Schedule 13D Exhibit
(1) CERTIFICATE OF DESIGNATIONS
SERIES A REDEEMABLE CONVERTIBLE PREFERRED STOCK ($0.01
Par Value)
of
PERSEPTIVE BIOSYSTEMS, INC.
_______________________________
Pursuant to Section 151 of the General Corporation Law of
the State of Delaware
_______________________________
PerSeptive Biosystems, Inc., a corporation organized
and existing under the General Corporation Law of the State
of Delaware (the "Corporation:), in accordance with
the
provisions of Section 103 thereof, DOES HEREBY CERTIFY:
FIRST: That pursuant to the authority conferred upon
the Board of Directors by the Amended and Restated
Certificate of Incorporation, as amended, of the
Corporation, the Board of Directors of the Corporation
adopted the following resolutions creating a series of
4,000 shares of Preferred Stock, $0.01 par value per
share, designated as Series A Redeemable Convertible
Preferred Stock:
RESOLVED: That pursuant to the authority
vested in the Board of Directors of this
Corporation in accordance
with the provisions of Article FOURTH,
Section B of its Amended and
Restated Certificate of
Incorporation, as amended, a series of
Preferred
Stock of the
Corporation (the "Series A
Redeemable Convertible Preferred
Stock") be, and it hereby is,
created, and that the designation and
amount thereof and the voting powers,
preferences and relative,
participating, optional and other
special rights of the shares of the Series A Redeemable
Convertible Preferred Stock, and the
qualifications, limitations or
restrictions thereof, shall be as set
forth in Exhibit A attached hereto.
RESOLVED: That the President or any Senior
Vice President and the Secretary
or any Assistant Secretary of the
Corporation be, and they hereby are,
authorized and directed, in the name
and on behalf of the Corporation,
to file the Certificate of
Designations in
accordance with the provisions of the
Delaware General Corporation Law and
to take such actions as they may deem
necessary of
appropriate to carry out the intent
of the foregoing resolution.
SECOND: That the aforesaid resolutions were duly
and validly adopted in accordance with the
applicable provisions of Section 151 of the General
Corporation Law of the State of Delaware and the
Amended and Restated Certificate of Incorporation, as
amended By-Laws of the Corporation.
THIRD: That the aforesaid designation shall
become effective on August 22, 1994.
Exhibit A
1. Designation. The Corporation hereby designates a
single series of Preferred Stock, the designation of
which shall be "Series A Redeemable Convertible Preferred
Stock," $0.01 par value per share (hereinafter called "this
Series"), and the number of authorized shares constituting
this Series is four thousand (4,000) shares. Certain
capitalized terms used herein shall have the respective
meaning assigned to them in Section 7 hereof.
2. Dividends. The shares of this Series shall
receive no dividends prior to their Redemption Date(s) (as
defined below). In the
event that any shares of the Series are not
redeemed on their Redemption Date(s), then all the shares
of this Series remaining outstanding shall bear dividends
at the cash rate of 10% per annum of the Redemption
Price (as defined below) until the Corporation has either
deposited the necessary funds for their redemption in
accordance with Section 3(e) below, or has redeemed
said shares by the delivery of Common Stock of the
Corporation in the manner as hereinafter provided.
3. Mandatory Redemption; Provision for Special
Events.
(a) The shares of this Series shall be redeemed
in four equal annual installments of 1,000 shares
each commencing on the first anniversary date of their
issuance (each, a "Redemption Date" and collectively, the
"Redemption Dates") and on the following terms and
conditions:
Number of Shares to be Redeemed on Each
Redemption Date:
1,000 shares.
Redemption Price: $10,000 per share (the
"Redemption Price"), which amount shall be subject
to
equitable adjustment whenever there shall occur a
stock split, combination, reclassification or other
similar event involving this Series. The aggregate
Redemption Price to be paid for the redemption shares
of this Series on each Redemption Date shall be
$10,000,000, subject to reduction in accordance with
conversions of shares of this Series in accordance with
Section 4A(b) as a result of prior optional redemption(s)
and/or conversions of shares of this Series in accordance
with the terms hereof.
Form of Payment: The Redemption Price is payable,
at the option of the Corporation, partly or wholly, either
in cash at $10,000 per share, or by conversion into, and
the delivery of, that number of shares of Common Stock
of the
Corporation determined by dividing $10,000 per share
(less any amount of the Redemption Price that shall be
paid in cash) by the average Closing Price of the
Corporation's Common Stock (as defined in Section 7) for
each of the ten (10) trading days ending on the
fifth business day immediately prior to the Redemption
Date.
Place of Redemption: American Stock Transfer and
Trust Company, 44 Wall Street, New York, New York, or such
other transfer agent for the Common Stock of the
Corporation as may be appointed by the Corporation from
time to time (the "Transfer Agent").
Time of Redemption: No later than 5 business
days subsequent to the Redemption Date.
No Sinking or Retirement Fund. The shares of
this Series shall not be entitled to the benefit of a
sinking or retirement fund to be applied to the purchase
or redemption of such shares.
(b) The outstanding shares of this Series shall
be redeemed by the Corporation in whole at the Redemption
Price, and in either manner as set forth in Section 3(a)
above, if either of the following events occur:
(i) A merger of the Corporation (other than
a reorganization, consolidation or merger accomplished for
the purpose of changing the state of incorporation of
the Corporation or a merger, acquisition or consolidation
by the Corporation of or with another corporation or
entity where the Corporation or its stockholders
immediately prior to such transaction, directly or
indirectly, own, immediately after such transaction at
least a majority of the voting stock of the combined or
surviving corporation) or the sale or exchange of
all its outstanding Common Stock, or the disposition
of all or substantially all its properties and assets, or
the redemption by the Corporation of 10% or more of its
outstanding Common Stock.
(ii) There shall have occurred, and
remain uncured for a period of fifty (50) days after
written notice to the Corporation an "Event of
Default" as defined in Section 7 below.
(c) The shares of this Series shall be redeemed
in cash by the Corporation in whole at the Redemption
Price if the following event occurs:
(i) There shall have occurred a "Change
of Control Date" (at that term is defined in Section 8)
also described by Section 3(b)(i), such provision shall
govern in lieu of this Section 3(c)(i).
The events described in Sections 3(b) and 3(c) above
are hereinafter referred to individually as a "Special
Event" and collectively as "Special Events".
(d) Should the Corporation be required to
redeem all the shares of this Series by virtue of either
Section 3(b) or 3(c), notice of such redemption shall be
given no later than 3 business days after the Special
Event which gives rise to the requirement of redemption,
and at least three (3) business days prior to the date
set for such redemption.
(e) The Corporation's obligation to provide
an adequate amount of money for the payment in cash of
the Redemption Price necessary to effect any
redemption in accordance with this Section 3 shall be
deemed fulfilled if, on or before the applicable
Redemption Date, the Corporation shall deposit with the
Transfer Agent an amount of money adequate for the
payment of the aggregate Redemption Price necessary for
such redemption in accordance with the terms hereof, in
trust, with irrevocable instructions that such
money be applied to the redemption of the shares of
this Series called for redemption.
(f) The procedure for the redemption of shares
of this Series by the issuance of, and the conversion
into, Common Stock of the Corporation shall be in
accordance with Sections 4A(b) through 4(h) below.
(g) Any shares of this Series which shall have
any time have been redeemed shall, after such redemption,
have the status of authorized but unissued shares of
Preferred Stock, without designation as to series until
such shares are once more designated as part of a
particular series by the Board of Directors.
(h) Any waiver pursuant to Section 8 hereof of
the mandatory redemption provisions (such partial waiver to
apply on a pro rata basis to all holders of shares of this
Series) set forth in this Section 3 must apply with equal
force and effect to all or any portion of the shares of
this Series.
4. Optional Redemption. The Corporation shall have
the
right, at its sole option, to redeem the shares of
this Series on the following terms and conditions:
(a) The Corporation may redeem all or
any part of the outstanding shares of this Series at any
time, or from time to time, for cash at the Redemption
Price ($10,000 per share) on five (5) days notice. The
procedure for providing funds for such cash redemption
is set forth in Section 3(e) above.
(b) The Corporation may redeem all or any part
of the shares of this Series at any time, or from time to
time, on five (5) days notice at the Redemption Price
($10,000 per share) by conversion into, and delivery of,
that number of shares of Common Stock of the Corporation
as determined in accordance with Section 3(a) above.
4A. Conversion at the Option of the Holder.
(a) Subject to, and in compliance with,
the provisions of this Section 4A, any or all outstanding
shares of this Series may, at the option of the Holder, be
converted into shares of Common Stock upon written
notice to the Corporation if immediately preceding the
date of such notice the ten-day average of the Closing
Price of the Corporation's Common Stock shall equal or
exceed $32.00 per share.
The
number of shares of Common Stock to which a Holder of
this Series shall be entitled upon conversion shall be the
product obtained by (i) dividing $10,000 by such tenday
average Closing Price and (ii) multiplying the result by
the number of shares of this Series being converted at that
time.
(b) Any optional conversion of shares of
this
Series pursuant to this Section 4A, and any
optional redemption pursuant to Section 4, of less than
all of the outstanding shares of this Series shall reduce
the number of shares to be redeemed at future Redemption
Date(s) pursuant to Section 3 starting with the shares of
this Series to be redeemed at the Redemption Date
furthest in the future from the date of such optional
conversion or redemption, as the case may be. The
outstanding shares of this Series to be redeemed pursuant
to Section 3 shall be reduced thereafter by the number of
such optionally redeemed or converted shares, as the case
may be, in inverse chronological order.
(c) The shares of the Series which are to
be redeemed pursuant to either Section 3 or Section 4,
or converted pursuant to this Section 4A, shall be
surrendered by the Holder duly endorsed or assigned to
the Corporation. As promptly as practicable after the surrender
of certificates for shares of this Series to be redeemed
and/or converted, as the case may be, the Corporation shall,
subject to Section 4A(g) below, issue and deliver to
the Holder thereof a certificate or certificates for the
number of full shares of the Corporation's Common Stock
issuable upon the redemption and/or conversion of such
shares, as the case may be.
(d) If the Corporation shall be party to
any transaction (including without limitation a merger
or consolidation of the Corporation and the shares of
this Series shall not have redeemed by reason of a Special
Event), in each case as a result of which shares of
Common Stock shall be converted into the right to
receive stock,securities or other property (including cash or
combination thereof) (each of the foregoing being referred
to herein as a "Transaction"), each share of this Series
which is not coverted into the right to receive stock,
securities or other property in connection with such
Transaction shall thereafter be redeemable for, and/or
convertible into, the kind and amount of shares of
stock, securities and other property (including cash or
any combination thereof) receivable upon the consummation
of such Transaction having a value equal to the Redemption
Price on the applicable Redemption Date.
(e) The Corporation covenants that it will at
all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized
but unissued shares of Common Stock and/or, if the shares
of this Series are then convertible into other
common stock of the
Corporation, such other common stock, or its issued shares
of Common Stock or such other common stock, as the case may
be, held in its treasury, or both, for the purpose of
effecting, conversion of shares of this Series pursuant to
this Section 4A, the full number of shares of Common
Stock or such other common stock deliverable upon the
redemption by conversion of all outstanding shares of
this Series not theretofore converted. For purposes of
this Section 4A(e), the number of shares of Common Stock or
such other common stock that shall be deliverable upon
conversion pursuant to this Section 4A of all outstanding
shares of this Series shall be computed as if at the time
of computation all such outstanding shares were held by a
single holder.
(f) The Corporation covenants that any shares
of Common Stock or other common stock of the Corporation
issued upon redemption and/or conversion of shares of this
Series shall be validly issued, fully paid and
nonassessable. The Corporation shall endeavor to list the
shares of Common Stock or other common stock of the
Corporation required to be delivered upon redemption
and/or conversion of shares of this Series, prior to
such delivery, upon the NASDAQ National Market or on each
such national securities exchange, if any, upon which the
outstanding Common Stock or such other common stock shall
be listed at the time of such delivery.
(g) No fractional shares of Common Stock shall
be issued upon redemption and/or conversion, but, instead
of any fraction of a share which would otherwise be
issuable, the Corporation
shall pay a cash adjustment in respect of such
fraction in an amount equal to the same fraction of the
tenday average Closing Price of the Corporation's Common
Stock that is used to calculate the number of shares of
Common Stock issuable upon redemption and/or conversion, as
the case may be.
(h) The Corporation will pay any and all
documentary, stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of shares of
Common Stock or other securities or property on
redemption and/or
conversion of shares of this Series pursuant
thereto;
provided, however, that the Corporation shall not be
required to pay any tax that may be payable in respect of
any transfer involved in the issue or delivery of shares
of Common Stock or other securities or property in a name
other than that of the holder of such shares to be
converted and no such issue or delivery shall be made
unless and until the person requesting such issue or
delivery has paid to the Corporation the amount of any
such tax or established, to the reasonable satisfaction of
the Corporation, that such tax has been paid.
5. Voting. (a) Except as provided in this Section
5, Section 8 and applicable law, the shares of this Series
shall not have any voting powers, either general or
special, prior to their Redemption Dates. In the event
that any shares of this Series are not redeemed within
five (5) days after any Redemption Date in accordance with
the terms hereof, then and until all of said shares have
been redeemed, the Holders of the outstanding shares of
this Series voting separately as a class shall have the
exclusive right, with holders of shares of any one or more
other series of Preferred Stock ranking on a parity with
this Series either as to dividends or the distribution
of assets upon liquidation, dissolution or winding up
and upon which like voting rights have been conferred
and are exercisable, to elect two (2) directors of the
Corporation from and after such Redemption Date until
such right
shall terminate, as hereinafter provided. At elections
for such directors, each holder of this Series shall be
entitled to one vote for each share held. Upon the vesting
of
such right of the holders of this Series, the
number of persons constituting the entire Board of
Directors shall automatically be increased by two and the
two vacancies so created
shall be filled by vote of the Holders of the
outstanding shares of this Series (either alone or together
with the holders of shares of any one or more other series
of Preferred Stock ranking on such a parity) such
additional directors to be elected pursuant to this
Section 5 shall serve for such terms and in such classes
as shall be provided in the Corporation's Certificate of
Incorporation and ByLaws. The
right of the holders of this Series, voting separately
as a class, to elect (either alone or
together with the holders of shares of any one or more
other series of Preferred Stock ranking on such a parity)
members of the Board of Directors of the Corporation
as aforesaid shall continue until such time as all of the
shares of this Series which were to have been redeemed at
a prior Redemption Date shall have
been redeemed in full, at which time such right
shall terminate, subject to revesting in the event of
each and every subsequent default of the character
above mentioned.
(b) Each director elected by the Holders of
shares of this Series shall continue to serve as such
director until such time as all shares of this
Series which were to have been redeemed at a prior Redemption
Date shall have been redeemed in full, at which
time all persons elected as directors by the holders of
shares of this Series shall
be deemed to have resigned, their offices shall become
vacant and the number of persons constituting the entire
Board of
Directors of the Corporation shall be automatically
reduced accordingly. If the office of any director
elected by the holders of this Series voting as a class
becomes vacant prior to such time by reason of death,
resignation, retirement, disqualification, removal from
office, or otherwise, the remaining director elected
by the holders of this Series voting as a class may
choose a successor who shall hold office for the
unexpired term in respect of which such vacancy
occurred.
(c) Any director elected by the holders of
this Series may be removed at any time and shall not be
removed otherwise than by, the vote of the Holders of
record of at least 75% (in the case of removal without cause), or at
least a majority (in the case of removal with cause),
of the outstanding shares of this Series and all other
series of preferred stock who were entitled to participate in
such Director's election, voting as a separate class, at a
meeting called for such purpose. Any Directors
elected by the Holders of the shares of this Series
shall each be entitled to one vote per director on any
matters on which the Board of Directors is entitled to act.
6. Liquidation Rights.
(a) Upon the dissolution, liquidation or
winding up of the Corporation, whether voluntary or
involuntary, the holders of the outstanding shares of
this Series shall be entitled to receive out of the assets
of the Corporation available for distribution to stockholders,
before any payment or distribution shall be made on any class of
the Common Stock of the Corporation or on any other
class of stock ranking junior to this Series upon liquidation,
the amount of $1,000 per share.
(b) Neither the sale, lease or exchange (for
cash, shares of stock securities or other consideration) of
all or substantially all the property and assets of the
Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or
consolidation of any other corporation into or with the Corporation,
shall be deemed to be a dissolution, liquidation or
winding up, voluntary or involuntary, for the purposes of
this Section 6, but shall be a Special Event if
within the definition thereof.
(c) After the payment to the holders of
the outstanding shares of this Series of the full
preferential amounts provided for in this Section 6, the
holders of shares of this Series as such shall have no
right or claim to any of the remaining assets of the
Corporation.
7. Definitions. For all purposes of this
Certificate, except as otherwise expressly provided herein
or unless the context otherwise requires, the following
terms shall have the respective meanings set forth
below, or set forth in the
section of this Certificate indicated following such
term, which shall include the plural as well as the
singular:
"Board of Directors" or "Board" means, at any
time,
the duly elected or acting board of directors (or
duly authorized committee thereof) of the Corporation at
such time.
"Certificate of Incorporation" means the
Corporation's Amended and Restated Certificate
of
Incorporation, as amended and as it may be further
restated, amended, supplemented or otherwise modified
from time to time.
"Change of Control Date" means the date of
the first acquisition subsequent to July 1, 1994 by any
Person, or related persons which would constitute a
"group" for purposes of Section 13(d) of the Securities
Exchange Act of 1934, of beneficial ownership of shares
of the issued and outstanding capital stock of the
Corporation possessing more than 50% of the voting power
to elect members of the Board of Directors.
"Closing Price of the Corporation's Common
Stock" means for any day the last reported sales price,
regular way on such day, or, if no reported sale takes
place on such day, the average of the reported closing bid
and asked prices on such day, regular way, in either
case as reported on the NASDAQ National Market, or
such other national securities exchange on which the
Common Stock may then be primarily traded.
"Common Stock" means the Common Stock, par
value $0.01 per share, of the Corporation whether
authorized, issued and outstanding or held in the
Corporation's treasury.
"Event of Default" means the occurrence
and continuation after written notice thereof to the
Corporation from any Holder of outstanding shares of this
series of any one of the following events (whatever the
reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree, or order of
any court of any order, sale or regulation of any
administrative or governmental body) and which Event of
Default has not been waived in writing by the Holders of
at least 66-2/3% of the outstanding shares of this Series:
(a) default in the payment of the
Redemption Price, which continues for 5 days after any
Redemption Date;
(b) failure on the part of the Corporation duly
to observe or perform any of the agreements of the
Corporation set forth in the terms of this Series;
(c) the Corporation shall commence a
voluntary case or other proceeding seeking liquidation
reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
property, or shall consent to any such relief or to the
appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the benefit of the
creditors; or
(d) an involuntary case or other proceeding
shall be commenced against the Corporation seeking
liquidation, reorganization or other relief with respect
to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any
substantial part of its property, and such involuntary
case or other proceeding shall remain
undiscussed and unstayed for a
period of sixty consecutive days;
"Holder" means Millipore Corporation or any one
or more of its transferees or assignees.
"NASDAQ" means the National Association of
Securities Dealers, Inc. Automated Quotations System or
any successor thereto.
"Notice" means any notice as provided for
herein which shall be in writing and shall be deemed to
have been sufficiently given to the Holder: (a) if
delivered by courier service, on the date delivered; (b)
if transmitted by facsimile,
on the date transmitted; or (c) if mailed, three
(3) business days after being deposited in the United
States mail, postage prepaid, by certified mail with
return receipt requested and addressed to it at the
address as the Holder may specify by notice to the
Corporation given in accordance herewith.
"Redemption Date" means the first through
the fourth anniversary date of the date of issuance of the
shares of this Series.
"Redemption Price" means (i) with respect to
any redemption pursuant to Sections 3(a) and 4(a), the
applicable amount set forth in such Sections.
"Special Event" means any one of the
events
described in Subsection 3(b)(i) or 3(c)(i).
8. Waiver and Amendment. The Corporation's
compliance with any term of this Series or any of the
Holders rights hereunder may be waived by the vote or
written action of the Holders of at least 66-2/3% of the
outstanding shares of this Series.
So long as any of the shares of this Series are
outstanding, any term or provision hereof may be
amended, modified or deleted by action of the Board of
Directors with the vote or written consent of the
Holders of at least 662/3% of all the shares of
this Series at the time outstanding, voting together
as a class with all other Preferred Stock then
outstanding and affected in the same manner, and neither
the holders of Common Stock nor any other class or series
of the Corporation's capital stock shall be entitled to
vote thereon nor shall their consent be required.
IN WITNESS WHEREOF, said PerSeptive Biosystems, Inc.
has caused its corporate seal to be hereunto affixed and
this Certificate to be executed and attested, this 19th
day of August, 1994.
PERSEPTIVE BIOSYSTEMS, INC.
By: /s/ Noubar Afeyan
[Corporate Seal]
ATTEST:
/s/ Rufus C. King
Assistant Secretary
