Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Cynosure, Inc. Form S-1 HTML 1.11M
18: COVER ¶ Comment-Response or Cover Letter to the SEC HTML 5K
2: EX-3.1 EX-3.1 Certificate of Incorporation of the 21 58K
Registrant, as Amended
3: EX-3.2 EX-3.2 Form of Restated Certificate of 19 77K
Incorporation of the Registrant
4: EX-3.3 EX-3.3 Bylaws of the Registrant 16 53K
5: EX-3.4 EX-3.4 Form of Amended and Restated Bylaws of the 21 100K
Registrant
6: EX-10.1 EX-10.1 1992 Stock Option Plan 12 43K
15: EX-10.10 EX-10.10 Lease, Dated January 31, 2005 46 244K
7: EX-10.2 EX-10.2 2004 Stock Option Plan, as Amended 11 56K
8: EX-10.3 EX-10.3 2005 Stock Incentive Plan 13 65K
9: EX-10.4 EX-10.4 Employment Agreement, Dated September 2003 11 40K
10: EX-10.5 EX-10.5 Employment Agreement, Dated January 1, 9 38K
2003
11: EX-10.6 EX-10.6 Employment Agreement, Dated September 2003 10 38K
12: EX-10.7 EX-10.7 Exclusive Distribution Agreement 14 46K
13: EX-10.8 EX-10.8 Exclusive Distribution Agreement 16 50K
14: EX-10.9 EX-10.9 Promissory Note, Dated October 1, 2004 3 20K
16: EX-21.1 EX-21.1 Subsidiaries of the Registrant 1 6K
17: EX-23.1 EX-23.1 Consent of Ernst & Young LLP 1 7K
‘EX-3.1’ — EX-3.1 Certificate of Incorporation of the Registrant, as Amended
Exhibit Table of Contents
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
CYNOSURE, INC.
FIRST. The name of the Corporation is: Cynosure, Inc.
SECOND. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted
by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which the Corporation shall
have authority to issue is 50,000 shares of Common Stock, $.01 par value per
share.
The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, irrespective of the provisions of Section 242(b)(2) of the
General Corporation Law of Delaware.
FIFTH. The name and mailing address of the sole incorporator are as
follows:
[Download Table]
NAME MAILING ADDRESS
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Dr. Horace W. Furumoto 14 Woodridge Road
Wellesley, MA 02181
SIXTH. In furtherance of and not in limitation of powers conferred by
statute, it is further provided:
1. Election of directors need not be by written ballot.
2. The Board of Directors is expressly authorized to adopt, amend or
repeal the By-Laws of the Corporation.
SEVENTH. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them
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and/or between this corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this corporation or of any creditor or
stockholder thereof, or on the application of any receiver or receivers
appointed for this corporation under the provisions of section 291 of Title 8 of
the Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this corporation under the provisions of
section 279 of Title 8 of 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 the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
EIGHTH. Except to the extent that the General Corporation Law of Delaware
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty, no director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability. No amendment to or repeal of this provision shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
NINTH. 1. Actions, Suits and Proceedings Other than by or in the Right of
the Corporation. The Corporation shall indemnify each person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan) (all such persons being
referred to hereafter as an "Indemnitee"), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses (including
attorneys'
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fees), judgments, fines and amounts paid in settlement actually and reasonably
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 a manner
he reasonably believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed 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 to believe that his conduct was unlawful. Not-withstanding
anything to the contrary in this Article, except as set forth in Section 6
below, the Corporation shall not indemnify an Indemnitee seeking indemnification
in connection with a proceeding (or part thereof) initiated by the Indemnitee
unless the initiation thereof was approved by the Board of Directors of the
Corporation.
2. Actions or Suits by or in the Right of the Corporation. The Corporation
shall indemnify any Indemnitee who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably 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 a manner he reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses (including attorneys' fees) which the Court of
Chancery of Delaware or such other court shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding the
other provisions of this Article, to the
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extent that an Indemnitee has been successful, on the merits or otherwise, in
defense of any action, suit or proceeding referred to in Sections 1 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 indemnified against all
expenses (including attorneys' fees) actually and reasonably incurred by him or
on his behalf in connection therewith. Without limiting the foregoing, if any
action, suit or proceeding is disposed of, on the merits or otherwise (including
a disposition without prejudice), without (i) the disposition being adverse to
the Indemnitee, (ii) an adjudication that the Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by the Indemnitee, (iv)
an adjudication that the Indemnitee did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and (v) with respect to any criminal proceeding, an adjudication
that the Indemnitee had reasonable cause to believe his conduct was unlawful,
the Indemnitee shall be considered for the purposes hereof to have been wholly
successful with respect thereto.
4. Notification and Defense of Claim. As a condition precedent to his
right. to be indemnified, the Indemnitee must notify the Corporation in writing
as soon as practicable of any action suit, proceeding or investigation involving
him for which indemnity will or could be sought. With respect to any action,
suit, proceeding or investigation of which the Corporation is so notified, the
Corporation will be entitled to participate therein at its own expense and/or to
assume the defense thereof at its own expense, with legal counsel reasonably
acceptable to the Indemnitee. After notice from the Corporation to the
Indemnitee of its election so to assume such defense, the Corporation shall not
be liable to the Indemnitee for any legal or other expenses subsequently
incurred by the Indemnitee in connection with such claim, other than as provided
below in this Section 4. The Indemnitee shall have the right to employ his own
counsel in connection with such claim, but the fees and expenses of such counsel
incurred after notice from the Corporation of its assumption of the defense
thereof shall be at the expense of the Indemnitee unless (i) the employment of
counsel by the Indemnitee has been authorized by the Corporation, (ii) counsel
to the Indemnitee shall have reasonably concluded that there may be a conflict
of interest or position on any significant issue between the Corporation and the
Indemnitee in the conduct of the defense of such action or (iii) the Corporation
shall not in fact have employed counsel to assume the defense of such action, in
each of which cases the fees and expenses of counsel for the Indemnitee shall be
at the expense of the Corporation, except as otherwise expressly provided by
this Article. The Corporation shall not be entitled, without the consent of the
Indemnitee, to assume the defense of any claim brought by or in the right of the
Corporation or as to which counsel for the Indemnitee shall have reasonably made
the conclusion provided for in clause (ii) above.
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5. Advance of Expenses. Subject to the provisions of Section 6 below, in
the event that the Corporation does not assume the defense pursuant to Section 4
of this Article of any action, suit, proceeding or investigation of which the
Corporation receives notice under this Article, any expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or criminal
action, suit, proceeding or investigation or any appeal therefrom shall be paid
by the Corporation in advance of the final disposition of such matter, provided,
however, that the payment of such expenses incurred by an Indemnitee in advance
of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced
in the event that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such undertaking may be accepted without reference to the financial ability of
such person to make such repayment.
6. Procedure for Indemnification. In order to obtain indemnification or
advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article the
Indemnitee shall submit to the Corporation a written request, including in such
request such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what extent
the Indemnitee is entitled to indemnification or advancement of expenses. Any
such indemnification or advancement of expenses shall be made promptly, and in
any event within 60 days after receipt by the Corporation of the written request
of the Indemnitee, unless with respect to requests under Section 1, 2 or 5 the
corporation determines, by clear and convincing evidence, within such 60-day
period that the Indemnitee did not meet the applicable standard of conduct set
forth in Section 1 or 2, as the case may be. Such determination shall be made in
each instance by (a) a majority vote of a quorum of the directors of the
Corporation consisting of persons who are not at that time parties to the
action, suit or proceeding in question ("disinterested directors"), (b) if no
such quorum is obtainable, a majority vote of a committee of two or more
disinterested directors, (c) a majority vote of a quorum of the outstanding
shares of stock of all classes entitled to vote for directors, voting as a
single class, which quorum shall consist of stockholders who are not at that
time parties to the action, suit or proceeding in question, (d) independent
legal counsel (who may be regular legal counsel to the Corporation), or (e) a
court of competent jurisdiction.
7. Remedies. The right to indemnification or advances as granted by this
Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within the 60-day period referred to above in
Section 6. Unless
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otherwise provided by law, the burden of proving that the Indemnitee is not
entitled to indemnification or advancement of expenses under this Article shall
be on the Corporation. Neither the failure of the Corporation to have made a
determination prior to the commencement of such action that indemnification is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Corporation pursuant to
Section 6 that the Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the Indemnitee
has not met the applicable standard of conduct. The indemnitee's expenses
(including attorneys' fees) incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
proceeding shall also be indemnified by the Corporation.
8. Subsequent Amendment. No amendment, termination or repeal of this
Article or of the relevant provisions of the General Corporation Law of Delaware
or any other applicable laws shall affect or diminish in any way the rights of
any Indemnitee to indemnification under the provisions hereof with respect to
any action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
9. Other Rights. The indemnification and advancement of expenses provided
by this Article shall not be deemed exclusive of any other rights to which an
Indemnitee seeking indemnification or advancement of expenses may be entitled
under any law (common or statutory), agreement or vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in any other capacity while holding office for the Corporation,
and shall continue as to an Indemnitee who has ceased to be a director or
officer, and shall inure to the benefit of the estate, heirs, executors and
administrators Of the Indemnitee. Nothing contained in this Article shall be
deemed to prohibit, and the Corporation is specifically authorized to enter
into, agreements with officers and directors providing indemnification rights
and procedures different from those set forth in this Article. In addition, the
Corporation may, to the extent authorized from time to time by its Board of
Directors, grant indemnification rights to other employees or agents of the
Corporation or other persons serving the Corporation and such rights may be
equivalent to, or greater or less than, those set forth in this Article.
10. Partial Indemnification. If an Indemnitee is entitled under any
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including 'attorneys' fees), judgments, fines or
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in
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connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
11. Insurance. The Corporation may purchase and maintain insurance, at its
expense,to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan) against any expense, liability
or loss incurred 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
person against such expense, liability or loss under the General Corporation Law
of Delaware.
12. Merger or Consolidation. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
13. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify 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 fullest extent permitted by any applicable portion of this
Article that shall not have been 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) of the General Corporation Law of Delaware shall have the
respective meanings assigned to such terms in such Section 145(h) and Section
145(i).
15. Subsequent Legislation. If the General Corporation Law of Delaware is
amended after adoption of this Article to expand further the indemnification
permitted to Indemnitees, then the Corporation shall indemnify such persons to
the fullest extent permitted by the General Corporation Law of Delaware, as so
amended.
TENTH. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by
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statute and this Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ELEVENTH. Section 203 of the General Corporation Law of Delaware, as it
may be amended from time to time, shall apply to the Corporation.
EXECUTED at Wayland, MA, on July 5, 1991.
/s/ Horace W. Furumoto
----------------------------
Incorporator
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CYNOSURE, INC.
(Pursuant to Section 242 of the General Corporation Law)
Cynosure, Inc., a corporation organized and existing under and by virtue
Of the General Corporation Law of the State of Delaware (the "Corporation"),
hereby certifies as follows:
FIRST: That the Board of Directors of the Corporation, acting pursuant to
section 242 of the General Corporation Law of the State of Delaware, pursuant to
written action duly taken, duly adopted the following resolutions amending the
Corporation's Certificate of Incorporation and recommended that such amendments
be adopted by the stockholders of the Corporation:
RESOLVED: That Article FOURTH of the Certificate of Incorporation be and
hereby is deleted in its entirety and the following inserted in lieu
thereof:
"FOURTH. The total number of shares of stock which the Corporation
shall have the authority to issue is 5,000,000 shares of Common
Stock, $.01 par value per share."
SECOND: That all of the stockholders of the Corporation have duly
consented to the adoption of the foregoing resolution and the amendment
contained therein, and that the aforesaid amendment was duly adopted in
accordance with the applicable
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provisions of Sections 228 and 242 of the General Corporation Law of the State
of Delaware.
********
IN WITNESS WHEREOF, Cynosure, Inc. has caused this certificate to be
signed by its President and attested by its Secretary this 10 day of February,
1992,
CYNOSURE, INC.
By: /s/ Horace W. Furumoto
-----------------------
President
ATTEST:
/s/ Horace W. Furumoto
----------------------
Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CYNOSURE, INC.
CYNOSURE, 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 as follows:
FIRST. Pursuant to written action of the Board of Directors of the
Corporation, a resolution was duly adopted, pursuant to Sections 141 and 242 of
the General Corporation Law of the State of Delaware, setting forth an amendment
to the certificate of Incorporation of the corporation and declaring said
amendment to be advisable. The stockholders of the Corporation duly Approved
said proposed amendment by written action in accordance with Sections 228 and
242 of the General Corporation Law of the State of Delaware; and written notice
of such consent has been given to all Stockholders who have not consented in
writing to said amendment. The resolution setting forth the amendment is as
follows:
"RESOLVED" That Article FOURTH of the Certificate of Incorporation of the
Corporation be and hereby is deleted and the following Article FOURTH is
inserted in lieu thereof:
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Seven Million(7,000,000) shares of
Common Stock, $.01 par value per share, of which Six Million Six Hundred
Thousand (6,600,000) shares are hereby designated Voting Common Stock and Four
Hundred Thousand (400,000) shares are hereby designated Non-Voting Common Stock.
All shares of Common Stock shall be considered to be voting common Stock unless
the certificate representing such shares specifically states that such shares
are shares of Non-Voting Common Stock.
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The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of common Stock of the Corporation.
A. VOTING COMMON STOCK.
The holders of the Voting Common Stock (the "Common Stock") are entitled
to one vote for each share held at all meetings of stockholders (and written
actions in lieu of meetings). There shall be no cumulative voting.
B. NON-VOTING COMMON STOCK.
1. No Voting Rights. The holders of the Non-Voting Common Stock are not
entitled to vote on any matter submitted for action to the stockholders of the
Company until such time as the Non-Voting Common Stock is converted into Common
Stock pursuant to Section 3 of this Part B. Except for the voting and conversion
rights of the Non-Voting Common Stock the rights and privileges of the holders
of Voting Common stock and Non-Voting Common Stock shall be identical in all
respects.
2. Conversion.
(a) Automatic Conversion. Each outstanding shares of Non-Voting
Stock shall automatically be converted into one share of Voting Common Stock
upon the consummation of an underwritten initial public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
for the offer and sale by the Company of Common Stock to the public at a price
per share equal to not less than two times the then conversion price of the
Corporation's 12% Convertible Subordinated Notes due 1998 resulting in gross
offering proceeds of not less than $5,000,000 (the "Mandatory Conversion Date").
(b) Optional Conversion. The transferee of any shares of Non-Voting
Common Stock whether acquired from the original holder of such shares or other-
wise may, at any time, elect to convert such Non-Voting Common Stock into Voting
Common Stock by surrendering their certificate or certificates for the
Non-Voting Common Stock to the Company. Upon receipt of such stock certificate
or certificates such shares shall be deemed to be converted into shares of
Voting Common Stock. If so required by the Corporation, certificates surrendered
for conversion shall be endorsed or accompanied by written instrument or
instruments of transfer, in form satisfactory to the Corporation, duly executed
by the registered holder or by his, her or its attorney duly authorized in
writing. As soon as practicable thereafter and the surrender of the certificate
or certificates for Non-Voting Common Stock, the Corporation shall cause to be
issued and delivered to such holder, or on his or its written order, a
certificate or certificates for the number of full shares of Voting Common Stock
issuable on such
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conversion in accordance with the provisions hereof and cash as provided in
Section 3(e) in respect of any fraction of a share of Common Stock otherwise
issuable upon such conversion.
(c) Automatic Conversion Procedures. All holders of record of shares
of Non-Voting Stock will be given written notice of the Mandatory Conversion
Date and the place designated for mandatory conversion of all such shares of
Non-Voting Common Stock pursuant to this Section 2. such notice shall be sent by
first class, registered or overnight mail, postage prepaid, to each record
holder of Non-Voting Common Stock at such holder's address last shown on the
records of the transfer agent for the Non-Voting Common Stock (or the records of
the Corporation, if it serves as its own transfer agent). Upon receipt of such
notice, each holder of shares of Non-Voting Common Stock shall surrender his,
her or its certificate or certificates for all such shares to the Corporation at
the place designated in such notice, and shall thereafter receive certificates
for the number of shares of Common Stock to which such holder is entitled
pursuant to this Section 2. On the Mandatory Conversion Date, all rights with
respect to the Non-Voting Common Stock so converted, including the rights, if
any, to receive notices and vote, will terminate, except only the rights of the
holders thereof, upon surrender of their certificate or certificates therefor,
to receive certificate for the number of shares of Common Stock into which such
Non-Voting Common Stock has been converted, and payment of any declared or
accrued but unpaid dividends thereon (all of which shall be deemed to be
declared by the Board of Directors on the Mandatory Conversion Date). If so
required by the Corporation, certificates surrendered for conversion shall be
endorsed or accompanied by written instrument or instruments of transfer, in
form satisfactory to the corporation, duly executed by the registered holder or
by his, her or its attorney duly authorized in writing. As soon as practicable
after the Mandatory Conversion Date and the surrender of the certificate or
certificates for Non-Voting Common Stock, the Corporation shall cause to be
issued and delivered to each holder, or on his or its written order, a
certificate or certificates for the number of full shares of Voting Common Stock
issuable on such conversion in accordance with the provisions hereof and cash as
provided in Section 3(e) in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion.
(d) Retirement of Non-Voting Common Stock. All certificates
evidencing shares of Non-Voting Common Stock which are required to be
surrendered for conversion in accordance with the provisions hereof shall, from
and after the Mandatory Conversion Date, be deemed to have been retired and
cancelled and the shares of Non-Voting Common Stock represented thereby
converted into Common Stock for all purposes, notwithstanding the failure of the
holder or holders thereof to surrender such certificates on or prior to such
date. The Board of Directors of the Corporation may thereafter take such
appropriate action
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(without the need for stockholder action) as may be necessary to reduce or
eliminate the authorized Non-Voting Common Stock accordingly.
(e) Fractional Shares. No fractional shares of Common Stock shall be
issued upon conversion of the Non-Voting Common Stock. In lieu of any fractional
shares to which the holder would otherwise be entitled, the Corporation shall
pay cash equal to such fraction multiplied by the then fair market value per
share of Common Stock (determined by the Board of Directors in good faith).
(f) Reservation of Common Stock. The Corporation shall at all times
when the Non-Voting Common Stock shall be outstanding, reserve and keep
available out of its authorized but unissued stock, for the purpose of effecting
the conversion of the Non-Voting Common Stock, such number of its duly
authorized shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding Non-Voting Common Stock.
(g) Dividends and Distributions. in the event the Corporation at any
time, or from time to time after the Original Issue Data shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional shares of Common
Stock or other securities of the Corporation, then and in each such event
provision shall be made so that the holders of Non-Voting Common Stock shall
receive upon conversion thereof in addition to the number of shares of Common
Stock receivable thereupon, the amount of securities of the Corporation that
they would have received had the Non-Voting Common Stock been converted into
Common Stock on the date of such event and had thereafter, during the period
from the date of such event to and including the conversion date, retained such
securities receivable by them as aforesaid during such period giving application
to all adjustments called for during such period under this paragraph with
respect to the rights of the holders of the Non-Voting Common Stock.
(h) Adjustment for Reclassification, Exchange, or Substitution. If
the Common Stock issuable upon the conversion of the Non-Voting Common Stock
shall be changed into the same or a different number of shares of any class or
classes of stock, whether by capital reorganization, reclassification, or
otherwise (other than a subdivision or combination of shares or stock dividend
provided for above, or a reorganization merger, consolidation, or sale of
assets provided for below), then and in each such event the holder of each such
share of Non-Voting Common Stock shall have the right thereafter to convert such
share into the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification or other change,
by holders of the number of shares of Common Stock into which such shares of
Non-Voting Common Stock might have been converted immediately prior to such
reorganization,
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reclassification, or change, all subject to further adjustment as provided
herein.
(i) Adjustment for Merger or Reorganization, etc. In case of any
consolidation or merger of the Corporation with or into another corporation or
the sale of all or substantially all of the assets of the Corporation to another
corporation, each share of Non-Voting Common Stock shall thereafter be
convertible into the kind and amount of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock of the
Corporation deliverable upon conversion of such Non-Voting Common Stock would
have been entitled upon such consolidation, merger or sale; and in such case,
appropriate adjustment (as determined in good faith by the Board of Directors)
shall be made in the application of the provisions set forth in this Section 2
with respect to the rights and interest thereafter of the holders of the
Non-Voting Common Stock, to the end that the provisions set forth in this
Section 2 shall thereafter be applicable, as nearly as reasonably nay be, in
relation to any shares of stock or other property thereafter deliverable upon
the conversion of the Non-Voting Common Stock.
C. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, the holders of shares of Common
Stock and Non-Voting Common Stock then outstanding shall be entitled to be paid
on a pari passu basis, out of the assets of the Corporation available for
distribution to its stockholders, before any payment shall be made to the
holders of any other class or series of stock ranking on liquidation junior To
the Common Stock and Non-Voting Common Stock by reason of their ownership
thereof.
(b) If upon any such liquidation, dissolution or winding-up of the
corporation the remaining assets and funds legally available for distribution to
its stockholders shall be insufficient to permit the payment to all holders of
shares of Common Stock and Non-Voting Common stock the full aforesaid amount,
then the entire assets and funds of the Corporation legally available for
distribution shall be distributed ratably among the holders of the Common Stock
and Non-Voting Common Stock in such a manner that the amount to be distributed
to each holder of the Common Stock shall equal the amount obtained by
multiplying the entire assets and funds of the Corporation legally available for
distribution by a fraction, the numerator of which shall be the number of shares
of Common Stock held by the holder and the denominator of which shall be the
total number of shares of Common Stock then outstanding.
(c) The merger or consolidation of the Corporation into or with another
corporation or the sale of all or substantially all the assets of the
Corporation shall be deemed to be a liquidation,
-15-
dissolution or winding up of the Corporation for purposes of this section 2,
unless, in either such case, the holders of voting securities of the Corporation
immediately prior to such transaction shall, immediately thereafter, hold is a
group the right to cast at least a majority of the votes of all holders of
voting securities of the resulting, surviving or acquiring corporation or entity
on any matters submitted to stockholders generally. The amount deemed
distributed to the holders of Non-Voting Common Stock upon any such merger or
consolidation shall be the cash or the value of the property, rights or
securities distributed to such holders by the acquiring person, firm or other
entity. The value of such property, rights or other securities shall be
determined in good faith by the Board of Directors of the Corporation.
D. DIVIDENDS.
Dividends may be declared and paid on the Common Stock from funds
lawfully available therefor as and when determined by the Board of Directors.
SECOND. This Certificate of Amendment of Certificate of Incorporation was
duly adopted by written consent of the shareholders of the Corporation in
accordance with Sections 228 and 242 of the General Corporation Law of the State
of Delaware, written notice of the amendment set forth in the Certificate of
Amendment of Certificate of incorporation has been sent to non-consenting
shareholders in accordance with Section 228 of the General Corporation Law of
the State of Delaware.
***********
-16-
IN WITNESS WHEREOF, the corporation has caused its corporate seal to be
affixed hereto and this certificate of Amendment to be signed by its Vice
President and attested to by its secretary this 1st day of April, 1993.
CYNOSURE, INC.
By /s/ Harey Ceceon
ATTEST: ---------------------------------
Harey Ceceon, Vice President
/s/ Emmanuel Crespo
-----------------------------
Emmanuel Crespo, Secretary
-17-
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CYNOSURE, INC.
CYNOSURE, 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 as follows:
FIRST: A resolution was duly adopted by the Board of Directors of the
Corporation, pursuant to Sections 141 and 242 of the General Corporation Law of
the State of Delaware, setting forth an amendment to the Certificate of
Incorporation of the Corporation and declaring said amendment to be advisable.
The stockholders of the Corporation duly approved said proposed amendment by
written action in accordance with Sections 228 and 242 of the General
Corporation Law of the State of Delaware; and written notice of such consent has
been given to all stockholders who have not consented in writing to said
amendment. The resolution setting forth the amendment is as follows:
"RESOLVED: That the first paragraph of Article FOURTH of the Certificate
of Incorporation of the Corporation be and hereby is deleted and the following
first paragraph of Article FOURTH is inserted in lieu thereof:
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Fifteen Million (15,000,000) shares
of Common Stock $.01 par value per share, of which Fourteen Million Six Hundred
Thousand (14,600,000) shares are hereby designated Voting Common Stock and Four
Hundred Thousand (400,000) shares are hereby designated Non-Voting Common Stock.
All shares of Common Stock shall be considered to be Voting Common Stock unless
the certificate representing such shares specifically states that such shares
are shares of Non-Voting Common Stock."
-18-
SECOND: This Certificate of Amendment of Certificate of Incorporation was
duly adopted by written consent of the stockholders of the Corporation in
accordance with Sections 228 and 242 of the General Corporation Law of the State
of Delaware. Written notice of the amendment set forth in the Certificate of
Amendment of Certificate of Incorporation has been sent to non-consenting
stockholder in accordance with Section 228 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 to by its Secretary this
6th day of January, 1997.
CYNOSURE, INC.
By /s/ Horace Furumoto
-------------------------
Horace Furumoto,
President
ATTEST:
/s/ Emmanuel Crespo
---------------------------
Emmanuel Crespo, Secretary
-19-
CERTIFICATE FOR RENEWAL AND REVIVAL OF
CERTIFICATE OF INCORPORATION
Cynosure, Inc., a corporation organized under the laws of Delaware, the
Certificate of Incorporation of which was filed in the office of the Secretary
of State on the 10th day of July, 1991 and thereafter voided for non-payment of
taxes, now desiring to procure a revival of its Certificate of Incorporation,
hereby certifies as follows:
1. The name borne by the corporation at the time its Certificate of
Incorporation became void is Cynosure, Inc.
2. Its registered office in the State of Delaware is located at
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle and the name of its registered agent at such address is The Corporation
Trust Company.
3. The date when revival of the Certificate of Incorporation of this
corporation is to commence is the 29th day of February, 2004, same being prior
to the date the Certificate of Incorporation became void. Revival of the
Certificate of Incorporation is to be perpetual.
4. This corporation was duly organized under the laws of Delaware and
carried on the business authorized by its Certificate of Incorporation until the
1st day of March, 2004, at which time its Certificate of Incorporation became
inoperative and void for non-payment of taxes and this Certificate for Renewal
and Revival is filed by authority of the duly elected directors of the
corporation with the laws of Delaware.
-20-
IN WITNESS WHEREOF, said Cynosure, Inc. in compliance with Section 312 of
Title 8 of the Delaware Code has caused this Certificate to be signed by Michael
Davin, its last and acting President, this 18th day of May, 2004.
CYNOSURE, INC.
By /s/ Michael R. Davin
-------------------------
Name: Michael R. Davin
Title: President & CEO
-21-
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