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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
AFFYMETRIX, INC.
Affymetrix, Inc., a Delaware corporation (the "Corporation"), hereby
certifies as follows:
I. The name of the corporation is Affymetrix, Inc. The date of filing of
its original certificate of incorporation with the Secretary of State was
May 5, 1998.
II. This restated certificate of incorporation amends, restates and
integrates the provisions of the certificate of incorporation of said
corporation and has been duly adopted in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law of the State of Delaware by
the favorable vote of the holders of a majority of the outstanding stock
entitled to vote thereon.
III. The text of the certificate of incorporation is hereby amended and
restated to read herein as set forth in full:
FIRST: The name of the corporation is Affymetrix, Inc.
SECOND: The address of the Corporation's registered office in the
State of Delaware is 9 E. Loockerman Street, City of Dover, County of Kent.
The name of the Corporation's registered agent at such address is National
Corporate Research, Ltd.
THIRD: The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the Delaware General Corporation
Law.
FOURTH: I. The Corporation is authorized to issue two classes of stock
to be designated, respectively, Common Stock, par value $0.01 per share
("Common Stock"), and Preferred Stock, par value $0.01 per share
("Preferred Stock"). The total number of shares of all classes of stock
which the Corporation shall have authority to issue is two hundred five
million (205,000,000), consisting of two hundred million (200,000,000)
shares of Common Stock and five million (5,000,000) shares of Preferred
Stock.
II. The board of directors is authorized from time to time, subject
to any limitations prescribed by law, to provide for the issuance of shares
of Preferred Stock in one or more series, and in connection with the
creation of any such series, by resolution or resolutions providing for the
issuance of shares thereof, to establish from time to time the number of
shares to be included in each such series, to determine and fix such voting
powers, full or limited or no voting powers, and to fix the designation,
preferences, and relative, participating, optional or other special rights
of the shares of 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
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vote of any such holders is required pursuant to the terms of any
resolution or resolutions providing for the issue of such stock adopted by
the board of directors of the Corporation.
FIFTH: There shall be a series of Preferred Stock designated as
"Series AA Preferred Stock" and the number of shares constituting such
series shall be one million six hundred thirty-four thousand five hundred
twenty-two (1,634,522) shares (the "Series AA Preferred Stock"). The
rights, preferences, privileges, and restrictions granted to and imposed on
the Series AA Preferred Stock are as set forth below:
1. DIVIDEND PROVISIONS.
(a) Subject to the rights of any series of Preferred Stock that
may from time to time come into existence, the holders of shares of
Series AA Preferred Stock shall be entitled to receive dividends
payable in cash, out of any assets legally available therefor, prior
and in preference to any declaration or payment of any dividend
(payable other than in Common Stock or other securities and rights
convertible into or entitling the holder thereof to receive, directly
or indirectly, additional shares of Common Stock of this Corporation)
on the Common Stock of this Corporation, at the rate per share per
annum of $1.99 (as adjusted for any stock splits, stock dividends,
combinations, recapitalizations or the like with respect to the Series
AA Preferred Stock) payable in two equal installments on June 30 and
December 31 of each year so long as such share of Series AA Preferred
Stock is then outstanding. Such dividends shall accrue on each share
from the Purchase Date (as defined below), and shall accrue from day
to day, whether or not earned or declared. Such dividends shall be
cumulative so that, except as provided below, if such dividends in
respect of any previous or current dividend period, at the annual rate
specified above, shall not have been paid, the deficiency shall first
be fully paid before any dividend or other distribution shall be paid
on or declared and set apart for the Common Stock. Cumulative
dividends with respect to a share of Series AA Preferred Stock which
are accrued, payable and/or in arrears shall, upon conversion of such
share to Common Stock or redemption of such share, be paid to the
extent assets are legally available therefor pursuant to the
provisions of Section 2 and Section 3, respectively, and any amounts
for which assets are not legally available shall be paid promptly as
assets become legally available therefor; any partial payment will be
made pro rata among the holders of such shares. The holders of the
outstanding Series AA Preferred Stock can waive any dividend
preference that such holders shall be entitled to receive under this
Section 1 upon the affirmative vote or written consent of the holders
of at least a majority of the Series AA Preferred Stock then
outstanding.
(b) Subject to the rights of any shares of Preferred Stock that
may from time to time come into existence and in addition to the
amounts paid pursuant to subsection 1(a) above, the holders of shares
of Series AA Preferred Stock shall be entitled to receive an amount
equal to any dividend paid (other than dividends paid in Common Stock
or other securities and rights convertible into or entitling the
holder thereof to receive, directly or indirectly, additional shares
of Common Stock of this Corporation) on the Common Stock of this
Corporation (as determined on a per annum basis and on as a converted
basis for the Series AA Preferred Stock), payable when, as and if
declared by the Board of Directors. Such dividends shall not be
cumulative.
2. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up
of this Corporation, either voluntary or involuntary, subject to the
rights of series of Preferred Stock that may from time to time come
into existence, the holders of Series AA Preferred Stock shall be
entitled to receive, prior and in preference to any distribution of
any of the assets of this Corporation to the holders of Common Stock
by reason of their ownership thereof, an amount per share equal to the
sum of (i) $30.59 for each outstanding share of Series AA Preferred
Stock (the "Original Series AA Issue Price") (subject to adjustment of
such fixed dollar amounts for any stock splits, stock dividends,
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combinations, recapitalizations or the like with respect to the Series
AA Preferred Stock), (ii) accrued but unpaid dividends on such share,
and (iii) a per share amount equal to the difference obtained by
subtracting (A) the product of ten percent of the annual per share
dividend multiplied by a fraction, the numerator of which is the
number of days elapsed since the date upon which the first share of
Series AA Preferred Stock was first issued (the "Purchase Date") and
the denominator of which is 365, from (B) the annual per share
dividend. The sum obtained by adding the amounts described in clauses
(i), (ii) and (iii) of the preceding sentence is referred to herein as
the "Series AA Liquidation Preference". If upon the occurrence of such
event, the assets and funds thus distributed among the holders of the
Series AA Preferred Stock shall be insufficient to permit the payment
to such holders of the full aforesaid preferential amounts, then,
subject to the rights of series of Preferred Stock that may from time
to time come into existence, the entire assets and funds of this
Corporation legally available for distribution shall be distributed
ratably among the holders of the Series AA Preferred Stock in
proportion to the amount of such stock owned by each such holder.
(b) Upon the completion of the distribution required by
subparagraph (a) of this Section 2 and any other distribution that may
be required with respect to series of Preferred Stock that may from
time to time come into existence, if assets remain in this
Corporation, the holders of the Common Stock of this Corporation,
shall receive an amount per share of Common Stock equal to the
quotient obtained by dividing (i) the Series AA Liquidation
Preference, by (ii) the number of shares of Common Stock into which
one (1) share of Series AA Preferred Stock could then be converted
pursuant to Section 4 hereof. If upon the occurrence of such event,
the assets and funds thus distributed among the holders of the Common
Stock shall be insufficient to permit the payment to such holders of
the full aforesaid preferential amount, then, subject to the rights of
series of Preferred Stock that may from time to time come into
existence, the entire remaining assets and funds of this Corporation
legally available for distribution shall be distributed ratably among
the holders of the Common Stock in proportion to the amount of such
stock owned by each such holder.
(c) After the distributions described in subsection (a) and (b)
above have been paid, subject to the rights of series of Preferred
Stock that may from time to time come into existence, the remaining
assets of this Corporation available for distribution to stockholders
shall be distributed among the holders of Series AA Preferred Stock
and Common Stock pro rata based on the number of shares of Common
Stock held by each (assuming full conversion of all such Series AA
Preferred Stock).
(d)(i) The following events shall be deemed to be a liquidation,
dissolution or winding up within the meaning of this Section 2: (A) a
consolidation or merger of this Corporation with or into any other
corporation or corporations as a result of which the holders of voting
stock of this Corporation immediately prior to such transaction do not
own, directly or indirectly, more than 50% of the voting power of the
surviving corporation or its parent corporation immediately after such
transaction, or (B) a sale, conveyance or disposition of all or
substantially all of the assets of this Corporation.
(ii) In any of such events, the value of the assets
distributed to the stockholders of this Corporation shall be
determined as set forth herein. If the assets distributed to the
stockholders of this Corporation consist of other than cash or
securities, the value of such assets shall be the fair market
value thereof, as determined by this Corporation and the holders
of at least a majority of the voting power of all the then
outstanding shares of Preferred Stock. If the assets distributed
to the stockholders of this Corporation consist of securities,
such securities shall be valued as follows:
A. Securities not subject to investment letter or other similar
restrictions on free marketability covered by (B) below:
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(1) If traded on a securities exchange or through the
Nasdaq National Market, the value shall be deemed to be the
average of the closing prices of the securities on such exchange
or system over the twenty (20) trading day period ending three
(3) trading days prior to the closing;
(2) If actively traded over-the-counter, the value shall be
deemed to be the average of the closing bid or sale prices
(whichever is applicable) over the twenty (20) trading day period
ending three (3) trading days prior to the closing; and
(3) If there is no active public market, the value shall be
the fair market value thereof, as mutually determined by this
Corporation and the holders of at least a majority of the voting
power of all then outstanding shares of Preferred Stock.
B. The method of valuation of securities subject to investment
letter or other restrictions on free marketability (other than
restrictions arising solely by virtue of a stockholder's status as
an affiliate or former affiliate) shall be to make an appropriate
discount from the market value determined as above in (A) (1), (2)
or (3) to reflect the approximate fair market value thereof, as
mutually determined by this Corporation and the holders of at least
a majority of the voting power of all then outstanding shares of
such Preferred Stock.
3. REDEMPTION.
(a) REDEMPTION AT THE OPTION OF THIS CORPORATION.
(i) Subject to the rights of series of Preferred Stock
that may from time to time come into existence, at any time on
or prior to March 9, 2001, this Corporation may at any time it
may lawfully do so, at the option of the Board of Directors,
redeem in whole or in part the Series AA Preferred Stock by
paying in cash therefor a sum equal to (A) the Original Series
AA Issue Price (subject to adjustment of such fixed dollar
amount for any stock splits, stock dividends, combinations,
recapitalizations or the like with respect to the Series AA
Preferred Stock), plus (B) accrued but unpaid dividends on
such share (the "Early Redemption Price"); provided that the
closing sale price of this Corporation's Common Stock on the
Nasdaq National Market (or such other national securities
exchange on which the Common Stock is then listed) has been at
or above $52.00 (subject to adjustment of such fixed dollar
amount for any stock splits, stock dividends, combinations,
recapitalizations or the like with respect to the Common
Stock) for twenty (20) of thirty (30) consecutive trading days
prior to the applicable Corporation Redemption Date (as
defined below), which thirty (30) day period shall have ended
not more than ten (10) trading days prior to the date of the
Corporation Redemption Notice (as defined below). Any
redemption effected pursuant to this subsection 3(a)(i) shall
be made on a pro rata basis among the holders of the Series AA
Preferred Stock in proportion to the number of shares of
Series AA Preferred Stock then held by them.
(ii) Subject to the rights of series of Preferred Stock that
may from time to time come into existence, at any time after
March 9, 2001, this Corporation may at any time it may
lawfully do so, at the option of the Board of Directors,
redeem in whole or in part the Series AA Preferred Stock by
paying in cash therefor a sum equal to the Series AA
Liquidation Preference (the "Late Redemption Price"). Any
redemption effected pursuant to this subsection 3(a)(ii) shall
be made on a pro rata basis among the holders of the Series AA
Preferred Stock in proportion to the number of shares of
Series AA Preferred Stock then held by them.
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(iii) Subject to the rights of series of Preferred Stock
that may from time to time come into existence, at least
twenty (20) but no more than thirty (30) days prior to the
date on which this Corporation proposes to redeem any shares
of Series AA Preferred Stock (each a "Corporation Redemption
Date"), written notice shall be personally delivered, sent by
reliable international courier, or sent by confirmed facsimile
to each holder of record (at the close of business on the
business day next preceding the day on which notice is given)
of the Series AA Preferred Stock to be redeemed, at the
address last shown on the records of this Corporation for such
holder, notifying such holder of the redemption to be effected
on the applicable Corporation Redemption Date, specifying the
number of shares to be redeemed from such holder, the
applicable Corporation Redemption Date, the Early or Late
Redemption Price, as applicable, the place at which payment
may be obtained and calling upon such holder to surrender to
this Corporation, in the manner and at the place designated,
his, her or its certificate or certificates representing the
shares to be redeemed (the "Corporation Redemption Notice").
Except as provided in subsection 3(a)(iv) or 3(a)(v), on or
after each Corporation Redemption Date, each holder of Series
AA Preferred Stock to be redeemed on such Corporation
Redemption Date shall surrender to this Corporation the
certificate or certificates representing such shares, in the
manner and at the place designated in the Corporation
Redemption Notice, and thereupon the Early or Late Redemption
Price, as applicable, of such shares shall be payable to the
order of the person whose name appears on such certificate or
certificates as the owner thereof and each surrendered
certificate shall be cancelled. In the event less than all the
shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed
shares. Any shares of Series AA Preferred Stock that are not
redeemed shall remain subject to redemption by this
Corporation pursuant to this Section 3(a).
(iv) Each holder of Series AA Preferred Stock may, at
anytime up to two (2) trading days prior to the applicable
Corporation Redemption Date, elect to convert all shares of
Series AA Preferred Stock designated for redemption in the
Corporation Redemption Notice into shares of Common Stock
pursuant to Section 4 below.
(v) From and after each Corporation Redemption Date,
unless there shall have been a default in payment of the Early
or Late Redemption Price, as applicable, all rights of the
holders of shares of Series AA Preferred Stock designated for
redemption on such Corporation Redemption Date in the
Corporation Redemption Notice as holders of Series AA
Preferred Stock (except the right to receive the Early or Late
Redemption Price, as applicable, without interest upon
surrender of their certificate or certificates) shall cease
with respect to such shares, and such shares shall not
thereafter be transferred on the books of this Corporation or
be deemed to be outstanding for any purpose whatsoever.
Subject to the rights of series of Preferred Stock that may
from time to time come into existence, if the funds of this
Corporation legally available for redemption of shares of
Series AA Preferred Stock on any Corporation Redemption Date
are insufficient to redeem the total number of shares of
Series AA Preferred Stock to be redeemed on such date, those
funds that are legally available will be used to redeem the
maximum possible number of such shares ratably among the
holder(s) of such shares to be redeemed such that an equal
percentage of the number of shares held by each holder of
Series AA Preferred Stock is redeemed (provided that this
Corporation shall have no obligation to issue or redeem any
fractional shares). The shares of Series AA Preferred Stock
not redeemed shall remain outstanding and entitled to all the
rights and preferences provided herein. Subject to the rights
of series of Preferred Stock that may from time to time come
into
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existence, at any time thereafter when additional funds of
this Corporation are legally available for the redemption of
shares of Series AA Preferred Stock, such funds will
immediately be used to redeem the balance of the shares that
this Corporation has become obliged to redeem on any
Corporation Redemption Date but that it has not redeemed.
(b) REDEMPTION AT OPTION OF STOCKHOLDERS.
(i) Subject to the rights of series of Preferred Stock
that may from time to time come into existence, at any time on
or after March 9, 2005, provided that this Corporation shall
have received a written request from the holders of not less
than a majority of the then outstanding Series AA Preferred
Stock that a specified percentage of such holders' shares of
Series AA Preferred Stock be redeemed, and concurrently with
surrender by such holders of the certificates representing
such shares, this Corporation shall, to the extent it may
lawfully do so, redeem the shares specified in such request by
paying in cash therefor a sum per share equal to (A) $30.59
per share of Series AA Preferred Stock (as adjusted for any
stock splits, stock dividends, recapitalizations or the like)
plus (B) accrued but unpaid dividends on such share (the
"Series AA Redemption Price"); provided, however, in no event
shall this Corporation be required to redeem more than 817,261
shares of Series AA Preferred Stock (as adjusted for any stock
splits, stock dividends, recapitalizations or the like) during
any twelve month period. Any request made pursuant to this
subsection 3(b)(i) shall be delivered at least one hundred and
eighty (180) days prior to the date on which the redemption is
requested to occur (a "Stockholder Redemption Date"). Any
redemption of Series AA Preferred Stock effected pursuant to
this subsection 3(b)(i) shall be made on a pro rata basis
among the holders of the Series AA Preferred Stock in
proportion to the number of shares of Series AA Preferred
Stock proposed to be redeemed by such holders.
(ii) Subject to the rights of series of Preferred Stock
that may from time to time come into existence, at least
twenty (20) but no more than thirty (30) days prior to a
Stockholder Redemption Date, written notice shall be
personally delivered, sent by reliable international courier,
or sent by confirmed facsimile to each holder of record (at
the close of business on the business day next preceding the
day on which notice is given) of the Series AA Preferred Stock
to be redeemed, at the address last shown on the records of
this Corporation for such holder, notifying such holder of the
redemption to be effected on the Stockholder Redemption Date,
specifying the number of shares to be redeemed from such
holder, the Stockholder Redemption Date, the Series AA
Redemption Price, the place at which payment may be obtained
and calling upon such holder to surrender to this Corporation,
in the manner and at the place designated, his, her or its
certificate or certificates representing the shares to be
redeemed (the "Stockholder Redemption Notice"). Except as
provided in subsection (3)(b)(iii), on or after the
Stockholder Redemption Date, each holder of Series AA
Preferred Stock to be redeemed on such Redemption Date shall
surrender to this Corporation the certificate or certificates
representing such shares, in the manner and at the place
designated in the Stockholder Redemption Notice, and thereupon
the Series AA Redemption Price for such shares shall be
payable to the order of the person whose name appears on such
certificate or certificates as the owner thereof and each
surrendered certificate shall be cancelled. In the event less
than all the shares represented by any such certificate are
redeemed, a new certificate shall be issued representing the
unredeemed shares.
(iii) From and after the Stockholder Redemption Date,
unless there shall have been a default in payment of the
Series AA Redemption Price, all rights of the holders of
shares of
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Series AA Preferred Stock designated for redemption on the
Stockholder Redemption Date in the Stockholder Redemption
Notice as holders of Series AA Preferred Stock (except the
right to receive the Series AA Redemption Price without
interest upon surrender of their certificate or certificates)
shall cease with respect to such shares, and such shares shall
not thereafter be transferred on the books of this Corporation
or be deemed to be outstanding for any purpose whatsoever.
Subject to the rights of series of Preferred Stock that may
from time to time come into existence, if the funds of this
Corporation legally available for redemption of shares of
Series AA Preferred Stock on the Stockholder Redemption Date
are insufficient to redeem the total number of shares of
Series AA Preferred Stock to be redeemed on such date, those
funds that are legally available will be used to redeem the
maximum possible number of such shares ratably among the
holders of such shares to be redeemed such that an equal
percentage of the number of shares held by each holder of
Series AA Preferred Stock is redeemed (provided that this
Corporation shall have no obligation to issue or redeem any
fractional shares). The shares of Series AA Preferred Stock
not redeemed shall remain outstanding and entitled to all the
rights and preferences provided herein. Subject to the rights
of series of Preferred Stock that may from time to time come
into existence, at any time thereafter when additional funds
of this Corporation are legally available for the redemption
of shares of Series AA Preferred Stock, such funds will
immediately be used to redeem the balance of the shares that
this Corporation has become obliged to redeem on the
Stockholder Redemption Date but that it has not redeemed.
4. CONVERSION. The holders of the Series AA Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) RIGHT TO CONVERT. Each share of Series AA Preferred Stock
shall be convertible, at the option of the holder thereof, at any
time after the Purchase Date of such share and on or prior to the
second trading day prior to the Redemption Date, if any, as may
have been fixed in any Redemption Notice with respect to such share
of the Series AA Preferred Stock, at the office of this Corporation
or any transfer agent for such stock, into such number of fully
paid and nonassessable shares of Common Stock as is determined by
dividing the Original Series AA Issue Price by the Conversion Price
applicable to such share, determined as hereafter provided, in
effect on the date the certificate is surrendered for conversion
(the "Conversion Ratio"). The initial Conversion Price per share
for shares of Series AA Preferred Stock shall be $39.77 per share;
provided, however, that the Conversion Price for the Series AA
Preferred Stock shall be subject to adjustment as set forth in
subsection 4(d).
(b) AUTOMATIC CONVERSION. Each share of Series AA Preferred
Stock shall automatically be converted into shares of Common Stock
at the Conversion Ratio at the time in effect for such Series AA
Preferred Stock immediately upon the date specified by written
consent or agreement of the holders of a majority of the then
outstanding shares of Series AA Preferred Stock.
(c) MECHANICS OF CONVERSION. Before any holder of Series AA
Preferred Stock shall be entitled to convert the same into shares
of Common Stock, he or she shall surrender the certificate or
certificates therefor, duly endorsed, at the office of this
Corporation or of any transfer agent for the Series AA Preferred
Stock, and shall give written notice to this Corporation at its
principal corporate office, of the election to convert the same and
shall state therein the name or names in which the certificate or
certificates for shares of Common Stock are to be issued. This
Corporation shall, as soon as practicable thereafter, issue and
deliver at such office to such holder of Series AA Preferred Stock,
or to the nominee or nominees of such holder, a certificate or
certificates for the number of shares of Common Stock to which such
holder shall be entitled as aforesaid. Such conversion shall be
deemed to have been made immediately prior to the close of business
on the date of such surrender of the shares of Series AA Preferred
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Stock to be converted, and the person or persons entitled to
receive the shares of Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders
of such shares of Common Stock as of such date. If the conversion
is in connection with an underwritten offering of securities
registered pursuant to the Securities Act of 1933, the conversion
may, at the option of any holder tendering Series AA Preferred
Stock for conversion, be conditioned upon the closing with the
underwriters of the sale of securities pursuant to such offering,
in which event the persons entitled to receive the Common Stock
upon conversion of the Series AA Preferred Stock shall not be
deemed to have converted such Series AA Preferred Stock until
immediately prior to the closing of such sale of securities.
(d) CONVERSION PRICE ADJUSTMENTS OF PREFERRED STOCK FOR SPLITS,
STOCK DIVIDENDS, COMBINATIONS AND THE LIKE. The Conversion Price of
the Series AA Preferred Stock shall be subject to adjustment from
time to time as follows:
(i) In the event this Corporation should at any time or
from time to time after the Purchase Date fix a record date
for the effectuation of a split or subdivision of the
outstanding shares of Common Stock or the determination of
holders of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common
Stock or other securities or rights convertible into, or
entitling the holder thereof to receive directly or
indirectly, additional shares of Common Stock (hereinafter
referred to as "Common Stock Equivalents") without payment of
any consideration by such holder for the additional shares of
Common Stock or the Common Stock Equivalents (including the
additional shares of Common Stock issuable upon conversion or
exercise thereof), then, as of such record date (or the date
of such dividend distribution, split or subdivision if no
record date is fixed), the Conversion Price of the Series AA
Preferred Stock shall be appropriately decreased so that the
number of shares of Common Stock issuable on conversion of
each share of such series shall be increased in proportion to
such increase of the aggregate of shares of Common Stock
outstanding and those issuable with respect to such Common
Stock Equivalents.
(ii) If the number of shares of Common Stock outstanding at
any time after the Purchase Date is decreased by a combination
of the outstanding shares of Common Stock, then, following the
record date of such combination, the Conversion Price for the
Series AA Preferred Stock shall be appropriately increased so
that the number of shares of Common Stock issuable on
conversion of each share of such series shall be decreased in
proportion to such decrease in outstanding shares.
(e) OTHER DISTRIBUTIONS. In the event this Corporation shall
declare a distribution payable in securities of other persons,
evidences of indebtedness issued by this Corporation or other
persons, assets (excluding cash dividends) or other options or
rights not referred to in subsection 4(d)(i), then, in each such
case for the purpose of this Subsection 4(e), the holders of the
Series AA Preferred Stock shall be entitled to a proportionate
share of any such distribution as though they were the holders of
the number of shares of Common Stock of this Corporation into which
their shares of Series AA Preferred Stock are convertible as of the
record date fixed for the determination of the holders of Common
Stock of this Corporation entitled to receive such distribution.
(f) RECAPITALIZATIONS. If at any time or from time to time there
shall be a recapitalization of the Common Stock (other than a
subdivision, combination or merger or sale of assets transaction
provided for elsewhere in this Section 4 or Section 2) provision
shall be made so that the holders of the Series AA Preferred Stock
shall thereafter be entitled to receive upon conversion of the
Series AA Preferred Stock the number of shares of stock or other
securities or property of this Corporation or otherwise, to which a
holder of Common Stock deliverable upon conversion would have been
entitled on such
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recapitalization. In any such case, appropriate adjustment shall be
made in the application of the provisions of this Section 4 with
respect to the rights of the holders of the Series AA Preferred
Stock after the recapitalization to the end that the provisions of
this Section 4 (including adjustment of the Conversion Price then
in effect and the number of shares purchasable upon conversion of
the Series AA Preferred Stock) shall be applicable after that event
as nearly equivalent as may be practicable.
(g) NO IMPAIRMENT. This Corporation will not, by amendment of
its Amended and Restated Articles of Incorporation or through any
reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed
hereunder by this Corporation, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 4
and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the
holders of the Series AA Preferred Stock against impairment.
(h) NO FRACTIONAL SHARES AND CERTIFICATE AS TO ADJUSTMENTS.
(i) No fractional shares shall be issued upon the
conversion of any share or shares of the Series AA Preferred
Stock, and the number of shares of Common Stock to be issued
shall be rounded down to the nearest whole share. This
Corporation shall provide the holder of any fractional
interest with an amount of cash equal to the fair market value
of one share of this Corporation's Common Stock multiplied by
such fractional interest. Whether or not fractional shares are
issuable upon such conversion shall be determined on the basis
of the total number of shares of Series AA Preferred Stock the
holder is at the time converting into Common Stock and the
number of shares of Common Stock issuable upon such aggregate
conversion.
(ii) Upon the occurrence of each adjustment or readjustment
of the Conversion Price of Series AA Preferred Stock pursuant
to this Section 4, this Corporation, at its expense, shall
promptly compute such adjustment or readjustment in accordance
with the terms hereof and prepare and furnish to each holder
of Series AA Preferred Stock a certificate setting forth such
adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. This
Corporation shall, upon the written request at any time of any
holder of Series AA Preferred Stock, furnish or cause to be
furnished to such holder a like certificate setting forth (A)
such adjustment and readjustment, (B) the Conversion Price for
such series of Preferred Stock at the time in effect, and (C)
the number of shares of Common Stock and the amount, if any,
of other property that at the time would be received upon the
conversion of a share of Series AA Preferred Stock.
(i) NOTICES OF RECORD DATE. In the event of any taking by this
Corporation 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 (other than a cash dividend) or other
distribution, any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or
property, or to receive any other right, this Corporation shall
mail to each holder of Series AA Preferred Stock, at least twenty
(20) days prior to the date specified therein, a notice specifying
the date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character
of such dividend, distribution or right.
(j) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. This
Corporation 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 AA
Preferred
<PAGE>
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 AA Preferred Stock; and 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 AA Preferred Stock, in addition to such other
remedies as shall be available to the holder of such Preferred
Stock, this Corporation 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 purposes, including, without
limitation, engaging in best efforts to obtain the requisite
stockholder approval of any necessary amendment to this Certificate
of Designation or the Amended and Restated Articles of
Incorporation.
(k) NOTICES. Any notice required by the provisions of this
Section 4 to be given to the holders of shares of Series AA
Preferred Stock shall be deemed given if deposited in the United
States mail, postage prepaid, and addressed to each holder of
record at his address appearing on the books of this Corporation.
5. VOTING RIGHTS. The holder of each share of Series AA Preferred
Stock shall have the right to one vote for each share of Common Stock into
which such Series AA Preferred Stock could then be converted at the
record date for determination of the stockholders entitled to vote
thereon, and with respect to such vote, such holder shall have full
voting rights and powers equal to the voting rights and powers of the
holders of Common Stock, and shall be entitled, notwithstanding any
provision hereof, to notice of any stockholders' meeting in accordance
with the bylaws of this Corporation, and shall be entitled to vote,
together with holders of Common Stock, with respect to any question upon
which holders of Common Stock have the right to vote and otherwise as
required by law. Fractional votes shall not, however, be permitted and
any fractional voting rights available on an as-converted basis (after
aggregating all shares into which shares of Series AA Preferred Stock
held by each holder could be converted) shall be rounded to the nearest
whole number (with one-half be in grounded upward).
SIXTH: The following provisions are inserted for the management of the
business and for 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 Certificate of Incorporation or the Bylaws 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 Bylaws of the Corporation so provide.
Directors need not be stockholders.
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. 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 Bylaws of the Corporation.
E. Special meetings of stockholders of the Corporation may be
called nly 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 entire board of directors. For purposes of this
Certificate of Incorporation, the term "entire board of directors"
shall mean the total number of authorized directors whether or not
there exist any vacancies in previously authorized directorships.
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SEVENTH: The board of directors is expressly empowered to adopt,
alter, amend or repeal Bylaws of the Corporation. Any adoption, alteration,
amend mentor repeal of the Bylaws of the Corporation by the board of
directors shall require the approval of a majority of the entire board of
directors. The stockholders shall also have power to adopt, amend or repeal
the Bylaws 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 Certificate of Incorporation, the affirmative
vote of the holders of at least a majority 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, alter, amend or repeal any
provision of the Bylaws of the Corporation.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from
time to time prescribed by the laws of the State of Delaware. All rights
herein conferred are granted subject to this reservation.
NINTH: To the fullest extent permitted by Delaware General Corporation
Law, 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 this provision shall not
adversely affect any right or protection of a director of the corporation
existing at the time of such repeal or modification.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by Stephen P.A. Fodor, its Chairman and Chief Executive Officer, on the
12th day of June, 2000.
AFFYMETRIX, INC.
By: /s/ STEPHEN P.A. FODOR
------------------------
Stephen P.A. Fodor
