)(i);
provided that from and after any transfer of any assets or properties from the
Applied Biosystems Group to the Celera Genomics Group, the Applied Biosystems
Group shall no longer include such assets or properties so transferred.
(d) Applied Biosystems Group Available Dividend Amount shall mean, on
any date, either:
(x)(i) the amount equal to the fair market value of the total
assets attributed to the Applied Biosystems Group less the total
liabilities attributed to the Applied Biosystems Group (provided that
preferred stock shall not be treated as a liability), in each case, as
of such date and determined on a basis consistent with that applied in
determining Applera Corporation Earnings (Loss) Attributable to the
Applied Biosystems Group, minus (ii) the aggregate par value of, or any
greater amount determined in accordance with applicable law to be
capital in respect of, all outstanding shares of Applied Biosystems
Stock and each class or series of preferred stock attributed in
accordance with the Certificate of Incorporation to the Applied
Biosystems Group, or
(y) in case the total amount calculated pursuant to clause (i)
above is not a positive number, an amount equal to Applera Corporation
Earnings (Loss) Attributable to the Applied Biosystems Group (if
positive) for the fiscal year in which the dividend is declared and/or
the preceding fiscal year.
17
Notwithstanding the foregoing provisions of this Section 2.6(d), and consistent
with Section 2.5(c), at any time when there are not outstanding both (i) one or
more shares of Applied Biosystems Stock or Convertible Securities convertible
into or exchangeable or exercisable for Applied Biosystems Stock and (ii) one or
more shares of Celera Genomics Stock or Convertible Securities convertible into
or exchangeable or exercisable for Celera Genomics Stock, the "Available
Dividend Amount," on any calculation date during such time period, with respect
to the Applied Biosystems Stock or the Celera Genomics Stock, as the case may be
(depending on which of such classes of Common Stock or Convertible Securities
convertible into or exchangeable or exercisable for such class of Common Stock
is outstanding), shall mean the amount available for the payment of dividends on
such Common Stock in accordance with law.
(e) Available Dividend Amount shall mean, as the context requires, a
reference to the Applied Biosystems Group Available Dividend Amount or the
Celera Genomics Group Available Dividend Amount.
(f) Celera Genomics Group shall mean, as of any date:
(i) the interest of the Corporation on such date in Celera
Genomics Corporation, PE AgGen, Inc. and GenScope, Inc. (the "Celera
Genomics Group Companies"), any successor companies, and all of the
businesses, assets and liabilities of the Celera Genomics Group
Companies and any subsidiaries thereof;
(ii) all assets and liabilities of the Corporation and its
subsidiaries attributed by the Board of Directors to the Celera
Genomics Group, whether or not such assets or liabilities are or were
also assets and liabilities of the Celera Genomics Group Companies;
(iii) all businesses, assets, properties and liabilities
transferred to the Celera Genomics Group from the Applied Biosystems
Group (other than in a transaction pursuant to Section 2.6(f)(iv))
pursuant to transactions in the ordinary course of business of the
Celera Genomics Group and the Applied Biosystems Group or otherwise as
the Board of Directors may have directed as permitted by the
Certificate of Incorporation;
(iv) all properties and assets transferred to the Celera
Genomics Group from the Applied Biosystems Group in connection with an
increase in the Number of Celera Genomics Designated Shares; and
(v) the interest of the Corporation or any of its subsidiaries
in any business or asset acquired and any liabilities assumed by the
Corporation or any of its subsidiaries outside of the ordinary course
of business and attributed to the Celera Genomics Group, as determined
by the Board of Directors as contemplated by Section 2.5(a)(i);
provided that from and after any transfer of any assets or properties from the
Celera Genomics Group to the Applied Biosystems Group, the Celera Genomics Group
shall no longer include such assets or properties so transferred.
(g) Celera Genomics Group Available Dividend Amount shall mean, on any
date, either:
(x)(i) an amount equal to the fair market value of the total
assets attributed to the Celera Genomics Group less the total
liabilities attributed to the Celera Genomics Group
18
(provided that preferred stock shall not be treated as a liability), in
each case, as of such date and determined on a basis consistent with
that applied in determining Applera Corporation Earnings (Loss)
Attributable to the Celera Genomics Group, minus (ii) the aggregate par
value of, or any greater amount determined in accordance with
applicable law to be capital in respect of, all outstanding shares of
Celera Genomics Stock and each class or series of preferred stock
attributed in accordance with the Certificate of Incorporation to the
Celera Genomics Group, or
(y) in case the total amount calculated pursuant to clause (i)
above is not a positive number, an amount equal to Applera Corporation
Earnings (Loss) Attributable to the Celera Genomics Group (if positive)
for the fiscal year in which the dividend is declared and/or the
preceding fiscal year.
Notwithstanding the foregoing provisions of this Section 2.6(g), and consistent
with Section 2.5(c), at any time when there are not outstanding both (i) one or
more shares of Applied Biosystems Stock or Convertible Securities convertible
into or exchangeable or exercisable for Applied Biosystems Stock and (ii) one or
more shares of Celera Genomics Stock or Convertible Securities convertible into
or exchangeable or exercisable for Celera Genomics Stock, the "Available
Dividend Amount," on any calculation date during such time period, with respect
to the Applied Biosystems Stock or the Celera Genomics Stock, as the case may be
(depending on which of such classes of Common Stock or Convertible Securities
convertible into or exchangeable or exercisable for such class of Common Stock
is outstanding), shall mean the amount available for the payment of dividends on
such Common Stock in accordance with law.
(h) Conversion Date shall mean the date fixed by the Board of Directors
as the effective date for the conversion of shares of Applied Biosystems Stock
into shares of Celera Genomics Stock (or another class or series of common stock
of the Corporation) or of shares of Celera Genomics Stock into shares of Applied
Biosystems Stock (or another class or series of common stock of the
Corporation), as the case may be, as shall be set forth in the notice to holders
of shares of the class of Common Stock subject to such conversion and to holders
of any Convertible Securities that are convertible into or exchangeable or
exercisable for shares of the class of Common Stock subject to such conversion
required pursuant to Section 2.4(f)(v).
(i) Convertible Securities shall mean, as of any date, any securities
of the Corporation or of any subsidiary thereof (other than shares of a class of
Common Stock), including warrants and options, outstanding at such time that by
their terms are convertible into or exchangeable or exercisable for or evidence
the right to acquire any shares of either class of Common Stock, whether
convertible, exchangeable or exercisable at such time or a later time or only
upon the occurrence of certain events; provided that securities shall only be
Convertible Securities in respect of the number of shares of Common Stock into
or for which such securities are then convertible, exchangeable or exercisable.
(j) Disposition shall mean a sale, transfer, assignment or other
disposition (whether by merger, consolidation, sale or contribution of assets or
stock or otherwise) of properties or assets (including stock, other securities
and goodwill).
(k) Fair Value shall mean, (i) in the case of equity securities or debt
securities of a class or series that has previously been Publicly Traded for a
period of at least 15 months, the Market Value thereof (if such Market Value, as
so defined, can be determined); (ii) in the case of an equity security or debt
security that has not been Publicly Traded for at least 15 months or the Market
Value of which cannot be determined, the fair value per share of stock or per
other unit of
19
such security, on a fully distributed basis, as determined by an independent
investment banking firm experienced in the valuation of securities selected in
good faith by the Board of Directors, or, if no such investment banking firm is,
as determined in the good faith judgment of the Board of Directors, available to
make such determination, in good faith by the Board of Directors; (iii) in the
case of cash denominated in U.S. dollars, the face amount thereof and in the
case of cash denominated in other than U.S. dollars, the face amount thereof
converted into U.S. dollars at the rate published in The Wall Street Journal on
the date for the determination of Fair Value or, if not so published, at such
rate as shall be determined in good faith by the Board of Directors based upon
such information as the Board of Directors shall in good faith determine to be
appropriate; and (iv) in the case of property other than securities or cash, the
"Fair Value" thereof shall be determined in good faith by the Board of Directors
based upon such appraisals or valuation reports of such independent experts as
the Board of Directors shall in good faith determine to be appropriate. Any such
determination of Fair Value shall be described in a statement filed with the
records of the actions of the Board of Directors.
(l) Group shall mean, as of any date, the Applied Biosystems Group or
the Celera Genomics Group, as the case may be.
(m) Market Capitalization of any class or series of capital stock on
any date shall mean the product of (i) the Market Value of one share of such
class or series of capital stock on such date and (ii) the number of shares of
such class or series of capital stock outstanding on such date.
(n) Market Value of a share of any class or series of capital stock of
the Corporation on any day shall mean the average of the high and low reported
sales prices regular way of a share of such class or series on such Trading Day
or, in case no such reported sale takes place on such Trading Day, the average
of the reported closing bid and asked prices regular way of a share of such
class or series on such Trading Day, in either case as reported on the New York
Stock Exchange Composite Tape or, if the shares of such class or series are not
listed or admitted to trading on such Exchange on such Trading Day, on the
principal national securities exchange in the United States on which the shares
of such class or series are listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange on such Trading Day, on
the Nasdaq National Market or, if the shares of such class or series are not
listed or admitted to trading on any national securities exchange or quoted on
the Nasdaq National Market on such Trading Day, the average of the closing bid
and asked prices of a share of such class or series in the over-the-counter
market on such Trading Day as furnished by any New York Stock Exchange member
firm selected from time to time by the Corporation or, if such closing bid and
asked prices are not made available by any such New York Stock Exchange member
firm on such Trading Day, the Fair Value of a share of such class or series as
set forth in clause (ii) of the definition of Fair Value; provided that, for
purposes of determining the "Market Value" of a share of any class or series of
capital stock for any period, (i) the "Market Value" of a share of capital stock
on any day prior to any "ex-dividend" date or any similar date occurring during
such period for any dividend or distribution (other than any dividend or
distribution contemplated by clause (ii)(B) of this sentence) paid or to be paid
with respect to such capital stock shall be reduced by the Fair Value of the per
share amount of such dividend or distribution and (ii) the "Market Value" of any
share of capital stock on any day prior to (A) the effective date of any
subdivision (by stock split or otherwise) or combination (by reverse stock split
or otherwise) of outstanding shares of such class or series of capital stock
occurring during such period or (B) any "ex-dividend" date or any similar date
occurring during such period for any dividend or distribution with respect to
such capital stock to be made in shares of such class or series of capital stock
or Convertible Securities that are convertible, exchangeable or exercisable for
such class or series of
20
capital stock shall be appropriately adjusted, as determined by the Board of
Directors, to reflect such subdivision, combination, dividend or distribution.
(o) Market Value Ratio of Applied Biosystems Stock to Celera Genomics
Stock as of any date shall mean the fraction (which may be greater or less than
1/1), expressed as a decimal (rounded to the nearest five decimal places), of a
share of Celera Genomics Stock (or another class or series of common stock of
the Corporation, if so provided by Section 2.4(a)(iii) because Celera Genomics
Stock is not then Publicly Traded) to be issued in respect of a share of Applied
Biosystems Stock upon a conversion of Applied Biosystems Stock into Celera
Genomics Stock (or another class or series of common stock of the Corporation)
in accordance with Section 2.4(a)(iii), the numerator of which shall be the
average Market Value of one share of Applied Biosystems Stock during the
20-Trading Day period ending on such date and the denominator of which shall be
the average Market Value of one share of Celera Genomics Stock (or such other
common stock) during the 20-Trading Day period ending on such date.
(p) Market Value Ratio of Celera Genomics Stock to Applied Biosystems
Stock as of any date shall mean the fraction (which may be greater or less than
1/1), expressed as a decimal (rounded to the nearest five decimal places), of a
share of Applied Biosystems Stock (or another class or series of common stock of
the Corporation, if so provided by Section 2.4(b)(iii) because Applied
Biosystems Stock is not then Publicly Traded) to be issued in respect of a share
of Celera Genomics Stock upon a conversion of Celera Genomics Stock into Applied
Biosystems Stock (or another class or series of common stock of the Corporation)
in accordance with Section 2.4(b)(iii) the numerator of which shall be the
average Market Value of one share of Celera Genomics Stock during the 20-Trading
Day period ending on such date and the denominator of which shall be the average
Market Value of one share of Applied Biosystems Stock (or such other common
stock) during the 20-Trading Day period ending on such date.
(q) Net Proceeds shall mean, as of any date with respect to any
Disposition of any of the properties and assets attributed to the Applied
Biosystems Group or the Celera Genomics Group, as the case may be, an amount, if
any, equal to what remains of the gross proceeds of such Disposition after
payment of, or reasonable provision is made as determined by the Board of
Directors for, (i) any taxes payable by the Corporation (or which would have
been payable but for the utilization of tax benefits attributable to the other
Group) in respect of such Disposition or in respect of any resulting dividend or
redemption pursuant to Section 2.4(a)(i)(1)(A), 2.4(a)(i)(1)(B), 2.4(b)(i)(1)(A)
or 2.4(b)(i)(1)(B), (ii) any transaction costs, including, without limitation,
any legal, investment banking and accounting fees and expenses and (iii) any
liabilities (contingent or otherwise) of or attributed to such Group, including,
without limitation, any liabilities for deferred taxes or any indemnity or
guarantee obligations of the Corporation incurred in connection with the
Disposition or otherwise, and any liabilities for future purchase price
adjustments and any preferential amounts plus any accumulated and unpaid
dividends in respect of the preferred stock attributed to such Group. For
purposes of this definition, any properties and assets attributed to the Group,
the properties and assets of which are subject to such Disposition, remaining
after such Disposition shall constitute "reasonable provision" for such amount
of taxes, costs and liabilities (contingent or otherwise) as the Board of
Directors determines can be expected to be supported by such properties and
assets.
(r) Number of Celera Genomics Designated Shares shall be, as of the
date of effectiveness of the Certificate of Incorporation, zero; provided,
however, that the "Number of Celera Genomics Designated Shares" shall from time
to time thereafter be:
21
(i) adjusted, if before such adjustment such number is greater
than zero, as determined by the Board of Directors to be appropriate to
reflect equitably any subdivision (by stock split or otherwise) or
combination (by reverse stock split or otherwise) of the Celera
Genomics Stock or any dividend or other distribution of shares of
Celera Genomics Stock to holders of shares of Celera Genomics Stock or
any reclassification of Celera Genomics Stock;
(ii) decreased (but to not less than zero), if before such
adjustment such number is greater than zero, by action of the Board of
Directors by (1) the number of shares of Celera Genomics Stock issued
or sold by the Corporation that, immediately prior to such issuance or
sale, were included in the Number of Celera Genomics Designated Shares,
(2) the number of shares of Celera Genomics Stock issued upon
conversion, exchange or exercise of Convertible Securities that,
immediately prior to the issuance or sale of such Convertible
Securities, were included in the Number of Celera Genomics Designated
Shares, (3) the number of shares of Celera Genomics Stock issued by the
Corporation as a dividend or other distribution (including in
connection with any reclassification or exchange of shares) to holders
of Applied Biosystems Stock, (4) the number of shares of Celera
Genomics Stock issued upon the conversion, exchange or exercise of any
Convertible Securities issued by the Corporation as a dividend or other
distribution (including in connection with any reclassification or
exchange of shares) to holders of Applied Biosystems Stock, and (5) the
number (rounded, if necessary, to the nearest whole number) equal to
the quotient of (A) the aggregate Fair Value as of the date of
contribution of properties or assets (including cash) transferred from
the Celera Genomics Group to the Applied Biosystems Group in
consideration for a reduction in the Number of Celera Genomics
Designated Shares divided by (B) the average Market Value of one share
of Celera Genomics Stock during the 20-Trading Day period ending on the
date immediately prior to the date of such transfer; and
(iii) increased by the number (rounded, if necessary, to the
nearest whole number) equal to the quotient of (A) the Fair Value of
properties or assets (including cash) theretofore attributed as
provided by Section 2.6(c) to the Applied Biosystems Group that are
contributed to the Celera Genomics Group in consideration of an
increase in the Number of Celera Genomics Designated Shares divided by
(B) the average Market Value of one share of Celera Genomics Stock
during the 20-Trading Day period ending on the date immediately prior
to the date of such contribution.
(s) Publicly Traded with respect to any security shall mean that such
security is (i) registered under Section 12 of the Securities Exchange Act of
1934, as amended (or any successor provision of law), and (ii) listed for
trading on the New York Stock Exchange or the American Stock Exchange (or any
national securities exchange registered under Section 7 of the Securities
Exchange Act of 1934, as amended (or any successor provision of law), that is
the successor to either such exchange) or listed on The Nasdaq Stock Market (or
any successor market system).
(t) Redemption Date shall mean the date fixed by the Board of Directors
as the effective date for a redemption of shares of either class of Common
Stock, as set forth in a notice to holders thereof required pursuant to Section
2.4(f)(iii), (iv), (v) or (vi).
(u) Related Business Transaction means any Disposition of all or
substantially all the properties and assets attributed to the Applied Biosystems
Group or the Celera Genomics Group, as the case may be, in a transaction or
series of related transactions that result in the Corporation
22
receiving in consideration of such properties and assets primarily equity
securities (including, without limitation, capital stock, debt securities
convertible into or exchangeable for equity securities or interests in a general
or limited partnership or limited liability company, without regard to the
voting power or other management or governance rights associated therewith) of
any entity which (i) acquires such properties or assets or succeeds (by merger,
formation of a joint venture or otherwise) to the business conducted with such
properties or assets or controls such acquiror or successor and (ii) is engaged
primarily or proposes to engage primarily in one or more businesses similar or
complementary to the businesses conducted by such Group prior to such
Disposition, as determined by the Board of Directors.
(v) Tax Event shall mean the receipt by the Corporation of an opinion
of tax counsel to the Corporation experienced in such matters, who shall not be
an officer or employee of the Corporation or any of its affiliates, that, as a
result of any amendment to, or change in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein (including any announced proposed change by an
applicable legislative committee or the chair thereof in such laws or by an
administrative agency in such regulations), or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, it is more likely than not that for United
States federal income tax purposes (i) the Corporation or its stockholders is
or, at any time in the future, will be subject to tax upon the issuance of
shares of either Applied Biosystems Stock or Celera Genomics Stock or (ii)
either Applied Biosystems Stock or Celera Genomics Stock is not or, at any time
in the future, will not be treated solely as stock of the Corporation. For
purposes of rendering such opinion, tax counsel shall assume that any
legislative or administrative proposals will be adopted or enacted as proposed.
(w) Trading Day shall mean each weekday other than any day on which the
relevant class of common stock of the Corporation is not traded on any national
securities exchange or listed on The Nasdaq Stock Market or in the
over-the-counter market.
Section 3. Preferred Stock. The Preferred Stock may be issued from time
to time in one or more series, each with such distinctive designation as may be
stated in the Certificate of Incorporation or in any amendment hereto, or in a
resolution or resolutions providing for the issue of such stock from time to
time adopted by the Board of Directors or a duly authorized committee thereof.
The resolution or resolutions providing for the issue of shares of a particular
series shall fix, subject to applicable laws and the provisions of the
Certificate of Incorporation, for each such series the number of shares
constituting such series and the designation and the voting powers, preferences
and relative, participating, optional or other special rights and the
qualifications, limitations or restrictions thereof, including, without limiting
the generality of the foregoing, such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be fixed by
the Board of Directors or a duly authorized committee thereof under the DGCL.
ARTICLE V.
BOARD OF DIRECTORS
Section 1. Number of Directors. The number of directors shall be fixed
by resolution of the Board of Directors, but shall not be less than three nor
more than thirteen. Election of directors need not be by written ballot, unless
so provided in the By-laws of the Corporation.
23
Section 2. Powers of the Board of Directors. The business and affairs
of the Corporation shall be managed by or under the direction of the Board of
Directors selected as provided by law and the Certificate of Incorporation and
the By-laws of the Corporation. In furtherance, and not in limitation, of the
powers conferred by the laws of the State of Delaware, the Board of Directors is
expressly authorized to:
(a) adopt, amend, alter, change or repeal By-laws of the
Corporation;
(b) subject to the By-laws as from time to time in effect,
determine the rules and procedures for the conduct of the business of
the Board of Directors and the management and direction by the Board of
Directors of the business and affairs of the Corporation, including the
power to designate and empower committees of the Board of Directors, to
elect, or authorize the appointment of, and empower officers and other
agents of the Corporation, and to determine the time and place of, the
notice requirements for, and the manner of conducting, Board meetings,
as well as other notice requirements for, and the manner of taking,
Board action; and
(c) exercise all such powers and do all such acts as may be
exercised or done by the Corporation, subject to the provisions of the
DGCL and the Certificate of Incorporation and By-laws of the
Corporation.
ARTICLE VI.
STOCKHOLDER ACTIONS
Section 1. Special Meetings. Special meetings of stockholders may be
called at any time by the Board of Directors or by the Chairman of the Board of
Directors, the President or the Secretary of the Corporation.
Section 2. Written Consents. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected by written consent
in lieu of a meeting of such holders, provided that such consent must be signed
by all the holders of all outstanding shares of the Corporation's capital stock
entitled to vote thereon.
ARTICLE VII.
LIMITATION ON LIABILITY OF DIRECTORS
No person shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
including without limitation for serving on a committee of the Board of
Directors; provided, however, that the foregoing shall not eliminate or limit
the liability of a director (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) arising under Section 174 of the DGCL, or (iv) for any transaction from
which the director derived an improper personal benefit. Any amendment, repeal
or modification of this Article VII shall not adversely affect any right or
protection of a director of the Corporation existing hereunder with respect to
any act or omission occurring prior to such amendment, repeal or modification.
24
ARTICLE VIII.
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation hereby reserves the right from time to time to amend,
alter, change or repeal any provision contained in the Certificate of
Incorporation of the Corporation in any manner permitted by the DGCL and all
rights and powers conferred upon stockholders, directors and officers herein are
granted subject to this reservation. In addition to any vote otherwise required
by law, and except as may otherwise be provided in the Certificate of
Incorporation, any such amendment, alteration, change or repeal shall require
approval of both (i) the Board of Directors by the affirmative vote of a
majority of the members then in office and (ii) the holders of a majority of the
voting power of all of the shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation which
restates, integrates and amends the provisions of the certificate of
incorporation of the Corporation, and which has been duly adopted in accordance
with the provisions of Sections 242 and 245 of the Delaware General Corporation
Law, has been executed by William B. Sawch, its Senior Vice President, this 29th
day of November, 2000, and shall be effective as of 12:01 a.m. on the 30th day
of November, 2000.
PE CORPORATION
By: /s/ William B. Sawch
------------------------------
Name: William B. Sawch
Title: Senior Vice President