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Exhibit 3.3
FORM OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NETGENICS, INC.
ARTICLE I
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The name of the corporation is NetGenics, Inc. (the "CORPORATION").
ARTICLE II
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The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle, Delaware 19801. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
ARTICLE III
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The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV
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Section 1. AUTHORIZED CAPITAL STOCK. The Corporation is authorized to
issue two classes of capital stock, designated Common Stock and Preferred Stock.
The total number of shares of capital stock that the Corporation is authorized
to issue is 80,000,000 shares, consisting of 75,000,000 shares of Common Stock,
par value $0.001 per share, and 5,000,000 shares of Preferred Stock, par value
$0.001 per share.
Section 2. PREFERRED STOCK. The Preferred Stock may be issued in one or
more series. The Board of Directors of the Corporation (the "BOARD") is hereby
authorized to issue the shares of Preferred Stock in such series and to fix from
time to time before issuance the number of shares to be included in any such
series and the designation, relative powers, preferences, and rights and
qualifications, limitations, or restrictions of all shares of such series. The
authority of the Board with respect to each such series will include, without
limiting the generality of the foregoing, the determination of any or all of the
following:
(a) the number of shares of any series and the designation to
distinguish the shares of such series from the shares of all other
series;
(b) the voting powers, if any, and whether such voting powers
are full or limited in such series;
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(c) the redemption provisions, if any, applicable to such
series, including the redemption price or prices to be paid;
(d) whether dividends, if any, will be cumulative or
noncumulative, the dividend rate of such series, and the dates and
preferences of dividends on such series;
(e) the rights of such series upon the voluntary or
involuntary dissolution of, or upon any distribution of the assets of,
the Corporation;
(f) the provisions, if any, pursuant to which the shares of
such series are convertible into, or exchangeable for, shares of any
other class or classes or of any other series of the same or any other
class or classes of stock, or any other security, of the Corporation or
any other corporation or other entity, and the price or prices or the
rates of exchange applicable thereto;
(g) the right, if any, to subscribe for or to purchase any
securities of the Corporation or any other corporation or other entity;
(h) the provisions, if any, of a sinking fund applicable to
such series; and
(i) any other relative, participating, optional, or other
special powers, preferences, rights, qualifications, limitations, or
restrictions thereof;
all as may be determined from time to time by the Board and stated in the
resolution or resolutions providing for the issuance of such Preferred Stock
(collectively, a "PREFERRED STOCK DESIGNATION").
Section 3. COMMON STOCK. Except as may otherwise be provided in a
Preferred Stock Designation, the holders of Common Stock will be entitled to one
vote on each matter submitted to a vote at a meeting of stockholders for each
share of Common Stock held of record by such holder as of the record date for
such meeting.
ARTICLE V
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The Board may make, amend, and repeal the Bylaws of the Corporation.
Any Bylaw made by the Board under the powers conferred hereby may be amended or
repealed by the Board (except as specified in any such Bylaw so made or amended)
or by the stockholders in the manner provided in the Bylaws of the Corporation.
The Corporation may in its Bylaws confer powers upon the Board in addition to
the foregoing and in addition to the powers and authorities expressly conferred
upon the Board by applicable law.
ARTICLE VI
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Subject to the rights, if any, of the holders of any series of
Preferred Stock to elect additional Directors under circumstances specified in a
Preferred Stock Designation, the number of the Directors of the Corporation will
not be less than six nor more than nine and will be fixed from time to time in
the manner described in the Bylaws of the Corporation.
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ARTICLE VII
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To the full extent permitted by the General Corporation Law of the
State of Delaware or any other applicable law currently or hereafter in effect,
no Director of the Corporation will be personally liable to the Corporation or
its stockholders for or with respect to any acts or omissions in the performance
of his or her duties as a Director of the Corporation. Any repeal or
modification of this Article VII will not adversely affect any right or
protection of a Director of the Corporation existing prior to such repeal or
modification.
ARTICLE VIII
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Section 1. RIGHT TO INDEMNIFICATION. Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "PROCEEDING"), by reason of the fact that he or she is or was a
director or an officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another company or
of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (an "INDEMNITEE"), whether the basis of
such Proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent permitted or required by the General
Corporation Law of the State of Delaware, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
such law permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such Indemnitee in connection therewith; provided,
however, that, except as provided in Section 3 of this Article VIII with respect
to Proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such Indemnitee in connection with a Proceeding (or part thereof)
initiated by such Indemnitee only if such Proceeding (or part thereof) was
authorized by the Board of the Corporation.
Section 2. RIGHT TO ADVANCEMENT OF EXPENSES. The right to
indemnification conferred in Section 1 of this Article VIII shall include the
right to be paid by the Corporation the expenses (including, without limitation,
attorneys' fees and expenses) incurred in defending any such Proceeding in
advance of its final disposition (an "ADVANCEMENT OF EXPENSES"); provided,
however, that, if the General Corporation Law of the State of Delaware so
requires, an Advancement of Expenses incurred by an Indemnitee in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such Indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking (an "UNDERTAKING"), by or on behalf of such
Indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (a "FINAL ADJUDICATION") that such Indemnitee is not entitled to be
indemnified for such expenses under this Section 2 or otherwise. The rights to
indemnification and to the Advancement of Expenses conferred in Sections 1 and 2
of this Article VIII shall be contract rights and such rights shall continue as
to an Indemnitee who
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has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the Indemnitee's heirs, executors and administrators.
Section 3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under
Section 1 or 2 of this Article VIII is not paid in full by the Corporation
within 60 calendar days after a written claim has been received by the
Corporation, except in the case of a claim for an Advancement of Expenses, in
which case the applicable period shall be 20 calendar days, the Indemnitee may
at any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such suit, or in a
suit brought by the Corporation to recover an Advancement of Expenses pursuant
to the terms of an Undertaking, the Indemnitee shall be entitled to be paid also
the expense of prosecuting or defending such suit. In (i) any suit brought by
the Indemnitee to enforce a right to indemnification hereunder (but not in a
suit brought by the Indemnitee to enforce a right to an Advancement of Expenses)
it shall be a defense that, and (ii) any suit brought by the Corporation to
recover an Advancement of Expenses pursuant to the terms of an Undertaking, the
Corporation shall be entitled to recover such expenses upon a Final Adjudication
that, the Indemnitee has not met any applicable standard for indemnification set
forth in the General Corporation Law of the State of Delaware. Neither the
failure of the Corporation (including its Board, independent legal counsel or
stock holders) to have made a determination prior to the commencement of such
suit that indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth in
the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board, independent legal counsel
or stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification or to an Advancement of Expenses hereunder,
or brought by the Corporation to recover an Advancement of Expenses pursuant to
the terms of an Undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such Advancement of Expenses, under this
Article VIII or otherwise shall be on the Corporation.
Section 4. NON-EXCLUSIVITY OF RIGHTS. The rights to
indemnification and to the Advancement of Expenses conferred in this Article
VIII shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, the Corporation's Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 5. INSURANCE. The Corporation may maintain insurance,
at its expense, to protect itself and any director, officer, employee or agent
of the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
Section 6. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE
CORPORATION. The Corporation may, to the extent authorized from time to time by
the Board, grant rights to indemnification and to the Advancement of Expenses
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article VIII with respect to the indemnification and
Advancement of Expenses of directors and officers of the Corporation.
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