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EXHIBIT 3.1
State of Delaware PAGE 1
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"ARRAY BIOPHARMA INC.", FILED IN THIS OFFICE ON THE THIRTY-FIRST DAY OF AUGUST,
A.D. 2000, AT 11:30 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
[SEAL] -----------------------------------
Edward J. Freel, Secretary of State
2856233 8100 AUTHENTICATION: 0650953
001441765 DATE: 08-31-00
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STATE OF DELAWARE
SECRETARY OF STATE
DEPARTMENT OF CORPORATIONS
FILED 11.30 AM 08/31/2000
001441765 - 2856233
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
ARRAY BIOPHARMA INC.
(PURSUANT TO SECTIONS 242 AND 245)
Array BioPharma 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 for the purpose of amending and
restating its Certificate of Incorporation:
1. The Corporation was originally incorporated under the same name, and the
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on February 6, 1998.
2. The Board of Directors of the Corporation duly adopted resolutions
containing provisions of this Amended and Restated Certificate of Incorporation
of the Corporation, declaring such amendment and restatement to be advisable and
called for the approval of the stockholders of the Corporation to such amendment
and restatement in accordance with Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
3. That the holders of at least 66 2/3% of the outstanding shares of the
Corporation's Series A Preferred Stock voting as a single class, 66 2/3% of the
outstanding shares of the Corporation's Series B Preferred Stock voting as a
single class and 50% of the outstanding shares of the Corporation's Common Stock
and Preferred Stock voting as a single class, in each case acting by means of
written consent in lieu of a meeting pursuant to Section 228(a) of the General
Corporation Law of the State of Delaware, adopted and approved this Amended and
Restated Certificate of Incorporation in accordance with Sections 242 and 245 of
the General Corporation Law of the State of Delaware.
4. That the text of the Corporation's Certificate of Incorporation as
heretofore amended and supplemented is hereby further amended and restated in
its entirety to read as follows:
ARTICLE I
NAME
The name of the corporation is Array BioPharma Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of its registered office in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of New Castle 19801. The name
of its registered agent at such address is The Corporation Trust Company.
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ARTICLE III
NATURE OF BUSINESS
The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activities for which corporations may be
organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
CAPITAL; SHAREHOLDERS
4.1 Authorized Capital. The aggregate number of shares that the Corporation
shall have authority to issue is 20,225,000 shares of common stock, each having
a par value of $0.001 (the "Common Stock"), and 11,825,000 shares of preferred
stock, each having a par value of $0.001, 6,800,000 shares of which shall be
designated as Series A Preferred Stock, 3,300,000 shares of which shall be
designated as Series B Preferred Stock and 1,725,000 shares of which shall be
designated as Series C Preferred Stock. The Series A Preferred Stock, Series B
Preferred Stock and the Series C Preferred Stock is sometimes collectively
referred to herein as the "Preferred Stock."
4.2 Relative Rights and Preferences. The designations, preferences and
rights of the shares of each class of stock which the Corporation is authorized
to issue, and the limitations thereof, are as set forth in the following
provisions of this Section 4.2:
(a) Common Stock.
(i) General. The dividend and liquidation rights of the holders
of the Common Stock are junior to, subject to and qualified by the
rights of the holders of the Preferred Stock.
(ii) 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, subject to any preferential dividend rights of
any then-outstanding Preferred Stock.
(iii) Liquidation. In the event of any liquidation, dissolution
or winding-up of the Corporation, whether voluntary or involuntary,
the holders of the Common Stock shall be entitled, out of the assets
of the Corporation available for distribution to its shareholders,
subject to any preferential rights of any then-outstanding Preferred
Stock, to share ratably among themselves in proportion to the
respective amounts that would otherwise be payable in respect of the
shares
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held by them upon such distribution if all amounts payable on or with
respect to such shares were paid in full.
(iv) Voting. Each holder of Common Stock of record shall have one
vote for each share of stock outstanding in his name and on the books
of the Corporation except that, in the election of directors, he shall
have the right to vote each such share for as many persons as there
are directors to be elected. Cumulative voting shall not be allowed in
the election of directors or for any other purpose.
(b) Series Preferred Stock. The designations, dividend rights, voting
powers, rights on liquidation and other preferences and relative,
participating, optional or other special rights and the
qualifications, limitations or restrictions of the shares of the
series of Preferred Stock shall be as follows:
(i) Certain Definitions. Unless the context otherwise requires,
for purposes of Section 4.2(b), the terms defined in this Section
4.2(b)(i) shall have the meanings herein specified (with terms defined
in the singular having comparable meanings when used in the plural).
"Common Stock" shall mean the common stock, $0.001 par value
per share, of the Corporation.
"Disposition Proceeds" shall have the meaning set forth in
Section 4.2(b)(iii)(C).
"Equivalent Common Dividend" shall have the meaning set
forth in Section 4.2(b)(ii).
"Liquidation Preferences" shall have the meaning set forth
in Section 4.2(b)(iii)(C).
"Mandatory Conversion Date" shall have the meaning set forth
in Section 4.2(b)(iv)(B).
"Preferred Stock" shall mean any authorized series of
preferred stock of the Corporation, including, without limitation, the
Series A Preferred Stock, the Series B Preferred Stock and the Series
C Preferred Stock.
"Qualifying IPO" shall mean an underwritten public offering
pursuant to an effective registration statement under the Securities
Act of 1933 of shares of Common Stock, at a price per share of at
least $8.00, and the aggregate
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gross proceeds of which equal or exceed $20,000,000 (before
underwriting discounts and commissions).
"Required Consent" shall mean (i) the affirmative vote of
the holders of at least 66 2/3% of the outstanding shares of Preferred
Stock or a series of such Preferred Stock, as the case may be, taken
at a duly called meeting of the holders of such Preferred Stock or
series of such Preferred Stock; or (ii) the written consent of the
holders of at least 66 2/3% of the outstanding shares of Preferred
Stock or a series of such Preferred Stock, as the case may be.
"Series A Initial Purchase Price" shall mean $1.00 per share
(adjusted for stock dividends, stock splits, reverse stock splits,
combinations and the like).
"Series A Liquidation Preference" shall have the meaning set
forth in Section 4.2(b)(iii)(C).
"Series A Preferred Stock" shall mean the Series A Preferred
Stock, $0.001 par value per share, of the Corporation.
"Series B Initial Purchase Price" shall mean $2.50 per share
(adjusted for stock dividends, stock splits, reverse stock splits,
combinations and the like).
"Series B Liquidation Preference" shall have the meaning set
forth in Section 4.2(b)(iii)(C).
"Series B Preferred Stock" shall mean the Series B Preferred
Stock, $0.001 par value per share, of the Corporation.
"Series C Initial Purchase Price" shall mean $6.00 per share
(adjusted for stock dividends, stock splits, reverse stock splits,
combinations and the like).
"Series C Liquidation Preference" shall have the meaning set
forth in Section 4.2(b)(iii)(C).
"Series C Preferred Stock" shall mean the Series C Preferred
Stock, $0.001 par value per share, of the Corporation.
"Subordinate Stock" shall mean any class or series of
capital stock of the Corporation, however designated, which is junior
in right to the Preferred Stock, including without limitation the
Common Stock and any other capital stock
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of the Corporation that is not entitled to receive (i) any dividends
unless all dividends required to have been paid or declared and set
apart for payment on the Preferred Stock shall have been so paid or
declared and set apart for payment; or (ii) any assets upon
liquidation, dissolution or winding up of the affairs of the
Corporation until the Preferred Stock shall have received the entire
amount to which such stock is entitled upon such liquidation,
dissolution or winding up.
(ii) Dividends. If at any time during which any shares of Series
A Preferred Stock, Series B Preferred Stock or Series C Preferred
Stock remain outstanding the Corporation declares, pays or sets apart
for payment any dividend on the Common Stock, whether in cash,
property or otherwise, each holder of shares of Series A Preferred
Stock, Series B Preferred Stock or Series C Preferred Stock shall be
entitled to receive the equivalent per share dividend (an "Equivalent
Common Dividend"), when and as declared by the Corporation, based on
the number of shares of Common Stock into which each share of
Preferred Stock is convertible on the record date. For any Equivalent
Common Dividend that is not paid in full when due, then on such due
date such accrued and unpaid Equivalent Common Dividend shall be added
to the Liquidation Preference of the Preferred Stock effective at such
due date when such Equivalent Common Dividend was not paid. If any
accrued and unpaid Equivalent Common Dividend is so added to the
Liquidation Preference, such Liquidation Preference shall be reduced,
effective on the date of payment, to the extent any accrued and unpaid
Equivalent Common Dividend is subsequently paid.
(iii) Distributions Upon Liquidation, Dissolution or Winding Up.
(A) The Corporation shall deliver to each holder of
Preferred Stock notice of any Disposition (as defined in Section
4.2(b)(iii)(B)) at least 90 days prior to such event, which
notice shall state all material facts and common terms relating
to such Disposition, including, without limitation, (1) the
nature of such Disposition, including, without limitation, the
amount, terms and conditions of payment to the holders of the
Preferred Stock and the holders of Common Stock in connection
with such Disposition; (2) the date on which such Disposition
shall occur; and (3) the procedures that must be followed (and
the latest date that such procedures must be completed) in order
for such holder to effect a conversion of shares of Preferred
Stock into shares of Common Stock, if such a conversion is so
desired.
(B) The following events shall be considered a "Disposition"
under this Section:
(1) any consolidation or merger of the Corporation with
or into any other corporation or other entity or person, or
any other
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corporate reorganization, in which the stockholders of the
Corporation immediately prior to such consolidation, merger
or reorganization, own less than 50% of the Corporation's
voting power immediately after such consolidation, merger or
reorganization, or any transaction or series of related
transactions in which in excess of 50% of the Corporation's
voting power is transferred;
(2) a sale, lease or other disposition of all or
substantially all of the assets of the Corporation; or
(3) any voluntary or involuntary liquidation,
dissolution or other winding up of the affairs of the
Corporation.
(C) In the event of any such Disposition, before any payment
or distribution shall be made to the holders of the Common Stock,
the holders of Preferred Stock shall be entitled to be paid out
of the Disposition Proceeds in cash, or, if the Corporation does
not have sufficient cash on hand to pay such amounts, property of
the Corporation at its fair market value as determined by the
Board of Directors, an amount (the "Series A Liquidation
Preference", the "Series B Liquidation Preference" and the
"Series C Liquidation Preference") equal to either the Series A
Initial Purchase Price, the Series B Initial Purchase Price or
the Series C Initial Purchase Price, as appropriate, plus any
accrued but unpaid dividends. If upon any such Disposition, the
remaining assets of the Corporation available for distribution to
its shareholders shall be insufficient to pay the holders of the
Preferred Stock the full amount of their respective Liquidation
Preferences, the holders of the Preferred Stock shall share
ratably among themselves in any distribution of the remaining
assets and funds of the Corporation in proportion to the
respective amounts that would otherwise be payable in respect of
the shares held by them upon such distribution if all amounts
payable on or with respect to such shares were paid in full.
(iv) Conversion Rights.
(A) Conversion at the Option of the Holder. The holders of
the Preferred Stock shall have the right, at their option, to
convert shares of Preferred Stock into shares of Common Stock of
the Corporation at any time and from time to time on the
following terms and conditions:
(1) Each share of Preferred Stock shall be converted at
the option of the holder thereof, without the payment of
additional
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consideration, into such number of fully paid and
nonassessable shares of Common Stock as is determined by
dividing the Series A Initial Purchase Price, the Series B
Initial Purchase Price or the Series C Initial Purchase
Price, as applicable, by the Series A Conversion Rate, the
Series B Conversion Rate or the Series C Conversion Rate,
respectively, in effect at the time of conversion. For
purposes of this section, the "Series A Conversion Rate",
the "Series B Conversion Rate" and the "Series C Conversion
Rate" shall initially shall be equal to the Series A Initial
Purchase Price, Series B Initial Purchase Price and the
Series C Initial Purchase Price, respectively, and shall
each be subject to adjustment as provided in Section
4.2(b)(iv)(C)(2) below.
(2) The Corporation shall not issue, in connection with
the conversion of shares of Preferred Stock, certificates
for fractional shares, but in lieu thereof shall pay to any
person who would otherwise be entitled thereto an amount of
cash equal to such fraction multiplied by the fair value of
one share of Common Stock, as determined by the Board of
Directors, whose determination shall be conclusive.
(3) In order for any holder of shares of Preferred
Stock to convert the same into Common Stock, he shall
surrender the certificate or certificates therefor, duly
endorsed, at the office of the Corporation and shall give
written notice to the Corporation that he elects to convert
all or part of the shares represented by the certificate or
certificates and shall state in writing therein the name or
names in which he wishes the certificate or certificates for
Common Stock to be issued. The Corporation shall, as soon as
practicable thereafter, issue and deliver to such holder of
shares of Preferred Stock, or to his nominee or nominees,
certificates for the full number of shares of Common Stock
to which he shall be entitled as aforesaid. Shares of
Preferred Stock shall be deemed to have been converted as of
the date of the surrender of such shares for conversion as
provided above, and the person or persons entitled to
receive Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of
such Common Stock on such date.
(4) If a holder converts shares of Preferred Stock, the
Corporation shall pay any documentary , stamp or similar
issue or transfer tax due on the issue of shares of Common
Stock upon the conversion; provided, however, that the
holder shall pay any such
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tax that is due because the shares are issued in a name
other than the holder's name pursuant to Section
4.2(b)(iv)(A)(3).
(B) Mandatory Conversion. Subject to the adjustments set
forth in Section 4.2(b)(iv)(C), each share of Preferred Stock
shall be converted automatically into shares of the Corporation's
Common Stock at the Series A Conversion Rate, Series B Conversion
Rate or Series C Conversion Rate, as applicable, on the date a
Qualifying IPO is consummated (the "Mandatory Conversion Date").
At least 60 days prior to the Mandatory Conversion Date, the
Corporation shall (1) notify all holders of the Preferred Stock
of such event; (2) demand that all shares representing the
Preferred Stock be returned to the Corporation's offices or to
the designated transfer agent; and (3) pay any transfer or
similar tax with respect to the conversion, if any. As soon as
practical but in any event within 30 days after the Mandatory
Conversion Date, the Corporation shall deliver a certificate to
and in the name of the holder of the Preferred Stock for the
number of shares of Common Stock issuable upon the conversion and
a check in an amount calculated in accordance with Section
4.2(b)(iv)(A)(2) for any fractional shares, if any, for the
shares of Preferred Stock represented by the certificate. The
name of the person in which the Preferred Stock was issued shall
be treated as the stockholder of record of the Common Stock in
which the Preferred Stock was converted on and after the
Mandatory Conversion Date. Adjustment (or cash payment, if
applicable) shall be made for accrued and previously declared and
unpaid dividends, as of the Mandatory Conversion Date, on shares
of Preferred Stock converted pursuant to this Section
4.2(b)(iv)(B). Upon such conversion, the rights of the holders of
Preferred Stock with respect to the shares of Preferred Stock so
converted shall cease.
(C) Certain Matters With Respect to Conversion.
(1) The Corporation has reserved and shall continue to
reserve out of its authorized but unissued Common Stock or
its Common Stock held in treasury enough shares of Common
Stock to permit the conversion of the Preferred Stock in
full. All shares of Common Stock that may be issued upon
conversion of Preferred Stock shall be duly authorized,
validly issued, fully paid and nonassessable.
(2) The Series A Conversion Rate, Series B Conversion
Rate and Series C Conversion Rate shall be subject to
adjustment as follows:
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(a) In case the Corporation shall (i) pay a dividend or
make a distribution on its Common Stock in shares of Common
Stock of the Corporation, (ii) subdivide or split its
outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, the Series A
Conversion Rate, Series B Conversion Rate and Series C
Conversion Rate following the effective date of such event
shall be equal to the product of the Series A Conversion
Rate, Series B Conversion Rate or Series C Conversion Rate,
respectively, in effect immediately prior to such adjustment
multiplied by a fraction, the denominator of which is the
number of shares of Common Stock outstanding immediately
after such event and the numerator of which is the number of
shares outstanding immediately prior to such event.
(b) In the event the Corporation at any time or from
time to time 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
securities of the Corporation other than shares of Common
Stock, then and in each such event provision shall be made
so that the holders of Preferred 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 each would have received had
the Preferred Stock been converted into Common Stock on the
date of such event and had they each 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 section
with respect to the rights of the holders of Preferred
Stock; provided, however, that no such adjustment shall be
made if the holders of Preferred Stock simultaneously
receive a dividend or other distribution of such securities
as they would have received if all outstanding shares of
Preferred Stock had been converted into Common Stock on the
date of such event.
(c) If Common Stock issuable upon the conversion of
Preferred 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 Preferred Stock shall have the right thereafter
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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 share of Preferred Stock might have been converted
immediately prior to such reorganization, reclassification,
or change, all subject to further adjustment as provided
herein.
(d) Adjustments to the Series A Conversion Rate, Series
B Conversion Rate and Series C Conversion Rate shall also be
made for certain dilutive issuances of additional shares of
capital stock by the Corporation as set forth in this
Section 4.2(b)(iv)(C)(2)(d).
(i) Special Definitions. For purposes of this Section
4.2(b)(iv)(C)(2)(d), the following definitions
shall apply:
(A) "Option" means rights, options, warrants or
other securities convertible into or exchangeable
or exercisable for shares of Common Stock or
Preferred Stock.
(B) "Additional Shares of Stock" (i) with respect
to the Series A Preferred Stock, all shares of
Common Stock or Preferred Stock issued by the
Corporation after the date that shares of Series A
Preferred Stock are first issued by the
Corporation (the "Series A Initial Issue Date")
for which the consideration per share (determined
pursuant to Section 4.2(b)(iv)(C)(2)(d)(iii)) is
less than the Series A Conversion Rate in effect
on the date of, and immediately prior to, the
issuance of such Additional Shares of Stock; (ii)
with respect to the Series B Preferred Stock, all
shares of Common Stock or Preferred Stock issued
by the Corporation after the date that shares of
Series B Preferred Stock are first issued by the
Corporation (the "Series B Initial Issue Date")
for which the consideration per share (determined
pursuant to Section 4.2(b)(iv)(C)(2)(d)(iii)) is
less than the Series B Conversion Rate in effect
on the date of, and immediately prior to, the
issuance of such Additional Shares of Stock;
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(iii) with respect to the Series C Preferred
Stock, all shares of Common Stock or Preferred
Stock issued by the Corporation after the date
that shares of Series C Preferred Stock are first
issued by the Corporation (the "Series C Initial
Issue Date") for which the consideration per share
(determined pursuant to Section 4.2(b)(iv)(C)(2)
(d)(iii)) is less than the Series C Conversion
Rate in effect on the date of, and immediately
prior to, the issuance of such Additional Shares
of Stock, provided, however that in the case of
any series of Preferred Stock, not including any
shares of Common Stock or Preferred Stock issued
or issuable:
(I) upon exercise of any Options outstanding
on the Series C Initial Issue Date; provided,
however that if the Corporation, after the
Series C Initial Issue Date, amends the
exercise price or the number of shares
covered by any Options outstanding on the
Series C Initial Issue Date, then such
Options, as so amended, shall be deemed to
have been issued after the Series C Initial
Issue Date;
(II) by reason of a dividend, stock split,
split-up or other distribution on shares of
Common Stock that is covered by Section
4.2(b)(iv)(C)(2)(b) or (c) above;
(III) upon exercise of Options granted to
employees or directors of, or consultants to,
the Corporation pursuant to a valid option
plan adopted by the Corporation;
(IV) to employees or directors of, or
consultants to, the Corporation pursuant to a
valid stock purchase plan adopted by the
Corporation; or
(V) upon exercise of warrants or other
securities convertible into Common or
Preferred Stock issued in connection with a
credit facility, but not to exceed an
aggregate
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of $200,000 in value (as determined by the
exercise price) in any six month period.
(ii) Adjustment of Conversion Rates Upon Issuance of
Additional Shares of Stock. In the event the
Corporation shall at any time issue Additional
Shares of Stock with respect to the Series A
Preferred Stock, the Series B Preferred Stock or
the Series C Preferred Stock, then and in such
event, such Series A Conversion Rate, Series B
Conversion Rate or Series C Conversion Rate, as
applicable, shall be reduced, concurrently with
such issuance, to a price (calculated to the
nearest cent) determined by multiplying the Series
A Conversion Rate, the Series B Conversion Rate or
Series C Conversion Rate, as applicable, then in
effect by a fraction:
(A) the numerator of which shall be (1) the number
of shares of Common Stock outstanding immediately
prior to such issue plus (2) the number of shares
of Common Stock which the aggregate consideration
received or to be received by the Corporation for
the total number of Additional Shares of Stock so
issued would purchase at such Series A Conversion
Rate, Series B Conversion Rate or Series C
Conversion Rate, as applicable; and
(B) the denominator of which shall be the number
of shares of Common Stock outstanding immediately
prior to such issue plus the number of such
Additional Shares of Stock so issued.
(iii) Determination of Consideration. For purposes of
this Section 4.2(b)(iv)(C)(3)(d)(iii), the
consideration received by the Corporation for the
issue of any Additional Shares of Stock shall be
computed as follows:
(A) in case of the issuance of shares of Common
Stock for cash, the consideration shall be the
amount of such cash, provided that in no case
shall any deduction be made for any commissions,
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discounts or other expenses incurred by the
Corporation for any underwriting of the issue or
otherwise in connection therewith;
(B) in the case of the issuance of shares of
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 market value
thereof as determined by the Board of Directors of
the Corporation in its reasonable judgment
exercised in good faith (irrespective of the
accounting treatment thereof); and
(C) in the case of the issuance of Options, the
aggregate consideration received therefor shall be
deemed to be the consideration received by the
Corporation for the issuance of such Options plus
the additional minimum consideration, if any, to
be received by the Corporation upon the conversion
or exchange or exercise thereof (the consideration
in each case to be determined in the same manner
as provided in clauses (i) and (ii) of this
Section).
(3) Whenever the number of shares of Common Stock into which
any share of Preferred Stock is convertible is adjusted, the
Corporation shall promptly mail to holders of the affected
Preferred Stock, first class, postage prepaid, a notice of
the adjustment. The Corporation shall file with the transfer
agent, if any, for the Preferred Stock a certificate from
the Corporation's independent public accountants briefly
stating the facts requiring the adjustment and the manner of
computing it. Subject to Section 4.2(b)(iv)(C)(9) below, the
certificate shall be conclusive evidence that the adjustment
is correct.
(4) The adjustments herein provided for shall be made
successively when the event giving rise to such adjustment
occurs and shall become effective immediately following the
record date for any event for which a record date is
designated and on the effective date for any other event.
(5) Shares of Preferred Stock that have been converted as
provided herein shall revert to the status of authorized but
unissued shares of Preferred Stock.
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(6) For purposes of any computation of the number of shares
of Common Stock outstanding, such computation shall be made
assuming conversion of all then outstanding shares of
Preferred Stock and all outstanding currently exercisable
warrants and vested options.
(7) No adjustment in the number of shares of Common Stock
into which each share of Preferred Stock is convertible need
be made unless the adjustment would require an increase of
at least one-half of one percent (.5%) in the number of
shares of Common Stock into which each share of Preferred
Stock is convertible. Any adjustments that are not made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section
4.2(b)(iv)(C) shall be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be.
(8) In any case in which this Section 4.2(b)(iv)(C) shall
require that an adjustment as a result of any event become
effective from and after a record date, the Corporation may
elect to defer until after the occurrence of such event (a)
the issuance to the holder of any shares of Preferred Stock
converted after such record date and before the occurrence
of such event of the additional shares of Common Stock
issuable upon such conversion over and above the shares
issuable immediately prior to adjustment; and (b ) the
delivery of a check for any remaining fractional shares as
provided in Section 4.2(b)(iv)(A)(2) above.
(9) Except as provided in the immediately following
sentence, any determination that the Corporation or its
Board of Directors must make pursuant to this Section
4.2(b)(iv)(C) shall be conclusive. Whenever the Corporation
or its Board of Directors shall be required to make a
determination under this Section 4.2(b)(iv)(C), such
determination shall be made in good faith and may be
challenged in good faith by the holders of a majority of the
affected Series A Preferred Stock, Series B Preferred Stock
and/or Series C Preferred Stock, as applicable, and any
dispute shall be resolved promptly (and in no event later
than 90 days after any challenge), at the Corporation's
expense, by an investment banking firm of recognized
national standing selected by the Corporation and acceptable
to such holders of Series A Preferred Stock, Series B
Preferred Stock and/or Series C Preferred Stock, as
applicable. Any such determination shall be deemed approved
if the requisite holders have not notified the Corporation
of any challenge within
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30 days after receiving notice (including a statement in
reasonable detail of the bases therefor) of such
determination.
(v) Voting Rights.
(A) Except as otherwise set forth in this Section 4.2(b)(v)
or as otherwise required by law, each share of Preferred Stock
issued and outstanding shall have the right to vote on all
matters presented to the holders of the Common Stock for vote in
the number of votes equal at any time to the number of shares of
Common Stock into which each share of Preferred Stock would then
be convertible, and the holders of the Preferred Stock shall vote
with the holders of the Common Stock as a single class.
(B) In addition to any vote or consent of shareholders or
directors required by law or this Amended and Restated
Certificate of Incorporation, so long as any originally issued
Series A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock remains outstanding, the Required Consent of the
holders of the Series A Preferred Stock, Series B Preferred Stock
and/or Series C Preferred Stock shall be necessary for effecting,
validating or permitting:
(1) any amendment, alteration or repeal of any of the
provisions of the Corporation's Amended and Restated
Certificate of Incorporation or the Bylaws affecting the
rights, powers and preferences of the Series A Preferred
Stock, Series B Preferred Stock or Series C Preferred Stock,
as applicable, provided, however that the Required Consent
for this subparagraph (1) shall be of the holders of Series
A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock, voting as separate classes and only if such
series is affected; or
(2) any consolidation or merger of the Corporation with
or into any other corporation, or any other corporate
reorganization, in which the stockholders of the Corporation
immediately prior to such consolidation, merger or
reorganization, own less than 50% of the Corporation's
voting power immediately after such consolidation, merger or
reorganization; any transaction or series of related
transactions in which excess of 50% of the Corporation's
voting power is transferred; any reclassification or
recapitalization of any capital stock of the Corporation;
any dissolution, liquidation, or winding up of the
Corporation; or any sale of more than 50% of the assets of
the Corporation, or any agreement to become so obligated;
provided, however that the Required Consent for this
subparagraph (2) shall be of the holders
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of Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock, voting together as a single class.
(C) The rights of the holders of the Preferred Stock set
forth in this Section 4.2(b)(v) may be exercised either at a
special meeting of the holders of each series of Preferred Stock,
called as hereinafter provided, or at any annual meeting of
stockholders held for the purpose of electing directors, and
thereafter at such annual meetings, special meetings or by the
written consent of the holders of Preferred Stock, as applicable.
(D) A special meeting of the holders of Preferred Stock for
purposes of voting on matters with respect to which the holders
of such shares are entitled to vote as a class may be called by
the Secretary of the Corporation or by a holder of Preferred
Stock designated in writing by the holders of record of 10% of
the shares of such series of Preferred Stock then outstanding.
Such meeting may be called at the expense of the Corporation by
any such person. At any meeting of the holders of each series of
Preferred Stock, the presence in person or by proxy of the
holders of a majority of the shares of such series of Preferred
Stock then outstanding shall constitute a quorum of the such
series of Preferred Stock.
(vi) Miscellaneous.
(A) Headings of Sections. The headings of the various
subdivisions hereof are for convenience of reference only and
shall not affect the interpretation of any of the provisions
hereof.
(B) Severability of Provisions. If any voting powers,
preferences and relative, participating, optional and other
special rights of the Preferred Stock and qualifications,
limitations and restrictions thereof set forth herein (as may be
amended from time to time) is invalid, unlawful or incapable of
being enforced by reason of any rule of law or public policy, all
other voting powers, preferences and relative, participating,
optional and other special rights of Preferred Stock and
qualifications, limitations and restrictions thereof set forth
herein (as so amended) that can be given effect without the
invalid, unlawful or unenforceable voting powers, preferences and
relative, participating, optional and other special rights of
Preferred Stock and qualifications, limitations and restrictions
thereof shall, nevertheless, remain in full force and effect, and
no voting powers, preferences and relative, participating,
optional or other special rights of Preferred Stock and
qualifications, limitations and restrictions thereof herein set
forth shall be deemed dependent upon any other such voting
powers, preferences and relative,
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participating, optional or other special rights of Preferred
Stock and qualifications, limitations and restrictions thereof
unless so expressed herein.
(c) Other Series of Preferred Stock. Subject to the approval requirements
contained herein, the Board of Directors is hereby expressly authorized by
resolution from time to time adopted providing for the issuance of preferred
stock, to fix and state the designations, powers, preferences and relative,
optional and other special rights of the shares of each series of preferred
stock, and the qualifications, limitations and restrictions thereof, including
(but without limiting the generality of the foregoing) any of the following with
respect to which the Board of Directors shall determine to make effective
provisions:
(i) the distinctive name and serial designation;
(ii) the dividend payment dates;
(iii) the rate or rates at which dividends if any shall be paid;
(iv) whether dividends are to be cumulative or noncumulative, and any
preferential or other special rights with respect to the payment of
dividends;
(v) whether any series shall be redeemable and if so, the terms,
conditions and manner of redemption, and the redemption price or prices;
(vi) he rights of any series on voluntary or involuntary liquidation,
dissolution or winding up, including the amounts or amounts of preferential
or other payments to which any series is entitled over any other series or
over the common stock;
(vii) any sinking fund or other retirement provisions and the extent
to which the charges therefor are to have priority over the payment of
dividends on or the making of sinking fund or other like retirement
provisions for shares of any other series or over dividends on the common
stock;
(viii) the number of shares of such series;
(ix) the voting rights, if any, for such series; and
(x) the conversion rights, if any, for such series.
Unless otherwise provided in the resolution of the Board of Directors
providing for the issue thereof, the shares of any series of preferred stock
which shall be issued and thereafter
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acquired by the Corporation through purchase, redemption, conversion or
otherwise may by resolution of the Board of Directors be returned to the status
of authorized but unissued preferred stock of the same or other series. Unless
otherwise provided in the resolution of the Board of Directors providing for the
issue thereof, the number of authorized shares of stock of any such series may
be increased or decreased (but not below the number of shares thereof then
outstanding) by resolution by the Board of Directors. In case the number of
shares of any such series of preferred stock shall be decreased, the shares
representing such decrease shall, unless otherwise provided in the resolution of
the Board of Directors providing for the issuance thereof, resume the status of
authorized but unissued preferred stock, undesignated as to series.
ARTICLE V
LIMITATION ON LIABILITY
To the fullest extent permitted by the General Corporation Law of Delaware,
as the same exists or may hereafter be amended, a director of the Corporation
shall not be liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. Any repeal or modification of this
Article by the stockholders of the Corporation shall be prospective only and
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
ARTICLE VI
INDEMNIFICATION
Each person who is or was a director or officer of the Corporation, and
each such person who is or was serving at the request of the Corporation as a
director or officer of another Corporation, or in a similar capacity of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans maintained or sponsored by the Corporation
(including the heirs, executors, administrators and estate of such person) shall
be indemnified by the Corporation, in accordance with the procedures specified
in the Bylaws of the Corporation, to the fullest extent permitted from time to
time by the General Corporation Law of the State of Delaware. The Corporation
may, to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of this Article
with respect to the indemnification and advancement of expenses of directors and
officers of the Corporation, without limiting the generality of the foregoing,
the Corporation may enter into one or more agreements with any person that
provide for indemnification and advancement of expenses greater or different
than that provided in this Article. No amendment or repeal of this Article shall
adversely affect any right or protection existing under or pursuant to this
Article immediately before the amendment or repeal.
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ARTICLE VII
ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless the bylaws of
the Corporation so provide.
ARTICLE VIII
AMENDMENTS TO BYLAWS
The Board of Directors of the Corporation is expressly authorized to make,
alter or repeal the bylaws of the Corporation.
[signature page follows]
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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
of the Corporation has been executed this 31st day of August 2000.
ARRAY BIOPHARMA INC.
By: /s/ ROBERT CONWAY
--------------------------------------
Robert Conway, Chief Executive Officer
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