Certificate of Incorporation - Transgenomic Inc.
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRANSGENOMIC, INC.
Transgenomic, Inc., a corporation organized and existing under the laws
of the State of Delaware (the "Corporation") hereby certifies that:
(i) The Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on March 6,
1997;
(ii) On June 27, 1997, the incorporator of the Corporation
adopted an amendment and restatement of the Corporation's Certificate
of Incorporation in accordance with the provisions of Sections 241 and
245 of the Delaware General Corporation Law which was filed with the
Secretary of State of the State of Delaware on June 27, 1997;
(iii) On February 17, 1998, a Certificate of Correction of
the First Amended and Restated Certificate of Incorporation was
filed with the Secretary of State of Delaware;
(iv) On March 4, 2000, the Board of Directors of the
Corporation proposed an amendment and restatement of the Corporation's
First Amended and Restated Certificate of Incorporation which was
duly adopted by the stockholders of the Corporation in the manner and
by the vote prescribed by Section 242 of the Delaware General
Corporation Law and in accordance with Section 245 thereof on March
30, 2000.
Accordingly, the text of the First Amended and Restated Certificate of
Incorporation of the Corporation is amended and restated in its entirety to
read as follows:
ARTICLE I
The name of the Corporation is Transgenomic, Inc.
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle, Delaware 19805, and the name of its registered agent at
the address of the Corporation's registered office is The Corporation Trust
Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV
SECTION 4.1. The total number of shares of capital stock which the
Corporation shall have the authority to issue is 75,000,000 consisting of (a)
60,000,000 shares of Common Stock, par value $0.01 per share, and (b) 15,000,000
shares of Preferred Stock, par value $0.01 per share.
SECTION 4.2. Each holder of a share of Common Stock shall be entitled
to one vote for each share of Common stock held of record by such holder and to
such other powers, rights and preferences as are normally available to holders
of Common Stock pursuant to the General Corporation Law of the State of
Delaware. Except as may be otherwise provided in this Restated
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Certificate of Incorporation or in a Preferred Stock Designation (defined in
Section 4.3), the holders of the Common Stock shall have the exclusive right to
vote for the election of directors and for all other purposes, and the holders
of Preferred Stock shall not be entitled to receive notice of any meeting of
stockholders at which they are not entitled to vote. The Common Stock shall be
subject to the express terms of the Preferred Stock and any series thereof.
SECTION 4.3. The Preferred Stock may be issued at any time and from
time to time in one or more series. The Board of Directors is hereby authorized
to provide for the issuance of shares of Preferred Stock in series and, by
filing a certificate of designation pursuant to the applicable provisions of the
General Corporation Law of the State of Delaware (hereinafter referred to as a
"Preferred Stock Certificate of 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 shares of each such series and
the qualifications, limitations and restrictions thereof. The authority of the
Board of Directors with respect to each such series shall include, but not be
limited to, determination of the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The number of shares of the series, which number the Board
of Directors may thereafter (except where otherwise provided in the
applicable Preferred Stock Designation) increase or decrease (but not
below the number of shares thereof then outstanding);
(c) Whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series;
(d) The date on which dividends, if any, shall be payable;
(e) The redemption rights and price or prices, if any, for
shares of the series;
(f) The terms and amount of any sinking fund provided for the
purchases or redemption of shares of the series;
(g) The amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation;
(h) Whether the shares of the series shall be convertible or
exchangeable into shares of any other class or series, or any other
security, of the Corporation or any other corporation, and, if so, the
specification of such other class or series or such other security, the
conversion or exchange price or prices or rate or rates, any
adjustments thereof, the date or dates as of which such shares shall be
convertible or exchangeable and all other terms and conditions upon
which such conversion or exchange may be made;
(i) Restrictions on the issuance of shares of the same series
or of any other class or series; and
(j) The voting rights, if any, of the holders of shares of the
series.
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SECTION 4.4. The Corporation shall be entitled to treat the person in
whose name any share of its stock is registered as the owner thereof for all
purposes and shall not be bound to recognize any equitable or other claim to or
interest in, such share on the part of any other person, whether or not the
Corporation shall have notice thereof, except as expressly provided by
applicable law.
ARTICLE V
The Board of Directors is hereby authorized to create and issue,
whether or not in connection with the issuance and sale of any of its stock or
other securities or property, rights entitling the holders thereof to purchase
from the Corporation shares of stock or other securities of the Corporation or
any other corporation. The times at which and the terms upon which such rights
are to be issued will be determined by the Board of Directors and set forth in
the contracts or instruments that evidence such rights. The authority of the
Board of Directors with respect to such rights shall include, but not be limited
to, determination of the following:
(a) the initial purchase price per share or other unit of the
stock or other securities or property to be purchased upon exercise of
such rights;
(b) Provisions relating to the times at which and the
circumstances under which such rights may be exercised or sold or
otherwise transferred, either together with or separately from any
other stock or other securities of the Corporation;
(c) Provisions which adjust the number or exercise price of
such rights, or amount or nature of the stock or other securities or
property receivable upon exercise of such rights, in the event of a
combination, split or recapitalization of any stock of the Corporation,
a change in ownership of the Corporation's stock or other securities or
a reorganization, merger, consolidation, sale of assets or other
occurrence relating to the Corporation or any stock of the Corporation
and provisions restricting the ability of the Corporation to enter into
any such transaction absent an assumption by the other party or parties
thereto of the obligations of the Corporation under such rights;
(d) Provisions which deny the holder of a specified percentage
of the outstanding stock or other securities of the Corporation the
right to exercise such rights and/or cause the rights held by such
holder to become void;
(e) Provisions which permit the Corporation to redeem such
rights; and
(f) The appointment of a rights agent with respect to such
rights.
ARTICLE VI
In furtherance and not in limitation of the powers conferred upon it by
law, the Board of Directors is expressly authorized to adopt, repeal, alter or
amend the By-laws of the Corporation by the vote of a majority of the entire
Board of Directors. In addition to any requirements of law and any other
provision of this Restated Certificate of Incorporation, the stockholders of the
Corporation may adopt, repeal, alter or amend any provision of the By-laws upon
the affirmative
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vote of the holders of a majority or more of the combined voting power of the
then outstanding stock of the Corporation entitled to vote generally in the
election of directors.
ARTICLE VII
SECTION 7.1. The business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors, which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by law or by this Restated Certificate of Incorporation directed or required
to be exercised or done by the stockholders.
SECTION 7.2. The number of directors constituting the initial Board of
Directors shall be five and, thereafter, the number of directors shall be fixed
from time to time by resolution of the Board of Directors pursuant to the
By-laws of the Corporation, provided that the number shall at no time be less
than three or more than fifteen. The Board of Directors shall be divided into
three classes, designated Classes I, II and III, which shall be as nearly equal
in number as possible. Directors of Class I shall be elected to hold office for
a term expiring at the annual meeting of stockholders to be held in 1998;
directors of Class II shall be elected to hold office for a term expiring at the
annual meeting of stockholders to be held in 1999; and directors of Class III
shall be elected to hold office for a term expiring at the annual meeting of
stockholders to be held in 2000. At each succeeding annual meeting of
stockholders following such initial classification and election, the respective
successors of each class shall be elected for three-year terms.
SECTION 7.3. Advance notice of nominations for elections for the
election of directors shall be given in the manner and to the extent provided in
the By-laws of the Corporation.
SECTION 7.4. The holders of a majority of the shares then entitled to
vote at an election of directors may remove any director or the entire Board of
Directors, but only for cause.
ARTICLE VIII
SECTION 8.1. A director shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that this provision shall not eliminate or limit
the liability of a director (1) for any breach of his duty of loyalty to the
Corporation or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of the law, (3)
under Section 174 of the General Corporation Law of the State of Delaware or (4)
for any transaction from which the director derives an improper personal
benefit. If the General Corporation Law of the State of Delaware is amended
after the filing of this Restated Certificate of Incorporation 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 General Corporation
Law of the State of Delaware, as so amended.
SECTION 8.2. Any repeal or modification of the foregoing paragraph by
the stockholders of the Corporation shall not adversely affect any right or
protection of a director or the Corporation existing at the time of such repeal
or modification.
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ARTICLE IX
SECTION 9.1. Each person who was or is made a party or is threatened to
be made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director
or officer 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 or omission in an official capacity as a director or officer or in any
other capacity while serving as a director or officer, shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the General
Corporation Law of the State of Delaware, 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
permitted prior thereto), against all expense, liability and loss (including,
without limitation, attorneys' fees, judgments, fines, excise taxes or penalties
and amounts paid or to be paid in settlement) incurred or suffered by such
indemnitee in connection therewith, and such indemnification shall continue with
respect to an indemnitee who has ceased to be a director or officer and shall
inure to the benefit of the indemnitee's heirs, executors and administrators;
provided, however, that, except as provided in Section 9.2 with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding initiated by such
indemnitee only if such proceeding was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Article IX shall
be a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"); provided, further, that,
if required by the General Corporation Law of the State of Delaware, an
advancement of expenses incurred by an indemnitee shall be made only upon
delivery to the Corporation of an undertaking (hereinafter, 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 (hereinafter, a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Article IX or otherwise.
SECTION 9.2. If a claim under Section 9.1 is not paid in full by the
Corporation within 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 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, the indemnitee
shall also be entitled to be paid the expense 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 the applicable standard of conduct set forth in the General
Corporation Law of the State of Delaware. 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 General Corporation Law of the State of Delaware nor an actual determination
by
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the Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) that the indemnitee has not met the 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 indemnification or to an advancement of expenses hereunder or
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
under this Article IX or otherwise to be indemnified, or to such advancement of
expenses, shall be on the Corporation.
SECTION 9.3. The rights to indemnification and to the advancement of
expenses conferred in this Article IX shall not be exclusive of any other right
which any person may have or hereafter acquire under this Restated Certificate
of Incorporation or any bylaw, contract, agreement, vote of stockholders or
disinterested directors or otherwise.
SECTION 9.4. The Corporation may maintain insurance, at its expense, to
protect itself and any indemnitee 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 General Corporation Law of the
State of Delaware.
SECTION 9.5. 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 IX or as otherwise permitted
under the General Corporation Law of the State of Delaware with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
ARTICLE X
A director of the Corporation, in determining what he reasonably
believes to be in the best interests of the Corporation, shall consider the
interests of the Corporation's stockholders and, in his discretion, may consider
any of the following:
(a) The interests of the Corporation's employees, independent
contractors, agents, suppliers, creditors and customers;
(b) The economy of the nation;
(c) Community and societal interests; and
(d) The long-term as well as short-term interests of the
Corporation and its stockholders, including the possibility that these
interests may be best served by the continued independence of the
Corporation.
ARTICLE XI
Election of directors at an annual or special meeting of stockholders
need not be by written ballot unless the By-laws of the Corporation shall so
provide.
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ARTICLE XII
Cumulative voting for the election of directors shall not be permitted.
ARTICLE XIII
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation, and the ability of the stockholders to consent
in writing to the taking of any action is hereby specifically denied. The
foregoing sentence shall take effect on the day following the date on which the
Corporation first has more than 35 stockholders of record. Except as otherwise
required by law, special meetings of stockholders of the Corporation may be
called only by the Chairman of the Board, the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of Directors, by the Chief
Executive Officer if one is appointed, otherwise by the President or as
otherwise provided in the By-laws of the Corporation.
ARTICLE XIV
The vote of stockholders of the Corporation required to approve
Business Combinations (as hereinafter defined) shall be as set forth in this
Article XIV.
SECTION 14.1. In addition to any affirmative vote required by law or by
this Restated Certificate of Incorporation, and except as otherwise expressly
provided in Section 14.3 of this Article XIV:
(a) any merger or consolidation of the Corporation with (1)
any Interested Stockholder or (2) any other corporation (whether or not
itself an Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate of an Interested
Stockholder;
(b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder of (1) all or substantially all the assets of
the Corporation or (2) assets of the Corporation or any of its
Subsidiaries representing in the aggregate more than 75% of the total
value of the assets of the Corporation and its consolidated
Subsidiaries as reflected on the most recent consolidated balance sheet
of the Corporation and its consolidated Subsidiaries prepared in
accordance with generally accepted accounting principles then in
effect;
(c) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder of any assets of the Corporation or of any
Subsidiary having an aggregate Fair Market Value of $10,000,000 or
more, but less than the amount referred to in clause (ii) of paragraph
(b) of this Section 14.1 or (ii) any merger or consolidation of any
Subsidiary of the Corporation having assets with an aggregate Fair
Market Value of $10,000,000 or more in a transaction not covered by
paragraph (b) of this Section 14.1 with (x) any Interested Stockholder
or (y) any other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be,
an Affiliate or Associate of an Interested Stockholder;
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(d) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) to any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder of any securities of the Corporation or any Subsidiary in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate Fair Market Value of $10,000,000 or more,
other than the issuance of securities upon the conversion of
convertible securities of the Corporation or any Subsidiary which were
not acquired by such Interested Stockholder (or such Affiliate or
Associate) from the Corporation or a Subsidiary;
(e) The adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder; or
(f) any reclassification of securities (including any reverse
stock split) or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving
any Interested Stockholder), which in any such case has the effect,
directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class or series of stock or securities
convertible into stock of the Corporation or any Subsidiary which is
directly or indirectly beneficially owned by any Interested Stockholder
or any Affiliate or Associate of any Interested Stockholder
shall not be consummated without (5) the affirmative vote of the holders of at
least 75% of the combined voting power of the then outstanding shares of stock
of all classes and series of the Corporation entitled to vote generally in the
election of directors (the "Voting Stock") and (6) the affirmative vote of a
majority of the combined voting power of the then outstanding shares of Voting
Stock held by Disinterested Stockholders, in each case voting together as a
single class. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be specified, by
law or by this Restated Certificate of Incorporation or by a registered
securities association or in any agreement with any national securities exchange
or otherwise.
SECTION 14.2. The term "Business Combination" as used in this Article
XIV shall mean any transaction which is referred to in any one or more of
paragraphs (a) through (f) of Section 14.1 of this Article XIV.
SECTION 14.3. The provisions of Section 14.1 shall not be applicable to
any particular Business Combination, and such Business Combination shall require
only such affirmative vote as is required by law and any other provision of this
Restated Certificate of Incorporation, if all the conditions specified in any of
the following paragraphs (a), (b) or (c) are met:
(a) such Business Combination shall have been approved by a majority of the
Disinterested Directors and (ii) the Interested Stockholder involved in such
Business Combination (x) acquired such status as an Interested Stockholder in a
manner substantially consistent with an agreement or memorandum of understanding
approved by the Board of Directors (including a majority of the Disinterested
Directors) prior to the time such Interested Stockholder became an Interested
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Stockholder and (y) has complied with all requirements imposed by such agreement
or memorandum of understanding; or
(b) in the case of any Business Combination described in
paragraph (a) or (f) of Section 14.1, (i) such Business Combination
shall have been approved by a majority of the Disinterested Directors,
(ii) such Business Combination shall not have resulted, directly or
indirectly, in an increase of more than 10% in the total amount of
shares of any class or series of stock or securities convertible into
stock of the Corporation or any Subsidiary which was directly or
indirectly beneficially owned by an Interested Stockholder and all
Affiliates and Associates of such Interested Stockholder at the time of
the approval of such Business Combination by a majority of the
Disinterested Directors and (iii) such Business Combination shall not
have been consummated within a period of two years after the
consummation of any other Business Combination described in paragraph
(a), (b), (c), (d), (e) or (f) of Section 14.1 (whether or not such
other Business Combination shall have been approved by a majority of
the Disinterested Directors) which had the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class or series of stock or securities convertible into
stock of the Corporation or any Subsidiary which was directly or
indirectly beneficially owned by such Interested Stockholder or any
Affiliate or Associate of such Interested Stockholder; or
(c) in the case of any Business Combination described in
paragraph (c) or (d) of Section 14.1, such Business Combination shall
have been approved by a majority of the Disinterested Directors.
SECTION 14.4. For the purposes of this Article XIV:
(a) A "PERSON" shall mean any individual, group, firm,
corporation, partnership, trust or other entity.
(b) "INTERESTED STOCKHOLDER" shall mean any person (other than
the Corporation, any Subsidiary and other than any group consisting of
the directors and officers of the Corporation which may be deemed to be
a group solely by reason of each of them being directors or officers of
the Corporation or members of a slate proposed by the Corporation as
directors) who or which:
(1) is the beneficial owner, directly or
indirectly, of 10% or more of the combined voting power of the
then outstanding shares of Voting Stock; or
(2) is an Affiliate of the Corporation and
at any time within the two-year period immediately prior to
the date in question was the beneficial owner, directly or
indirectly, of 10% or more of the combined voting power of the
then outstanding shares of Voting Stock; or
(3) is an assignee of or has otherwise
succeeded to the beneficial ownership of any shares of Voting
Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned
by any Interested Stockholder, if such assignment or
succession shall have
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occurred in the course of a transaction or series of
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(c) "DISINTERESTED STOCKHOLDER" shall mean a stockholder of
the Corporation who is not an Interested Stockholder or an Affiliate or
an Associate of an Interested Stockholder.
(d) a person shall be a "BENEFICIAL OWNER" of any Voting
Stock:
(1) which such person or any of its
Affiliates or Associates beneficially owns, directly or
indirectly; or
(2) which such person or any of its
Affiliates or Associates has (a) the right to acquire (whether
such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise or (b) the
right to vote or to direct the vote pursuant to any agreement,
arrangement or understanding; or
(3) which are beneficially owned, directly
or indirectly, by any other person with which such person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
(e) For the purposes of determining whether a person is an
Interested Stockholder pursuant to paragraph (b) of this Section 14.4,
the number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned by such person through application of
paragraph (d) of this Section 14.4 but shall not include any other
shares of Voting Stock which may be issuable to other persons pursuant
to any agreement, arrangement or understanding or upon exercise of
conversion rights, exchange rights, warrants or options or otherwise.
(f) "AFFILIATE" and "ASSOCIATE" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
February 1, 1993.
(g) "SUBSIDIARY" shall mean any Corporation more than 50% of
whose outstanding stock having ordinary voting power in the election of
directors is owned by the Corporation, by a Subsidiary or by the
Corporation and one or more Subsidiaries; provided, however, that for
the purposes of the definition of Interested Stockholder set forth in
paragraph (b) of this Section 14.4, the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity security
is owned by the Corporation, by a Subsidiary or by the Corporation and
one or more Subsidiaries.
(h) "DISINTERESTED DIRECTOR" means any member of the Board of
Directors of the Corporation who is unaffiliated with, and not a
nominee of, the Interested Stockholder and was a member of the Board of
Directors prior to the time that the Interested Stockholder became an
Interested Stockholder, and any successor of a Disinterested Director
who is
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unaffiliated with, and not a nominee of, the Interested Stockholder and
who is recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board of Directors.
(i) "FAIR MARKET VALUE" means: (1) in the case of stock, the
highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the New York
Stock Exchange Composite Tape or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange or, if such stock is not
listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which
such stock is listed or, if such stock is not listed on any such
exchange, the highest closing sales price or bid quotation with respect
to a share of such stock during the 30-day period preceding the date in
question on the Nasdaq Stock Market or, if no such quotations are
available, the fair market value on the date in question of a share of
such stock as determined by a majority of the Disinterested Directors
in good faith; and (2) in the case of stock of any class or series
which is not traded on any securities exchange or in the
over-the-counter market or in the case of property other than cash or
stock, the fair market value of such stock or property, as the case may
be, on the date in question as determined by a majority of the
Disinterested Directors in good faith.
SECTION 14.5. A majority of the Disinterested Directors of the
Corporation shall have the power and duty to determine, on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article XIV, including, without limitation, (a)
whether a person is an Interested Stockholder, (b) the number of shares of
Voting Stock beneficially owned by any person, (c) whether a person is an
Affiliate or Associate of another person, (d) whether the requirements of
Section 14.3 have been met with respect to any Business Combination and (e)
whether the assets which are the subject of any Business Combination have, or
the consideration to be received for the issuance or transfer of securities by
the Corporation or any Subsidiary in any Business Combination has, (i) an
aggregate Fair Market Value of $10,000,000 or more or (ii) represent in the
aggregate more than 75% of the total value of the assets of the Corporation and
its consolidated Subsidiaries prepared in accordance with generally accepted
accounting principles then in effect; and the good faith determination of a
majority of the Disinterested Directors on such matters shall be conclusive and
binding for all purposes of this Article XIV.
SECTION 14.6. Nothing contained in this Article XIV shall be construed
to relieve an Interested Stockholder from any fiduciary obligation imposed by
law.
ARTICLE XV
The Corporation reserves the right at any time and from time to time to
amend, alter, change or repeal any provision contained in this Restated
Certificate of Incorporation, and any other provisions authorized by the laws of
the State of Delaware at the time in force may be added or inserted, in the
manner now or hereafter prescribed herein or by applicable law, and all rights,
preferences and privileges of whatsoever nature conferred upon stockholders,
directors or any other persons whomsoever by and pursuant to this Restated
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article XV;
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provided, however, that any amendment or repeal of Article VIII or Article IX of
this Restated Certificate of Incorporation shall not adversely affect any right
or protection existing hereunder immediately prior to such amendment or repeal;
and provided, further, that Articles V, VI, VII, VIII, IX, X, XII, XIII, XIV and
XV of this Restated Certificate of Incorporation shall not be amended, altered,
changed or repealed without the affirmative vote of the holders of at least a
majority of the then outstanding stock of the Corporation entitled to vote
generally in the election of directors."
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IN WITNESS WHEREOF, the undersigned hereby certifies that the facts
herein above stated are true and correct and that the execution hereof is my
voluntary act and deed and the voluntary act and deed of said corporation,
under penalties of perjury on this 24th day of April, 2000.
TRANSGENOMIC, INC.
By: /s/ Mitchell L. Murphy
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Mitchell L. Murphy, Controller and
Secretary of Transgenomic, Inc.
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