RESTATED CERTIFICATE OF INCORPORATION
OF
INFORMAX, INC.
(UNDER SECTION 245 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE)
INFORMAX, INC. (the "Corporation"), a corporation duly
organized and existing under the General Corporation Law of the State of
Delaware (the "DGCL"), does, by its President, attested to by its Secretary,
under its corporate seal, hereby certify that:
I. The original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on May 24, 1990. A
Restated Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on June 21, 1999. A
Certificate of the Designations, Powers, Preferences and Rights of the
Series A Preferred Stock of the Corporation was filed with the
Secretary of State of the State of Delaware on June 22, 1999. A
Certificate of Correction of the Corporation was filed with the
Secretary of State of the State of Delaware on June 24, 1999. A Second
Restated Certificate of Incorporation was filed with the Secretary of
State on August 16, 2000. An Amendment to the Certificate of
Incorporation was filed with the Secretary of State on July 11, 2000.
II. This Restated Certificate of Incorporation amends and restates the
Certificate of Incorporation by deleting from such Certificate of
Incorporation all of the provisions thereof (including, without
limitation, the Certificate of the Designations, Powers and Preferences
of the Corporation's Preferred Stock) and substituting in lieu of such
provisions the text of the Restated Certificate of Incorporation set
forth in Article VIII hereof.
III. Pursuant to Section 141, 242 and 245 of the DGCL, at a Special Meeting
of the Board of Directors of the Corporation held on September 8, 2000,
the Board of Directors of the Corporation deemed it advisable and in
the best interests of the Corporation to amend and restate in its
entirety the Certificate of Incorporation of the Corporation, as set
forth in this Restated Certificate of Incorporation, and directed that
this Restated Certificate of Incorporation be submitted for
consideration and action thereon by the Stockholders of the
Corporation.
IV. Pursuant to Sections 228, 242 and 245 of the DGCL, by written consent
in lieu of a Special Meeting of the Holders of Common Stock of the
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Corporation dated as of September 8, 2000, the holders of a majority of
the outstanding shares of Common Stock of the Corporation entitled to
vote thereon voted in favor of, approved and adopted this Restated
Certificate of Incorporation, including the text set forth in Article
VIII hereof. Prompt notice of the taking of the aforesaid corporation
action without a meeting by less than unanimous written consent will be
given, in accordance with Section 228 of the DGCL, to the stockholders
of the Corporation who have not consented in writing to such action.
V. Pursuant to Sections 228, 242 and 245 of the DGCL, by unanimous written
consent in lieu of a Special Meeting of the Holders of Preferred Stock
of the Corporation dated as of September 8, 2000, the holders of all of
the outstanding shares of Preferred Stock of the Corporation entitled
to vote thereon voted in favor of, approved and adopted this Restated
Certificate of Incorporation, including the text set forth in Article
VIII hereof.
VI. Pursuant to Sections 228, 242 and 245 of the DGCL, by written consent
in lieu of a Special Meeting of the Holders of Common Stock of the
Corporation and the Holders of Preferred Stock of the Corporation dated
as of September 8, 2000, the holders of a majority of the outstanding
shares of Common Stock and Preferred Stock of the Corporation entitled
to vote thereon voted in favor of, approved and adopted this Restated
Certificate of Incorporation, including the text set forth in Article
VIII hereof. Prompt notice of the taking of the aforesaid corporate
action without a meeting by less than unanimous written consent will be
given, in accordance with Section 228 of the DGCL, to the stockholders
of the Corporation who have not consented in writing to such action.
VII. The text of the Restated Certificate of Incorporation set forth in
Article VIII hereof was duly adopted by the Board of Directors, by the
holders of a majority of the outstanding shares of Common Stock of the
Corporation, by the holders of all of the outstanding shares of
Preferred Stock of the Corporation and by the holders of a majority of
the outstanding shares of Common Stock and Preferred Stock of the
Corporation, each as entitled to vote thereon in accordance with the
provisions of Sections 141, 228, 242 and 245 of the DGCL.
VIII. The text of the Certificate of Incorporation of the Corporation is
hereby restated by this Restated Certificate of Incorporation, to read
in full as follows:
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RESTATED CERTIFICATE OF INCORPORATION
OF
INFORMAX, INC.
ARTICLE 1. NAME.
The name of the corporation (hereinafter the
"Corporation") is:
InforMax, Inc.
ARTICLE 2. REGISTERED OFFICE AND AGENT.
The address of the Corporation's registered office in
the State of Delaware is 1209 Orange Street, in the City of Wilmington, Delaware
19801, County of New Castle. The name of the Corporation's registered agent at
such address is The Corporation Trust Company.
ARTICLE 3. PURPOSE AND POWERS.
The nature of the Corporation's business, or objects
or purposes to be transacted, promoted or carried on are to produce and market
software, and to engage in any other lawful activity for which corporations may
be organized under the General Corporation Law of Delaware (the "DGCL"). The
Corporation shall have all power necessary or convenient to the conduct,
promotion or attainment of such acts and activities.
ARTICLE 4. CAPITAL STOCK.
4.1 AUTHORIZED SHARES.
The total number of shares of all classes of stock
that the Corporation shall have the authority to issue is One Hundred Twenty
Million (120,000,000), of which One Hundred Million (100,000,000) of such shares
shall be Common Stock, all of one class, having a par value of $0.001 per share
("Common Stock"), and Twenty Million (20,000,000) of such shares shall be
Preferred Stock, having a par value of $0.01 per share ("Preferred Stock").
4.2 COMMON STOCK.
4.2.1 RELATIVE RIGHTS.
The Common Stock shall be subject to all of the
rights, privileges, preferences and priorities of the Preferred Stock as set
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forth in the certificate of designations filed to establish the respective
series of Preferred Stock. Each share of Common Stock shall have the same
relative rights as and be identical in all respects to all the other shares of
Common Stock.
4.2.2 DIVIDENDS.
Whenever there shall have been paid, or declared and
set aside for payment, to the holders of shares of any class of stock having
preference over the Common Stock as to the payment of dividends, the full amount
of dividends and of sinking fund or retirement payments, if any, to which such
holders are respectively entitled in preference to the Common Stock, then
dividends may be paid on the Common Stock and on any class or series of stock
entitled to participate therewith as to dividends, out of any assets legally
available for the payment of dividends thereon, but only when and as declared by
the Board of Directors of the Corporation.
4.2.3 DISSOLUTION, LIQUIDATION, WINDING UP.
In the event of any dissolution, liquidation, or
winding up of the Corporation, whether voluntary or involuntary, the holders of
the Common Stock, and holders of any class or series of stock entitled to
participate therewith, in whole or in part, as to the distribution of assets in
such event, shall become entitled to participate in the distribution of any
assets of the Corporation remaining after the Corporation shall have paid, or
provided for payment of, all debts and liabilities of the Corporation and after
the Corporation shall have paid, or set aside for payment, to the holders of any
class of stock having preference over the Common Stock in the event of
dissolution, liquidation or winding up the full preferential amounts (if any) to
which they are entitled.
4.2.4 VOTING RIGHTS.
Each holder of shares of Common Stock shall be
entitled to attend all special and annual meetings of the stockholders of the
Corporation and, share for share and without regard to class, together with the
holders of all other classes of stock entitled to attend such meetings and to
vote (except any class or series of stock having special voting rights), to cast
one vote for each outstanding share of Common Stock so held upon any matter or
thing (including, without limitation, the election of one or more directors)
properly considered and acted upon by the stockholders.
4.3 PREFERRED STOCK
The Board of Directors is authorized, subject to
limitations prescribed by the Delaware General Corporation Law and the
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provisions of this Certificate of Incorporation, to provide, by resolution or
resolutions from time to time and by filing a certificate of designations
pursuant to the Delaware General Corporation Law, for the issuance of the shares
of Preferred Stock in series, to establish from time to time the number of
shares to be included in each such series, to fix the powers, designations,
preferences and relative, participating, optional or other special rights of the
shares of each such series and to fix the qualifications, limitations or
restrictions thereof.
4.4 SPECIAL MEETINGS.
Special meetings of the stockholders, for any purpose
or purposes, unless otherwise prescribed by statute, may be called by (a) the
President of the Corporation; (b) the Chairman of the Board of Directors; and
(c) a majority of the Board on its own behalf.
4.5 ACTION WITHOUT A MEETING.
Pursuant to DGCL Section 228, stockholders of the
Corporation shall not be entitled to act by written consent in lieu of a vote of
such holders at an annual or special meeting of such holders.
ARTICLE 5. BOARD OF DIRECTORS.
5.1 NUMBER; ELECTION.
The number of directors of the Corporation shall be
such number as from time to time shall be fixed by, or in the manner provided
in, the bylaws of the Corporation; provided, however, that the number of
directors which shall constitute the whole Board shall not be fewer than three
(3) nor more than fifteen (15). The directorships (i.e., the particular seats on
the Board) shall be classified into three classes (designated as Class I, Class
II and Class III) as nearly equal in number as possible. Notwithstanding the
foregoing, each director shall hold office until such director's successor is
duly elected and qualified or until such director dies, resigns or is removed.
At each annual meeting of stockholders, the successors to the class of directors
whose term expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election and until their successors have been duly elected and
qualified or until any such director dies, resigns or is removed. Except as
otherwise provided by statute, this Certificate of Incorporation or the Bylaws
of the Corporation, directors shall be elected by a plurality of the votes of
the shares present in person or represented by proxy at the meeting and entitled
to vote on the election of directors. Unless and except to the extent that the
bylaws of the Corporation shall otherwise require, the election of directors of
the Corporation need not be by written ballot.
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With respect to newly created or eliminated
directorships resulting from an increase or decrease, respectively, in the
number of directors, the Board shall determine and designate to which class of
directorships each director belongs, but in no case shall a decrease in the
number of directors shorten the term of an incumbent director.
5.2 MANAGEMENT OF BUSINESS AND AFFAIRS OF THE CORPORATION.
The business and affairs of the Corporation shall be
managed by or under the direction of the Board. Except as otherwise provided in
this Certificate of Incorporation, each director of the Corporation shall be
entitled to one vote per director on all matters voted or acted upon by the
Board.
5.3 VACANCIES; RESIGNATION; REMOVAL.
Vacancies and newly created directorships resulting
from any increase in the number of directors constituting the whole Board may be
filled only by the affirmative vote of a majority of the directors then in
office, although fewer than a quorum, or by a sole remaining director. Whenever
the holders of any class or classes of stock or series thereof are entitled to
elect one or more directors by the provisions of this Certificate of
Incorporation, vacancies and newly created directorships of such class or
classes or series may be filled by the affirmative vote of a majority of the
directors elected by such class or classes or series thereof then in office, or
by a sole remaining director so elected. Each director so chosen shall hold
office until the next election of directors of the class to which such director
was appointed, and until such director's successor is elected and qualified, or
until the director's earlier death, resignation or removal.
A director may resign at any time upon written notice
to the Corporation, and the resignation shall take effect at the time it
specifies, without any need for acceptance by the Board. In the event that one
or more directors resigns from the Board, effective at a future date, a majority
of the directors then in office, including those who have so resigned, shall
have power to fill such vacancy or vacancies, with the vote thereon to take
effect when such resignation or resignations becomes effective. Directors may
only be removed for cause upon the affirmative vote of at least two-thirds of
the entire voting power of all the then-outstanding shares of stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class.
ARTICLE 6. LIMITATION OF LIABILITY.
No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that this provision shall not eliminate or limit
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the liability of a director (a) for any breach of the director's duty of loyalty
to the Corporation or its stockholders; (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law; (c)
under Section 174 of the Delaware General Corporation Law; or (d) for any
transaction from which the director derived an improper personal benefit. Any
repeal or modification of this Article 6 shall be prospective only and shall not
adversely affect any right or protection of, or any limitation of the liability
of, a director of the Corporation existing at, or arising out of facts or
incidents occurring prior to, the effective date of such repeal or modification.
ARTICLE 7. COMPROMISE OR ARRANGEMENTS.
Whenever a compromise or arrangement is proposed
between the Corporation and its creditors or any class of them and/or between
the 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 the Corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for the 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 the 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 the Corporation, as the case may
be, to be summoned in such manner 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 the
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of the 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 the Corporation, as the case may be,
and also on the Corporation.
ARTICLE 8. AMENDMENT OF BYLAWS.
In furtherance and not in limitation of the powers
conferred by the Delaware General Corporation Law, the Board of Directors of the
Corporation is expressly authorized and empowered to adopt, amend and repeal the
bylaws of the Corporation.
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ARTICLE 9. RESERVATION OF RIGHT TO AMEND CERTIFICATE OF INCORPORATION.
The Corporation reserves the right at any time, and
from time to time, to amend, alter, change, or repeal any provision contained in
this Certificate of Incorporation, and other provisions authorized by the laws
of the State of Delaware at the time in force may be added or inserted, in the
manner now or hereafter prescribed by law; and all rights, preferences, and
privileges of any nature conferred upon stockholders, directors, or any other
persons by and pursuant to this Certificate of Incorporation in its present form
or as hereafter amended are granted subject to the rights reserved in this
Article 9.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been signed under the seal of this Corporation this _________
day of ______, 2000.
WITNESS: INFORMAX, INC.
By: By:
------------------------- -------------------------------------
Joseph Lehnen Alexander Titomirov
Chief Financial Officer President and Chief Executive Officer
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