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Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
GENOMICA CORPORATION
Pursuant to Sections 242 & 245
Genomica Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, Does Hereby
Certify:
1. The name of the corporation is Genomica Corporation. The corporation
was originally incorporated under the name Genomica Inc. The date of filing of
its original Certificate of Incorporation with the Secretary of State of the
State of Delaware was September 6, 1995.
2. This Restated Certificate of Incorporation restates and further amends
the Restated Certificate of Incorporation, as amended, of this corporation by
restating the text of the original Restated Certificate of Incorporation in full
to read as follows:
I.
The name of this Corporation is Genomica Corporation (the "Corporation" or
the "Company").
II.
The address, including street, number, city and county, of the registered
office of the Corporation in the State of Delaware is 1209 Orange Street, City
of Wilmington, County of New Castle, and the name of the registered agent of the
Corporation in the State of Delaware at such address is The Corporation Trust
Company.
III.
The purpose of this Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
IV.
A. This Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total
number of shares which the Corporation is authorized to issue is one hundred
thirteen million eight hundred thirty-eight thousand one-hundred seventy-eight
(113,838,178) shares. Sixty-five million (65,000,000) shares shall be Common
Stock, each having a par value of $.001. Forty-eight million eight hundred
thirty-eight thousand one hundred seventy-eight (48,838,178) shares shall be
Preferred Stock, each having a par value of $.001.
B. The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares of Common Stock then outstanding)
by the affirmative vote of
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the holders of a majority of the stock of the Corporation (voting together on an
as-if-converted basis).
C. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, within the limitations and
restrictions stated in this Certificate of Incorporation, to fix or alter the
dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), the redemption price or
prices, the liquidation preferences of any wholly unissued series of Preferred
Stock, and the number of shares constituting any such series and the designation
thereof, or any of them; and to increase or decrease the number of shares of any
series subsequent to the issue of shares of that series, but not below the
number of shares of such series then outstanding. In case the number of shares
of any series shall be so decreased, the shares constituting such decrease shall
resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
D. Twelve million six hundred eighty-eight thousand one hundred seventy-
eight (12,688,178) of the authorized shares of Preferred Stock are hereby
designated "Series A Preferred Stock" (the "Series A Stock"). Twenty five
million (25,000,000) of the authorized shares of Preferred Stock are hereby
designated "Series B Preferred Stock" (the "Series B Stock"). Ten million two-
hundred fifty thousand (10,250,000) of the authorized shares of Preferred Stock
are hereby designated "Series C Preferred Stock" (the "Series C Stock"). Nine
hundred thousand (900,000) of the authorized shares of Preferred Stock are
hereby designated "Series D Preferred Stock" (the "Series D Stock").
E. The rights, preferences, privileges, restrictions and other matters
relating to the Series A Stock, Series B Stock, Series C Stock and Series D
Stock are as follows:
1. Dividend Rights. The holders of Preferred Stock shall not be
entitled to receive dividends, except as declared, and at such rates per share,
as may be specified by the Board of Directors of the Corporation. No dividends
shall be paid on any share of Common Stock unless a dividend is paid with
respect to all outstanding shares of Series A Stock, Series B Stock, Series C
Stock and Series D Stock in an amount for each such share of Series A Stock,
Series B Stock, Series C Stock and Series D Stock equal to or greater than the
aggregate amount of such dividends for all shares of Common Stock into which
each such share of Series A Stock, Series B Stock, Series C Stock and Series D
Stock could then be converted. No dividend shall be paid on or declared and set
apart for the shares of any series of Preferred Stock unless at the same time a
like proportionate dividend (ratably and proportional to the respective
liquidation preference for each such series of Preferred Stock as set forth in
Section 3(a) below) shall be paid on or declared or set apart for the shares of
all other series of Preferred Stock.
2. Voting Rights.
a. General Rights. Except as otherwise provided herein or as
required by law, the Series A Stock, Series B Stock, Series C Stock and Series D
Stock shall be voted equally with the shares of the Common Stock of the Company
and not as a separate class, at any annual or special meeting of stockholders of
the Company, and may act by written consent in the same manner as the Common
Stock, in either case upon the following basis: each holder of
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shares of Series A Stock, Series B Stock, Series C Stock and Series D Stock
shall be entitled to such number of votes as shall be equal to the whole number
of shares of Common Stock into which such holder's aggregate number of shares of
Series A Stock, Series B Stock, Series C Stock or Series D Stock, respectively,
are convertible (pursuant to Section 4 hereof) immediately after the close of
business on the record date fixed for such meeting or the effective date of such
written consent.
b. Separate Vote of Series A Stock. For so long as at least eight
hundred thousand (800,000) shares of Series A Stock (subject to adjustment for
any stock split, reverse stock split or other similar event affecting the Series
A Stock) remain outstanding, in addition to any other vote or consent required
herein or by law, the vote or written consent of the holders of a majority of
the outstanding Series A Stock shall be necessary for effecting or validating
the following actions:
(i) Any increase or decrease (other than by redemption or
conversion) in the authorized number of shares of Series A Stock;
(ii) Any authorization or any designation, whether by
reclassification or otherwise, of any new class or series of stock or any other
securities convertible into equity securities of the Company ranking senior to
the Series A Stock in right of redemption, liquidation preference, voting or
dividends or any increase in the authorized or designated number of any such new
class or series;
(iii) Any voluntary dissolution or liquidation of the Company;
(iv) Any action that results in the payment or declaration
of a dividend on any shares of Common Stock; and
(v) Any redemption, repurchase, payment of dividends or other
distributions with respect to any other stock of the Company except the Series A
Stock, Series B Stock, Series C Stock and Series D Stock ("Junior Stock")
(except for acquisitions of Common Stock by the Company pursuant to agreements
which permit the Company to repurchase such shares upon termination of services
to the Company or in exercise of the Company's right of first refusal upon a
proposed transfer).
c. Separate Vote of Series B Stock. For so long as at least one
million three hundred thousand (1,300,000) shares of Series B Stock (subject to
adjustment for any stock split, reverse stock split or other similar event
affecting the Series B Stock) remain outstanding, in addition to any other vote
or consent required herein or by law, the vote or written consent of the holders
of a majority of the outstanding Series B Stock shall be necessary for effecting
or validating the following actions:
(i) Any increase or decrease in the authorized number of shares
of Series B Stock, other than (a) a decrease in connection with a redemption or
conversion; or (b) a decrease which does not reduce the authorized number to
shares of Series B Stock below a number equal to the sum of the outstanding
Series B Stock plus all reservations for future issuances upon the exercise of
warrants, options or other rights;
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(ii) Any authorization or any designation, whether by
reclassification or otherwise, of any new class or series of stock or any other
securities convertible into equity securities of the Company ranking senior to
the Series B Stock in right of redemption, liquidation preference, voting or
dividends or any increase in the authorized or designated number of any such new
class or series;
(iii) Any voluntary dissolution or liquidation of the Company;
(iv) Any action that results in the payment or declaration
of a dividend on any shares of Common Stock; and
(v) Any redemption, repurchase, payment of dividends or other
distributions with respect to Junior Stock (except for acquisitions of Common
Stock by the Company pursuant to agreements which permit the Company to
repurchase such shares upon termination of services to the Company or in
exercise of the Company's right of first refusal upon a proposed transfer).
d. Separate Vote of Series C Stock. For so long as at least five-
hundred thirty-three thousand (533,000) shares of Series C Stock (subject to
adjustment for any stock split, reverse stock split or other similar event
affecting the Series C Stock) remain outstanding, in addition to any other vote
or consent required herein or by law, the vote or written consent of the holders
of a majority of the outstanding Series C Stock shall be necessary for effecting
or validating the following actions:
(i) Any increase or decrease in the authorized number of shares
of Series C Stock, other than (a) a decrease in connection with a redemption or
conversion; or (b) a decrease which does not reduce the authorized number to
shares of Series C Stock below a number equal to the sum of the outstanding
Series C Stock plus all reservations for future issuances upon the exercise of
warrants, options or other rights;
(ii) Any authorization or any designation, whether by
reclassification or otherwise, of any new class or series of stock or any other
securities convertible into equity securities of the Company ranking senior to
the Series C Stock in right of redemption, liquidation preference, voting or
dividends or any increase in the authorized or designated number of any such new
class or series; and
(iii) Any redemption, repurchase, payment of dividends or other
distributions with respect to Junior Stock (except for acquisitions of Common
Stock by the Company pursuant to agreements which permit the Company to
repurchase such shares upon termination of services to the Company or in
exercise of the Company's right of first refusal upon a proposed transfer).
e. Separate Vote of Series D Stock. For so long as at least fifteen
thousand (15,000) shares of Series D Stock (subject to adjustment for any stock
split, reverse stock split or other similar event affecting the Series D Stock)
remain outstanding, in addition to any other vote or consent required herein or
by law, the vote or written consent of the holders of a majority of the
outstanding Series D Stock shall be necessary for effecting or validating the
following actions:
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(i) Any increase or decrease in the authorized number of
shares of Series D Stock, other than (a) a decrease in connection with a
redemption or conversion; or (b) a decrease which does not reduce the authorized
number to shares of Series D Stock below a number equal to the sum of the
outstanding Series D Stock plus all reservations for future issuances upon the
exercise of warrants, options or other rights;
(ii) Any authorization or any designation, whether by
reclassification or otherwise, of any new class or series of stock or any other
securities convertible into equity securities of the Company ranking senior to
the Series D Stock in right of redemption, liquidation preference, voting or
dividends or any increase in the authorized or designated number of any such new
class or series; and
(iii) Any redemption, repurchase, payment of dividends or other
distributions with respect to Junior Stock (except for acquisitions of Common
Stock by the Company pursuant to agreements which permit the Company to
repurchase such shares upon termination of services to the Company or in
exercise of the Company's right of first refusal upon a proposed transfer).
f. Separate Vote of Series C and Series D Stock. For so long as at
least five hundred forty-eight thousand (548,000) shares of Series C Stock and
Series D Stock (subject to adjustment for any stock split, reverse stock split
or other similar event affecting the Series C Stock or Series D Stock) remain
outstanding, in addition to any other vote or consent required herein or by law,
the vote or written consent of the holders of a majority of the outstanding
Series C Stock and Series D Stock shall be necessary for effecting or validating
the following actions:
(i) Any voluntary dissolution or liquidation of the Company;
or
(ii) Any action that results in the payment or declaration
of a dividend on any shares of Common Stock.
g. Separate Vote of Preferred Stock. In addition to any other vote
or consent required herein or by law, the vote or written consent of the holders
of a majority of the outstanding Preferred Stock, voting together as a separate
class, shall be necessary for effecting or validating any agreement by the
Company or its stockholders regarding an Asset Transfer or Acquisition (each as
defined in Section 3(c) below).
h. Election of Board of Directors. The holders of Series A Stock,
voting together as a series shall be entitled to elect four (4) members of the
Board of Directors. The holders of the Common Stock shall be entitled to elect
two (2) members of the Board of Directors. The holders of Series C Stock,
voting together as a series shall be entitled to elect one (1) member of the
Board of Directors.
3. Liquidation Rights.
a. Upon any liquidation, dissolution, or winding up of the Company,
whether voluntary or involuntary, before any distribution or payment shall be
made to the
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holders of any Junior Stock, (i) the holders of Series A Stock shall be entitled
to be paid out of the assets of the Company an amount per share of Series A
Stock equal to the Series A Original Issue Price (as defined in Section 4(b))
(as adjusted for any stock dividends, combinations, splits, recapitalizations
and the like with respect to such shares) plus all declared and unpaid dividends
on the Series A Stock; (ii) the holders of Series B Stock shall be entitled to
be paid out of the assets of the Company an amount per share of Series B Stock
equal to the Series B Original Issue Price (as defined in Section 4(b)) (as
adjusted for any stock dividends, combinations, splits, recapitalizations and
the like with respect to such shares) plus all declared and unpaid dividends on
the Series B Stock; (iii) the holders of Series C Stock shall be entitled to be
paid out of the assets of the Company an amount per share of Series C Stock
equal to the Series C Original Issue Price (as defined in Section 4(b)) (as
adjusted for any stock dividends, combinations, splits, recapitalizations and
the like with respect to such shares) plus all declared and unpaid dividends on
the Series C Stock; and (iv) the holders of Series D Stock shall be entitled to
be paid out of the assets of the Company an amount per share of Series D Stock
equal to the Series D Original Issue Price (as defined in Section 4(b)) (as
adjusted for any stock dividends, combinations, splits, recapitalizations and
the like with respect to such shares) plus all declared and unpaid dividends on
the Series D Stock.
b. After the payment of the full liquidation preference of the
Series A Stock, the Series B Stock, the Series C Stock and the Series D Stock as
set forth in Section 3(a) above, the remaining assets of the Company legally
available for distribution, if any, shall be distributed ratably to the holders
of the Common Stock.
c. The following events shall be considered a liquidation under this
Section 3 (unless with respect to each series of Preferred Stock it is
determined otherwise by the holders of a majority of the outstanding shares of
that series of Preferred Stock):
(i) (A) a consolidation or merger of the Company with or into
any other corporation or other entity or person, or any other corporate
reorganization, in which the stockholders of the Company immediately prior to
such consolidation, merger or reorganization, own less than 50% of the
outstanding voting power of the surviving entity (or its parent) following the
consolidation, merger or reorganization or (B) any transaction (or series of
related transactions involving a person or entity, or a group of affiliated
persons or entities) in which in excess of fifty percent (50%) of the Company's
outstanding voting power is transferred (collectively, an "Acquisition"); or
(ii) a sale, lease or other disposition of all or substantially
all of the assets of the Company (an "Asset Transfer").
d. If, upon any liquidation, distribution, or winding up, the assets
of the Company shall be insufficient to make payment in full to all holders of
Series A Stock, Series B Stock, Series C Stock and Series D Stock of the
liquidation preference set forth in Section 3(a), then such assets shall be
distributed among the holders of Series A Stock, Series B Stock, Series C Stock
and Series D Stock at the time outstanding, ratably in proportion to the full
amounts to which they would otherwise be respectively entitled.
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4. Conversion Rights.
The holders of the Series A Stock, Series B Stock, Series C Stock and
Series D Stock shall have the following rights with respect to the conversion of
the Series A Stock, Series B Stock, Series C Stock and Series D Stock into
shares of Common Stock (the "Conversion Rights"):
a. Optional Conversion. Subject to and in compliance with the
provisions of this Section 4, any shares of Series A Stock, Series B Stock,
Series C Stock and Series D Stock may, at the option of the holder, be converted
at any time into fully-paid and nonassessable shares of Common Stock. The
number of shares of Common Stock to which a holder of Series A Stock, Series B
Stock, Series C Stock or Series D Stock shall be entitled upon conversion shall
be the product obtained by multiplying the applicable "Conversion Rate" then in
effect (determined as provided in Section 4(b)) by the number of shares of
Series A Stock, Series B Stock, Series C Stock or Series D Stock being
converted.
b. Conversion Rate. The conversion rate in effect at any time for
conversion of the Series A Stock (the "Series A Conversion Rate") shall be the
quotient obtained by dividing the Series A Original Issue Price by the "Series A
Conversion Price," calculated as provided in Section 4(c). The "Original Issue
Price" of the Series A Stock shall be $0.6024 (the "Series A Original Issue
Price"). The conversion rate in effect at any time for conversion of the Series
B Stock (the "Series B Conversion Rate") shall be the quotient obtained by
dividing the Series B Original Issue Price by the "Series B Conversion Price,"
calculated as provided in Section 4(c). The "Original Issue Price" of the
Series B Stock shall be $0.72 (the "Series B Original Issue Price"). The
conversion rate in effect at any time for conversion of the Series C Stock (the
"Series C Conversion Rate") shall be the quotient obtained by dividing the
Series C Original Issue Price by the "Series C Conversion Price," calculated as
provided in Section 4(c). The "Original Issue Price" of the Series C Stock
shall be $1.50 (the "Series C Original Issue Price"). The conversion rate in
effect at any time for conversion of the Series D Stock (the "Series D
Conversion Rate") shall be the quotient obtained by dividing the Series D
Original Issue Price by the "Series D Conversion Price," calculated as provided
in Section 4(c). The "Original Issue Price" of the Series D Stock shall be
$3.34 (the "Series D Original Issue Price").
c. Conversion Price. The conversion price for the Series A Stock
shall initially be the Series A Original Issue Price (the "Series A Conversion
Price"). Such initial Series A Conversion Price shall be adjusted from time to
time in accordance with this Section 4. All references to the Series A
Conversion Price herein shall mean the Series A Conversion Price as so adjusted.
The conversion price for the Series B Stock shall initially be the Series B
Original Issue Price (the "Series B Conversion Price"). Such initial Series B
Conversion Price shall be adjusted from time to time in accordance with this
Section 4. All references to the Series B Conversion Price herein shall mean
the Series B Conversion Price as so adjusted. The conversion price for the
Series C Stock shall initially be the Series C Original Issue Price (the "Series
C Conversion Price"). Such initial Series C Conversion Price shall be adjusted
from time to time in accordance with this Section 4. All references to the
Series C Conversion Price herein shall mean the Series C Conversion Price as so
adjusted. The conversion price for the Series D Stock shall initially be the
Series D Original Issue Price (the
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"Series D Conversion Price"). Such initial Series D Conversion Price shall be
adjusted from time to time in accordance with this Section 4. All references to
the Series D Conversion Price herein shall mean the Series D Conversion Price as
so adjusted. The Series A Conversion Price, the Series B Conversion Price, the
Series C Conversion Price and the Series D Conversion Price shall collectively
be referred to as the "Conversion Prices," and each a "Conversion Price."
d. Sale of Shares Below Conversion Price.
(i) If at any time or from time to time after the date that the first
share of Series A Stock, Series B Stock, Series C Stock or Series D Stock, as
applicable, is issued (the "Original Issue Date"), the Company issues or sells,
or is deemed by the express provisions of this Section 4(d) to have issued or
sold, Additional Shares of Common Stock (as hereinafter defined), other than as
a dividend or other distribution on any class of stock as provided in Section
4(f), and other than a subdivision or combination of shares of Common Stock as
provided in Section 4(e), for an Effective Price (as hereinafter defined) less
than the applicable effective Conversion Price, then and in each such case such
then-existing Conversion Price shall be reduced, as of the opening of business
on the date of such issue or sale, to a price determined by multiplying such
Conversion Price by a fraction (i) the numerator of which shall be (A) the
number of shares of Common Stock deemed outstanding (as defined below)
immediately prior to such issue or sale, plus (B) the number of shares of Common
Stock which the aggregate consideration received (as defined in subsection
d(ii)) by the Company for the total number of Additional Shares of Common Stock
so issued would purchase at such Conversion Price, and (ii) the denominator of
which shall be the number of shares of Common Stock deemed outstanding (as
defined below) immediately prior to such issue or sale plus the total number of
Additional Shares of Common Stock so issued. For the purposes of the preceding
sentence, the number of shares of Common Stock deemed to be outstanding as of a
given date shall be the sum of (A) the number of shares of Common Stock actually
outstanding, (B) the number of shares of Common Stock into which the then-
outstanding shares of Series A Stock, Series B Stock, Series C Stock and Series
D Stock could be converted if fully converted on the day immediately preceding
the given date, and (C) the number of shares of Common Stock which could be
obtained through the exercise or conversion of all other rights, options and
convertible securities outstanding on the day immediately preceding the given
date.
(ii) For the purpose of making any adjustment required under this
Section 4(d), the consideration received by the Company for any issue or sale of
securities shall (A) to the extent it consists of cash, be computed at the net
amount of cash received by the Company after deduction of any underwriting or
similar commissions, compensation or concessions paid or allowed by the Company
in connection with such issue or sale but without deduction of any expenses
payable by the Company, (B) to the extent it consists of property other than
cash, be computed at the fair value of that property as determined in good faith
by the Board of Directors, and (C) if Additional Shares of Common Stock,
Convertible Securities (as hereinafter defined) or rights or options to purchase
either Additional Shares of Common Stock or Convertible Securities are issued or
sold together with other stock or securities or other assets of the Company for
a consideration which covers both, be computed as the portion of the
consideration so received that may be reasonably determined in good faith by the
Board of Directors to be allocable to such Additional Shares of Common Stock,
Convertible Securities or rights or options.
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(iii) For the purpose of the adjustment required under this
Section 4(d), if the Company issues or sells any rights or options for the
purchase of, or stock or other securities convertible into, Additional Shares of
Common Stock (such convertible stock or securities being herein referred to as
"Convertible Securities") and if the Effective Price of such Additional Shares
of Common Stock is less than the Conversion Price, in each case the Company
shall be deemed to have issued at the time of the issuance of such rights or
options or Convertible Securities the maximum number of Additional Shares of
Common Stock issuable upon exercise or conversion thereof and to have received
as consideration for the issuance of such shares an amount equal to the total
amount of the consideration, if any, received by the Company for the issuance of
such rights or options or Convertible Securities, plus, in the case of such
rights or options, the minimum amounts of consideration, if any, payable to the
Company upon the exercise of such rights or options, plus, in the case of
Convertible Securities, the minimum amounts of consideration, if any, payable to
the Company (other than by cancellation of liabilities or obligations evidenced
by such Convertible Securities) upon the conversion thereof; provided, that, if
in the case of Convertible Securities the minimum amounts of such consideration
cannot be ascertained, but are a function of antidilution or similar protective
clauses, the Company shall be deemed to have received the minimum amounts of
consideration without reference to such clauses; provided, further, that if the
minimum amount of consideration payable to the Company upon the exercise or
conversion of rights, options or Convertible Securities is reduced over time or
on the occurrence or non-occurrence of specified events other than by reason of
antidilution adjustments, the Effective Price shall be recalculated using the
figure to which such minimum amount of consideration is reduced; provided,
further, that if the minimum amount of consideration payable to the Company upon
the exercise or conversion of such rights, options or Convertible Securities is
subsequently increased, the Effective Price shall be again recalculated using
the increased minimum amount of consideration payable to the Company upon the
exercise or conversion of such rights, options or Convertible Securities;
provided, further, that the Conversion Price shall in no event be increased
above the Conversion Price had no such rights, options or Convertible Securities
been issued. No further adjustment of any Conversion Price, as adjusted upon the
issuance of such rights, options or Convertible Securities, shall be made as a
result of the actual issuance of Additional Shares of Common Stock on the
exercise of any such rights or options or the conversion of any such Convertible
Securities. If any such rights or options or the conversion privilege
represented by any such Convertible Securities shall expire without having been
exercised, any Conversion Price as adjusted upon the issuance of such rights,
options or Convertible Securities shall be readjusted to the Conversion Price
which would have been in effect had an adjustment been made on the basis that
the only Additional Shares of Common Stock so issued were the Additional Shares
of Common Stock, if any, actually issued or sold on the exercise of such rights
or options or rights of conversion of such Convertible Securities, and such
Additional Shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise, plus the
consideration, if any, actually received by the Company for the granting of all
such rights or options, whether or not exercised, plus the consideration
received for issuing or selling the Convertible Securities actually converted,
plus the consideration, if any, actually received by the Company (other than by
cancellation of liabilities or obligations evidenced by such Convertible
Securities) on the conversion of such Convertible Securities, provided that such
readjustment shall not apply to prior conversions of Series A Stock, Series B
Stock, Series C Stock or Series D Stock.
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(iv) "Additional Shares of Common Stock" shall mean all shares
of Common Stock issued by the Company or deemed to be issued pursuant to this
Section 4(d), whether or not subsequently reacquired or retired by the Company
other than (A) shares of Common Stock issued upon conversion of the Series A
Stock, Series B Stock, Series C Stock or Series D Stock; (B) shares of Common
Stock and/or options, warrants or other Common Stock purchase rights, and the
Common Stock issued pursuant to such options, warrants or other rights (as
adjusted for any stock dividends, combinations, splits, recapitalizations and
the like) after the Original Issue Date to employees, officers or directors of,
or consultants or advisors to the Company or any subsidiary pursuant to stock
purchase or stock option plans or other arrangements that are approved by the
Board of Directors; (C) shares of Common Stock issued pursuant to the exercise
of options, warrants or convertible securities outstanding as of the Original
Issue Date; (D) shares of Common Stock issued in connection with the Company's
initial public offering; and (E) shares of Common Stock or Preferred Stock
issued as a dividend (i) to the holders of Series A Stock, Series B Stock,
Series C Stock and Series D Stock or (ii) addressed in Section 4(f) or Section
4(g). The "Effective Price" of Additional Shares of Common Stock shall mean the
quotient determined by dividing the total number of Additional Shares of Common
Stock issued or sold, or deemed to have been issued or sold by the Company under
this Section 4(d), into the aggregate consideration received, or deemed to have
been received by the Company for such issue under this Section 4(d), for such
Additional Shares of Common Stock.
e. Adjustment for Stock Splits and Combinations. If the Company
shall at any time or from time to time after the Original Issue Date effect a
subdivision of the outstanding Common Stock without a corresponding subdivision
of the Preferred Stock, each Conversion Price in effect immediately before that
subdivision shall be proportionately decreased. Conversely, if the Company shall
at any time or from time to time after the Original Issue Date combine the
outstanding shares of Common Stock into a smaller number of shares without a
corresponding combination of the Preferred Stock, each Conversion Price in
effect immediately before the combination shall be proportionately increased.
Any adjustment under this Section 4(e) shall become effective at the close of
business on the date the subdivision or combination becomes effective.
f. Adjustment for Common Stock Dividends and Distributions. If the
Company at any time or from time to time after the Original Issue Date makes, or
fixes a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional shares of Common
Stock, in each such event the Conversion Price then in effect shall be decreased
as of the time of such issuance or, in the event such record date is fixed, as
of the close of business on such record date, by multiplying the respective
Conversion Price then in effect by a fraction (i) the numerator of which is the
total number of shares of Common Stock issued and outstanding immediately prior
to the time of such issuance or the close of business on such record date and
(ii) the denominator of which is the total number of shares of Common Stock
issued and outstanding immediately prior to the time of such issuance or the
close of business on such record date plus the number of shares of Common Stock
issuable in payment of such dividend or distribution; provided, however, that if
such record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Conversion Price
shall be recomputed accordingly as of the close of
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business on such record date and thereafter the Conversion Price shall be
adjusted pursuant to this Section 4(f) to reflect the actual payment of such
dividend or distribution.
g. Adjustments for Other Dividends and Distributions. If the Company
at any time or from time to time after the Original Issue Date makes, or fixes a
record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
other than shares of Common Stock, in each such event provision shall be made so
that the holders of the Series A Stock, Series B Stock, Series C Stock and
Series D Stock shall receive upon conversion thereof, in addition to the number
of shares of Common Stock receivable thereupon, the amount of other securities
of the Company which they would have received had their Series A Stock, Series B
Stock, Series C Stock or Series D Stock, as applicable, been converted into
Common Stock on the date of such event and had they thereafter, during the
period from the date of such event to and including the conversion date,
retained such securities receivable by them as aforesaid during such period,
subject to all other adjustments called for during such period under this
Section 4 with respect to the rights of the holders of the Series A Stock,
Series B Stock, Series C Stock or Series D Stock, as applicable, or with respect
to such other securities by their terms.
h. Adjustment for Reclassification, Exchange and Substitution. If at
any time or from time to time after the Original Issue Date, the Common Stock
issuable upon the conversion of the Series A Stock, Series B Stock, Series C
Stock and Series D Stock is changed into the same or a different number of
shares of any class or classes of stock, whether by recapitalization,
reclassification or otherwise (other than an Acquisition or Asset Transfer as
defined in Section 3(c) or a subdivision or combination of shares or stock
dividend or a reorganization, merger, consolidation or sale of assets provided
for elsewhere in this Section 4), in any such event each holder of Series A
Stock, Series B Stock, Series C Stock and Series D Stock shall have the right
thereafter to convert such stock into the kind and amount of stock and other
securities and property receivable upon such recapitalization, reclassification
or other change by holders of the maximum number of shares of Common Stock into
which such shares of Series A Stock, Series B Stock, Series C Stock or Series D
Stock, as applicable, could have been converted immediately prior to such
recapitalization, reclassification or change, all subject to further adjustment
as provided herein or with respect to such other securities or property by the
terms thereof.
i. Reorganizations, Mergers, Consolidations or Sales of Assets. If
at any time or from time to time after the Original Issue Date, there is an
Acquisition or Asset Transfer (as defined in Section 3(c)), or merger,
consolidation, or other capital reorganization of the Common Stock (other than
an Acquisition or Asset Transfer considered a liquidation pursuant to Section
3(c) or a recapitalization, subdivision, combination, reclassification, exchange
or substitution of shares provided for elsewhere in this Section 4), as a part
of such capital reorganization, provision shall be made so that the holders of
the Series A Stock, Series B Stock, Series C Stock and Series D Stock shall
thereafter be entitled to receive upon conversion of the Series A Stock, Series
B Stock, Series C Stock and Series D Stock the number of shares of stock or
other securities or property of the Company to which a holder of the number of
shares of Common Stock deliverable upon conversion would have been entitled on
such capital reorganization, subject to adjustment in respect of such stock or
securities by the terms thereof. In any such case, appropriate adjustment shall
be made in the application of the provisions of this
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Section 4 with respect to the rights of the holders of Series A Stock, Series B
Stock, Series C Stock and Series D Stock after the capital reorganization to the
end that the provisions of this Section 4 (including adjustment of the
Conversion Price then in effect and the number of shares issuable upon
conversion of the Series A Stock, Series B Stock, Series C Stock or Series D
Stock, as applicable) shall be applicable after that event and be as nearly
equivalent as practicable.
j. Certificate of Adjustment. In each case of an adjustment or
readjustment of the Conversion Price for the number of shares of Common Stock or
other securities issuable upon conversion of the Series A Stock, Series B Stock,
Series C Stock or Series D Stock, if the Series A Stock, Series B Stock, Series
C Stock or Series D Stock is then convertible pursuant to this Section 4, the
Company, at its expense, shall compute such adjustment or readjustment in
accordance with the provisions hereof and prepare a certificate showing such
adjustment or readjustment, and shall mail such certificate, by first class
mail, postage prepaid, to each registered holder of such stock at the holder's
address as shown in the Company's books. The certificate shall set forth such
adjustment or readjustment, showing in detail the facts upon which such
adjustment or readjustment is based, including a statement of (i) the
consideration received or deemed to be received by the Company for any
Additional Shares of Common Stock issued or sold or deemed to have been issued
or sold, (ii) each Conversion Price at the time in effect, (iii) the number of
Additional Shares of Common Stock and (iv) the type and amount, if any, of other
property which at the time would be received upon conversion of the Series A
Stock, Series B Stock, Series C Stock and Series D Stock.
k. Notices of Record Date. Upon (i) any taking by the Company 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 or other
distribution, or (ii) any Acquisition (as defined in Section 3(c)) or other
capital reorganization of the Company, any reclassification or recapitalization
of the capital stock of the Company, any merger or consolidation of the Company
with or into any other corporation, or any Asset Transfer (as defined in Section
3(c)), or any voluntary or involuntary dissolution, liquidation or winding up of
the Company, the Company shall mail to each holder of Series A Stock, Series B
Stock, Series C Stock and Series D Stock at least twenty (20) days prior to the
record date specified therein a notice specifying (A) the date on which any such
record is to be taken for the purpose of such dividend or distribution and a
description of such dividend or distribution, (B) the date on which any such
Acquisition, reorganization, reclassification, transfer, consolidation, merger,
Asset Transfer, dissolution, liquidation or winding up is expected to become
effective, and (C) the date, if any, that is to be fixed as to when the holders
of record of Common Stock (or other securities) shall be entitled to exchange
their shares of Common Stock (or other securities) for securities or other
property deliverable upon such Acquisition, reorganization, reclassification,
transfer, consolidation, merger, Asset Transfer, dissolution, liquidation or
winding up.
l. Automatic Conversion. Each share of Series A Stock, Series B
Stock, Series C Stock and Series D Stock shall automatically be converted into
shares of Common Stock, based on the then-effective applicable Conversion Price,
(A) at any time upon the affirmative election of the holders of a majority of
the outstanding shares of Series A Stock, Series B Stock, Series C Stock or
Series D Stock, each voting as a separate series, or (B) immediately upon the
closing of a firmly underwritten public offering pursuant to an effective
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registration statement under the Securities Act of 1933, as amended, covering
the offer and sale of Common Stock for the account of the Company in which (i)
the per share price is at least $2.50 per share (as adjusted for any stock
dividends, combinations, splits, recapitalizations and the like) and (ii) the
gross cash proceeds to the Company (before underwriting discounts, commissions
and fees) are at least $15,000,000. Upon such automatic conversion, any
declared and unpaid dividends shall be paid in accordance with the provisions of
Section 4(m).
m. Mechanics of Conversion.
(i) Optional Conversion. Each holder of Series A Stock, Series B
Stock, Series C Stock or Series D Stock who desires to convert the same into
shares of Common Stock pursuant to this Section 4 shall surrender the
certificate or certificates therefor, duly endorsed, at the office of the
Company or any transfer agent for such stock, and shall give written notice to
the Company at such office that such holder elects to convert the same. Such
notice shall state the number of shares of Series A Stock, Series B Stock,
Series C Stock or Series D Stock being converted. Thereupon, the Company shall
promptly issue and deliver at such office to such holder a certificate or
certificates for the number of shares of Common Stock to which such holder is
entitled and any declared and unpaid dividends, and in the case of a partial
conversion, a certificate representing such shares not being converted. Such
conversion shall be deemed to have been made at the close of business on the
date of such surrender of the certificates representing the shares of Series A
Stock, Series B Stock, Series C Stock or Series D Stock, as applicable, to be
converted, and the person 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. If such conversion is in
connection with (i) an offer of securities registered pursuant to the Securities
Act of 1933, as amended or (ii) a merger with or into another corporation or
entity, the conversion may, at the option of any holder tendering Series A
Stock, Series B Stock, Series C Stock or Series D Stock for conversion, be
conditioned upon the closing of the sale of securities pursuant to such offering
or the completion of the merger, in which event the person(s) entitled to
receive the Common Stock issuable upon such conversion of the Series A Stock,
Series B Stock, Series C Stock or Series D Stock shall not be deemed to have
converted such Series A Stock, Series B Stock, Series C Stock or Series D Stock
until immediately prior to the closing of (i) such sale of securities or (ii)
completion of the merger.
(ii) Automatic Conversion. Upon the occurrence of the event
specified in paragraph 4(l) above, the outstanding shares of Series A Stock,
Series B Stock, Series C Stock and Series D Stock subject to the conversion
shall be converted automatically without any further action by the holders of
such shares and whether or not the certificates representing such shares are
surrendered to the Company or its transfer agent; provided, however, that the
Company shall not be obligated to issue certificates evidencing the shares of
Common Stock issuable upon such conversion unless the certificates evidencing
such shares of Series A Stock, Series B Stock, Series C Stock and Series D Stock
are either delivered to the Company or its transfer agent as provided below, or
the holder notifies the Company or its transfer agent that such certificates
have been lost, stolen or destroyed and executes an agreement reasonably
satisfactory to the Company to indemnify the Company from any loss incurred by
it in connection with such certificates. Upon the occurrence of such automatic
conversion of shares of the Series A Stock, Series B Stock, Series C Stock and
Series D Stock,
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the holders of such shares of Series A Stock, Series B Stock, Series C Stock and
Series D Stock shall surrender the certificates representing such shares at the
office of the Company or any transfer agent for the Series A Stock, Series B
Stock, Series C Stock and Series D Stock, as applicable. Thereupon, there shall
be issued and delivered to such holder promptly at such office and in its name
as shown on such surrendered certificate or certificates, a certificate or
certificates for the number of shares of Common Stock into which such shares of
Series A Stock, Series B Stock, Series C Stock and Series D Stock surrendered
were convertible on the date on which such automatic conversion occurred, and
any declared and unpaid dividends shall be paid in accordance with the
provisions of Section 4(m)(i) above.
n. Fractional Shares. No fractional shares of Common Stock shall be
issued upon conversion of Series A Stock, Series B Stock, Series C Stock and
Series D Stock. All shares of Common Stock (including fractions thereof)
issuable upon conversion of more than one share of Series A Stock, Series B
Stock, Series C Stock and Series D Stock by a holder thereof shall be aggregated
for purposes of determining whether the conversion would result in the issuance
of any fractional share. If, after the aforementioned aggregation, the
conversion would result in the issuance of any fractional share, the Company
shall, in lieu of issuing any fractional share, pay cash equal to the product of
such fraction multiplied by the Common Stock's fair market value (as determined
by the Board of Directors) on the date of conversion.
5. General Provisions.
a. Reservation of Stock Issuable Upon Conversion. The Company shall
at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series A Stock, Series B Stock, Series C Stock and Series D
Stock, such number of its shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of the Series A
Stock, Series B Stock, Series C Stock and Series D Stock. If at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of the Series A Stock,
Series B Stock, Series C Stock and Series D Stock, the Company will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purpose.
b. Notices. Any notice required by the provisions of this Section 6
shall be in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified, (ii) when sent by confirmed telex or
facsimile if sent during normal business hours of the recipient; if not, then on
the next business day, (iii) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (iv) one (1)
day after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All notices shall be
addressed to each holder of record at the address of such holder appearing on
the books of the Company.
c. Payment of Taxes. The Company will pay all taxes (other than
taxes based upon income) and other governmental charges that may be imposed with
respect to the issue or delivery of shares of Common Stock upon conversion of
shares of Series A Stock, Series B Stock, Series C Stock and Series D Stock,
excluding any tax or other charge imposed in
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connection with any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in which the shares of Series A Stock,
Series B Stock, Series C Stock or Series D Stock, as applicable, so converted
were registered.
d. No Dilution or Impairment. Without the consent of the
holders of then outstanding Series A Stock, Series B Stock, Series C Stock and
Series D Stock as required under Section 2(b), 2(c), 2(d), 2(e) and/or 2(f), the
Company shall not amend its Certificate of Incorporation or participate in any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or take any other voluntary action, for the purpose of
avoiding or seeking to avoid the observance or performance of any of the terms
to be observed or performed hereunder by the Company, but shall at all times in
good faith assist in carrying out all such action as may be reasonably necessary
or appropriate in order to protect the conversion rights of the holders of the
Series A Stock, Series B Stock, Series C Stock and Series D Stock against
dilution or other impairment.
e. No Reissuance of Preferred Stock. No share or shares of
Series A Stock, Series B Stock, Series C Stock or Series D Stock acquired by the
Corporation by reason of redemption, purchase, conversion or otherwise shall be
reissued.
f. No Preemptive Rights. Stockholders shall have no preemptive
rights except as granted by the Company pursuant to written agreements.
g. Lost Certificate. Upon receipt of evidence reasonably
satisfactory to the Corporation of the loss, theft, destruction or mutilation of
a stock certificate and, in the case of any such loss, theft or destruction,
upon receipt of an indemnity agreement reasonably satisfactory to the
Corporation, or in the case of any such mutilation upon surrender and
cancellation of such stock certificate, the Corporation will make and deliver a
new stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated stock certificate at the Corporation's own expense.
V.
For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be fixed by the Board
of Directors in the manner provided in the Bylaws.
B. The Board of Directors is expressly authorized to make, amend,
supplement or repeal the Bylaws; provided, however, that the stockholders may
change or repeal any Bylaw adopted by the Board of Directors by the affirmative
vote of the holders of a majority of the voting power of all of the then
outstanding shares of the capital stock of the Corporation; and, provided
further, that no amendment or supplement to the Bylaws adopted by the Board of
Directors shall vary or conflict with any amendment or supplement thus adopted
by the stockholders.
C. The directors of the Corporation need not be elected by written ballot
unless the Bylaws so provide.
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VI.
A. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for any 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 an improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
B. Any repeal or modification of this Article VI shall be prospective and
shall not affect the rights under this Article VI in effect at the time of the
alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
[SIGNATURE PAGE FOLLOWS]
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In Witness Whereof, this Certificate has been subscribed this 31st day of
August, 2000 by the undersigned who affirms that the statements made herein are
true and correct.
/s/ Teresa W. Ayers
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Teresa W. Ayers
Chief Executive Officer
