**Exhibit3.10**

 

04/18/01

 

CERTIFICATE OFDESIGNATION OF THE VOTING POWERS, PREFERENCES, AND RELATIVE, PARTICIPATING,OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS ORRESTRICTIONS THEREOF, WHICH HAVE NOT BEEN SET FORTH IN THE CERTIFICATE OFINCORPORATION OR IN ANY AMENDMENT THERETO, OF THE

 

SERIES HCONVERTIBLE PREFERRED STOCK

($.01 Par Value)

 

OF

 

BIONEBRASKA, INC.

____________________

 

Pursuant toSection 151 of the

GeneralCorporation Law of the State of Delaware

 

The undersignedDOES HEREBY CERTIFY that the following resolution was duly adopted by the Boardof Directors of BioNebraska, Inc., a Delaware corporation (hereinafter calledthe “Corporation”):

 

“RESOLVED, thatpursuant to the authority conferred upon the Board of Directors of theCorporation by the Certificate of Incorporation, the Board of Directors herebyprovides for and authorizes the issuance of a series of Preferred Stock of theCorporation to consist of 90,000****shares having a par value of $.01 pershare (the “par value”) and a face value of $100 per share (the “face value”),and hereby fixes the voting powers, preferences and relative, participating,optional or other special rights, and the qualifications, limitations orrestrictions thereof, of the shares of such series, in addition to those setforth in the Certificate of Incorporation, as follows:

 

1.             Designation and Amount.  This series of Preferred Stock shall consistof 90,000 shares and shall be designated as, and is hereinafter referred to as“Series H Convertible Preferred Stock,” with the rights, privileges andpreferences specified herein.

 

2.             Voting Rights.

 

2.1           GeneralVoting Rights.  Each holder ofSeries H Convertible Preferred Stock shall have that number of votes on allmatters submitted to the shareholders that is equal to the number of shares ofCommon Stock into which such holder’s shares of Series H Convertible PreferredStock are then convertible, as hereinafter provided.  The holders of Series H Convertible Preferred Stock shall inaddition have the special voting rights set forth in Section 2.2 below.  Except as otherwise required by law, or asotherwise provided below or in the Certificate of Designation of Series APreferred Stock, Series B 

 

 

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ConvertiblePreferred Stock, Series C Convertible Preferred Stock, Series D ConvertiblePreferred Stock, Series E Convertible Preferred Stock, Series F ConvertiblePreferred Stock or Series G Convertible Preferred Stock, the shares of CommonStock, Series B Convertible Preferred Stock, Series C Convertible PreferredStock, Series D Convertible Preferred Stock, Series E Convertible PreferredStock, Series F Convertible Preferred Stock, Series G Convertible PreferredStock and Series H Convertible Preferred Stock of the Corporation shall vote asa single class on all matters submitted to the shareholders.

 

2.2           Special Voting Rights.  Without the affirmative vote of the holders(acting together as a class) of at least a majority of the shares of Series HConvertible Preferred Stock at the time outstanding given in person or by proxyat any annual meeting, or at such special meeting called for that purpose, or,if permitted by law, in writing without a meeting, the Corporation shall not:

 

                (a)           authorize anyadditional shares of Series H Convertible Preferred Stock or authorize or issueany shares of stock having priority over the Series H Convertible PreferredStock as to the payment or distribution of assets upon the liquidation ordissolution, voluntary or involuntary, of the Corporation; or

 

                (b)           amend theCertificate of Incorporation of the Corporation or this resolution to alter orchange the powers, preferences or special rights of the Series H ConvertiblePreferred Stock so as to adversely affect the Series H Convertible PreferredStock.

 

3.             Dividends.

 

3.1           Dividend Amount.  The holders of the Series H ConvertiblePreferred Stock shall be entitled to receive cumulative dividends, when, as andif declared by the Board of Directors, out of any funds legally availabletherefor, at the rate of $6.00 per share per year, pro rated for partial years,payable annually on December 31 of each such year, in preference and priorityto any payment of any dividend on the Common Stock or any other shares juniorto the Series H Convertible Preferred Stock as to dividends.  The dividend rate is subject to adjustmentas provided in Section 3.4.  Dividendsshall begin to accrue and cumulate on shares of Series H Convertible PreferredStock on the date of the original issue of the shares in question.  Accrued but unpaid dividends shall not bearinterest.  Dividends paid on shares ofSeries H Convertible Preferred Stock in an amount less than the total amount ofsuch dividends at the time accrued and payable on such shares shall be allocatedpro rata on a share-by-share basis among all such shares at the timeoutstanding.

 

3.2           Parity with Series A throughSeries G Convertible Preferred Stock. Shares of Series H Convertible Preferred Stock shall be on parity withshares of Series A Preferred Stock, Series B Convertible Preferred Stock,Series C Convertible Preferred Stock, Series D Convertible Preferred Stock,Series E Convertible Preferred Stock, Series F Convertible Preferred Stock andSeries G Convertible Preferred Stock as to payment of cumulated dividends inall circumstances not involving any redemption of capital stock.  

 

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No dividend orother distribution shall be paid with respect to any of the Series HConvertible Preferred Stock, Series G Convertible Preferred Stock, Series FConvertible Preferred Stock, Series E Convertible Preferred Stock, Series DConvertible Preferred Stock, Series C Convertible Preferred Stock, Series BConvertible Preferred Stock or Series A Preferred Stock (except in thecase of Redemption) unless a comparable payment (but allowing for thedifference in the cumulative dividend rate of the various classes of PreferredStock) is made on a per share basis as to the other.  Nothing in this Section 3 shall limit or impair the rights of theCorporation under Section 5 of this Certificate of Designation.

 

3.3           Priority over Common Stock.  Except for dividends paid solely in the formof Common Stock on a pro rata basis to holders of Common Stock, no dividend orother distribution shall be paid on any shares of Common Stock of theCorporation or any other shares of the Corporation junior to Series HConvertible Preferred Stock as to dividends or the distribution of assets uponliquidation (herein called “junior shares”), nor shall any such shares of CommonStock or junior shares be purchased or otherwise acquired by the Corporation,unless prior to or concurrently with any such payment with respect to theCommon Stock or junior shares, payment in full of the amount of all cumulativedividends to which the holders of the Series H Convertible Preferred Stockshall then be entitled shall have been paid. Subject to the above limitations, dividends may be paid on Common Stockor junior shares out of any funds legally available for such purpose when andas declared by the Board of Directors.

 

3.4           Adjustment to Dividend Rate.  If, within twelve months of the firstclosing of the sale of Series H Convertible Preferred Stock, the Corporationissues or sells any equity security with a dividend rate higher than the dividendrate then in effect for the Series H Convertible Preferred Stock, then, uponsuch issuance or sale of such securities, the dividend rate in effectimmediately prior to such issuance or sale of the Series H Preferred Stockshall be increased to the dividend rate applicable to the equity securitiesthat were issued or sold.

 

4.             Conversion to Common Stock.

 

4.1           Rightto convert.  The holder of anyshares of Series H Convertible Preferred Stock shall have the right at any timeto convert said shares into the number of shares of Common Stock determined bymultiplying the number of shares of Series H Convertible Preferred Stock to beconverted by $100.00 and dividing the product thereof by the Conversion Price,as defined below, in effect at the time of conversion.  The Conversion Price shall initially be$15.00, subject to adjustment as provided below.  In the event of voluntary conversion, all cumulated dividendswill be extinguished.

 

4.2           Procedure for voluntary conversion.  In order to convert shares of Series HConvertible Preferred Stock, the holder thereof shall surrender at theprincipal offices of the Corporation the certificate or certificates therefor,duly endorsed to the Corporation or in blank, and give written notice to theCorporation at such office that such holder elects to convert such shares.  Shares of Series H Convertible PreferredStock shall be deemed 

 

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to have beenconverted immediately prior to the close of business on the day of thesurrender of such shares for conversion as herein provided, and the personentitled to receive the shares of Common Stock of the Corporation issuable uponsuch conversion shall be treated for all purposes as the record holder of suchshares of Common Stock at such time.  Aspromptly as practicable on or after the conversion date, the Corporation shallissue and deliver or cause to be issued and delivered at such office acertificate or certificates for the number of shares of Common Stock of theCorporation issuable upon such conversion.

 

4.3           Automatic Conversion.  All outstanding shares of Series HConvertible Preferred Stock shall be automatically converted into Common Stock,upon the election of the Corporation and delivery of written notice of such electionto the holders of the Series H Convertible Preferred Stock (which election andnotice may be delivered within ninety (90) days before or after the automaticconversion event described below without effecting the effective time of suchautomatic conversion), if the Corporation closes the issuance and sale ofCommon Stock in an underwritten public offering, pursuant to an effectiveregistration statement under the Securities Act of 1933, as amended, in whichthe gross proceeds received by the Corporation equal or exceed $7,000,000.  At such time, all cumulated dividends on theshares of Series H Convertible Stock will be extinguished.

 

4.4           Adjustment of Conversion Price forDividends, Splits or Combinations. In case the Corporation shall at any time subdivide its outstandingshares of Common Stock into a greater number of shares or declare any dividendpayable in Common Stock, the Conversion Price in effect immediately prior tosuch subdivision shall be proportionately reduced, and conversely, in case theoutstanding shares of Common Stock of the Corporation shall be combined into asmaller number of shares, the Conversion Price in effect immediately prior tosuch combination shall be proportionately increased.

 

4.5           Provision for CapitalReorganizations, Reclassifications, Consolidations, Mergers or Sales.  If any capital reorganization orreclassification of the capital stock of the Corporation, or consolidation ormerger of the Corporation with another corporation, or the sale of all orsubstantially all of its assets to another corporation shall be effected insuch a way that holders of Common Stock shall be entitled to receive stock,securities or assets with respect to or in exchange for Common Stock, then, asa condition of such reorganization, reclassification, consolidation, merger orsale, lawful and adequate provision shall be made whereby the holders of SeriesH Convertible Preferred Stock shall thereafter have the right to receive uponthe basis and upon the terms and conditions specified herein and in lieu of theshares of Common Stock of the Corporation immediately theretofore receivableupon the conversion hereof, such shares of stock, securities or assets as maybe issued or payable with respect to or in exchange for a number of outstandingshares of such Common Stock equal to the number of shares of such stockimmediately theretofore receivable upon the conversion of Series H ConvertiblePreferred Stock had such reorganization, reclassification, consolidation,merger or sale not taken place, and in any such case appropriate provisionshall be made with respect to the rights and interests of the holders of SeriesH Convertible Preferred 

 

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Stock to the endthat the provisions hereof (including without limitation provisions foradjustments of the Conversion Price and of the number of shares receivable uponconversion) shall thereafter be applicable, as nearly as may be, in relation toany shares of stock, securities or assets thereafter receivable upon theconversion of Series H Convertible Preferred Stock.

 

4.6           Adjustment for Lower ConversionPrice.  If, within twelve months ofthe first closing of the sale of Series H Convertible Preferred Stock, theCorporation issues or sells any equity security with a conversion price lowerthan the Conversion Price then in effect for the Series H Convertible PreferredStock, then, upon such issuance or sale of such securities, the ConversionPrice then in effect for the Series H Convertible Preferred Stock shall bereduced to the conversion price applicable to the equity securities that wereissued or sold.

 

4.7           Other Adjustments.  If any event occurs as to which the otherprovisions of this Section 4 are not strictly applicable or if strictlyapplicable would not fairly protect the rights of the holders of Series HConvertible Preferred Stock in accordance with the essential intent andprinciples of such provisions, then the Board of Directors of the Corporationshall make an adjustment in the application of such provisions, in accordancewith such essential intent and principles, so as to protect such rights asaforesaid.

 

4.8           Notice of Changes in ConversionPrice.  Upon any adjustment of theConversion Price, then and in each case the Corporation shall give writtennotice thereof, by first-class mail, postage prepaid, addressed to the holdersof the Series H Convertible Preferred Stock at the address of such holders asshown on the books of the Corporation, which notice shall state the ConversionPrice resulting from such adjustment and the increase or decrease, if any, inthe number of shares receivable at such price upon the conversion hereof,setting forth in reasonable detail the method of calculation and the facts uponwhich such calculation is based.

 

4.9           Notice of Certain Other Events.  In case any time:

 

(i)           there shall be any capitalreorganization, reclassification of the capital stock of the Corporation, orconsolidation or merger of the Corporation with, or sale of all orsubstantially all of its assets to another corporation; or

 

(ii)          there shall be a voluntary orinvoluntary dissolution, liquidation or winding up of the Corporation;

 

then, in any oneor more of said cases, the Corporation shall give written notice, byfirst-class mail, postage prepaid, addressed to the holders of the Series HConvertible Preferred Stock at the address of such holders as shown on thebooks of the Corporation, of the date on which such reorganization,reclassification, consolidation, merger, sale, dissolution, liquidation orwinding up shall take place, as the case may be.  Such notice 

 

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shall also specifythe date as of which the holders of Common Stock of record shall participate insuch dividend distribution or shall be entitled to exchange their Common Stockfor securities or other property deliverable upon such reorganization,reclassification, consolidation, merger, sale, dissolution, liquidation orwinding up, as the case may be.  Suchwritten notice shall be at least 30 days prior to the action in question andnot less than 30 days prior to the record date or the date on which theCorporation’s transfer books are closed in respect thereto.

 

4.10         Definition of Common Stock.  As used in this Section 4, the term “CommonStock” shall mean and include the Corporation’s presently authorized shares of$.01 par value common capital stock and shall also include any capital stock ofany class of the Corporation hereafter authorized which shall not be limited toa fixed sum or percentage of par value in respect of the rights of the holdersthereof to participate in dividends or in the distribution of assets upon thevoluntary or involuntary liquidation, dissolution or winding up of theCorporation; provided that the shares receivable pursuant to conversion ofshares of the Series H Convertible Preferred Stock shall include sharesdesignated as Common Stock of the Corporation as of the date of issuance ofsuch shares of Series H Convertible Preferred Stock, or, in the case of anyreclassification of the outstanding shares thereof, the stock, securities orassets provided for above.

 

                5.             Redemption of Series HConvertible Preferred Stock.  Inaddition to and distinguishable from the automatic conversion provisions inSection 4.3 of this Certificate, the Series H Convertible Preferred Stock shallbe subject to redemption by the Corporation in accordance with the followingprovisions:

 

                5.1  Redemption at Option of Corporation.  The Corporation may redeem the Series HConvertible Preferred Stock, in whole or in part in accordance with theprovisions of this Section 5, at any time, at the face value per share plus allunpaid and accumulated dividends to the redemption date (the “OptionalRedemption Price”).

 

                5.2  Pro Rata Redemptions.  If less than all the outstanding shares ofSeries H Convertible Preferred Stock are to be redeemed pursuant to Section 5.1above, a pro rata amount of such shares shall be redeemed from each of theholders of Series H Convertible Preferred Stock.

 

                5.3  Notice.  Notice of any proposed redemption of Series H ConvertiblePreferred Stock pursuant to Section 5.1 shall be given by the Corporation bysending by certified mail, postage prepaid, a copy of such notice at least 20but not more than 90 days prior to the date fixed for such redemption to theholders of record of the Series H Convertible Preferred Stock, at theirrespective addresses appearing on the books of the Corporation or given by suchholder to the Corporation for the purposes of notice, or if no such addressappears or is given, at the principal office of the Corporation.  Such notice shall state the date fixed forredemption, the number of shares of Series H Convertible Preferred Stock to beredeemed from all holders thereof and from such holder and the OptionalRedemption Price per share, and shall call upon such holder to surrender to theCorporation on said date at the place designated in the notice such 

 

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holder’s certificate or certificates representing theshares to be redeemed.  On or before thedate fixed for redemption and stated in such notice, each holder of shares ofSeries H Convertible Preferred Stock called for redemption shall either (i)voluntarily convert to Common Stock pursuant to Section 4.1 all of the sharescalled for redemption, or (ii) surrender the certificate evidencing such sharesto the Corporation at the place designated in such notice and thereupon beentitled to receive payment of the Optional Redemption Price therefor.  If less than all the shares represented byany such surrendered certificate are redeemed, a new certificate shall beissued representing the unredeemed shares. From and after the date fixed in such notice of redemption (unlessdefault be made by the Corporation in providing moneys for the payment of theOptional Redemption Price) then, notwithstanding that the certificatesevidencing any shares of Series H Convertible Preferred Stock so called forredemption shall not have been surrendered, all rights of the holders thereofwith respect to the shares so called for redemption shall forthwith after suchdate cease and terminate, except only the right of the holders to receive theOptional Redemption Price, without interest, upon surrender of theircertificates therefor.

 

6.             Reacquired Shares.  Any shares of Series H Convertible PreferredStock purchased or otherwise acquired by the Corporation in any mannerwhatsoever shall constitute authorized but unissued shares of Preferred Stockand may be reissued as part of a new series of Preferred Stock to be created byresolution or resolutions of the Board of Directors, subject to the conditionsand restrictions on issuance set forth herein.

 

7.             Liquidation Preference.  The Series H Convertible Preferred Stockshall rank on a parity with the Series A Preferred Stock, the Series BConvertible Preferred Stock, the Series C Convertible Preferred Stock, theSeries D Convertible Preferred Stock, the Series E Convertible Preferred Stock,the Series F Convertible Preferred Stock, the Series G Convertible PreferredStock and any other series of Preferred Stock with respect to the distributionof assets upon liquidation, dissolution or winding up of the Corporation.  Upon the voluntary or involuntaryliquidation, dissolution or winding up of the Corporation, holders of PreferredStock shall be entitled to receive the face value plus all unpaid andaccumulated dividends in cash per share before any distribution of assets ismade to the holders of the Common Stock or any class of stock ranking junior toPreferred Stock.  If, upon suchliquidation, dissolution or winding up, the assets distributable to the holdersof Preferred Stock shall be insufficient to permit the payment in full to suchholders of the preferential amounts to which they are entitled, then suchassets shall be distributed ratably among the shares of Preferred Stock.  After payment in full of all amounts due tothe holders of Preferred Stock, the remaining assets of the Corporationavailable for payment and distribution to shareholders shall be paid anddistributed to the holders of Common Stock and junior shares.  The consolidation or merger of theCorporation, a transfer of all or substantially all of its assets for cash orsecurities or a share exchange will not be considered a liquidation,dissolution or winding up of the Corporation.

 

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IN WITNESS WHEREOF, BIONEBRASKA, INC. has caused thiscertificate to be signed and attested by Thomas R. Coolidge, its Chairman ofthe Board and Secretary, effective as of this 23rd day of April, 2001.

 
|   |               |
|--------|--------------------|
|   | BIONEBRASKA,  INC. |
|   |               |
|   | By:                | /s/ Thomas R.  Coolidge |
|   |               | Thomas R. Coolidge,  Chairman |

 

 

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