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Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF THE
FIFTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
EXACT CORPORATION
Exact Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation") DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of Exact Corporation (the
"Corporation") at a meeting of the Board of Directors, by at least a majority of
its members, duly adopted resolutions in accordance with Section 242 of the
General Corporation Law of the State of Delaware, (i) proposing an amendment to
the Fifth Amended and Restated Certificate of Incorporation, as amended, (ii)
declaring such amendment to be advisable and in the best interests of the
Corporation, and (iii) directing that such amendment be submitted to the
stockholders of the Corporation for approval thereby. The resolutions setting
forth the amendment and directing that such amendment be submitted to the
stockholders are as follows:
RESOLVED: That, subject to stockholder approval, the first paragraph
of Article FOURTH (the "CERTIFICATE OF INCORPORATION") of
the Corporation's Fifth Amended and Restated Certificate of
Incorporation, as amended, be further amended by deleting
such paragraph in its entirety and replacing it with the
following:
"FOURTH: The total number of shares of all classes
of capital stock which the Corporation shall have
authority to issue is 104,700,373 shares,
consisting of 100,000,000 shares of Common Stock
with a par value of $.01 per share (the "Common
Stock") and 4,700,373 shares of Preferred Stock
with a par value of $.01 per share, (the "Preferred
Stock"), of which 1,000,000 shares are designated
as Series A Convertible Preferred Stock, 1,250,000
shares are designated as Series B Convertible
Preferred Stock, 1,015,000 shares are designated as
Series C Convertible Preferred Stock and 1,435,373
shares are designate as Series D Convertible
Preferred Stock."
RESOLVED: That the proposal to amend the Certificate of
Incorporation, as set forth in the preceding resolution,
be submitted to the Stockholders of the Corporation
entitled to vote thereon for their approval in compliance
with Sections 228 and 242 of the General Corporation Law
of the State of Delaware.
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RESOLVED: That, subject to the approval by the Stockholders of the
proposal to amend the Certificate of Incorporation as
described in the foregoing resolution, the Secretary
hereby is, authorized and directed to amend the
Certificate of Incorporation as set forth above and to
file such amendment with the Secretary of State of the
State of Delaware.
SECOND: That stockholders of the Corporation holding the necessary
number of shares of the outstanding capital stock of the Corporation as required
by statute and the Certificate of Incorporation of the Corporation approved said
amendment by written consent effective October __, 2000, in accordance with
Sections 228 and 242 of the General Corporation Law of the State of Delaware and
written notice of such action by written consent of stockholders has been given
in accordance with said Section 228.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
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IN WITNESS WHEREOF, said Exact Corporation has caused this certificate
to be executed by Stanley N. Lapidus, its Secretary, on this 20th day of
October 2000.
EXACT CORPORATION
By: /s/ Stanley N. Lapidus
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Stanley N. Lapidus
Secretary
