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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
BIOMEDICINES, INC.
PURSUANT TO THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
BioMedicines, Inc. (the "Corporation"), a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as follows:
1. The present name of the Corporation is BioMedicines, Inc.
2. The name under which the Corporation was incorporated was "PhaseGain
Clinical Research, Inc.", and its original Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on June 28, 1995.
3. The Certificate of Incorporation of the Corporation is hereby
amended by striking out Article IV and Article VI thereof and substituting in
lieu thereof a new Article IV and a new Article VI which is set forth in the
Amended and Restated Certificate of Incorporation hereinafter provided for.
4. The provisions of the Certificate of Incorporation of the
Corporation as heretofore amended, and as herein amended, are hereby restated
and integrated into the single instrument which is hereinafter set forth, and
which is entitled Amended and Restated Certificate of Incorporation of
BioMedicines, Inc., without any further amendments other than the amendments
herein certified and without any discrepancy between the provisions of the
Certificate of Incorporation as herein amended and the provisions of the said
single instrument hereinafter set forth.
5. The amendment and the restatement of the Certificate of
Incorporation set forth herein has been duly authorized and adopted by the Board
of Directors of the Corporation and duly approved and adopted by the
stockholders of the Corporation in accordance with the provisions of Sections
228, 242 and 245 of the General Corporation Law of the State of Delaware.
6. The text of the Corporation's Certificate of Incorporation is hereby
amended and restated to read as set forth in full as follows:
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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
BIOMEDICINES, INC.
ARTICLE I.
The name of this corporation is BioMedicines, Inc.
ARTICLE II.
The address of the registered office of the corporation in the State of
Delaware is 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.
ARTICLE III.
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the Delaware General Corporation Law.
ARTICLE IV.
(A) CLASSES OF STOCK. This corporation is authorized to twenty eight
million two hundred three thousand four hundred ninety four (28,203,494) shares
of its capital stock, which shall be divided into two (2) classes known as
"Common Stock" and "Preferred Stock", respectively. The total number of shares
of Common Stock which this corporation is authorized to issue is sixteen million
(16,000,000), par value $.001 per share. The total number of shares of Preferred
Stock which this corporation is authorized to issue is twelve million two
hundred three thousand four hundred ninety four (12,203,494), par value $.001
per share.
(B) RIGHTS, PREFERENCES AND RESTRICTIONS OF PREFERRED STOCK. The Preferred
Stock authorized by this Amended and Restated Certificate of Incorporation may
be issued from time to time in one or more series. Two Million (2,000,000) of
the authorized shares of Preferred Stock are hereby designated Series A
Preferred Stock (the "Series A Preferred"). Five million three hundred sixty
eight thousand eight hundred eighty eight (5,368,888) of the authorized shares
of Preferred Stock are hereby designated Series B Preferred Stock (the "Series B
Preferred"). Four million eight hundred thirty four thousand six hundred six
(4,834,606) of the authorized shares of Preferred Stock are hereby designated
the Series C Preferred (the "Series C Preferred"). The Series A Preferred, the
Series B Preferred and the Series C Preferred are hereinafter collectively
referred to as the "Series Preferred Stock." The rights, preferences, privileges
and restrictions granted to and imposed on the Series Preferred Stock are as set
forth below in this Article IV(B).
1. DIVIDEND PROVISIONS. Subject to the rights of series of Preferred
Stock which may from time to time come into existence, the holders of shares of
Series Preferred Stock
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shall be entitled to receive dividends, when, as and if declared, out of any
assets legally available therefor, prior and in preference to any declaration or
payment of any dividend (payable other than in Common Stock or other securities
and rights convertible into or entitling the holder thereof to receive, directly
or indirectly, additional shares of Common Stock of this corporation) on the
Common Stock of this corporation, at the rate of $0.08 per share of Series A
Preferred and $0.20 per share of Series B Preferred and $0.71 per share of
Series C Preferred per annum. Such dividends shall not be cumulative. In the
event dividends are paid on any share of Common Stock, an additional dividend
shall be paid with respect to the outstanding shares of Series Preferred Stock
in an amount equal per share (on an as if converted to Common Stock basis) to
the amount paid or set aside for each share of Common Stock.
2. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of
this corporation, either voluntary or involuntary, subject to the rights of
series of Preferred Stock that may from time to time come into existence, the
holders of Series Preferred Stock shall be entitled to receive, prior and in
preference to any distribution of any of the assets of this corporation to the
holders of Common Stock by reason of their ownership thereof, an amount equal to
$1.00 for each outstanding share of Series A Preferred (the "Series A Original
Issue Price") $2.25 for each outstanding share of Series B Preferred (the
"Series B Original Issue Price") and $7.86 for each outstanding share of Series
C Preferred (the "Series C Original Issue Price") (in each case as adjusted for
any stock dividends, combinations, splits, recapitalizations and the like with
respect to such shares) plus declared but unpaid dividends. If upon the
occurrence of such event, the assets and funds thus distributed among the
holders of the Series Preferred Stock shall be insufficient to permit the
payment to such holders of the full aforesaid preferential amounts, then,
subject to the rights of series of Preferred Stock that may from time to time
come into existence, the entire assets and funds of this corporation legally
available for distribution shall be distributed ratably among the holders of the
Series Preferred Stock in proportion to their aggregate liquidation preference
amounts.
(b) Upon the completion of the distribution required by subparagraph
(a) of this Section 2, if assets remain in this corporation, the holders of the
Common Stock of this corporation shall receive all of the remaining assets of
this corporation pro rata based on the number of shares of Common Stock held by
each.
(c) (i) For purposes of this Section 2, a liquidation, dissolution
or winding up of this corporation shall be deemed to be occasioned by, or to
include, (a) any consolidation or merger of this corporation with or into any
other corporation, person or other entity, or any other corporate reorganization
in which the shareholders of this corporation immediately prior to such
consolidation, merger or reorganization own less than 50% of this corporation's
voting power immediately after such consolidation, merger or reorganization, or
any transaction or series of related transactions in which in excess of fifty
percent (50%) of this corporation's voting power is transferred; or (b) a sale,
lease or other disposition of all or substantially all of the assets of this
corporation; unless this corporation's shareholders of record as constituted
immediately prior to such acquisition or sale will, immediately after such
acquisition or sale (by virtue of securities issued as consideration for this
corporation's
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acquisition or sale or otherwise), hold at least 50% of the voting power of the
surviving or acquiring entity.
(ii) This corporation shall give each holder of record of Series
Preferred Stock written notice of such impending transaction not later than
twenty (20) days prior to the shareholders' meeting called to approve such
transaction, or twenty (20) days prior to the closing of such transaction,
whichever is earlier, and shall also notify such holders in writing of the final
approval of such transaction. The first of such notices shall describe the
material terms and conditions of the impending transaction and the provisions of
this Section 2, and this corporation shall thereafter give such holders prompt
notice of any material changes. The transaction shall in no event take place
sooner than twenty (20) days after this corporation has given the first notice
provided for herein or sooner than ten (10) days after this corporation has
given notice of any material changes provided for herein; PROVIDED, HOWEVER,
that such periods may be shortened upon the written consent of the holders of
Preferred Stock that are entitled to such notice rights or similar notice rights
and that represent at least a majority of the voting power of all then
outstanding shares of such Preferred Stock.
(d) In any of the events specified in Section 2(c), if the
consideration received by the Corporation is other than cash, its value will be
deemed its fair market value. Any securities shall be valued as follows:
(i) Securities not subject to investment letter or other similar
restrictions on free marketability:
(A) If traded on a securities exchange or the Nasdaq
National Market, the value shall be deemed to be the average of the closing
prices of the securities on such exchange over the thirty-day period ending
three (3) days prior to the closing;
(B) If actively traded over-the-counter, the value shall be
deemed to be the average of the closing bid or sale prices (whichever is
applicable) over the thirty-day period ending three (3) days prior to the
closing; and
(C) If there is no active public market, the value shall be
the fair market value thereof, as determined in good faith by the Board of
Directors irrespective of any accounting treatment; PROVIDED, HOWEVER, in the
event that such determination is not unanimous and the holders of the
outstanding shares of Series Preferred Stock (or the outstanding shares of
Common Stock into which such shares of Series Preferred Stock have been
previously converted) have elected a majority of the directors of the Board of
Directors as composed at the time of such determination, the Board of Directors
shall be required to obtain from an independent firm an opinion opining as to
the fairness of such determination.
(ii) The method of valuation of securities subject to investment
letter or other restrictions on free marketability (other than restrictions
arising solely by virtue of a stockholder's status as an affiliate or former
affiliate) shall be to make an appropriate discount from the market value
determined as above in (i) (A), (B) or (C) to reflect the approximate fair
market value thereof, as determined in good faith by the Board of Directors
irrespective of any accounting treatment; provided, however, in the event that
if the determination is not unanimous
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and the holders of the outstanding shares of Series Preferred Stock (or the
outstanding shares of Common Stock into which such shares of Series Preferred
Stock have been previously converted) have elected a majority of the directors
of the Board of Directors as composed at the time of such determination, the
Board of Directors shall be required to obtain from an independent firm an
opinion opining as to the fairness of such determination.
(iii) In the event a transaction referenced in Section 2(c) is
not treated in accordance with such section, the Corporation shall forthwith
either:
(A) cause such closing to be postponed until such time as
the requirements of this Section 2 have been complied with; or
(B) cancel such transaction, in which event the rights,
preferences and privileges of the holders of the Series Preferred Stock shall
revert to and be the same as such rights, preferences and privileges existing
immediately prior to the date of the first notice referred to in Section
2(c)(ii) hereof.
3. CONVERSION. The holders of the Series Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) RIGHT TO CONVERT. Each share of Series Preferred Stock shall be
convertible, at the option of the holder thereof, at any time after the date of
issuance of such share at the office of this corporation or any transfer agent
for such stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing the applicable Original Issue Price by
the Conversion Price applicable to such share, determined as hereafter provided,
in effect on the date the certificate is surrendered for conversion. The initial
Conversion Price per share for each series of Preferred Stock shall be the
Original Issue Price for that series; PROVIDED, HOWEVER, that the Conversion
Price for each series of Preferred Stock shall be subject to adjustment as set
forth in Section 3(d).
(b) AUTOMATIC CONVERSION. Each share of Series A Preferred and
Series B Preferred shall automatically be converted into shares of Common Stock
at the then applicable Conversion Price, (i) upon the date when a majority of
the stockholders of the affected series shall so elect; and (ii) at the time in
effect immediately upon the earlier of the closing of this corporation's sale of
its Common Stock in a firm commitment underwritten public offering pursuant to a
registration statement under the Securities Act of 1933, as amended, the public
offering price of which is not less than Five Dollars ($5.00) per share
(adjusted to reflect subsequent stock dividends, stock splits or
recapitalization) with aggregate gross proceeds to this corporation of not less
than Ten Million Dollars ($10,000,000), after deduction of underwriting
commissions and underwriting expenses. Each share of Series C Preferred shall
automatically be converted into shares of Common Stock at the then applicable
Conversion Price at the time in effect immediately upon the earlier of (1) the
vote or written consent of the holders of a majority of the outstanding shares
of Series C Preferred, or (2) the closing of this corporation's sale of its
Common Stock in a firm commitment underwritten public offering pursuant to a
registration statement under the Securities Act of 1933, as amended, the public
offering price of which is not less than eleven dollars and fifty cents ($11.50)
per share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalization), with aggregate gross proceeds to this corporation of
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not less than twenty million dollars ($20,000,000), before deduction of
underwriting commissions and underwriting expenses.
(c) MECHANICS OF CONVERSION. Before any holder of Series Preferred
Stock shall be entitled to convert the same into shares of Common Stock, he
shall surrender the certificate or certificates therefor, duly endorsed, at the
office of the corporation or of any transfer agent for the Series Preferred
Stock, and shall give written notice by mail, postage prepaid, to the
corporation at its principal corporate office, of the election to convert the
same and shall state therein the name or names in which the certificate or
certificates for shares of Common Stock are to be issued; PROVIDED, HOWEVER,
that in the event of an automatic conversion in connection with an underwritten
offering of securities registered pursuant to the Securities Act of 1933, as
amended, the outstanding shares of Series Preferred Stock shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to the
corporation or its transfer agent; and provided further that the corporation
shall not be obligated to issue certificates evidencing the shares of Common
Stock issuable upon conversion unless the certificates evidencing such shares of
Series Preferred Stock are either delivered to the corporation or its transfer
agent as provided above, or the holder notifies the corporation or its transfer
agent that such certificates have been lost, stolen or destroyed and executes an
agreement satisfactory to the corporation to indemnify the corporation from any
loss incurred by it in connection with such certificates. The corporation shall,
as soon as practicable thereafter, issue and deliver at such office to such
holder of Series Preferred Stock, or to the nominee or nominees of such holder,
a certificate or certificates for the number of shares of Common Stock to which
such holder shall be entitled as aforesaid. Such conversion shall be deemed to
have been made immediately prior to the close of business on the date of such
surrender of the shares of Preferred Stock to be converted, and the person or
persons entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders of
such shares of Common Stock as of such date. If the conversion is in connection
with an underwritten offer of securities registered pursuant to the Securities
Act of 1933, as amended, the conversion will, unless otherwise designated by the
holder tendering Series Preferred Stock for conversion, be conditioned upon the
closing of the sale of securities pursuant to such offering, and the person(s)
entitled to receive the Common Stock issuable upon such conversion of such
Series Preferred Stock shall not be deemed to have converted such Series
Preferred Stock until immediately prior to the closing of such sale of
securities.
(d) CONVERSION PRICE ADJUSTMENTS OF PREFERRED STOCK FOR CERTAIN
DILUTIVE ISSUANCES, SPLITS AND COMBINATIONS. The Conversion Price of the Series
Preferred Stock shall be subject to adjustment from time to time as follows:
(i) If this corporation shall issue, after the date upon which
any shares of Series Preferred Stock were first issued (the "Purchase Date"),
any Additional Stock (as defined in Section 3(d)(ii) below) without
consideration or for a consideration per share less than the Conversion Price
for a given series of Preferred Stock in effect immediately prior to the
issuance of such Additional Stock, the applicable Conversion Price for such
series of Preferred Stock in effect immediately prior to each such issuance
shall forthwith (except as otherwise provided in this clause (i)) be adjusted to
a price determined by multiplying such Conversion Price of such series of
Preferred Stock by a fraction, the numerator of which shall be the number
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of shares of Common Stock deemed outstanding immediately prior to such issuance
plus the number of shares of Common Stock that the aggregate consideration
received by this corporation for such issuance would purchase at such Conversion
Price; and the denominator of which shall be the number of shares of Common
Stock deemed outstanding immediately prior to such issuance plus the number of
shares of such Additional Stock. For purposes of the preceding sentence, the
number of shares of Common Stock deemed outstanding as of a given date shall be
the sum of (A) the number of shares of Common Stock actually outstanding, (B)
the number of shares of Common Stock into which all outstanding securities
convertible into Common Stock, either directly or through a series of
conversions, could be converted if fully converted on the day immediately
preceding the given date, and (C) the number of shares of Common Stock which
could be obtained through the exercise of all other rights and options
outstanding on the day immediately preceding the given date.
However, the foregoing calculation shall not take into account shares
deemed issued pursuant to Section 3(d)(i)(D) on account of options or other
rights to purchase securities for cash (or the actual or deemed consideration
therefor), except to the extent the consideration to be paid upon such exercise,
conversion or exchange per share of underlying Common Stock is less than or
equal to the per share consideration for the Additional Stock which has given
rise to the Conversion Price adjustment being calculated.
(A) No adjustment of the Conversion Price for the Series
Preferred Stock shall be made in an amount less than One Cent ($.01) per share,
provided that any adjustments which are not required to be made by reason of
this sentence shall be carried forward and shall be either taken into account in
any subsequent adjustment made prior to three (3) years from the date of the
event giving rise to the adjustment being carried forward, or shall be made at
the end of three (3) years from the date of the event giving rise to the
adjustment being carried forward. Except to the limited extent provided for in
subsections (D)(3) and (D)(4), no adjustment of such Conversion Price pursuant
to this Section 3(d)(i) shall have the effect of increasing the Conversion Price
above the Conversion Price in effect immediately prior to such adjustment.
(B) In the case of the issuance of Common Stock for cash,
the consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions or other expenses allowed, paid
or incurred by this corporation for any underwriting or otherwise in connection
with the issuance and sale thereof.
(C) In the case of the issuance of the Common Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as determined in good faith by
the Board of Directors irrespective of any accounting treatment; PROVIDED,
HOWEVER, in the event that the holders of the outstanding shares of Series
Preferred Stock (or the outstanding shares of Common Stock into which such
shares of Series Preferred Stock have been previously converted) have elected a
majority of the directors of the Board of Directors as composed at the time of
such determination, the determination by the Board of Directors shall be
required to obtain from an independent firm an opinion opining as to the
fairness of such determination.
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(D) In the case of the issuance (whether before, on or
after the applicable Purchase Date) of options to purchase or rights to
subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock or options to purchase or rights to subscribe for
such convertible or exchangeable securities, the following provisions shall
apply for all purposes of this Section 3(d)(i) and Section 3(d)(ii):
(1) The aggregate maximum number of shares of Common
Stock deliverable upon exercise (assuming the satisfaction of any conditions to
exercisability, including without limitation, the passage of time, but without
taking into account potential antidilution adjustments) of such options to
purchase or rights to subscribe for Common Stock shall be deemed to have been
issued at the time such options or rights were issued and for a consideration
equal to the consideration (determined in the manner provided in subsections
3(d)(i)(C) and 3(d)(i)(D)), if any, received by this corporation upon the
issuance of such options or rights plus the minimum exercise price provided in
such options or rights (without taking into account potential antidilution
adjustments) for the Common Stock covered thereby.
(2) The aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange (assuming the satisfaction
of any conditions to convertibility or exchangeability, including, without
limitation, the passage of time, but without taking into account potential
antidilution adjustments) for any such convertible or exchangeable securities or
upon the exercise of options to purchase or rights to subscribe for such
convertible or exchangeable securities and subsequent conversion or exchange
thereof shall be deemed to have been issued at the time such securities were
issued or such options or rights were issued and for a consideration equal to
the consideration, if any, received by this corporation for any such securities
and related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by this corporation (without taking into account potential
antidilution adjustments) upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to
be determined in the manner provided in subsections 3(d)(i)(C) and 3(d)(i)(D)).
(3) In the event of any subsequent change in the number
of shares of Common Stock deliverable or in the consideration payable to this
corporation upon exercise of such options or rights or upon conversion of or in
exchange for such convertible or exchangeable securities, including, but not
limited to, a change resulting from the antidilution provisions thereof, the
Conversion Price of the appropriate series of Preferred Stock, to the extent in
any way affected by or computed using such options, rights or securities, shall
be recomputed to reflect such change, but no further adjustment shall be made
for the actual issuance of Common Stock or any payment of such consideration
upon the exercise of any such options or rights or the conversion or exchange of
such securities.
(4) Upon the expiration of any such options or rights,
the termination of any such rights to convert or exchange or the expiration of
any options or rights related to such convertible or exchangeable securities,
the Conversion Price of the appropriate series of Preferred Stock, to the extent
in any way affected by or computed using such options, rights or securities or
options or rights related to such securities, shall be recomputed to reflect the
issuance of only the number of shares of Common Stock (and
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convertible or exchangeable securities which remain in effect) actually issued
upon the exercise of such options or rights, upon the conversion or exchange of
such securities or upon the exercise of the options or rights related to such
securities.
(5) The number of shares of Common Stock deemed issued
and the consideration deemed paid therefor pursuant to subsections 3(d)(i)(D)(1)
and (2) shall be appropriately adjusted to reflect any change, termination or
expiration of the type described in either subsections 3(d)(i)(D)(3) or (4).
(ii) "Additional Stock" shall mean any shares of Common Stock
issued (or deemed to have been issued pursuant to subsection 3(d)(i)(D)) by this
corporation after the Purchase Date other than:
(A) Common Stock issued pursuant to a transaction described
in Section 3(d)(iii) hereof,
(B) Common Stock issuable or issued to employees,
consultants or directors of this corporation with the approval of the Board of
Directors, or
(C) Common Stock issued or issuable (I) in a public
offering before or in connection with which all outstanding shares of Series
Preferred Stock will be converted to Common Stock or (II) upon exercise of
warrants or rights granted to underwriters in connection with such public
offering; or
(D) Common Stock issued or issuable upon conversion of
shares of Series Preferred Stock.
(iii) In the event this corporation should at any time or from
time to time after the Purchase Date fix a record date for the effectuation of a
split or subdivision of the outstanding shares of Common Stock or 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 or
rights convertible into, or entitling the holder thereof to receive directly or
indirectly, additional shares of Common Stock (hereinafter referred to as
"Common Stock Equivalents") without payment of any consideration by such holder
for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon conversion or
exercise thereof), then, as of such record date (or the date of such dividend
distribution, split or subdivision if no record date is fixed), the Conversion
Price of the Series Preferred Stock then outstanding shall be appropriately
decreased so that the number of shares of Common Stock issuable on conversion of
each share of such series shall be increased in proportion to such increase of
the aggregate of shares of Common Stock outstanding and those issuable with
respect to such Common Stock Equivalents.
(iv) If the number of shares of Common Stock outstanding at any
time after the Purchase Date is decreased by a combination of the outstanding
shares of Common Stock, then, following the record date of such combination, the
Conversion Price for the Series Preferred Stock shall be appropriately increased
so that the number of shares of Common Stock issuable on conversion of each
share of such series shall be decreased in proportion to such decrease in
outstanding shares.
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(e) OTHER DISTRIBUTIONS. In the event this corporation shall declare
a distribution payable in securities of other persons, evidences of indebtedness
issued by this corporation or other persons, assets (excluding cash dividends)
or options or rights not referred to in Section 3(d)(iii), then, in each such
case for the purpose of this Section 3(e), the holders of the Series A Preferred
Stock shall be entitled to a proportionate share of any such distribution as
though they were the holders of the number of shares of Common Stock of this
corporation into which their shares of Series Preferred Stock are convertible as
of the record date fixed for the determination of the holders of Common Stock of
this corporation entitled to receive such distribution.
(f) RECAPITALIZATIONS. If at any time or from time to time there
shall be a recapitalization of the Common Stock (other than a subdivision,
combination or merger or sale of assets transaction provided for elsewhere in
this Section 3 or Section 2) provision shall be made so that the holders of the
Series Preferred Stock shall thereafter be entitled to receive upon conversion
thereof the number of shares of stock or other securities or property of this
corporation or otherwise, to which a holder of Common Stock deliverable upon
conversion would have been entitled on such recapitalization. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section 3 with respect to the rights of the holders of the Series Preferred
Stock after the recapitalization to the end that the provisions of this Section
3 (including adjustment of the Conversion Price then in effect and the number of
shares purchasable upon conversion of the Series Preferred Stock) shall be
applicable after that event as nearly equivalent as may be practicable.
(g) NO IMPAIRMENT. This corporation will not, by amendment of its
Articles of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by this
corporation, but will at all times in good faith assist in the carrying out of
all the provisions of this Section 3 and in the taking of all such action as may
be necessary or appropriate in order to protect the Conversion Rights of the
holders of the Series Preferred Stock against impairment.
(h) NO FRACTIONAL SHARES AND CERTIFICATE AS TO ADJUSTMENTS.
(i) No fractional shares shall be issued upon the conversion of
any share or shares of the Series Preferred Stock, and the number of shares of
Common Stock to be issued shall be rounded to the nearest whole share. Whether
or not fractional shares are issuable upon such conversion shall be determined
on the basis of the total number of shares of Series Preferred Stock the holder
is at the time converting into Common Stock and the number of shares of Common
Stock issuable upon such aggregate conversion. If, after the aforementioned
aggregation, the conversion would result in the issuance of any fractional
shares, this corporation shall, in lieu of issuing any fractional share, pay
cash equal to the product of such fraction multiplied by the fair market value
of the Common Stock (as determined in good faith by the Board of Directors) on
the date of conversion.
(ii) Upon the occurrence of each adjustment or readjustment of
the Conversion Price of any series of Preferred Stock pursuant to this Section
3, this corporation,
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at its expense, shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to each holder of such
Series Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. This corporation shall, upon the written request at any
time of any holder of Series Preferred Stock, furnish or cause to be furnished
to such holder a like certificate setting forth (a) such adjustment and
readjustment, (b) the Conversion Price for such series of Preferred Stock at the
time in effect, and (c) the number of shares of Common Stock and the amount, if
any, of other property which at the time would be received upon the conversion
of a share of such Series Preferred Stock.
(i) NOTICES OF RECORD DATE. In the event of (i) any taking by this
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, or (ii)
dissolution, liquidation or winding up of this corporation, any reorganization,
transfer of all or substantially all of the assets of this corporation, merger,
consolidation, reorganization or recapitalization of the capital stock of this
corporation, this corporation shall mail to each holder of Series Preferred
Stock, at least twenty (20) days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for the purpose of
such action, and the character of such action and amount of such dividend,
distribution or right.
(j) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. This corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series Preferred Stock, such number of shares of its Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series Preferred Stock; and if at any time the number
of authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Series Preferred
Stock, in addition to such other remedies as shall be available to the holder of
such Preferred Stock, this corporation will take such corporate action as may,
in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purposes, including, without limitation, engaging in reasonable best
efforts to obtain the requisite shareholder approval of any necessary amendment
to this Amended and Restated Certificate of Incorporation.
(k) NOTICES. Any notice required by the provisions of this Section 3
shall be in writing and shall be deemed effectively given (i) upon personal
delivery to the party to be notified, (ii) when sent by confirmed telex or
facsimile if sent during normal business hours of the recipient; if not, then on
the next business day, (iii) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (iv) two (2)
days after deposit with a nationally recognized overnight courier, specifying
first or second day delivery, with written verification of receipt. All notices
shall be addressed to each holder of record at the address of such holder
appearing on the books of this corporation.
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4. VOTING RIGHTS.
(a) The holder of each share of Series Preferred Stock shall have
the right to one vote for each share of Common Stock into which such shares of
Series Preferred Stock could then be converted (with any fractional share
determined on an aggregate conversion basis being rounded to the nearest whole
share), and with respect to such vote, such holder shall have full voting rights
and powers equal to the voting rights and powers of the holders of Common Stock,
and shall be entitled, notwithstanding any provision hereof, to notice of any
stockholders' meeting in accordance with the bylaws of the corporation, and
shall be entitled to vote, together with holders of Common Stock, with respect
to any question upon which holders of Common Stock have the right to vote.
(b) The holders of the Series A Preferred and Series B Preferred,
voting together as a separate class, shall be entitled to elect three (3)
members of the Board of Directors at each shareholders' meeting or pursuant to
each consent of the Corporation's shareholders for the election of directors.
The holders of the Series C Preferred, voting as a separate class, shall be
entitled to elect one (1) member of the Board of Directors at each shareholders'
meeting or pursuant to each consent of the Corporation's shareholders for the
election of directors. The holders of the Common Stock, as a separate class,
shall be entitled to elect one (1) member of the Board of Directors at each
shareholders' meeting or pursuant to each consent of the Corporation's
shareholders. The remaining director of the Corporation shall be elected by the
holders of a majority of the Series Preferred Stock and the holders of Common
Stock voting together (assuming full conversion of the Series Preferred Stock)
at each shareholders' meeting or pursuant to each consent of the Corporation's
Shareholders for the election of directors.
(c) In the case of any vacancy in the office of a director occurring
among the directors elected by the holders of Series A Preferred and Series B
Preferred in accordance with the provisions of Section 4(b) above, the holders
of a majority of the Series A Preferred and Series B Preferred shall elect a
successor or successors to serve for the unexpired term of the director whose
office is vacant. In the case of any vacancy in the office of the director
elected by the holders of the Series C Preferred in accordance with Section 4(b)
above, the holders of a majority of the Series C Preferred shall elect a
successor to serve for the unexpired term of the director whose office is
vacant. In the case of any vacancy in the office of the director elected by the
holders of Common Stock in accordance with the provisions of Section 4(b) above,
the holders of a majority of the Common Stock shall elect a successor to serve
for the unexpired term of the director whose office is vacant. In the case of a
vacancy of the director to be elected by the holders of the Series Preferred
Stock and Common Stock voting together under Section 4(b), the holders of a
majority of shares of the Series Preferred Stock (assuming full conversion
thereof) and the Common Stock voting together shall elect a successor to serve
for the unexpired term of the director whose office is vacant. The provisions of
Sections 4(b) and 4(c) shall terminate and be of no further force and effect at
such time as less than 500,000 shares of Series Preferred Stock are outstanding.
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5. PROTECTIVE PROVISIONS. So long as at least 500,000 shares of Series
Preferred Stock are outstanding, this corporation shall not without first
obtaining the approval (by vote or written consent, as provided by law) of the
holders of at least a majority of the then outstanding shares of Series
Preferred Stock:
(a) Redeem, purchase, or otherwise acquire for value (or pay into or
set aside for a sinking fund for such purposes) any share or shares of Preferred
Stock (other than by conversion in accordance with Section (B)3 hereof);
(b) Redeem, purchase or otherwise acquire (or pay into or set aside
for a sinking fund for such purpose), any of the Common Stock, PROVIDED,
HOWEVER, that this restriction shall not apply to the repurchase of shares of
Common Stock from employees, officers, directors, consultants or other persons
performing services for the Company or any subsidiary pursuant to agreements
under which the Company has the option to repurchase such shares upon the
occurrence of certain events, such as the termination of employment, provided
further, however, that the total amount applied to the repurchase of shares of
Common Stock shall not exceed $50,000 during any twelve (12) month period;
(c) Authorize or issue, or obligate itself to issue, any other
equity security (including any security convertible into or exercisable for any
equity security) senior to or on a parity with the Series Preferred Stock with
respect to any rights, preferences or privileges;
(d) Sell, convey, or otherwise dispose of or encumber all or
substantially all of its property or business or merge into or consolidate with
any other corporation (other than a wholly-owned subsidiary corporation) or
effect any other transaction or series of related transactions in which more
than fifty percent (50%) of the voting power of the Corporation is disposed of,
provided that this Section 5(d) shall not apply to a merger effected exclusively
for the purpose of changing the domicile of the Corporation;
(e) Effect any sale, lease, assignment, transfer, or other
conveyance of all or substantially all of the assets of the corporation or any
of its subsidiaries;
(f) Declare or pay dividends on or make any distribution on account
of the Common Stock;
(g) Increase or decrease (other than by conversion in accordance
with Section (B)3 hereof) the total number of authorized shares of Preferred
Stock;
(h) Alter or change the rights, preferences or privileges of the
shares of Series Preferred Stock;
(i) amend the Certificate of Incorporation in a manner adverse to
the holders of the Series Preferred Stock;
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(j) amend the Company's bylaws in a manner adverse to the holders of
the Series Preferred Stock; or
(k) permit the creation of any subsidiary.
6. STATUS OF CONVERTED STOCK. In the event any shares of Series
Preferred Stock shall be converted pursuant to Section (B)3 hereof, the shares
so converted shall be cancelled and shall not be issuable by this corporation.
The Certificate of Incorporation of this corporation shall be appropriately
amended to effect the corresponding reduction in this corporation's authorized
capital stock.
(C) COMMON STOCK.
1. DIVIDEND RIGHTS. Subject to the prior rights of holders of all
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when, as and if
declared by the Board of Directors, out of any assets of this corporation
legally available therefor, such dividends as may be declared from time to time
by the Board of Directors.
2. LIQUIDATION RIGHTS. Upon the liquidation, dissolution or winding up
of this corporation, the assets of this corporation shall be distributed as
provided in Section (B)2 of this Article IV hereof.
3. REDEMPTION. The Common Stock is not redeemable.
4. VOTING RIGHTS. The holder of each share of Common Stock shall have
the right to one (1) vote, and shall be entitled to notice of any shareholders'
meeting in accordance with the bylaws of this corporation, and shall be entitled
to vote upon such matters and in such manner as may be provided by law.
ARTICLE V.
Except as otherwise provided in this Certificate of Incorporation, in
furtherance and not in limitation of the powers conferred by statute, the board
of directors is expressly authorized to make, repeal, alter, amend and rescind
any or all of the bylaws of the corporation.
ARTICLE VI.
Elections of directors need not be by written ballot unless the bylaws of
the corporation shall so provide.
ARTICLE VII.
Meetings of stockholders may be held within or without the State of
Delaware, as the bylaws of the corporation may provide. The books of the
corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the board of directors or in the bylaws of the corporation.
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ARTICLE VIII.
A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article IX to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law as so amended.
Any repeal or modification of the foregoing provisions of this Article IX
by the stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
ARTICLE IX.
To the fullest extent permitted by applicable law, this corporation is also
authorized to provide indemnification of (and advancement of expenses to) such
agents (and any other persons to which Delaware law permits this corporation to
provide indemnification) through bylaw provisions, agreements with such agents
or other persons, vote of stockholders or disinterested directors or otherwise,
in excess of the indemnification and advancement otherwise permitted by Section
145 of the Delaware General Corporation Law, subject only to limits created by
applicable Delaware law (statutory or non-statutory), with respect to actions
for breach of duty to this corporation, its stockholders, and others.
Any repeal or modification of any of the foregoing provisions of this
Article X shall not adversely affect any right or protection of a director,
officer, agent or other person existing at the time of, or increase the
liability of any director of this corporation with respect to any acts or
omissions of such director, officer or agent occurring prior to such repeal or
modification.
ARTICLE X.
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 statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
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IN WITNESS WHEREOF, BioMedicines, Inc. has caused this Amended and Restated
Certificate of Incorporation to be executed by S. Mark Moran, its President, and
attested by James C. Kitch its Secretary, this 30th day of August, 2000.
BIOMEDICINES, INC.
By: /s/ Mark Moran
-------------------------------------
S. Mark Moran
President and Chief Executive Officer
ATTEST:
/s/ James C. Kitch
-------------------------
James C. Kitch
SECRETARY
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