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Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
INVITROGEN CORPORATION
a Delaware Corporation
INVITROGEN CORPORATION, a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
ONE: The name of this Corporation is INVITROGEN CORPORATION. Invitrogen
Corporation was originally incorporated under the name Invitrogen Inc., and the
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of Delaware on May 21, 1997. The Certificate of Incorporation
was later amended and restated pursuant to the terms of an Agreement and Plan of
Merger filed with the Delaware Secretary of State on June 17, 1997.
TWO: Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware, this Restated Certificate of Incorporation restates and
integrates and further amends the provisions of the Certificate of Incorporation
of this Corporation as set forth in the Agreement and Plan of Merger.
THREE: The text of the Certificate of Incorporation as heretofore in
effect is hereby restated and further amended to read in its entirety as
follows:
ARTICLE I
The name of the Corporation is Invitrogen Corporation.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted by
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.
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ARTICLE IV
The total number of shares of capital stock which the Corporation shall
have authority to issue is 26,405,884, of which (a) 6,405,884 shares shall be
preferred stock, par value $.01 per share ("Preferred Stock"), and (b)
20,000,000 shares shall be common stock, par value $.01 per share.
Except as otherwise restricted by this Certificate of Incorporation,
the Corporation is authorized to issue, from time to time, all or any portion of
the capital stock of the Corporation which may have been authorized but not
issued, to such person or persons and for such lawful consideration as it may
deem appropriate, and generally in its absolute discretion to determine the
terms and manner of any disposition of such authorized but unissued capital
stock.
In addition, the Preferred Stock authorized by this Certificate of
Incorporation may be issued from time to time in one or more series. The Board
of Directors is hereby authorized to fix or alter the dividend rights, dividend
rate, conversion rights, voting rights, rights and terms of redemption,
including sinking fund provisions, the redemption price or prices, the
liquidation preferences and the other preferences, powers, rights,
qualifications, limitations and restrictions of any wholly unissued class or
series of Preferred Stock, not including any Convertible Preferred Stock nor
Redeemable Preferred Stock, as defined in Article IV. A. and B. below, and the
number of shares constituting any such series and the designation thereof, or
any of them.
Any and all such shares issued for which the full consideration has
been paid or delivered shall be deemed fully paid shares of capital stock, and
the holder of such shares shall not be liable for any further call or assessment
or any other payment thereon.
The voting powers, designations, preferences, privileges and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions of each class of capital stock of the Corporation,
shall be as provided in this Article IV.
A. CONVERTIBLE PREFERRED STOCK
1. DESIGNATION. A total of 2,202,942 shares of the Corporation's
Preferred Stock shall be designated as Series A Convertible Redeemable Preferred
Stock, $.01 par value per share (the "Convertible Preferred Stock").
2. ELECTION OF DIRECTORS; VOTING.
(a) ELECTION OF DIRECTORS. The holders of outstanding shares
of Convertible Preferred Stock shall, voting together as a separate class, be
entitled to elect one (1) Director of the Corporation. Such Director shall be
the candidate receiving the highest number of affirmative votes (with each
holder of Convertible Preferred Stock entitled to cast one vote for or against
each candidate with respect to each share of Convertible Preferred Stock held by
such holder) of the outstanding shares of Convertible Preferred Stock (the
"Convertible Preferred Stock Director Designee"), with votes cast against such
candidate and votes withheld having no legal effect. The election of the
Convertible Preferred Stock Director Designee by the holders of the Convertible
Preferred Stock shall occur (i) at the annual meeting of holders of capital
stock, (ii) at any special
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meeting of holders of capital stock, (iii) at any special meeting of holders of
Convertible Preferred Stock called by holders of a majority of the outstanding
shares of Convertible Preferred Stock or (iv) by the unanimous written consent
of holders of the outstanding shares of Convertible Preferred Stock. If at any
time when any share of Convertible Preferred Stock is outstanding the
Convertible Preferred Stock Director Designee should cease to be a Director for
any reason, the vacancy shall only be filled by the vote or written consent of
the holders of the outstanding shares of Convertible Preferred Stock, voting
together as a separate class, in the manner and on the basis specified above.
The holders of outstanding shares of Convertible Preferred Stock shall also be
entitled to vote for all other Directors of the Corporation together with
holders of all other shares of the Corporation's outstanding capital stock
entitled to vote thereon, voting as a single class, with each outstanding share
entitled to the same number of votes specified in Section A.2(b).
(b) VOTING GENERALLY. The holder of each share of Convertible
Preferred Stock shall be entitled to the number of votes equal to the largest
number of full shares of Common Stock (as defined in Section C of this Article
IV) into which each share of Convertible Preferred Stock could be converted
pursuant to Section A.6 hereof (other than by means of Section A.6(b)) on the
record date for the vote or for written consent of stockholders, if applicable,
multiplied by the number of shares of Convertible Preferred Stock held of record
on such date. The holder of each share of Convertible Preferred Stock shall be
entitled to notice of any stockholders' meeting in accordance with the by-laws
of the Corporation and shall vote with holders of the Common Stock, voting
together as single class, upon all matters submitted to a vote of stockholders
excluding those matters required to be submitted to a class or series vote
pursuant to the terms hereof (including without limitation Section A.8) or by
law. Fractional votes shall not, however, be permitted and any fractional voting
rights resulting from the above formula (after aggregating all shares of Common
Stock into which shares of Convertible Preferred Stock held by each holder could
be converted) shall be rounded to the nearest whole number (with one-half
rounded upward to one).
3. DIVIDENDS. The holders of Convertible Preferred Stock shall be
entitled to receive, out of funds legally available therefor, cumulative
(non-compounding) dividends on the Convertible Preferred Stock in cash, at the
rate per annum of six percent (6%) of the Convertible Base Liquidation Amount
(as defined in Section A.4 below), or $.4085 per share of Convertible Preferred
Stock as of the date this Certificate of Incorporation is first filed with the
Delaware Secretary of State (the "Convertible Cumulative Dividend"). Such
dividends will accumulate commencing as of the date of issuance of the
Convertible Preferred Stock and shall be cumulative, to the extent unpaid,
whether or not they have been declared and whether or not there are profits,
surplus or other funds of the Corporation legally available for the payment of
dividends. Convertible Cumulative Dividends shall become due and payable with
respect to any share of Convertible Preferred Stock as provided in Sections A.4,
A.5, A.6, B.4 and B.5. So long as any shares of Convertible Preferred Stock are
outstanding and the Convertible Cumulative Dividends have not been paid in full
in cash: (a) no dividend whatsoever shall be paid or declared, and no
distribution shall be made, on any capital stock of the Corporation ranking
junior to the Convertible Preferred Stock; and, (b) except as permitted by
Sections A.8(c)(ii) and (iii), no shares of capital stock of the Corporation
ranking junior to the Convertible Preferred Stock shall be purchased, redeemed
or acquired by the Corporation and no monies shall be paid into or set aside or
made available for a sinking fund for the purchase, redemption or acquisition
thereof. All numbers relating to the calculation of dividends pursuant to this
Section A.3 shall be subject to equitable adjustment in the event of any stock
split,
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combination, reorganization, recapitalization, reclassification or other
similar event involving a change in the Convertible Preferred Stock.
4. LIQUIDATION.
(a) LIQUIDATION PREFERENCE. Upon any liquidation, dissolution
or winding up of the Corporation and its subsidiaries, whether voluntary or
involuntary (a "Liquidation Event"), each holder of outstanding shares of
Convertible Preferred Stock shall be entitled to be paid out of the assets of
the Corporation available for distribution to stockholders, whether such assets
are capital, surplus or earnings, and before any amount shall be paid or
distributed to the holders of Common Stock or of any other stock ranking on
liquidation junior to the Convertible Preferred Stock, an amount in cash equal
to (i) $6.8091 per share of Convertible Preferred Stock held by such holder
(adjusted appropriately for stock splits, stock dividends, recapitalizations and
the like with respect to the Convertible Preferred Stock) (the "Convertible Base
Liquidation Preference Amount") plus (ii) any accumulated but unpaid dividends
to which such holder of outstanding shares of Convertible Preferred Stock is
then entitled pursuant to Sections A.3 and A.5(d) hereof, plus (iii) any
interest accrued pursuant to Section A.5(c) to which such holder of Convertible
Preferred Stock is entitled (the "Convertible Preferred Liquidation Preference
Amount"); PROVIDED, HOWEVER, that if, upon any Liquidation Event, the amounts
payable with respect to the Convertible Preferred Stock are not paid in full,
the holders of the Convertible Preferred Stock shall share ratably in any
distribution of assets in proportion to the full respective preferential amounts
to which they are entitled. The provisions of this Section A.4 shall not in any
way limit the right of the holders of Convertible Preferred Stock to elect to
convert their shares of Convertible Preferred Stock into Redeemable Preferred
Stock and Common Stock pursuant to Section A.6 prior to or in connection with
any Liquidation Event.
(b) NOTICE. Prior to the occurrence of any Liquidation Event, the
Corporation will furnish each holder of Convertible Preferred Stock notice in
accordance with Section A.9 hereof, together with a certificate prepared by the
chief financial officer of the Corporation describing in detail the facts of
such Liquidation Event, stating in detail the amount(s) per share of Convertible
Preferred Stock each holder of Convertible Preferred Stock would receive
pursuant to the provisions of Section A.4(a) hereof and stating in detail the
facts upon which such amount was determined.
5. REDEMPTION.
(a) REDEMPTION EVENTS.
(i) The holder or holders of not less than sixty-six
and two-thirds percent in voting power of the outstanding Convertible Preferred
Stock may require the Corporation to redeem on or after June 18, 2003, 50% of
the outstanding shares of Convertible Preferred Stock; PROVIDED, HOWEVER, that
such holder or holders may not require the Corporation to redeem less than 50%
of the outstanding shares of Convertible Preferred Stock.
(ii) The holder or holders of not less than sixty-six
and two-thirds percent in voting power of the outstanding Convertible Preferred
Stock may require the Corporation to redeem on or after June 18, 2004 all of the
outstanding shares of Convertible Preferred Stock;
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PROVIDED, HOWEVER, that such holder or holders may not require the Corporation
to redeem less than the number of outstanding shares of Convertible Preferred
Stock.
(iii) NOTICE. An election pursuant to subparagraphs (i)
or (ii) of this Section A.5(a) shall be made by such holders giving the
Corporation and each other holder of Convertible Preferred Stock not less that
fifteen (15) days prior written notice, which notice shall set forth the date
for such redemption.
(b) REDEMPTION DATE; REDEMPTION PRICE. Upon the election of the
holders of not less than sixty-six and two-thirds of the voting power of the
outstanding Convertible Preferred Stock to cause the Corporation to redeem the
Convertible Preferred Stock pursuant to Section A.5(a)(i) or (ii), all holders
of Convertible Preferred Stock shall be deemed to have elected to cause the
Convertible Preferred Stock to be so redeemed. Any date upon which a redemption
shall occur in accordance with Section A.5(a) shall be referred to as a
"Convertible Preferred Redemption Date." The redemption price for each share of
Convertible Preferred Stock redeemed pursuant to Section A.5 shall be an amount
in cash equal to (i) the Convertible Base Liquidation Preference Amount plus
(ii) any accumulated but unpaid dividends on such share of Convertible Preferred
Stock pursuant to Sections A.3 and A.5(d) hereof, plus (iii) any interest
accrued with respect to such share of Convertible Preferred Stock pursuant to
Section A.5(c) (collectively, the "Convertible Preferred Redemption Price"). The
Convertible Preferred Redemption Price shall be payable in cash in immediately
available funds to the respective holders of the Convertible Preferred Stock on
the Convertible Preferred Redemption Date and subject to Section A.5(c). Until
the full Convertible Preferred Redemption Price has been paid to such holders
for all shares of Convertible Preferred Stock being redeemed: (A) no dividend
whatsoever shall be paid or declared, and no distribution shall be made, on any
capital stock of the Corporation; and (B) no shares of capital stock (other than
shares of capital stock the repurchase of which is required pursuant to the
provisions of ERISA or any like statutory requirement) of the Corporation (other
than the Convertible Preferred Stock in accordance with this Section A.5) shall
be purchased, redeemed or acquired by the Corporation and no monies shall be
paid into or set aside or made available for a sinking fund for the purchase,
redemption or acquisition thereof.
(c) REDEMPTION PROHIBITED. If, at a Convertible Preferred
Redemption Date, the Corporation is prohibited under the General Corporation Law
of the State of Delaware from redeeming all shares of Convertible Preferred
Stock for which redemption is required hereunder, then it shall redeem such
shares on a pro-rata basis among the holders of Convertible Preferred Stock in
proportion to the full respective redemption amounts to which they are entitled
hereunder to the extent possible and shall redeem the remaining shares to be
redeemed as soon as the Corporation is not prohibited from redeeming some or all
of such shares under the General Corporation Law of the State of Delaware,
subject to the last paragraph of Section A.8. The shares of Convertible
Preferred Stock not redeemed shall remain outstanding and entitled to all of the
rights and preferences provided in this Article IV. In the event that the
Corporation fails to redeem shares for which redemption is required pursuant to
this Section A.5, then during the period from the applicable Convertible
Preferred Redemption Date through the date on which such shares are redeemed,
the applicable Convertible Preferred Redemption Price of such shares shall bear
interest at the per annum rate of the greater of (i) 12% or (ii) 5% over the
Citibank prime rate published in the Wall Street Journal on such Convertible
Preferred Redemption Date, compounded annually;
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PROVIDED, HOWEVER, that in no event shall such interest exceed the maximum
permitted rate of interest under applicable law (the "Maximum Permitted Rate").
In the event that fulfillment of any provision hereof results in such rate of
interest being in excess of the Maximum Permitted Rate, the obligation to be
fulfilled shall automatically be reduced to eliminate such excess; PROVIDED,
HOWEVER, that any subsequent increase in the Maximum Permitted Rate shall be
retroactively effective to the applicable Convertible Preferred Redemption Date.
(d) DIVIDEND AFTER CONVERTIBLE PREFERRED REDEMPTION DATE. From
and after a Convertible Preferred Redemption Date, no shares of Convertible
Preferred Stock subject to redemption shall be entitled to dividends, if any, as
contemplated by Section A.3; PROVIDED, HOWEVER, that in the event that shares of
Convertible Preferred Stock are unable to be redeemed and continue to be
outstanding in accordance with Section A.5(c), such shares shall continue to be
entitled to dividends and interest thereon as provided in Sections A.3 and
A.5(c) until the date on which such shares are actually redeemed by the
Corporation.
(e) SURRENDER OF CERTIFICATES. Upon receipt of the applicable
Convertible Preferred Redemption Price by certified check or wire transfer, each
holder of shares of Convertible Preferred Stock to be redeemed shall surrender
the certificate or certificates representing such shares to the Corporation,
duly assigned or endorsed for transfer (or accompanied by duly executed stock
powers relating thereto), or, in the event the certificate or certificates are
lost, stolen or missing, shall deliver an affidavit or agreement satisfactory to
the Corporation to indemnify the Corporation from any loss incurred by it in
connection therewith (an "Affidavit of Loss") with respect to such certificates
at the principal executive office of the Corporation or the office of the
transfer agent for the Convertible Preferred Stock or such office or offices in
the continental United States of an agent for redemption as may from time to
time be designated by notice to the holders of Convertible Preferred Stock, and
each surrendered certificate shall be canceled and retired; PROVIDED, HOWEVER,
that if the holder has exercised its redemption right pursuant to Section
A.5(a)(i) or the Corporation is prohibited from redeeming all shares of
Convertible Preferred Stock as provided in Section A.5(c), the holder shall not
be required to surrender said certificate(s) to the Corporation until said
holder has received a new stock certificate for those shares of Convertible
Preferred Stock not so redeemed.
6. CONVERSION. The holders of the Convertible Preferred Stock
shall have the following conversion rights:
(a) VOLUNTARY CONVERSION. The holders of shares of
Convertible Preferred Stock shall be entitled at any time, upon the written
election of the holder or holders of not less than sixty-six and two-thirds
percent in voting power of the outstanding shares of Convertible Preferred
Stock, without the payment of any additional consideration, to cause each (but
not less than all) of the outstanding shares of Convertible Preferred Stock to
be converted into (i) the number of fully paid and nonassessable shares of
Common Stock (as hereinafter defined) which results from dividing the Conversion
Price (as defined in this Section A.6(a)) per share in effect for the
Convertible Preferred Stock at the time of conversion into the per share
Conversion Value (as defined in this Section A.6(a)) of the Convertible
Preferred Stock and (ii) one (1) fully paid and non-assessable share of
Redeemable Preferred Stock per share of Convertible Preferred Stock. Upon the
election to so convert in the manner and on the basis specified in the preceding
sentence,
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all holders of the Convertible Preferred Stock shall be deemed to have
elected to voluntarily convert all outstanding shares of Convertible Preferred
Stock pursuant to this Section A.6. Upon the filing of this Certificate of
Incorporation with the Delaware Secretary of State, the "Conversion Price" per
share of Convertible Preferred Stock shall be $6.8091, and the per share
"Conversion Value" per share of Convertible Preferred Stock shall be $6.8091.
The Conversion Price per share of Convertible Preferred Stock shall be subject
to adjustment from time to time as provided in Section A.7 hereof. The
Conversion Value per share of Convertible Preferred Stock shall also be subject
to adjustment in connection with certain Qualified Public Offerings (as defined
in Section A.6(b) below) as provided in Section A.7 hereof. The number of shares
of Common Stock into which a share of Convertible Preferred Stock is convertible
is hereinafter referred to as the "Common Stock Conversion Rate." The number of
shares of Redeemable Preferred Stock into which a share of Convertible Preferred
Stock is convertible is hereinafter referred to as the "Redeemable Conversion
Rate." If the holders of shares of Convertible Preferred Stock elect to convert
the outstanding shares of Convertible Preferred Stock at a time when there are
any accumulated but unpaid dividends or other amounts due on or in respect of
such shares, such dividends and other amounts shall be paid in full upon a
Liquidation Event (as set forth in Section B.4) or redemption of the Redeemable
Preferred Stock (as set forth in Section B.5).
(b) AUTOMATIC CONVERSION UPON QPO OR QET. Each share of
Convertible Preferred Stock shall automatically be converted, without the
payment of any additional consideration, into shares of Common Stock and
Redeemable Preferred Stock as of, and in all cases subject to, the closing of
the Corporation's first QPO or QET (each as defined below in Section A.6(b));
PROVIDED that if a closing of a QPO or QET occurs, all outstanding shares of
Convertible Preferred Stock shall be deemed to have been converted into shares
of Common Stock and Redeemable Preferred Stock as provided herein immediately
prior to such closing. Any such conversion shall be at the Common Stock
Conversion Rate and Redeemable Conversion Rate in effect upon (and giving effect
to) the closing of the QPO or QET, as provided in Section A.6(a). "QPO" and
"Qualified Public Offering" mean a firm commitment public offering pursuant to
an effective registration statement under Securities Act of 1933, as amended,
PROVIDED that (i) such registration statement covers the offer and sale of
Common Stock of which the aggregate net proceeds attributable to sales for the
account of the Corporation exceed $20,000,000 at a per share price to public (as
set forth in the final prospectus in connection with such public offering) (the
"Price to Public") equal to at least 1.25 times the Conversion Price, and (ii)
either all shares of Redeemable Preferred Stock which are outstanding or
issuable upon such automatic conversion are redeemed immediately upon and as of
the closing of such offering or contemporaneously with such offering cash, or,
as provided in Section B.5(b), cash and a promissory note in the form attached
hereto, in an amount sufficient to redeem all such shares of Redeemable
Preferred Stock is segregated and irrevocably held by the Corporation for
payment to holders of Redeemable Preferred Stock in connection with the
redemption thereof pursuant to Section B.5(a)(i). "QET" and "Qualified
Extraordinary Transaction" mean any of the transactions set forth in
subparagraphs (A) through (D) below, PROVIDED that (i) at the closing of such
transaction the holders of Common Stock that held Convertible Preferred Stock
prior to such automatic conversion upon such QET (the "Conversion Holders")
receive per share consideration with a value (as determined in Section A.6(c)
below with respect to securities, and excluding any amount (exceeding five
percent (5%) of the total consideration paid or payable to the Corporation's
stockholders) held in escrow or otherwise not actually received as of such
closing date) that equals or exceeds three (3) times the
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Conversion Price should such transaction close prior to or on December 18, 1998,
with such amount increasing in a linear fashion to four (4) times the Conversion
Price should such transaction close on or after June 18, 2000, (for example, one
of the transactions set forth in subparagraphs (A) through (D) would be a QET if
such per share consideration was three and one-half (3.5) times the Conversion
Price and the transaction closed on September 18, 1999, and (ii) such
consideration is in the form of cash and/or unrestricted equity securities of a
corporation and such securities have an average monthly trading volume over the
four (4) full trading months prior to the closing date of the transaction equal
to two (2) times the aggregate number of such securities to be issued to the
Conversion Holders in connection with such closing and such securities trade on
either the New York Stock Exchange, the Nasdaq National Market or the American
Stock Exchange. The following transactions (each an "Extraordinary Transaction")
shall be deemed a QET if the conditions set forth in clauses (i) and (ii) of the
immediately preceding sentence are satisfied:
(A) the sale, lease or other disposition of (whether in one
transaction or a series of related transactions) all or substantially all of the
assets or business of the Corporation and its subsidiaries;
(B) a merger or consolidation of the Corporation with or into another
entity or any other transaction or series of related transactions, in any such
case in connection with or as a result of which the Corporation is not the
surviving entity or the owners of the Corporation's outstanding equity
securities prior to the transaction or series of related transactions do not own
at least a majority of the outstanding equity securities of the surviving,
resulting or consolidated entity;
(C) any purchase by any party of shares of capital stock of the
Corporation (either through a negotiated stock purchase or a tender for such
shares), the effect of which is that such party that did not beneficially own a
majority of the voting power of the outstanding shares of capital stock of the
Corporation immediately prior to such purchase beneficially owns at least a
majority of such voting power immediately after such purchase; or
(D) the redemption or repurchase of shares representing a majority of
the voting power of the outstanding shares of capital stock of the Corporation.
If the holders of shares of Convertible Preferred Stock are required to convert
the outstanding shares of Convertible Preferred Stock pursuant to this Section
A.6(b) at a time when there are any accumulated but unpaid dividends or other
amounts due on or in respect of such shares, such dividends and other amounts
shall be paid in full in cash by the Corporation in connection with such
conversion.
(c) VALUATION OF DISTRIBUTION SECURITIES. In determining
whether an Extraordinary Transaction constitutes a QET, the value of any
securities to be delivered to the holders of the Common Stock shall be deemed to
be the average of the closing prices or last sales prices, as applicable, of the
securities on such exchange or system over the 30-day period ending three (3)
business days prior to the closing.
(d) PROCEDURE FOR VOLUNTARY CONVERSION; EFFECTIVE DATE. Upon
election to convert pursuant to Section A.6(a), each holder of Convertible
Preferred Stock (i) shall provide
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written notice of conversion (the "Voluntary Conversion Notice") to the
Corporation and (ii) shall surrender the certificate or certificates
representing its Convertible Preferred Stock, duly assigned or endorsed for
transfer to the Corporation (or accompanied by duly executed stock powers
relating thereto), at the principal executive office of the Corporation or the
offices of the transfer agent for the Convertible Preferred Stock or such office
or offices in the continental United States of an agent for conversion as may
from time to time be designated by notice to the holders of the Convertible
Preferred Stock by the Corporation, or shall deliver an Affidavit of Loss with
respect to such certificates. The Voluntary Conversion Notice shall specify (i)
the number of shares of Convertible Preferred Stock held by such holder, (ii)
the name or names in which such holder wishes the certificate or certificates
for Common Stock and Redeemable Preferred Stock to be issued upon such
conversion and (iii) the address to which such holder wishes delivery to be made
of such new certificates to be issued upon such conversion. The issuance by the
Corporation of shares of Common Stock and Redeemable Preferred Stock upon a
conversion of Convertible Preferred Stock pursuant to Section A.6(a) hereof
shall be effective as of the surrender of the certificate or certificates for
the Convertible Preferred Stock to be converted, duly assigned or endorsed for
transfer to the Corporation (or accompanied by duly executed stock powers
relating thereto), or as of the delivery of an Affidavit of Loss. Upon surrender
of a certificate representing Convertible Preferred Stock for conversion, or
delivery of an Affidavit of Loss, the Corporation shall issue and send by hand
delivery, by courier or by first class mail (postage prepaid) to the holder
thereof or to such holder's designee, at the address designated by such holder,
certificates for the number of shares of Common Stock and Redeemable Preferred
Stock to which such holder shall be entitled upon conversion. The issuance of
certificates for Common Stock and Redeemable Preferred Stock upon conversion of
Convertible Preferred Stock will be made without charge to the holders of such
shares for any issuance tax in respect thereof or other costs incurred by the
Corporation in connection with such conversion and the related issuance of such
stock. Notwithstanding anything to the contrary set forth in this Section
A.6(d), in the event that the holders of shares of Convertible Preferred Stock
elect to convert such shares pursuant to Section A.6(a) in connection with any
Liquidation Event, Extraordinary Transaction not constituting a QET or initial
public offering not constituting a QPO, (i) the Voluntary Conversion Notice
shall be delivered to the Corporation prior to the effective date of or record
date for (as applicable) such Liquidation Event, Extraordinary Transaction or
initial public offering and such Voluntary Conversion Notice shall be effective
as of, and shall in all cases be subject to, the occurrence of such Liquidation
Event or closing of such Extraordinary Transaction or initial public offering
and (ii) if such Liquidation Event, Extraordinary Transaction or initial public
offering occurs, all outstanding shares of Convertible Preferred Stock shall be
deemed to have been converted into shares of Common Stock and Redeemable
Preferred Stock immediately prior thereto, provided that the Corporation shall
make appropriate provisions (x) for the Common Stock issued upon such conversion
to be treated on the same basis as all other Common Stock in such Liquidation
Event, Extraordinary Transaction or initial public offering provided that the
foregoing shall not be construed to provide or require the registration of any
shares of Common Stock for sale and (y) for the payment of the Redeemable
Liquidation Preference Amount (as defined in Section B.4) in connection with any
Liquidation Event or the redemption of the Redeemable Preferred Stock (issued
upon such conversion) upon election of such redemption in connection with any
Extraordinary Transaction or initial public offering, if applicable, as provided
herein. In the event of any public offering constituting a QPO or an
Extraordinary Transaction constituting a QET, the provisions of Section A.5(e)
shall apply.
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(e) PROCEDURE FOR AUTOMATIC CONVERSION. As of, and in all
cases subject to, the closing of a QPO or QET (the "Automatic Conversion Date"),
all outstanding shares of Convertible Preferred Stock shall be converted
automatically into shares of Common Stock and Redeemable Preferred Stock at the
applicable conversion rates specified in Section A.6(a) and without any further
action by the holders of such shares and whether or not the certificates
representing such shares of Convertible Preferred Stock are surrendered to the
Corporation or its transfer agent; PROVIDED, HOWEVER, that all holders of
Convertible Preferred Stock shall be given prior written notice of the
occurrence of a QPO or QET in accordance with Section A.9 hereof. The
Corporation shall not be obligated to issue certificates evidencing the shares
of Redeemable Preferred Stock or Common Stock issuable on the Automatic
Conversion Date (or the payment for the shares of Redeemable Preferred Stock
which are redeemed immediately after such automatic conversion as provided below
and in Section B.5(a)(i)) unless certificates evidencing such shares of the
Convertible Preferred Stock being converted, or an Affidavit or Affidavits of
Loss with respect to such certificates, are delivered to the Corporation or its
transfer agent. On the Automatic Conversion Date, all rights with respect to the
Convertible Preferred Stock so converted shall terminate, except any of the
rights of the holders thereof upon surrender of their certificate or
certificates therefor or delivery of an Affidavit of Loss thereof to receive
certificates for the number of shares of Common Stock and Redeemable Preferred
Stock into which such Convertible Preferred Stock has been converted (or the
payment to which such holder is entitled as provided below and in Section
B.5(a)(i)). Certificates surrendered for conversion shall be endorsed or
accompanied by written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the registered holder or by
his or its attorney duly authorized in writing. Upon surrender of such
certificates or Affidavit of Loss the Corporation shall issue and deliver to
such holder, promptly (and in any event in such time as is sufficient to enable
such holder to participate in such QPO or QET) at such office and in its name as
shown on such surrendered certificate or certificates, a certificate or
certificates for the number of shares of Common Stock and number of shares of
Redeemable Preferred Stock into which the shares of the Convertible Preferred
Stock surrendered were convertible on the Automatic Conversion Date.
Notwithstanding anything to the contrary set forth in this Section A.6(e), the
Corporation may deliver, in lieu of certificates for Redeemable Preferred Stock,
a payment in an amount and form determined pursuant to Section B.5(b) hereof on
account of the redemption of such Redeemable Preferred Stock, and upon such
payment the Redeemable Preferred Stock into which such Convertible Preferred
Stock would have been converted shall be deemed to have been issued and redeemed
by the Corporation.
(f) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock and Redeemable Preferred Stock solely for
the purpose of effecting the conversion of the shares of Convertible Preferred
Stock such number of its shares of Common Stock and Redeemable Preferred Stock
as shall from time to time be sufficient to effect the conversion of all
outstanding shares of Convertible Preferred Stock; and if at any time the number
of authorized but unissued shares of Common Stock and Redeemable Preferred Stock
shall not be sufficient to effect the conversion of all then outstanding shares
of Convertible Preferred Stock, the Corporation will take such corporate action
as may be necessary to increase its authorized but unissued shares of Common
Stock and Redeemable Preferred Stock to such number of shares as shall be
sufficient for such purpose.
10
<PAGE>
(g) NO CLOSING OF TRANSFER BOOKS. The Corporation shall not
close its books against the transfer of shares of Convertible Preferred Stock in
any manner which would interfere with the timely conversion of any shares of
Convertible Preferred Stock.
7. ADJUSTMENTS. The Conversion Price and Conversion Value in
effect from time to time shall be subject to adjustment from and after June 18,
1997, and regardless of whether any shares of Convertible Preferred Stock are
then issued and outstanding as follows:
(a) ADJUSTMENTS TO CONVERSION PRICE.
(i) STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. Upon
the issuance of additional shares of Common Stock as a dividend or other
distribution on outstanding Common Stock, the subdivision of outstanding shares
of Common Stock into a greater number of shares of Common Stock, or the
combination of outstanding shares of Common Stock into a smaller number of
shares of the Common Stock, the Conversion Price shall, simultaneously with the
happening of such dividend, subdivision or split be adjusted by multiplying the
then effective Conversion Price by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding immediately prior to such event
and the denominator of which shall be the number of shares of Common Stock
outstanding immediately after such event. An adjustment made pursuant to this
Section A.7(a)(i) shall be given effect, upon payment of such a dividend or
distribution, as of the record date for the determination of stockholders
entitled to receive such dividend or distribution (on a retroactive basis) and
in the case of a subdivision or combination shall become effective immediately
as of the effective date thereof.
(ii) SALE OF COMMON STOCK. In the event the Corporation
shall at any time, or from time to time, issue, sell or exchange any shares of
Common Stock including shares held in the Corporation's treasury but excluding
up to an aggregate 3,735,479 shares of Common Stock (as appropriately adjusted
for stock splits, stock dividends and the like) issued to officers, Directors,
employees of, or consultants, advisors, independent contractors to the
Corporation or the Corporation's Employee Stock Ownership Plan (the "ESOP")
(collectively, "Eligible Employees") pursuant to the Corporation's 1995 Stock
Option Plan, 1997 Stock Option Plan or ESOP (collectively, the "Plans") or upon
the exercise of options or other rights issued to such Eligible Employees
pursuant to the Plans (collectively, the "Excluded Shares"), for a consideration
per share less than the Conversion Price in effect immediately prior to the
issuance, sale or exchange of such shares, then, and thereafter successively
upon each such issuance, sale or exchange, the Conversion Price in effect
immediately prior to the issuance, sale or exchange of such shares shall
forthwith be reduced to an amount determined by multiplying such Conversion
Price by a fraction:
(A) the numerator of which shall be (X) the number of
shares of Common Stock of all classes outstanding
immediately prior to the issuance of such additional
shares of Common Stock (excluding treasury shares but
including all shares of Common Stock issuable upon
conversion or exercise of any outstanding Convertible
Preferred Stock, options, warrants, rights or
convertible securities), plus (Y) the number of shares
of Common Stock which the net aggregate consideration
received by the Corporation for the total
11
<PAGE>
number of such additional shares of Common Stock so
issued would purchase at the Conversion Price (prior to
adjustment), and
(B) the denominator of which shall be (X) the number of
shares of Common Stock of all classes outstanding
immediately prior to the issuance of such additional
shares of Common Stock (excluding treasury shares but
including all shares of Common Stock issuable upon
conversion or exercise of any outstanding Convertible
Preferred Stock, options, warrants, rights or
convertible securities), plus (Y) the number of such
additional shares of Common Stock so issued.
(iii) SALE OF OPTIONS, RIGHTS OR CONVERTIBLE SECURITIES. In the event
the Corporation shall at any time or from time to time, issue options, warrants
or rights to subscribe for shares of Common Stock, or issue any securities
convertible into or exchangeable for shares of Common Stock (other than any
options or warrants for Excluded Shares), for a consideration per share
(determined by dividing the Net Aggregate Consideration (as determined below) by
the aggregate number of shares of Common Stock that would be issued if all such
options, warrants, rights or convertible securities were exercised or converted
to the fullest extent permitted by their terms) less than the Conversion Price
in effect immediately prior to the issuance of such options or rights or
convertible or exchangeable securities, the Conversion Price in effect
immediately prior to the issuance of such options, warrants or rights or
securities shall be reduced to an amount determined by multiplying such
Conversion Price by a fraction:
(A) the numerator of which shall be (X) the number of
shares of Common Stock of all classes outstanding
immediately prior to the issuance of such options,
rights or convertible securities (excluding treasury
shares but including all shares of Common Stock
issuable upon conversion or exercise of any outstanding
Convertible Preferred Stock, options, warrants, rights
or convertible securities), plus (Y) the number of
shares of Common Stock which the total amount of
consideration received by the Corporation for the
issuance of such options, warrants, rights or
convertible securities plus the minimum amount set
forth in the terms of such security as payable to the
Corporation upon the exercise or conversion thereof
(the "Net Aggregate Consideration") would purchase at
the Conversion Price prior to adjustment, and
(B) the denominator of which shall be (X) the number of
shares of Common Stock of all classes outstanding
immediately prior to the issuance of such options,
warrants, rights or convertible securities (excluding
treasury shares but including all shares of Common
Stock issuable upon conversion or exercise of any
outstanding Convertible Preferred Stock, options,
warrants, rights or convertible securities), plus (Y)
the aggregate number of shares of Common Stock that
12
<PAGE>
would be issued if all such options, warrants, rights
or convertible securities were exercised or converted.
(iv) EXPIRATION OR CHANGE IN PRICE. If the consideration per share
provided for in any options or rights to subscribe for shares of Common Stock or
any securities exchangeable for or convertible into shares of Common Stock
changes at any time, the Conversion Price in effect at the time of such change
shall be readjusted to the Conversion Price which would have been in effect at
such time had such options or convertible securities provided for such changed
consideration per share (determined as provided in Section A.7(a)(iii) hereof),
at the time initially granted, issued or sold; PROVIDED, that such adjustment of
the Conversion Price will be made only as and to the extent that the Conversion
Price effective upon such adjustment remains less than or equal to the
Conversion Price that would be in effect if such options, rights or securities
had not been issued. No adjustment of the Conversion Price shall be made under
this Section A.7(a) upon the issuance of any additional shares of Common Stock
which are issued pursuant to the exercise of any warrants, options or other
subscription or purchase rights or pursuant to the exercise of any conversion or
exchange rights in any convertible securities if an adjustment shall previously
have been made upon the issuance of such warrants, options or other rights. Any
adjustment of the Conversion Price shall be disregarded if, as, and when the
rights to acquire shares of Common Stock upon exercise or conversion of the
warrants, options, rights or convertible securities which gave rise to such
adjustment expire or are canceled without having been exercised, so that the
Conversion Price effective immediately upon such cancellation or expiration
shall be equal to the Conversion Price in effect at the time of the issuance of
the expired or canceled warrants, options, rights or convertible securities,
with such additional adjustments as would have been made to that Conversion
Price had the expired or canceled warrants, options, rights or convertible
securities not been issued.
(b) ADJUSTMENT TO CONVERSION VALUE UPON CERTAIN QPOS. As set forth
below, upon a QPO in which the Price to Public (as defined in Section A.6(b)) is
1.25 times or greater but less than two (2) times the Conversion Price, for the
purpose of determining the number of shares of Common Stock to be issued upon
conversion of the Convertible Preferred Stock in connection therewith, the
Conversion Value shall be adjusted prior to the closing and conversion by
multiplying the Conversion Value then in effect by the applicable Conversion
Value Multiplier set forth below. The Conversion Value Multiplier is determined
according to (i) the closing date of such offering and (ii) the Price to Public
expressed as a multiple of the Conversion Price. The Conversion Value Multiplier
with respect to any multiple of the Conversion Price between any of the data
points in any column below shall be determined by linear interpolation (for
example, given a QPO on July 1, 1997 with a Price to Public equal to 1.625 times
the Conversion Price, the Conversion Value Multiplier would be 1.0355).
13
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------
Price to Public Per Share Expressed as
Multiple of Conversion Price Conversion Value Multiplier
------------------------------------------------------------------------------------------------------------------
On or Before After On or Before After
June 18, 1998 June 18, 1998 June 18, 1999 June 18, 1999
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1.75X 2.0X 1.0 1.0
------------------------------------------------------------------------------------------------------------------
1.5X 1.75X 1.071 1.086
------------------------------------------------------------------------------------------------------------------
1.25X 1.5X 1.167 1.20
------------------------------------------------------------------------------------------------------------------
1.25X 1.30 1.36
------------------------------------------------------------------------------------------------------------------
</TABLE>
(c) OTHER ADJUSTMENTS. In the event the Corporation shall make
or issue, or fix a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in securities of
the Corporation other than shares of Common Stock, then and in each such event
lawful and adequate provision shall be made so that the holders of Convertible
Preferred Stock shall receive upon conversion thereof in addition to the number
of shares of Common Stock receivable thereupon, the number of securities of the
Corporation which they would have received had their Convertible Preferred Stock
been converted into Common Stock and Redeemable Preferred Stock on the date of
such event and had they thereafter, during the period from the date of such
event to and including the date of conversion, retained such securities
receivable by them as aforesaid during such period, giving application to all
adjustments called for during such period under this Section A.7 as applied to
such distributed securities.
If the Common Stock issuable upon the conversion of the Convertible
Preferred Stock shall be changed into the same or different number of shares of
any class or classes of stock, whether by reclassification or otherwise (other
than a subdivision or combination of shares or stock dividend provided for
above, or a reorganization, merger, consolidation or sale of assets provided for
elsewhere in this Section A.7), then and in each such event the holder of each
share of Convertible Preferred Stock shall have the right thereafter to convert
such share into the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification or other change,
by holders of the number of shares of Common Stock into which such shares of
Convertible Preferred Stock might have been converted immediately prior to such
reorganization, reclassification or change, all subject to further adjustment as
provided herein.
(d) MERGERS AND OTHER REORGANIZATIONS. Unless such transaction
is a QET (in which case Section A.6(b) shall apply and this subsection shall not
apply), if at any time or from time to time there shall be a capital
reorganization of the Common Stock (other than a subdivision, combination,
reclassification or exchange of shares provided for elsewhere in this Section
A.7) or a merger or consolidation of the Corporation with or into another
Corporation or the sale of all or substantially all of the Corporation's
properties and assets to any other person, then, as a part of and as a condition
to the effectiveness of such reorganization, merger, consolidation or sale,
lawful and adequate provision shall be made so that the holders of the
Convertible Preferred Stock shall thereafter be entitled to receive upon
conversion of the Convertible Preferred Stock the number of shares of stock or
other securities or property of the Corporation or of the successor Corporation
resulting from such merger or consolidation or sale, to which a holder of Common
Stock deliverable upon conversion would have been entitled on such capital
reorganization, merger, consolidation, or sale. In any such case, appropriate
provisions shall be made with respect to the rights of the holders
14
<PAGE>
of the Convertible Preferred Stock after the reorganization, merger,
consolidation or sale to the end that the provisions of this Section A.7
(including without limitation provisions for adjustment of the Conversion Price
and the number of shares purchasable upon conversion of the Convertible
Preferred Stock) shall thereafter be applicable, as nearly as may be, with
respect to any shares of stock, securities or assets to be deliverable
thereafter upon the conversion of the Convertible Preferred Stock.
(e) All calculations under this Section A.7 shall be made to
the nearest cent or to the nearest one hundredth (1/100) of a share, as the case
may be.
(f) Upon the occurrence of each adjustment or readjustment
pursuant to this Section A.7, the Corporation at its expense shall promptly
compute such adjustment or readjustment in accordance with the terms hereof and
prepare and furnish to each holder of Convertible Preferred Stock a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Corporation shall, upon
written request at any time of any holder of Convertible Preferred Stock,
furnish or cause to be furnished to such holder a like certificate setting forth
(i) such adjustments and readjustments, (ii) the Conversion Prices before and
after such adjustment or readjustment, and (iii) the number of shares of Common
Stock and Redeemable Preferred Stock and the amount, if any, of other property
which at the time would be received upon the conversion of such holder's shares
of Convertible Preferred Stock.
8. COVENANTS. So long as any shares of Convertible Preferred Stock (or
Redeemable Preferred Stock, as applicable) shall be outstanding, the Corporation
shall not, without first having provided the written notice of such proposed
action to each holder of outstanding shares of Convertible Preferred Stock (or
Redeemable Preferred Stock, as applicable) and having obtained the affirmative
vote or written consent of the holders of not less than sixty-six and two-thirds
percent in voting power of the outstanding shares of Convertible Preferred Stock
(or Redeemable Preferred Stock, as applicable), voting as a single class, with
each share of Convertible Preferred Stock (or Redeemable Preferred Stock, as
applicable) entitling the holder thereof to one vote per share of Convertible
Preferred Stock held by such holder:
(a) unless such transaction is a QET, effect (I) any
Extraordinary Transaction or other sale or transfer of all or substantially all
of the properties and assets of any subsidiary of the Corporation, (II) any
recapitalization of the Corporation or (III) any other transaction or series of
related transactions in which more than 50% of the voting power of the
Corporation is transferred;
(b) dissolve, liquidate or wind up its operations;
(c) directly or indirectly redeem, purchase, or otherwise
acquire for consideration any shares of its Common Stock or any other class of
its capital stock except for (i) redemption of Convertible Preferred Stock or
Redeemable Preferred Stock pursuant to and as provided in this Certificate of
Incorporation, (ii) repurchase of up to 1,101,471 shares of Common Stock from
the stockholders of the Company pursuant to a Repurchase Agreement dated June
18, 1997, or (iii) redemption or repurchase of Common Stock issued pursuant to
the Plans from Eligible Employees (as defined in Section A.7(a)(ii)) pursuant to
an agreement containing vesting and/or
15
<PAGE>
repurchase provisions approved by the Board of Directors of the Corporation or a
committee thereof;
(d) propose or adopt any amendment to this Article IV, or any
other amendment to this Certificate of Incorporation or the Corporation's
By-Laws that eliminates, amends or restricts or otherwise adversely affects the
rights and preferences of the Convertible Preferred Stock or the Redeemable
Preferred Stock, or increase the authorized shares of Convertible Preferred
Stock or Redeemable Preferred Stock;
(e) declare or make dividend payments on any shares of Common
Stock or any other class of the Corporation's capital stock;
(f) create, or obligate itself to create, any class or series of
shares having preference over or being on a parity with the Convertible
Preferred Stock or the Redeemable Preferred Stock;
(g) increase the size of the Board of Directors to more than seven
(7) members; or
(h) except as provided in the Corporation's 1997 Management Bonus
Plan, pay any bonuses to the Corporation's executive officers unless any such
bonus shall have been unanimously approved by the compensation committee of the
Board of Directors.
Further, the Corporation and each subsidiary of the Corporation shall not,
by amendment of this Certificate of Incorporation or through any Extraordinary
Transaction or other reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Corporation and each subsidiary of the Corporation
but shall at all times in good faith assist in the carrying out of all the
provisions of this Article IV and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holders of the
Convertible Preferred Stock and the Redeemable Preferred Stock set forth in this
Certificate against impairment. Any successor to the Corporation or any
subsidiary of the Corporation shall agree, as a condition to such succession, to
carry out and observe the obligations of the Corporation hereunder with respect
to the Convertible Preferred Stock and the Redeemable Preferred Stock.
9. NOTICE
(a) LIQUIDATION EVENTS, EXTRAORDINARY TRANSACTIONS, ETC. In
the event (i) the Corporation establishes a record date to determine the holders
of any class of securities who are entitled to receive any dividend or other
distribution or who are entitled to vote at a meeting (or by written consent) in
connection with any of the transactions identified in clause (ii) hereof, or
(ii) any Liquidation Event (as defined in Section A.4), any Extraordinary
Transaction, QET or QPO (each as defined in Section A.6) or any other public
offering becomes reasonably likely to occur, the Corporation shall mail or cause
to be mailed by first class mail (postage prepaid) to each holder of Convertible
Preferred Stock (or each holder of Redeemable Preferred Stock, as applicable) at
least
16
<PAGE>
twenty (20) business days prior to such record date specified therein or the
expected effective date of any such transaction, whichever is earlier, a notice
specifying (A) the date of such record date for the purpose of such dividend or
distribution or meeting or consent and a description of such dividend or
distribution or the action to be taken at such meeting or by such consent, (B)
the date on which any such Liquidation Event, Extraordinary Transaction, QET,
QPO or other public offering is expected to become effective, and (C) the date
on which the books of the Corporation shall close or a record shall be taken
with respect to any such event.
(b) WAIVER OF NOTICE. The holder or holders of not less
than sixty-six and two-thirds percent in voting power of the outstanding shares
of Convertible Preferred Stock (or Redeemable Preferred Stock, as applicable)
may, at any time upon written notice to the Corporation, waive any notice
provisions specified herein for the benefit of such holders, and any such waiver
shall be binding upon the holders of all such securities.
(c) GENERAL. In the event that the Corporation provides any
notice, report or statement to any holder of Common Stock, the Corporation shall
at the same time provide a copy of any such notice, report or statement to each
holder of outstanding shares of Convertible Preferred Stock (or Redeemable
Preferred Stock, as applicable).
10. NO REISSUANCE OF CONVERTIBLE PREFERRED STOCK. No share or shares of
Convertible Preferred Stock acquired by the Corporation by reason of redemption,
purchase, conversion or otherwise shall be reissued, and all such shares shall
be canceled, retired and eliminated from the shares which the Corporation shall
be authorized to issue.
B. REDEEMABLE PREFERRED STOCK
1. DESIGNATION; RANKING. A total of 2,202,942 shares of the Corporation's
Preferred Stock shall be designated as Redeemable Preferred Stock, $.01 par
value per share (the "Redeemable Preferred Stock").
2. ELECTION OF DIRECTORS; VOTING.
(a) ELECTION OF DIRECTORS. The holders of outstanding shares of
Redeemable Preferred Stock shall, voting together as a separate class, be
entitled to elect one (1) Director. Such Director shall be the candidate
receiving the highest number of affirmative votes (with each holder of
Redeemable Preferred Stock entitled to cast one vote for or against each
candidate with respect to each share of Redeemable Preferred Stock held by such
holder) of the outstanding shares of Redeemable Preferred Stock (the "Redeemable
Preferred Stock Director Designee"), with votes cast against such candidate and
votes withheld having no legal effect. The election of the Redeemable Preferred
Stock Director Designee by the holders of the Redeemable Preferred Stock shall
occur (i) at the annual meeting of holders of capital stock, (ii) at any special
meeting of holders of capital stock, (iii) at any special meeting of holders of
Redeemable Preferred Stock called by holders of a majority of the outstanding
shares of Redeemable Preferred Stock or (iv) by the unanimous written consent of
holders of the outstanding shares of Redeemable Preferred Stock. Upon conversion
of the Convertible Preferred Stock, the Convertible Preferred Stock Director
Designee then serving on the Corporation's board of directors shall continue in
such capacity as the Redeemable Preferred
17
<PAGE>
Stock Designee. If at any time when any share of Redeemable Preferred Stock is
outstanding the Redeemable Preferred Stock Director Designee should cease to be
a Director for any reason, the vacancy shall only be filled by the vote or
written consent of holders of the outstanding shares of Redeemable Preferred
Stock, voting together as a separate class, in the manner and on the basis
specified above.
(b) VOTING GENERALLY. Except as set forth above with respect
to the election of the Redeemable Preferred Stock Director Designee, the holders
of Redeemable Preferred Stock shall not be entitled to vote on any matters
except to the extent otherwise required under the General Corporation Law of the
State of Delaware.
3. DIVIDENDS. The holders of outstanding shares of Redeemable Preferred
Stock shall be entitled to receive, out of any funds legally available therefor,
cumulative (non-compounding) dividends on the Redeemable Preferred Stock in
cash, at the rate per annum of three percent (3%) of $6.8091 per share (adjusted
appropriately for stock splits, stock dividends, recapitalizations and the like
with respect to the Redeemable Preferred Stock), or $.2043 per share of
Redeemable Preferred Stock as of the date this Certificate of Incorporation is
first filed with the Delaware Secretary of State (a "Redeemable Cumulative
Dividend"). Such dividends will accrue commencing as of the date of issuance of
the Redeemable Preferred Stock and be cumulative, to the extent unpaid, whether
or not they have been declared and whether or not there are profits, surplus or
other funds of the Corporation legally available for the payment of dividends.
Redeemable Cumulative Dividends shall become due and payable with respect to any
share of Redeemable Preferred Stock as provided in Section B.4 and Section B.5.
So long as any shares of Redeemable Preferred Stock are outstanding and the
Redeemable Cumulative Dividends have not been paid in full in cash: (A) no
dividend whatsoever shall be paid or declared, and no distribution shall be
made, on any capital stock of the Corporation ranking junior to the Redeemable
Preferred Stock; and (B) no shares of capital stock of the Corporation ranking
junior to the Redeemable Preferred Stock shall be purchased, redeemed or
acquired by the Corporation and no monies shall be paid into or set aside or
made available for a sinking fund for the purchase, redemption or acquisition
thereof. All numbers relating to the calculation of dividends pursuant to this
Section B.3 shall be subject to equitable adjustment in the event of any stock
split, combination, reorganization, recapitalization, reclassification or other
similar event involving a change in the Redeemable Preferred Stock.
4. LIQUIDATION.
(a) Upon any Liquidation Event, each holder of outstanding shares
of Redeemable Preferred Stock shall be entitled to be paid out of the assets of
the Corporation available for distribution to stockholders, whether such assets
are capital, surplus, or earnings as follows, and before any amount shall be
paid or distributed to the holders of Common Stock or of any other stock ranking
on liquidation junior to the Redeemable Preferred Stock, an amount in cash equal
to the sum of (i) the Redeemable Base Liquidation Amount (as determined in
Section B.4(b) below) multiplied by the number of shares of Redeemable Preferred
Stock held by such holder, plus (ii) any accumulated but unpaid dividends to
which such holder of outstanding shares of Redeemable Preferred Stock is
entitled pursuant to Section B.3 and B.5(d) hereof, plus (iii) any interest
accrued pursuant to Section B.5(c) to which such holder of outstanding shares of
Redeemable Preferred Stock is entitled, plus (iv) any accumulated but unpaid
dividends or other
18
<PAGE>
amounts due on or in respect of the shares of Convertible Preferred Stock held
by such holder prior to the conversion of such Convertible Preferred Stock (the
"Redeemable Liquidation Preference Amount"); PROVIDED, HOWEVER, that if, upon
any Liquidation Event, the amounts payable with respect to the Redeemable
Preferred Stock are not paid in full, the holders of the Redeemable Preferred
Stock shall share ratably in any distribution of assets in proportion to the
full respective preferential amounts to which they are entitled.
(b) The per share "Redeemable Base Liquidation Amount" shall
be determined according to (i) the closing date of the Liquidation Event, QPO,
QET, Extraordinary Transaction or public offering (each a "Measurement Event")
and (ii) (A) in connection with a QPO or public offering, the Price to Public
(as defined in Section A.6(b)) expressed as a multiple of the Conversion Price
or, (B) in connection with a Liquidation Event, QET, or Extraordinary
Transaction, the value (as determined in Section B.4(c) below, and excluding any
amount held in escrow or otherwise not actually received as of such closing
date), expressed as a multiple of the Conversion Price, of the cash, securities
or other consideration distributed, paid or delivered at closing with respect to
each share of Common Stock. The following schedule sets forth the Redeemable
Base Liquidation Amount at various data points. Between data points, the
Redeemable Base Liquidation Amount reduces in a linear fashion corresponding to
linear increases in either time (with a day being the smallest unit of
measurement), multiple or both. For example, if on June 18, 1999 the Price to
Public or per share value of such consideration were 2.5 times the Conversion
Price, the Redeemable Base Liquidation Amount per share would be $5.6743. By way
of further example, if on December 18, 1998 the Price to Public or per share
value of such consideration were 3.5 times the Conversion Price, the Redeemable
Base Liquidation Amount per share would be $0.00, and each holder would be
entitled to receive the amounts due under clauses (ii) through (iv) of Section
B.4(a) above.
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------------
Price to Public CLOSING DATE OF MEASUREMENT EVENT
or Value of
Consideration On or prior to September 18, 1999 On or after
Expressed as December 18, 1998 June 18, 2000
Multiple of
Conversion Price
--------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
2.0X $6.8091 $6.8091 $6.8091
--------------------------------------------------------------------------------------------------------------------
2.5X $3.4046 $6.8091 $6.8091
--------------------------------------------------------------------------------------------------------------------
3.0X $ 0.00 $3.4046 $6.8091
--------------------------------------------------------------------------------------------------------------------
3.5X $ 0.00 $ 0.00 $3.4046
--------------------------------------------------------------------------------------------------------------------
4.0X $ 0.00 $ 0.00 $ 0.00
--------------------------------------------------------------------------------------------------------------------
</TABLE>
(c) VALUATION OF DISTRIBUTION SECURITIES. For purposes of
determining the Redeemable Base Liquidation Amount, any securities or other
consideration to be delivered to the holders of the Common Stock upon completion
of any Measurement Event shall be valued as follows:
(i) If traded on a nationally recognized securities
exchange or inter- dealer quotation system, the value shall be deemed to be the
average of the closing prices of the
19
<PAGE>
securities on such exchange or system over the 30-day period ending three (3)
business days prior to the closing;
(ii) If traded over-the-counter, the value shall be deemed
to be the average of the closing bid prices over the 30-day period ending three
(3) business days prior to the closing; and
(iii) If there is no active public market, the value shall be
the fair market value thereof, as mutually determined by the Corporation and the
holders of not less than sixty-six and two-thirds percent in voting power of the
outstanding shares of Convertible Preferred Stock, provided that if the
Corporation and the holders of sixty-six and two-thirds percent in voting power
of the outstanding shares of Convertible Preferred Stock are unable to reach
agreement, then by independent appraisal by an investment banker hired and paid
by the Corporation, but reasonably acceptable to the holders of sixty-six and
two-thirds percent in voting power of the outstanding shares of Convertible
Preferred Stock.
5. REDEMPTION.
(a) REDEMPTION EVENTS.
(i) AUTOMATIC. Immediately upon and as of, and in all cases
subject to, the closing of a QPO or QET, the Corporation shall redeem all (and
not less than all) of the outstanding shares of Redeemable Preferred Stock at
the Redemption Price specified in Section B.5(b); provided that if the
Corporation shall receive the proceeds from such QPO or QET in next-day
available funds, such redemption shall occur on the first business day following
such closing.
(ii) OPTIONAL.
(A) UPON CERTAIN TRANSACTIONS. Upon the election of
the holder or holders of not less than sixty-six
and two-thirds percent in voting power of the
outstanding Redeemable Preferred Stock (or
Convertible Preferred Stock, as applicable,
proposing to convert the same in order to effect
a redemption of the Redeemable Preferred Stock
received upon such conversion hereunder), the
Corporation shall redeem all (and not less than
all, other than pursuant to Section B.5(c)
below) of the outstanding shares of Redeemable
Preferred Stock upon the occurrence of an
Extraordinary Transaction (as defined in Section
A.6) not constituting a QET or, other than a
public offering initiated by the holders of
Convertible Preferred Stock or Redeemable
Preferred stock, a public offering not
constituting a QPO.
20
<PAGE>
(B) NOTICE. An election pursuant to subparagraph (A)
of this Section B.5(a)(ii) shall be made by such
holders giving the Corporation and each other
holder of Redeemable Preferred Stock (or
Convertible Preferred Stock, as applicable) not
less that five (5) days prior written notice,
which notice shall set forth the date for such
redemption.
(b) REDEMPTION DATE; REDEMPTION PRICE. Upon the election of
the holders of not less than sixty-six and two-thirds percent in voting power of
the outstanding Redeemable Preferred Stock to cause the Corporation to redeem
the Redeemable Preferred Stock pursuant to Section B.5(a)(ii), all holders of
Redeemable Preferred Stock shall be deemed to have elected to cause the
Redeemable Preferred Stock to be so redeemed. Any date upon which a redemption
shall occur in accordance with Section B.5(a) shall be referred to as a
"Redemption Date." The redemption price for each share of Redeemable Preferred
Stock redeemed pursuant to this Section B.5 shall be the sum of (i) the
Redeemable Base Liquidation Amount (as set forth in Section B.4(b) above), plus
(ii) any accumulated but unpaid dividends on such share of Redeemable Preferred
Stock pursuant to Section B.3 and Section B.5(d) hereof, plus (iii) any interest
accrued with respect to such share of Convertible Preferred Stock pursuant to
Section B.5(c), plus (iv) any accumulated but unpaid dividends or other amounts
due on or in respect of the share of Convertible Preferred Stock from which such
share of Redeemable Preferred Stock was converted (the "Redemption Price").
Except as holders of sixty-six and two-thirds percent of the Redeemable
Preferred Stock shall otherwise agree, the Redemption Price shall be payable in
cash in immediately available funds to the respective holders of the Redeemable
Preferred Stock on the Redemption Date; PROVIDED, HOWEVER, that upon a QPO in
which the Price to Public (as defined in Section A.6(b)) is 1.25 times or
greater but less than two (2) times the Conversion Price, the portion of the
Redemption Price representing the Redeemable Base Liquidation Amount shall be
payable in a combination of cash and promissory notes, which promissory notes
will have a maturity date equal to one year after the Redemption Date, shall
bear interest at the per annum rate equal to the greater of (x) 12% or (y) 5%
over the Citibank prime rate published in the Wall Street Journal on the
Redemption Date and shall contain other customary terms and provisions
("Promissory Notes"), as set forth below, and the remaining portions of the
Redemption Price set forth in clause (ii) through (iv) of this Section B.5(b)
shall be paid in cash. The per share amount of cash and amount of Promissory
Notes is determined according to (i) the closing date of such offering and (ii)
the Price to Public expressed as a multiple of the Conversion Price. The per
share amount of cash and amount of Promissory Notes with respect to any multiple
of the Conversion Price between any of the data points in any column below shall
be determined by linear interpolation (for example, given a QPO on July 1, 1997
with a Price to Public equal to 1.625 times the Conversion Price, the Redemption
Price shall be payable $6.2417 in cash and $.5674 in Promissory Notes).
<TABLE>
<CAPTION>
----------------------------------------------------------- --------------------------------------------------------
Price to Public as Multiple of Conversion Combination of Cash
Price and Promissory Notes
------------------------------ ---------------------------- --------------------------- ----------------------------
On or Before After Cash Payment Promissory Note
June 18, 1998 June 18, 1998 Amount Per Share Amount Per Share
------------------------------ ---------------------------- --------------------------- ----------------------------
<S> <C> <C> <C>
1.75X 2.0X $6.8091 $0.00
------------------------------ ---------------------------- --------------------------- ----------------------------
1.5X 1.75X $5.6743 $1.1348
------------------------------ ---------------------------- --------------------------- ----------------------------
21
<PAGE>
1.25X 1.5X $4.5394 $2.2697
------------------------------ ---------------------------- --------------------------- ----------------------------
1.25X $4.5394 $2.2697
------------------------------ ---------------------------- --------------------------- ----------------------------
</TABLE>
Until the full Redemption Price, including any interest thereon, has
been paid to such holders in cash (or cash and Promissory Notes, as provided
above) for all shares of Redeemable Preferred Stock redeemed as of the
applicable Redemption Date: (A) no dividend whatsoever shall be paid or
declared, and no distribution shall be made, on any capital stock of the
Corporation; and (B) no shares of capital stock of the Corporation (other than
the Redeemable Preferred Stock in accordance with this Section B.5 or shares of
capital stock the repurchase of which is required pursuant to the provisions of
ERISA or any like statutory requirement) shall be purchased, redeemed or
acquired by the Corporation and no monies shall be paid into or set aside or
made available for a sinking fund for the purchase, redemption or acquisition
thereof.
(c) REDEMPTION PROHIBITED. If, at a Redemption Date, the
Corporation is prohibited under the General Corporation Law of the State of
Delaware from redeeming all shares of Redeemable Preferred Stock for which
redemption is required hereunder, then it shall redeem such shares on a pro-rata
basis among the holders of Redeemable Preferred Stock in proportion to the full
respective redemption amounts to which they are entitled hereunder to the extent
possible and shall redeem the remaining shares to be redeemed as soon as the
Corporation is not prohibited from redeeming some or all of such shares under
the General Corporation Law of the State of Delaware, subject to the last
paragraph of Section A.8. The shares of Redeemable Preferred Stock not redeemed
shall remain outstanding and entitled to all of the rights and preferences
provided in this Article IV. In the event that the Corporation fails to redeem
shares for which redemption is required pursuant to Section B.5, then during the
period from the applicable Redemption Date through the date on which such shares
are redeemed, the applicable Redemption Price of such shares plus additional
dividends that accumulate in respect of such shares under Section B.5(d) shall
bear interest at the per annum rate of the greater of (i) 12% or (ii) 5% over
the Citibank prime rate published in the Wall Street Journal on such Convertible
Preferred Redemption Date, compounded annually; PROVIDED, HOWEVER, that in no
event shall such interest exceed the maximum permitted rate of interest under
applicable law (the "Maximum Permitted Rate"). In the event that fulfillment of
any provision hereof results in such rate of interest being in excess of the
Maximum Permitted Rate, the obligation to be fulfilled shall automatically be
reduced to eliminate such excess; PROVIDED, HOWEVER, that any subsequent
increase in the Maximum Permitted Rate shall be retroactively effective to the
applicable Preferred Redemption Date.
(d) DIVIDEND AFTER REDEMPTION DATE. From and after a Redemption
Date, no shares of Redeemable Preferred Stock subject to redemption shall be
entitled to any further dividends pursuant to Section B.3 hereof; PROVIDED,
HOWEVER, that in the event that shares of Redeemable Preferred Stock are unable
to be redeemed and continue to be outstanding in accordance with Section B.5(c),
such shares shall continue to be entitled to dividends and interest thereon as
provided in Sections B.3 and B.5(c) until the date on which such shares are
actually redeemed by the Corporation.
(e) SURRENDER OF CERTIFICATES. Upon receipt of the applicable
Redemption Price by certified check or wire transfer, each holder of shares of
Redeemable Preferred Stock to
22
<PAGE>
be redeemed shall surrender the certificate or certificates representing such
shares to the Corporation, duly assigned or endorsed for transfer (or
accompanied by duly executed stock powers relating thereto), or shall deliver an
Affidavit of Loss with respect to such certificates at the principal executive
office of the Corporation or the office of the transfer agent for the Redeemable
Preferred Stock or such office or offices in the continental United States of an
agent for redemption as may from time to time be designated by notice to the
holders of Redeemable Preferred Stock (or the holders of Convertible Preferred
Stock, as applicable), and each surrendered certificate shall be canceled and
retired; PROVIDED, HOWEVER, that if the holder has exercised its redemption
right pursuant to Section B.5(a)(ii)(A), the holder shall not be required to
surrender said certificate(s) to the Corporation until said holder has received
a new stock certificate for those shares of Redeemable Preferred Stock not so
redeemed.
6. NOTICE. In the event that the Corporation provides or is required to
provide notice to any holder of Convertible Preferred Stock or any holder of
Common Stock in accordance with the provisions of this Certificate of
Incorporation (including the provisions of Section A.9) and/or the Corporation's
by-laws, the Corporation shall at the same time provide a copy of any such
notice to each holder of outstanding shares of Redeemable Preferred Stock.
7. NO REISSUANCE OF REDEEMABLE PREFERRED STOCK. No share or shares of
Redeemable Preferred Stock acquired by the Corporation by reason of redemption,
purchase, conversion or otherwise shall be reissued, and all such shares shall
be canceled, retired and eliminated from the shares which the Corporation shall
be authorized to issue.
8. COVENANTS. So long as any shares of Redeemable Preferred Stock shall
be outstanding the provisions of Section A.8 shall apply to all shares
of Redeemable Preferred Stock as if such shares were shares of Convertible
Preferred Stock.
C. COMMON STOCK
1. DESIGNATION; RANKING. A total of 20,000,000 shares of the
Corporation's common stock shall be designated as Common Stock, $.01 par value
per share (the "Common Stock").
2. VOTING.
(a) ELECTION OF DIRECTORS. The holders of Common Stock voting
together with the holders of outstanding Convertible Preferred Stock as a single
class, shall be entitled to elect all of the Directors of the Corporation, other
than the Directors who are subject to election by the holders of Convertible
Preferred Stock or Redeemable Preferred Stock as a separate class for so long as
any shares of Convertible Preferred Stock or Redeemable Preferred Stock remain
outstanding, and thereafter shall be entitled to elect all of the Directors of
the Corporation. Such Directors shall be the candidates receiving the highest
number of affirmative votes entitled to be cast (with each holder entitled to
cast one vote for or against each candidate with respect to each share held by
such holder), with votes cast against such candidates and votes withheld having
no legal effect. The election of such Directors shall occur at the annual
meeting of holders of capital stock or at any special meeting called and held in
accordance with the by-laws of the
23
<PAGE>
Corporation. If a person elected in accordance with the foregoing provisions
should cease to be a Director for any reason, the vacancy shall only be filled
by the vote or written consent of holders of the outstanding shares entitled to
vote for such Directors, in the manner and on the basis specified above.
(b) OTHER VOTING. The holder of each share of Common Stock shall
be entitled to one vote for each such share as determined on the record date for
the vote or consent of stockholders and shall vote together with the holders of
the Convertible Preferred Stock as a single class upon any items submitted to a
vote of stockholders, except as otherwise provided herein.
3. DIVIDENDS. Subject to the payment in full of all preferential
dividends to which the holders of the Convertible Preferred Stock and the
Redeemable Preferred Stock are entitled hereunder, the holders of Common Stock
shall be entitled to receive dividends out of funds legally available therefor
at such times and in such amounts as the Board of Directors may determine in its
sole discretion. The Board of Directors shall give the holders of Convertible
Preferred Stock twenty (20) days prior written notice of the declaration of any
such dividends, and the record date for such dividends shall not precede the
expiration of such twenty (20) day period.
4. LIQUIDATION. Upon any Liquidation Event, after the payment or
provision for payment of all debts and liabilities of the Corporation and all
preferential amounts to which the holders of Convertible Preferred Stock or
Redeemable Preferred Stock, as applicable, are entitled with respect to the
distribution of assets in liquidation, the holders of Common Stock (and, to the
extent applicable under Section A.4(a), Convertible Preferred Stock) shall be
entitled to share ratably in the remaining assets of the Corporation available
for distribution.
5. FRACTIONAL SHARES; UNCERTIFICATED SHARES. The Corporation may issue
fractional shares (up to five decimal places) of Common Stock. Fractional shares
shall be entitled to dividends (on a pro rata basis), and the holders of
fractional shares shall be entitled to all rights as stockholders of the
Corporation to the extent provided herein and under applicable law in respect of
such fractional shares. Shares of Common Stock, or fractions thereof, may, but
need not be represented by share certificates. Such shares, or fractions
thereof, not represented by share certificates ("Uncertificated Common Shares")
shall be registered in the stock records book of the Corporation. The
Corporation at any time at its sole option may deliver to any registered holder
of such shares share certificates to represent Uncertificated Common Shares
previously issued (or deemed issued) to such holder.
ARTICLE V
In furtherance of and not in limitation of powers conferred by statute,
it is further provided:
24
<PAGE>
1. Election of Directors need not be by written ballot unless the
by-laws of the Corporation so provide.
2. Except as set forth in Section A.8(c), the Board of Directors is
expressly authorized to adopt, amend or repeal the by-laws of the Corporation to
the extent specified therein.
ARTICLE VI
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. No action required to be taken or which
may be taken at any annual or special meeting of stockholders of the Corporation
may be taken, except at a duly convened meeting or by unanimous written consent
of the stockholders entitled to vote thereat with respect to the matters
submitted thereto, and the power of stockholders to act by other than unanimous
written consent without a meeting, is specifically denied, provided that the
foregoing shall not apply with respect to consent, approval or waiver rights of
the holders of the Convertible or Redeemable Preferred Stock set forth herein in
cases for which less than unanimous consent by the holders of such class of
securities is contemplated hereby.
ARTICLE VII
To the extent permitted by law, the books of the Corporation may be kept
outside the State of Delaware at such place or places as may be designated in
the by-laws of the Corporation or from time to time by its Board of Directors.
ARTICLE VIII
No person shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of his or her fiduciary duty as a Director of
the Corporation, except for liability (a) for any breach of the Director's duty
of loyalty to the Corporation or its stockholders, (b) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the General Corporation Law of the State of
Delaware, or (d) for any transaction from which the Director derived an improper
personal benefit. If the General Corporation Law of the State of Delaware is
amended after the effective date of this Amended and Restated Certificate of
Incorporation to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of each past or present
Director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended.
Any repeal or modification of this Article VIII by (a) the stockholders of
the Corporation or (b) an amendment to the General Corporation Law of the State
of Delaware (unless such statutory amendment specifically provides to the
contrary) shall not adversely affect any right or protection existing at the
time of such repeal or modification with respect to any acts or
25
<PAGE>
omissions occurring either before or after such repeal or modification, of a
person serving as a Director prior to or at the time of such repeal or
modification.
ARTICLE IX
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
executed by the undersigned duly authorized officer of the Corporation on this
29th day of August, 1997.
INVITROGEN CORPORATION
By: /s/ Lyle C. Turner
----------------------------------
Lyle C. Turner, President
26
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INVITROGEN CORPORATION
Invitrogen Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
FIRST: That at a meeting of the Board of Directors, resolutions were duly
adopted setting forth proposed amendments to the Certificate of Incorporation of
said corporation, declaring said amendments to be advisable and calling for a
written consent of the stockholders of said corporation for consideration
thereof. The resolutions setting forth the proposed amendments are as follows:
RESOLVED, that conditioned on the receipt of requisite stockholder
approval, the first paragraph of Article IV of the Corporation's Certificate of
Incorporation be amended and restated in its entirety to read as follows:
"The total number of shares of capital stock which the Corporation shall
have authority to issue is 56,405,884, of which (a) 6,405,884 shares shall be
preferred stock, par value $0.01 per share ("Preferred Stock"), and (b)
50,000,000 shares shall be common stock, par value $0.01 per share."
RESOLVED, that conditioned on the receipt of requisite stockholder
approval, Section C.1 of Article IV of the Corporation's Certificate of
Incorporation be amended and restated in its entirety as follows:
"1. DESIGNATION; RANKING. A total of 50,000,000 shares
of the Corporation's common stock shall be designated as Common Stock, $.01
par value per share (the "Common Stock")."
RESOLVED, that conditioned on the receipt of requisite stockholder
approval, Section C.2(a) of Article IV of the Corporation's Certificate of
Incorporation be amended and restated in its entirety as follows:
"(a) ELECTION OF DIRECTORS. The holders of Common Stock
voting together with the holders of outstanding Convertible Preferred Stock
as a single class, shall be entitled to elect all of the Directors of the
Corporation, other than the Directors who are subject to election by the
holders of Convertible Preferred Stock or Redeemable Preferred Stock as a
separate class for so long as any shares of Convertible Preferred Stock or
Redeemable Preferred Stock remain outstanding, and thereafter shall be
entitled to elect all of the Directors of the Corporation. Such Directors
shall be the candidates receiving the highest number
<PAGE>
of affirmative votes entitled to be cast (with each holder entitled to cast
one vote for or against each candidate with respect to each share held be
such holder), with votes cast against such candidates and votes withheld
having no legal effect. The election of such Directors shall occur at the
annual meeting of holders of capital stock or at any special meeting called
and held in accordance with the by-laws of the Corporation. Subject to the
rights of the holders of any series of Preferred Stock then outstanding,
newly created directorships resulting from any increase in the authorized
number of Directors or any vacancies in the Board of Directors resulting
from death, resignation or other cause (other than the removal from office
by a vote of the stockholders) may be filled only by a majority vote of the
Directors then in office, though less than a quorum. Directors so chosen
shall hold office for a term expiring at the next annual meeting of
stockholders at which the term of office to which they have been elected
expires, and until their respective successors are elected, except in the
case of death or resignation of any Director, in which case the Director so
chosen shall hold office for a term expiring at the next annual meeting of
stockholders. No decrease in the number of Directors constituting the Board
of Directors shall shorten the term of any incumbent Director."
RESOLVED, that conditioned on the receipt of requisite stockholder
approval, SECTION 1 OF ARTICLE V of the Certificate of Incorporation be amended
and restated in its entirety to read as follows:
"1. BOARD OF DIRECTORS.
(a) Election of Directors need not be by written ballot
unless the by-laws of the Corporation so provide.
(b) Subject to Section A.8(g) hereof, the number of
directors shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is
presented to the Board for adoption). Following the Corporation's first
QPO, the directors shall be divided into three classes with the term of
office of the first class to expire at the annual meeting of the
stockholders held in 2000; the term of office of the second class to expire
at the meeting of the stockholders held in 2001; the term of office of the
third class to expire at the annual meeting of the stockholders held in
2002; and thereafter for each such term to expire at each third succeeding
annual meeting of stockholders after such election. Subject to the rights
of the holders of any series of Preferred Stock then outstanding, a vacancy
resulting from the removal of a director by the stockholders as provided in
Article V, Section 3 below may be filled at a special meeting of the
stockholders held for that purpose."
2
<PAGE>
RESOLVED, that conditioned on the receipt of requisite stockholder
approval, SECTION 2 OF ARTICLE V of the Certificate of Incorporation be amended
and restated in its entirety to read as follows:
"2. Except as set forth in A.8(c), the Board of
Directors is expressly authorized to adopt, amend, or repeal the by-laws of
the Corporation to the extent specified therein. Following the
Corporation's first QPO, the by-laws of the Corporation may be amended or
repealed, and new by-laws may be adopted, by the affirmative vote of the
holders of at least 66-2/3% of the voting power of all the then outstanding
shares of the capital stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single class, or by a
vote of at least 66-2/3% of the number of directors of the Corporation then
authorized, in the manner prescribed by the laws of the State of Delaware."
RESOLVED, that conditioned on the receipt of requisite stockholder
approval, a new SECTION 3 SHALL BE ADDED TO ARTICLE V of the Certificate of
Incorporation to read in its entirety as follows:
"3. Following the Corporation's first QPO any director
or the entire Board of Directors may be removed from office before the
expiration of the applicable term of office only with cause."
RESOLVED, that conditioned on the receipt of requisite stockholder
approval, ARTICLE VI of the Certificate of Incorporation be amended and restated
in its entirety as follows:
"Meetings of the stockholders may be held within or
without the State of Delaware, as the by-laws may provide. Any action taken
by the written consent of the stockholders of the Corporation must include
the consent of the holder or holders of not less than a majority in voting
power of the outstanding shares of Convertible Preferred Stock (or
Redeemable Preferred Stock, as applicable). Following the closing of the
Corporation's first QPO, the stockholders may no longer take action by
written consent and may act only at an annual or special meeting."
RESOLVED, that conditioned on the receipt of requisite stockholder
approval, ARTICLE IX of the Certificate of Incorporation be amended and restated
in its entirety as follows:
"The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute,
PROVIDED, HOWEVER, that following the Corporation's first QPO the
affirmative vote of at least 66-2/3% of the voting
3
<PAGE>
power of all the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to amend or repeal Article V,
Article VI, Article VIII, or this Article IX. All rights conferred upon
stockholders herein are granted subject to this reservation."
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the consent of the stockholders of said corporation was duly solicited and
executed, pursuant to which the necessary number of shares as required by
statute and by said corporation's Certificate of Incorporation, as amended, were
voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be
signed and attested by its duly authorized officer this 15th day of January,
1999.
By: /s/ Joseph Fernandez
---------------------------------
Joseph Fernandez, Secretary
4
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
INVITROGEN CORPORATION
Invitrogen Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
FIRST: That at a meeting of the Board of Directors, resolutions were
duly adopted setting forth proposed amendments to the Certificate of
Incorporation of said corporation, declaring said amendments to be advisable and
calling for a written consent of the stockholders of said corporation for
consideration thereof. The resolutions setting forth the proposed amendments are
as follows:
RESOLVED, that conditioned on the receipt of requisite stockholder
approval, the first paragraph of Article IV of the Corporation's Certificate of
Incorporation be amended and restated in its entirety to read as follows:
"The total number of shares of capital stock which the
Corporation shall have authority to issue is 131,405,888, of which (a)
6,405,888 shares shall be preferred stock, par value $0.01 per share
("Preferred Stock"), and (b) 125,000,000 shares shall be common stock, par
value $0.01 per share."
RESOLVED, that conditioned on the receipt of requisite stockholder
approval, Section C.1 of Article IV of the Corporation's Certificate of
Incorporation be amended and restated in its entirety as follows:
"1. Designation; Ranking. A total of 125,000,000 shares of the
Corporation's common stock shall be designated as Common Stock, $.01 par
value per share (the "Common Stock").
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, the consent of the stockholders of said corporation was duly
solicited and executed, pursuant to which the necessary number of shares as
required by statute and by said corporation's Certificate of Incorporation, as
amended, were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation law of the State of
Delaware.
<PAGE>
IN WITNESS WHEREOF, said corporation has caused this certificate to be
signed and attested by its duly authorized officer this 13th day of September,
2000.
By: /s/ Warner Broaddus
-----------------------------------
Warner Broaddus, Secretary
2
