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EXHIBIT 3.1
FIFTH AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CEPHEID
Kurt Petersen and August J. Moretti hereby certify as follows:
1. They are the President and Secretary, respectively, of
Cepheid, a California corporation (the "Corporation").
2. The Articles of Incorporation of this Corporation are amended
and restated to read as follows:
ARTICLE 1. NAME
The name of the Corporation is Cepheid.
ARTICLE 2. PURPOSE
The purpose of this Corporation is to engage in any lawful acts
or activity for which a corporation may be organized under the General
Corporation Law of California other than the banking business, the trust company
business or the practice of a profession permitted to be incorporated by the
California Corporation Code (the "Code").
ARTICLE 3. AUTHORIZED CAPITAL
The Corporation is authorized to issue two classes of shares,
designated "Common Stock" and "Preferred Stock" respectively. The total number
of shares of Common Stock which this Corporation is authorized to issue is
100,000,000 and the total number of shares of Preferred Stock which this
Corporation is authorized to issue is 5,000,000.
A description of the respective classes of stock and a statement
of the designations, preferences, voting powers (or no voting powers), relative,
participating, optional or other special rights and privileges and the
qualifications, limitations and restrictions of the Preferred Stock and Common
Stock are as follows:
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1. PREFERRED STOCK
The Preferred Stock may be issued in one or more series at such
time or times and for such consideration or considerations as the board of
directors may determine. Each series shall be so designated as to distinguish
the shares thereof from the shares of all other series and classes. Except as
may be expressly provided in these Amended and Restated Articles of
Incorporation, including any certificate of designations for a series of
Preferred Stock, different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purpose of voting by classes.
The board of directors is expressly authorized, subject to the
limitations prescribed by law and the provisions of these Amended and Restated
Articles of Incorporation, to provide for the issuance of all or any shares of
the Preferred Stock, in one or more series, each with such designations,
preferences, voting powers (or no voting powers), relative, participating,
optional or other special rights and privileges and such qualifications,
limitations or restrictions thereof as shall be stated in the resolution or
resolutions adopted by the board of directors to create such series, and a
certificate of designations setting forth a copy of said resolution or
resolutions shall be filed in accordance with the California Corporations Code.
The authority of the board of directors with respect to each such series shall
include without limitation of the foregoing the right to specify the number of
shares of each such series and to authorize an increase or decrease in such
number of shares and the right to provide that the shares of each such series
may be: (i) subject to redemption at such time or times and at such price or
prices; (ii) entitled to receive dividends (which may be cumulative or
non-cumulative) at such rates, on such conditions, and at such times, and
payable in preference to, or in such relation to, the dividends payable on any
other class or classes or any other series; (iii) entitled to such rights upon
the dissolution of, or upon any distribution of the assets of, the corporation;
(iv) convertible into, or exchangeable for, shares of any other class or classes
of stock, or of any other series of the same or any other class or classes of
stock of the corporation at such price or prices or at such rates of exchange
and with such adjustments, if any; (v) entitled to the benefit of such
limitations, if any, on the issuance of additional shares of such series or
shares of any other series of Preferred Stock; or (vi) entitled to such other
preferences, powers, qualifications, rights and privileges, all as the board of
directors may deem advisable and as are not inconsistent with law and the
provisions of these Amended and Restated Articles of Incorporation. The number
of authorized shares of Preferred Stock 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 Common Stock, without a vote of the holders of
the Preferred Stock, or of any series thereof, unless a vote of such holder is
required pursuant to the terms of any Preferred Stock designation.
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2. COMMON STOCK
(a) Relative Rights of Preferred Stock and Common Stock. All
preferences, voting powers, relative, participating, optional or other special
rights and privileges, and qualifications, limitations, or restrictions of the
Common Stock are expressly made subject and subordinate to those that may be
fixed with respect to any shares of the Preferred Stock.
(b) Voting Rights. Except as otherwise required by law or these
Amended and Restated Articles of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of stock held by such holder of
record on the books of the corporation for the election of directors and on all
matters submitted to a vote of stockholders of the corporation; provided,
however, that, except as otherwise required by law, holders of Common Stock
shall not be entitled to vote on any amendment to these Amended and Restated
Articles of Incorporation (including any certificate of designations relating to
any series of Preferred Stock) that relates solely to the terms of one or more
outstanding series of Preferred Stock if the holders of such affected series are
entitled, either separately or together as a class with the holders of one or
more other such series, to vote thereon pursuant to these Amended and Restated
Articles of Incorporation (including any certificate of designations relating to
any series of Preferred Stock).
(c) Cumulative Voting. At such time as the Corporation becomes a
"listed corporation" within the meaning of Section 301.5 of the California
Corporations Code, holders of stock of any class or series of the corporation
shall not be entitled to cumulate their votes for the election of directors or
any other matter submitted to a vote of the stockholders, unless such cumulative
voting becomes required pursuant to Section 301.5 of the California Corporations
Code, in which event each such holder shall be entitled to as many votes as
shall equal the number of votes which (except for this provision as to
cumulative voting) such holder would be entitled to cast for the election of
directors with respect to such holder's shares of stock multiplied by the number
of directors to be elected by such holder, and the holder may cast all of such
votes for a single director or may distribute them among the number of directors
to be voted for, or for any two or more of them as such holder may see fit, so
long as the name of the candidate for director shall have been placed in
nomination prior to the voting and the stockholder, or any other holder of the
same class or series of stock, has given notice at the meeting prior to the
voting of the intention to cumulate votes.
(d) Dividends. Subject to the preferential rights of the
Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive, when and if declared by the board of directors, out of the assets of
the corporation which are by law available therefor, dividends payable either in
cash, in property or in shares of capital stock.
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(e) Dissolution, Liquidation or Winding Up. In the event of any
dissolution, liquidation or winding up of the affairs of the corporation, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of Preferred Stock, holders of Common Stock shall be
entitled, unless otherwise provided by law or these Amended and Restated
Articles of Incorporation, including any certificate of designations for a
series of Preferred Stock, to receive all of the remaining assets of the
corporation of whatever kind available for distribution to stockholders ratably
in proportion to the number of shares of Common Stock held by them respectively.
ARTICLE 4. ELECTION OF DIRECTORS
At such time as the Corporation becomes a "listed corporation"
within the meaning of Section 301.5 of the California Corporations Code, the
Board of Directors shall be divided into three classes, each serving for a
period of three years and elected pursuant to the following schedule:
Class I: Elected in 2000, 2003 and every three years thereafter.
Class II: Elected in 2001, 2004 and every three years thereafter.
Class III: Elected in 2002, 2005 and every three years
thereafter.
ARTICLE 5. LIMITATION OF DIRECTORS' LIABILITY
The liability of directors of the corporation for monetary
damages shall be eliminated to the fullest extent permissible under California
law. If, after the effective date of this Article, California law is amended in
a manner which permits a corporation to limit the monetary or other liability of
its directors in such case to a greater extent than is permitted on such
effective date, the reference in this Article to "California law" shall to that
extent be deemed to refer to California law as so amended.
ARTICLE 6. INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND OTHER AGENTS
1. INDEMNIFICATION OF DIRECTORS.
The Corporation shall, to the maximum extent and in a manner
permitted by the Code, indemnify each of its Directors against expenses (as
defined in Section 317(a) of the Code), judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with any proceeding (as
defined in Section 317(a) of the Code), arising by reason of the fact that such
person is or was a Director of the Corporation. For purposes of this Article 6,
a "Director" of the Corporation includes any person (i) who is or was a Director
of the Corporation, (ii) who is or was serving at the request of the
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Corporation as a director of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, or (iii) who was a
director of a corporation which was a predecessor corporation of the Corporation
or of another enterprise at the request of such predecessor corporation.
2. INDEMNIFICATION OF OTHERS.
The Corporation shall have the power, to the extent and in the
manner permitted by the Code, to indemnify each of its employees, officers, and
agents (other than Directors) against expenses (as defined in Section 317(a) of
the Code), judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding (as defined in Section
317(a) of the Code), arising by reason of the fact that such person is or was an
employee, officer, or agent of the Corporation. For purposes of this Article 6,
an "employee" or "officer" or "agent" of the Corporation (other than a Director)
includes any person (i) who is or was an employee, officer, or agent of the
Corporation, (ii) who is or was serving at the request of the Corporation as an
employee, officer, or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, or (iii) who was an
employee, officer, or agent of a corporation which was a predecessor corporation
of the Corporation or of another enterprise at the request of such predecessor
corporation.
3. PAYMENT OF EXPENSES IN ADVANCE.
Expenses and attorneys' fees incurred in defending any civil or
criminal action or proceeding for which indemnification is required pursuant to
Section 1 of this Article 6, or if otherwise authorized by the Board of
Directors, shall be paid by the Corporation in advance of the final disposition
of such action or proceeding upon receipt of an undertaking by or on behalf of
the indemnified party to repay such amount if it shall ultimately be determined
that the indemnified party is not entitled to be indemnified as authorized in
this Article 6.
4. INDEMNITY NOT EXCLUSIVE.
The indemnification provided by this Article 6 shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any Bylaw, agreement, vote of shareholders or Directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office. The rights to indemnity hereunder shall
continue as to a person who has ceased to be a Director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and administrators
of such person.
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5. INSURANCE INDEMNIFICATION.
The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a Director, officer, employee or
agent of the Corporation against any liability asserted against or incurred by
such person in such capacity or arising out of that person's status as such,
whether or not the Corporation would have the power to indemnify that person
against such liability under the provisions of this Article 6.
6. CONFLICTS.
No indemnification or advance shall be made under this Article 6,
except where such indemnification or advance is mandated by law or the order,
judgment or decree of any court of competent jurisdiction, in any circumstance
where it appears:
(a) That it would be inconsistent with a provision of these
Articles, a resolution of the shareholders or an agreement in effect at the time
of the accrual of the alleged cause of the action asserted in the proceeding in
which the expenses were incurred or other amounts were paid, which prohibits or
otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
7. RIGHT TO BRING SUIT.
If a claim under this Article is not paid in full by the
Corporation within 90 days after a written claim has been received by the
Corporation (either because the claim is denied or because no determination is
made), the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall also be entitled to be paid the expenses of
prosecuting such claim. The Corporation shall be entitled to raise as a defense
to any such action that the claimant has not met the standards of conduct that
make it permissible under the Code for the Corporation to indemnify the claimant
for the claim. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its shareholders) to have a
determination prior to the commencement of such action that indemnification of
the claimant is permissible in the circumstances because he or she has met the
applicable standard of conduct, if any, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
shareholders) that the claimant has not met the applicable standard of conduct,
shall be a defense to such action or create a presumption for the purposes of
such action that the claimant has not met the applicable standard of conduct.
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8. INDEMNITY AGREEMENTS.
The Board of Directors is authorized to enter into a contract
with any Director, officer, employee or agent of the Corporation, or any person
who is or was serving at the request of the Corporation as a Director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including employee benefit plans, or any person who was a
Director, officer, employee or agent of a corporation which was a predecessor
corporation of the Corporation or of another enterprise at the request of such
predecessor corporation, providing for indemnification rights equivalent to or,
if the Board of Directors so determines and to the extent permitted by
applicable law, greater than, those provided for in this Article 6.
9. AMENDMENT, REPEAL OR MODIFICATION.
Any amendment, repeal or modification of any provision of this
Article 6 shall not adversely affect any right or protection of a Director,
officer, employee or agent of the Corporation existing at the time of such
amendment, repeal or modification.
10. AMENDMENT OF CALIFORNIA LAW.
If, after the effective date of this Article, California law is
amended in a manner which permits a corporation to authorize indemnification of,
or advancement of such defense expenses to, its directors or other persons, in
any such case to a greater degree than is permitted on such effective date, the
references in this Article to "California law" shall to that extent be deemed to
refer to California as so amended.
3. The foregoing Amendment and Restatement of Articles of
Incorporation has been duly approved by the Board of Directors.
4. The foregoing Amendment and Restatement of Articles of
Incorporation has been duly approved by the required vote of shareholders in
accordance with Section 902 of the Code. The Corporation has two classes of
stock outstanding. The total number of outstanding shares of Common Stock of
this Corporation is 7,188,794, the total number of outstanding shares of Series
A Preferred Stock of the Corporation is 2,530,000, the total number of
outstanding shares of Series B Preferred Stock of the Corporation is 3,666,658,
and the total number of outstanding shares of Series C
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Preferred Stock of the Corporation is 7,126,978. The number of shares voting in
favor of the amendment and restatement equaled or exceeded the vote required,
such required vote being (i) more than 50% of the outstanding shares of Common
Stock and Preferred Stock voting together as a class, (ii) more than 50% of the
outstanding shares of Series A Preferred voting as a separate class, (iii) more
than 50% of the outstanding shares of Series B Preferred voting as a separate
class, (iv) more than 50% of the outstanding shares of Series C Preferred voting
as a separate class, and (v) more than 50% of the outstanding shares of Common
Stock voting as a separate class.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are true and
correct of our own knowledge.
Date: June __, 2000 -----------------------------------
Kurt Petersen, President
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August J. Moretti, Secretary
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