CERTIFICATE OF DESIGNATIONS of SERIES a JUNIOR PARTICIPATING PREFERRED STOCK of APACHE MEDICAL SYSTEMS, INC. (Pursuant to Section 151 of the Delaware General Corporation Law)

 

Exhibit 4.21
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
APACHE MEDICAL SYSTEMS, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
 
     APACHE Medical Systems, Inc., a corporation organized and existing under the GeneralCorporation Law of the State of Delaware (hereinafter called the “Corporation”), hereby certifiesthat the following resolution was adopted by the Board of Directors of the Corporation as requiredby Section 151 of the General Corporation Law on May 29, 1997:
     RESOLVED, that pursuant to the authority granted to and vested inthe Board of Directors of this Corporation (hereinafter called the “Boardof Directors” or the “Board”) in accordance with the provisions of theAmended and Restated Certificate of Incorporation, the Board of Directorshereby creates a series of Preferred Stock, par value $0.01 per share(the “Preferred Stock”), of the Corporation and hereby states thedesignation and number of shares, and fixes the relative rights,preferences, and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall bedesignated as “Series A Junior Participating PreferredStock” (the “Series APreferred Stock”) and the number of shares constituting the Series A Preferred Stock shall be30,000. Such number of shares may be increased or decreased by resolution of the Board ofDirectors; provided, that no decrease shall reduce the number of shares of Series A Preferred Stockto a number less than the number of shares then outstanding plus the number of shares reserved forissuance upon the exercise of outstanding options, rights or warrants or upon the conversion of anyoutstanding securities issued by the Corporation convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
     (A) Subject to the rights of the holders of any shares of any seriesof Preferred Stock (or any similar stock) ranking prior and superior tothe Series A Preferred Stock with respect to dividends, theholders ofshares of Series A Preferred Stock, in preference to the holders ofCommon Stock, par value $0.01 per share (the “Common Stock”), of theCorporation, and of any other junior stock, shall be entitled to receive,when, as and if declared by the Board of Directors out of funds legallyavailable for the purpose, quarterly dividends payable in cash on thefirst day of March, June, September and December in each year (each suchdate being referred to herein as a “Quarterly Dividend Payment Date”),commencing on the first Quarterly Dividend Payment Date after the first

 


 

issuance of a share or fraction of a share of Series A Preferred Stock,in an amount per share (rounded to the nearest cent) equal to the greaterof (a) $1 or (b) subject to the provision for adjustment hereinafter setforth, 1,000 times the aggregate per share amount of all cash dividends,and 1,000 times the aggregate per share amount (payable in kind) of allnon-cash dividends or other distributions, other than a dividend payablein shares of Common Stock or a subdivision of the outstanding shares ofCommon Stock (by reclassification or otherwise), declared on the CommonStock since the immediately preceding Quarterly Dividend Payment Date or,with respect to the first Quarterly Dividend Payment Date, since thefirst issuance of any share or fraction of a share of Series A PreferredStock. In the event the Corporation shall at any time declare or pay anydividend on the Common Stock payable in shares of Common Stock, or effecta subdivision or combination or consolidation of the outstanding sharesof Common Stock (by reclassification or otherwise than by payment ofadividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to whichholders of shares of Series A Preferred Stock were entitled immediatelyprior to such event under clause (b) of the preceding sentence shall beadjusted by multiplying such amount by a fraction, the numerator of whichis the number of shares of Common Stock outstanding immediately aftersuch event and the denominator of which is the number of shares of CommonStock that were outstanding immediately prior to such event.
     (B) The Corporation shall declare a dividend or distribution on theSeries A Preferred Stock as provided in paragraph (A) of this Sectionimmediately after it declares a dividend or distribution on the CommonStock (other than a dividend payable in shares of Common Stock); providedthat, in the event no dividend or distribution shall have been declaredon the Common stock during the period between any Quarterly DividendPayment Date and the next subsequent Quarterly Dividend Payment Date, adividend of $1 per share on the Series A Preferred Stock shallnevertheless be payable on such subsequent Quarterly Dividend PaymentDate.
     (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock from the Quarterly Dividend PaymentDate next preceding the date of issue of such shares, unless the date ofissue of such shares is prior to the record date for the first QuarterlyDividend Payment Date, in which case dividends on such shares shall beginto accrue from the date of issue of such shares, or unless the date ofissue is a Quarterly Dividend Payment Date or is a date after the recorddate for the determination of holders of shares of Series A PreferredStock entitled to receive a quarterly dividend and before such QuarterlyDividend Payment Date, in either of which events such dividends shallbegin to accrue and be cumulative from such Quarterly Dividend PaymentDate. Accrued but unpaid dividends shall not bear interest. Dividendspaid on the shares of Series A Preferred Stock in an amount less than thetotal amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among allsuch shares at the time outstanding. The Board of Directors may fix arecord date for the determination of holders of shares of Series APreferred Stock entitled to receive payment of a dividend or distributiondeclared thereon, which record date shall be not more than 60 days priorto the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred

 


 

Stock shall have the following voting rights:
     (A) Subject to the provision for adjustment hereinafter set forth,each share of Series A Preferred Stock shall entitle the holder thereofto 1,000 votes on all matters submitted to a vote of the stockholders ofthe Corporation. In the event the Corporation shall at any time declareor pay any dividend on the Common Stock payable in shares of CommonStock, or effect a subdivision or combination or consolidation of theoutstanding shares of Common Stock (by reclassification or otherwise thanby payment of a dividend in shares of Common Stock) into a greater orlesser number of shares of Common Stock, then in each such case thenumber of votes per share to which holders of shares of Series APreferred Stock were entitled immediately prior to such event shall beadjusted by multiplying such number by a fraction, the numerator of whichis the number of shares of Common Stock outstanding immediately aftersuch event and the denominator of which is the number of shares of CommonStock that were outstanding immediately prior to such event.
     (B) Except as otherwise provided herein, in any other Certificate ofDesignations creating a series of Preferred Stock or any similar stock,or by law, the holders of shares of Series A Preferred Stock and theholders of shares of Common Stock and any other capital stock of theCorporation having general voting rights shall vote together as one classon all matters submitted to a vote of stockholders of the Corporation.
     (C) Except as set forth herein, or as otherwise provided by law,holders of Series A Preferred Stock shall have no special voting rightsand their consent shall not be required (except to the extent they are entitled to vote withholders of Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
     (A) Whenever quarterly dividends or other dividends or distributionspayable on the Series A Preferred Stock as provided in Section 2 are inarrears, thereafter and until all accrued and unpaid dividends anddistributions, whether or not declared, on shares of Series A PreferredStock outstanding shall have been paid in full, the Corporation shallnot:
     (i) declare or pay dividends, or make any other distributions,on any shares of stock ranking junior (either as to dividends orupon liquidation, dissolution or winding up) to the Series APreferred Stock;
     (ii)declare or pay dividends, or make any otherdistributions, on any shares of stock ranking on a parity (eitheras to dividends or upon liquidation, dissolution or winding up)with the Series A Preferred Stock, except dividends paid ratably onthe Series A Preferred Stock and all such parity stock on whichdividends are payable or in arrears in proportion to the totalamounts to which the holders of all such shares are then entitled;
     (iii) redeem or purchase or otherwise acquire forconsideration shares of any stock ranking junior (either as todividends or upon liquidation, dissolution or winding up) to theSeries A Preferred Stock, provided that the Corporation may at any

 


 

time redeem, purchase or otherwise acquire shares of any suchjunior stock in exchange for shares of any stock of the Corporationranking junior (either as to dividends or upon dissolution,liquidation or winding up) to the Series A Preferred Stock; or
     (iv) redeem or purchase or otherwise acquire for considerationany shares of Series A Preferred Stock, or any shares of stockranking on a parity with the Series A Preferred Stock, except inaccordance with a purchase offer made in writing or by publication(as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, afterconsideration of the respective annual dividend rates and otherrelative rights and preferences of the respective series andclasses, shall determine in good faith will result in fair andequitable treatment among the respective series or classes.
     (B) The Corporation shall not permit any subsidiary of theCorporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph(A) of this Section 4, purchase or otherwise acquire such shares at suchtime and in such manner.
     Section 5. Required Shares. Any shares of Series A Preferred Stockpurchased or otherwise acquired by the Corporation in any mannerwhatsoevershall be retired and canceled promptly after the acquisition thereof. All such shares shall upontheir cancellation become authorized but unissued shares of Preferred Stock and may be reissued aspart of a new series of Preferred Stock subject to the conditions and restrictions on issuance setforth herein, in the Amended and Restated Certificate of Incorporation, or in any other Certificateof Designations creating a series of Preferred Stock or any similar stock or as otherwise requiredby law.
     Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolutionor winding up of the Corporation, no distribution shall be made (1) to the holders of shares ofstock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to theSeries A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stockshall have received $1,000 per share, plus an amount equal to accrued and unpaid dividends anddistributions thereon, whether or not declared, to the date of such payment, provided that theholders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount pershare, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times theaggregate amount to be distributed 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 upon liquidation,dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably onthe Series A Preferred Stock and all such parity stock in proportion to the total amounts to whichthe holders of all such shares are entitled upon such liquidation, dissolution or winding up. Inthe event the Corporation shall at any time declare or pay any dividend on the Common Stock payablein shares of Common Stock, or effect a subdivision or combination or consolidation of theoutstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividendin shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in eachsuch case the aggregate amount to which holders of shares of Series A Preferred Stock were entitledimmediately prior to such event under the proviso in clause (1) of the preceding sentence shall beadjusted by multiplying such amount by a fraction

 


 

the numerator of which is the number of shares of Common stock outstanding immediately after suchevent and the denominator of which is the number of shares of Common Stock that were outstandingimmediately prior to such event.
     Section 7. Consolidation, Merger, etc. In case the Corporation shallenter into any consolidation, merger, combination or other transaction in which the shares ofCommon Stock are exchanged for or changed into other stock or securities, cash and/or any otherproperty, then in any such case each share of Series A Preferred Stock shall at the same time besimilarly exchanged or changed into an amount per share, subject to the provision for adjustmenthereinafter set forth, equal to 1,000 times the aggregate amount of stock, securities, cash and/orany other property (payable in kind), as the case may be, into which or for which each share ofCommon Stock is changed or exchanged. In the event the Corporation shall at any time declare or payany dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision orcombination or consolidation of the outstanding shares of Common Stock (by reclassification orotherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser numberof shares of 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 A Preferred Stock shall be adjusted bymultiplying such amount by a fraction, the numerator of which is the number of shares of CommonStock outstanding immediately after such event and the denominator of which is the number of sharesof Common Stock that were outstanding immediately prior to such event.
     Section 8. No Redemption. The shares of Series A Preferred Stock shallnot be redeemable.
     Section 9. Rank. The Series A Preferred Stock shall rank, with respect tothe payment of dividends and the distribution of assets, junior toall seriesof any other class of the Corporation’s Preferred Stock.
     Section 10. Amendment. The Amended and Restated Certificate of Incorporation of theCorporation shall not be amended in any manner which would materially alter or change the powers,preferences or special rights of the Series A Preferred Stock so as to affect them adverselywithout the affirmative vote of the holders of at least two-thirds of the outstanding shares ofSeries A Preferred Stock, voting together as a single class.
     IN WITNESS WHEREOF, this Certificate of Designations is executed on behalfof the Corporation by its Chief Executive Officer and attested by its Secretary this 23rd day ofMay, 1997.
         
  APACHE MEDICAL SYSTEMS, INC.
 
 
  /s/ Gerald E. Bisbee, Jr., Ph.D.   
  Name:   Gerald E. Bisbee, Jr., Ph.D.   
  Title:   Chairman, Chief Executive Officer &President   
 
     
/s/ Elizabeth A. Draper  
 
   
 
Name: Elizabeth A. Draper  
 
Title: Secretary