**Exhibit3.1**

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

TRANSKARYOTIC THERAPIES, INC.

Transkaryotic Therapies, Inc., a corporation organizedand existing under and by virtue of the General Corporation Law of the State ofDelaware, does hereby certify as follows:

1.             The Corporation filed its original Certificate ofIncorporation with the Secretary of State of the State of Delaware on July 7,1988.  A Restated Certificate ofIncorporation of the Corporation was filed with the Secretary of State of theState of Delaware on February 14, 1992, which was subsequently amended on April16, 1993 and July 1, 1993.  A RestatedCertificate of Incorporation of the Corporation was filed with the Secretary ofState of the State of Delaware on November 5, 1993, which was subsequentlyamended on May 18, 1994, March 1, 1995, October 26, 1995 and July 9, 1996.

2.             At a meeting of the Board of Directors, a resolution wasduly adopted, pursuant to Sections 242 and 245 of the General Corporation Lawof the State of Delaware, setting forth an Amended and Restated Certificate ofIncorporation of the Corporation and declaring said Amended and RestatedCertificate of Incorporation advisable. The stockholders of the Corporation duly approved said proposed Amendedand Restated Certificate of Incorporation by written consent in accordance withSections 228, 242 and 245 of the General Corporation Law of the State ofDelaware, and written notice of such consent has been given to all stockholderswho have not consented to said restatement. The resolution setting forth the Amended and Restated Certificate ofIncorporation is as follows:
| RESOLVED: |   | That the  Certificate of Incorporation of the Corporation be, and hereby is, amended  and restated in its entirety so that the same shall read as follows: |
|-----------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------|

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# ARTICLEI.

 

The name of the Corporation is TranskaryoticTherapies, Inc.

# ARTICLEII.

 

The address of the Corporation’s registered office inthe State of Delaware is Corporation Trust Center, 1209 Orange Street, City ofWilmington, County of New Castle 19801. The name of its registered agent at such address is The CorporationTrust Company.

# ARTICLEIII.

 

The nature of the business of the Corporation and thepurposes for which it is organized are:

### 1.             To engage in research and development in the field ofgene therapy and to pursue various commercial applications of such research;

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### 2.             To engage in any other lawful act or activity for whichcorporations may be organized under the General Corporation Law of the State ofDelaware; and

### 3.             In general, topossess and exercise all the powers and privileges granted by the GeneralCorporation Law of the State of Delaware or by any other law of the State ofDelaware or by this Certificate of Incorporation, together with any powersincidental thereto, so far as such powers and privileges are necessary orconvenient to the conduct, promotion or attainment of the business or purposesof the Corporation.

#  

# ARTICLEIV.

 

The total numberof shares of all classes of stock which the Corporation shall have authority toissue is 40,000,000 shares, consisting of (i) 30,000,000 shares of CommonStock, $.01 par value per share (the “Common Stock”) and (ii) 10,000,000 sharesof Preferred Stock, $.01 par value per share (the “Preferred Stock”).

 

The following is a statement of the designations andthe powers, privileges and rights, and the qualifications, limitations orrestrictions thereof in respect of each class of capital stock of theCorporation.

## A.            COMMONSTOCK.

### 1.             General. The voting, dividend and liquidation rights of the holders of the CommonStock are subject to and qualified by the rights of the holders of thePreferred Stock of any series as may be designated by the Board of Directorsupon any issuance of the Preferred Stock of any series.

### 2.             Voting.  The holders of the Common Stock areentitled to one vote for each share held at all meetings of stockholders (andwritten actions in lieu of meetings). There shall be no cumulative voting.

The number of authorized shares of Common Stock may beincreased or decreased (but not below the number of shares thereof thenoutstanding) by the affirmative vote of the holders of a majority of the stockof the Corporation entitled to vote, irrespective of the provisions of Section242(b)(2) of the General Corporation Law of Delaware.

### 3.             Dividends. Dividends may be declared and paid on the Common Stock from fundslawfully available therefor as and when determined by the Board of Directorsand subject to any preferential dividend rights of any then outstandingPreferred Stock.

### 4.             Liquidation. Upon the dissolution or liquidation of the Corporation, whethervoluntary or involuntary, holders of Common Stock will be entitled to receiveall assets of the Corporation available for distribution to its stockholders,subject to any preferential rights of any then outstanding Preferred Stock.

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## B.            PREFERRED STOCK.

Preferred Stock may be issued from time to time in oneor more series, each of such series to have such terms as stated or expressedherein and in the resolution or resolutions providing for the issue of suchseries adopted by the Board of Directors of the Corporation as hereinafterprovided.  Any shares of Preferred Stockwhich may be redeemed, purchased or acquired by the Corporation may be reissuedexcept as otherwise provided by law. Different series of Preferred Stock shall not be construed to constitutedifferent classes of shares for the purposes of voting by classes unless expresslyprovided.

Authority is hereby expressly granted to the Board ofDirectors from time to time to issue the Preferred Stock in one or more series,and in connection with the creation of any such series, by resolution orresolutions providing for the issue of the shares thereof, to determine and fixsuch voting powers, full or limited, or no voting powers, and suchdesignations, preferences and relative participating, optional or other specialrights, and qualifications, limitations or restrictions thereof, includingwithout limitation thereof, dividend rights, special voting rights, conversionrights, redemption privileges and liquidation preferences, as shall be statedand expressed in such resolutions, all to the full extent now or hereafterpermitted by the General Corporation Law of Delaware.  Without limiting the generality of theforegoing, the resolutions providing for issuance of any series of PreferredStock may provide that such series shall be superior or rank equally or bejunior to the Preferred Stock of any other series to the extent permitted bylaw.  Except as otherwise specificallyprovided in this Certificate of Incorporation, no vote of the holders of thePreferred Stock or Common Stock shall be a prerequisite to the issuance of anyshares of any series of the Preferred Stock authorized by and complying withthe conditions of this Certificate of Incorporation, the right to have suchvote being expressly waived by all present and future holders of the capitalstock of the Corporation.

# ARTICLEV.

 

Except as otherwise provided in Section 3.2 of ArticleIV, the number of directors of the Corporation shall be fixed from time to timein the manner provided in the By-laws of the Corporation and may be increasedor decreased from time to time in the manner provided in such By-laws.  Election of directors need not be by writtenballot except and to the extent provided in the By-laws of the Corporation.

# ARTICLEVI.

 

The Board of Directors of the Corporation is expresslyauthorized to make, alter, or repeal the By-laws of the Corporation, but suchauthorization shall not divest the stockholders of the power, nor limit theirpower, to adopt, amend, or repeal such By-laws.

# ARTICLEVII.

 

Except to the extent that the General Corporation Lawof the State of Delaware prohibits the elimination or limitation of liabilityof directors for breaches of fiduciary duty, no director of the Corporationshall be personally liable to the Corporation or its stockholders for monetarydamages for any breach of fiduciary duty as a director, notwithstanding any provisionof law 

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imposing suchliability.  No amendment to or repeal ofthis provision shall apply to or have any effect on the liability or allegedliability of any director of the Corporation for or with respect to any acts oromissions of such director occurring prior to such amendment.

# ARTICLEVIII.

 

### 1.             Actions, Suits and Proceedings Other than by or inthe Right of the Corporation.  TheCorporation shall indemnify each person who was or is a party or is threatenedto be made a party to any threatened, pending or completed action, suit orproceeding, whether civil, criminal, administrative or investigative (otherthan an action by or in the right of the Corporation), by reason of the factthat he is or was, or has agreed to become, a director or officer of theCorporation, or is or was serving, or has agreed to serve, at the request ofthe Corporation, as a director, officer or trustee of, or in a similar capacitywith, another corporation, partnership, joint venture, trust or otherenterprise (including any employee benefit plan) (all such persons beingreferred to hereafter as an “Indemnitee”), or by reason of any action allegedto have been taken or omitted in such capacity, against all expenses (includingattorneys’ fees), judgments, fines and amounts paid in settlement actually andreasonably incurred by him or on his behalf in connection with such action,suit or proceeding and any appeal therefrom, if he acted in good faith and in amanner he reasonably believed to be in, or not opposed to, the best interestsof the Corporation, and, with respect to any criminal action or proceeding, hadno reasonable cause to believe his conduct was unlawful.  The termination of any action, suit orproceeding by judgment, order, settlement, conviction or upon a plea of nolocontendere or its equivalent, shall not, of itself, create a presumption thatthe person did not act in good faith and in a manner which he reasonablybelieved to be in, or not opposed to, the best interests of the Corporation,and, with respect to any criminal action or proceeding, had reasonable cause tobelieve that his conduct was unlawful. Notwithstanding anything to the contrary in this Article, except as setforth in Section 6 below, the Corporation shall not indemnify an Indemniteeseeking indemnification in connection with a proceeding (or part thereof)initiated by the Indemnitee unless the initiation thereof was approved by theBoard of Directors of the Corporation.

### 2.             Actions or Suits by or in the Right of theCorporation.  The Corporation shallindemnify any Indemnitee who was or is a party or is threatened to be made aparty to any threatened, pending or completed action or suit by or in the rightof the Corporation to procure a judgment in its favor by reason of the factthat he is or was, or has agreed to become, a director or officer of theCorporation, or is or was serving, or has agreed to serve, at the request ofthe Corporation, as a director, officer or trustee of, or in a similar capacitywith, another corporation, partnership, joint venture, trust or otherenterprise (including any employee benefit plan), or by reason of any actionalleged to have been taken or omitted in such capacity, against all expenses(including attorneys’ fees) and amounts paid in settlement actually andreasonably incurred by him or on his behalf in connection with such action,suit or proceeding and any appeal therefrom, if he acted in good faith and in amanner he reasonably believed to be in, or not opposed to, the best interestsof the Corporation, except that no indemnification shall be made in respect ofany claim, issue or matter as to which such person shall have been adjudged tobe liable to the Corporation unless and only to the extent that the Court ofChancery of Delaware or the court in which such action or suit was broughtshall determine upon application that, despite the adjudication of suchliability but in view of all the circumstances of the case, such person is 

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### fairly and reasonably entitled to indemnity for suchexpenses (including attorneys’ fees) which the Court of Chancery of Delaware orsuch other court shall deem proper.

### 3.             Indemnification for Expenses of Successful Party.  Notwithstanding the other provisions of thisArticle, to the extent that an Indemnitee has been successful, on the merits orotherwise, in defense of any action, suit or proceeding referred to in Sections1 and 2 of this Article, or in defense of any claim, issue or matter therein,or on appeal from any such action, suit or proceeding, he shall be indemnifiedagainst all expenses (including attorneys’ fees) actually and reasonablyincurred by him or on his behalf in connection therewith.  Without limiting the foregoing, if anyaction, suit or proceeding is disposed of, on the merits or otherwise(including a disposition without prejudice), without (i) the disposition beingadverse to the Indemnitee, (ii) an adjudication that the Indemnitee was liableto the Corporation, (iii) a plea of guilty or nolo contendere by theIndemnitee, (iv) an adjudication that the Indemnitee did not act in good faithand in a manner he reasonably believed to be in or not opposed to the bestinterests of the Corporation, and (v) with respect to any criminal proceeding,an adjudication that the Indemnitee had reasonable cause to believe his conductwas unlawful, the Indemnitee shall be considered for the purposes hereof tohave been wholly successful with respect thereto.

### 4.             Notification and Defense of Claim.  As a condition precedent to his right to beindemnified, the Indemnitee must notify the Corporation in writing as soon aspracticable of any action, suit, proceeding or investigation involving him forwhich indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of whichthe Corporation is so notified, the Corporation will be entitled to participatetherein at its own expense and/or to assume the defense thereof at its ownexpense, with legal counsel reasonably acceptable to the Indemnitee.  After notice from the Corporation to theIndemnitee of its election so to assume such defense, the Corporation shall notbe liable to the Indemnitee for any legal or other expenses subsequentlyincurred by the Indemnitee in connection with such claim, other than asprovided below in this Section 4.  TheIndemnitee shall have the right to employ his own counsel in connection withsuch claim, but the fees and expenses of such counsel incurred after noticefrom the Corporation of its assumption of the defense thereof shall be at theexpense of the Indemnitee unless (i) the employment of counsel by theIndemnitee has been authorized by the Corporation, (ii) counsel to theIndemnitee shall have reasonably concluded that there may be a conflict ofinterest or position on any significant issue between the Corporation and theIndemnitee in the conduct of the defense of such action or (iii) theCorporation shall not in fact have employed counsel to assume the defense of suchaction, in each of which cases the fees and expenses of counsel for theIndemnitee shall be at the expense of the Corporation, except as otherwiseexpressly provided by this Article.  TheCorporation shall not be entitled, without the consent of the Indemnitee, toassume the defense of any claim brought by or in the right of the Corporationor as to which counsel for the Indemnitee shall have reasonably made theconclusion provided for in clause (ii) above.

### 5.             Advance of Expenses.  Subject to the provisions of Section 6 below, in the event thatthe Corporation does not assume the defense pursuant to Section 4 of thisArticle of any action, suit, proceeding or investigation of which theCorporation receives notice under this Article, any expenses (includingattorneys’ fees) incurred by an Indemnitee in defending a civil or criminalaction, suit, proceeding or investigation or any appeal therefrom shall be paidby the Corporation in advance of the final disposition of such matter,provided, however, that the 

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### payment of such expenses incurred by an Indemniteein advance of the final disposition of such matter shall be made only uponreceipt of an undertaking by or on behalf of the Indemnitee to repay all amountsso advanced in the event that it shall ultimately be determined that theIndemnitee is not entitled to be indemnified by the Corporation as authorizedin this Article.  Such undertaking maybe accepted without reference to the financial ability of such person to makesuch repayment.

### 6.             Procedure for Indemnification.  In order to obtain indemnification oradvancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article, theIndemnitee shall submit to the Corporation a written request, including in suchrequest such documentation and information as is reasonably available to theIndemnitee and is reasonably necessary to determine whether and to what extentthe Indemnitee is entitled to indemnification or advancement of expenses.  Any such indemnification or advancement ofexpenses shall be made promptly, and in any event within 60 days after receiptby the Corporation of the written request of the Indemnitee, unless withrespect to requests under Section 1, 2 or 5 the Corporation determines, by clearand convincing evidence, within such 60-day period that the Indemnitee did notmeet the applicable standard of conduct set forth in Section 1 or 2, as thecase may be.  Such determination shallbe made in each instance by (a) a majority vote of a quorum of the directors ofthe Corporation consisting of persons who are not at that time parties to theaction, suit or proceeding in question (“disinterested directors”), (b) if nosuch quorum is obtainable, a majority vote of a committee of two or more disinteresteddirectors, (c) a majority vote of a quorum of the outstanding shares of stockof all classes entitled to vote for directors, voting as a single class, whichquorum shall consist of stockholders who are not at that time parties to theaction, suit or proceeding in question, (d) independent legal counsel (who maybe regular legal counsel to the Corporation), or (e) a court of competentjurisdiction.

### 7.             Remedies. The right to indemnification or advances as granted by this Articleshall be enforceable by the Indemnitee in any court of competent jurisdictionif the Corporation denies such request, in whole or in part, or if nodisposition thereof is made within the 60-day period referred to above inSection 6.  Unless otherwise provided bylaw, the burden of proving that the Indemnitee is not entitled toindemnification or advancement of expenses under this Article shall be on theCorporation.  Neither the failure of theCorporation to have made a determination prior to the commencement of suchaction that indemnification is proper in the circumstances because theIndemnitee has met the applicable standard of conduct, nor an actualdetermination by the Corporation pursuant to Section 6 that the Indemnitee hasnot met such applicable standard of conduct, shall be a defense to the actionor create a presumption that the Indemnitee has not met the applicable standardof conduct.  The Indemnitee’s expenses(including attorneys’ fees) incurred in connection with successfullyestablishing his right to indemnification, in whole or in part, in any suchproceeding shall also be indemnified by the Corporation.

### 8.             Subsequent Amendment.  No amendment, termination or repeal of this Article or of therelevant provisions of the General Corporation Law of Delaware or any otherapplicable laws shall affect or diminish in any way the rights of anyIndemnitee to indemnification under the provisions hereof with respect to anyaction, suit, proceeding or investigation arising out of or relating to anyactions, transactions or facts occurring prior to the final adoption of suchamendment, termination or repeal.

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### 9.             Other Rights.  The indemnification and advancement ofexpenses provided by this Article shall not be deemed exclusive of any otherrights to which an Indemnitee seeking indemnification or advancement ofexpenses may be entitled under any law (common or statutory), agreement or voteof stockholders or disinterested directors or otherwise, both as to action inhis official capacity and as to action in any other capacity while holdingoffice for the Corporation, and shall continue as to an Indemnitee who hasceased to be a director or officer, and shall inure to the benefit of theestate, heirs, executors and administrators of the Indemnitee.  Nothing contained in this Article shall bedeemed to prohibit, and the Corporation is specifically authorized to enterinto, agreements with officers and directors providing indemnification rightsand procedures different from those set forth in this Article.  In addition, the Corporation may, to theextent authorized from time to time by its Board of Directors, grantindemnification rights to other employees or agents of the Corporation or otherpersons serving the Corporation and such rights may be equivalent to, orgreater or less than, those set forth in this Article.

### 10.           Partial Indemnification.  If an Indemnitee is entitled under any provision of this Articleto indemnification by the Corporation for some or a portion of the expenses(including attorneys’ fees), judgments, fines or amounts paid in settlementactually and reasonably incurred by him or on his behalf in connection with anyaction, suit, proceeding or investigation and any appeal therefrom but not,however, for the total amount thereof, the Corporation shall neverthelessindemnify the Indemnitee for the portion of such expenses (including attorneys’fees), judgments, fines or amounts paid in settlement to which the Indemniteeis entitled.

### 11.           Insurance. The Corporation may purchase and maintain insurance, at its expense, toprotect itself and any director, officer, employee or agent of the Corporationor another corporation, partnership, joint venture, trust or other enterprise(including any employee benefit plan) against any expense, liability or lossincurred by him in any such capacity, or arising out of his status as such,whether or not the Corporation would have the power to indemnify such personagainst such expense, liability or loss under the General Corporation Law ofDelaware.

### 12.           Merger or Consolidation.  If the Corporation is merged into or consolidated with anothercorporation and the Corporation is not the surviving corporation, the survivingcorporation shall assume the obligations of the Corporation under this Articlewith respect to any action, suit, proceeding or investigation arising out of orrelating to any actions, transactions or facts occurring prior to the date ofsuch merger or consolidation.

### 13.           Savings Clause. If this Article or any portion hereof shall be invalidated on any groundby any court of competent jurisdiction, then the Corporation shall neverthelessindemnify each Indemnitee as to any expenses (including attorneys’ fees),judgments, fines and amounts paid in settlement in connection with any action,suit, proceeding or investigation, whether civil, criminal or administrative,including an action by or in the right of the Corporation, to the fullestextent permitted by any applicable portion of this Article that shall not havebeen invalidated and to the fullest extent permitted by applicable law.

### 14.           Definitions. Terms used herein and defined in Section 145(h) and Section 145(i) ofthe General Corporation Law of Delaware shall have the respective meaningsassigned to such terms in such Section 145(h) and Section 145(i).

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### 15.           Subsequent Legislation.  If the General Corporation Law of Delaware is amended afteradoption of this Article to expand further the indemnification permitted toIndemnitees, then the Corporation shall indemnify such persons to the fullestextent permitted by the General Corporation Law of Delaware, as so amended.

# ARTICLEIX.

 

### 1.             Meetings of the stockholders of the Corporation may beheld within or without the State of Delaware, as the By-laws may provide.  The books and records of the Corporation maybe kept within or without the State of Delaware at such place or places as maybe designated from time to time by the By-laws and/or the Board of Directors ofthe Corporation.

### 2.             Stockholders of the Corporation may not take any actionby written consent in lieu of a meeting. Notwithstanding any other provisions of law, the Certificate ofIncorporation or the By-Laws of the Corporation, each as amended, andnotwithstanding the fact that a lesser percentage may be specified by law, theaffirmative vote of the holders of at least seventy-five percent (75%) of theshares of capital stock of the Corporation issued and outstanding and entitledto vote shall be required to amend or repeal, or to adopt any provisioninconsistent with, this Article IX.

# ARTICLEX.

 

Whenever a compromise or arrangement is proposedbetween this Corporation and its creditors or any class of them and/or betweenthis Corporation and its stockholders or any class of them, any court ofequitable jurisdiction within the State of Delaware may, on the application ina summary way of this Corporation or of any creditor or stockholder thereof oron the application of any receiver or receivers appointed for this Corporationunder the provisions of Section 291 of Title 8 of the Delaware Code or on theapplication of trustees in dissolution or of any receiver or receiversappointed for this Corporation under the provisions of Section 279 of Title 8of the Delaware Code order a meeting of the creditors or class of creditors,and/or of the stockholders or class of stockholders of this Corporation, as thecase may be, to be summoned in manner as the said court directs.  If a majority in number representingthree-fourths in value of the stockholders or class of stockholders of thisCorporation as a consequence of such compromise or arrangement, the saidcompromise or arrangement and the said reorganization shall, if sanctioned bythe court to which the said application has been made, be binding on all thecreditors or class of creditors, and/or on all the stockholders or class ofstockholders, of this Corporation, as the case maybe, and also on thisCorporation.

# ARTICLEXI.

 

The Corporation reserves the right to amend, alter,change or repeal any provision contained in this Amended and RestatedCertificate of Incorporation in any manner now or hereafter prescribed by law,and all rights conferred upon stockholders herein are granted subject to suchreservation.

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# ARTICLE XII.

 

Special meetings of stockholders may be called at anytime by only the Chairman of the Board of Directors, the Chief ExecutiveOfficer (or if there is no Chief Executive Officer, the President), the Boardof Directors or the holders of a majority of the outstanding capital stock ofthe Corporation entitled to vote. Business transacted at any special meeting of stockholders shall belimited to matters relating to the purpose or purposes stated in the notice ofmeeting.  Notwithstanding any otherprovision of law, this Certificate of Incorporation or the By-Laws of theCorporation, each as amended, and notwithstanding the fact that a lesserpercentage may be specified by law, the affirmative vote of the holders of atleast sixty-six and two-thirds percent (66 2/3%) of the shares of capital stockof the Corporation issued and outstanding and entitled to vote shall berequired to amend or repeal, or to adopt any provision inconsistent with, thisArticle XII.

# ARTICLEXIII.

 

Section 203 of the GeneralCorporation Law of Delaware, as it may be amended from time to time, shallapply to the Corporation.

IN WITNESS WHEREOF, the Corporation has caused itscorporate seal to be affixed hereto and this Amended and Restated Certificateof Incorporation to be signed by its President this 22nd day of October, 1996.

|   | TRANSKARYOTIC  THERAPIES, INC. |
|--------|--------------------------------|
|   |                           |   |
|   | By:                            | /s/ Richard F.  Selden |
|   |                           | Richard F. Selden,  M.D., Ph.D. |
|   |                           | President |

 

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CERTIFICATEOF DESIGNATION, NUMBER, VOTING POWERS,

PREFERENCESAND RIGHTS OF SERIES A CONVERTIBLE

PREFERREDSTOCK

OF

TRANSKARYOTICTHERAPIES, INC.

 

Pursuantto Section 151 of the

GeneralCorporation Law of the State of Delaware

 

                  The undersigned DOES HEREBY CERTIFY that thefollowing resolution was duly adopted by the Board of Directors ofTranskaryotic Therapies, Inc., a Delaware corporation (hereinafter called the“Corporation”), with the preferences and rights set forth therein relating todividends, conversion, redemption, dissolution and distribution of assets ofthe Corporation having been fixed by the Board of Directors pursuant toauthority granted to it under Article IV of the Corporation’s Certificate ofIncorporation and in accordance with the provisions of Section 151 of theGeneral Corporation Law of the State of Delaware:

 

                  RESOLVED: That, pursuant to authority conferredupon the Board of Directors by the Certificate of Incorporation of theCorporation, the Board of Directors hereby authorizes the issuance of 10,000shares of Series A Convertible Preferred Stock of the Corporation, and herebyfixes the designations, powers, preferences and relative, participating,optional or other special rights, and the qualifications, limitations orrestrictions thereof, of such shares, in addition to those set forth in theCertificate of Incorporation of the Corporation, as follows:

 

                  1. DESIGNATION AND AMOUNT. The shares of suchseries shall be designated “Series A Convertible Preferred Stock” (the “SeriesA Preferred Stock”), par value $0.01 per share, and the number of sharesconstituting such series shall be 10,000.

 

                  2. DIVIDENDS. The holders of Series A PreferredStock shall be entitled to receive, when, as and if dividends are declared onshares of Common Stock by the Board of Directors of the Corporation (the “Boardof Directors”), dividends per share of Series A Preferred Stock in such anamount as the holders of the Series A Preferred Stock would have received hadsuch holders converted Series A Preferred Stock into Common Stock immediatelyprior to the record date for such distribution. All dividends declared uponSeries A Preferred Stock shall be declared pro rata per share.

 

                  3.LIQUIDATION, DISSOLUTION OR WINDING UP.

 

                  (a) In the event of any voluntary or involuntaryliquidation, dissolution or winding up of the Corporation, the holders ofshares of Series A Preferred Stock then outstanding shall be entitled to bepaid out of the assets of the Corporation available for distribution to itsstockholders, after and subject to the payment in full of all amounts requiredto be distributed to the holders of any other Preferred Stock of theCorporation ranking on liquidation prior and in preference to the Series APreferred Stock (such Preferred Stock being referred to hereinafter as “SeniorPreferred Stock”) upon such liquidation, dissolution or winding up, but beforeany payment shall be made to the holders of Common Stock, an amount in cashequal to Ten Thousand Dollars ($10,000) per share, subject to appropriateadjustment in the event of any stock dividend, stock split, stock distributionor combination with respect to the Series A Preferred Stock (the “StatedValue”) plus any dividends thereon declared but unpaid (such amount beingreferred to hereinafter as the “Series A Liquidation Value”). If upon any suchliquidation, dissolution or winding up of the Corporation the remaining assetsof the Corporation available for the distribution to its stockholders afterpayment in full of amounts required to be paid or distributed to holders ofSenior Preferred Stock shall be insufficient to pay the holders of shares ofSeries A Preferred Stock the full amount to which they shall be entitled, theholders of shares of Series A Preferred Stock, and any class of stock rankingon liquidation on a parity with the Series A Preferred Stock, shall shareratably in any distribution of the remaining assets and funds of the

 

 

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Corporation in proportion tothe respective amounts which would otherwise be payable in respect to theshares held by them upon such distribution if all amounts payable on or withrespect to said shares were paid in full.

 

                  (b) After the payment of all preferential amountsrequired to be paid to the holders of Senior Preferred Stock and Series APreferred Stock and any other series of Preferred Stock upon the dissolution,liquidation or winding up of the Corporation, the holders of shares of CommonStock then outstanding shall be entitled to receive the remaining assets andfunds of the Corporation available for distribution to its stockholders.

 

                  (c) The merger or consolidation of theCorporation into or with another corporation, the merger or consolidation ofany other corporation into or with the Corporation, or the sale, conveyance,mortgage, pledge or lease of all or substantially all the assets of theCorporation to a person shall not be deemed to be a liquidation, dissolution orwinding up of the Corporation for purposes of this Section 3.

 

                  4. VOTING.

 

                  (a) Each issued and outstanding share of Series APreferred Stock shall be entitled to the number of votes equal to the number ofshares of Common Stock into which each such share of Series A Preferred Stockis convertible (as adjusted from time to time pursuant to Section 6 hereof), ateach meeting of stockholders of the Corporation (or pursuant to any action bywritten consent) with respect to any and all matters presented to thestockholders of the Corporation for their action or consideration. Except asprovided by law, by the provisions of Sections 4(b) and 4(c) below or by theprovisions establishing any other series of Preferred Stock, holders of SeriesA Preferred Stock shall vote together with the holders of Common Stock as asingle class.

 

                  (b) For so long as at least 9,000 shares of theSeries A Preferred Stock remain outstanding, the holders of Series A PreferredStock shall have the exclusive right, voting separately as a class, to electone director (herein referred to as the “Series A Director”). A Series ADirector shall be elected by the affirmative vote of the holders of record of amajority of the outstanding shares of Series A Preferred Stock either atmeetings of stockholders at which directors are elected or a special meeting ofholders of Series A Preferred Stock. A Series A Director so elected shall servefor a term of one year and until his successor is elected and qualified. Anyvacancy in the position of a Series A Director may be filled only by theholders of the Series A Preferred Stock. A Series A Director may, during his orher term of office, be removed at any time, with or without cause, by and onlyby the affirmative vote, at a special meeting of holders of Series A PreferredStock called for such purpose, or the written consent, of the holders of recordof a majority of the outstanding shares of Series A Preferred Stock. Anyvacancy created by such removal may also be filled at such meeting or by suchconsent.

 

                  (c) In addition to any other rights provided bylaw, the Corporation shall not, without first obtaining the affirmative vote orwritten consent of the holders of a majority of the outstanding shares ofSeries A Preferred Stock, authorize any additional shares of Series A PreferredStock or amend, alter or repeal the preferences, special rights or other powersof the Series A Preferred Stock so as to affect adversely the Series APreferred Stock. For purposes of this Section 4(c), the authorization orissuance of any series of Senior Preferred Stock shall be deemed to affectmaterially and adversely the Series A Preferred Stock.

 

                  5. OPTIONAL CONVERSION. Each share of Series APreferred Stock may be converted at any time, at the option of the holderthereof, into the number of fully-paid and nonassessable shares of Common Stockobtained by dividing the Stated Value by the Conversion Price then in effect(the “Conversion Rate”), PROVIDED, HOWEVER, that on any redemption of anySeries A Preferred Stock or any liquidation of the Corporation, the right ofconversion shall terminate at the close of business on the full business daynext preceding the date fixed for such redemption or for the payment of anyamounts distributable on liquidation to the holders of Series A PreferredStock.

 

                  (a) The initial conversion price, subject toadjustment as provided herein, is equal to $28.00 (the “Conversion Price”). Theinitial Conversion Rate for the Series A Preferred Stock shall be 357.142857shares of Common Stock for each one share of Series A Preferred Stocksurrendered for conversion. The applicable Conversion Rate and Conversion Pricefrom time to time in effect is subject to adjustment as hereinafter provided.

 

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                  (b) The Corporation shall not issue fractions ofshares of Common Stock upon conversion of Series A Preferred Stock or scrip inlieu thereof. If any fraction of a share of Common Stock would, except for theprovisions of this Section 5(b), be issuable upon conversion of any Series APreferred Stock, the Corporation shall in lieu thereof pay to the personentitled thereto an amount in cash equal to the current value of such fraction,calculated to the nearest one-hundredth (1/100) of a share, to be computed (i)if the Common Stock is listed on any national securities exchange, on the basisof the last sales price of the Common Stock on such exchange (or the quotedclosing bid price if there shall have been no sales) on the date of conversion,or (ii) if the Common Stock shall not be listed, on the basis of the meanbetween the closing bid and asked prices for the Common Stock on the date ofconversion as reported by NASDAQ, or its successor, and if there are not suchclosing bid and asked prices, on the basis of the fair market value per shareas determined by the Board of Directors.

 

                  (c) Whenever the Conversion Rate and ConversionPrice shall be adjusted as provided in Section 6 hereof, the Corporation shallforthwith file at each office designated for the conversion of Series APreferred Stock, a statement, signed by the Chairman of the Board, the President,any Vice President or Treasurer of the Corporation, showing in reasonabledetail the facts requiring such adjustment and the Conversion Rate that will beeffective after such adjustment. The Corporation shall also cause a noticesetting forth any such adjustments to be sent by mail, first class, postageprepaid, to each record holder of Series A Preferred Stock at his or itsaddress appearing on the stock register. If such notice relates to anadjustment resulting from an event referred to in Section 6(d) hereof, suchnotice shall be included as part of the notice required to be mailed andpublished under the provisions of Section 6(d) hereof.

 

                  (d) In order to exercise the conversionprivilege, the holder of any Series A Preferred Stock to be converted shallsurrender his or its certificate or certificates therefore to the principaloffice of the transfer agent for the Series A Preferred Stock (or if notransfer agent be at the time appointed, then the Corporation at its principaloffice), and shall give written notice to the Corporation at such office thatthe holder elects to convert the Series A Preferred Stock represented by suchcertificates, or any number thereof. Such notice shall also state the name ornames (with address) in which the certificate or certificates for shares ofCommon Stock which shall be issuable on such conversion shall be issued,subject to any restrictions on transfer relating to shares of the Series APreferred Stock or shares of Common Stock upon conversion thereof. If sorequired by the Corporation, certificates surrendered for conversion shall beendorsed or accompanied by written instrument or instruments of transfer, inform satisfactory to the Corporation, duly authorized in writing. The date ofreceipt by the transfer agent (or by the Corporation if the Corporation servesas its own transfer agent) of the certificates and notice shall be theconversion date. As soon as practicable after receipt of such notice and thesurrender of the certificate or certificates for Series A Preferred Stock asaforesaid, the Corporation shall cause to be issued and delivered at suchoffice to such holder, or on his or its written order, a certificate orcertificates for the number of full shares of Common Stock issuable on suchconversion in accordance with the provisions hereof, cash as provided inSection 5(b) hereof in respect of any fraction of a share of Common Stockotherwise issuable upon such conversion and, if less than all shares of SeriesA Preferred Stock represented by the certificate or certificates so surrenderedare being converted, a residual certificate or certificates representing theshares of Series A Preferred Stock not converted.

 

                  (e) The Corporation shall at all times when theSeries A Preferred Stock shall be outstanding reserve and keep available out ofits authorized but unissued stock, for the purposes of effecting the conversionof the Series A Preferred Stock, such number of its duly authorized shares ofCommon Stock as shall from time to time be sufficient to effect the conversionof all outstanding Series A Preferred Stock. Before taking any action thatwould cause an adjustment reducing the Conversion Price below the then parvalue of the shares of Common Stock issuable upon conversion of the Series APreferred Stock, the Corporation will take any corporate action that may, inthe opinion of its counsel, be necessary in order that the Corporation mayvalidly and legally issue fully-paid and nonassessable shares of such Common Stockat such adjusted conversion price.

 

                  (f) All shares of Series A Preferred Stock whichshall have been surrendered for conversion as herein provided shall no longerbe deemed to be outstanding and all rights with respect to such shares,including the rights, if any, to receive notices and to vote, shall forthwithcease and terminate except only the right of the holder thereof to receiveshares of Common Stock in exchange therefor and payment of any declared andunpaid dividends thereon. Any shares of Series A Preferred Stock so convertedshall be retired and canceled and shall not be reissued, and the Corporationmay from time to time take such appropriate action as may be necessary toreduce the authorized Series A Preferred Stock accordingly.

 

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                  6. CONVERSION PRICE ADJUSTMENTS.

 

                  (a) In case the Corporation shall at any time (i)subdivide the outstanding Common Stock or (ii) issue a dividend on its outstandingCommon Stock payable in shares of Common Stock, the number of shares of CommonStock issuable upon conversion of the Series A Preferred Stock shall beproportionately increased by the same ratio as the subdivision or dividend(with appropriate adjustments to the Conversion Price in effect immediatelyprior to such subdivision or dividend). In case the Corporation shall at anytime combine its outstanding Common Stock, the number of shares issuable uponconversion of the Series A Preferred Stock immediately prior to suchcombination shall be proportionately decreased by the same ratio as thecombination (with appropriate adjustments to the Conversion Price in effectimmediately prior to such combination).

 

                  (b) In the event the Corporation shall declare adividend upon the Common Stock (other than a dividend payable in Common Stock)payable otherwise than out of earnings or earned surplus, determined inaccordance with generally accepted accounting principles, including the makingof appropriate deductions for minority interests, if any, in subsidiaries(herein referred to as “Liquidating Dividends”), then, as soon as possibleafter the conversion of any shares of Series A Preferred Stock, the Corporationshall pay to the person converting such shares of Series A Preferred Stock anamount equal to the aggregate value of all Liquidating Dividends that suchperson would have received had the person converted such shares of Series APreferred Stock immediately prior to the record date for such LiquidatingDividend. For the purposes of this Section 6(b), a dividend other than in cashshall be considered payable out of earnings or earned surplus only to theextent that such earnings or earned surplus are charged an amount equal to thefair value of such dividend as determined in good faith by the Board ofDirectors.

 

                  (c) If any capital reorganization orreclassification of the capital stock of the Corporation, or consolidation ormerger of the Corporation with another corporation in which the holders ofCommon Stock and Series A Preferred Stock prior to such consolidation or mergerhold at least 51% of the combined voting power of the surviving person in suchmerger or consolidation immediately following its effective date, shall beeffected in such a way that holders of Common Stock shall be entitled toreceive stock, securities, cash or other property with respect to or inexchange for Common Stock, then, as a condition of such reorganization,reclassification, consolidation or merger, lawful and adequate provision shallbe made whereby the holders of the Series A Preferred Stock shall have theright to acquire and receive upon conversion of the Series A Preferred Stocksuch shares of stock, securities, cash or other property issuable or payable(as part of such reorganization, reclassification, consolidation or merger)with respect to or in exchange for such number of outstanding shares of CommonStock as would have been received upon conversion of the Series A Preferred Stockat the Conversion Price then in effect. Any other consolidation or merger ofthe Corporation with another corporation or the sale of all or substantiallyall of its assets to another corporation shall be effected in such a way thatthe holders of the Series A Preferred Stock shall be entitled to receive, inexchange for their shares of Series A Preferred Stock, the stock, securities,cash or other property payable to holders of Common Stock as if the holders ofSeries A Preferred Stock had converted the Series A Preferred Stock in toCommon Stock immediately prior to the effective date of such consolidation,merger or sale. The Corporation will not effect any such consolidation, mergeror sale, unless prior to the consummation thereof the successor corporation (ifother than the Corporation) resulting from such consolidation or merger or thecorporation purchasing such assets shall assume by written instrument mailed ordelivered to the holders of the Series A Preferred Stock at the last address ofeach such holder appearing on the books of the Corporation, the obligation todeliver to each such holder such shares of stock, securities or assets as, inaccordance with the foregoing provisions, such holder may be entitled toreceive.

 

                  (d) In the event that:

 

                (1) the Corporation shall offer for subscription prorata to the holders of its Common Stock any additional shares of stock of anyclass or other rights, or

 

                (2) there shall be any capital reorganization orreclassification of the capital stock of the Corporation, including anysubdivision or combination of its outstanding shares of Common Stock, orconsolidation or merger of the Corporation with, or sale of all orsubstantially all of its assets to, another corporation, or

 

4

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                (3) there shall be a voluntary or involuntarydissolution, liquidation or winding up of the Corporation;

 

then, in connection with suchevent, the Corporation shall give to the holders of the Series A PreferredStock:

 

(i) atleast twenty (20) days prior written notice of the date on which the books ofthe Corporation shall close or a record shall be taken for such dividend,distribution or subscription rights or for determining rights to vote inrespect of any such reorganization, reclassification, consolidation, merger,sale, dissolution, liquidation or winding up; and

 

(ii) inthe case of any such reorganization, reclassification, consolidation, merger,sale, dissolution, liquidation or winding up, at least twenty (20) days priorwritten notice of the date when the same shall take place. Such notice inaccordance with the foregoing clause (i) shall also specify, in the case of anysuch dividend, distribution or subscription rights, the date on which theholders of Common Stock shall be entitled thereto, and such notice inaccordance with the foregoing clause (ii) shall also specify the date on whichthe holders of Common Stock 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. Each such written notice shall be given byfirst class mail, postage prepaid, addressed to the holders of the Series A PreferredStock at the address of each such holder as shown on the books of theCorporation.

 

                  (e) If at any time or from time to time on orafter the date on which shares of Series A Preferred Stock are initiallyissued, the Corporation shall grant, issue or sell any options, convertiblesecurities or rights to purchase property (the “Purchase Rights”) pro rata tothe record holders of any class of Common Stock and such Purchase Rights arenot issued to the holders of Series A Preferred Stock and such grants,issuances or sales do not result in an adjustment of the Conversion Price underthis Section 6, then each holder of Series A Preferred Stock shall be entitledto acquire (within thirty (30) days after the later to occur of the initial exercisedate of such Purchase Rights or receipt by such holder of the notice concerningPurchase Rights to which such holder shall be entitled under Section 6(d)) andupon the terms applicable to such Purchase Rights either:

 

(i) theaggregate Purchase Rights which such holder could have acquired if it had heldthe number of shares of Common Stock acquirable upon conversion of the Series APreferred Stock immediately before the grant, issuance or sale of such PurchaseRights; provided that if any Purchase Rights were distributed to holders ofCommon Stock without the payment of additional consideration by such holders,corresponding Purchase Rights shall be distributed to the holders of the SeriesA Preferred Stock as soon as possible and it shall not be necessary for theholder of the Series A Preferred Stock specifically to request delivery of suchrights; or

 

(ii) inthe event that any such Purchase Rights shall have expired or shall expireprior to the end of said thirty (30) day period, the right to acquire thenumber of shares of Common Stock or the amount of property which such holdercould have acquired upon such exercise at the time or times at which theCorporation granted, issued or sold such expired Purchase Rights on the termsof the Purchase Rights so granted.

 

                  7. REDEMPTION.

 

                  (a) The Corporation, at its option, may redeem(to the extent that such redemption shall not violate any applicable provisionsof the General Corporation Law of the State of Delaware) all, but not less thanall, of the shares of Series A Preferred Stock at a price equal to the thenSeries A Liquidation Value (subject to adjustment in the event of any stockdividend, stock split, stock distribution or combination with respect to suchshares) (such price is hereinafter referred to as the “Redemption Price”), atany time after December 15, 2000 (any such date of redemption is hereafterreferred to as an “Redemption Date”), PROVIDED that no shares of Series A

 

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Preferred Stock may be socalled for redemption unless the average of the closing prices per share ofCommon Stock for any twenty (20) consecutive trading days ending within twenty(20) business days of the date on which notice of such redemption is given tothe holders of the Series A Preferred Stock, shall have been at least $35.00(subject to appropriate adjustment in the event of any stock dividend, stocksplit, stock distribution or combination). For purposes of the foregoingcalculation, “closing price” shall mean for any given date: (i) if the CommonStock is listed on any national securities exchange or quoted on Nasdaq, on thebasis of the last sales price of the Common Stock on such exchange or Nasdaq(or the quoted closing bid price if there shall have been no sales) on suchdate, or (ii) if no last sales prices are then being quoted for the CommonStock, on the basis of the mean between the closing bid and asked prices forthe Common Stock on such date as reported by Nasdaq, or its successor, or (iii)if there are no such closing bid and asked prices, on the basis of the fairmarket value per share as determined by the Board of Directors of theCorporation.

 

                  (b) At least thirty (30) days prior to eachRedemption Date, written notice shall be mailed, postage prepaid, to eachholder of record of Series A Preferred Stock to be redeemed, at his or its postoffice address last shown on the records of the Corporation, notifying suchholder of the number of shares so to be redeemed, specifying the RedemptionDate and the date on which such holder’s conversion rights (pursuant to Section5 hereof) as to such shares terminate and calling upon such holder to surrenderto the Corporation, in the manner and at the place designated, his or itscertificate or certificates representing the shares to be redeemed (such noticeis hereinafter referred to as the “Redemption Notice”). On or prior to theRedemption Date, each holder of Series A Preferred Stock to be redeemed shallsurrender his or its certificate or certificates representing such shares tothe Corporation, in the manner and at the place designated in the RedemptionNotice, and thereupon the Redemption Price of such shares shall be payable tothe order of the person whose name appears on such certificate or certificatesas the owner thereof and each surrendered certificate shall be canceled. Fromand after the Redemption Date, unless there shall have been a default inpayment of the Redemption Price, all rights of the holders of the Series APreferred Stock designated for redemption in the Redemption Notice as holdersof Series A Preferred Stock of the Corporation (except the right to receive theRedemption Price without interest upon surrender of their certificate orcertificates) shall cease with respect to such shares, and such shares shallnot thereafter be transferred on the books of the Corporation or be deemed tobe outstanding for any purpose whatsoever.

 

                  (c) Except as provided in paragraph (a) above, theCorporation shall have no right to redeem the shares of Series A PreferredStock other than with the consent of the holders of 66 2/3% of the thenoutstanding shares of Series A Preferred Stock. Any shares of Series APreferred Stock so redeemed shall be permanently retired, shall no longer bedeemed outstanding and shall not under any circumstances be reissued, and theCorporation may from time to time take such appropriate corporate action as maybe necessary to reduce the authorized Series A Preferred Stock accordingly.Nothing herein contained shall prevent or restrict the purchase by theCorporation, from time to time either at public or private sale, of the wholeor any part of the Series A Preferred Stock at such price or prices as theCorporation may determine, subject to the provisions of applicable law.

 

                  IN WITNESS WHEREOF, Transkaryotic Therapies, Inc.has caused this Certificate of Designation, Number, Voting Powers, Preferencesand Rights of Series A Convertible Preferred Stock to be duly executed by itsVP of Finance and CFO this 9th day of June, 2000.

 
|   | TRANSKARYOTIC THERAPIES, INC.   |
|--------|---------------------------------|
|   |                            |
|   | By /s/ DANIEL E. GEFFKEN        |
|   | [Name:] Daniel E. Geffken       |
|   | [Title:] VP of Finance and  CFO |

 

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CERTIFICATE OF AMENDMENT

OF

AMENDED AND RESTATED

CERTIFICATEOF INCORPORATION

OF

TRANSKARYOTICTHERAPIES, INC.

 

Pursuantto Section 242

of theGeneral Corporation Law of

theState of Delaware

 

         Transkaryotic Therapies, Inc. (hereinafter called the “Corporation”),organized and existing under and by virtue of the General Corporation Law ofthe State of Delaware, does hereby certify as follows:

 

         At a meeting of the Board of Directors of the Corporationa resolution was duly adopted, pursuant to Section 242 of the GeneralCorporation Law of the State of Delaware, setting forth an amendment to theCertificate of Incorporation of the Corporation and declaring said amendment tobe advisable. The stockholders of the Corporation duly approved said proposedamendment at a meeting in accordance with Section 242 of the GeneralCorporation Law of the State of Delaware. The resolution setting forth theamendment is as follows:

 

RESOLVED:

Thatthe first paragraph of Article FOURTH of the Certificate of Incorporation ofthe Corporation be and hereby is deleted in its entirety and the followingparagraph is inserted in lieu thereof:

 

FOURTH:The total number of all classes of stock which the Corporation shall haveauthority to issue is 110,000,000 shares, consisting of (i) 100,000,000 sharesof Common Stock, $.01 par value per share (“Common Stock”), and (ii) 10,000,000shares of Preferred Stock, $.01 par value per share (“Preferred Stock”).

 

----

 

         IN WITNESS WHEREOF, the Corporation has caused this Certificateof Amendment to be signed by its President this 15th day of June, 2000.

 

|   | Transkaryotic Therapies, Inc.             |
|--------|-------------------------------------------|
|   |                                      |
|   | By: /s/ RICHARD F SELDEN                  |
|   | Richard F Selden, M.D.,  Ph.D., President |
|        |                                           |  |

 

 

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CERTIFICATEOF DESIGNATIONS

 

OF

 

SERIESB JUNIOR PARTICIPATING PREFERRED STOCK

 

OF

 

TRANSKARYOTICTHERAPIES, INC.

 

Transkaryotic Therapies, Inc.,a corporation organized and existing under the laws of the State of Delaware(hereinafter called the “Corporation”), hereby certifies that the followingresolution was adopted by the Board of Directors of the Corporation at ameeting duly called and held on December 13, 2000:

 

RESOLVED: That pursuant to theauthority granted to and vested in the Board of Directors of the Corporation(hereinafter called the “Board”) in accordance with the provisions of theCertificate of Incorporation, as amended, the Board hereby creates a series ofPreferred Stock, $0.01 par value per share (the “Preferred Stock”), of theCorporation and hereby states the designation and number of shares, and fixesthe relative rights, preferences and limitations thereof as follows:

 

         SERIES B JUNIOR PARTICIPATING PREFERRED STOCK:

 

         Section 1. DESIGNATION AND AMOUNT. The shares of suchseries shall be designated as “Series B Junior Participating Preferred Stock”(the “Series B Preferred Stock”) and the number of shares constituting theSeries B Preferred Stock shall be one million (1,000,000). Such number ofshares may be increased or decreased by resolution of the Board prior toissuance; PROVIDED, that no decrease shall reduce the number of shares ofSeries B Preferred Stock to a number less than the number of shares thenoutstanding plus the number of shares reserved for issuance upon the exerciseof outstanding options, rights or warrants or upon the conversion of anyoutstanding securities issued by the Corporation convertible into Series BPreferred Stock.

 

         Section 2. DIVIDENDS AND DISTRIBUTIONS.

 

         (A) Subject to the rights of the holders of any shares ofany series of Preferred Stock (or any similar stock) ranking prior and superiorto the Series B Preferred Stock with respect to dividends, the holders ofshares of Series B Preferred Stock, in preference to the holders of CommonStock, par value $0.01 per share (the “Common Stock”), of the Corporation, andof any other junior stock, shall be entitled to receive, when, as and ifdeclared by the Board out of funds of the Corporation legally available for thepayment of dividends, quarterly dividends payable in cash on the last day ofeach fiscal quarter of the Corporation in each year (each such date beingreferred to herein as a “Quarterly Dividend Payment Date”), commencing on thefirst Quarterly Dividend Payment Date after the first issuance of a share orfraction of a share of Series B Preferred Stock, in an amount per share(rounded to the nearest cent) equal to the greater of (a) $10 or (b) subject tothe provision for adjustment hereinafter set forth, 1,000 times the

 

 

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aggregate per share amount ofall cash dividends, and 1,000 times the aggregate per share amount (payable inkind) of all non-cash dividends or other distributions, other than a dividendpayable in shares of Common Stock or a subdivision of the outstanding shares ofCommon Stock (by reclassification or otherwise), declared on the Common Stocksince the immediately preceding Quarterly Dividend Payment Date or, withrespect to the first Quarterly Dividend Payment Date, since the first issuanceof any share or fraction of a share of Series B Preferred Stock. In the eventthe Corporation shall at any time declare or pay any dividend on the CommonStock payable in shares of Common Stock, or effect a subdivision, combinationor consolidation of the outstanding shares of Common Stock (by reclassificationor otherwise than by payment of a dividend in shares of Common Stock) into agreater or lesser number of shares of Common Stock, then in each such case theamount to which holders of shares of Series B Preferred Stock were entitledimmediately prior to such event under clause (b) of the preceding sentenceshall be adjusted by multiplying such amount by a fraction, the numerator ofwhich is the number of shares of Common Stock outstanding immediately aftersuch event and the denominator of which is the number of shares of Common Stockthat were outstanding immediately prior to such event. In the event theCorporation shall at any time declare or pay any dividend on the Series BPreferred Stock payable in shares of Series B Preferred Stock, or effect asubdivision, combination or consolidation of the outstanding shares of Series BPreferred Stock (by reclassification or otherwise than by payment of a dividendin shares of Series B Preferred Stock) into a greater or lesser number ofshares of Series B Preferred Stock, then in each such case the amount to whichholders of shares of Series B Preferred Stock were entitled immediately priorto such event under clause (b) of the first sentence of this Section 2(A) shallbe adjusted by multiplying such amount by a fraction, the numerator of which isthe number of shares of Series B Preferred Stock that were outstandingimmediately prior to such event and the denominator of which is the number ofshares of Series B Preferred Stock outstanding immediately after such event.

 

         (B) The Corporation shall declare a dividend ordistribution on the Series B Preferred Stock as provided in paragraph (A) ofthis Section immediately after it declares a dividend or distribution on theCommon Stock (other than a dividend payable in shares of Common Stock) and theCorporation shall pay such dividend or distribution on the Series B PreferredStock before the dividend or distribution declared on the Common Stock is paidor set apart; provided that, in the event no dividend or distribution shallhave been declared on the Common Stock during the period between any QuarterlyDividend Payment Date and the next subsequent Quarterly Dividend Payment Date,a dividend of $10 per share on the Series B Preferred Stock shall neverthelessbe payable on such subsequent Quarterly Dividend Payment Date.

 

         (C) Dividends shall begin to accrue and be cumulative onoutstanding shares of Series B Preferred Stock from the Quarterly DividendPayment Date next preceding the date of issue of such shares, unless the dateof issue of such shares is prior to the record date for the first QuarterlyDividend Payment Date, in which case dividends on such shares shall begin toaccrue from the date of issue of such shares, or unless the date of issue is aQuarterly Dividend Payment Date or is a date after the record date for thedetermination of holders of shares of Series B Preferred Stock entitled toreceive a quarterly dividend and before such Quarterly Dividend Payment Date,in either of which events such dividends shall begin to accrue and becumulative from such Quarterly Dividend Payment Date. Accrued but unpaiddividends shall not bear interest. Dividends paid on the shares of Series BPreferred Stock in an amount less than the

 

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total amount of such dividendsat the time accrued and payable on such shares shall be allocated pro rata on ashare-by-share basis among all such shares at the time outstanding. The Boardmay fix a record date for the determination of holders of shares of Series BPreferred Stock entitled to receive payment of a dividend or distributiondeclared thereon, which record date shall be not more than 60 days prior to thedate fixed for the payment thereof.

 

         Section 3. VOTING RIGHTS. The holders of shares of Series B Preferred Stock shall have thefollowing voting rights:

 

         (A) Subject to the provision for adjustment hereinafterset forth, each share of Series B Preferred Stock shall entitle the holderthereof to 1,000 votes on all matters submitted to a vote of the stockholdersof the Corporation. In the event the Corporation shall at any time declare orpay any dividend on the Common Stock payable in shares of Common Stock, oreffect a subdivision, combination or consolidation of the outstanding shares ofCommon Stock (by reclassification or otherwise than by payment of a dividend inshares of Common Stock) into a greater or lesser number of shares of CommonStock, then in each such case the number of votes per share to which holders ofshares of Series B Preferred Stock were entitled immediately prior to suchevent shall be adjusted by multiplying such number by a fraction, the numeratorof which is the number of shares of Common Stock outstanding immediately aftersuch event and the denominator of which is the number of shares of Common Stockthat were outstanding immediately prior to such event. In the event the Corporationshall at any time declare or pay any dividend on the Series B Preferred Stockpayable in shares of Series B Preferred Stock, or effect a subdivision,combination or consolidation of the outstanding shares of Series B PreferredStock (by reclassification or otherwise than by payment of a dividend in sharesof Series B Preferred Stock) into a greater or lesser number of shares ofSeries B Preferred Stock, then in each such case the number of votes per shareto which holders of shares of Series B Preferred Stock were entitledimmediately prior to such event shall be adjusted by multiplying such amount bya fraction, the numerator of which is the number of shares of Series BPreferred Stock that were outstanding immediately prior to such event and thedenominator of which is the number of shares of Series B Preferred Stockoutstanding immediately after such event.

 

         (B) Except as otherwise provided herein, in theCertificate of Incorporation or by law, the holders of shares of Series BPreferred Stock and the holders of shares of Common Stock and any other capitalstock of the Corporation having general voting rights shall vote together asone class on all matters submitted to a vote of stockholders of theCorporation.

 

         (C) (i) If at any time dividends on any Series B PreferredStock shall be in arrears in an amount equal to six quarterly dividendsthereon, the holders of the Series B Preferred Stock, voting as a separateseries from all other series of Preferred Stock and classes of capital stock,shall be entitled to elect two members of the Board in addition to anyDirectors elected by any other series, class or classes of securities and theauthorized number of Directors will automatically be increased by two. Promptlythereafter, the Board of the Corporation shall, as soon as may be practicable,call a special meeting of holders of Series B Preferred Stock for the purposeof electing such members of the Board. Such special meeting shall in any eventbe held within 45 days of the occurrence of such arrearage.

 

A-3

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         (ii) During any period when theholders of Series B Preferred Stock, voting as a separate series, shall beentitled and shall have exercised their right to elect two Directors, then, andduring such time as such right continues, (a) the then authorized number ofDirectors shall be increased by two, and the holders of Series B PreferredStock, voting as a separate series, shall be entitled to elect the additionalDirectors so provided for, and (b) each such additional Director shall not be amember of any existing class of the Board, but shall serve until the nextannual meeting of stockholders for the election of Directors, or until hissuccessor shall be elected and shall qualify, or until his right to hold suchoffice terminates pursuant to the provisions of this Section 3(C).

 

         (iii) A Director elected pursuant tothe terms hereof may be removed with or without cause by the holders of SeriesB Preferred Stock entitled to vote in an election of such Director.

 

         (iv) If, during any interval betweenannual meetings of stockholders for the election of Directors and while theholders of Series B Preferred Stock shall be entitled to elect two Directors,there is no such Director in office by reason of resignation, death or removal,then, promptly thereafter, the Board shall call a special meeting of theholders of Series B Preferred Stock for the purpose of filling such vacancy andsuch vacancy shall be filled at such special meeting. Such special meetingshall in any event be held within 45 days of the occurrence of such vacancy.

 

         (v) At such time as the arrearage isfully cured, and all dividends accumulated and unpaid on any shares of Series BPreferred Stock outstanding are paid, and, in addition thereto, at least oneregular dividend has been paid subsequent to curing such arrearage, the term ofoffice of any Director elected pursuant to this Section 3(C), or his successor,shall automatically terminate, and the authorized number of Directors shallautomatically decrease by two, the rights of the holders of the shares of theSeries B Preferred Stock to vote as provided in this Section 3(C) shall cease,subject to renewal from time to time upon the same terms and conditions, andthe holders of shares of the Series B Preferred Stock shall have only thelimited voting rights elsewhere herein set forth.

 

         (D) Except as set forth herein, or as otherwise providedby law, holders of Series B Preferred Stock shall have no special voting rightsand their consent shall not be required (except to the extent they are entitledto vote with holders of Common Stock as set forth herein) for taking anycorporate action.

 

A-4

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         Section 4. CERTAIN RESTRICTIONS.

 

         (A) Whenever quarterly dividends or other dividends ordistributions payable on the Series B Preferred Stock as provided in Section 2are in arrears, thereafter and until all accrued and unpaid dividends anddistributions, whether or not declared, on shares of Series B Preferred Stockoutstanding shall have been paid in full, the Corporation shall not:

 

         (i) declare or pay dividends, or makeany other distributions, on any shares of stock ranking junior (either as todividends or upon liquidation, dissolution or winding up) to the Series BPreferred Stock;

 

         (ii) declare or pay dividends, ormake any other distributions, on any shares of stock ranking on a parity(either as to dividends or upon liquidation, dissolution or winding up) withthe Series B Preferred Stock, except dividends paid ratably on the Series BPreferred Stock and all such parity stock on which dividends are payable or inarrears in proportion to the total amounts to which the holders of all suchshares are then entitled;

 

         (iii) redeem or purchase or otherwiseacquire for consideration shares of any stock ranking junior (either as todividends or upon liquidation, dissolution or winding up) to the Series B PreferredStock, provided that the Corporation may at any time redeem, purchase orotherwise acquire shares of any such junior stock in exchange for shares of anystock of the Corporation ranking junior (either as to dividends or upondissolution, liquidation or winding up) to the Series B Preferred Stock; or

 

         (iv) redeem or purchase or otherwiseacquire for consideration any shares of Series B Preferred Stock, or any sharesof stock ranking on a parity with the Series B Preferred Stock, except in accordancewith a purchase offer made in writing or by publication (as determined by theBoard) to all holders of such shares upon such terms as the Board, afterconsideration of the respective annual dividend rates and other relative rightsand preferences of the respective series and classes, shall determine in goodfaith will result in fair and equitable treatment among the respective seriesor classes.

 

         (B) The Corporation shall not permit any subsidiary of theCorporation to purchase or otherwise acquire for consideration any shares ofstock of the Corporation unless the Corporation could, under paragraph (A) ofthis Section 4, purchase or otherwise acquire such shares at such time and insuch manner.

 

         Section 5. REACQUIRED SHARES. Any shares of Series BPreferred Stock purchased or otherwise acquired by the Corporation in anymanner whatsoever shall be retired and cancelled promptly after the acquisitionthereof. All such shares shall upon their cancellation become authorized butunissued shares of Preferred Stock and may be reissued as part of a new seriesof Preferred Stock subject to the conditions and restrictions on issuance setforth herein, in the Certificate of Incorporation, or in any other Certificateof Designations creating a series of Preferred Stock or any similar stock or asotherwise required by law.

 

A-5

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         Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.

 

         (A) Upon any liquidation, dissolution or winding up of theCorporation, no distribution shall be made (1) to the holders of shares ofstock ranking junior (either as to dividends or upon liquidation, dissolutionor winding up) to the Series B Preferred Stock unless, prior thereto, theholders of shares of Series B Preferred Stock shall have received $1000 pershare, plus an amount equal to accrued and unpaid dividends and distributionsthereon, whether or not declared, to the date of such payment, provided thatthe holders of shares of Series B Preferred Stock shall be entitled to receivean aggregate amount per share, subject to the provision for adjustmenthereinafter set forth, equal to 1,000 times the aggregate amount to bedistributed per share to holders of shares of Common Stock, or (2) to theholders of shares of stock ranking on a parity (either as to dividends or uponliquidation, dissolution or winding up) with the Series B Preferred Stock,except distributions made ratably on the Series B Preferred Stock and all suchparity stock in proportion to the total amounts to which the holders of allsuch shares are entitled upon such liquidation, dissolution or winding up.

 

         (B) Neither the consolidation, merger or other businesscombination of the Corporation with or into any other corporation nor the sale,lease, exchange or conveyance of all or any part of the property, assets orbusiness of the Corporation shall be deemed to be a liquidation, dissolution orwinding up of the Corporation for purposes of this Section 6.

 

         (C) In the event the Corporation shall at any time declareor pay any dividend on the Common Stock payable in shares of Common Stock, oreffect a subdivision, combination or consolidation of the outstanding shares ofCommon Stock (by reclassification or otherwise than by payment of a dividend inshares of Common Stock) into a greater or lesser number of shares of CommonStock, then in each such case the aggregate amount to which holders of sharesof Series B Preferred Stock were entitled immediately prior to such event underthe proviso in clause (1) of paragraph (A) of this Section 6 shall be adjustedby multiplying such amount by a fraction, the numerator of which is the numberof shares of Common Stock outstanding immediately after such event and thedenominator of which is the number of shares of Common Stock that wereoutstanding immediately prior to such event. In the event the Corporation shallat any time declare or pay any dividend on the Series B Preferred Stock payablein shares of Series B Preferred Stock, or effect a subdivision, combination orconsolidation of the outstanding shares of Series B Preferred Stock (byreclassification or otherwise than by payment of a dividend in shares of SeriesB Preferred Stock) into a greater or lesser number of shares of Series BPreferred Stock, then in each such case the aggregate amount to which holdersof shares of Series B Preferred Stock were entitled immediately prior to suchevent under the proviso in clause (1) of paragraph (A) of this Section 6 shallbe adjusted by multiplying such amount by a fraction, the numerator of which isthe number of shares of Series B Preferred Stock that were outstandingimmediately prior to such event and the denominator of which is the number ofshares of Series B Preferred Stock outstanding immediately after such event.

 

         Section 7. CONSOLIDATION, MERGER, ETC. Notwithstandinganything to the contrary contained herein, in case the Corporation shall enterinto any consolidation, merger, combination or other transaction in which theshares of Common Stock are exchanged for or changed into other stock orsecurities, cash and/or any other property, then in any such case each share ofSeries B Preferred Stock shall at the same time be similarly exchanged orchanged into an

 

A-6

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amount per share, subject tothe provision for adjustment hereinafter set forth, equal to 1,000 times theaggregate amount of stock, securities, cash and/or any other property (payablein kind), as the case may be, into which or for which each share of CommonStock is changed or exchanged. In the event the Corporation shall at any timedeclare or pay any dividend on the Common Stock payable in shares of CommonStock, or effect a subdivision, combination or consolidation of the outstandingshares of Common Stock (by reclassification or otherwise than by payment of adividend in shares of Common Stock) into a greater or lesser number of sharesof Common Stock, then in each such case the amount set forth in the preceding sentencewith respect to the exchange or change of shares of Series B Preferred Stockshall be adjusted by multiplying such amount by a fraction, the numerator ofwhich is the number of shares of Common Stock outstanding immediately aftersuch event and the denominator of which is the number of shares of Common Stockthat were outstanding immediately prior to such event. In the event theCorporation shall at any time declare or pay any dividend on the Series BPreferred Stock payable in shares of Series B Preferred Stock, or effect asubdivision, combination or consolidation of the outstanding shares of Series BPreferred Stock (by reclassification or otherwise than by payment of a dividendin shares of Series B Preferred Stock) into a greater or lesser number ofshares of Series B Preferred Stock, then in each such case the amount set forthin the first sentence of this Section 7 with respect to the exchange or changeof shares of Series B Preferred Stock shall be adjusted by multiplying suchamount by a fraction, the numerator of which is the number of shares of SeriesB Preferred Stock that were outstanding immediately prior to such event and thedenominator of which is the number of shares of Series B Preferred Stockoutstanding immediately after such event.

 

         Section 8. NO REDEMPTION. The shares of Series B Preferred Stock shall not be redeemable.

 

         Section 9. RANK. The Series B Preferred Stock shall rank, with respect to the payment ofdividends and the distribution of assets, junior to all series of any otherclass of the Preferred Stock issued either before or after the issuance of theSeries B Preferred Stock, including, without limitation, the Series AConvertible Preferred Stock, unless the terms of any such series shall provideotherwise.

 

         Section 10. AMENDMENT. At such time as any shares ofSeries B Preferred Stock are outstanding, the Certificate of Incorporation, asamended, of the Corporation shall not be amended in any manner which wouldmaterially alter or change the powers, preferences or special rights of theSeries B Preferred Stock so as to affect them adversely without the affirmativevote of the holders of at least two-thirds of the outstanding shares of SeriesB Preferred Stock, voting together as a single class.

 

         Section 11.FRACTIONAL SHARES. Series B Preferred Stock may be issued in fractions of ashare which shall entitle the holder, in proportion to such holder’s fractionalshares, to exercise voting rights, receive dividends, participate indistributions and have the benefit of all other rights of holders of Series BPreferred Stock.

 

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          IN WITNESS WHEREOF, this Certificate of Designations isexecuted on behalf of the Corporation by its Vice President, Finance and ChiefFinancial Officer this 13th day of December, 2000.

 
|   | TRANSKARYOTIC THERAPIES, INC.       |   |
|--------|-------------------------------------|--------|
|   |                                |   |
|   | By: /s/ DANIEL E. GEFFKEN           |   |
|   | Name: Daniel E. Geffken             |   |
|   | Title: Vice President,  Finance and |   |
|   | Chief Financial Officer             |   |

 

A-8

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**CERTIFICATE OF ELIMINATION**

** **

**OF**

** **

**TRANSKARYOTIC THERAPIES, INC.**

** **

**SERIES A CONVERTIBLE PREFERRED STOCK**

 

                Transkaryotic Therapies, Inc., a corporationorganized and existing under the General Corporation Law of the State ofDelaware (hereinafter called the “Corporation”), does hereby certify that at ameeting of the Board of Directors of the Corporation, the following resolutionwas duly adopted setting forth the proposed elimination of the Corporation’sSeries A Convertible Preferred Stock as set forth herein:

 

                RESOLVED:  That no shares of the Corporation’s Series AConvertible Preferred Stock (“Series A Preferred Stock”) are outstanding and noshares of Series A Preferred Stock will be issued subject to the Certificate ofDesignation, Number, Voting Powers, Preferences and Rights filed by theCorporation with the Secretary of State of the State of Delaware on June 9,2000 with respect to such series (the “Series A Certificate of Designation”);and that the proper officers of the Corporation be and hereby are authorizedand directed in the name and on behalf of the Corporation to execute and file aCertificate of Elimination with the Secretary of State of the State of Delawarepursuant to Section 151(g) of the Delaware General Corporation Law settingforth the text of this resolution, upon the filing and effectiveness of whichall matters set forth in the Series A Certificate of Designation shall bedeemed to have been eliminated from the Corporation’s Certificate of Incorporation,as amended, and the 10,000 shares of preferred stock previously designated asSeries A  Preferred Stock shall resumetheir status as undesignated shares of preferred stock available for futureissuance in accordance with the Corporation’s Certificate of Incorporation, asamended.

 

                IN WITNESS WHEREOF, Transkaryotic Therapies, Inc. hascaused this certificate to be signed by its Senior Vice President, Finance andChief Financial Officer on April 7, 2003.

 
| TRANSKARYOTIC  THERAPIES, INC. |
|--------------------------------|
|                           |   |
| By:                            | /s/ David E. Geffken |
|                           | Daniel E. Geffken |
|                           | Senior Vice President,  Finance and |
|                           | Chief Financial  Officer |

 

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CERTIFICATEOF CORRECTION FILED TO CORRECT

ACERTAIN ERROR IN THE 

CERTIFICATEOF ELIMINATION

OFTRANSKARYOTIC THERAPIES, INC.

FILEDIN THE OFFICE OF THE SECRETARY OF STATE

OFDELAWARE ON APRIL 7, 2003

 

      Transkaryotic Therapies, Inc., acorporation organized and existing under the General Corporation Law of theState of Delaware, does hereby certify as follows:

 

                1.  The name of the corporation is Transkaryotic Therapies, Inc.

 

                2.  A Certificate of Elimination of Transkaryotic Therapies, Inc.Series A Convertible Preferred Stock was filed with the Secretary of State ofDelaware on April 7, 2003, and said Certificate requires correction aspermitted by Section 103 of the General Corporation Law of the State ofDelaware.

 

                3.  The inaccuracy or defect of said Certificate to be corrected isas follows: The conformed signature incorrectly states the name of the signatoryas David E. Geffken.

 

                4.  The execution, sealing or acknowledgment of the Certificate iscorrected as follows:  The correct nameof the signatory is Daniel E. Geffken.

 

                IN WITNESS WHEREOF,Transkaryotic Therapies, Inc. has caused this Certificate of Correction to besigned by Daniel E. Geffken, its Senior Vice President, Finance and ChiefFinancial Officer, this 9th day of April, 2003.

 
| Transkaryotic  Therapies, Inc. |
|--------------------------------|
|                           |
| By: /s/ Philip T.  Chase       |
| Philip T. Chase                |   |
| Secretary                      |   |

 

 

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