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Exhibit 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DOUBLETWIST, INC.
DoubleTwist, Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation has always been DoubleTwist,
Inc. The original Certificate of Incorporation was filed with the Delaware
Secretary of State on March 16, 2000.
2. Pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, this Amended and Restated Certificate of
Incorporation restates and amends the provisions of the Certificate of
Incorporation of the corporation.
3. The Certificate of Incorporation of the corporation is
hereby amended and restated to read in its entirety as set forth in the Amended
and Restated Certificate of Incorporation attached hereto as Exhibit A.
IN WITNESS WHEREOF, the corporation has caused this Amended
and Restated Certificate of Incorporation to be duly executed by its President
and Chief Executive Officer this ____ day of ________, 2000.
DOUBLETWIST, INC.
By:
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John D. Couch
President and Chief Executive Officer
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EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DOUBLETWIST, INC.
FIRST. The name of the corporation is DoubleTwist, Inc.
SECOND. The address of the registered office of the corporation in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, ZIP
Code 19801 The name of its registered agent at such address is The Corporation
Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH. The total number of shares of all classes of capital stock which the
corporation shall have authority to issue is Fifty-Five Million (55,000,000)
shares, comprised of Fifty Million (50,000,000) shares of Common Stock with a
par value of $0.01 per share (the "Common Stock") and Five Million (5,000,000)
shares of Preferred Stock with a par value of $0.01 per share (the "Preferred
Stock").
A description of the respective classes of stock and a statement of the
designations, preferences, voting powers (or no voting powers), relative,
participating, optional or other special rights and privileges and the
qualifications, limitations and restrictions of the Preferred Stock and Common
Stock are as follows:
A. PREFERRED STOCK.
The Preferred Stock may be issued in one or more series at
such time or times and for such consideration or considerations as the board of
directors may determine. Each series shall be so designated as to distinguish
the shares thereof from the shares of all other series and classes. Except as
may be expressly provided in this Amended and Restated Certificate of
Incorporation, including any certificate of designations for a series of
Preferred Stock, different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purpose of voting by classes.
The board of directors is expressly authorized, subject to the
limitations prescribed by law and the provisions of this Amended and Restated
Certificate of Incorporation, to provide for the issuance of all or any shares
of the Preferred Stock, in one or more series, each
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with such designations, preferences, voting powers (or no voting powers),
relative, participating, optional or other special rights and privileges and
such qualifications, limitations or restrictions thereof as shall be stated in
the resolution or resolutions adopted by the board of directors to create such
series, and a certificate of designations setting forth a copy of said
resolution or resolutions shall be filed in accordance with the General
Corporation Law of the State of Delaware. The authority of the board of
directors with respect to each such series shall include without limitation of
the foregoing the right to specify the number of shares of each such series and
to authorize an increase or decrease in such number of shares and the right to
provide that the shares of each such series may be: (i) subject to redemption at
such time or times and at such price or prices; (ii) entitled to receive
dividends (which may be cumulative or non-cumulative) at such rates, on such
conditions, and at such times, and payable in preference to, or in such relation
to, the dividends payable on any other class or classes or any other series;
(iii) entitled to such rights upon the dissolution of, or upon any distribution
of the assets of, the corporation; (iv) convertible into, or exchangeable for,
shares of any other class or classes of stock, or of any other series of the
same or any other class or classes of stock of the corporation at such price or
prices or at such rates of exchange and with such adjustments, if any; (v)
entitled to the benefit of such limitations, if any, on the issuance of
additional shares of such series or shares of any other series of Preferred
Stock; or (vi) entitled to such other preferences, powers, qualifications,
rights and privileges, all as the board of directors may deem advisable and as
are not inconsistent with law and the provisions of this Amended and Restated
Certificate of Incorporation. The number of authorized shares of Preferred Stock
may be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the Common
Stock, without a vote of the holders of the Preferred Stock, or of any series
thereof, unless a vote of such holder is required pursuant to the terms of any
Preferred Stock designation.
B. COMMON STOCK
A. RELATIVE RIGHTS OF PREFERRED STOCK AND COMMON STOCK. All
preferences, voting powers, relative, participating, optional or other special
rights and privileges, and qualifications, limitations, or restrictions of the
Common Stock are expressly made subject and subordinate to those that may be
fixed with respect to any shares of the Preferred Stock.
B. VOTING RIGHTS. Except as otherwise required by law or this
Amended and Restated Certificate of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of stock held by such holder of
record on the books of the corporation for the election of directors and on all
matters submitted to a vote of stockholders of the corporation; PROVIDED,
HOWEVER, that, except as otherwise required by law, holders of Common Stock
shall not be entitled to vote on any amendment to this Amended and Restated
Certificate of Incorporation (including any certificate of designations relating
to any series of Preferred Stock) that relates solely to the terms of one or
more outstanding series of Preferred Stock if the holders of such affected
series are entitled, either separately or together as a class with the holders
of one or more other such series, to vote thereon pursuant to this Amended and
Restated Certificate of Incorporation (including any certificate of designations
relating to any series of Preferred Stock).
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C. CUMULATIVE VOTING. Holders of stock of any class or series
of the corporation shall not be entitled to cumulate their votes for the
election of directors or any other matter submitted to a vote of the
stockholders, unless such cumulative voting is required pursuant to Sections
2115 or 301.5 of the California General Corporation Law, in which event each
such holder shall be entitled to as many votes as shall equal the number of
votes which (except for this provision as to cumulative voting) such holder
would be entitled to cast for the election of directors with respect to such
holder's shares of stock multiplied by the number of directors to be elected by
such holder, and the holder may cast all of such votes for a single director or
may distribute them among the number of directors to be voted for, or for any
two or more of them as such holder may see fit, so long as the name of the
candidate for director shall have been placed in nomination prior to the voting
and the stockholder, or any other holder of the same class or series of stock,
has given notice at the meeting prior to the voting of the intention to cumulate
votes.
D. DIVIDENDS. Subject to the preferential rights of the
Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive, when and if declared by the board of directors, out of the assets of
the corporation which are by law available therefor, dividends payable either in
cash, in property or in shares of capital stock.
E. DISSOLUTION, LIQUIDATION OR WINDING UP. In the event of
any dissolution, liquidation or winding up of the affairs of the corporation,
after distribution in full of the preferential amounts, if any, to be
distributed to the holders of shares of Preferred Stock, holders of Common Stock
shall be entitled, unless otherwise provided by law or this Amended and Restated
Certificate of Incorporation, including any certificate of designations for a
series of Preferred Stock, to receive all of the remaining assets of the
corporation of whatever kind available for distribution to stockholders ratably
in proportion to the number of shares of Common Stock held by them respectively.
FIFTH. The corporation is to have perpetual existence.
SIXTH. In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware:
A. The board of directors of the corporation is expressly
authorized:
(i) To make, alter or repeal the Bylaws of the
corporation.
(ii) To authorize and cause to be executed mortgages
and liens upon the real and personal property of the corporation.
(iii) To set apart out of any of the funds of the
corporation available for dividends a reserve or reserves for any proper
purpose and to abolish any such reserve in the manner in which it was created.
(iv) By a majority of the whole board, to designate
one or more committees, each committee to consist of one or more of the
directors of the corporation. The board may designate one or more directors as
alternate members of any committee, who may replace any
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absent or disqualified member of any committee. The Bylaws may provide that in
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not such member or members constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the board of directors, or in the Bylaws of the
corporation, shall have and may exercise all the powers and authority of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the Amended and Restated Certificate of
Incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the board of directors as provided in Section 151(a) of the General
Corporation Law of the State of Delaware, fix any of the preferences or rights
of such shares relating to dividends, redemption, dissolution, any distribution
of assets of the corporation or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other series of the same
or any other class or classes of stock of the corporation), adopting an
agreement of merger or consolidation under Sections 251 or 252 of the General
Corporation Law of the State of Delaware, recommending to the stockholders the
sale, lease or exchange, of all or substantially all of the corporation's
property and assets, recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution, or amending the Bylaws of the
corporation; and, unless the resolution or Bylaws expressly so provided, no such
committee shall have the power or authority to declare a dividend, to authorize
the issuance of stock, or to adopt a certificate of ownership and merger
pursuant to Section 253 of the General Corporation Law of the State of Delaware.
(v) When and as authorized by the stockholders in
accordance with statute, to sell, lease or exchange all or substantially all of
the property and assets of the corporation, including its good will and its
corporate franchises, upon such terms and conditions and for such consideration,
which may consist in whole or in part of money or property, including shares of
stock in, and/or other securities of, any other corporation or corporations, as
its board of directors shall deem expedient and for the best interests of the
corporation.
B. Elections of directors need not be by written ballot
unless the Bylaws of the corporation shall so provide.
C. The books of the corporation may be kept at such place
within or without the State of Delaware as the Bylaws of the corporation may
provide or as may be designated from time to time by the board of directors of
the corporation.
D. Special meetings of stockholders of the corporation may be
called only by the board of directors acting pursuant to a resolution adopted by
a majority of the Whole Board. For purposes of this Amended and Restated
Certificate of Incorporation, the term "Whole Board" shall mean the total number
of authorized directors whether or not there exist any vacancies in previously
authorized directorships.
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SEVENTH. Whenever a compromise or arrangement is proposed between this
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 classes of creditors, and/or
of the stockholders or classes of stockholders of this 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 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.
EIGHTH. A director of this corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended hereafter
to authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of repeal or
modification.
NINTH.
A. To the fullest extent permitted by applicable law, the
corporation is also authorized to provide indemnification of (and advancement of
expenses to) such agents (and any other persons to which Delaware law permits
the corporation to provide indemnification) through Bylaw provisions, agreements
with such agents or other persons, vote of stockholders or disinterested
directors or otherwise, in excess of the indemnification and advancement
otherwise permitted by Section 145 of the Delaware General Corporation Law,
subject only to limits created by applicable Delaware law (statutory or
non-statutory), with respect to actions for breach of duty to a corporation, its
stockholders, and others.
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B. Any repeal or modification of any of the foregoing
provisions of this Article NINTH shall not adversely affect any right or
protection of a director, officer, agent or other person existing at the time
of, or increase the liability of any director of the Corporation with respect to
any acts or omissions of such director, officer or agent occurring prior to such
repeal or modification.
C. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against, any expense, liability or loss reasonably incurred or suffered by such
person in connection with his or her service as a director, officer, employee or
agent of such entity, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
TENTH. The corporation reserves the right to amend or repeal
any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon a stockholder herein are granted subject to this
reservation.
ELEVENTH. No action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting and the power
of stockholders to consent in writing, without a meeting, to the taking of any
action is specifically denied. Special meetings of the stockholders of this
corporation may be called only by the Chairman of the Board or the President of
this corporation or by a resolution adopted by the affirmative vote of a
majority of the Board of Directors.
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