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PROPOSED FORM OF
CERTIFICATE OF AMENDMENT
SECOND AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION
OF
OSIRIS THERAPEUTICS, INC.
OSIRIS THERAPEUTICS, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware
(the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation, at a meeting
held on July 3, 1997, duly adopted resolutions proposing and declaring
advisable amendments to the Restated Certificate of Incorporation of the
Corporation and directing that such amendments be submitted to the
stockholders of the Corporation for their consideration and approval.
The resolutions setting forth the proposed amendments are as follows:
RESOLVED, that it is advisable and in the best interests of
the Corporation to amend clause (A) of Section 4(b)(i) of each of
Subdivisions A-1 and A-2 of Section 2 of Article FOURTH of the Restated
Certificate of Incorporation of the Corporation (the "Restated Certificate")
to read in its entirety as follows:
(A) the moment immediately prior to the Corporation's consummation of
an underwritten public offering of Common Shares;
FURTHER RESOLVED, that it is advisable and in the best interests of
the Corporation to amend clause (i) of Section 4(b)(i) of Subdivision A-3 of
Section 2 of Article FOURTH of the Restated Certificate to read in its entirety
as follows:
(i) the moment immediately prior to the Corporation's consummation of
an underwritten public offering of Common Stock;
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FURTHER RESOLVED, that it is advisable and in the best interests of
the Corporation to amend Section 4(a) of Subdivision A-1 of Section 2 of Article
FOURTH of the Restated Certificate to read in its entirety as follows:
(a) Optional Conversion. Subject to the terms and conditions of
this Section 4, the holder of any Series A Preferred Shares shall
have the right, at its option at any time and from time to time,
to convert all or any portion of such shares into such number of
fully paid and nonassessable Common Shares as is obtained by
multiplying the number of Series A Preferred Shares to be
converted by $3.00 (after giving effect to the 1-for-4 reverse
stock split of the Series A Preferred Shares effected by the
Corporation on or about November 1, 1994) and dividing the result
by the conversion price of $3.00 (after giving effect to the 1-for-4
reverse stock split of the Common Shares effected by the Corporation
on or about November 1, 1994) per share or, in the event any adjustment
of such conversion price has taken place pursuant to the provisions of
this Section 4, by the conversion price in effect on the date such
Series A Preferred Shares are surrendered for conversion (such
conversion price, or such conversion price as last adjusted, being
referred to herein as the "Conversion Price"); provided, however, that
in the event of the liquidation, dissolution or winding up of the
Corporation, the holders of Series A Preferred Shares shall only be
entitled to convert their shares in accordance with the terms of this
Section 4 at any time prior to the earlier of the tenth day following
the date on which such liquidation, distribution or winding up was
approved by the stockholders of the Corporation and the date which is
three days prior to the distribution of the proceeds from such
liquidation, dissolution or winding up of the Corporation.
FURTHER RESOLVED, that it is advisable and in the best interests of
the Corporation to amend Section 4(a) of Subdivision A-2 of Section 2 of Article
FOURTH of the Restated Certificate to read in its entirety as follows:
(a) Optional Conversion. Subject to the terms and conditions of
this Section 4, the holder of any Series B Preferred Shares shall have
the right, at its option at any
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time and from time to time, to convert all or any portion of such
shares into such number of fully paid and nonassessable Common
Shares as is obtained by multiplying the number of Series B Preferred
Shares to be converted by $3.00 (after giving effect to the 1-for-4
reverse stock split of the Series B Preferred Shares effected by the
Corporation on or about November 1, 1994) and dividing the result by
the conversion price of $3.00 (after giving effect to the 1-for-4
reverse stock split of the Common Shares effected by the
Corporation on or about November 1, 1994) per share or, in the event
any adjustment of such conversion price has taken place pursuant to
the provisions of this Section 4, by the conversion price in effect
on the date such Series B Preferred Shares are surrendered for
conversion (such conversion price, or such conversion price as last
adjusted, being referred to herein as the "Conversion Price");
provided, however, that in the event of the liquidation, dissolution
or winding up of the Corporation, the holders of Series B
Preferred Shares shall only be entitled to convert their shares in
accordance with the terms of this Section 4 at any time prior to the
earlier of the tenth day following the date on which such
liquidation, distribution or winding up was approved by the
stockholders of the Corporation and the date which is three days
prior to the distribution of the proceeds from such liquidation,
dissolution or winding up of the Corporation.
FURTHER RESOLVED, that it is advisable and in the best interests of
the Corporation to amend the last three sentences of Section 4(a) of Subdivision
A-3 of Section 2 of Article FOURTH of the Restated Certificate to read in their
entirety as follows:
The Series C Conversion Price and the Series C1 Conversion Price shall
each be $3.40 (after giving effect to the 1-for-4 reverse stock split
of the Common Stock effected by the Corporation on or about November
1, 1994). The Conversion Value per share of Series C Preferred Stock
and Series C1 Preferred Stock shall be $3.40 per share (after giving
effect to the 1-for-4 reverse stock split of the Series C Preferred
Stock and the Series C1 Preferred Stock effected by the Corporation
on or about November 1, 1994). The Series C Conversion Price and
Series C1 Conversion Price shall be subject to further
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adjustment as set forth below.
FURTHER RESOLVED, that it is advisable and in the best interests of
the Corporation to amend the Restated Certificate so as to delete entirely
Section 6 of Subdivision A-3 of Section 2 of Article FOURTH thereof.
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FURTHER RESOLVED, that it is advisable and in the best interests of
the Corporation to amend the Restated Certificate so as to add the following
paragraph after the second paragraph of Section 2 of Article FOURTH thereof:
Unless otherwise provided in the certificate of
designations relating to a series of Preferred Stock, shares of a
series of Preferred Stock that are convertible into shares of any
other class or series of shares of the Corporation shall, upon their
conversion, be deemed authorized but unissued and undesignated shares
of Preferred Stock.
SECOND: That the stockholders of the Corporation, at a meeting held on
August 8, 1997, duly approved the foregoing amendments.
THIRD: That the foregoing amendments were duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its President and attested by its Secretary this ___
day of August, 1997.
OSIRIS THERAPEUTICS, INC
By:
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Xxxxx X. Xxxxx, President and
Chief Executive Officer
ATTEST:
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Xxxxxxx X. Xxxxxxx, Xx.,
Secretary
