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8-K - ADVANCED CELL FORM 8-K - Ocata Therapeutics, Inc. | form8k.htm |
Exhibit 3.1
Delaware
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PAGE 1 | |
The First State |
I, JEFFREY W. BULLOCK,
SECRETARY OF STATE OF
THE STATE OF DELAWARE,
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "ADVANCED CELL TECHNOLOGY, INC.", FILED IN THIS OFFICE ON THE
THIRD DAY OF
NOVEMBER, A.D.
2009,
AT 10:39
O'CLOCK
A.M.
A
FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY
RECORDER OF DEEDS.
3988902
8100
090984995
|
State
of Delaware
Secretary
of State
Division
of Corporations
Delivered
10:39 AM
11/03/2009
FILED 10:39 AM
11/03/2009
SRV 090984995 - 3988902 FILE
ADVANCED
CELL TECHNOLOGY, INC.
CERTIFICATE
OF DESIGNATIONS OF PREFERENCES,
RIGHTS
AND LIMITATIONS
OF
SERIES B
PREFERRED STOCK
The
undersigned, William Caldwell, hereby certifies that:
1. He is the
Chief Executive Officer of Advanced Cell Technology, Inc., a Delaware
corporation (the "Corporation").
2. The
Corporation is authorized to issue 50,000,000 shares of preferred stock, of
which 181 shares of Series A-1 Redeemable Convertible Preferred Stock are issued
or outstanding.
3.The
following resolutions were duly adopted by the Board of Directors:
WHEREAS,
the Certificate of Incorporation of the Corporation provides for a class of its
authorized stock known as preferred stock, comprised of 50,000,000 shares,
$0.001 par value per share (the Preferred Stock"),
issuable from time to time in one or more series;
WHEREAS,
the Board of Directors of the Corporation is authorized to fix the dividend
rights, dividend rate, voting rights, conversion rights, rights and terms of
redemption and liquidation preferences of any wholly unissued series of
Preferred Stock and the number of shares constituting any Series and the
designation thereof, of any of them;
WHEREAS,
pursuant to a Certificate of Designations of Preferences, Rights and Limitations
of Series A-1 Preferred Stock filed with the Delaware Secretary of State on
March 5, 2009, the Board of Directors previously fixed the rights, preferences,
restrictions and other matters related to a series of Preferred Stock consisting
of 500 shares of Series A-1 Convertible Preferred Stock, par value $0.001 per
share; and
WHEREAS,
it is the desire of the Board of Directors of the Corporation, pursuant to its
authority as aforesaid and as set forth in this Certificate of Designations of
Preferences, Rights and Limitations of Series B Preferred Stock, to designate
the rights, preferences, restrictions and other matters relating to the Series B
Preferred Stock, which shall consist of up to 1,000 shares of the Preferred
Stock which the Corporation has the authority to issue, as follows:
NOW,
THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for
the issuance of a series of Preferred Stock for cash or exchange of other
securities, rights or property and does hereby fix and determine the rights,
preferences, restrictions and other matters relating to such series of Preferred
Stock as follows:
TERMS OF
PREFERRED STOCK
1. Designation, Amount and Par
Value. The series of Preferred Stock shall be designated as the
Corporation's Series B Preferred Stock (the "Series B Preferred Stock")
and the number of shares so designated shall be 1,000 (which shall not be
subject to increase without any consent of the holders of the Series B Preferred
Stock (each a "Holder"
and collectively, the "Holders") that may
be required by applicable law. Each share of Series B Preferred Stock shall have
a par value of $0.001 per share.
2. Ranking and
Voting.
a. Ranking. The Series B
Preferred Stock shall, with respect to dividend rights and rights upon
liquidation, winding-up or dissolution, rank: (i) senior to the Corporation's
common stock, par value $0.001 per share ("Common Stock"), and
any other class or series of Preferred Stock of the Corporation, except Series
A-1 Convertible Preferred Stock which shall rank senior in right of liquidation
and pan passu with
respect to dividends (collectively, together with any warrants, rights, calls or
options exercisable for or convertible into such Preferred Stock, the "Junior Securities"); and
(ii) junior to all existing and future indebtedness of the
Corporation.
b. Voting. Except as
required by applicable law or as set forth herein, the holders of shares of
Series B Preferred Stock will have no right to vote on any matters, questions or
proceedings of this Corporation including, without limitation, the election of
directors.
3. Dividends and Other
Distributions. Commencing on the date of the issuance of
any such
shares of Series B Preferred Stock (each respectively an "Issuance Date"),
Holders of Series B Preferred Stock shall be entitled to receive
dividends on each outstanding share of Series B Preferred Stock ("Dividends"), which
shall accrue in shares of Series B Preferred Stock at a rate equal to 10.0% per annum from
the Issuance Date. Accrued Dividends shall be payable upon redemption of the
Series B Preferred Stock in accordance with Section
6.
a. Any
calculation of the amount of such Dividends payable pursuant to the provisions
of this Section 3
shall be made based on a 365-day year and on the number of days actually
elapsed during the applicable calendar quarter, compounded
annually.
b. So long
as any shares of Series B Preferred Stock are outstanding, no dividends or other
distributions will be paid, declared or set apart with respect to any Junior
Securities. The Common Stock shall not be redeemed while the Series B Preferred
Stock is outstanding.
4. Protective Provision.
So long as any shares of Series B Preferred Stock are
outstanding,
the Corporation shall not, without the affirmative approval of the Holders of a
majority of the shares of the Series B Preferred Stock then outstanding (voting
as a class), (a) alter or change adversely the powers, preferences or rights
given to the Series B Preferred Stock or alter or amend this Certificate of
Designations, (b) authorize or create any class of stock ranking as to
distribution of assets upon a liquidation senior to or otherwise pari passu with
the Series B Preferred Stock, (c) amend its certificate or articles of
incorporation or other charter documents in breach of any of the provisions
hereof, (d) increase the authorized number of shares of Series B Preferred
Stock, (e) liquidate, dissolve or wind-up the business and affairs
of
the
Corporation, or effect any Deemed Liquidation Event (as defined below), or (f)
enter into any agreement with respect to the foregoing.
a. A "Deemed Liquidation Event"
shall mean: (i) a merger or consolidation in which the Corporation is a
constituent party or a subsidiary of the Corporation is a constituent party and
the Corporation issues shares of its capital stock pursuant to such merger or
consolidation, except any such merger or consolidation involving the Corporation
or a subsidiary in which the shares of capital stock of the Corporation
outstanding immediately prior to such merger or consolidation continue to
represent, or are converted into or exchanged for shares of capital stock that
represent, immediately following such merger or consolidation, at least a
majority, by voting power, of the capital stock of the surviving or resulting
corporation or if the surviving or resulting corporation is a wholly owned
subsidiary of another corporation immediately following such merger or
consolidation, the parent corporation of such surviving or resulting
corporation; or (ii) the sale, lease, transfer, exclusive license or other
disposition, in a single transaction or series of related transactions, by the
Corporation or any subsidiary of the Corporation of all or substantially all the
assets of the Corporation and its subsidiaries taken as a whole, or the sale or
disposition (whether by merger or otherwise) of one or more subsidiaries of the
Corporation if substantially all of the assets of the Corporation and its
subsidiaries taken as a whole are held by such subsidiary or subsidiaries,
except where such sale, lease, transfer, exclusive license or other disposition
is to a wholly owned subsidiary of the Corporation.
b. The
Corporation shall not have the power to effect a Deemed Liquidation Event
referred to in Section 4(a) unless the agreement or plan of merger or
consolidation for such transaction provides that the consideration payable to
the stockholders of the Corporation shall be allocated among the holders of
capital stock of the Corporation in accordance with Section
5.
5. Liquidation.
a. Upon any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of debts and other
liabilities of the Corporation, before any distribution or payment shall be made
to the holders of any Junior Securities by reason of their ownership thereof,
the Holders of Series B Preferred Stock shall first be entitled to be paid out
of the assets of the Corporation available for distribution to its stockholders
an amount with respect to each share of Series B Preferred Stock equal to $10,000.00 (the "Original Series B Issue
Price"), plus any accrued but unpaid Dividends thereon (collectively, the
"Series B Liquidation
Value"). If, upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the amounts payable with respect
to the shares of Series B Preferred Stock are not paid in full, the holders of
shares of Series B Preferred Stock shall share equally and ratably in any
distribution of assets of the Corporation in proportion to the liquidation
preference and an amount equal to all accumulated and unpaid Dividends, if any,
to which each such holder is entitled
b. After
payment has been made to the Holders of the Series B Preferred Stock of the full
amount of the Series B Liquidation Value, any remaining assets of the
Corporation shall be distributed among the holders of the Corporation's Junior
Securities in accordance with the Corporation's Certificates of Designation and
Certificate of Incorporation.
c. If,
upon any liquidation, dissolution or winding up of the Corporation, the
assets of
the Corporation shall be insufficient to make payment in full to all Holders,
then such assets shall be distributed among the Holders at the time outstanding,
ratably in proportion to the full amounts to which they would otherwise be
respectively entitled.
6. Redemption.
a. Corporation's Redemption
Option. Upon or after the fourth anniversary of the initial Issuance
Date, the Corporation shall have the right, at the Corporation's option, to
redeem all or a portion of the shares of Series B Preferred Stock, at a price
per share (the "Corporation Redemption
Price") equal to 100% of the Series B Liquidation Value.
b. Early Redemption.
Prior to redemption pursuant to Section 6(a) hereof, the Corporation
shall have the right, at the Corporation's option, to redeem all or a portion of
the shares of Series B Preferred Stock, at a price per share equal to: (i) 127%
of the Series B Liquidation Value if redeemed on or after the first anniversary
but prior to the second anniversary of the initial Issuance Date, (ii) 118% of
the Series B Liquidation Value if redeemed on or after the second anniversary
but prior to the third anniversary of the initial Issuance Date, and (iii) 109%
of the Series B Liquidation Value if redeemed on or after the third anniversary
but prior to the fourth anniversary of the initial Issuance Date.
c. Mandatory Redemption.
If the Corporation determines to liquidate, dissolve or wind-up its
business and affairs, or effect any Deemed Liquidation Event, the Corporation
shall redeem the Series B Preferred Stock at the prices set forth in Section
6(b) including the premium for early redemption set forth therein.
d. Mechanics of Redemption.
If the Corporation elects to redeem any of the Holders' Series B
Preferred Stock then outstanding, it shall deliver written notice thereof via
facsimile and overnight courier ("Notice of Redemption at
Option of Corporation") to each Holder, which Notice of Redemption at
Option of Corporation shall indicate (A) the number of shares of Series B
Preferred Stock that the Corporation is electing to redeem and (B) the
Corporation Redemption Price (plus the premium for early redemption pursuant to
Section 6(b) if
applicable).
e. Payment of Redemption Price.
Upon receipt by any Holder of a Notice of
Redemption
at Option of Corporation, such Holder shall promptly submit to the Corporation
such Holder's Series B Preferred Stock certificates. Upon receipt of such
Holder's Series B Preferred Stock certificates, the Corporation shall pay the
Corporation Redemption Price (plus the premium for early redemption pursuant to
Section 6(b) if
applicable), to such Holder, at the Corporation's option either (i) in cash, or
(ii) by offset against any outstanding note payable from Holder to the
Corporation that was issued by Holder in connection with the exercise of
warrants by such Holder.
7. Transferability. The
Series B Preferred Stock may only be sold, transferred,
assigned,
pledged or otherwise disposed of ("Transfer") in
accordance with state and federal securities laws. The Corporation shall keep at its principal office, or at
the offices of the transfer agent, a register of the Series B Preferred
Stock. Upon the surrender of any certificate
representing
Series B Preferred Stock at such place, the Corporation, at the request of the
record Holder of such certificate, shall execute and deliver (at the
Corporation's expense) a new certificate or certificates in exchange therefor
representing in the aggregate the number of shares represented by the
surrendered certificate. Each such new certificate shall be registered in such
name and shall represent such number of shares as is requested by the Holder of
the surrendered certificate and shall be substantially identical in form to the
surrendered certificate.
8. Miscellaneous.
a. Notices. Any and all
notices to the Corporation shall be addressed to the Corporation's President or
Chief Executive Officer at the Corporation's principal place of business on file
with the Secretary of State of the State of Delaware. Any and all notices or
other communications or deliveries to be provided by the Corporation to any
Holder hereunder shall be in writing and delivered personally, by facsimile,
sent by a nationally recognized overnight courier service addressed to each
Holder at the facsimile telephone number or address of such Holder appearing on
the books of the Corporation, or if no such facsimile telephone number or
address appears, at the principal place of business of the Holder. Any notice or
other communication or deliveries hereunder shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile telephone number specified in this
Section 8 prior
to 5:30 p.m. Eastern time, (ii) the date after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this section later than 5:30 p.m. but prior to 11:59 p.m.
Eastern time on such date, (iii) the second business day following the date of
mailing, if sent by nationally recognized overnight courier service, or (iv)
upon actual receipt by the party to whom such notice is required to be
given.
b. Lost or Mutilated Preferred
Stock Certificate. Upon receipt of evidence reasonably satisfactory to
the Corporation (an affidavit of the registered Holder shall be satisfactory) of
the ownership and the loss, theft, destruction or mutilation of any certificate
evidencing shares of Series B Preferred Stock, and in the case of any such loss,
theft or destruction upon receipt of indemnity reasonably satisfactory to the
Corporation (provided that if the Holder is a financial institution or other
institutional investor its own agreement shall be satisfactory) or in the case
of any such mutilation upon surrender of such certificate, the Corporation
shall, at its expense, execute and deliver in lieu of such certificate a new
certificate of like kind representing the number of shares of such class
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.
c. Headings. The
headings contained herein are for convenience only, do not
constitute
a part of this Certificate of Designations and shall not be deemed to limit or
affect any of the provisions hereof.
RESOLVED,
FURTHER, that the chairman, chief executive officer, president or any
vice-president, and the secretary or any assistant secretary, of the Corporation
be and they hereby are authorized and directed to prepare and file a Designation
of Preferences, Rights and Limitations of Series B Preferred Stock in accordance
with the foregoing resolution and the provisions of Delaware law.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate this 2nd day of
November 2009.
By:
/s/ William M. Caldwell IV
|
Name:
William M. Caldwell IV
|
Title:
CEO and
Chairman
|