<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 19, 2000
REGISTRATION NO. 333-32584
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
GENOMETRIX INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 8731 76-0634223
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
2700 RESEARCH FOREST DRIVE
THE WOODLANDS, TX 77381
(281) 465-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
MITCHELL D. EGGERS
CHIEF EXECUTIVE OFFICER
CHAIRMAN OF THE BOARD
GENOMETRIX INCORPORATED
2700 RESEARCH FOREST DRIVE
THE WOODLANDS, TX 77381
(281) 465-5000
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
WITH COPIES TO:
<TABLE>
<S> <C>
STANFORD N. GOLDMAN, JR., ESQ. JUSTIN P. MORREALE, ESQ.
WILLIAM T. WHELAN, ESQ. GERALD J. KEHOE, ESQ.
MINTZ, LEVIN, COHN, FERRIS, BINGHAM DANA LLP
GLOVSKY AND POPEO, P.C. 150 FEDERAL STREET
ONE FINANCIAL CENTER BOSTON, MA 02110
BOSTON, MA 02111 (617) 951-8000
(617) 542-6000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
- ---------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- ---------------
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- ---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
EXPLANATORY NOTE
This Amendment No. 2 to Form S-1 (File No. 333-32584) of Genometrix
Incorporated is filed solely to file the exhibits listed in Item 16 and the
Exhibit Index.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an itemization of all estimated expenses,
all of which we will pay, in connection with the issuance and distribution of
the securities being registered:
<TABLE>
<S> <C>
SEC Registration Fee........................................ $31,680
Nasdaq National Market Listing Fee.......................... $95,000
NASD Filing Fee............................................. $12,500
Printing and Engraving Fees................................. *
Legal Fees and Expenses..................................... *
Accounting Fees and Expenses................................ *
Blue Sky Fees and Expenses.................................. 10,000
Transfer Agent and Registrar Fees........................... 10,000
Miscellaneous............................................... 20,000
-------
Total..................................................... $
=======
</TABLE>
- ---------------
* to be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our certificate of incorporation provides that we shall indemnify, to the
fullest extent authorized by the Delaware General Corporation Law, each person
who is involved in any litigation or other proceeding because such person is or
was a director or officer of Genometrix, or is or was serving as an officer or
director of another entity at our request, against all expense, loss or
liability reasonably incurred or suffered in connection therewith. Our By-Laws
provide that the right to indemnification includes the right to be paid expenses
incurred in defending any proceeding in advance of its final disposition,
provided, however, that such advance payment will only be made upon delivery to
us of an undertaking, by or on behalf of the director or officer, to repay all
amounts so advanced if it is ultimately determined that such director is not
entitled to indemnification. If we do not pay a proper claim for indemnification
in full within 60 days after we receive a written claim for such
indemnification, our By-Laws authorize the claimant to bring an action against
us and prescribe what constitutes a defense to such action.
Section 145 of the Delaware General Corporation Law permits a corporation
to indemnify any director or officer of the corporation against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any action, suit or
proceeding brought by reason of the fact that such person is or was a director
or officer of the corporation, if such person acted in good faith and in a
manner that such person reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to any criminal action or
proceeding, if such person had no reason to believe his or her conduct was
unlawful. In a derivative action, (i.e., one brought by or on behalf of the
corporation), indemnification may be provided only for expenses actually and
reasonably incurred by any director or officer in connection with the defense or
settlement of such an action or suit if such person acted in good faith and in a
manner that he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification shall be provided
if such person shall have been adjudged to be liable to the corporation, unless
and only to the extent that the court in which the action or suit was brought
shall determine that the defendant is fairly and reasonably entitled to
indemnity for such expenses despite such adjudication of liability.
II-1
<PAGE> 4
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law,
Article Ninth of our certificate of incorporation eliminates the liability of a
director to us or our stockholders for monetary damages for such a breach of
fiduciary duty as a director, except for liabilities arising:
- from any breach of the director's duty of loyalty to us or our
stockholders;
- from acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
- under Section 174 of the Delaware General Corporation Law; and
- from any transaction from which the director derived an improper
personal benefit.
We carry insurance policies insuring our directors and officers against
certain liabilities that they may incur in their capacity as directors and
officers.
Additionally, reference is made to the Underwriting Agreement filed as
Exhibit 1.1 hereto, which provides for indemnification by the underwriters of
Genometrix, our directors and officers who sign the Registration Statement and
persons who control Genometrix, under certain circumstances.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
In the three years preceding the filing of this Registration Statement, we
have sold the following securities that were not registered under the Securities
Act.
(a) Issuances of Capital Stock and Warrants
The sale and issuance of the securities described in paragraphs (1) through
(21) below were deemed to be exempt from registration under the Securities Act
by virtue of Section 4(2) or Regulation D promulgated thereunder and the
issuances in paragraph (22) were deemed exempt pursuant to Rule 701 under the
Securities Act. Items (1) through (10) have been adjusted for a 10 for 1 stock
split of our common stock on May 25, 1998.
(1) On August 29, 1997, we sold a total of 398,680 shares of Series A
Convertible Preferred Stock and issued warrants to purchase 79,730 shares
of our common stock at an exercise price of $1.50 per share to eleven
purchasers for an aggregate consideration of $598,020.
(2) On August 29, 1997, we issued two warrants to purchase a total of
84,000 shares of Series A Convertible Preferred Stock at an exercise price
of $1.50 per share to two persons in consideration for conversion of
outstanding notes issued by us pursuant to a Note and Warrant Purchase
Agreement dated July 6, 1994 and which expired in July 1999.
(3) On August 29, 1997, we issued four warrants to purchase a total
of 71,540 shares of our common stock at an exercise price of $1.50 per
share to two persons in consideration for conversion of outstanding notes
issued by us pursuant to a Note and Warrant Purchase Agreement dated July
6, 1994 of which 16,800 warrants expired in July 1999.
(4) On August 29, 1997, we issued a total of 273,710 shares of Series
A Convertible Preferred Stock to two persons in consideration for
conversion outstanding notes issued by us pursuant to a Note and Warrant
Purchase Agreement dated July 6, 1994.
(5) On August 29, 1997, we issued 398,220 shares of our Series A
Convertible Preferred Stock to one person in consideration for conversion
of outstanding notes issued by us pursuant to a Note Purchase Agreement
dated May 17, 1995.
(6) On August 29, 1997, we issued one warrant to purchase 79,640
shares of our common stock at an exercise price of $1.50 per share to one
person in consideration for conversion of outstanding notes issued by us
pursuant to a Note Purchase Agreement dated May 17, 1995.
II-2
<PAGE> 5
(7) On August 29, 1997, we issued a warrant to purchase 19,930 shares
of our common stock at an exercise price of $1.50 per share to one person
as compensation for services under an Investment Agreement dated August 29,
1997.
(8) On March 26, 1998, we sold a total of 509,430 shares of our
Series B Convertible Preferred Stock to 28 purchasers for an aggregate
consideration of $1,120,746.
(9) On March 26, 1998, we issued a total of 7,010 shares of our
Series B Convertible Preferred Stock to two persons as compensation for
services under an Amended and Restated Financial Advisory Agreement dated
January 16, 1998.
(10) On March 26, 1998, we issued warrants to purchase a total of
26,210 shares of our common stock at an exercise price of $2.20 per share
to three persons as compensation for services under an Amended and Restated
Financial Advisory Agreement dated January 16, 1998.
(11) On September 3, 1998, we sold 1,129,247 shares of our Series C
Convertible Preferred Stock to forty-one purchasers for an aggregate
consideration of $2,665,023.
(12) On September 3, 1998, we issued a total of 44,564 shares of our
Series C Convertible Preferred Stock to two persons as compensation for
services under an Amended and Restated Financial Advisory Agreement dated
January 16, 1998.
(13) On September 3, 1998, we issued warrants for a total of 31,141
shares of our common stock at an exercise price of $2.36 per share to two
persons as compensation for services under an Amended and Restated
Financial Advisory Agreement dated January 16, 1998.
(14) On December 28, 1998, we sold 706,714 shares of our Series D
Convertible Preferred Stock to one purchaser for an aggregate consideration
of $2,000,000.
(15) On July 6, 1999, we sold 1,666,667 shares of our Series E
Convertible Preferred Stock to one purchaser for an aggregate consideration
of $5,000,000.
(16) On August 31, 1999, we sold a total of 1,481,670 shares our
Series F Convertible Preferred Stock and issued warrants to purchase a
total of 296,334 shares of our common stock at an exercise price of $3.00
per share to twelve purchasers for an aggregate consideration of
$4,445,010.
(17) On August 31, 1999 we issued warrants to purchase a total of
70,000 shares of our common stock at an exercise price of $3.00 per share
to one person as compensation for services under an Amended and Restated
Financial Advisory Agreement dated January 16, 1998.
(18) On August 31, 1999, we issued 16,667 shares of our Series F
Convertible Preferred Stock to one person as compensation for services
under an Amended and Restated Financial Advisory Agreement dated January
16, 1998.
(19) On December 29, 1999, we sold a total of 597,000 shares our
Series F Convertible Preferred Stock and issued warrants to purchase a
total of 119,400 shares of our common stock to fourteen purchasers for an
aggregate consideration of $1,791,000.
(20) On January 13, 2000 we sold 1,000,000 shares of our Series E
Convertible Preferred Stock to one purchaser for an aggregate consideration
of $3,000,000.
(21) On January 31, 2000, we sold a total of 712,095 shares of our
Series F Convertible Preferred Stock and issued warrants to purchase a
total of 142,419 shares of our common stock at an exercise price of $3.00
per share to twenty-five purchasers for an aggregate consideration of
$2,136,285.
II-3
<PAGE> 6
(22) The following table sets forth information regarding grants of
stock options under the 1994 Stock Plan:
<TABLE>
<CAPTION>
NUMBER OF RANGE OF
DATES SHARES EXERCISE PRICES
- ----- --------- ------------------
<S> <C> <C>
October 1, 1996 through September 30, 1997............ 1,212,000 $ .01
October 1, 1997 through September 30, 1998............ 2,625,000 $ .50
October 1, 1998 through September 30, 1999............ 646,900 $2.36 - $3.00
</TABLE>
(b) Certain Grants and Exercises of Stock Options
The sale and issuance of the securities described below were deemed to be
exempt from registration under the Securities Act in reliance on Rule 701
promulgated under Section 3(b) of the Securities Act, as transactions by an
issuer not involving a public offering or transactions pursuant to compensatory
benefit plans and contracts relating to compensation as provided under Rule 701.
Pursuant to our 1994 Stock Plan, as of March 10, 2000 we have issued
options to purchase an aggregate of 8,346,380 shares of common stock. Of these
options:
- options to purchase 590,334 shares of common stock have been canceled
or lapsed without being exercised;
- options to purchase 3,568,583 shares of common stock have been
exercised; and
- options to purchase a total of 4,187,463 shares of common stock are
currently outstanding, at a weighted average exercise price of $1.95
per share.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
*1.1 Form of Underwriting Agreement
+3.1 Certificate of Incorporation of the Registrant
3.2 Amended and Restated Certificate of Incorporation of the
Registrant to be effective upon completion of this offering
+3.3 By-Laws of the Registrant
3.4 Amended and Restated By-Laws of the Registrant to be
effective upon completion of this offering
*4.1 Form of Common Stock Certificate
+4.2 Form of Warrant issued pursuant to a Note and Warrant
Purchase Agreement dated January 24, 1996 and list of
holders
*5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. with respect to the legality of securities being
registered
+10.1 The Registrant's 1994 Stock Plan
+10.2 The Registrant's 2000 Employee, Director and Consultant
Stock Option Plan
+-10.3 Patent License Agreement between the Registrant and
Massachusetts Institute of Technology dated May 27,1994
+-10.4 Patent License Agreement between the Registrant and
Massachusetts Institute of Technology dated April 1, 1996
+-10.5 Exclusive License Agreement between the Registrant and
Baylor College of Medicine dated May 31, 1998
</TABLE>
II-4
<PAGE> 7
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
+-10.6 License Agreement between the Registrant and Xenometrix,
Inc. dated August 27, 1999
+-10.7 License and Option Agreement between the Registrant and
Motorola, Inc. dated December 28, 1998
+-10.8 License and Research Agreement between the Registrant and
Motorola, Inc. dated July 6, 1999
-10.9 Genomic Services Agreement between the Registrant and the
Procter and Gamble Company dated March 3, 2000
+10.10 First Amended and Restated Registration Rights Agreement
between the Registrant and Motorola, Inc. dated July 6, 1999
+10.11 Amended and Restated Registration Rights Agreement among the
Registrant, Investors and list of additional signatories
dated September 3, 1998
+10.12 Note and Warrant Purchase Agreement between the Registrant
and Palmetto Partners, Ltd. dated January 24, 1996
+10.13 Note and Warrant Purchase Agreement between the Registrant
and Donald and Dianne Kendall dated January 24, 1996
+10.14 Lease Agreement between the Registrant and Technology Center
I Building dated September 17, 1999
-10.15 First Amendment to the License and Research Agreement
between the Registrant and Motorola, Inc. dated March 20,
2000
10.16 Common Stock Purchase Agreement between the Registrant and
Motorola, Inc. dated March 27, 2000
23.1 Consent of PricewaterhouseCoopers LLP
*23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. (see Exhibit 5.1)
+23.3 Consent of Fish & Richardson P.C.
+23.4 Consent of Robert H. Ellis
+23.5 Consent of Michael Hogan
+23.6 Consent of J. Evans Attwell
24.1 Powers of Attorney (See page II-6)
*27.1 Financial Data Schedule
</TABLE>
- ---------------
* To be filed by amendment.
- - Portions of this Exhibit have been omitted and filed separately with the
Commission pending a request for confidential treatment.
+ Previously filed with the SEC.
(b) FINANCIAL STATEMENT SCHEDULES
Financial Statement Schedules are omitted because the information is
included in our financial statements or notes to those financial statements.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under
II-5
<PAGE> 8
Item 14 above, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-6
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in The Woodlands,
Texas on April 19, 2000.
GENOMETRIX INCORPORATED
By: /s/ MITCHELL D. EGGERS
------------------------------------
Mitchell D. Eggers
Chief Executive Officer, Director
and
Chairman of the Board
POWER OF ATTORNEY
We the undersigned officers and directors of Genometrix Incorporated,
hereby severally constitute and appoint Mitchell D. Eggers and Robert H. Ellis,
and each of them singly (with full power to each of them to act alone), our true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution in each of them for him and in his name, place and stead, and in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement (or any other Registration Statement
for the same offering that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933), and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as full to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them or their or his substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities held on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ MITCHELL D. EGGERS Chief Executive Officer and April 19, 2000
- --------------------------------------------------- Director (principal executive
Mitchell D. Eggers officer)
/s/ ROBERT H. ELLIS President April 19, 2000
- ---------------------------------------------------
Robert H. Ellis
/s/ DAVID E. JORDEN Vice President and Chief Financial April 19, 2000
- --------------------------------------------------- Officer (principal financial and
David E. Jorden accounting officer)
* Director April 19, 2000
- ---------------------------------------------------
C. Thomas Caskey
</TABLE>
II-7
<PAGE> 10
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director April 19, 2000
- ---------------------------------------------------
Nicholas J. Naclerio
* Director April 19, 2000
- ---------------------------------------------------
Bruce Peacock
</TABLE>
* By executing his name hereto on April 19, 2000, Mitchell D. Eggers is signing
this document on behalf of the persons indicated above pursuant to the powers
of attorney duly executed by such persons and filed with the Securities and
Exchange Commission.
By: /s/ MITCHELL D. EGGERS
---------------------------------
Mitchell D. Eggers
Attorney-in-fact
II-8
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
*1.1 Form of Underwriting Agreement
+3.1 Certificate of Incorporation of the Registrant
3.2 Amended and Restated Certificate of Incorporation of the
Registrant to be effective upon completion of this offering
+3.3 By-Laws of the Registrant
3.4 Amended and Restated By-Laws of the Registrant to be
effective upon completion of this offering
*4.1 Form of Common Stock Certificate
+4.2 Form of Warrant issued pursuant to a Note and Warrant
Purchase Agreement dated January 24, 1996 and list of
holders
*5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. with respect to the legality of securities being
registered
+10.1 The Registrant's 1994 Stock Plan
+10.2 The Registrant's 2000 Employee, Director and Consultant
Stock Option Plan
+-10.3 Patent License Agreement between the Registrant and
Massachusetts Institute of Technology dated May 27,1994
+-10.4 Patent License Agreement between the Registrant and
Massachusetts Institute of Technology dated April 1, 1996
+-10.5 Exclusive License Agreement between the Registrant and
Baylor College of Medicine dated May 31, 1998
+-10.6 License Agreement between the Registrant and Xenometrix,
Inc. dated August 27, 1999
+-10.7 License and Option Agreement between the Registrant and
Motorola, Inc. dated December 28, 1998
+-10.8 License and Research Agreement between the Registrant and
Motorola, Inc. dated July 6, 1999
-10.9 Genomic Services Agreement between the Registrant and the
Procter and Gamble Company dated March 3, 2000
+10.10 First Amended and Restated Registration Rights Agreement
between the Registrant and Motorola, Inc. dated July 6, 1999
+10.11 Amended and Restated Registration Rights Agreement among the
Registrant and Investors dated September 3, 1998
+10.12 Note and Warrant Purchase Agreement between the Registrant
and Palmetto Partners, Ltd. dated January 24, 1996
+10.13 Note and Warrant Purchase Agreement between the Registrant
and Donald and Dianne Kendall dated January 24, 1996
+10.14 Lease Agreement between the Registrant and Technology Center
I Building dated September 17, 1999
-10.15 First Amendment to the License and Research Agreement
between the Registrant and Motorola, Inc. dated March 20,
2000
10.16 Common Stock Purchase Agreement between the Registrant and
Motorola, Inc. dated March 27, 2000
23.1 Consent of PricewaterhouseCoopers LLP
*23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. (see Exhibit 5.1)
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
+23.3 Consent of Fish & Richardson P.C.
+23.4 Consent of Robert H. Ellis
+23.5 Consent of Michael Hogan
+23.6 Consent of J. Evans Attwell
24.1 Powers of Attorney (See page II-6)
*27.1 Financial Data Schedule
</TABLE>
- ---------------
* To be filed by amendment.
- - Portions of this Exhibit have been omitted and filed separately with the
Commission pending a request for confidential treatment.
+ Previously filed with the SEC.
<PAGE> 1
EXHIBIT 3.2
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
GENOMETRIX INCORPORATED
(ORIGINALLY INCORPORATED ON MARCH 10, 2000)
FIRST: The name of the corporation (hereinafter called the
"Corporation") is
Genometrix Incorporated
SECOND: The address, including street, number, city and county of the
registered office of the Corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington, County of New Castle and the name of the registered
agent of the Corporation in the State of Delaware is Corporation Service
Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity or carry on any business for which corporations may be organized under
the General Corporation Law of the State of Delaware ("DGCL").
FOURTH:
A. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 81,000,000 shares, consisting of
75,000,000 shares of Common Stock, par value $.01 per share (the "Common Stock")
and 6,000,000 shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock").
B. The board of director is authorized, subject to any limitation
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 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 of 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 Amended and 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 holders of one or more other such series, to
<PAGE> 2
vote thereon by law or pursuant to this Amended and Restated Certificate of
Incorporation (including any Certificate of Designations relating to any series
of Preferred 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 Amended and
Restated Certificate of Incorporation or the By-Laws of the Corporation as in
effect from time to time, 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 of the Corporation so provide.
C. Any action required or permitted to be taken by the stockholders of
the Corporation may be effected only at a duly called annual or special meeting
of stockholders of the Corporation and not by written consent.
D. Special meetings of the stockholders may only be called by the
Chairman of the Board of Directors or the board of directors acting pursuant to
a resolution adopted by a majority of the Whole Board. For purposes of this
Amended and 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 shares of any series of
Preferred Stock then outstanding 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
B. 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
annual meeting of stockholders to be held in the calendar year 2001, the term of
office of the second class to expire at the annual meeting to be held in the
calendar year 2002 of stockholders, and the term of office of the third class to
expire at the annual meeting to be held in the calendar year 2003 of
stockholders. At each annual meeting of stockholders following such initial
classification, 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 or special meeting in lieu thereof after their election
and until their successors are duly elected and qualified.
C. 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,
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removal from office or other cause shall, unless otherwise provided by law or by
resolution of the Board of Directors, be filled only by a majority vote of the
directors then in office even though less than a quorum, or by a sole remaining
director, and not by stockholders, subject to Section 223 of the DGCL and,
directors so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of the 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.
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
By-Laws of the Corporation.
E. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any director, or the entire Board of Directors, may be
removed from office at any time 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 outstanding shares of capital stock then entitled to vote at an election of
the 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, 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 Amended and Restated Certificate of
Incorporation, the affirmative vote of the holders of at least seventy percent
(70%) 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 for the
stockholders to adopt, amend or repeal any provision of the By-Laws of the
Corporation.
EIGHTH:
A. To the fullest extent permitted by the DGCL as the same now exists
or may hereafter be amended, the Corporation shall indemnify, and advance
expenses to, its directors and officers and to any person who is or was serving
at the request of the Corporation as a director, officer, trustee, employee or
agent of another corporation, or of a partnership, joint venture, trust or other
enterprise, if such person was or is made a party to or is threatened to be made
a party to or is otherwise involved (including, without limitation, as a
witness) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a director or officer of the Corporation or is or was serving at the request
of the Corporation as a director, officer, trustee, employee or agent of another
corporation, or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan, provided, that
except with respect to proceedings to enforce rights to indemnification or as is
otherwise required by law, the Corporation shall not be required to indemnify,
and advance expenses to, any director, officer or other person in connection
with a proceeding (or part thereof) initiated by such director, officer or other
person, unless such proceeding (or part thereof) was authorized by the Board of
Directors and shall (to the extent required by law) be made only upon delivery
to the Corporation of an undertaking, by or on behalf of such person, to repay
all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no
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further right to appeal that such person is not entitled to be indemnified for
such expenses under this Article EIGHTH or otherwise.
B. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article EIGHTH shall not be deemed exclusive of any
other rights to which a person seeking indemnification or advancement of
expenses may be entitled under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
C. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, trustee, employee or agent of another corporation, or of
a partnership, joint venture, trust or other enterprise, against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under this
Article EIGHTH.
D. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article EIGHTH shall, unless otherwise specified when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person. No repeal or amendment of this
Article EIGHTH shall adversely affect any rights of any person pursuant to this
Article EIGHTH which existed at the time of such repeal or amendment with
respect to acts or omissions occurring prior to such repeal or amendment.
NINTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for any 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 DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. 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. If the DGCL 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 DGCL, as so amended. All references in this Article
NINTH to a director shall also be deemed to refer to any such director acting in
his or her capacity as a Continuing Director.
TENTH: The Corporation reserves the right to amend or repeal any
provision contained in this Amended and Restated Certificate of Incorporation in
the manner prescribed by the DGCL and all rights conferred upon stockholders are
granted subject to this reservation, provided that in addition to the vote of
the holders of any class or series of stock of the Corporation required by law
or by this Amended and Restated Certificate of Incorporation, the affirmative
vote of the holders of shares of voting stock of the Corporation representing at
least seventy percent (70%) 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, alter or repeal, or adopt any provision inconsistent with, Articles
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FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH and this Article TENTH of this Amended and
Restated Certificate of Incorporation.
ELEVENTH: The Board of Directors is expressly authorized to cause the
Corporation to issue rights pursuant to Section 157 of the DGCL and, in that
connection, to enter into any agreements necessary or convenient for such
issuance, and to enter into other agreements necessary and convenient to the
conduct of the business of the Corporation. Any such agreement may include
provisions limiting, in certain circumstances, the ability of the Board of
Directors of the Corporation to redeem the securities issued pursuant thereto or
to take other action thereunder or in connection therewith unless there is a
specified number or percentage of Continuing Directors then in office. Pursuant
to Section 141(a) of the DGCL, the Continuing Directors shall have the power and
authority to make all decisions and determinations, and exercise or perform such
other acts, that any such agreement provides that such Continuing Directors
shall make, exercise or perform. For purposes of this Article ELEVENTH and any
such agreement, the term, "Continuing Directors," shall mean (1) those directors
who were members of the Board of Directors of the Corporation at the time the
Corporation entered into such agreement and any director who subsequently
becomes a member of the Board of Directors, if such director's nomination for
election to the Board of Directors is recommended or approved by the majority
vote of the Continuing Directors then in office or (2) such members of the Board
of Directors designated in, or in the manner provided in, such agreement as
Continuing Directors.
IN WITNESS WHEREOF, this Amended and 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 DGCL, has been executed
by its duly authorized officer this 10th day of March, 2000.
GENOMETRIX INCORPORATED
By: /s/ Mitchell D. Eggers
Mitchell D. Eggers
Chief Executive Officer
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EXHIBIT 3.4
GENOMETRIX INCORPORATED
AMENDED AND RESTATED BY-LAWS
ARTICLE I - STOCKHOLDERS
Section 1. Annual Meeting.
An annual meeting of the stockholders, for the election of directors to
succeed those whose terms expire and for the transaction of such other business
as may properly come before the meeting, shall be held at such place, on such
date, and at such time as the Board of Directors shall fix each year.
Section 2. Special Meetings.
Subject to the rights of the holders of any series of preferred stock of
the Corporation, special meetings of stockholders of the Corporation may be
called only by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of directors authorized. Special meetings of the
stockholders may be held at such place within or without the State of Delaware
as may be stated in such resolution.
Section 3. Notice of Meetings.
Written notice of the place, date, and time of all meetings of the
stockholders shall be given, not less than ten (10) nor more than sixty (60)
days before the date on which the meeting is to be held, to each stockholder
entitled to vote at such meeting, except as otherwise provided herein or
required by law (meaning, here and hereinafter, as required from time to time by
the Delaware General Corporation Law or the Certificate of Incorporation of the
Corporation, as amended and restated from time to time).
When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than thirty
(30) days after the date for which the meeting was originally noticed, or if a
new record date is fixed for the adjourned meeting, written notice of the place,
date, and time of the adjourned meeting shall be given in conformity herewith.
At any adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
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Section 4. Quorum.
At any meeting of the stockholders, the holders of a majority of all of
the shares of the stock entitled to vote at the meeting, present in person or by
proxy, shall constitute a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by law. Where a
separate vote by a class or classes is required, a majority of the shares of
such class or classes present in person or represented by proxy shall constitute
a quorum entitled to take action with respect to that vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to vote who
are present, in person or by proxy, may adjourn the meeting to another place,
date, or time.
Section 5. Organization and Conduct of Business.
The Chairman of the Board of Directors or, in his or her absence, the
Chief Executive Officer of the Corporation or, in his or her absence, the
President or, in his or her absence, such person as the Board of Directors may
have designated, shall call to order any meeting of the stockholders and shall
preside at and act as chairman of the meeting. In the absence of the Secretary
of the Corporation, the secretary of the meeting shall be such person as the
chairman of the meeting appoints. The chairman of any meeting of stockholders
shall determine the order of business and the procedures at the meeting,
including such regulation of the manner of voting and the conduct of discussion
as he or she deems to be appropriate. The chairman of any meeting of
stockholders shall have the power to adjourn the meeting to another place and
time.
Section 6. Intentionally Omitted.
Section 7. Notice of Stockholder Business and Nominations.
A. Annual Meetings of Stockholders.
Nominations of persons for election to the Board of Directors
and the proposal of business to be considered by the stockholders may be made at
an annual meeting of stockholders (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who was a stockholder of record at the time of
giving of notice provided for in this Section, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this Section.
B. Special Meetings of Stockholders.
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
notice of meeting given pursuant to Section 2 above. Nominations of persons for
election to the Board of Directors may be made at a special
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meeting of stockholders at which directors are to be elected (a) by or at the
direction of the Board of Directors or (b) provided that the Board of Directors
has determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of notice of the special meeting, who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this Section.
C. Certain Matters Pertaining to Stockholder Business and Nominations.
(1) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph A
of this Section or a special meeting pursuant to paragraph B of this Section,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation and such other business must otherwise be a proper
matter for stockholder action. To be timely, a stockholder's notice pertaining
to an annual meeting shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than forty-five (45) or more than
seventy-five (75) days prior to the first anniversary (the "Anniversary") of the
date on which the Corporation first mailed its proxy materials for the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is more than thirty (30) days before or more than thirty (30)
days after the anniversary date of the preceding year's annual meeting, notice
by the stockholder to be timely must be so delivered not earlier than the close
of business on the ninetieth (90) day prior to such annual meeting and not later
than the close of business on the later of the sixtieth (60th) day prior to such
annual meeting or the close of business on the tenth (10th) day following the
day on which public announcement of the date of such meeting is first made by
the Corporation. Such stockholder's notice for an annual meeting or a special
meeting shall set forth: (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case, pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner, (ii) the class and number of
shares of the Corporation that are owned beneficially and held of record by such
stockholder and such beneficial owner, and (iii) whether either such stockholder
or beneficial owner intends to deliver a proxy statement and form of proxy to
holders of, in the case of a proposal, at least the percentage of the
Corporation's voting shares required under applicable law to carry the proposal
or, in the case of a nomination or nominations, a sufficient number of holders
of the Corporation's voting shares to elect such nominee or nominees. A
stockholder shall also comply
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with all applicable requirements of the Exchange Act (or any successor
provision), and the rules and regulations thereunder with respect to the matters
set forth in these By-Laws.
(2) Notwithstanding anything in the second sentence of
paragraph C (1) of this Section to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least fifty-five (55) days prior to the Anniversary (or, if the
annual meeting is held more than thirty (30) days before or sixty (60) days
after the first anniversary of the preceding year's annual meeting, at least
seventy (70) days prior to such annual meeting), a stockholder's notice required
by this Section shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive office of the Corporation
not later than the close of business on the tenth (10th) day following the day
on which such public announcement is first made by the Corporation.
(3) In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case
may be), for election to such position(s) as specified in the Corporation's
notice of meeting, if the stockholder's notice required by paragraph C(1) of
this Section shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the ninetieth (90th) day prior to
such special meeting nor later than the close of business on the later of the
sixtieth (60th) day prior to such special meeting, or the tenth (10th) day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
D. General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section shall be eligible to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this Section. Except as otherwise provided by law or these By-Laws, the chairman
of the meeting shall have the power and duty to determine whether a nomination
or any business proposed to be brought before the meeting was made or proposed,
as the case may be, in accordance with the procedures set forth in this Section
and, if any proposed nomination or business is not in compliance herewith, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
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(3) Notwithstanding the foregoing provisions of this Section,
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth herein. Nothing in this Section shall be deemed to affect any rights (i)
of stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock to elect directors under specified
circumstances.
Section 8. Proxies and Voting.
At any meeting of the stockholders, every stockholder entitled
to vote may vote in person or by proxy authorized by an instrument in writing or
by a transmission permitted by law filed in accordance with the procedure
established for the meeting. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission created pursuant to this
Section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by voice vote. Any vote not taken by voice
shall be taken by ballots, each of which shall state the name of the stockholder
or proxy voting and such other information as may be required under the
procedure established for the meeting. The Corporation may, and to the extent
required by law, shall, in advance of any meeting of stockholders, appoint one
or more inspectors to act at the meeting and make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at a
meeting of stockholders, the person presiding at the meeting may, and to the
extent required by law, shall, appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability.
Except as otherwise provided in the terms of any class or series of
Preferred Stock of the Corporation, all elections at any meeting of stockholders
shall be determined by a plurality of the votes cast, and except as otherwise
required by law or as provided herein, all other matters determined by
stockholders at a meeting shall be determined by a majority of the votes cast
affirmatively or negatively.
Section 9. Action Without Meeting.
Any action required or permitted to be taken by the stockholders of the
Corporation may be effected only at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by written consent.
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Section 10. Stock List.
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and showing
the address of each such stockholder and the number of shares registered in his
or her name, shall be made in the manner specified by law.
The stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any such stockholder
who is present. Such list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
ARTICLE II - BOARD OF DIRECTORS
Section 1. General Powers, Number, Election, Tenure and Qualification.
A. The business and affairs of the Corporation shall be managed by or
under the direction of its Board of Directions.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding 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 Board.
C. Subject to the rights of the holders of any series of Preferred
Stock then outstanding to elect additional directors under specified
circumstances, the Board of Directors of the Corporation shall be divided into
three classes, with the term of office of the first class to expire at the
annual meeting of stockholders or any special meeting in lieu thereof in 2001,
the term of office of the second class to expire at the annual meeting of
stockholders or any special meeting in lieu thereof in 2002, and the term of
office of the third class to expire at the annual meeting of stockholders or any
special meeting in lieu thereof in 2003. At each annual meeting of stockholders
or special meeting in lieu thereof, directors elected to succeed those directors
whose terms expire, other than directors elected by the holders of any series of
Preferred Stock, shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders or special meeting in lieu thereof
after their election and until their successors are duly elected and qualified.
Section 2. Vacancies and Newly Created Directorships.
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,
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removal from office or other cause shall be filled only by a majority vote of
the directors then in office even though less than a quorum, or by a sole
remaining director and not by stockholders. In the event of a vacancy in the
Board of Directors, the remaining directors, except as otherwise provided by
law, may exercise the powers of the full Board of Directors until the vacancy is
filled.
Section 3. Resignation and Removal.
Any director may resign at any time upon written notice to the
Corporation at its principal place of business or to the Chairman of the Board,
Chief Executive Officer, President or Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time
or upon the happening of some other event. Subject to the rights of the holders
of any series of Preferred Stock then outstanding, any director, or the entire
Board of Directors, may be removed from office at any time only for cause. A
director may be removed for cause by the holders of at least eighty percent
(80%) of the voting power of all of the then outstanding shares of the
Corporation then entitled to vote at an election of a director and only after a
reasonable notice and opportunity to be heard before the stockholders.
Section 4. Regular Meetings.
Regular meetings of the Board of Directors shall be held at such place
or places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among all directors. A
written notice of each regular meeting shall not be required.
Section 5. Special Meetings.
Special meetings of the Board of Directors may be called by the Chairman
of the Board of Directors or the Chief Executive Officer, and shall be called by
the Secretary if requested by a majority of the Board of Directors, and shall be
held at such place, on such date, and at such time as he or she or they shall
fix. Notice of the place, date, and time of each such special meeting shall be
given to each director by whom it is not waived by mailing written notice not
less than three (3) days before the meeting or orally, by telegraph, telex,
cable or telecopy given not less than twenty-four (24) hours before the meeting.
Unless otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
Section 6. Quorum.
At any meeting of the Board of Directors, a majority of the total number
of members of the Board of Directors shall constitute a quorum for all purposes.
If a quorum shall fail to attend any meeting, a majority of those present may
adjourn the meeting to another place, date, or time, without further notice or
waiver thereof.
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Section 7. Action by Consent.
Unless otherwise restricted by the Certificate of Incorporation or these
By-Laws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting,
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
Section 8. Participation in Meetings By Conference Telephone.
Members of the Board of Directors, or of any committee thereof, may
participate in a meeting of such Board or committee by means of conference
telephone, video conference or similar communications equipment by means of
which all persons participating in the meeting can hear each other and such
participation shall constitute presence in person at such meeting.
Section 9. Conduct of Business.
At any meeting of the Board of Directors, business shall be transacted
in such order and manner as the Board may from time to time determine, and all
matters shall be determined by the vote of a majority of the directors present,
except as otherwise provided herein or required by law.
Section 10. Powers.
The Board of Directors may, except as otherwise required by law,
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, including, without limiting the generality of the
foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance
with law;
(2) To purchase or otherwise acquire any property, rights
or privileges on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in
such form as it may determine, of written obligations
of every kind, negotiable or non-negotiable, secured
or unsecured, to borrow funds and guarantee
obligations, and to do all things necessary in
connection therewith;
(4) To remove any officer of the Corporation with or
without cause, and from time to time to devolve the
powers and duties of any officer upon any other
person for the time being;
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(5) To confer upon any officer of the Corporation the
power to appoint, remove and suspend subordinate
officers, employees and agents;
(6) To adopt from time to time such stock, option, stock
purchase, bonus or other compensation plans for
directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance,
retirement, and other benefit plans for directors,
officers, employees and agents of the Corporation and
its subsidiaries as it may determine; and,
(8) To adopt from time to time regulations, not
inconsistent with these By-Laws, for the management
of the Corporation's business and affairs.
Section 11. Compensation of Directors.
Directors, as such, may receive, pursuant to a resolution of the Board
of Directors, fixed fees and other compensation for their services as directors,
including, without limitation, their services as members of committees of the
Board of Directors.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors.
The Board of Directors, by a vote of a majority of the Board of
Directors, may from time to time designate committees of the Board, with such
lawfully delegable powers and duties as it thereby confers, to serve at the
pleasure of the Board and shall, for those committees and any others provided
for herein, elect a director or directors to serve as the member or members,
designating, if it desires, other directors as alternate members who may replace
any absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation to
the fullest extent authorized by law. In the absence or disqualification of any
member of any committee and any alternate member in his or her place, the member
or members of the committee present at the meeting and not disqualified from
voting, whether or not he or she or they constitute a quorum, may by unanimous
vote appoint another member of the Board of Directors to act at the meeting in
the place of the absent or disqualified member.
Section 2. Conduct of Business.
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required
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by law. Adequate provision shall be made for notice to members of all meetings;
one-third (1/3) of the members of any committee shall constitute a quorum unless
the committee shall consist of one (1) or two (2) members, in which event one
(1) member shall constitute a quorum; and all matters shall be determined by a
majority vote of the members present. Action may be taken by any committee
without a meeting if all members thereof consent thereto in writing, and the
writing or writings are filed with the minutes of the proceedings of such
committee.
ARTICLE IV - OFFICERS
Section 1. Enumeration.
The officers of the Corporation shall consist of a Chairman of the
Board, Chief Executive Officer, President, Chief Financial Officer, Treasurer,
Secretary and such other officers as the Board of Directors or the Chief
Executive Officer may determine, including, but not limited to, a Chief
Technology Officer, and one or more Vice Presidents, Assistant Treasurers and
Assistant Secretaries.
Section 2. Election.
The Chairman of the Board, Chief Executive Officer, President, Chief
Financial Officer, Treasurer and the Secretary shall be elected annually by the
Board of Directors at their first meeting following the annual meeting of the
stockholders. The Board of Directors or the Chief Executive Officer, may, from
time to time, elect or appoint such other officers as it or he or she may
determine, including, but not limited to, a Chief Technology Officer, and one or
more Vice Presidents, Assistant Treasurers and Assistant Secretaries.
Section 3. Qualification.
The Chairman of the Board, if any, and any Vice Chairman appointed to
act in the absence of the Chairman, if any, shall be elected by and from the
Board of Directors, but no other officer need be a director. Two or more offices
may be held by any one person. If required by vote of the Board of Directors, an
officer shall give bond to the Corporation for the faithful performance of his
or her duties, in such form and amount and with such sureties as the Board of
Directors may determine. The premiums for such bonds shall be paid by the
Corporation.
Section 4. Tenure and Removal.
Each officer elected or appointed by the Board of Directors shall hold
office until the first meeting of the Board of Directors following the next
annual meeting of the stockholders and until his or her successor is elected or
appointed and qualified, or until he or she dies, resigns, is removed or becomes
disqualified, unless a shorter term is specified in the vote electing or
appointing said officer. Each officer appointed by the Chief Executive Officer
shall hold office
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until his or her successor is elected or appointed and qualified, or until he or
she dies, resigns, is removed or becomes disqualified, unless a shorter term is
specified by any agreement or other instrument appointing such officer. Any
officer may resign by giving written notice of his or her resignation to the
Chief Executive Officer, the President, or the Secretary, or to the Board of
Directors at a meeting of the Board, and such resignation shall become effective
at the time specified therein. Any officer elected or appointed by the Board of
Directors may be removed from office with or without cause only by vote of a
majority of the directors. Any officer appointed by the Chief Executive Officer
may be removed with or without cause by the Chief Executive Officer or by vote
of a majority of the directors.
Section 5. Chairman of the Board.
The Chairman of the Board, if any, shall preside at all meetings of the
Board of Directors and stockholders at which he or she is present and shall have
such authority and perform such duties as may be prescribed by these By-Laws or
from time to time be determined by the Board of Directors.
Section 6. Chief Executive Officer.
The Chief Executive Officer shall be the chief executive officer of the
Corporation and shall, subject to the direction of the Board of Directors, have
general supervision and control of its business. Unless otherwise provided by
resolution of the Board of Directors, in the absence of the Chairman of the
Board, the Chief Executive Officer shall preside at all meetings of the
stockholders and, if a director, meetings of the Board of Directors. The Chief
Executive Officer shall have general supervision and direction of all of the
officers, employees and agents of the Corporation. The Chief Executive Officer
shall also have the power and authority to determine the duties of all officers,
employees and agents of the Corporation, shall determine the compensation of any
officers whose compensation is not established by the Board of Directors and
shall have the power and authority to sign all stock certificates, contracts and
other instruments of the Corporation which are authorized.
Section 7. President.
Except for meetings at which the Chief Executive Officer or the Chairman
of the Board, if any, presides, the President shall, if present, preside at all
meetings of stockholders, and if a director, at all meetings of the Board of
Directors. The President shall, subject to the control and direction of the
Chief Executive Officer and the Board of Directors, have and perform such powers
and duties as may be prescribed by these By-Laws or from time to time be
determined by the Chief Executive Officer or the Board of Directors. The
President shall have power to sign all stock certificates, contracts and other
instruments of the Corporation which are authorized. In the absence of a Chief
Executive Officer, the President shall be the chief executive officer of the
Corporation and shall, subject to the direction of the Board of
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Directors, have general supervision and control of its business and shall have
general supervision and direction of all of the officers, employees and agents
of the Corporation.
Section 8. Vice Presidents.
The Vice Presidents, if any, in the order of their election, or in such
other order as the Board of Directors or the Chief Executive Officer may
determine, shall have and perform the powers and duties of the President (or
such of the powers and duties as the Board of Directors or the Chief Executive
Officer may determine) whenever the President is absent or unable to act. The
Vice Presidents, if any, shall also have such other powers and duties as may
from time to time be determined by the Board of Directors or the Chief Executive
Officer.
Section 9. Chief Financial Officer, Treasurer and Assistant Treasurers.
The Chief Financial Officer shall also be the Treasurer. The Chief
Financial Officer and/or Treasurer shall, subject to the control and direction
of the Board of Directors and the Chief Executive Officer, have and perform such
powers and duties as may be prescribed in these By-Laws or be determined from
time to time by the Board of Directors and the Chief Executive Officer. All
property of the Corporation in the custody of the Chief Financial Officer and/or
Treasurer shall be subject at all times to the inspection and control of the
Board of Directors and the Chief Executive Officer. The Chief Financial Officer
and/or Treasurer shall have the responsibility for maintaining the financial
records of the Corporation. The Chief Financial Officer and/or Treasurer shall
make such disbursements of the funds of the Corporation as are authorized and
shall render from time to time an account of all such transactions and of the
financial condition of the Corporation. Unless otherwise voted by the Board of
Directors or by the Chief Executive Officer, each Assistant Treasurer, if any,
shall have and perform the powers and duties of the Chief Financial Officer
and/or Treasurer whenever the Chief Financial Officer and/or Treasurer is absent
or unable to act, and may at any time exercise such of the powers of the Chief
Financial Officer and/or Treasurer, and such other powers and duties, as may
from time to time be determined by the Board of Directors or the Chief Executive
Officer.
Section 10. Secretary and Assistant Secretaries.
The Board of Directors or the Chief Executive Officer shall appoint a
Secretary and, in his or her absence, an Assistant Secretary. Unless otherwise
directed by the Board of Directors, the Secretary or, in his or her absence, any
Assistant Secretary, shall attend all meetings of the directors and stockholders
and shall record all votes of the Board of Directors and stockholders and
minutes of the proceedings at such meetings. The Secretary or, in his or her
absence, any Assistant Secretary, shall notify the directors of their meetings,
and shall have and perform such other powers and duties as may from time to time
be determined by the Board of Directors. If the Secretary or an Assistant
Secretary is elected but is not present at any meeting of directors or
stockholders, a temporary Secretary may be appointed by the directors or the
Chief Executive Officer at the meeting
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Section 11. Bond.
If required by the Board of Directors, any officer shall give the
Corporation a bond in such sum and with such surety or sureties and upon such
terms and conditions as shall be satisfactory to the Board of Directors,
including without limitation a bond for the faithful performance of the duties
of his office and for the restoration to the Corporation of all books, papers,
vouchers, money and other property of whatever kind in his or her possession or
under his control and belonging to the Corporation.
Section 12. Action with Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors or the Chief
Executive Officer, the Chief Financial Officer and/or Treasurer shall have power
to vote and otherwise act on behalf of the Corporation, in person or by proxy,
at any meeting of stockholders of or with respect to any action of stockholders
of any other corporation in which this Corporation may hold securities and
otherwise to exercise any and all rights and powers which this Corporation may
possess by reason of its ownership of securities in such other corporation.
ARTICLE V - STOCK
Section 1. Certificates of Stock.
Each stockholder shall be entitled to a certificate signed by, or in
the name of the Corporation by the Chairman of the Board of Directors, or the
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, certifying the number of shares
owned by him or her. Any or all of the signatures on the certificate may be by
facsimile.
Section 2. Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the
Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a
certificate is issued in accordance with Section 4 of this Article of these
By-Laws, an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefor.
Section 3. Record Date.
In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders, or to receive payment of
any dividend or other distribution or allotment of any rights or to exercise any
rights in respect of any change, conversion or exchange
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of stock or for the purpose of any other lawful action, the Board of Directors
may fix a record date, which record date shall not precede the date on which the
resolution fixing the record date is adopted and which record date shall not be
more than sixty (60) nor less than ten (10) days before the date of any meeting
of stockholders, nor more than sixty (60) days prior to the time for such other
action as hereinbefore described; provided, however, that if no record date is
fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held, and, for determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of rights or
to exercise any rights of change, conversion or exchange of stock or for any
other purpose, the record date shall be at the close of business on the day on
which the Board of Directors adopts a resolution relating thereto.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 4. Lost, Stolen or Destroyed Certificates.
In the event of the loss, theft or destruction of any certificate of
stock, another may be issued in its place pursuant to such regulations as the
Board of Directors may establish concerning proof of such loss, theft or
destruction and concerning the giving of a satisfactory bond or bonds of
indemnity.
Section 5. Regulations.
The issue, transfer, conversion and registration of certificates of
stock shall be governed by such other regulations as the Board of Directors may
establish.
Section 6. Interpretation.
The Board of Directors shall have the power to interpret all of the
terms and provisions of these By-Laws, which interpretation shall be conclusive.
ARTICLE VI - NOTICES
Section 1. Notices.
Except as otherwise specifically provided herein or required by law,
all notices required to be given to any stockholder, director, officer, employee
or agent shall be in writing and may in every instance be effectively given by
hand delivery to the recipient thereof, by depositing such
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notice in the mail, postage paid, or by sending such notice by courier service,
prepaid telegram or mailgram, or telecopy, cable, or telex. Any such notice
shall be addressed to such stockholder, director, officer, employee or agent at
his or her last known address as the same appears on the books of the
Corporation. The time when such notice is received, if hand delivered, or
dispatched, if delivered through the mail or by courier, telegram, mailgram,
telecopy, cable, or telex shall be the time of the giving of the notice.
Section 2. Waiver of Notice.
A written waiver of any notice, signed by a stockholder, director,
officer, employee or agent, whether before or after the time of the event for
which notice is to be given, shall be deemed equivalent to the notice required
to be given to such stockholder, director, officer, employee or agent. Neither
the business nor the purpose of any meeting need be specified in such a waiver.
Attendance of a director or stockholder at a meeting without protesting prior
thereto or at its commencement the lack of notice shall also constitute a waiver
of notice by such director or stockholder.
ARTICLE VII -INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Right to Indemnification.
Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved (including, without limitation, as a witness)
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or an officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "Indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such Indemnitee in connection therewith; provided, however, that,
except as provided in Section 3 of this Article with respect to proceedings to
enforce rights to indemnification or as otherwise required by law, the
Corporation shall not be required to indemnify or advance expenses to any such
Indemnitee in connection with a proceeding (or part thereof) initiated by such
Indemnitee unless such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation.
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Section 2. Right to Advancement of Expenses.
The right to indemnification conferred in Section 1 of this Article
shall include the right to be paid by the Corporation the expenses (including
attorney's fees) incurred in defending any such proceeding in advance of its
final disposition; provided, however, that, if the Delaware General Corporation
Law requires, an advancement of expenses incurred by an Indemnitee in his
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such Indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such Indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that such Indemnitee is
not entitled to be indemnified for such expenses under this Section 2 or
otherwise. The rights to indemnification and to the advancement of expenses
conferred in Sections 1 and 2 of this Article shall be contract rights and such
rights shall continue as to an Indemnitee who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the Indemnitee's
heirs, executors and administrators. Any repeal or modification of any of the
provisions of this Article shall not adversely affect any right or protection of
an Indemnitee existing at the time of such repeal or modification.
Section 3. Right of Indemnitees to Bring Suit.
If a claim under Section 1 or 2 of this Article is not paid in full by
the Corporation within sixty (60) days after a written claim has been received
by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty (20) days, the
Indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any
such suit, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Indemnitee shall also be
entitled to be paid the expenses of prosecuting or defending such suit. In (i)
any suit brought by the Indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the Indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the Corporation shall be entitled to recover such
expenses upon a final adjudication that, the Indemnitee has not met any
applicable standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
Indemnitee is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its board of
directors, independent legal counsel, or its stockholders) that the Indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the Indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the Indemnitee, be a defense to such suit. In any suit
brought by the Indemnitee to enforce a right to
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indemnification or to an advancement of expenses hereunder, or brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the Indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Article or otherwise
shall be on the Corporation.
Section 4. Non-Exclusivity of Rights.
The rights to indemnification and to the advancement of expenses
conferred in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Corporation's
Certificate of Incorporation as amended from time to time, these By-Laws, any
agreement, any vote of stockholders or disinterested directors or otherwise.
Section 5. Insurance.
The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
Section 6. Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
ARTICLE VIII - CERTAIN TRANSACTIONS
Section 1. Transactions with Interested Parties.
No contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board or
committee thereof which authorizes the contract or transaction or solely because
the votes of such director or officer are counted for such purpose, if:
(a) The material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee in good
faith authorizes the contract or transaction
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by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or
(b) The material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(c) The contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the stockholders.
Section 2. Quorum.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IX - MISCELLANEOUS
Section 1. Facsimile Signatures.
In addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these By-Laws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
of Directors or a committee thereof.
Section 2. Corporate Seal.
The Board of Directors may provide a suitable seal, containing the name
of the Corporation, which seal shall be in the charge of the Secretary. If and
when so directed by the Board of Directors or a committee thereof, duplicates of
the seal may be kept and used by the Treasurer or by an Assistant Secretary or
Assistant Treasurer.
Section 3. Reliance upon Books, Reports and Records.
Each director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall, in the performance of his
or her duties, be fully protected in relying in good faith upon the books of
account or other records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated, or by any
other person as to matters which such director or committee member reasonably
believes are within such other person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the Corporation.
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Section 4. Fiscal Year.
Except as otherwise determined by the Board of Directors from time to
time, the fiscal year of the Corporation shall end on the last day of September
of each year.
Section 5. Time Periods.
In applying any provision of these By-Laws which requires that an act be
done or not be done a specified number of days prior to an event or that an act
be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
Section 6. Pronouns.
Whenever the context may require, any pronouns used in these By-Laws
shall include the corresponding masculine, feminine or neuter forms.
ARTICLE X - AMENDMENTS
These By-Laws may be amended or repealed by the affirmative vote of a
majority of the whole Board or by the stockholders by the affirmative vote of
eighty percent (80%) of the outstanding voting power of the then-outstanding
shares of capital stock of the Corporation, entitled to vote generally in the
election of directors, at any meeting at which a proposal to amend or repeal
these By-Laws is properly presented.
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EXHIBIT 10.9
CONFIDENTIAL TREATMENT
GENOMETRIX INCORPORATED HAS REQUESTED THAT
THE MARKED PORTIONS OF THIS DOCUMENT BE
ACCORDED CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933,
AS AMENDED.
GENOMETRIX INCORPORATED
GENOMIC SERVICES AGREEMENT
THIS AGREEMENT, dated as of March 3, 2000, (the "Effective Date") is
entered into by GENOMETRIX INCORPORATED, a DELAWARE corporation with its
principal place of business at 2700 Research Forest Drive, The Woodlands, TX,
77381 ("Genometrix") and PROCTER & GAMBLE PHARMACEUTICALS, INC., an Ohio
corporation with its principal place of business at 8700 Mason-Montgomery Road,
Mason, OH 45040 ("Customer").
1. DEFINITIONS.
1.1 "CUSTOMER AFFILIATE" means any individual or entity directly or
indirectly under the control of Customer. For purposes of this Section 1.21,
"control" means (i) the direct or indirect ownership of fifty percent (50%) or
more of the outstanding voting securities of an entity, or (ii) the right to
receive fifty percent (50%) or more of the profits or earnings of an entity, or
(iii) such other relationship as in fact results in actual control over the
management, business and affairs of an entity, shall be deemed to constitute
control.
1.2 "CUSTOMER ARRAY FABRICATION REAGENTS" shall mean any synthetic
polynucleotide DNA reagents that are provided by Customer to Genometrix for use
in the preparation of a Custom VistaArray(TM) for either expression or
polymorphism analysis in a manner that is consistent with specifications
determined by Genometrix.
1.3 "CUSTOMER EXPRESSION REAGENTS" shall mean any reagents that are
provided by Customer to Genometrix for use in the preparation of VistaArray(TM)
Targets by Genometrix. Customer Expression Reagents include tissue samples,
total RNA, and mRNA.
1.4 "CUSTOMER GENOTYPING REAGENTS" shall mean any reagents that are
provided by Customer to Genometrix for the preparation of VistaArray(TM) Targets
by Genometrix. Customer Genotyping Reagents include tissue samples, blood
samples, and DNA.
1.5 "CUSTOM VISTAARRAY(TM)" means a VistaArray(TM) fabricated using
genes and reagents specified by Customer and provided by Customer, or both
Customer and Genometrix.
1.6 "EXPRESSARRAY(TM)" means a VistaArray(TM) designed to enable
analysis of gene expression from a sample of either mRNA or DNA that has been
labeled appropriately.
1.7 "GENOMETRIX ARRAY FABRICATION REAGENTS" shall mean any synthetic
polynucleotide DNA reagents of Genometrix that are used in the preparation of
VistaArrays(TM).
1.8 "GENOVISTA(TM) SOFTWARE" means the Genometrix software programs
useful for (a) managing the fabrication of VistaArrays(TM), (b) using the
VistaArrays(TM), and (c) analyzing image data and/or electronically storing,
manipulating, visualizing or analyzing VistaArray(TM) Expression Data and/or
VistaArray(TM) Genotype Data.
1.9 "MORPHARRAY(TM)" means a VistaArray(TM) designed to enable
analysis of polymorphisms or other variations from a sample of DNA that has been
labeled appropriately.
1.10 "STANDARD VISTAARRAY(TM)" means a VistaArray(TM) fabricated using
genes and reagents specified and provided solely by Genometrix.
1.11 "TARGET PREPARATION SERVICES" means preparation by Genometrix of
VistaArray(TM)
1.
<PAGE> 2
Targets using Genometrix specified procedures and/or VistaArray(TM) Technology.
1.12 "THIRD PARTY" means any entity that is not a party to this
Agreement and is not an Affiliate of a party to this Agreement.
1.13 "VISTAARRAY(TM)" means a microarray having a plurality of
site-specific elements placed on a proprietary substrate in a specified format.
VistaArray(TM) shall include both Custom VistaArrays(TM) and Standard
VistaArrays(TM).
1.14 "VISTAARRAY(TM) FABRICATION SERVICES" means fabrication by
Genometrix of Custom VistaArrays(TM).
1.15 "VISTAARRAY(TM) ELEMENT" means a single sample of synthetic
nucleic acid DNA placed at a designated location on a VistaArray(TM).
1.16 "VISTAARRAY(TM) EXPRESSION DATA" means data generated that
indicates the expression of the genes represented by the VistaArray(TM) Elements
on an ExpressArray Array.
1.17 "VISTAARRAY(TM) EXPRESSION SERVICES" means the processing of
samples, and application of processed samples to VistaArrays(TM), and the
analysis of the VistaArrays(TM) for the purposes of assessing the expression
levels of genes represented on the VistaArrays(TM).
1.18 "VISTAARRAY(TM) GENOTYPE DATA" means data generated that indicates
the DNA makeup of a particular site or sites on genes represented by the
VistaArray(TM) Elements on a MorphArray(TM) Array.
1.19 "VISTAARRAY(TM) GENOTYPING SERVICES" means the processing of
samples, and application of processed samples to VistaArrays(TM), and analysis
of the VistaArrays(TM) for the purposes of assessing specific nucleotide
information at specific locations within genes represented on the
VistaArrays(TM).
1.20 "VISTAARRAY(TM) PLATE" means a plate or surface containing a
plurality of VistaArrays(TM). The plate has a proprietary surface in a format
specified by Genometrix. Multiple identical or different VistaArrays(TM) may be
contained within a single plate.
1.21 "VISTAARRAY(TM) SERVICES" means one or more of the following:
VistaArray(TM) Fabrication Services, VistaArray(TM) Expression Services,
VistaArray(TM) Genotyping Services and/or related services for sample
preparation, processing, imaging, and analysis.
1.22 "VISTAARRAY(TM) TARGETS" means appropriately labeled DNA or cDNA
materials for hybridization with a VistaArray(TM). VistaArray(TM) Targets may be
made by Customer or by Genometrix using specified procedures.
1.23 "VISTAARRAY(TM) TECHNOLOGY" means all technology, including but
not limited to, all inventions, processes, procedures, protocols, know-how,
algorithms, biological materials, chemical materials, software, hardware, and
information that is owned or controlled by Genometrix and which is: (a) utilized
to perform the VistaArray(TM) Services, or (b) utilized to develop, make, have
made, use, sell or import VistaArrays(TM), or (c) utilized to develop, make,
have made, use, sell or import the GenoVista Software and/or is incorporated in
or is a component of the GenoVista Software. VistaArray(TM) Technology includes,
without limitation, the Genometrix Array Fabrication Reagents, VistaArrays(TM)
and the GenoVista Software.
1.24 VISTAARRAY DATA" means collectively VistaArray Expression Data and
VistaArray Genotype Data.
2. PROJECT INITIATION AND PAYMENT.
2.1 The Pricing and Deliverables Form attached as Exhibit A details
the specific VistaArray(TM) Services and GenoVista(TM) Software that Customer
may obtain, purchase or license, as the case may be, under this Agreement.
2.2 Customer may order the VistaArray(TM) Services included in Exhibit
A by submitting to Genometrix a VistaArray fabrication request and completing a
wire transfer for the appropriate amount to an account specified by Genometrix.
Any purchase order submitted to Genometrix shall be governed exclusively by the
terms and conditions of this Agreement.
2.
<PAGE> 3
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
3. PERFORMANCE OF VISTAARRAY(TM) SERVICES.
3.1 Customer shall prepare, at Customer's expense, the relevant
Customer Array Fabrication Reagents, Customer Expression Reagents, Customer
Genotyping Reagents, or VistaArray(TM) Targets using specified protocols and
quality control procedures provided by Genometrix. Customer shall provide such
reagents to Genometrix according to a mutually determined schedule as set forth
on Exhibit A, to allow Genometrix sufficient time to perform the VistaArray(TM)
Services identified on Exhibit A and to be provided under this Agreement. Any
such protocols or quality control procedures provided to Customer by Genometrix
pursuant to this Agreement shall be the Confidential Information of Genometrix,
and shall be treated in accordance with the provisions of Section 8.
3.2 Genometrix shall provide training for Customer's personnel to
enable efficient utilization of VistaArray(TM) Expression Data or VistaArray(TM)
Genotype Data, for the number of days set forth on Exhibit A.
3.3 Upon the reasonable request of Customer, Genometrix will provide
Customer with periodic written reports of the status of the performance of the
VistaArray(TM) Services to be provided by Genometrix under this Agreement.
Customer and Genometrix researchers will jointly determine the format of the
report.
3.4 Genometrix will provide a technical liaison to work directly with
the main contact designated by Customer.
3.5 VISTAARRAY(TM) FABRICATION SERVICES.
3.5.1 Customer shall provide a sufficient quantity of Customer Array
Fabrication Reagents to fabricate the desired number of Custom VistaArrays(TM).
With respect to Genometrix Array Fabrication Reagents, Genometrix will provide
sufficient quantities of Genometrix Array Fabrication Reagents for fabrication
of the desired Custom VistaArrays(TM).
3.5.2 Customer Array Fabrication Reagents shall be provided in 96-well
plates. ******* ************, ** *********, ** ******** ** **** ** ***********
*********** ******** and will be performed by Genometrix.
3.5.3 For each Custom VistaArray(TM) fabricated by Genometrix for
Customer pursuant to this Agreement, Genometrix may, at its discretion and at
Genometrix's sole expense, add VistaArray(TM) Elements made using the Genometrix
Array Fabrication Reagents that may serve as quality control, comparative
analysis, and sensitivity calibration standards.
3.5.4 The number of Custom VistaArrays(TM) ordered in any single batch
shall be no less than ***.
3.5.5 In order to ensure appropriate yield, Genometrix may, at its own
expense, fabricate more Custom VistaArrays(TM) than the amount ordered by
Customer. However, except as provided in section 3.5.4, Customer shall only be
billed for the number of VistaArrays(TM) actually ordered by Customer. ***
****** ************* ***** ** ********* ** ********** ******* *** **** *****
********** *** ********* *** ********** ************ *********** *********
********* ** ********.
3.5.6 Customer Array Fabrication Reagents will be stored in secure
Genometrix facilities until Genometrix performs the VistaArray(TM) Fabrication
Services. All VistaArray(TM) Fabrication Services will be performed at
Genometrix laboratories. All Customer Array Fabrication Reagents in Genometrix's
possession will be returned to Customer at Customer's request and expense within
30 days of Customer's written request.
3.5.7 Customer shall provide Genometrix with a quarterly forecast of
Customer's demand for Custom VistaArrays(TM) and all VistaArray(TM) Services for
the immediately following calendar quarter. Such forecasts will represent a
reasonable estimate of Customer's requirements for Custom VistaArrays(TM), and
shall be provided to Genometrix at least thirty (30) days in advance of the
quarter in which the VistaArray(TM) Fabrication Services will be provided.
3.
<PAGE> 4
CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE SUCH OMISSIONS.
3.5.8 The standard time required for the fabrication of a standard
order of Custom VistaArrays(TM) (defined to be between *** and ****** arrays) is
********** **** business days following receipt of Customer Array Fabrication
Reagents in sufficient amounts and meeting Genometrix quality standards. It is
expected that provision of the VistaArray(TM) Fabrication Services, will, in
most instances be completed within the above-noted standard time periods.
However, if Genometrix reasonably determines that Customer's forecast
requirements cannot be handled on such standard schedule, Genometrix shall,
within one (1) month of receipt of the Customer's forecast, provide Customer
with notice of any non-standard delivery schedule; provided, however, that any
non-standard delivery schedule is subject to the mutual agreement of Customer
and Genometrix.
3.5.9 In the case of the provision of VistaArray(TM) Fabrication
Services for greater than ****** Custom VistaArrays(TM), Customer shall notify
Genometrix at least ten (10) business days in advance of the standard request
schedule set forth in Section 3.5.8 above. Where such advance notification has
not been provided, or where the quarterly forecast has not been provided, or
where Customer's demand exceeds Customer's quarterly forecast by ***** *******
***** ** ****, Genometrix will make reasonable efforts to provide the
VistaArray(TM) Fabrication Services in a timely manner.
3.6 VISTAARRAY(TM) TARGET PREPARATION SERVICES.
3.6.1 Customer must provide, at its own expense, a sufficient quantity
of Customer Expression Reagents or Customer Genotyping Reagents to react with
the number of VistaArrays(TM) that have been ordered by Customer. Genometrix
shall provide Target Preparation Services to make sufficient VistaArray(TM)
Targets from Customer Expression Reagents or Customer Genotyping Reagents.
3.6.2 VistaArray(TM) Targets and/or Customer Expression Reagents and/or
Customer Genotyping Reagents will be stored in Genometrix facilities until
Genometrix performs the VistaArray(TM) Services. All such VistaArray(TM) Targets
or Customer Expression Reagents or Customer Genotyping Reagents in Genometrix's
possession **** ****** ** *** ********* ****** *** **** ***** ********** ***
********* *** ************ ******** * ** **** ******** ** ******** ** **********
******* *** ******* ****** ****** **** **** ** *********** ******* *******.
3.7 All consumed VistaArrays(TM) in Genometrix's ********** **** **
********* ****** *** **** ***** ********** *** ********* *** ************
********.
4. REPORTING AND OWNERSHIP OF VISTAARRAY(TM) DATA.
4.1 If Genometrix is performing VistaArray(TM) Expression Services or
VistaArray(TM) Genotyping Services, the standard time required for Genometrix to
report VistaArray(TM) Expression Data or VistaArray(TM) Genotype Data to
Customer, as the case may be, is ******* **** business days following receipt
from Customer or manufacture by Genometrix of sufficient VistaArray(TM) Targets
meeting Genometrix's quality standards.
4.2 If Genometrix is performing VistaArray(TM) Fabrication Services
as well as VistaArray(TM) Expression Services or VistaArray(TM) Genotyping
Services, the standard time required for Genometrix to report VistaArray(TM)
Expression Data or VistaArray(TM) Genotyping Data is ******* **** business days
after the later of: (a) the end of the ****** fabrication period referred to in
Section 3.5.8, or (b) the receipt from Customer or manufacture by Genometrix of
sufficient VistaArray(TM) Elements meeting Genometrix quality standards.
4.3 Genometrix will provide Customer with VistaArray(TM) Expression
Data or VistaArray(TM) Genotype Data through an Internet-based virtual private
network or other mutually agreeable format as detailed in Exhibit A.
4.4 Customer shall own all VistaArray(TM) Expression Data generated
by Genometrix on its behalf pursuant to this Agreement; provided, that, Customer
and its Affiliates shall use
4.
<PAGE> 5
CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE SUCH OMISSIONS.
the VistaArray(TM) Data solely for their respective internal research and
development purposes.
4.5 *********** ***** *** *** *** ************ **** ***** ** ********
*** *** ******* ***** **** *** *********** ** *** *********** ***** ****
********** * *** ***** *** ********* ** ******** ********** ************ **** **
*** ***** ***** ****** ************ ********** ** ** ** ** ********. The
foregoing notwithstanding, in no event shall Genometrix be prevented from
providing any VistaArray(TM) Services, or making, selling and/or providing any
VistaArrays(TM), or any other services or products provided, incorporating or
based on the use of the VistaArray(TM) Technology or the GenoVista Software.
5. LICENSE AND DELIVERY OF GENOVISTA(TM) SOFTWARE
Access to the GenoVista Software, or any components thereof, is hereby
granted according to the following terms:
5.1 The GenoVista Software and display screens are protected by
copyright, patent, trade secret and other intellectual property laws. Genometrix
hereby grants to Customer and its Affiliates a non-exclusive, non-transferable
license to use the GenoVista Software solely for the following permitted
purposes at the facilities of Customer or its Affiliates: (a) to send requests
for VistaArray(TM) Services (and related information) to Genometrix; (b) to
receive VistaArray(TM) Expression Data and/or VistaArray(TM) Genotype Data, as
applicable and in accordance with this Agreement; and (c) to facilitate
Customer's analysis of the VistaArray(TM) Expression Data and/or VistaArray(TM)
Genotype Data. Customer shall not copy such software or display screens, nor
shall Customer reverse engineer, decompile or disassemble the GenoVista Software
or display screens or any component thereof. The GenoVista Software embodies
trade secrets of Genometrix that are considered the Confidential Information of
Genometrix and are subject to the confidentiality provisions of Section 8
hereof.
5.2 Any access to or use of the GenoVista Software for purposes in
addition to the purposes set forth in this Agreement, or any access to databases
or other software of Genometrix in addition to the GenoVista Software, whether
during the Term of this Agreement or thereafter, shall be provided only pursuant
to a separate written agreement between Genometrix and Customer.
5.3 Genometrix reserves the right to provide periodic updates and
patches to the GenoVista Software directly or through an internet connection.
5.4 Any inventions, discoveries, ideas, conceptions, technical data,
programs, algorithms, whether patentable or not, relating to the GenoVista
Software, an improvement thereof or the use thereof, created, discovered,
identified or reduced to practice, in whole or in part, by Customer or its
Affiliates during the Term (as defined in Section 10.1) (hereinafter "Software
Technology"), shall be promptly disclosed to Genometrix, and Customer shall
promptly assign to Genometrix its entire right, title and interest in and to
such Software Technology. At any time during or after the Term of this
Agreement, Customer agrees that it will fully cooperate with Genometrix, its
attorneys and agents, in the preparation and filing of all papers and other
documents as may be required to perfect Genometrix's rights in and to any of
such Software Technology, including, but not limited to, joining in any
proceeding to obtain letters patent, copyrights, trademarks or other legal
rights of the United States and of any and all other countries on such Software
Technology; provided, that, Genometrix will bear the expense of such
proceedings.
6. PAYMENTS.
6.1 Customer will pay Genometrix according to the terms set forth in
Exhibit A. The initial payment shall be due upon completion by Genometrix of the
array design and validation activities identified in Exhibit A.
6.2 All other amounts payable under this Agreement will be invoiced to
Customer and will be due within thirty (30) days after the date of Customers
receipt of the invoice.
5.
<PAGE> 6
6.3 Custom VistaArrays(TM) will be invoiced to Customer once they are
fabricated, pass Genometrix quality control procedures, and are stored in
Genometrix facilities prior to performing the applicable VistaArray(TM) Service
6.4 Standard VistaArrays(TM) will be invoiced to Customer once they are
stored in Genometrix facilities at Customer's request prior to performing
VistaArray(TM) Services.
6.5 All transportation and insurance costs shall be paid by Customer
and will be set forth separately on the invoice submitted to Customer.
6.6 All fees payable under this Section 6 shall exclude any applicable
sales, use or other taxes, import or export fees, and other charges imposed on
the delivery, license or use of the VistaArray(TM) Genotype Data, the
VistaArray(TM) Expression Data or the GenoVista Software or any other
VistaArray(TM) TechnolOgy by Customer. All such amounts (and any related
interest or penalties) will be paid by Customer to the appropriate governmental
authority or, if Genometrix is required under law to collect and pay any such
taxes or fees, such amounts will be invoiced to Customer. Customer will provide
to Genometrix a sales tax exemption certificate and Customer agrees that it is
responsible for paying any sales taxes assessed by the State of Ohio on all
services provided by Genometrix. Customer will self assess these taxes and pay
the State of Ohio directly and will not be billed for these taxes by Genometrix.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1 Except as expressly provided in Section 4.4, Section 5, and Section
9 of this Agreement, nothing in this Agreement shall be construed as conferring
on Customer any rights to the VistaArray(TM) Technology, the GenoVista Software,
the VistaArray(TM) Expression Data or the VistaArray(TM) Genotype Data, or
conferring on either party a license or option to license any information,
discoveries, inventions, or intellectual property rights owned or controlled by
the other party.
7.2 Except as provided in Sections 5.4 and 7.3, nothing herein shall be
construed as conferring on Genometrix any license or other rights to any
Customer Array Fabrication Reagents, Customer Genotyping Reagents, Customer
Expression Reagents or under any of Customer's patent applications or patents
relating thereto, all of which shall remain the sole property of Customer.
7.3 Except as provided in Section 5 with respect to the GenoVista
Software, and except as otherwise provided in Section 7.4 below, any invention,
development or discovery, whether or not patentable, made during Term of this
Agreement or through use of the VistaArray(TM) Technology (hereinafter "New
Technology") shall be owned according to inventorship of the relevant patents or
patent applications, and inventorship shall be determined under the patent laws
of the United States. New Technology invented solely by employees or others
acting on behalf of Customer shall be owned by Customer. New Technology invented
solely by employees or others acting on behalf of Genometrix shall be owned by
Genometrix, and inventions invented solely by employees or others acting on
behalf of Customer together with employees or others acting on behalf of
Genometrix shall be owned jointly by Genometrix and Customer. Except as provided
in Section 7.4 below, Genometrix shall have, and Customer hereby grants to
Genometrix, a non-exclusive, world-wide, sublicensable, fully-paid irrevocable
license under its interest in any New Technology which is an improvement to the
VistaArray(TM) Technology.
7.4 The provisions of Section 7.3 notwithstanding, the parties
acknowledge and agree that Genometrix's performance of VistaArray(TM) Services
for Customer hereunder shall not be construed as constituting inventorship with
respect to any inventions or discoveries made by or on behalf of Customer
through the use of the VistaArray(TM) Expression Data or the VistaArray(TM)
Genotype Data developed by Genometrix through the use of Customer Expression
Reagents or Customer Array Fabrication Reagents.
8. CONFIDENTIALITY.
8.1 It is contemplated that each party will disclose certain of its
confidential and proprietary information to the other party pursuant to the
conduct of activities under this Agreement. As used in this Agreement, the term
"Confidential Information" means any technical, scientific or business
information furnished by one party (the "Disclosing Party") to the other party
(the "Receiving Party") in connection with this Agreement, regardless of whether
such information is specifically designated as confidential and regardless of
whether
6.
<PAGE> 7
such information is in written, oral, electronic, or other form. Such
Confidential Information may include, without limitation, trade secrets,
know-how, inventions, technical data, operational protocols, sample processing
protocols, data analysis algorithms, research results or specifications, testing
methods, clinical trial data, information regarding proprietary compounds or
agents, business or financial information, research and development activities,
product and marketing plans, and customer and supplier information.
8.2 During the Term of this Agreement and thereafter, Genometrix will
hold in strict confidence and shall not disclose or use for any purpose not
permitted by this Agreement any Confidential Information received from Customer
or any Custom VistaArray(TM) or VistaArray(TM) Expression Data or VistaArray(TM)
Genotype Data generated by Genometrix on behalf of Customer pursuant to this
Agreement.
8.3 During the term of this Agreement and thereafter, Customer will
hold in strict confidence and shall not disclose or use for any purpose not
permitted by this Agreement any Confidential Information received from
Genometrix pursuant to this Agreement (hereinafter "Genometrix Confidential
Information"). Genometrix Confidential Information includes, without limitation
the VistaArray(TM) Technology and the GenoVista Software and any information
related thereto, and any protocols, procedures, specifications or quality
standards provided by Genometrix to Customer.
8.4 The obligations of confidentiality and non-use set forth in
Sections 8.2 and 8.3 above shall not apply to information which the Receiving
Party can demonstrate by written records: (a) was in the public domain at the
time of its receipt by the Receiving Party; (b) entered the public domain after
receipt thereof by the Receiving Party other than through a breach of this
Agreement by the Receiving Party, (c) was known to the Receiving Party at the
time of receipt from the Disclosing Party; or (d) is subsequently developed by
the Receiving Party independently and without breach of any obligation of
confidentiality or non-use under this Agreement; or (e) is disclosed to the
Receiving Party on a non-confidential basis by a third party having the right to
make such disclosure without breach of any confidentiality obligation; or (f) is
legally required to be disclosed by the Receiving Party; provided, that, (i)
prior written notice is given to the Disclosing Party in sufficient time to
enable it to seek a protective order with respect to such information; and (ii)
the Receiving Party shall only disclose that information that it is advised by
its legal counsel it is legally obligated to disclose, regardless of whether the
Disclosing Party seeks a protective order.
8.5 The provisions of this Section 8 shall survive the expiration or
termination of this Agreement.
9. PUBLICATIONS AND DISCLOSURES. Customer retains all publication rights
to VistaArray(TM) Data provided to or generated by Customer pursuant to this
Agreement; provided, that, Customer shall not publish or otherwise disclose the
confidential or proprietary information of Genometrix or the VistaArray(TM)
Technology without obtaining the prior written consent of Genometrix. Customer
shall acknowledge the contribution of Genometrix in any such publication or
other disclosure. Customer shall provide Genometrix with a copy of any such
disclosure at least thirty (30) days prior to such disclosure by Customer.
During such thirty (30) day period, Genometrix shall have the right to review
the publication to confirm that it does not contain any Confidential Information
of Genometrix, and if Genometrix notifies Customer within such thirty (30) day
period that the proposed disclosure does contain the Confidential Information of
Genometrix, then Customer shall not publish or otherwise disclose the disclosure
until such Confidential Information of Genometrix has been removed therefrom.
Genometrix shall have the right to disclose publicly that it is performing
VistaArray(TM) Services for Customer. Genometrix will provide a copy of the
public announcement prior to release for review by Customer.
10. TERM; TERMINATION.
10.1 The term of this Agreement shall commence upon the Effective Date
and expire at the end of the Access Term as defined in Exhibit A, unless earlier
terminated according to the provisions of this Section 10 (hereinafter the
"Term").
7.
<PAGE> 8
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
10.2 ******** *** ********* **** ********* *** ******** ****** **
********** * ********* ***** ******* ****** * * ** ********** ***** ** **** ****
****** ****** ** **** ***** ************ ******* ** ******* ****** ******* ****
********.
10.3 Genometrix may terminate this Agreement if Genometrix fails to
receive any payment when due from Customer. Such termination shall be effective
thirty (30) business days after notice to Customer by Genometrix that such
payment has not been received, unless Customer has made such payment within such
30-day notice period. Upon any such termination, Genometrix will be entitled to
retain any fees paid by Customer prior to the termination date for services
already performed and for custom products that have already been fabricated.
10.4 Either party may, in addition to any other remedies available to
it in law or in equity, terminate this Agreement with no prior notice if the
other party shall have become insolvent or bankrupt, or shall have made an
assignment for the benefit of creditors, or there shall have been appointed a
trustee or receiver of the other party for all or a substantial part of its
property, or any case or proceeding shall have been commenced or other action
taken by or against the other party in bankruptcy or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or readjustment
of its debts or any other relief under any bankruptcy, insolvency,
reorganization or other similar act or law of any jurisdiction now or hereafter
in effect.
10.5 RETURN OF CONFIDENTIAL INFORMATION, TECHNOLOGY AND SOFTWARE. Upon
the expiration or termination of this Agreement, the Receiving Party shall
return to the Disclosing Party all of its Confidential Information, and, in
particular, any VistaArray(TM) Technology or GenoVista Software in the
possession of Customer shall be returned to Genometrix within 60 days, and
Customer shall have no continued rights of use or access to the GenoVista
Software, the VistaArray(TM) Software, the VistaArray(TM) Technology or any
other Confidential Information of Genometrix.
10.6 SURVIVAL OF CERTAIN PROVISIONS. Any termination of this Agreement
shall be without prejudice to the rights of any party then accruing or otherwise
accruing under this Agreement. The provisions of Sections 5.4,7, 8, 9, 10.5,
10.6, 11 and 12 shall survive the expiration or termination of this Agreement.
11. WARRANTY AND DISCLAIMER; LIMITATION OF LIABILITY.
11.1 WARRANTY AND DISCLAIMER. Except as expressly set forth in this
Agreement, Genometrix makes no other warranties, express or implied, regarding
the VistaArray(TM) Services, the GenoVista Software, the Vista Array Technology
or any data or other products, services or documents provided to Customer under
this Agreement and specifically disclaims all express or implied warranties of
merchantability, fitness for a particular purpose, and non-infringement of
third-party rights. Genometrix makes no warranties of any kind hereunder
regarding the VistaArray(TM) Expression Data or the VistaArray(TM) Genotype
Data. No information or advice concerning the VistaArray(TM) Services or the
VistaArray(TM) Expression Data or the VistaArray(TM) Genotype Data given by
Genometrix's employees or agents, whether oral or written, will be construed as
a warranty or will expand the scope of the limited warranty stated above, and
Customer is not entitled to rely on any such information or advice.
11.2 LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE
FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES,
INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS
AGREEMENT OR THE PROVISION OF ANY DATA OR SERVICES HEREUNDER, OR THE USE OF THE
GENOVISTA SOFTWARE. GENOMETRIX WILL HAVE NO LIABILITY HEREUNDER WITH RESPECT TO
ANY DATA, THIRD-PARTY SOFTWARE, OR EQUIPMENT USED BY CUSTOMER.
8.
<PAGE> 9
11.3 Customer shall indemnify, defend and hold harmless Genometrix from
any and all damages, costs or expenses arising out of the use of any products,
services, data or information provided to Customer under this Agreement, except
to the extent caused by the negligence, recklessness or intentional misconduct
of Genometrix.
11.4 Genometrix shall indemnify, defend and hold harmless Customer from
any and all damages, costs or expenses arising out of any third party claim of
patent infringement relating to the VistaArray(TM) Technology used in the
performance of this Agreement or arising from the performance of VistaArray(TM)
Services by Genometrix hereunder, except to the extent caused by the negligence,
recklessness or intentional misconduct of Customer.
12. GENERAL TERMS.
12.1 Customer shall comply with all applicable export and import
control laws and regulations with regard to the GenoVista Software, the
VistaArray(TM) Expression Data and the VistaArray(TM) Genotype Data, and, in
particular, Customer will not export or re-export such software or data without
all required United States and foreign government licenses. Customer agrees to
indemnify and hold Genometrix harmless from and against any violation of such
laws or regulations by Customer or any of its agents, officers, directors, or
employees.
12.2 Customer will permit an agent appointed by Genometrix and
acceptable to Customer to review Customer's relevant records and inspect
Customer's facilities to ensure compliance with this Agreement; provided, that,
such agent has entered into a suitable confidentiality agreement with Customer.
Genometrix will give Customer at least forty-five (45) days advance notice of
any such inspection and will conduct the same during normal business hours in a
manner that does not unreasonably interfere with Customer's normal operations.
Genometrix's agent shall only report to Genometrix the results of such
inspection (i.e., whether or not Customer is in compliance with its obligations
under this Agreement), and shall not disclose to Genometrix any of Customer's
confidential or proprietary information provided to it or to which it may have
access during the conduct of the inspection.
12.3 This Agreement may not be assigned by either party without the
prior written consent of the other party, except that each party may assign this
Agreement and its rights, obligations and interests hereunder, in whole or in
part, to any purchaser of all or substantially all of its assets in the line of
business to which this Agreement pertains, or to any successor corporation
resulting from any merger or consolidation of such party with or into such
corporation.
12.4 Any notice required under this Agreement shall be delivered to the
addresses below:
If to Genometrix:
Genometrix Incorporated
2700 Research Forest Drive
The Woodlands, TX 77381
If to Customer:
Proctor & Gamble Pharmaceuticals, Inc.
8700 Mason-Montgomery Road
Mason, OH 45040
12.5 The United Nations Convention on Contracts for the International
Sale of Goods does not apply to this Agreement.
12.6 All waivers must be in writing; any waiver or failure to enforce
any provision hereof on one occasion will not be deemed a waiver of any other
provision or of such provision on any other occasion.
12.7 If any provision hereof is unenforceable, the remaining provisions
will nevertheless remain in full force and effect.
12.8 This Agreement supersedes any prior or contemporaneous agreement
or communication between the parties regarding such services and may be amended
or supplemented only by a written document signed by both parties.
9.
<PAGE> 10
IN WITNESS WHEREOF, the parties hereby execute this Agreement, which is
deemed effective as of the Effective Date.
<TABLE>
<S> <C>
GENOMETRIX INCORPORATED CUSTOMER
By: Mitchell D. Eggers By: D.W. Axelrod, M.D., Ph.D.
------------------ -------------------------
Title: Chief Executive Officer Title: Director, Discovery Projects & Biological Sciences
----------------------- --------------------------------------------------
</TABLE>
10.
<PAGE> 11
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT A
PRICING AND DELIVERABLES FORM
Genometrix will provide the following products and services:
<TABLE>
<CAPTION>
ACCESS
PRODUCT PARAMETERS/COMMITMENTS TERMS
<S> <C> <C>
GENOVISTA(TM) PROGRAM Expression Program
Vista Array(TM) Expression - Design, fabrication and validation of ExpressChip
Array Services arrays for expression analysis of *** genes with ********
VistaArray Fabrication Services.
- Complete processing and analysis of experimental **** ***
samples on custom VistaArray microarray using Target ******
Preparation Services for a minimum of *** samples
- Installation and evaluation of VistaExpress (Beta) ******** **
module upon release. **********
</TABLE>
Access Terms: ** ****** from effective date of Genomics Services Agreement.
ARRAY SERVICES USAGE FOR THE GENOVISTA PROGRAM:
- - Genometrix will:
- Assign a Client Business Manager at Genometrix to work
directly with Procter & Gamble to facilitate the GenoVista
Program.
- Design, fabricate, and validate custom arrays using standard
VistaArray Fabrication Service procedures. A payment of
******** will be due upon design, fabrication and validation
of initial batch of VistaArray microarrays as determined by
standard Genometrix evaluation procedures. Fees for
fabrication of requested quantities of VistaArray will be due
upon completion of fabrication and standard QC validation.
- Provide to Procter & Gamble data in predefined standard files
and, when available, in the appropriate GenoVista module.
Standard turn around for data from samples shipped according
to specifications is ** ******* *****.
- - Procter & Gamble will:
- Procter & Gamble will designate a main contact person for the
pilot program. This individual will be authorized by Procter &
Gamble to provide appropriate forecasts and approve new
projects and services requested from Genometrix under the
terms of the Agreement.
- Provide sequence data for VistaArray design. Standard turn
around for microarray design, fabrication, and validation is
** ******** ****.
- Supply experimental samples using Genometrix defined
procedures (to be provided after initiation of the Genomic
Services Agreement).
- Provide an array usage forecast as described in the Genomics
Services Agreement detailing design and quantities of each
VistaArray required. The mutually determined schedule for
delivery of services as identified in Section 3.1 of the
Agreement will be based on the forecast.
11.
<PAGE> 1
EXHIBIT 10.15
CONFIDENTIAL TREATMENT
GENOMETRIX INCORPORATED HAS REQUESTED THAT THE MARKED PORTIONS OF THIS DOCUMENT
BE ACCORDED CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT
OF 1933, AS AMENDED.
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
FIRST AMENDMENT TO LICENSE AND RESEARCH AGREEMENT
This First Amendment, dated March 20, 2000 (the "Amendment"), is
between Motorola, Inc., a Delaware corporation and Genometrix Incorporated, a
Delaware corporation and amends that certain License and Research Agreement (the
"Agreement") between MOTOROLA and GENOMETRIX dated July 2, 1999.
BACKGROUND
MOTOROLA and GENOMETRIX desire to amend the Agreement to better
accommodate certain changes in the marketplace and to better reflect the
original intention of the parties.
Accordingly, the parties agree as follows:
1. Definitions. All defined terms, unless assigned a specific meaning in this
Amendment, shall have the meaning set forth in the Agreement.
2. Sections 1.18 and 2.9. The term "*** *** format arrays" is deleted from
Section 1.18, the first sentence of Section 2.9, where the term is used twice,
and from the second sentence of Section 2.9, where the term is used once. In its
place, the term "*** ***** MICROARRAY" is substituted. In addition, the
following sentence is added at the end of Section 1.18:
"The term *** ***** MICROARRAY shall mean a device on which an array of
biomolecules have been or are intended to be immobilized (as in the case of a
blank array), whereby the biomolecules are immobilized in a ****** ******.
3. Section 2.1. As contemplated by Section 2.1, the parties shall extend the
SURFACE CHEMISTRIES RESEARCH PROGRAM until December 31, 2000. The parties shall
mutually agree upon an amended RESEARCH PLAN, a draft of which is attached as
Exhibit E-1. GENOMETRIX shall commit resources equivalent to at least ***** *
**** **** ********* employees to the SURFACE CHEMISTRIES RESEARCH PROGRAM for
the duration of the extended SURFACE CHEMISTRIES RESEARCH PROGRAM. MOTOROLA
shall pay GENOMETRIX ***** ******* ***** ******** ******* ******** for this
extension: *** ******* *** ***** ******** ******* ******** upon execution of
this Amendment and each of ****** * **** *** ******** ** ****; all subject to
the completion by GENOMETRIX of the relevant milestones set forth in the amended
RESEARCH PLAN.
4. Section 4. Section 4 is deleted in its entirely and replaced with the
following paragraph:
<PAGE> 2
CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE SUCH OMISSIONS.
"MOTOROLA agrees, beginning January 1, 2001 and subject to its capacity
constraints, to provide to GENOMETRIX **** ******* ****** (i.e. ****** ******
**** **** *** ******** ******) employing the SURFACE CHEMISTRIES technologies
developed by the extended SURFACE CHEMISTRIES RESEARCH PROGRAM ** *********
*****. GENOMETRIX shall have the right to use **** **** ******* ****** *** ***
******** ******** ********, *** ******** ******** ********** ** ** *********
******. The rights granted to GENOMETRIX in this Section 4 shall not be
transferred to a THIRD PARTY without the written permission of MOTOROLA. In
addition, MOTOROLA agrees to make GENOMETRIX * ********* ******** ** ********
********, and GENOMETRIX agrees to provide to MOTOROLA ******** ********, ****
** *** ****** ******* ********, ** ********* *******."
5. Section 6.2. The following sentence is added at the end of Section 6.2:
"Notwithstanding MOTOROLA'S obligation to pay royalties to GENOMETRIX on NET
SALES of LICENSED PRODUCTS sold by MOTOROLA or its SUBSIDIARIES and covered by a
VALID PATENT CLAIM set forth in this Section 6.2 or Section 6.5, the parties
agree that any LICENSED PRODUCTS sold by MOTOROLA employing E-FIELD MANIPULATION
IP that also encompass any *** ****** TECHNOLOGY shall bear a single royalty of
***** ******* ** of NET SALES. *** ****** TECHNOLOGY is defined as the
proprietary ******* technology developed by and/or licensed to ******** *****
******* *** * ********** *********** *** and is further defined in the
Intellectual Property Agreement dated ***** ** **** ******* ******** *** ***.
The sentences immediately preceding this sentence, together with Paragraph
6.3(b) below, shall be effective only upon the execution of agreements between
Motorola and *** ******* *** *********** GENOMETRIX E-FIELD MANIPULATION IP and
*** ****** ** ***** *** ****** *** ***** *** *********
********* ** *** ******** ** ********** * ***** *********** **."
6. Section 6.3. Section 6.3 is deleted in its entirety and the following
paragraph is substituted.
"6.3 In consideration of the rights and licenses granted hereunder, MOTOROLA
shall pay GENOMETRIX ***** ******* *** of any SUBLICENSE INCOME received by
MOTOROLA in consideration for the grant of a sublicense under the GENOMETRIX
PATENTS. The foregoing notwithstanding, (a) in all cases the percentage of
SUBLICENSE INCOME payable by MOTOROLA to GENOMETRIX in consideration for the
grant of a sublicense under the GENOMETRIX PATENTS shall be ***** ** ** *******
**** *** amount owed by GENOMETRIX to MIT pursuant to the MIT AGREEMENT; (b) in
the case of SUBLICENSE INCOME received by MOTOROLA **** ***, (i) SUBLICENSE
INCOME shall include only cash consideration paid by *** ** ******** as part of
the grant of the sublicense, including but not limited to up-front license fees,
running royalties, milestone payments or development payments, as set forth in
the actual sublicense agreement between *** *** ******* and (ii) in addition to
any cash consideration paid by *** ** ******* (of which GENOMETRIX shall be
entitled to ***** ****** ***, the percentage of running royalties to be paid by
MOTOROLA to
2
<PAGE> 3
CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE SUCH OMISSIONS.
GENOMETRIX on the NET SALES of E-FIELD PRODUCTS by *** ***** ** no less than ***
*** *** **** ****** *** of NET SALES of E-FIELD PRODUCTS by ***; and (c)
notwithstanding the foregoing and Exhibit F, in the event that MOTOROLA grants a
sublicense to ****** ** *** ******** for the field of E-FIELD MANIPULATION IP,
************* *** ****** ** *** ** ** ****** ****** ****** ****** **********
within ***** * ****** following the execution of this Amendment, MOTOROLA shall
pay to GENOMETRIX SUBLICENSE INCOME of a pre-paid license fee of ****** ******,
***** ******* *** ***** ******* ******* ********, and (ii) an annual running
royalty of the greater of ***** ** ** *** ***** ** ******** ******** ** *******
** ***** ******* ******* *** ******** ******* ********. MOTOROLA agrees to
provide GENOMETRIX with advance written notice of and a copy of any such
sublicense agreements."
6. All other terms of the Agreement remain unchanged.
Authorized representatives of the parties have executed this Amendment.
Motorola, Inc. Genometrix Incorporated
By: /s/ Nicholas Naclario By: /s/ Mitchell Eggers
--------------------- -------------------
Nicholas Naclario Mitchell D. Eggers, Ph.D.
Title: Vice President and General Manager Title: Chief Executive Officer
By: /s/ Jonathan Meyer
------------------
Jonathan Meyer
Title: Senior Vice President,
Assistant General Counsel,
and Director of Patents, Trademarks and Licensing
3
<PAGE> 4
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
Exhibit E-1
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<PAGE> 5
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
**************************************************************
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5
<PAGE> 6
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
- ********************
********************************************
6
<PAGE> 1
EXHIBIT 10.16
March 27, 2000
Motorola, Inc.
4088 Commercial Drive
Northbrook, IL 60062
Common Stock Purchase Agreement
Ladies and Gentlemen:
The purpose of this letter (the "Agreement") is to confirm in writing
the agreement of Motorola, Inc. ("Motorola") to purchase shares of Common Stock
of Genometrix Incorporated ("Genometrix"), a Delaware corporation, pursuant to
the terms set forth herein.
Motorola is currently the record and beneficial owner of 706,714 shares
of Genometrix Series D Convertible Preferred Stock and 2,666,667 shares of
Genometrix Series E Convertible Preferred Stock, which are convertible
automatically into shares of Common Stock of Genometrix upon the completion of a
qualified initial public offering by Genometrix, into an aggregate of 3,373,381
shares of Common Stock (collectively, "Motorola Common Stock Equivalents").
Reference is made to the Stock Purchase Agreement (the "Series D Agreement")
dated December 28, 1998 and the Series E Stock Purchase Agreement (the "Series E
Agreement") dated as of July 6, 1999, each entered into by and between
Genometrix Incorporated, now a wholly-owned subsidiary of Genometrix and
currently known as Genometrix Genomics Incorporated ("Genometrix Sub"), and
Motorola and the First Amended and Restated Registration Rights Agreement
("Registration Rights Agreement") dated as of July 6, 1999, entered into by and
between Genometrix Sub and Motorola. Genometrix and Motorola agree that
Genometrix shall hereby become a party to the Series D Agreement, the Series E
Agreement and the Registration Rights Agreement and shall, effective
immediately, have all the obligations and rights of Genometrix Sub as set forth
in each such agreement.
On March 15, 2000, Genometrix filed with the United States Securities
and Exchange Commission ("SEC") a Registration Statement on Form S-1
("Registration Statement") (No. 333-32584) with respect to an initial public
offering of shares of its Common Stock (the "Genometrix IPO"). Motorola
acknowledges that it has received a copy of the Genometrix Form S-1, without
exhibits, that it has access to the Registration Statement, with exhibits, over
the Internet, and that it has had access to such officers of, and information
from, Genometrix as it deems prudent. Genometrix has advised Motorola that the
Genometrix IPO is contemplated to be underwritten by Lehman Brothers and Chase
H&Q as co-managing underwriters and Dain Rauscher Wessels and Thomas Weisel
Partners as co-underwriters (collectively, the "Underwriters").
<PAGE> 2
Contemporaneously with the Closing of the Genometrix IPO (as defined
below), Motorola shall purchase and Genometrix shall issue and sell to Motorola
at the Per-Share Purchase Price (as defined below) such number of shares of the
Common Stock of Genometrix (the "Purchased Common Shares") as shall equal, to
the nearest whole number, the lesser of (a) the sum of $10,000,000 divided by
the per share offering Price to Public set forth on the cover page of the final
Prospectus, as defined below (the "Per-Share Purchase Price"), and (b) that
number of shares such that the Purchased Common Shares equal fifteen percent
(15%) of the total number of shares of Common Stock issued in the Genometrix IPO
in the first closing (i.e. exclusive of the shares sold in connection with the
exercise of the Underwriters' over allotment option) (collectively, "Motorola
Stock Purchase Commitment"). The term "Prospectus" as used herein shall mean the
prospectus, as amended, on file with the SEC at the time the Registration
Statement becomes effective, including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A, if
applicable, except that if the prospectus filed by Genometrix pursuant to Rule
424(b) differs from the prospectus on file at the time the Registration
Statement becomes effective, the term "Prospectus" shall refer to the Rule
424(b) Prospectus from and after the time it was filed with the SEC or
transmitted to the SEC for filing. The "Closing" as used herein shall mean the
first date upon which Genometrix receives from the Underwriters the proceeds of
the Genometrix IPO, less underwriting discount and commissions.
Genometrix represents to Motorola that:
1. As of the date of the underwriting agreement entered into with
the Underwriters of the Genometrix IPO (the "Underwriting
Agreement"), the representations and warranties set forth in
such Underwriting Agreement will be true and correct in all
respects and incorporated by reference herein.
2. Genometrix is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
Genometrix has full power and authority to own and operate its
properties and assets, and to carry on its business as
presently conducted. Genometrix is duly qualified, is
authorized to do business and is in good standing as a foreign
corporation in all jurisdictions in which the nature of its
activities and of its properties (both owned and leased) makes
such qualification necessary, except for those jurisdictions,
in the aggregate, in which failure to do so would not have a
material adverse effect on Genometrix or its business.
3. All corporate action on the part of Genometrix, its officers,
directors and shareholders necessary for the authorization,
execution and delivery of this Agreement, for the sale and
issuance of the Purchased Common Shares pursuant hereto and
for the performance of Genometrix's obligations hereunder has
been taken or will be taken prior to the Closing. This
Agreement, when executed and delivered, will be a valid and
binding obligation of Genometrix enforceable in accordance
with its terms. The sale of the Purchased Common Shares is not
and will not be subject to any preemptive rights or rights of
first refusal that have not been properly waived or complied
with.
2
<PAGE> 3
4. The execution, delivery and performance of and compliance with
this Agreement and the issuance and sale of the Purchased
Common Shares pursuant hereto will not (i) materially conflict
with, or result in a material breach or violation of, or
constitute a material default under, or result in the creation
or imposition of any material lien, (ii) violate, conflict
with or result in the breach of any material terms of, or
result in the material modification of, any material contract
or otherwise give any other contracting party the right to
terminate a material contract, or constitute (or with notice
or lapse of time both constitute) a material default under any
material contract to which Genometrix is a party or by or to
which it or any of its assets or properties may be bound or
subject or (iii) result in any violation, or be in conflict
with or constitute a default under any term, of its Articles
of Incorporation or bylaws.
5. The Purchased Common Shares which will be purchased by
Motorola hereunder, when issued, sold and delivered in
accordance with the terms hereof for the consideration
expressed herein, will be duly and validly authorized and
issued, fully paid and nonassessable, and will be free of any
liens or encumbrances.
6. There is no action, suit, proceeding nor, to Genometrix'
knowledge, any investigation pending or currently threatened
against Genometrix, that questions the validity of this
Agreement or the right of Genometrix to enter into such
agreements, or which might result, either individually or in
the aggregate, in any material adverse change in the assets,
condition, affairs or prospects of Genometrix, financial or
otherwise.
7. No consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority on the
part of Genometrix is required in connection with the valid
execution, delivery, and performance of this Agreement or the
offer, sale or issuance of the Purchased Common Shares, or the
consummation of any other transaction contemplated by this
Agreement except certain filings as may be required under the
Securities Act and state securities laws and regulations,
which filings will be made timely in accordance with the
applicable law or regulation.
The Motorola Stock Purchase Commitment is conditioned on the following:
1. As of the Closing, there shall be no material adverse change
in the financial condition or operations of Genometrix since
December 31, 1999, such determination to be made, in part, on
any changes set forth in the final Prospectus;
2. The Closing shall occur concurrently with the closing of the
Motorola Stock Purchase Commitment;
3. The representations made by Genometrix set forth above shall
be true and correct as of the Closing and Motorola shall have
received a Certificate of the Chief Executive Officer and
Corporate Secretary of Genometrix to that effect;
3
<PAGE> 4
4. Genometrix shall have caused to be delivered an opinion of
counsel to Motorola in form and substance customary for a
transaction of this nature, and Motorola shall have received
such further documents and assurances as are customary and
prudent in a transaction of this nature;
5. Notwithstanding anything else in this Agreement, if the sale
and issuance of the Purchased Common Shares is subject to the
premerger notification requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), it shall be a condition to the Motorola Stock Purchase
Commitment that any waiting period under the HSR Act
applicable to the purchase of the Purchased Common Shares
shall have expired or been terminated and any approvals
required thereunder shall have been obtained, and the parties
shall cooperate in promptly filing premerger reports and in
taking all steps reasonably necessary to obtain early
termination of any applicable HSR Act waiting periods. If any
such waiting period shall not have expired or been subject to
early termination on or before the date ninety (90) days from
the date of this Agreement, either party may terminate this
Agreement by giving written notice to the other.
6. If the Closing does not occur by September 30, 2000, Motorola
in its discretion may elect to terminate this Agreement by
providing written notice to Genometrix at any time thereafter.
Effective upon the purchase by Motorola of the Purchased Common Shares,
(i) the Registration Rights Agreement shall be, without further action by
Motorola or Genometrix, be deemed to be amended such that the term "Registrable
Securities", as defined therein, shall further include the Purchased Common
Shares, and Motorola shall be entitled to all the rights with respect to the
registration of the Purchased Common Shares with the SEC as are set forth in the
Registration Rights Agreement; and (ii) the Lock-Up Letter Agreement from
Motorola to the Underwriters, dated March 15, 2000, would, by the terms set
forth herein, include the Purchased Common Shares.
Motorola represents to Genometrix that:
1. Motorola is an "accredited investor" as such term is defined
in Rule 501 of Regulation D under the Securities Act and is a
sophisticated investor and has such knowledge and experience
in financial, tax, business matters, securities and
investments including, without limitation, experience in
investments such as the purchase of the Purchased Common
Shares, as to enable Motorola to utilize the information made
available to it in connection with the sale of the Purchased
Common Shares, to evaluate the merits and risks of an
investment in the Purchased Common Shares and to make an
informed investment decision with respect thereto;
2. Motorola understands that the issuance and sale of the
Purchased Common Shares have not been, and except as provided
in the Registration Rights Agreement, will not be, registered
under the Securities Act of 1933, as amended (the "Securities
Act") or
4
<PAGE> 5
any state securities laws;
3. Motorola is acquiring the Purchased Common Shares solely for
its own account for investment and not with a view to resale
or distribution and has no present intention of transferring
the Purchased Common Shares to any other person or entity,
except, at Motorola's election, to a majority-owned subsidiary
of Motorola;
4. Motorola understands that it must bear the economic risk of
the investment indefinitely because none of the Purchased
Common Shares have been registered under applicable securities
laws and therefore, none of the Purchased Common Shares may be
sold, hypothecated or otherwise disposed of unless
subsequently registered under the Securities Act and
applicable state securities laws or an exemption from
registration is available and, accordingly, that a legend
shall be placed on the certificate(s) representing the
Purchased Common Shares in substantially the following form;
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN TAKEN
FOR INVESTMENT AND THEY MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED BY ANY PERSON, INCLUDING A PLEDGEE, UNLESS (1)
EITHER (A) A REGISTRATION STATEMENT WITH RESPECT TO SUCH
SHARES SHALL BE EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR (B) GENOMETRIX SHALL HAVE RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO IT THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS THEN AVAILABLE, AND (2) THERE SHALL HAVE
BEEN COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES LAWS."
5. The representations of Motorola contained herein are accurate
and may be relied upon by Genometrix in determining the
availability of an exemption from registration under the
Securities Act and state securities laws in connection with
the offering and sale of the Purchased Common Shares;
6. Motorola has full right, power, authority and capacity to
enter into this Agreement and to consummate the transactions
contemplated hereby, and thereby and has taken all necessary
corporate action to authorize the execution, delivery and
performance of this Agreement, and this Agreement will
constitute the valid and binding obligations of Motorola
enforceable against Motorola.
This Agreement shall be governed in all respects by the laws of the
State of Delaware. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by Motorola and the closing of
the transactions contemplated hereby. This Agreement may be amended or modified
only upon the written consent of the parties hereto. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one instrument.
5
<PAGE> 6
Genometrix agrees that the material terms of this Agreement will be no
less favorable to Motorola than the terms given to other investors (including
investors that may enter into such agreements after the date hereof, if any)
that are purchasing shares of Genometrix capital stock in private placements
that are closing concurrently with the Closing.
If the foregoing is in conformity with your understanding and agreed
to, please sign below where indicated.
GENOMETRIX INCORPORATED
By: /s/ Mitchell D. Eggers
----------------------
Mitchell D. Eggers
Its: Chief Executive Officer
The foregoing is in conformity with our understanding and agreed to as
of this twenty-seventh day of March, 2000.
MOTOROLA, INC.
By: /s/ Keith Bane
--------------
Keith Bane
Its: Executive Vice President and President of Global
Strategy and Corporate Development
6
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Amendment No. 1 to the
Registration Statement on Form S-1 of Genometrix Incorporated (File No.
333-32584) of our report dated November 19, 1999, relating to the financial
statements of Genometrix Incorporated which appear in such Registration
Statement. We also consent to the references to us under the heading "Experts"
in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
Houston, Texas
April 19, 2000
