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EXHIBIT 3.3
RESTATED CERTIFICATE OF INCORPORATION
OF
GENENCOR INTERNATIONAL, INC.
(ORIGINALLY INCORPORATED ON SEPTEMBER 26, 1989 UNDER THE
NAME ALLENS CREEK ENTERPRISES INC.)
FIRST: The name of the corporation is Genencor International,
Inc. (hereinafter referred to as the "Corporation").
SECOND:The address of the registered office of the Corporation
in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of the registered agent of
the Corporation at that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may be organized under the Delaware
General Corporation Law.
FOURTH: A. The total number of shares of all classes of stock
which the Corporation shall have authority to issue is two hundred and one
million one thousand (201,001,000), consisting of two hundred million
(200,000,000) shares of Common Stock, par value one cent ($.01) per share (the
"Common Stock"); one million (1,000,000) shares of Preferred Stock, par value
one cent ($.01) per share (the "Preferred Stock"); and one thousand (1,000)
shares of Series A Preferred Stock, no par value per share
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(the "Series A Preferred Stock").
(a) Voting Rights. Each share of Series A Preferred Stock shall
have no voting rights except: (i) as required by law, and (ii) with respect to
any matter being submitted to a vote of stockholders which would (A) increase or
decrease the par value or number of authorized shares of Series A Preferred
Stock or (B) change any preferences, powers or rights of Series A Preferred
Stock so as to affect them adversely, (iii) to issue prior ranking preferred
stock and (iv) to redeem any stock with respect to which the Series A Preferred
Stock has a preference.
(b) Dividend Rights. The holders of the Series A Preferred Stock
shall be entitled to receive, when and as declared by the Board of Directors out
of funds legally available therefor, annual cumulative cash dividends of $7,500
per share, payable quarterly.
The Series A Preferred Stock shall not be entitled to
participate in the profits of the corporation whether by stock dividends or
otherwise beyond the rights set forth above nor shall the holders thereof have
any preemptive or preferential right to purchase or subscribe to any other issue
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or stock now or hereafter authorized or any notes, debentures, bonds or other
securities convertible into or carrying options or warrants to purchase shares
of any issue now or hereafter authorized.
(c) Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
corporation, the holders of the Series A Preferred Stock shall be entitled to
receive on a pro rata basis, out of the net assets of the corporation, before
any of the assets be distributed among or paid to the holders of the Common
Stock or the Preferred Stock, par value $.01, the sum of $100,000 per share plus
accrued but unpaid dividends.
After the making of such payments to the holders of the Series A
Preferred Stock, the remaining assets of the corporation, if any, shall be
distributed among the holders of Common Stock and of Preferred Stock, par value
$.01, in accordance with their relative rights.
(d) Redemption. All or any number of the shares of Series A
Preferred Stock may be redeemed, at the option of the corporation, at a price of
$100,000.00 per share plus accrued but unpaid dividends to the date of
redemption. The
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Board of Directors shall set the number of shares to be redeemed and the
redemption date. No stock shall be redeemed under circumstances which would
cause the corporation to be in violation of the provisions of the General
Corporation Law of the State of Delaware.
Notice of election to redeem shall be mailed to each holder of
record of such stock at its address as it appears on the books of the
corporation not fewer than 30 days prior to the date upon which the redemption
is to take place. In the event that fewer than all of the outstanding Series A
Preferred Stock is to be redeemed, the shares shall be redeemed on a pro rata
basis among the then existing shareholders of Series A Preferred Stock.
B. The board of directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware (such certificate being hereinafter
referred to as a "Preferred Stock Designation"), to establish from time to time
the number of shares to be included in each such series, and to fix the
designation, powers, preferences, and rights of the shares of
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each such series and any qualifications, limitations or restrictions thereof.
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 any
such holders is required pursuant to the terms of any Preferred Stock
Designation.
C. Each outstanding share of Common Stock shall entitle the
holder thereof to one vote on each matter properly submitted to the stockholders
of the Corporation for their vote; provided, however, that, except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this 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 by law or pursuant to this Restated Certificate of Incorporation
(including any Certificate of Designations relating to any series of Preferred
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Stock).
FIFTH: The following provisions are inserted for the management
of the business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the Corporation
and of its directors and stockholders:
A. The business and affairs of the Corporation shall be managed
by or under the direction of the board of directors. In addition to the
powers and authority expressly conferred upon them by statute or by this
Restated Certificate of Incorporation or the by-laws of the Corporation,
the directors are hereby empowered to exercise all such powers and do
all such acts and things as may be exercised or done by the Corporation.
B. The directors of the Corporation need not be elected by
written ballot unless the by-laws so provide.
C. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual
or special meeting of stockholders of the Corporation and may not be
effected by any consent in writing by such stockholders.
D. Special meetings of stockholders of the Corporation
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may be called only by the Chairman of the Board or the President or by
the board of directors acting pursuant to a resolution adopted by a
majority of the Whole Board. For purposes of this 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.
SIXTH: A. Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances, the
number of directors shall be fixed from time to time exclusively by the board of
directors pursuant to a resolution adopted by a majority of the Whole Board. The
directors, other than those who may be elected by the holders of any series of
Preferred Stock under specified circumstances, shall be divided into three
classes, with the term of office of the first class to expire at the
Corporation's first annual meeting of stockholders after the directors are first
elected to such classes, the term of office of the second class to expire at the
Corporation's second annual meeting of stockholders after the directors are
first elected to such classes and the term of office of the third class to
expire at the Corporation's third annual meeting of stockholders after the
directors are first elected to
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such classes. At each annual meeting of stockholders, directors elected to
succeed those directors whose terms expire shall be elected for a term of office
to expire at the third succeeding annual meeting of stockholders after their
election.
B. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the board of
directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall, unless otherwise required by law or by
resolution of the board of directors, be filled only by a majority vote of the
directors then in office, though less than a quorum (and not by stockholders),
and directors so chosen shall hold office for a term expiring at the annual
meeting of stockholders at which the term of office of the class to which they
have been chosen expires. No decrease in the authorized number of directors
shall shorten the term of any incumbent director.
C. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
by-laws of the Corporation.
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D. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any directors, or the entire board of
directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least eighty percent (80%) of the
voting power of all of the then-outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class.
SEVENTH: The board of directors is expressly empowered to adopt,
amend or repeal by-laws of the Corporation. Any adoption, amendment or repeal of
the by-laws of the Corporation by the board of directors shall require the
approval of a majority of the Whole Board. The stockholders shall also have
power to adopt, amend or repeal the by-laws of the Corporation; provided,
however, that, in addition to any vote of the holders of any class or series of
stock of the Corporation required by law or by this Restated Certificate of
Incorporation, the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of all of the then-outstanding shares of the capital
stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to adopt, amend
or repeal any provision of the by-laws of the Corporation.
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EIGHTH: A director of the 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 an
improper personal benefit. If the Delaware General Corporation Law is amended 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 such repeal
or modification.
NINTH: The Corporation reserves the right to amend or repeal any
provision contained in this Restated Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights conferred upon
stockholders are granted
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subject to this reservation; provided, however, that, notwithstanding any other
provision of this Restated Certificate of Incorporation or any provision of law
that might otherwise permit a lesser vote or no vote, but in addition to any
vote of the holders of any class or series of the stock of this corporation
required by law or by this Restated Certificate of Incorporation, the
affirmative vote of the holders of at least eighty percent (80%) of the voting
power of all of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of Directors, voting
together as a single class, shall be required to amend or repeal this Article
NINTH, Sections C or D of Article FIFTH, Article SIXTH, Article SEVENTH, or
Article EIGHTH.
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates and integrates and further amends the provisions of the Certificate of
Incorporation of this Corporation, and which has been duly adopted in accordance
with Sections 242 and 245 of the Delaware General Corporation Law, has been
executed by its duly authorized officer this ___ day of ______, 2000.
GENENCOR INTERNATIONAL, INC.
By:
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Name:
Title:
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