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Exhibit 3.1B
Resolved, that the Board of Directors proposes and declares it
advisable to further amend the Amended and Restated Certificate of Incorporation
of the Company (the "Amended Charter) by amending and restating the initial
section (a) of ARTICLE III, Capital Stock, in its entirety to read as follows:
"(a) The total number of shares of all classes of stock which the Corporation
has authority to issue is Twenty Nine Million Eight Hundred Ninety Four Thousand
Five Hundred (29,894,500), consisting of Twenty Five Million Five Hundred Twenty
Thousand (25,520,000) shares of Common Stock, par value $.01 per share (the
"Common Stock"), and Four Million Three Hundred Seventy-Four Thousand Five
Hundred (4,374,500) shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock"). The number of authorized shares of any such class or classes
may be increased or decreased (but not below the number of shares then
outstanding) by the affirmative vote of the holders of a majority of the
outstanding shares of the Corporation on the basis specified in Part B, Section
5 of this Article III. Upon the filing of this Amendment to the Amended and
Restated Certificate of Incorporation, every outstanding share of Common Stock
shall be split on the basis of 3.19 shares for each one (1) outstanding share of
Common Stock."
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CELLOMICS, INC.
CELLOMICS, INC. (the "Corporation"), a corporation organized under the
laws of the State of Delaware, hereby amends and restates its Certificate of
Incorporation, which was originally filed with the Secretary of State on January
8, 1998 and previously restated and filed with the Secretary of State on January
20, 1998 and February 23, 2000, so that the same shall read, in its entirety, as
follows:
ARTICLE I
NAME
1. The name of the Corporation is: CELLOMICS, INC.
2. The address of the Corporation's registered office in the State of
Delaware is 2711 Centerville Road, Suite 400, in the City of Wilmington, County
of New Castle, Delaware, 19808. The Corporation's registered agent at such
address is Corporation Service Company.
ARTICLE II
PURPOSE
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware, as amended from time to time.
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ARTICLE III
CAPITAL STOCK
(a) The total number of shares of all classes of stock which the
Corporation has authority to issue is Twelve Million Three Hundred Seventy Four
Thousand Five Hundred (12,374,500), consisting of Eight Million (8,000,000)
shares of Common Stock, par value $.01 per share (the "Common Stock"), and Four
Million Three Hundred Seventy-Four Thousand Five Hundred (4,374,500) shares of
Preferred Stock, par value $.01 per share (the "Preferred Stock"). The number of
authorized shares of any such class or classes may be increased or decreased
(but not below the number of shares then outstanding) by the affirmative vote of
the holders of a majority of the outstanding shares of the Corporation on the
basis specified in Part B, Section 5 of this Article III.
(b) Except as provided in the Amended and Restated Shareholders'
Agreement entered into in connection with the initial issuance of the Series B
Preferred Stock among the Corporation and the shareholders named therein, as may
be further amended from time to time, a copy of which is on file and available
for inspection at the offices of the Corporation (the "Shareholders'
Agreement"), and except for the rights referred to in Section 3(d)(i)(6) hereof
no shareholder shall be entitled as of right to purchase or subscribe for any
unissued shares of the Corporation whether now or hereafter authorized or
whether of a class now existing or of a class hereafter created, or to purchase
or subscribe for any bonds, certificates of indebtedness, debentures, or other
obligations convertible into shares of the Corporation.
(c) All shares of the Preferred Stock shall be identical except as to
the variations among different series authorized hereinafter. Subject to any
shareholder approval rights hereinafter set forth, the Board of Directors of the
Corporation is expressly authorized to establish series of the Preferred Stock,
to fix the number of shares therein, and to fix the voting powers, designation,
preferences and relative, participating, optional and other special rights and
qualifications, limitations or restrictions of each such series of the Preferred
Stock. Without limitation on the foregoing, the Board of Directors of the
Corporation may establish and designate a series of Preferred Stock of up to One
Million Six Hundred Fifty Thousand (1,650,000) shares to be known as "Series C
Preferred Stock" which shall have the voting powers, preferences and other
rights, qualifications, limitations and restrictions set forth herein.
A. COMMON STOCK
SECTION 1
VOTING RIGHTS
The holders of shares of Common Stock shall be entitled to one (1) vote
for each share so held with respect to each matter voted on by the shareholders
of the Corporation.
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SECTION 2
LIQUIDATION RIGHTS
Subject to the prior and superior right of the holders of Preferred
Stock, upon any liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of Common Stock, the holders of Series A Preferred
Stock, the holders of Series B Preferred Stock and the holders of Series C
Preferred Stock shall be entitled to receive all remaining assets of the
Corporation. Such assets shall be distributed ratably among the holders of
Common Stock, the holders of Series A Preferred Stock, the holders of Series B
Preferred Stock and the holders of Series C Preferred Stock on the basis of the
number of shares of Common Stock held by each of them and on the number of
shares of Common Stock into which each share of Series A Preferred Stock, Series
B Preferred Stock and Series C Preferred Stock is then convertible.
SECTION 3
DIVIDENDS
Dividends may be paid on the Common Stock as and when declared by the
Board of Directors, subject, however, to the prior and superior rights of the
holders of Preferred Stock.
B. PREFERRED STOCK
The rights, preferences, privileges and restrictions granted to and
imposed upon the Preferred Stock are as follows:
SECTION 1
DESIGNATION
A series of Preferred Stock shall be designated and known as "Series A
Preferred Stock," and the number of authorized shares constituting such series
shall be Two Million Twenty-Four Thousand Five Hundred (2,024,500). A series of
Preferred Stock shall be designated and known as "Series B Preferred Stock," and
the number of authorized shares constituting such series shall be Seven Hundred
Thousand (700,000). A series of Preferred Stock shall be designated and known as
"Series C Preferred Stock," and the number of authorized shares constituting
such series shall be One Million Six Hundred Fifty Thousand (1,650,000).
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SECTION 2
LIQUIDATION RIGHTS
(a) Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, each holder of shares of Series A Preferred
Stock, each holder of shares of Series B Preferred Stock and each holder of
shares of Series C Preferred Stock shall be entitled to receive, prior and in
preference to any distribution of any of the assets or surplus funds of the
Corporation to the holders of the Common Stock and any other series of Preferred
Stock which is junior to the Series A Preferred Stock, Series B Preferred Stock
and Series C Preferred Stock, by reason of his, her or its ownership thereof, an
amount per share equal to (i) in the case of the Series A Preferred Stock, $5.62
(plus any dividends which, pursuant to Section 6 hereof, have accrued but remain
unpaid at such time), (ii) in the case of the Series B Preferred Stock, $12.07
(plus any dividends which, pursuant to Section 6 hereof, have accrued but remain
unpaid at such time), and (iii) in the case of Series C Preferred Stock, $18.23
(plus any dividends which, pursuant to Section 6 hereof, have accrued but remain
unpaid at such time). After the payment to such holders of such preferential
amounts, any remaining assets and surplus funds shall be distributed to the
holders of Common Stock, the holders of Series A Preferred Stock, the holders of
Series B Preferred Stock and the holders of Series C Preferred Stock in
accordance with Section 2 of Part A of this Article III.
(b) Pro Rata Distribution. If the assets or surplus funds to be
distributed to (i) the holders of the Series A Preferred Stock under Section
2(a), (ii) the holders of the Series B Preferred Stock under Section 2(a), (iii)
the holders of the Series C Preferred Stock under Section 2(a), and (iv) the
holders of any other series of Preferred Stock ranking on a parity with the
Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock
are insufficient to permit the payment to such holders of their full
preferential amount, the assets and surplus funds legally available for
distribution shall be distributed ratably among (i) the holders of the Series A
Preferred Stock (to the extent provided in Section 2(a) hereof), (ii) the
holders of the Series B Preferred Stock (to the extent provided in Section 2(a)
hereof), (iii) the holders of the Series C Preferred Stock (to the extent
provided in Section 2(a) hereof), and (iv) the holders of such other series of
Preferred Stock in proportion to the full preferential amount each such holder
is otherwise entitled to receive.
(c) Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock Priority. All of the preferential amounts to be paid to (i) the
holders of the Series A Preferred Stock under this Section 2, (ii) the holders
of the Series B Preferred Stock under this Section 2, (iii) the holders of the
Series C Preferred Stock under this Section 2, and (iv) the holders of any other
series of Preferred Stock ranking on a parity with the Series A Preferred Stock,
Series B Preferred Stock and the Series C Preferred Stock shall be paid or set
apart for payment before the payment or setting apart for payment of any amount
for, or the distribution of any assets or surplus funds of the Corporation to,
the holders of the Common Stock and any other series of Preferred Stock which is
junior to the Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock in connection with such liquidation, dissolution or winding up.
(d) Consolidation, Merger, Sale of Assets. A consolidation or merger of
the Corporation with or into another corporation, or a conveyance of all or
substantially all of the assets of the
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Corporation, shall be regarded as a liquidation, dissolution or winding up of
the affairs of the Corporation within the meaning of Article III(A)(2) and
Section 2(a) of this Article III(B) unless, (i) upon consummation of such
consolidation or merger or sale of assets, the holders of voting securities of
the Corporation own directly or indirectly more than fifty percent (50%) of the
voting power to elect directors of the consolidated or surviving or acquiring
corporation or (ii) with respect to the Series A Preferred Stock and the Series
B Preferred Stock, the holders of at least a majority of the voting power of all
the outstanding shares of Series A Preferred Stock and Series B Preferred Stock
(voting together as a separate class) and, with respect to the Series C
Preferred Stock, the holders of at least a majority of the voting power of all
the outstanding shares of the Series C Preferred Stock (voting as a separate
class), determine otherwise no later than thirty (30) business days prior to the
effective date of such event, provided, however, that each holder of Series A
Preferred Stock, each holder of Series B Preferred Stock, and each holder of
Series C Preferred Stock shall have the right to elect the benefits of the
provisions of Section 3(d)(vii) hereof in lieu of receiving payment in any such
deemed liquidation, dissolution or winding up of the Corporation pursuant to
this Section 2, notice of which election shall be submitted in writing to the
Corporation at its principal offices no later than five (5) business days before
the effective date of such event. Any securities to be delivered to the holders
of the Series A Preferred Stock, the holders of the Series B Preferred Stock and
the holders of Series C Preferred Stock upon the closing of any such
consolidation, merger, sale or transfer shall be valued as follows:
A. For securities not subject to restrictions on transfer
under an investment letter or other similar restrictions on free marketability:
(i) If traded on a securities exchange, the value shall be
deemed to be the average of the closing prices of such securities on
such exchange over the thirty (30) day period ending three (3) days
prior to such closing;
(ii) If actively traded over-the-counter, the value shall be
deemed to be the average of the closing bid or sale prices (whichever
are applicable) over the thirty (30) day period ending three (3) days
prior to such 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 at least two-thirds (2/3's) of the
voting power of all then outstanding shares of Series A Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock (voting
together as a separate class) which would be entitled to receive such
securities or the same type of securities.
B. The method of valuation of securities subject to an
investment letter or other restrictions on free marketability shall be to make
an appropriate discount from the market value determined as above in subsection
2A to reflect the approximate fair market value thereof, as mutually determined
by the Corporation and the holders of at least two-thirds (2/3's) of the voting
power of all then outstanding shares of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock (voting together as a separate
class) which would be entitled to receive such securities or the same type of
securities.
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SECTION 3
CONVERSION
The holders of the Series A Preferred Stock, the holders of the Series
B Preferred Stock and the holders of Series C Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock shall be convertible, without the
payment of any additional consideration by the holder thereof, at the option of
the holder thereof, at the office of the Corporation or any transfer agent for
the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred
Stock, into such number of fully paid and nonassessable shares of Common Stock
as is determined (i) in the case of the Series A Preferred Stock, by dividing
$5.62 by the Series A Conversion Price, determined as hereinafter provided, in
effect at the time of conversion, (ii) in the case of the Series B Preferred
Stock, by dividing $12.07 by the Series B Conversion Price, determined as
hereinafter provided, in effect at the time of conversion, and (iii) in the case
of the Series C Preferred Stock, by dividing $18.23 by the Series C Conversion
Price, determined as hereinafter provided, in effect at the time of conversion.
If more than one share of the Series A Preferred Stock, Series B Preferred Stock
or Series C Preferred Stock shall be surrendered for conversion at the same time
by the same holder of record, the number of full shares that shall be issuable
upon the conversion thereof shall be computed on the basis of the total number
of shares of the Series A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock so surrendered. Each share of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock shall be so convertible at any time
after the date of issuance of such share. The price at which shares of Common
Stock shall be deliverable upon conversion of Series A Preferred Stock without
the payment of any additional consideration by the holder thereof (the "Series A
Conversion Price") shall initially be $5.62 per share of Common Stock. The price
at which shares of Common Stock shall be deliverable upon conversion of Series B
Preferred Stock without the payment of any additional consideration by the
holder thereof (the "Series B Conversion Price") shall initially be $12.07 per
share of Common Stock. The price at which shares of Common Stock shall be
deliverable upon conversion of Series C Preferred Stock without the payment of
any additional consideration by the holder thereof (the "Series C Conversion
Price") shall initially be $18.23 per share of Common Stock. The Series A
Conversion Price, the Series B Conversion Price and the Series C Conversion
Price are collectively referred to as the "Conversion Prices." Such initial
Conversion Prices shall be subject to adjustment, in order to adjust the number
of shares of Common Stock into which the Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock are convertible, as hereinafter
provided.
(b) Automatic Conversion.
(i) At the Option of the Corporation.
(1) Series A Preferred Stock. Each share of Series A
Preferred Stock shall, at the Corporation's option, be
converted into shares of Common Stock at the
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then effective Series A Conversion Price upon the closing of a
firm commitment underwritten public offering pursuant to an
effective registration statement under the Securities Act of
1933, as amended, covering the offer and sale of Common Stock
for the account of the Corporation to the public at an
aggregate offering price resulting in gross proceeds to the
Corporation as seller of not less than $15,000,000, before
deducting underwriting commissions, provided that the offering
price per share of Common Stock is not less than three (3)
times the original Series A Conversion Price (the "Series A
Automatic Conversion Price"). The Corporation may exercise its
option pursuant to this Section 3(b)(i)(1) only with respect
to all, and not less than all, outstanding shares of Series A
Preferred Stock. In the event the Corporation elects to cause
the conversion of Series A Preferred Stock pursuant to this
Section 3(b)(i)(1), (i) it shall give to each holder of Series
A Preferred Stock notice of such conversion at least fifteen
(15) days prior to the anticipated closing of such a public
offering, and (ii) the party or parties entitled to receive
the Common Stock issuable upon such conversion of the Series A
Preferred Stock shall not be deemed to have converted their
Series A Preferred Stock until immediately prior to the
closing of such offering.
(2) Series B Preferred Stock. Each share of Series B
Preferred Stock shall, at the Corporation's option, be
converted into shares of Common Stock at the then effective
Series B Conversion Price upon the closing of a firm
commitment underwritten public offering pursuant to an
effective registration statement under the Securities Act of
1933, as amended, covering the offer and sale of Common Stock
for the account of the Corporation to the public at an
aggregate offering price resulting in gross proceeds to the
Corporation as seller of not less than $20,000,000, before
deducting underwriting commissions, provided that the offering
price per share of Common Stock is not less than two and
one-half (2.5) times the original Series B Conversion Price
(the "Series B Automatic Conversion Price"). The Corporation
may exercise its option pursuant to this Section 3(b)(i)(2)
only with respect to all, and not less than all, outstanding
shares of Series B Preferred Stock and only if the Corporation
has concurrently therewith or prior thereto exercised its
option pursuant to Section 3(b)(i)(1) with respect to all (and
not less than all) outstanding shares of Series A Preferred
Stock. In the event the Corporation elects to cause the
conversion of Series B Preferred Stock pursuant to this
Section 3(b)(i)(2), (i) it shall give to each holder of Series
B Preferred Stock notice of such conversion at least fifteen
(15) days prior to the anticipated closing of such a public
offering, and (ii) the party or parties entitled to receive
the Common Stock issuable upon such conversion of the Series B
Preferred Stock shall not be deemed to have converted their
Series B Preferred Stock until immediately prior to the
closing of such offering.
(3) Series C Preferred Stock. Each share of Series C
Preferred Stock shall, at the Corporation's option, be
converted into shares of Common Stock at the then effective
Series C Conversion Price upon the closing of a firm
commitment underwritten public offering pursuant to an
effective registration statement under the Securities Act of
1933, as amended, covering the offer and sale of Common Stock
for
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the account of the Corporation to the public at an aggregate
offering price resulting in gross proceeds to the Corporation
as seller of not less than $20,000,000, before deducting
underwriting commissions, provided that the offering price per
share of Common Stock is not less than two (2) times the
original Series C Automatic Conversion Price (the "Series C
Automatic Conversion Price"). The Corporation may exercise its
option pursuant to this Section 3(b)(i)(3) only with respect
to all, and not less than all, outstanding shares of Series C
Preferred Stock and only if the Corporation has concurrently
therewith or prior thereto exercised its option pursuant to
Section 3(b)(i)(1) and (2) with respect to all (and not less
than all) outstanding shares of Series A Preferred Stock and
Series B Preferred Stock. In the event the Corporation elects
to cause the conversion of Series C Preferred Stock pursuant
to this Section 3(b)(i)(3), (i) it shall give to each holder
of Series C Preferred Stock notice of such conversion at least
fifteen (15) days prior to the anticipated closing of such a
public offering, and (ii) the party or parties entitled to
receive the Common Stock issuable upon such conversion of the
Series C Preferred Stock shall not be deemed to have converted
their Series C Preferred Stock until immediately prior to the
closing of such offering.
(ii) At the Option of a Supermajority of the Holders of Series
A Preferred Stock, Series B Preferred Stock and Series C Preferred
Stock. Each share of Series A Preferred Stock and Series B Preferred
Stock shall, upon the vote of the holders of at least two-thirds
(2/3's) of the voting power of all then outstanding shares of Series A
Preferred Stock and Series B Preferred Stock (voting together as a
separate class), be converted into shares of Common Stock at the then
effective Series A Conversion Price or Series B Conversion Price (as
the case may be). Each share of Series C Preferred Stock shall, upon
vote of the holders of at least two-thirds (2/3) of the voting power of
all then outstanding shares of Series C Preferred Stock (voting as a
separate class), be converted into shares of Common Stock at the then
effective Series C Conversion Price. Such conversion shall occur, and
the party or parties entitled to receive the Common Stock issuable upon
such conversion of the Series A Preferred Stock, the Series B Preferred
Stock and the Series C Preferred Stock shall be deemed to have
converted their shares of Series A Preferred Stock, Series B Preferred
Stock and/or Series C Preferred Stock, on the date specified by such
vote, which shall be no earlier than the fifth (5th) business day after
the date of such vote.
(c) Mechanics of Conversion. Each party who holds of record Series A
Preferred Stock, Series B Preferred Stock or Series C Preferred Stock at the
time of any conversion (whether optional or mandatory) shall be entitled to any
dividends which, pursuant to Section 6 hereof, have accrued but remain unpaid at
such time. Such dividends shall be paid to all such holders within thirty (30)
days of the conversion. No fractional shares of Common Stock shall be issued
upon conversion of the Series A Preferred Stock, Series B Preferred Stock or
Series C Preferred Stock. In lieu of any fractional share to which the holder
would otherwise be entitled, the Corporation shall pay cash equal to such
fraction multiplied by the then effective Series A Conversion Price, Series B
Conversion Price or Series C Conversion Price (as the case may be). Except in
the case of a conversion at the option of the Corporation pursuant to Section
3(b), before any holder of Series A Preferred Stock, Series B Preferred Stock or
Series C Preferred Stock shall be entitled to convert the
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same into full shares of Common Stock, he, she or it shall surrender the
certificate or certificates therefor, duly endorsed, at the office of the
Corporation or of any transfer agent for the Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock, and shall give written notice to
the Corporation at such office that he, she or it elects to convert the same.
Upon the date of a conversion pursuant to Section 3(b), any party entitled to
receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder of such shares of Common Stock on
such date, whether or not such holder has surrendered the certificate or
certificates for such holder's shares of Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock. A holder surrendering his, her or
its certificate or certificates shall notify the Corporation of his, her or its
name or the name or names of his, her or its nominees in which he, she or it
wishes the certificate or certificates for shares of Common Stock to be issued.
If the person or persons in whose name any certificate for shares of Common
Stock issuable upon such conversion shall be other than the registered holder or
holders of the Series A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock being converted, the Corporation's obligation under this Section
3(c) shall be subject to the payment and satisfaction by such registered holder
or holders of any and all transfer taxes in connection with the conversion and
issuance of such Common Stock. The Corporation shall, as soon as practicable
thereafter (and, in any event, within ten (10) days of such surrender), issue
and deliver at such office to such holder of Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock, or to his, her or its nominee or
nominees, a certificate or certificates for the number of shares of Common Stock
to which he, she or it shall be entitled as aforesaid, together with cash in
lieu of any fraction of a share. Except in the case of a conversion pursuant to
Section 3(b), such conversion shall be deemed to have been made immediately
prior to the close of business on the date of such surrender of the shares of
Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock
to be converted, and the party or parties entitled to receive the shares of
Common Stock issuable upon conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock on such date.
(d) Adjustments to Conversion Prices for Diluting Issues:
(i) Special Definitions. For purposes of this Section 3(d),
the following definitions shall apply:
(1) "Option" shall mean options, warrants or other
rights to subscribe for, purchase or otherwise acquire either
Common Stock or Convertible Securities.
(2) "Original Series A Issue Date" shall mean the
first date on which a share of Series A Preferred Stock shall
have been issued.
(3) "Original Series B Issue Date" shall mean the
first date on which a share of Series B Preferred Stock shall
have been issued.
(4) "Original Series C Issue Date" shall mean the
first date on which a share of Series C Preferred Stock shall
have been issued.
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(5) "Convertible Securities" shall mean any evidences
of indebtedness, shares (other than Common Stock, Series A
Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock outstanding as of the date of this Amended and
Restated Certificate of Incorporation) of capital stock or
other securities directly or indirectly convertible into or
exchangeable for Common Stock.
(6) "Additional Shares of Common Stock" shall mean
any or all shares of Common Stock issued (or, pursuant to
Section 3(d)(iii), deemed to be issued) by the Corporation
after the Original Series C Issue Date, other than shares of
Common Stock issued or issuable:
(A) upon conversion of shares of Series A Preferred
Stock, Series B Preferred Stock or Series C Preferred
Stock; or
(B) (i) upon exercise of warrants to purchase Common
Stock or Preferred Stock which were issued or for
which an agreement to issue or giving rise to the
obligation to issue was entered into prior to the
date of filing of this Amended and Restated
Certificate of Incorporation with the Delaware
Secretary of State (the "Initial Filing Date") or
(ii) to Beckman Coulter, Inc. pursuant to the
anti-dilution rights created in that certain Common
Stock Purchase Agreement dated June 9, 2000, a copy
of which is on file and available for inspection at
the offices of the Corporation, pursuant to which the
Corporation sold shares of Common Stock to Beckman
Coulter, Inc.; or
(C) to employees, officers or directors of, or
consultants to, the Corporation pursuant to any stock
plan approved by the holders of at least a majority
of the outstanding Preferred Stock in respect of any
stock option plan adopted prior to the Initial Filing
Date or by the holders of at least a majority of the
outstanding Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock (voting
together as a separate class) in respect of any stock
option plan adopted on or after the Initial Filing
Date, provided that the number of shares so issued or
issuable between the Initial Filing Date and the
earlier of (i) the first anniversary of the original
Series C Issue Date, or (ii) upon the closing of a
firm commitment underwritten public offering pursuant
to an effective registration statement under the
Securities Act of 1933, as amended, covering the
offer and sale of Common Stock for the account of the
Corporation to the public at an aggregate offering
price and price per share sufficient to trigger
conversion under Section 3(b)(i)(3) above shall not
exceed 893,057 (as adjusted for stock splits,
combinations and other similar events affecting the
Common Stock), plus such additional number of shares
of Common Stock as may be approved by the holders of
at least a majority of the outstanding Series A
Preferred Stock, Series B Preferred Stock and Series
C Preferred Stock (voting together as a separate
class) (the "Reserved Employee Shares"); all of such
plans, options and grants collectively referred to as
the "Plans"; or
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(D) to financial institutions or other lenders in
connection with borrowing or lease financing
arrangements of the Company, provided that such
issuances are unanimously approved by the Board of
Directors; or
(E) to Carl Zeiss Holding Co., Inc., pursuant to its
anti-dilution rights existing as of the Original
Series A Issue Date; or
(F) upon the closing of a firm commitment underwritten
public offering pursuant to an effective registration
statement under the Securities Act of 1933, as
amended, covering the offer and sale of Common Stock
for the account of the Corporation to the public.
(ii) No Adjustment of Conversion Price.
(1) Series A Preferred Stock. Subject to the
provisions of Section 3(d)(iii)(2) and
Section 3(d)(vi) below, no adjustment in the
number of shares of Common Stock into which
any share of Series A Preferred Stock is
convertible shall be made, by adjustment in
the Series A Conversion Price in respect of
the issuance of Additional Shares of Common
Stock or otherwise, unless the consideration
per share for an Additional Share of Common
Stock issued (or deemed to be issued
pursuant to Section 3(d)(iii)) by the
Corporation is less than the Series A
Conversion Price in effect on the date of,
and immediately prior to, the issue of such
Additional Share of Common Stock.
(2) Series B Preferred Stock. Subject to the
provisions of Section 3(d)(iii)(2) and
Section 3(d)(vi) below, no adjustment in the
number of shares of Common Stock into which
any share of Series B Preferred Stock is
convertible shall be made, by adjustment in
the Series B Conversion Price in respect of
the issuance of Additional Shares of Common
Stock or otherwise, unless the consideration
per share for an Additional Share of Common
Stock issued (or deemed to be issued
pursuant to Section 3(d)(iii)) by the
Corporation is less than the Series B
Conversion Price in effect on the date of,
and immediately prior to, the issue of such
Additional Share of Common Stock.
(3) Series C Preferred Stock. Subject to the
provisions of Section 3(d)(iii)(2) and
Section 3(d)(vi) below, no adjustment in the
number of shares of Common Stock into which
any share of Series C Preferred Stock is
convertible shall be made, by adjustment in
the Series C Conversion Price in respect of
the issuance of Additional Shares of Common
Stock or otherwise, unless the consideration
per share for an Additional Share of Common
Stock issued (or deemed to be issued
pursuant to Section 3(d)(iii)) by the
Corporation is less than the Series C
Conversion Price in effect on the date of,
and immediately prior to, the issue of such
Additional Share of Common Stock.
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<PAGE> 13
(iii) Issue of Securities Deemed Issue of Additional Shares of
Common Stock.
(1) Options and Convertible Securities. In the event
the Corporation at any time or from time to time after the
Original Series C Issue Date shall issue any Options or
Convertible Securities or shall fix a record date for the
determination of holders of any class of securities entitled
to receive any such Options or Convertible Securities, then
the maximum number of shares (as set forth in the instrument
relating thereto without regard to any provisions contained
therein for a subsequent adjustment of such number) of Common
Stock issuable upon the exercise of such Options or, in the
case of Convertible Securities and Options therefor, the
conversion or exchange of such Convertible Securities, shall
be deemed to be Additional Shares of Common Stock issued as of
the time of such issue or, in case such a record date shall
have been fixed, as of the close of business on such record
date, provided that such Additional Shares of Common Stock
shall not be deemed to have been issued unless (i) with
respect to the dilution adjustment for Series A Preferred
Stock, the consideration per share (determined pursuant to
Section 3(d)(v) hereof) of such Additional Shares of Common
Stock would be less than the Series A Conversion Price in
effect on the date of and immediately prior to such issue, or
such record date, as the case may be, (ii) with respect to the
dilution adjustment for Series B Preferred Stock, the
consideration per share (determined pursuant to Section
3(d)(v) hereof) of such Additional Shares of Common Stock
would be less than the Series B Conversion Price in effect on
the date of and immediately prior to such issue, or such
record date, as the case may be, or (iii) with respect to the
dilution adjustment for Series C Preferred Stock, the
consideration per share (determined pursuant to Section
3(d)(v) hereof) of such Additional Shares of Common Stock
would be less than the Series C Conversion Price in effect on
the date of and immediately prior to such issue, or such
record date, as the case may be, and provided, further, that
in any such case in which Additional Shares of Common Stock
are deemed to be issued:
(A) no further adjustment in the Conversion Prices shall
be made upon the subsequent issue of Convertible
Securities or shares of Common Stock upon the
exercise of such Options or conversion or exchange of
such Convertible Securities;
(B) if such Options or Convertible Securities by their
terms provide, with the passage of time, pursuant to
any provisions designed to protect against dilution,
or otherwise, for any increase or decrease in the
consideration payable to the Corporation, or increase
or decrease in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange
thereof, the Conversion Prices computed upon the
original issue thereof (or upon the occurrence of a
record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such
increase or decrease becoming effective, be
recomputed to reflect such increase or
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<PAGE> 14
decrease insofar as it affects such Options or the
rights of conversion or exchange under such
Convertible Securities;
(C) upon the expiration of any such Options or any rights
of conversion or exchange under such Convertible
Securities which shall not have been exercised, the
Conversion Prices computed upon the original issue
thereof (or upon the occurrence of a record date with
respect thereto), and any subsequent adjustments
based thereon, shall, upon such expiration, be
recomputed as if such Options or Convertible
Securities, as the case may be, were never issued;
(D) no readjustment pursuant to clause (B) or (C) above
shall have the effect of:
(x) increasing the Series A Conversion Price to
an amount which exceeds the lower of (i) the
Series A Conversion Price on the original
date on which an adjustment was made
pursuant to this Section 3(d)(iii)(l), or
(ii) the Series A Conversion Price that
would have resulted from any issuance of
Additional Shares of Common Stock between
such original adjustment date and the date
on which a readjustment is made pursuant to
clause (B) or (C) above, or
(y) increasing the Series B Conversion Price to
an amount which exceeds the lower of (i) the
Series B Conversion Price on the original
date on which an adjustment was made
pursuant to this Section 3(d)(iii)(1), or
(ii) the Series B Conversion Price that
would have resulted from any issuance of
Additional Shares of Common Stock between
such original adjustment date and the date
on which a readjustment is made pursuant to
clause (B) or (C) above, or
(z) increasing the Series C Conversion Price to
an amount which exceeds the lower of (i) the
Series C Conversion Price on the original
date on which an adjustment was made
pursuant to this Section 3(d)(iii)(1), or
(ii) the Series C Conversion Price that
would have resulted from any issuance of
Additional Shares of Common Stock between
such original adjustment date and the date
on which a readjustment is made pursuant to
clause (B) or (C) above;
(E) in the case of any Options which expire by their
terms not more than thirty (30) days after the date
of issue thereof, no adjustment of the Conversion
Prices shall be made until the expiration or exercise
of all such Options, whereupon such adjustment shall
be made in the same manner provided in clause (C)
above; and
(F) if such record date shall have been fixed and such
Options or Convertible Securities are not issued on
the date fixed therefor, the adjustment or
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<PAGE> 15
adjustments previously made in the Conversion Prices
which became effective on such record date shall be
canceled as of the close of business on such record
date, and thereafter the Conversion Prices shall be
adjusted pursuant to this Section 3(d)(iii) as of the
actual date of their issuance.
(2) Stock Dividends, Stock Distributions and
Subdivisions. In the event the Corporation at any time or from
time to time after the Original Series C Issue Date shall
declare or pay any dividend or make any other distribution on
the Common Stock payable in Common Stock, or effect a
subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
Common Stock), then and in any such event, Additional Shares
of Common Stock shall be deemed to have been issued:
(A) in the case of any such dividend or distribution,
immediately after the close of business on the record
date for the determination of holders of any class of
securities entitled to receive such dividend or
distribution, or
(B) in the case of any such subdivision, at the close of
business on the date immediately prior to the date
upon which such corporate action becomes effective.
If such record date shall have been fixed and such
dividend shall not have been fully paid on the date
fixed for the payment thereof, the adjustments
previously made in the Conversion Prices which became
effective on such record date shall be canceled as of
the close of business on such record date, and
thereafter the Conversion Prices shall be adjusted
pursuant to this Section 3(d)(iii) as of the time of
actual payment of such dividend.
(iv) Adjustment of Conversion Prices Upon Issuance of
Additional Shares of Common Stock.
(1) Adjustment of Series A Conversion Price. In the
event the Corporation shall issue Additional Shares of Common
Stock (including Additional Shares of Common Stock deemed to
be issued with respect to the dilution adjustment for Series A
Preferred Stock pursuant to Section 3(d)(iii)(1), but
excluding Additional Shares of Common Stock deemed to be
issued pursuant to Section 3(d)(iii)(2), which event is dealt
with in Section 3(d)(vi) hereof) without consideration or for
a consideration per share less than the Series A Conversion
Price in effect on the date of and immediately prior to such
issue, then such Series A Conversion Price shall be reduced,
concurrently with such issue, to the price determined by
dividing (i) an amount equal to the sum of (a) the number of
shares of Common Stock outstanding immediately prior to such
issue or sale and the number of shares of Common Stock
issuable upon conversion of all Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock and any
Convertible Securities multiplied by the then existing Series
A Conversion Price and
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<PAGE> 16
(b) the consideration, if any, received by the Corporation
upon such issue or sale, by (ii) the total number of shares of
Common Stock outstanding immediately after such issue or sale
and the number of shares of Common Stock issuable upon
conversion of all Series A Preferred Stock, Series B Preferred
Stock and Series C Preferred Stock and any Convertible
Securities.
(2) Adjustment of Series B Conversion Price. In the
event the Corporation shall issue Additional Shares of Common
Stock (including Additional Shares of Common Stock deemed to
be issued with respect to the dilution adjustment for Series B
Preferred Stock pursuant to Section 3(d)(iii)(1), but
excluding Additional Shares of Common Stock deemed to be
issued pursuant to Section 3(d)(iii)(2), which event is dealt
with in Section 3(d)(vi) hereof) without consideration or for
a consideration per share less than the Series B Conversion
Price in effect on the date of and immediately prior to such
issue, then such Series B Conversion Price shall be reduced,
concurrently with such issue, to the price determined by
dividing (i) an amount equal to the sum of (a) the number of
shares of Common Stock outstanding immediately prior to such
issue or sale and the number of shares of Common Stock
issuable upon conversion of all Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock and any
Convertible Securities multiplied by the then existing Series
B Conversion Price and (b) the consideration, if any, received
by the Corporation upon such issue or sale, by (ii) the total
number of shares of Common Stock outstanding immediately after
such issue or sale and the number of shares of Common Stock
issuable upon conversion of all Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock and any
Convertible Securities.
(3) Adjustment of Series C Conversion Price. In the
event the Corporation shall issue Additional Shares of Common
Stock (including Additional Shares of Common Stock deemed to
be issued with respect to the dilution adjustment for Series C
Preferred Stock pursuant to Section 3(d)(iii)(1), but
excluding Additional Shares of Common Stock deemed to be
issued pursuant to Section 3(d)(iii)(2), which event is dealt
with in Section 3(d)(vi) hereof) without consideration or for
a consideration per share less than the Series C Conversion
Price in effect on the date of and immediately prior to such
issue, then such Series C Conversion Price shall be reduced,
concurrently with such issue, to the price determined by
dividing (i) an amount equal to the sum of (a) the number of
shares of Common Stock outstanding immediately prior to such
issue or sale and the number of shares of Common Stock
issuable upon conversion of all Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock and any
Convertible Securities multiplied by the then existing Series
C Conversion Price and (b) the consideration, if any, received
by the Corporation upon such issue or sale, by (ii) the total
number of shares of Common Stock outstanding immediately after
such issue or sale and the number of shares of Common Stock
issuable upon conversion of all Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock and any
Convertible Securities.
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<PAGE> 17
(v) Determination of Consideration. For purposes of this
Section 3(d), the consideration received by the Corporation for the
issue of any Additional Shares of Common Stock shall be computed as
follows:
(1) Cash and Property: Such consideration shall:
(A) insofar as it consists of cash, be the aggregate
amount of cash received by the Corporation excluding
amounts paid or payable for accrued interest or
accrued dividends;
(B) insofar as it consists of property other than cash,
be computed at the fair value thereof at the time of
such issue, as determined in good faith by the Board
of Directors; and
(C) in the event Additional Shares of Common Stock are
issued together with other shares of securities or
other assets of the Corporation for a single
undivided consideration, be the proportion of such
consideration so received allocable to such
Additional Shares of Common Stock, computed as
provided in clauses (A) and (B) above, as determined
in good faith by the Board of Directors.
(2) Options and Convertible Securities. The
consideration per share received by the Corporation for
Additional Shares of Common Stock deemed to have been issued
pursuant to Section 3(d)(iii)(1) shall be determined by
dividing
(x) the total amount, if any, received or
receivable by the Corporation as
consideration for the issue of such Options
or Convertible Securities, plus the minimum
aggregate amount of additional consideration
(as set forth in the instruments relating
thereto, without regard to any provision
contained therein for a subsequent
adjustment of such consideration) payable to
the Corporation upon the exercise of such
Options or the conversion or exchange of
such Convertible Securities, or in the case
of Options for Convertible Securities, the
exercise of such Options for Convertible
Securities and the conversion or exchange of
such Convertible Securities, by
(y) the maximum number of shares of Common Stock
(as set forth in the instruments relating
thereto, without regard to any provision
contained therein for a subsequent
adjustment of such number) issuable upon the
exercise of such Options or the conversion
or exchange of such Convertible Securities.
(vi) Adjustment for Stock Dividends, Stock Distributions,
Subdivisions, Combinations or Consolidations of Common Stock.
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<PAGE> 18
(1) Stock Dividends, Stock Distributions or
Subdivisions. In the event the Corporation shall issue
Additional Shares of Common Stock pursuant to Section
3(d)(iii)(2) in a stock dividend, other stock distribution or
subdivision, the Conversion Prices in effect immediately prior
to such stock dividend, stock distribution or subdivision
shall, concurrently with the effectiveness of such stock
dividend, stock distribution or subdivision, be
proportionately decreased to adjust equitably for such
dividend, distribution or subdivision.
(2) Combinations or Consolidations. In the event the
outstanding shares of Common Stock shall be combined or
consolidated, by reclassification or otherwise, into a lesser
number of shares of Common Stock, the Conversion Prices in
effect immediately prior to such combination or consolidation
shall, concurrently with the effectiveness of such combination
or consolidation, be proportionately increased to adjust
equitably for such combination or consolidation.
(vii) Adjustment for Merger or Reorganization, etc. In case of
any consolidation or merger of the Corporation with or into another
corporation or the conveyance of all or substantially all of the assets
of the Corporation to another corporation, or any proposed
reorganization or reclassification of the Corporation (except a
transaction for which provision for adjustment is otherwise made in
this Section 3), each share of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock shall thereafter be
convertible into the number of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock of
the Corporation deliverable upon conversion of such Series A Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock would have
been entitled upon such consolidation, merger, conveyance,
reorganization or reclassification; and, in any such case, appropriate
adjustment (as determined in good faith by the Board of Directors)
shall be made in the application of the provisions herein set forth
with respect to the rights and interest thereafter of the holders of
the Series A Preferred Stock, the holders of the Series B Preferred
Stock and the holders of Series C Preferred Stock, to the end that the
provisions set forth herein (including provisions with respect to
changes in and other adjustments of the Conversion Prices) shall
thereafter be applicable, as nearly as reasonably may be, in relation
to any shares of stock or other property thereafter deliverable upon
the conversion of the Series A Preferred Stock, Series B Preferred
Stock and Series C Preferred Stock. The Company shall not effect any
such consolidation, merger or sale unless prior to or simultaneously
with the consummation thereof the successor corporation or purchaser,
as the case may be, shall assume by written instrument the obligation
to deliver to the holders of the Series A Preferred Stock, the holders
of the Series B Preferred Stock and the holders of Series C Preferred
Stock such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such holders are entitled to receive.
Upon the occurrence of any deemed liquidation, dissolution or
winding up of the Corporation pursuant to Section 2(d) hereof, each
holder of Series A Preferred Stock, each holder of Series B Preferred
Stock and each holder of Series C Preferred Stock shall have the option
of electing treatment of its shares of Series A Preferred Stock, Series
B Preferred Stock and Series C Preferred Stock under this Section
3(d)(vii) in lieu of Section 2(d) hereof,
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<PAGE> 19
notice of which election shall be submitted in writing to the
Corporation at its principal offices no later than five (5) business
days before the effective date of such event.
(e) No Impairment. The Corporation will not, by amendment of its
Certificate of Incorporation or through any 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 but will at
all times in good faith assist in the carrying out of all the provisions of this
Section 3 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Series A Preferred Stock, the holders of the Series B Preferred Stock and the
holders of the Series C Preferred Stock against impairment.
(f) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Prices pursuant to this Section 3,
the Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series A Preferred Stock, each holder of Series B Preferred Stock and each
holder of Series C 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 the written request at any
time of any holder of Series A Preferred Stock, any holder of Series B Preferred
Stock or any holder of Series C Preferred Stock, furnish or cause to be
furnished to such holder a like certificate setting forth (i) all such
adjustments and readjustments theretofore made, (ii) the Conversion Prices at
the time in effect, and (iii) the number of shares of Common Stock and the
amount, if any, of other property which at such time would be received upon the
conversion of Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock.
(g) Notices of Record Date. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend which is in the same amount per share as
cash dividends paid in previous quarters) or other distribution, the Corporation
shall mail to each holder of Series A Preferred Stock, each holder of Series B
Preferred Stock and each holder of Series C Preferred Stock at least ten (10)
days prior to the date thereof, a notice specifying the date on which any such
record is to be taken for the purpose of such dividend or distribution.
(h) Common Stock Reserved. The Corporation shall reserve and at all
times keep available out of its authorized but unissued Common Stock, free from
preemptive or other preferential rights, restrictions, reservations,
dedications, allocations, options, other warrants and other rights under any
stock option, conversion option or similar agreement, such number of shares of
Common Stock as shall from time to time be sufficient to effect conversion of
the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred
Stock.
(i) No Reissuance of Series A Preferred Stock, Series B Preferred Stock
or Series C Preferred Stock. No shares of Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock which are converted into shares of
Common Stock as provided herein shall be reissued.
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<PAGE> 20
(j) Issue Tax. The issuance of certificates for shares of Common Stock
upon conversion of Series A Preferred Stock, Series B Preferred Stock or Series
C Preferred Stock shall be made without charge to the holders thereof for any
issuance tax in respect thereof, provided that the Corporation shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of any certificate in a name other than that of the
holder of the Series A Preferred Stock, the holder of the Series B Preferred
Stock or the holder of Series C Preferred Stock which is being converted.
(k) Closing of Books. The Corporation will at no time close its
transfer books against the transfer of any shares of Series A Preferred Stock,
any shares of Series B Preferred Stock, any shares of Series C Preferred Stock
or any shares of Common Stock issued or issuable upon the conversion of any
shares of Series A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock in any manner which interferes with the timely conversion of
such Series A Preferred Stock, Series B Preferred Stock or Series C Preferred
Stock, except as may otherwise be required to comply with applicable securities
laws.
(l) Definition of Common Stock. As used in this Section 3, the term
"Common Stock" shall mean and include the Corporation's authorized Common Stock,
par value $.01 per share, as constituted on the date of filing of this Amended
and Restated Certificate of Incorporation, and shall also include any capital
stock of any class of the Corporation thereafter authorized which shall neither
be limited to a fixed sum or percentage of par value in respect of the rights of
the holders thereof to participate in dividends nor entitled to a preference in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; provided that the shares of Common
Stock receivable upon conversion of shares of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock shall include only shares
designated as Common Stock of the Corporation on the date of filing of this
Amended and Restated Certificate of Incorporation.
SECTION 4
REDEMPTION
(a) Mandatory Redemption.
(i) If, on the fifth anniversary of the date of the Original
Series A Issue Date (as defined in Section 3(d)(i) of Part B of this
Article III) (such fifth anniversary being referred to herein as the
"Fifth Anniversary Redemption Date"), there remain outstanding shares
of Series A Preferred Stock, Series B Preferred Stock and/or Series C
Preferred Stock, the holders of a majority of the then outstanding
shares of Series A Preferred Stock, Series B Preferred Stock and Series
C Preferred Stock (voting together as a separate class) may elect to
have the Corporation redeem all (but not less than all) of the
outstanding shares of Series A Preferred Stock, Series B Preferred
Stock and Series C Preferred Stock at the Series A Redemption Price,
Series B Redemption Price or Series C Stock Redemption Price (as the
case may be) per share defined in paragraph (d) below, payable in cash
in accordance with
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<PAGE> 21
the schedule set forth in paragraph (ii) below; provided, however, that
the Series C Preferred Stock shall be redeemed if, and only if, in
addition to the vote of a majority of the holders of the Series A
Preferred Stock, the Series B Preferred Stock and the Series C
Preferred Stock (voting together as a separate class), the holders of a
majority of outstanding shares of the Series C Preferred Stock (voting
as a separate class) elect to have the Corporation redeem all, but only
all, of the outstanding shares of Series C Preferred Stock. The
election to redeem shares of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock under this paragraph (a)
shall be made at least forty-five (45) days prior to the Fifth
Anniversary Redemption Date.
(ii) Redemptions pursuant to this paragraph (a) shall be made
in four (4) equal installments beginning on the Fifth Anniversary
Redemption Date, and on each of the three (3) successive anniversaries
of such date (each a "Subsequent Anniversary Redemption Date" and
together with the Fifth Anniversary Redemption Date, the "Anniversary
Redemption Dates"). The number of shares of Series A Preferred Stock
required to be redeemed on any Anniversary Redemption Date shall be
equal to the amount determined by dividing (x) the aggregate number of
shares of Series A Preferred Stock outstanding immediately prior to the
Anniversary Redemption Date by (y) the number of remaining Anniversary
Redemption Dates (including the Anniversary Redemption Date to which
such calculation applies). The number of shares of Series B Preferred
Stock required to be redeemed on any Anniversary Redemption Date shall
be equal to the amount determined by dividing (x) the aggregate number
of shares of Series B Preferred Stock outstanding immediately prior to
the Anniversary Redemption Date by (y) the number of remaining
Anniversary Redemption Dates (including the Anniversary Redemption Date
to which such calculation applies). The number of shares of Series C
Preferred Stock required to be redeemed on any Anniversary Redemption
Date shall be equal to the amount determined by dividing (x) the
aggregate number of shares of Series C Preferred Stock outstanding
immediately prior to the Anniversary Redemption Date by (y) the number
of remaining Anniversary Redemption Dates (including the Anniversary
Redemption Date to which such calculation applies).
(iii) If in any given year in which redemption is required
sufficient funds are not legally available for such redemption on the
applicable Anniversary Redemption Date to redeem all of the shares of
Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock then due to be redeemed, any redemption effected
pursuant to this Section 4(a) shall be made as follows:
(1) the Corporation shall use a portion of such
available funds to redeem a number of shares of Series A
Preferred Stock equal to (x) the number of shares of Series A
Preferred Stock then due to be redeemed multiplied by (y) a
fraction, the numerator of which is the amount of funds
legally available for such redemption and the denominator of
which is the amount of funds that would be required to redeem
all of the shares of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock then due to be
redeemed (such fraction, the "Reduction Ratio"), and
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<PAGE> 22
(2) the Corporation shall use the remainder of such
available funds to redeem a number of shares of Series B
Preferred Stock and Series C Preferred Stock equal to (x) the
number of shares of Series B Preferred Stock or Series C
Preferred Stock, as the case may be, then due to be redeemed
multiplied by (y) the Reduction Ratio.
(iv) Any redemption effected pursuant to this Section 4(a)
shall be made on a pro rata basis among the holders of the Series A
Preferred Stock based on the number of shares of Series A Preferred
Stock then held by each of them. Any redemption effected pursuant to
this Section 4(a) shall be made on a pro rata basis among the holders
of the Series B Preferred Stock based on the number of shares of Series
B Preferred Stock then held by each of them. Any redemption effected
pursuant to this Section 4(a) shall be made on a pro rata basis among
the holders of the Series C Preferred Stock based on the number of
shares of Series C Preferred Stock then held by each of them.
(b) Miscellaneous. Redemption shall only be permitted to the extent
that it is permitted under the General Corporation Law of Delaware. The
Corporation shall, to the fullest extent permitted by law, do all things
necessary to redeem the Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock and make the payments therefor pursuant to the terms of
this Section 4.
(c) Available Funds. If in any given year in which redemption is
required sufficient funds are not legally available for such redemption on the
applicable Anniversary Redemption Date to redeem all of the shares of Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock then due
to be redeemed, any and all such unredeemed shares shall be carried forward and
redeemed together with other shares of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock which are due to be redeemed, at
such time and to the extent that funds of the Corporation are legally available
therefor. The shares of Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock which are subject to redemption but which have not been
redeemed and as to which the Series A Redemption Price, Series B Redemption
Price or Series C Preferred Stock (as the case may be) is not paid or set aside
due to insufficient legally available funds shall continue to be entitled to the
dividend, conversion and other rights, preferences and privileges of the Series
A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock until
such shares have been redeemed and the Series A Redemption Price, Series B
Redemption Price or Series C Preferred Stock (as the case may be) has been paid
or otherwise set aside with respect thereto.
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<PAGE> 23
(d) Redemption Price. The price at which such shares of Series A
Preferred Stock shall be redeemed (the "Series A Redemption Price") shall be a
price equal to $5.62 per share, plus any dividends which, pursuant to Section 6
hereof, have accrued but remain unpaid at such time. The price at which shares
of Series B Preferred Stock shall be redeemed (the "Series B Redemption Price")
shall be a price equal to $12.07 per share, plus any dividends which, pursuant
to Section 6 hereof, have accrued but remain unpaid at such time. The price at
which such shares of Series C Preferred Stock shall be redeemed (the "Series C
Redemption Price") shall be $18.23 per share, plus any dividends which, pursuant
to Section 6 hereof, have accrued but remain unpaid at such time, provided that
for purposes of determining the Series C Redemption Price such accrued but
unpaid dividends shall be compounded annually.
(e) Notice. Notice of any redemption shall be given by the Corporation
by certified or registered mail (return receipt requested), postage prepaid, by
personal delivery or overnight courier. Any notice given by the Corporation
shall be addressed to each holder at the address as it appears on the stock
transfer books of the Corporation and shall specify the applicable Anniversary
Redemption Date and the number of shares to be redeemed. On or after the
Anniversary Redemption Date as specified in any notice, the holder shall
surrender such holder's certificate for the number of shares to be redeemed as
stated in the notice to or from the Corporation. If less than all of the shares
represented by such certificates are redeemed, a new certificate shall forthwith
be issued for the unredeemed shares.
(f) Conversion After Redemption. From and after an Anniversary
Redemption Date, no shares of the Series A Preferred Stock, Series B Preferred
Stock or Series C Preferred Stock to be redeemed on such Anniversary Redemption
Date shall be entitled to the conversion privileges set forth in Section 3
hereof.
SECTION 5
VOTING RIGHTS
(a) Number of Votes. Except as otherwise required by law and the
provisions of this Section 5, the holders of Series A Preferred Stock, the
holders of Series B Preferred Stock, the holders of Series C Preferred Stock and
the holders of Common Stock shall be entitled to notice of any shareholders'
meeting and to vote together as a single class of capital stock upon any matter
submitted to a shareholder for a vote, on the following basis:
(i) Holders of Common Stock shall have one vote per share;
(ii) Holders of Series A Preferred Stock shall have that
number of votes per share as is equal to the number of shares of Common
Stock into which each such share of Series A Preferred Stock held by
such holder is convertible at the time of such vote;
(iii) Holders of Series B Preferred Stock shall have that
number of votes per share as is equal to the number of shares of Common
Stock into which each such share of Series
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B Preferred Stock held by such holder is convertible at the time of
such vote;
(iv) Holders of Series C Preferred Stock shall have that
number of votes per share as is equal to the number of shares of Common
Stock into which each such share of Series C Preferred Stock held by
such holder is convertible at the time of such vote
(b) Election of Directors. The Board of Directors shall consist of not
less than six (6) nor more than nine (9) without the approval or written consent
of the holders of a majority of the outstanding shares of Series A Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock (voting together as
a separate class). Except as otherwise required by law, and subject to the terms
of the Amended and Restated Shareholders' Agreement dated February 23, 2000, by
and among the Corporation and certain of its shareholders, as the same may be
amended, the holders of Series A Preferred Stock, the holders of Series B
Preferred Stock, the holders of Series C Preferred Stock and the holders of
Common Stock shall be entitled to vote upon the election of directors on the
following basis:
(i) so long as at least 215,385 shares of Series A Preferred
Stock or at least 73,149 shares of Series B Preferred Stock remain
issued and outstanding, the holders of Common Stock then issued and
outstanding, voting separately as a class, shall, by majority vote,
elect two (2) members of the Board of Directors;
(ii) (1) so long as at least 355,385 shares of Series A
Preferred Stock remain issued and outstanding, the holders of Series A
Preferred Stock then issued and outstanding, voting separately as a
class, shall, by majority vote, elect two (2) members of the Board of
Directors, or (2) if less than 355,385 but more than 215,385 shares of
Series A Preferred Stock remain issued and outstanding, the holders of
Series A Preferred Stock then issued and outstanding, voting separately
as a class, shall, by majority vote, elect one (1) member of the Board
of Directors;
(iii) so long as at least 73,149 shares of Series B Preferred
Stock remain issued and outstanding, the holders of Series B Preferred
Stock then issued and outstanding, voting separately as a class, shall,
by majority vote, elect one (1) member of the Board of Directors (who
shall be reasonably acceptable to the Company, provided that Barclay A.
Phillips shall be deemed acceptable to the Company);
(iv) the holders of Series A Preferred Stock and the holders
of Series B Preferred Stock, and the holders of Common Stock then
issued and outstanding, voting together as a single class (in the
manner set forth in paragraph (a) above) shall, by majority vote, elect
one (1) member of the Board of Directors who will add strategic
business and industry value to the Company and who is mutually
acceptable to the Company and the holders of a majority of the Series B
Preferred;
(v) the holders of Common Stock then issued and outstanding,
voting together as a single class (in the manner set forth in paragraph
(a) above) with (1) the holders of Series A Preferred Stock (so long as
at least 215,385 shares of Series A Preferred Stock
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remain issued and outstanding), (2) the holders of Series B Preferred
Stock (so long as at least 73,149 shares of Series B Preferred Stock
remain issued and outstanding) and (3) the holders of Series C
Preferred Stock (so long as at least 173,250 shares of Series C
Preferred Stock remain issued and outstanding) shall, by majority vote,
elect any members of the Board of Directors not elected as provided in
paragraphs (i), (ii), (iii) and (iv) above; and
(vi) if fewer than 215,385 shares of Series A Preferred Stock
remain issued and outstanding and fewer than 73,149 shares of Series B
Preferred Stock remain issued and outstanding and fewer than 173,250
shares of Series C Preferred Stock remain issued and outstanding, the
holders of Series A Preferred Stock, the holders of Series B Preferred
Stock, the holders of the Series C Preferred Stock and the holders of
Common Stock then issued and outstanding, voting together as a single
class (in the manner set forth in paragraph (a) above) shall, by
majority vote, elect the entire Board of Directors.
(c) Quorums. Except as otherwise required by law, the following shall
constitute quorums at meetings of shareholders:
(i) The presence in person, by teleconference or by proxy of
the holders of shares constituting a majority of the votes entitled to
vote thereat, calculated in accordance with Section 5(a) hereof, shall
constitute a quorum for the purpose of transaction of business at all
meetings of shareholders, except with respect to election of directors
under Section 5(b) hereof; and
(ii) For the purpose of electing directors, (A) the presence
in person, by teleconference or by proxy of the holders of a majority
of the shares of Series A Preferred Stock entitled to vote thereat
shall constitute a quorum for the purpose of electing that number of
directors of the Board of Directors which such shareholders are
entitled to elect; (B) the presence in person, by teleconference or by
proxy of the holders of a majority of the shares of Series B Preferred
Stock entitled to vote thereat shall constitute a quorum for the
purpose of electing that number of directors of the Board of Directors
which such shareholders are entitled to elect; and (C) the presence in
person or by proxy of the holders of a majority of the shares of Common
Stock, Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock entitled to vote thereat shall constitute a quorum for
the purpose of electing that number of directors of the Board of
Directors which such shareholders are entitled to elect.
SECTION 6
DIVIDEND RIGHTS
Each holder of shares of Series A Preferred Stock, each holder of
shares of Series B Preferred Stock and each holder of Series C Preferred Stock
shall be entitled to receive, for each share of Series A Preferred Stock, Series
B Preferred Stock and Series C Preferred Stock registered in his, her or its
name on the stock transfer books of the Corporation, annual
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dividends at rates equal to forty-five cents ($0.45) per annum per share of
Series A Preferred Stock (the "Series A Dividend Rate"), ninety-seven cents
($0.97) per annum per share of Series B Preferred Stock (the "Series B Dividend
Rate"), and one dollar and forty six cents ($1.46) per annum per share of Series
C Preferred Stock (the "Series C Dividend Rate"). Dividends on Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock shall
accrue on each share beginning on the date of issuance, shall be payable each
January 1 for the twelve (12) months or, in the case of the year in which such
share is issued or the year in which such share is redeemed or converted,
portion of the twelve (12) months, then ended, and shall be cumulative.
Dividends payable on the Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock may, at the Corporation's option, be paid either in
cash or in fully-paid and non-assessable shares of Common Stock; provided that
no dividends on the Series A Preferred Stock, the Series B Preferred Stock or
the Series C Preferred Stock may be paid in cash unless all dividends (or equal
percentages thereof) paid on both the Series A Preferred Stock, the Series B
Preferred Stock and the Series C Preferred Stock are paid in cash. If the
Company elects to pay dividends on the Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock in Common Stock, each share of
Common Stock issued in payment of such dividends shall be deemed to have a value
equal to the then Fair Market Value of a share of Common Stock (as defined
below). The Corporation warrants that all Common Stock issued in such manner
will be duly authorized and issued and fully paid and non-assessable upon issue
by the Corporation and free from original issue taxes. Any payment made by the
Corporation on the unpaid cumulative dividends, if less than the total amount of
such dividends, shall be applied first to those dividends which have been
accrued for the longest time.
The "Fair Market Value" of one share of Common Stock shall be deemed to
be the average of the daily closing prices for the thirty (30) consecutive
trading days ending no more than fifteen (15) trading days before the date of
computation (as adjusted for any stock dividend, split, combination or
reclassification that took effect during such thirty (30) day period). The
closing price for each day (the "Closing Price") shall be the last reported
sales price regular way or, in case no such reported sales took place on such
day, the average of the last reported bid and asked prices regular way, in
either case on the principal national securities exchange on which the Common
Stock is listed or admitted to trading (or if the Common Stock is not at the
time listed or admitted for trading on any such exchange, then such price as
shall be equal to the average of the last reported bid and asked prices, as
reported by the Nasdaq Small Capitalization Market (the "Small Cap Market") or
the Nasdaq National Market ("Nasdaq") on such day, or if, on any day in
question, the Common Stock shall not be quoted on the Small Cap Market or the
Nasdaq, then such price shall be equal to the average of the last reported bid
and asked prices on such day as reported by The National Quotation Bureau
Incorporated or any similar reputable quotation and reporting service, if such
quotation is not reported by The National Quotation Bureau Incorporated);
provided, however, that if the Common Stock is not traded in such manner that
the quotations referred to in this Section 6 are available for the period
required hereunder, the Fair Market Value shall be determined in good faith by
the Board of Directors of the Company or, if such determination cannot be made,
by a recognized independent investment banking firm selected by the Board of
Directors of the Company (or if such selection cannot
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be made, by a recognized independent investing banking firm selected by the
American Arbitration Association in accordance with its rules), and provided,
further, that in no event shall the Fair Market Value as of any date be deemed
to be more than the fair market value as last determined by the Board of
Directors for purposes of issuing stock options under any Plan.
No dividend or other distribution shall be paid on or declared or set
apart for payment on any shares of the Common Stock of the Corporation or any
shares of any class or series or issue of Preferred Stock as long as any
dividends payable on the Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock are in arrears, unless the holders of at least a
majority of the then outstanding shares of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock (voting together as a separate
class) consent to such dividend or distribution.
The term "distribution" as used in this Section 6 and in Section 7
hereof shall include the transfer of cash or property without consideration,
whether by way of dividend or otherwise (except a dividend in shares of Common
Stock), or the purchase or redemption of shares of the Corporation (other than
from employees of the Corporation upon termination of employment or pursuant to
the Corporation's rights of first refusal, in each case upon approval of the
Board of Directors), for cash or property, including such transfer, purchase or
redemption by a subsidiary of the Corporation. The time of any distribution by
way of dividends shall be the date of declaration thereof, and the time of any
distribution by purchase or redemption of shares shall be the date on which cash
or property is transferred by the Corporation, whether or not pursuant to a
contract of an earlier date; provided that where a debt security is issued in
exchange for shares, the time of the distribution is the date when the
Corporation acquires the shares for such exchange.
SECTION 7
COVENANTS
Without limiting the rights of the holders of the Series A Preferred
Stock, the holders of the Series B Preferred Stock or the holders of Series C
Preferred Stock to each vote as separate classes or together as a single class,
as required by law or as otherwise provided under this Amended and Restated
Certificate of Incorporation, so long as any shares of Series A Preferred Stock,
Series B Preferred Stock or Series C Preferred Stock shall be outstanding, the
Corporation shall not, without first obtaining the affirmative vote or written
consent of the holders of not less than two-thirds (2/3's) of such outstanding
shares of Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock (voting together as a separate class):
(a) amend or repeal any provision of, or add any provision to,
this Amended and Restated Certificate of Incorporation or the
Corporation's Bylaws which adversely affects the holders of the Series
A Preferred Stock, the holders of the Series B Preferred Stock or the
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holders of the Series C Preferred Stock or any right, preference or
privilege of such holders; provided, however, that any amendment or
repeal of this Amended and Restated Certificate of Incorporation or the
Corporation's Bylaws which adversely affects the holders of the Series
C Preferred Stock shall require the affirmative vote or written consent
of at least a majority of the outstanding shares of the Series C
Preferred Stock (voting as a separate class);
(b) reclassify any Common Stock into shares having any
preference or priority as to dividends or assets or other rights and
privileges in any case superior to or on a parity with any such
preference, priority, right or privilege of the Series A Preferred
Stock, Series B Preferred Stock or Series C Preferred Stock (including,
without limitation, by granting to the holder of any security issued by
the Corporation a security interest or lien on assets of the
Corporation); provided, however, that any such reclassification which
results in such reclassified shares having any rights or preferences
superior to or on parity with the Series C Preferred Stock shall
require the affirmative vote or written consent of at least a majority
of the outstanding shares of the Series C Preferred Stock (voting as a
separate class); or otherwise effect a capital reorganization of either
the Corporation or any subsidiary of the Corporation, or effect a
liquidation or dissolution of the Corporation;
(c) apply any of its assets to the redemption, retirement,
purchase or other acquisition directly or indirectly, through
subsidiaries or otherwise, of any shares of Common Stock or other
securities of the Corporation (other than the Series A Preferred Stock,
the Series B Preferred Stock and the Series C Preferred Stock in
accordance with the provisions of Section 4 hereof), except from
employees of the Corporation upon termination of employment or pursuant
to the Corporation's rights of first refusal;
(d) consolidate or merge the Corporation or any subsidiary of
the Corporation into or with, or acquire or cause any subsidiary of the
Corporation to acquire the stock or all or substantially all the assets
of, any other corporation, partnership or other entity;
(e) sell, lease, convey, encumber or otherwise dispose of all
or substantially all of the property or business of the Corporation or
any subsidiary of the Corporation or effect a voluntary dissolution or
liquidation of the Corporation;
(f) create, authorize or issue, directly or indirectly,
capital stock or other securities, having any preference or priority as
to dividends or assets, or other rights or privileges, in any case
superior to or on a parity with any such preference, priority, right or
privilege of the Series A Preferred Stock, the Series B Preferred Stock
or the Series C Preferred Stock (including, without limitation, by
granting to the holder of any security issued by the Corporation a
security interest or lien on assets of the Corporation); provided,
however, that any such creation, authorization or issuance of capital
stock or securities having any rights or preferences superior to or on
parity with the Series C Preferred Stock shall require the affirmative
vote or written consent of at least a majority of the outstanding
shares of the Series C Preferred Stock (voting as a separate class);
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(g) increase or decrease the authorized number of shares of
Preferred Stock; provided, however, any increase or decrease in the
authorized number of shares of Series C Preferred Stock shall require
the affirmative vote or written consent of at least a majority of the
outstanding shares of the Series C Preferred Stock (voting as a
separate class);
(h) pay, set aside for payment or declare any dividend or
other distribution (as defined in Section 6 hereof) on any share of
Common Stock or any shares of any class of Preferred Stock (other than
Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock), unless all dividends accumulated on the Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock
shall have been either paid in full or funds set aside for the payment
thereof in accordance with the provisions of Section 6 hereof;
(i) change the nature of the Corporation's business in any
material way or make any material change to the Corporation's business
plan, as approved by the holders of at least two-thirds (2/3's) of the
outstanding shares of Series A Preferred Stock, Series B Preferred
Stock and Series C Preferred Stock (voting together as a separate
class);
(j) issue any shares of Common Stock, provided that the
Corporation, upon approval of the Board of Directors, may issue shares
of Common Stock issuable upon occurrence of the events described in, or
in connection with the circumstances set forth in, subclauses (A), (B),
(C) and (E) of Section 3(d)(i)(6) hereof; or
(k) increase the size of the Board of Directors to more than
nine (9) directors or decrease the size of the Board of Directors to
fewer than six (6) directors.
SECTION 8
STOCK DIVIDENDS, STOCK DISTRIBUTIONS,
SUBDIVISIONS, COMBINATIONS AND CONSOLIDATIONS
In the event the Corporation shall issue additional shares of Series A
Preferred Stock, Series B Preferred Stock or Series C Preferred Stock in a stock
dividend, other stock distribution or subdivision, or in the event the
outstanding shares of Series A Preferred Stock, Series B Preferred Stock or
Series C Preferred Stock shall be combined or consolidated, by reclassification
or otherwise, into a lesser number of shares of Series A Preferred Stock, Series
B Preferred Stock or Series C Preferred Stock, (i) the amounts set forth in
Section 2(a) hereof, (ii) the Series A Automatic Conversion Price, the Series B
Automatic Conversion Price and the Series C Automatic Conversion Price (each as
defined in Section 3(b) hereof), (iii) the amounts set forth in Section 4(d)
hereof, (iv) the number of shares of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock specified in Section 5(b) and
Section 7, and (v) the Series A Dividend Rate, Series B Dividend Rate and Series
C Dividend Rate set forth in Section 6 hereof, in each case in effect
immediately prior to such event shall, concurrently therewith, be
proportionately decreased
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(in the case of a stock dividend, other stock distribution or subdivision) or
increased (in the case of a combination or consolidation) in each such case to
adjust equitably therefor.
SECTION 9
RESIDUAL RIGHTS
All rights accruing to the outstanding shares of capital stock of the
Corporation not expressly provided for to the contrary herein shall be vested in
the Common Stock.
ARTICLE IV
BOARD OF DIRECTORS
SECTION 1
MANAGEMENT
The business and affairs of the Corporation shall be managed by the
board of directors. The board of directors shall meet at least once during every
calendar quarter. A two-thirds (2/3's) affirmative vote of the board of
directors shall be required to approve each annual budget and operating plan of
the Corporation.
SECTION 2
NO BALLOT
The directors need not be elected by written ballot unless the bylaws
of the Corporation shall so provide.
SECTION 3
INDEMNIFICATION AND LIABILITY
To the fullest extent permitted by Delaware General Corporation Law as
the same exists or may hereafter be amended, each officer and director of this
Corporation shall be indemnified by the Corporation and shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director or officer.
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ARTICLE V
MEETINGS OF STOCKHOLDERS
Meetings of the stockholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the Delaware statutes) outside the State
of Delaware at such place or places as may be designated from time to time by
the board of directors or in the Bylaws of the Corporation.
ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the board of directors is expressly authorized to
adopt, amend or repeal the Bylaws of the Corporation.
ARTICLE VII
PERPETUAL EXISTENCE
The Corporation is to have perpetual existence.
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ARTICLE VIII
COMPROMISE OR ARRANGEMENT
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such matter as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
ARTICLE IX
AMENDMENTS AND REPEAL
Subject to any limitations contained in this Amended and Restated
Certificate of Incorporation (including, without limitation, those contained in
Section 7 of Part B of Article III), the Corporation reserves the right to
amend, alter, change, or repeal any provision contained in this Amended and
Restated Certificate of Incorporation, in the manner now or hereafter prescribed
by the laws of the State of Delaware, and all rights herein conferred are
granted subject to this reservation.
This Amended and Restated Certificate of Incorporation has been duly
adopted by vote of the stockholders in accordance with the provisions of
Sections 242, 245 and 211 of the General Corporation Law of Delaware, as
amended.
IN WITNESS WHEREOF, CELLOMICS, INC., has caused this certificate to be
signed by its President as of this ____ day of September ________, 2000.
CELLOMICS, INC.
By: __________________________________
Name: D. Lansing Taylor
Title: Chief Executive Officer and
President
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