ex4_1.htm


    
      

    

    Exhibit
4.1

    


    


    CERTIFICATE
OF DESIGNATIONS, PREFERENCES

    


    AND
RIGHTS OF

    


    SERIES
F CONVERTIBLE PREFERRED STOCK

    


    OF

    


    
      REGEN
BIOLOGICS, INC.

      
        	 


      

       

    

    ReGen
Biologics, Inc., a Delaware corporation (hereinafter called the “Company”),
hereby certifies that, pursuant to the authority expressly vested in the Board
of Directors of the Company by the Certificate of Incorporation, as amended (the
“Certificate of Incorporation”), and in accordance with the provisions of
Sections 103 and 151 of the General Corporation Law of the State of Delaware,
the Board of Directors has duly adopted the following resolutions:

    


    RESOLVED, that, pursuant to
Article FOURTH of the Certificate of Incorporation (which authorizes 60,000,000
shares of Preferred Stock, $0.01 par value per share (“Preferred Stock”), the
Board of Directors hereby fixes the number of shares, powers, designations,
preferences and relative, participating, optional and other special rights, and
the qualifications, limitations and restrictions, of a series of Preferred Stock
to be designated as Series F Convertible Preferred Stock (“Series F Preferred
Stock”);

    


    RESOLVED, that each share of
such Series F Preferred Stock established hereby shall rank equally in all
respects and shall be subject to the following provisions:

    


    1.            
Number and
Designation.  270,000 shares of the Preferred Stock of the
Company shall be designated as Series F Preferred Stock.

    


    2.           
 Rank. The Series
F Preferred Stock shall, with respect to rights on liquidation, dissolution and
winding up, (i) rank senior to all classes of the Company’s common stock, $0.01
par value per share (“Common Stock”), to the Company’s Series E Preferred Stock
and to each other class of capital stock of the Company or series of Preferred
Stock established hereafter by the Board of Directors of the Company, the terms
of which do not expressly provide that it ranks on a parity with or senior to
the Series F Preferred Stock as to rights on liquidation, winding-up and
dissolution of the Company (the securities in this clause (i) collectively
referred to as “Junior Securities”); (ii) rank on parity with each other class
of capital stock of the Company or series of Preferred Stock of the Company
established hereafter by the Board of Directors of the Company, the terms of
which expressly provide that such class or series will rank on a parity with the
Series F Preferred Stock as to rights on liquidation, winding-up and dissolution
(the securities in this clause (ii) collectively referred to as “Parity
Securities”); and (iii) rank junior to the Company’s Series A Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock and each other class of
capital stock of the Company or series of Preferred Stock of the Company
established hereafter by the Board of Directors of the Company, the terms of
which expressly provide that such class or series will rank senior to the Series
F Preferred Stock as to rights on liquidation, winding-up and dissolution (the
securities in this clause (iii) collectively referred to as “Senior
Securities”); provided, however, that, except
with respect to the Series A Preferred Stock, the Series C Preferred Stock and
the Series D Preferred Stock, the Company may not establish a class or series of
Senior Securities or Parity Securities unless the Company shall have first
obtained the consent of the holders of a majority of the outstanding shares of
Series F Preferred Stock (“Majority Consent”) and, if necessary, the consent of
the holders of a majority of any other series of Preferred Stock
outstanding.  The respective definitions of Junior Securities, Parity
Securities and Senior Securities shall also include any rights, options, or
warrants to subscribe for, purchase, or otherwise acquire Junior Securities,
Parity Securities and Senior Securities, and any indebtedness, shares or other
securities convertible into or exchangeable for Junior Securities, Parity
Securities and Senior Securities as the case may be.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    3.          
  Liquidation
Preference.  In accordance with, and upon the occurrence of an
event described in, Section 4 below, the holder of each share of Series F
Preferred Stock shall be entitled to receive an amount per share equal to $15.00
(which amount shall be subject to adjustment whenever there shall occur a stock
split, stock dividend, combination, reclassification or other similar event
involving the Series F Preferred Stock as described in paragraph 7(f)) (the
“Liquidation Value”), plus any declared but unpaid dividends accrued through
such date.

    


    4.           
 Liquidation
Rights.  (a)  In the event of any liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary,
before any payment or distribution of the assets of the Company (whether capital
or surplus) shall be made to or set apart for the holders of Junior Securities
and after and subject to the payment in full of all amounts required to be
distributed to the holders of the Senior Securities in the event of any
liquidation, dissolution, dissolution or winding up of the Company, the holder
of each share of Series F Preferred Stock and any Parity Securities shall be
entitled to receive an amount per share equal to the Liquidation Value of such
share on the date of distribution, and such holders shall not be entitled to any
further payment; provided, however, that upon
any liquidation, dissolution or winding up of the Company, the assets of the
Company, or proceeds thereof, distributable after payment in full of the Senior
Securities shall be insufficient to pay in full the preferential amount
aforesaid to the Series F Preferred Stock and the liquidating payments on any
Parity Securities, then the assets of the Company, or the proceeds thereof,
shall be distributed among the holders of shares of Series F Preferred Stock and
any such Parity Securities ratably in accordance with the respective amounts
that would be payable on such shares of Series F Preferred Stock and any such
Parity Securities if all amounts payable thereon were paid in full.

    


    (b)           Subject
to the rights of the holders of any Parity Securities, after payment shall have
been made in full to the holders of the Series F Preferred Stock, as provided in
this paragraph 4, any other series or class or classes of Junior Securities
shall, subject to the respective terms and provisions (if any) applying thereto,
be entitled to receive any and all assets remaining to be paid and distributed
to holders of capital stock of the Company.


    
      
         


      

      
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    (c)           Notwithstanding
anything to the contrary, in the event of a sale by the Company of all or
substantially all of its assets, or a merger or consolidation of the Company as
a result of which the stockholders of the Company own less than 50% of the
surviving entity, each holder of shares of the Series F Preferred Stock shall be
entitled to treat such event as a liquidation of the Company and to demand that
the Company pay such holder the Liquidation Value of all, but not less than all,
of such holder’s shares of Series F Preferred Stock upon the surrender of such
Series F Preferred Stock to the Company.

    


    5.           
 Voting Rights.
The holders of record of shares of Series F Preferred Stock shall be
entitled to the following voting rights:

    


    (a)    those voting
rights required by applicable law (including the right to vote as a separate
class when required by law); and

    


    (b)    the right to
vote together with the holders of the Common Stock on an “as converted basis”
upon any matter submitted to such holders for a vote.

    


    (c)    (i) Each
issued and outstanding share of the Series F Preferred Stock shall be entitled
to one vote if entitled to vote as a separate class and, except as set forth in
paragraph 8 herof, the holders of a majority in interest of the Series F
Preferred Stock entitled to vote shall bind the entire class of Series F
Preferred Stock.  The Company shall give the holders of the Series F
Preferred Stock at least ten (10) days’ prior notice of any matter to be
submitted to such holders for a vote as a separate class.

    


           
(ii) If the holders of the Series F Preferred Stock are voting together with the
holders of the Common Stock, each holder of the Series F Preferred Stock shall
be entitled to such number of votes equal to the whole number of shares of
Common Stock which would be issuable upon conversion of such holders’ shares of
Series F Preferred Stock immediately after the close of business on the record
date established by the Company for a stockholders’ meeting or if no such date
is established, the date immediately preceding the date of the stockholders’
written consent in lieu of a meeting.  The Company shall give the
holders of the Series F Preferred Stock the same notice it gives to the holders
of Common Stock on issues on which the Series F Preferred Stock and Common Stock
vote together and if the action is to be taken by written consent, at least one
business day prior to the date of this written consent.

    


    6.           
 Preemptive
Rights.  The holders of Series F Preferred Stock shall have
preemptive rights as designated in Section 8 of that certain Subscription
Agreement, by and among the Company and certain investors named therein, dated
as of July 24, 2008.


    
      
         


      

      
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    7.            
Conversion.

    


    (a)    Mandatory
Conversion.  (i) Each outstanding share of Series F Preferred
Stock shall, subject to adjustment in accordance with paragraph 7(f) and 7(g)
below, be automatically converted into that number of shares of Common Stock
that is equal to the Series Preferred Conversion Rate then in effect, and
without further action by any party, immediately (A) at such time as the
Company’s certificate of incorporation is amended (the “Certificate Amendment”)
to increase the number of authorized shares of Common Stock of the Company
sufficient to permit the issuance of that number of shares of Common Stock into
which all shares of Series F Preferred Stock (issued and outstanding and
issuable upon exercise or conversion of outstanding convertible securities) are
convertible, after taking into account all other shares of Common Stock
outstanding or required to be issued upon the conversion of any preferred stock
of the Company or exercise of any options or warrants authorized by the Company,
or (B) upon the effectiveness of a reverse stock split of the currently issued
and outstanding shares of Common Stock of the Corporation in accordance with a
Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of the Corporation, as amended, in the form to be prepared,
presented to and approved by the Stockholders of the Corporation in accordance
with the Delaware General Corporation Law (the “Reverse Split”) such that, upon
the effectiveness of the Reverse Split there are sufficient shares of Common
Stock outstanding to permit the issuance of that number of shares of Common
Stock into which all shares of Series F Preferred Stock are convertible (issued
and outstanding and issuable upon exercise or conversion of outstanding
convertible securities), after taking into account all other shares of Common
Stock outstanding or required to be issued upon the conversion of any preferred
stock of the Company or exercise of any options or warrants authorized by the
Company (each of (A) and (B) a “Conversion Event”).

    


    (ii)
Series Preferred
Conversion Rate.  The conversion rate in effect at any time for
conversion of the Series F Preferred Stock (the “Series Preferred Conversion
Rate”) shall be the quotient obtained by dividing $12.00 by the Series F
Conversion Price, which quotient shall initially be 100.

    


    (iii)
Series F Conversion
Price.  The conversion price for the Series F Preferred Stock
shall initially be $0.12 (the “Series F Conversion Price”).  Such
initial Series F Conversion Price shall be adjusted from time to time in
accordance with this Section 7.  All references to the Series F
Conversion Price herein shall mean the Series F Conversion Price as so
adjusted.

    


    (b)           (i)
Unless the shares issuable on conversion pursuant to this paragraph 7 are to be
issued in the same name as the name in which such shares of Series F Preferred
Stock are registered, each share surrendered for conversion shall be accompanied
by instruments of transfer, in form reasonably satisfactory to the Company, duly
executed by the holder or the holder’s duly authorized attorney, and an amount
sufficient to pay any transfer or similar tax subject to subsection (d) below
for such transfer.


    
      
         


      

      
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    (ii) As
promptly as practicable after the surrender by the holder of the certificates
for shares of Series F Preferred Stock as aforesaid, the Company shall issue and
shall deliver to such holder, or on the holder’s written order to the holder’s
transferee, a certificate or certificates for the whole number of shares of
Common Stock issuable upon the conversion of such shares in accordance with the
provisions of this paragraph 7.

    


    (iii) All
shares of Common Stock delivered upon conversion of the Series F Preferred Stock
will upon delivery be duly and validly issued and fully paid and non-assessable,
free of all liens and charges and not subject to any preemptive
rights.

    


    (c)    Prior to the
delivery of any securities that the Company shall be obligated to deliver upon
conversion of the Series F Preferred Stock, the Company shall comply with all
applicable federal and state laws and regulations that require action to be
taken by the Company.

    


    (d)   The Company shall
pay any and all documentary stamp or similar issue or transfer taxes payable in
respect of the issue or delivery of shares of Common Stock on conversion of the
Series F Preferred Stock pursuant hereto.

    


    (e)    In connection
with the conversion of any shares of Series F Preferred Stock, no fractional
shares of Common Stock shall be issued, but in lieu thereof the Company shall
round up any fractional shares to the nearest whole number of shares of Common
Stock if the fraction is 0.5 or above and round down if the fraction is below
0.5.

    


    (f)          
 (i) In case the Company shall at any time after the date of issue of the
Series F Preferred Stock declare a dividend or make a distribution on Common
Stock, subdivide or split the outstanding Common Stock, combine or reclassify
the outstanding Common Stock into a smaller number of shares or consolidate
with, or merge with or into, any other entity, or engage in any reorganization,
reclassification or recapitalization that is effected in such a manner that the
holders of Common Stock are entitled to receive stock, securities, cash or other
assets with respect to or in exchange for Common Stock, then the kind and amount
of stock, securities, cash or other assets issuable upon conversion of the
Series F Preferred Stock in effect at the time of the record date for such
dividend or distribution or of the effective date of such subdivision, split,
combination, consolidation, merger, reorganization, reclassification or
recapitalization shall be adjusted so that the conversion of the Series F
Preferred Stock after such time shall entitle the holder to receive the
aggregate number of shares of Common Stock or securities, cash and other assets
that, if the Series F Preferred Stock had been converted immediately prior to
such time, such holder would have owned upon such conversion and been entitled
to receive by virtue of such dividend, distribution, subdivision, split,
combination, consolidation, merger, reorganization, reclassification or
recapitalization.  Such adjustment shall be made successively whenever
any event listed above shall occur.


    
      
         


      

      
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    (ii) All
calculations under this paragraph 7(f) shall be made to the nearest four decimal
points.

    


    (iii) In
the event that, at any time as a result of the provisions of this paragraph
7(f), the holder of the Series F Preferred Stock upon subsequent conversion
shall become entitled to receive any securities other than Common Stock, the
number and kind of such other securities so receivable upon conversion of the
Series F Preferred Stock shall thereafter be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions contained herein.

    


    (g)           (i)
In the event the Company shall at any time after the date of filing of this
Certificate of Designations with the Secretary of State of Delaware issue
Additional Shares of Common Stock (as defined below) without consideration or
for consideration per share less than the Series F Conversion Price then in
effect (a “Dilutive Issuance”), then the Series F Conversion Price shall be
reduced, concurrently with such issue, to the consideration per share received
by the Company for such issued or deemed issue of Additional Shares of Common
Stock, with such consideration per share to be calculated by dividing the total
amount of consideration received or deemed received by the Company for such
Dilutive Issuance by the total number
of Additional Shares of Common Stock issued or deemed issued as part of such
Dilutive Issuance; provided that, if
such Dilutive Issuance was without consideration, then the Company shall be
deemed to have received an aggregate of $0.01 of consideration for all such
Additional Shares of Common Stock issued or deemed to be issued.  For
clarity, any Additional Shares of Common Stock issued or deemed to be issued
pursuant to the same agreement or transaction shall be considered one Dilutive
Issuance.

    


    (ii) For
purposes of this paragraph 7(g), “Additional Shares of Common Stock” shall mean
all shares of Common Stock issued by the Company or deemed to be issued pursuant
to clause (iii) of this paragraph 7(g), excluding those shares described in
clause (iv) of this paragraph 7(g).

    


    (iii) In
the case of Common Stock deemed to be issued, which shall include the issuance
of options to purchase or rights to subscribe for Common Stock, securities by
their terms convertible into or exchangeable for Common Stock or options to
purchase or rights to subscribe for such convertible or exchangeable securities,
the following provisions shall apply:

    


    (A)           The
aggregate maximum number of shares of Common Stock deliverable upon exercise
(assuming the satisfaction of any conditions to exercisability, including
without limitation, the passage of time, but without taking into account
potential anti-dilution adjustments) of such options to purchase or rights to
subscribe for Common Stock shall be deemed to have been issued at the time such
options or rights were issued and for a consideration equal to the
consideration, if any, received by the Company upon the issuance of such options
or rights plus the minimum exercise price provided in such options or rights
(without taking into account potential anti-dilution adjustments) for the Common
Stock covered thereby.


    
      
         


      

      
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    (B)           The
aggregate maximum number of shares of Common Stock deliverable upon conversion
of or in exchange for any such convertible or exchangeable securities (assuming
the satisfaction of any conditions to convertibility or exchangeability,
including, without limitation, the passage of time, but without taking into
account potential anti-dilution adjustments) or upon the exercise of options to
purchase or rights to subscribe for such convertible or exchangeable securities
and subsequent conversion or exchange thereof shall be deemed to have been
issued at the time such securities were issued or such options or rights were
issued and for a consideration equal to the consideration, if any, received by
the Company for any such securities and related options or rights (excluding any
cash received on account of accrued interest or accrued dividends), plus the
minimum additional consideration, if any, to be received by the Company (without
taking into account potential anti-dilution adjustments) upon the conversion or
exchange of such securities or the exercise of any related options or
rights.

    


    (C)           In
the event of any change in the number of shares of Common Stock deliverable or
in the consideration payable to the Company upon exercise of such options or
rights or upon conversion of or in exchange for such convertible or exchangeable
securities, including, but not limited to, a change resulting from the
anti-dilution provisions thereof, the Series F Conversion Price, to the extent
in any way affected by or computed using such options, rights or securities,
shall be recomputed to reflect such change, but no further adjustment shall be
made for the actual issuance of Common Stock or any payment of such
consideration upon the exercise of any such options or rights or the conversion
or exchange of such securities.

    


    (D)           Upon
the expiration of any such options or rights, the termination of any such rights
to convert or exchange or the expiration of any options or rights related to
such convertible or exchangeable securities, the Series F Conversion Price to
the extent in any way affected by or computed using such options, rights or
securities or options or rights related to such securities, shall be recomputed
to reflect the issuance of only the number of shares of Common Stock (and
convertible or exchangeable securities which remain in effect) actually issued
upon the exercise of such options or rights, upon the conversion or exchange of
such securities or upon the exercise of the options or rights related to such
securities.

    


    (E)           The
number of shares of Common Stock deemed issued and the consideration deemed paid
therefor pursuant to paragraphs 7(g)(iii)(A) and 7(g)(iii)(B) above shall be
appropriately adjusted to reflect any change, termination or expiration of the
type described in either paragraph 7(g)(iii)(C) or paragraph 7(g)(iii)(D)
above.

     

    (iv)   Notwithstanding
the foregoing, no adjustment will be made under this paragraph 7(g) in respect
to any issuance of Common Stock (A) upon exercise or conversion of any options
or other securities described in the Company’s securities filings with the
Securities and Exchange Commission or otherwise pursuant to any employee benefit
plan of the Company or its subsidiaries or hereafter adopted by the Company, (B)
or convertible securities issued in a joint venture, strategic partnership or
licensing arrangement, the primary purpose of which is not the raising of
capital, (C) issued in connection with this Agreement or (D) which results in an
adjustment pursuant to paragraph 7(f).


    
      
         


      

      
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    (h)          
The holders of Series F Preferred Stock shall be notified of all adjustments
pursuant to this paragraph 7 promptly following the making thereof and such
notice shall be accompanied by a schedule of computations of the
adjustments.

    


    8.    Amendments and Other
Actions.  So long as shares of Series F Preferred Stock are
outstanding, the Company shall be allowed to alter or change the rights,
preferences or privileges of the Series F Preferred Stock upon first obtaining
the Majority Consent (by vote or written consent), unless such alteration or
change shall be deemed by the Company in good faith to adversely affect the
rights, preferences or privileges of the Series F Preferred Stock in which case
the Company must first obtain consent of each holder of Series F Preferred
Stock.

    


    IN WITNESS WHEREOF, ReGen
Biologics, Inc. has caused this Certificate of Designations to be signed by the
undersigned this 23rd day of
July, 2008.

    


    
      	 
      	
              REGEN
      BIOLOGICS, INC.

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	
              /S/
      BRION D. UMIDI

            
	 
      	
              Name:  
      

            	
              Brion
      D. Umidi

            
	 
      	
              Title:

            	
              Senior
      Vice President and

            
	 
      	 
      	
              Chief
      Financial Officer

            


    

    


    
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