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EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
OF THE RESTATED CERTIFICATE OF INCORPORATION OF
DENDREON CORPORATION
Dendreon Corporation, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies as follows:
FIRST: The name of the Corporation is Dendreon Corporation.
SECOND: Paragraph A of Article IV of the Restated Certificate of
Incorporation of the Corporation is hereby amended in its entirety to read as
follows:
A. This Corporation is authorized to issue two classes of stock, to
be designated, respectively, "Common Stock" and "Preferred Stock." The
total number of shares that the Corporation is authorized to issue is
thirty-three million six hundred thirty-two thousand nine hundred thirty-
six (33,632,936) shares. Nineteen million nine hundred ten thousand
(19,910,000) shares shall be Common Stock, each having a par value of one
tenth of one cent ($0.001). Thirteen million seven hundred twenty-two
thousand nine hundred thirty-six (13,722,936) shares shall be Preferred
Stock, each having a par value of one tenth of one cent ($0.001). Upon the
filing of this Amendment to the Restated Certificate of Incorporation,
every outstanding share of Common Stock shall be split on the basis of 1.1
share for each one (1) outstanding share of Common Stock.
THIRD: The foregoing amendment to the Restated Certificate of
Incorporation of the Corporation has been duly adopted by the directors and
stockholders of the Corporation in accordance with the provisions of Sections
141, 228 and 242 of the General Corporation Law of the State of Delaware.
In Witness Whereof, the Corporation has executed this Certificate of
Amendment on the 13th day of June, 2000.
Dendreon Corporation
By: /s/ T. Dennis George
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T. Dennis George, Senior Vice
President, Corporate Affairs, General
Counsel and Secretary
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Filed with Delaware Secretary of State
on September 3, 1999
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
DENDREON CORPORATION
(Pursuant to Section 245)
Christopher S. Henney, Ph.D. and Martin A. Simonetti hereby certify that:
ONE: The original name of this corporation is Activated Cell Therapy,
Inc. and the date of filing of the original Certificate of Incorporation of this
corporation with the Secretary of State of Delaware is August 14, 1992.
TWO: They are the duly elected and acting Chief Executive Officer and
President and Secretary, respectively, of Dendreon Corporation, a Delaware
corporation.
THREE: The Amended and Restated Certificate of Incorporation of this
corporation is hereby amended and restated to read as follows:
I.
The name of the Corporation is Dendreon Corporation (the "Corporation" or
the "Company").
II.
The registered agent and the address of the registered office in the State
of Delaware are:
The Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
County of New Castle
III.
The purpose of this Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the Delaware General Corporation
Law.
IV.
A. This Corporation is authorized to issue two classes of stock, to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares that the Corporation is authorized to issue is thirty-one million
eight hundred twenty-two thousand nine hundred thirty-six (31,822,936) shares.
Eighteen million one hundred thousand (18,100,000) shares shall be Common Stock,
each having a par value of one tenth of one cent ($0.001). Thirteen million
seven hundred twenty-two thousand nine hundred thirty-six (13,722,936) shares
shall be Preferred Stock, each having a par value of one tenth of one cent
($0.001).
B. Five hundred seven thousand five hundred (507,500) of the authorized
shares of Preferred Stock are hereby designated "Series A Preferred Stock" (the
"Series A Preferred").
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Four million two hundred sixty-four thousand three hundred seventy-five
(4,264,375) of the authorized shares of Preferred Stock are hereby designated
"Series B Preferred Stock" (the "Series B Preferred"). Three million three
hundred eight thousand one hundred seventy-nine (3,308,179) of the authorized
shares of Preferred Stock are hereby designated "Series C Preferred Stock" (the
"Series C Preferred"). Nine hundred thirty-seven thousand (937,000) of the
authorized shares of Preferred Stock are hereby designated "Series D Preferred
Stock" (the "Series D Preferred"). Four million seven hundred five thousand
eight hundred eighty-two (4,705,882) of the authorized shares of Preferred Stock
are hereby designated "Series E Preferred Stock" (the "Series E Preferred"). The
Series A Preferred, Series B Preferred, Series C Preferred, Series D Preferred
and Series E Preferred are referred to herein as "Preferred Stock".
C. The rights, preferences, privileges, restrictions and other matters
relating to the Preferred Stock are as follows:
1. Dividend Rights.
1.1 Holders of Preferred Stock, in preference to the holders of any
other stock of the Corporation ("Junior Stock"), shall be entitled to receive
dividends, when, as and if declared by the Board of Directors, but only out of
funds that are legally available therefor. Such dividends shall not be
cumulative and no right shall accrue to holders of shares of Preferred Stock by
reason of the fact that dividends on such shares are not declared in any prior
year, nor shall any undeclared or unpaid dividend bear or accrue interest.
1.2 So long as any shares of Preferred Stock shall be outstanding, no
dividend, whether in cash or property, shall be paid or declared, nor shall any
other distribution be made (whether in cash, shares of capital stock of the
corporation, or other property), on any Junior Stock until all declared but
unpaid dividends on the Preferred Stock shall have been paid or declared and set
apart. In the event dividends are paid on any share of Common Stock, an
additional dividend shall be paid with respect to all outstanding shares of
Preferred Stock in an amount for each such share of Preferred Stock equal to the
aggregate amount of such dividends for all shares of Common Stock into which
each such share of Preferred Stock could then be converted.
2. Voting Rights.
2.1 Except as otherwise provided herein or as required by law, the
Preferred Stock shall be voted equally with the shares of the Common Stock of
the Corporation and not as a separate class, at any annual or special meeting of
stockholders of the Corporation, and may act by written consent in the same
manner as the Common Stock, in either case upon the following basis: each holder
of shares of Preferred Stock shall be entitled to such number of votes as shall
be equal to the whole number of shares of Common Stock into which such holder's
aggregate number of shares of Preferred Stock are convertible (pursuant to
Section 4 hereof) immediately after the close of business on the record date
fixed for such meeting or the effective date of such written consent.
2.2 In addition to any other vote or consent required herein or by
law, so long as any Preferred Stock is outstanding, the vote or written consent
of the holders of a majority of the outstanding Preferred Stock which, if at
least two such holders of Preferred Stock remain, shall include at least two
holders of Preferred Stock one of which shall not be HealthCare
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Ventures III, L.P., HealthCare Ventures IV, L.P., Everest Trust or Hudson Trust
or any persons or entities that are or have been affiliated with such ventures
(collectively the "Ventures"), each of which owns at least 220,000 shares of
Preferred Stock (as adjusted for stock dividends, combinations, splits,
recapitalizations and the like with respect to such shares), shall be necessary
for effecting or validating the following actions (collectively, the
"Supermajority Vote");
2.2.1 Any amendment, alteration, or repeal of any provision of the
Certificate of Incorporation or the Bylaws of the Corporation that affects
adversely the voting powers, preferences or other special rights or
qualifications, limitations or restrictions of the Preferred Stock;
2.2.2 Any reclassification of any shares of the Corporation's capital
stock as shares ranking senior to or on parity with the Preferred Stock with
respect to rights on liquidation, redemption or for the payment of any dividend
or distribution other than in liquidation;
2.2.3 Any amendment, alteration or repeal of any provision of the
Certificate of Incorporation of the Corporation;
2.2.4 Any change as a whole, by subdivision or combination in any
manner, in the number of shares of the Common Stock then outstanding into a
different number of shares, with or without par value, without making the
identical change as a whole in the number of shares of Preferred Stock then
outstanding;
2.2.5 Any authorization or any increase, whether by reclassification
or otherwise, in the authorized amount of any class of shares or series of
equity securities of the Corporation ranking on a parity with or prior to the
Preferred Stock in right of dividends, voting or liquidation preference or any
authorization or issuance of shares of Common Stock (except for shares of Common
Stock issued (1) pursuant to employee benefit plans approved by the Board of
Directors, (2) upon the conversion of any shares of Preferred Stock, or (3) upon
the exercise and/or conversion of any warrant outstanding on the Original Issue
Date);
2.2.6 Any agreement to sell, lease or otherwise dispose of all or
substantially all of the assets, property or business of the Corporation or any
subsidiary of the Corporation, or to merge or consolidate the Corporation or any
subsidiary of the Corporation with any person, or permit any other person to
merge into the Corporation or any subsidiary of the Corporation, or any other
reorganization, except for mergers, consolidations or reorganizations in which,
after giving effect to the merger, consolidation, or reorganization, the holders
of the Corporation's outstanding capital stock immediately preceding such merger
own at least fifty percent (50%) of the voting power of the surviving
corporation;
2.2.7 Any voluntary dissolution, liquidation or winding up of the
Corporation; or
2.2.8 Any redemption of, or payment of dividends with respect to,
Junior Stock (other than a repurchase approved by the Board of Directors of
Junior Stock pursuant to the exercise of any contractual or other legal rights
of the Company of first refusal or repurchase or the repurchase of shares of
Common Stock issued pursuant to any employee benefit plan of
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the Corporation for employees and others who render services to the Corporation,
in connection with the termination of services).
2.3 In addition to the voting rights above, the hiring or termination
of a Chief Executive Officer (a "CEO") requires the approval of (i) a majority
of the Corporation's Directors who were Directors of the Company on April 1,
1996 or Directors nominated by such Directors (or by such successor Directors),
or (ii) the vote or written consent of the holders of a majority of the
outstanding shares of Preferred Stock which, so long as at least two such
holders of Preferred Stock remain, shall include at least two holders of
Preferred Stock, one of which shall not be one of the Ventures, each of which
owns at least 140,000 shares of Preferred Stock (as adjusted for splits,
recapitalizations and the like). Notwithstanding the foregoing, the termination
of a CEO for "cause" or the hiring of a CEO in the event that such position has
been vacant for a period greater than nine consecutive months, shall only
require (1) the approval of a majority vote of the Board of Directors present at
a meeting at which a quorum is present or (ii) the majority vote or written
consent of the holders of outstanding Preferred Stock.
3. Liquidation Rights.
3.1 Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, before any distribution or
payment shall be made to the holders of any Junior Stock, the holders of
Preferred Stock shall be entitled to be paid out of the assets of the
Corporation, in preference to the holders of Junior Stock, an amount per share
equal to the Original Issue Price for each such series of Preferred Stock (as
adjusted for any stock dividends, combinations, splits, recapitalizations and
the like with respect to such shares) and all declared but unpaid dividends on
such shares to the date of such payment. The Original Issue Price of the Series
A Preferred, the Series B Preferred, the Series C Preferred, the Series D
Preferred and the Series E Preferred shall be $20.00, $3.41, $3.60, $5.00 and
$4.25 per share, respectively.
3.2 After the payment of the full liquidation preference of the
Preferred Stock as set forth in Section 1.3 above, the holders of the Common
Stock and the Preferred Stock shall receive the remaining assets. Such assets
shall be distributed ratably among such holders in proportion to the shares of
Common Stock held by them and which they have the right to acquire upon
conversion of shares of Preferred Stock held by them.
3.3 The following events shall be considered a liquidation under this
Section 3:
3.3.1 any merger or reorganization of the Corporation with or
into any other corporation or other entity or person in which transaction the
Corporation's stockholders immediately prior to such transaction own immediately
after such transaction less than 50% of the equity securities of the surviving
corporation or its parent; or
3.3.2 a sale, lease or other disposition of all or substantially
all of the assets of the Corporation.
3.4 If, upon any liquidation, distribution, or winding up, the assets
of the Corporation shall be insufficient to make payment in full to all holders
of Preferred Stock, then
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such assets shall be distributed among the holders of Preferred Stock at the
time outstanding, ratably in proportion to the full amounts to which they would
otherwise be respectively entitled.
3.5 Any securities to be delivered to the holders of the Preferred
Stock and Common Stock upon a merger, reorganization or sale of all or
substantially all of the assets of the Corporation shall be valued as follows:
3.5.1 if traded on a securities exchange, the value shall be
deemed to be the average of the closing prices of the securities on such
exchange over the 30-day period ending five (5) business days prior to the
closing;
3.5.2 if actively traded over-the-counter, the value shall be
deemed to be the average of the closing bid prices over the 30-day period ending
five (5) business days prior to the closing; and
3.5.3 if there is no active public market, the value shall be
the fair market value thereof, as determined by the Corporation's Board of
Directors.
4. Conversion Rights.
The holders of the Preferred Stock shall have the following rights
with respect to the conversion of the Preferred Stock into shares of Common
Stock:
4.1 Optional Conversion. Subject to and in compliance with the
provisions of this Section 4, any shares of Preferred Stock may, at the option
of the holder, be converted at any time into fully-paid and nonassessable shares
of Common Stock. The number of shares of Common Stock to which a holder of
Series A Preferred shall be entitled upon conversion shall be the product
obtained by multiplying the "Series A Conversion Rate" then in effect
(determined as provided in Section 4.2) by the number of shares of Series A
Preferred being converted. The number of shares of Common Stock to which a
holder of Series B Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the "Series B Conversion Rate" then in effect
(determined as provided in Section 4.2) by the number of shares of Series B
Preferred being converted. The number of shares of Common Stock to which a
holder of Series C Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the "Series C Conversion Rate" then in effect
(determined as provided in Section 4.2) by the number of shares of Series C
Preferred being converted. The number of shares of Common Stock to which a
holder of Series D Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the "Series D Conversion Rate" then in effect
(determined as provided in Section 4.2) by the number of shares of Series D
Preferred being converted. The number of shares of Common Stock to which a
holder of Series E Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the "Series E Conversion Rate" then in effect
(determined as provided in Section 4.2) by the number of shares of Series E
Preferred being converted.
4.2 Conversion Rate. The conversion rate in effect at any time for
conversion of the Series A Preferred (the "Series A Conversion Rate") shall be
the quotient obtained by dividing $3.41 by the "Series A Conversion Price,"
calculated as provided in Section 4.3. The conversion rate in effect at any time
for conversion of the Series B Preferred (the "Series B Conversion Rate") shall
be the quotient obtained by dividing $3.41 by the "Series B
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Conversion Price," calculated as provided in Section 4.3. The conversion rate in
effect at any time for conversion of the Series C Preferred (the "Series C
Conversion Rate") shall be the quotient obtained by dividing $3.60 by the
"Series C Conversion Price," calculated as provided in Section 4.3. The
conversion rate in effect at any time for conversion of the Series D Preferred
(the "Series D Conversion Rate") shall be the quotient obtained by dividing
$5.00 by the "Series D Conversion Price," calculated as provided in Section 4.3.
The conversion rate in effect at any time for conversion of the Series E
Preferred (the "Series E Conversion Rate") shall be the quotient obtained by
dividing $4.25 by the "Series E Conversion Price," calculated as provided in
Section 4.3.
4.3 Conversion Price. The conversion price for the Series A Preferred
shall initially be $3.41 (the "Series A Conversion Price"). The conversion price
of the Series B Preferred shall initially be $3.41 (the "Series B Conversion
Price"). The conversion price for the Series C Preferred shall initially be
$3.60 (the "Series C Conversion Price"). The conversion price for the Series D
Preferred shall initially be $5.00 (the "Series D Conversion Price"). The
conversion price for the Series E Preferred shall initially be $4.25 (the
"Series E Conversion Price"). Such initial Series A Conversion Price, Series B
Conversion Price, Series C Conversion Price, Series D Conversion Price and
Series E Conversion Price (collectively, the "Conversion Prices") shall be
adjusted from time to time in accordance with this Section 4. All references to
the Conversion Prices herein shall mean the respective Conversion Prices as so
adjusted.
4.4 Mechanics of Conversion. Each holder of Preferred Stock who
desires to convert the same into shares of Common Stock pursuant to this Section
4 shall surrender the certificate or certificates therefor, duly endorsed, at
the office of the Corporation or any transfer agent for the Preferred Stock, and
shall give written notice to the Corporation at such office that such holder
elects to convert the same. Such notice shall state the number of shares of
Preferred Stock being converted. Thereupon, the Corporation shall promptly issue
and deliver at such office to such holder a certificate or certificates for the
number of shares of Common Stock to which such holder is entitled and shall
promptly pay in cash or, to the extent sufficient funds are not then legally
available therefor, in Common Stock (at the Common Stock's fair market value
determined by the Board of Directors as of the date of such conversion), any
declared and unpaid dividends on the shares of Preferred Stock being converted.
Such conversion shall be deemed to have been made at the close of business on
the date of such surrender of the certificates representing the shares of
Preferred Stock to be converted, and the person entitled to receive the shares
of Common Stock issuable upon such conversion shall be treated for all purposes
as the record holder of such shares of Common Stock on such date.
4.5 Adjustments to Conversion Prices for Certain Diluting Issues.
4.5.1 Special Definitions. For purposes of this Section 4, the
following definitions apply:
4.5.1.1 "Options" shall mean rights, options or warrants
to subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
4.5.1.2 "Original Issue Date" shall mean the date on
which a share of Series E Preferred Stock was first issued.
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4.5.1.3 "Convertible Securities" shall mean any evidences
of indebtedness, shares (other than Common Stock and Series A Preferred, Series
B Preferred, Series C Preferred, Series D Preferred or Series E Preferred) or
other securities convertible into or exchangeable for Common Stock.
4.5.1.4 "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to Section 4.5.3, deemed to be
issued) by the Corporation after the Original Issue Date, other than shares of
Common Stock issued or issuable:
4.5.1.4.1 upon the exercise or conversion of
options or warrants to purchase Common Stock or Preferred Stock that are
outstanding on the Original Issue Date;
4.5.1.4.2 upon conversion of any shares of Series
A Preferred, Series B Preferred, Series C Preferred, Series D Preferred or
Series E Preferred;
4.5.1.4.3 to officers, directors or employees of,
or consultants to, the Corporation pursuant to any employee benefit plans or
agreements on terms approved by the Board of Directors;
4.5.1.4.4 to investors or to placement agents or
finders in connection with the Series E Preferred Stock financing approved by
the Company's Board of Directors;
4.5.1.4.5 pursuant to Restricted Stock Option
Agreements dated as of September 30, 1992 between the Corporation and Dr. Sam
Strober, Dr. Edgar G. Engleman and Dr. William Haseltine;
4.5.1.4.6 pursuant to any merger, consolidation or
reorganization of the Corporation with or into any other corporation or other
entity or person in which transaction the Corporation's stockholders immediately
prior to such transaction own immediately after such transaction directly or
indirectly more than 50% of the voting power of the surviving corporation;
4.5.1.4.7 as a dividend or distribution on the
shares excluded from the definition of Additional Shares of Common Stock by the
foregoing clauses 4.5.1.4.1 to 4.5.1.4.6 or this clause 4.5.1.4.7; or
4.5.1.4.8 for which adjustment of the Series A,
Series B, Series C, Series D or Series E Conversion Price is made pursuant to
Sections 4.6 through Section 4.8, inclusive.
4.5.1.5 "Qualified Public Offering" shall mean the
sale of the Corporation's Common Stock in an underwritten public offering
registered under the Securities Act of 1933, as amended (the "Act"), other than
a registration relating solely to a transaction under Rule 145 under such Act
(or any successor thereto) or to an employee benefit plan of the Corporation,
the aggregate gross offering proceeds (before underwriting discounts,
commissions and fees) of which are not less than $15,000,000 and resulting in a
market capitalization after the Qualified Public Offering (based on the
Qualified Public Offering price) of not less than $40,000,000.
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4.5.2 No Adjustment of Conversion Price. Any provision herein to
the contrary notwithstanding, no adjustment in the Series A Conversion Price,
Series B Conversion Price, Series C Conversion Price, Series D Conversion Price
or the Series E Conversion Price shall be made in respect of the issuance of
Additional Shares of Common Stock unless the consideration per share (determined
pursuant to Section 4.5.5 hereof) for an Additional Share of Common Stock issued
or deemed to be issued by the Corporation is less than the Series A Conversion
Price, Series B Conversion Price, Series C Conversion Price, Series D Conversion
Price or the Series E Conversion Price, respectively, in effect on the date of,
and immediately prior to, such issue; provided, however, that no adjustment in
the Series D Conversion Price shall be made in respect of the issuance of any
shares of Series E Preferred or any shares of Common Stock issued or issuable
upon conversion of any shares of Series E Preferred.
4.5.3 Deemed Issue of Additional Shares of Common Stock. In the
event the Corporation at any time or from time to time after the Original Issue
Date shall issue any Options or Convertible Securities or shall fix a record
date for the determination of holders of any class of securities then entitled
to receive any such Options or Convertible Securities (other than Options or
Convertible Securities described in Sections 4.5.1.4.1, 4.5.1.4.3 or 4.5.1.4.5
above), then the maximum number of shares (as set forth in the instrument
relating thereto without regard to any provisions contained therein designed to
protect against dilution) of Common Stock issuable upon the exercise of such
Options or, in the case of Convertible Securities and Options therefor, the
conversion or exchange of such Convertible Securities and Options, shall be
deemed to be Additional Shares of Common Stock issued as of the time of such
issue or, in case such a record date shall have been fixed, as of the close of
business on such record date, provided that in any such case in which Additional
Shares of Common Stock are deemed to be issued:
4.5.3.1 no further adjustments in the Conversion Price for the
Series A, B, C, D or E Preferred shall be made upon the subsequent issue of
Convertible Securities or shares of Common Stock upon the exercise of such
Options or conversion or exchange of such Convertible Securities;
4.5.3.2 if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase or decrease in
the consideration payable to the Corporation, or decrease or increase in the
number of shares of Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Series A Conversion Price, Series B Conversion Price,
Series C Conversion Price, Series D Conversion Price or Series E Conversion
Price computed upon the original issue thereof (or upon the occurrence of a
record date with respect thereto), and any subsequent adjustments based thereon,
shall, upon any such increase or decrease becoming effective, be recomputed to
reflect such increase or decrease insofar as it affects such Options or the
rights of conversion or exchange under such Convertible Securities (provided,
however, that no such adjustment of the Series A Conversion Price, Series B
Conversion Price, Series C Conversion Price, Series D Conversion Price or Series
E Conversion Price shall affect Common Stock previously issued upon conversion
of the Series A, B, C, D or E Preferred);
4.5.3.3 upon the expiration of any such Options or any rights of
conversion or exchange under such Convertible Securities which shall not have
been exercised, the Series A Conversion Price, Series B Conversion Price, Series
C Conversion Price, Series D Conversion Price or Series E Conversion Price
computed upon the original issue thereof (or upon
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the occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon such expiration, be recomputed as if:
4.5.3.3.1 in the case of Convertible Securities or Options
for Common Stock, the only Additional Shares of Common Stock issued were the
shares of Common Stock, if any, actually issued upon the exercise of such
Options or the conversion or exchange of such Convertible Securities and the
consideration received therefor was the consideration actually received by the
Corporation for the issue of all such Options, whether or not exercised, plus
the consideration actually received by the Corporation upon such exercise, or
for the issue of all such Convertible Securities which were actually converted
or exchanged, plus the additional consideration, if any, actually received by
the Corporation upon such conversion or exchange, and
4.5.3.3.2 in the case of Options for Convertible Securities
only the Convertible Securities, if any, actually issued upon the exercise
thereof were issued at the time of issue of such Options, and the consideration
received by the Corporation for the Additional Shares of Common Stock deemed to
have been then issued was the consideration actually received by the Corporation
for the issue of all such Options, whether or not exercised, plus the
consideration deemed to have been received by the Corporation (determined
pursuant to Section 4.5.5) upon the issue of the Convertible Securities with
respect to which such Options were actually exercised;
4.5.3.4 no readjustment pursuant to clause 4.5.3.2 or 4.5.3.3
above shall have the effect of increasing the Series A Conversion Price, Series
B Conversion Price, Series C Conversion Price, Series D Conversion Price or
Series E Conversion Price to an amount which exceeds the lower of (a) the Series
A Conversion Price, Series B Conversion Price, Series C Conversion Price, Series
D Conversion Price or Series E Conversion Price, respectively, on the original
adjustment date, or (b) the Series A Conversion Price, Series B Conversion
Price, Series C Conversion Price, Series D Conversion Price or Series E
Conversion Price, respectively, that would have resulted from any issuance of
Additional Shares of Common Stock between the original adjustment date and such
readjustment date;
4.5.3.5 in the case of any Options that expire by their terms not
more than 30 days after the date of issue thereof, no adjustment of the Series A
Conversion Price, Series B Conversion Price, Series C Conversion Price, Series D
Conversion Price or Series E Conversion Price shall be made until the expiration
or exercise of all such Options, whereupon such adjustment shall be made in the
same manner provided in 4.5.3.3 above.
4.5.4 Adjustment of Conversion Price Upon Issuance of Additional
Shares of Common Stock. In the event the Corporation, at any time after the
Original Issue Date shall issue Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant to Section 4.5.3)
without consideration or for a consideration per share less than the Conversion
Price with respect to any series of Preferred Stock in effect on the date of and
immediately prior to such issue, then and in such event, the Conversion Price
for such series of Preferred Stock shall be reduced, concurrently with such
issue, to a price (calculated to the nearest cent) determined by multiplying
such Conversion Price by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such issue plus the
number of shares of Common Stock that the aggregate consideration received by
the Corporation for the total number of Additional Shares of Common
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Stock so issued would purchase at such Conversion Price in effect immediately
prior to such issuance, and 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 Common Stock so issued. For the purpose of
the above calculation, the number of shares of Common Stock outstanding
immediately prior to such issue shall be calculated on a fully diluted basis, as
if all shares of Series A, B, C, D or E Preferred and all Convertible Securities
had been fully converted into shares of Common Stock immediately prior to such
issuance and any outstanding warrants, options or other rights for the purchase
of shares of stock or convertible securities (excluding options granted pursuant
to Restricted Stock Option Agreements dated as of September 30, 1992 between the
Corporation and Dr. Sam Strober, Dr. Edgar G. Engleman and Dr. William
Haseltine) had been fully exercised immediately prior to such issuance (and the
resulting securities fully converted into shares of Common Stock, if so
convertible) as of such date.
4.5.5 Determination of Consideration. For purposes of this
Section 4.5, the consideration received by the Corporation for the issue of any
Additional Shares of Common Stock shall be computed as follows:
4.5.5.1 Cash and Property. Such consideration shall:
4.5.5.1.1 insofar as it consists of cash, be computed
at the aggregate amount of cash received by the Corporation excluding amounts
paid or payable for accrued interest or accrued dividends;
4.5.5.1.2 insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such issue, as
determined in good faith by the Board; and
4.5.5.1.3 in the event Additional Shares of Common
Stock are issued together with other shares or securities or other assets of the
Corporation for consideration that covers both, be the proportion of such
consideration so received, computed as provided in clauses 4.5.5.1.1 and
4.5.5.1.2 above, as determined in good faith by the Board.
4.5.5.2 Options and Convertible Securities. The
consideration per share received by the Corporation for Additional Shares of
Common Stock deemed to have been issued pursuant to Section 4.5.3, relating to
Options and Convertible Securities, shall be determined by dividing;
4.5.5.2.1 the total amount, if any, received or
receivable by the Corporation as consideration for the issue of such Options or
Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein designed to protect against dilution) payable
to the Corporation upon the exercise of such Options or the conversion or
exchange of such Convertible Securities, or in the case of Options for
Convertible Securities, the exercise of such Options for Convertible Securities
and the conversion or exchange of such Convertible Securities by
4.5.5.2.2 the maximum number of shares of Common Stock
(as set forth in the instruments relating thereto, without regard to any
provision contained
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therein designed to protect against dilution) issuable upon the exercise of such
Options or conversion or exchange of such Convertible Securities.
4.6 Adjustment for Stock Splits and Combinations. If the Corporation
shall at any time or from time to time after the Original Issue Date effect a
subdivision of the outstanding Common Stock, the Conversion Prices in effect
immediately before that subdivision shall be proportionately decreased.
Conversely, if the Corporation shall at any time or from time to time after the
Original Issue Date combine the outstanding shares of Common Stock into a
smaller number of shares, the Conversion Prices in effect immediately before the
combination shall be proportionately increased. Any adjustment under this
Section 4.6 shall become effective at the close of business on the date the
subdivision or combination becomes effective.
4.7 Adjustment for Common Stock Dividends and Distributions. If the
Corporation at any time or from time to time after the Original Issue Date
makes, or fixes 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, in each such event the Conversion Prices that are then
in effect shall be decreased as of the time of such issuance or, in the event
such record date is fixed, as of the close of business on such record date, by
multiplying the Conversion Prices then in effect by a fraction (i) the numerator
of which is the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on such
record date, and (ii) the denominator of which is the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the number of shares
of Common Stock issuable in payment of such dividend or distribution; provided,
however, that if such record date is fixed and such dividend is not fully paid
or if such distribution is not fully made on the date fixed therefor, the
Conversion Prices shall be recomputed accordingly as of the close of business on
such record date and thereafter the Conversion Prices shall be adjusted pursuant
to this Section 4.7 to reflect the actual payment of such dividend or
distribution.
4.8 Adjustments for Other Dividends and Distributions. If the
Corporation at any time or from time to time after the Original Issue Date
makes, or fixes 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, in each such event provision
shall be made so that the holders of the Preferred Stock shall receive upon
conversion thereof, in addition to the number of shares of Common Stock
receivable thereupon, the amount of other securities of the Corporation that
they would have received had their Preferred Stock been converted into Common
Stock on the date of such event and had they 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, subject to all
other adjustments called for during such period under this Section 4 with
respect to the rights of the holders of the Preferred Stock or with respect to
such other securities by their terms.
4.9 Adjustment for Reclassification, Exchange and Substitution. If at
any time or from time to time after the Original Issue Date, the Common Stock
issuable upon the conversion of the Preferred Stock is changed into the same or
a different number of shares of any class or classes of stock or other
securities or property, whether by recapitalization, reclassification or
otherwise (other than a subdivision or combination of shares or stock dividend
or a reorganization, merger, consolidation or sale of assets provided for
elsewhere in this Section 4 or in Section 3.3), in any such event each holder of
Preferred Stock shall have the right
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thereafter to convert such stock into the kind and amount of stock and other
securities and property receivable upon such recapitalization, reclassification
or other change by holders of the maximum number of shares of Common Stock into
which such shares of Preferred Stock could have been converted immediately prior
to such recapitalization, reclassification or change, all subject to further
adjustment as provided herein or with respect to such other securities or
property by the terms thereof.
4.10 Adjustment for Capital Reorganizations. If at any time or from
time to time after the Original Issue Date, there is a capital reorganization of
the Common Stock (other than a recapitalization, subdivision, combination,
reclassification, exchange or substitution of shares provided for elsewhere in
this Section 4 or in Section 3.3), as a part of such capital reorganization
provision shall be made so that the holders of the Preferred Stock shall
thereafter be entitled to receive upon conversion of the Preferred Stock the
number of shares of stock or other securities or property of the Corporation to
which a holder of the number of shares of Common Stock deliverable upon
conversion would have been entitled on such capital reorganization, subject to
adjustment in respect of such stock or securities by the terms thereof. In any
such case, appropriate adjustment shall be made in the application of the
provisions of this Section 4 with respect to the rights of the holders of
Preferred Stock after the capital reorganization to the end that the provisions
of this Section 4 (including adjustment of the Conversion Prices then in effect
and the number of shares issuable upon conversion of the Preferred Stock) shall
be applicable after that event and be as nearly equivalent as practicable.
4.11 Certificate of Adjustment. In each case of an adjustment or
readjustment of the Conversion Prices for the number of shares of Common Stock
or other securities issuable upon conversion of the Preferred Stock, if the
Preferred Stock is then convertible pursuant to this Section 4, the Corporation,
at its expense, shall compute such adjustment or readjustment in accordance with
the provisions hereof and prepare a certificate showing such adjustment or
readjustment, and shall mail such certificate, by first class mail, postage
prepaid, to each registered holder of Preferred Stock at the holder's address as
shown in the Corporation's books. The certificate shall set forth such
adjustment or readjustment, showing in detail the facts upon which such
adjustment or readjustment is based, including a statement of (i) such
adjustments and readjustments, (ii) the Conversion Prices, and (iii) 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 such holder's shares.
4.12 Notices of Record Date. Upon (i) any taking by the 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 or
other distribution, or (ii) any capital reorganization of the Corporation, any
reclassification or recapitalization of the capital stock of the Corporation,
any merger or consolidation of the Corporation with or into any other
corporation, or any transfer of all or substantially all the assets of the
Corporation to any other person, or any voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, the Corporation shall mail to each
holder of Preferred Stock at least fifteen (15) days prior to the record date
specified therein a notice specifying (1) the date on which any such record is
to be taken for the purpose of such dividend or distribution and a description
of such dividend or distribution, (2) the date on which any such reorganization,
reclassification, transfer, consolidation, merger, dissolution, liquidation or
winding up is expected to become effective, and (3) the date, if any, that is to
be fixed as to when the holders of record of Common Stock (or other securities)
shall be entitled to exchange their shares of Common Stock (or other securities)
for securities or other property
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deliverable upon such reorganization, reclassification, transfer, consolidation,
merger, dissolution, liquidation or winding up.
4.13 Automatic Conversion.
4.13.1 Each share of Preferred Stock shall automatically be
converted into shares of Common Stock, based on the then-effective Series A
Conversion Price, Series B Conversion Price, Series C Conversion Price, Series D
Conversion Price and Series E Conversion Price, as applicable, at any time upon
a Supermajority Vote, or immediately upon the closing of a Qualified Public
Offering. Upon such automatic conversion, any declared and unpaid dividends
shall be paid in accordance with the provisions of Section 4.4.
4.13.2 Upon the occurrence of the event specified in paragraph
4.13.1 above, the outstanding shares of 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; provided, however, that the Corporation shall
not be obligated to issue certificates evidencing the shares of Common Stock
issuable upon such conversion unless the certificates evidencing such shares of
Preferred Stock are either delivered to the Corporation or its transfer agent as
provided below, 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. Upon the occurrence of
such automatic conversion of the Preferred Stock, the holders of Preferred Stock
shall surrender the certificates representing such shares at the office of the
Corporation or any transfer agent for the Preferred Stock. Thereupon, there
shall be issued and delivered to such holder promptly at such office and in its
name as shown on such surrendered certificate or certificates, a certificate or
certificates for the number of shares of Common Stock into which the shares of
Preferred Stock surrendered were convertible on the date on which such automatic
conversion occurred, and the Corporation shall promptly pay in cash or, at the
option of the Corporation, Common Stock (at the Common Stock's fair market value
determined by the Board as of the date of such conversion), or, at the option of
the Corporation, both, all declared and unpaid dividends on the shares of
Preferred Stock being converted, to and including the date of such conversion.
4.14 Fractional Shares. No fractional shares of Common Stock shall be
issued upon conversion of Preferred Stock. All shares of Common Stock (including
fractions thereof) issuable upon conversion of more than one share of Preferred
Stock by a holder thereof shall be aggregated for purposes of determining
whether the conversion would result in the issuance of any fractional share. If,
after the aforementioned aggregation, the conversion would result in the
issuance of any fractional share, the Corporation shall, in lieu of issuing any
fractional share, pay cash equal to the product of such fraction multiplied by
the Common Stock's fair market value (as determined by the Board of Directors)
on the date of conversion.
4.15 Reservation of Stock Issuable Upon Conversion. The 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 Preferred Stock, such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Preferred Stock. If at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion
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of all then outstanding shares of the Preferred Stock, the 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 purpose.
4.16 Notices. Any notice required by the provisions of this Section 4
to be given to the holders of shares of the Preferred Stock shall be deemed
given upon the earlier of actual receipt or five (5) days after the same has
been deposited in the United States mail, by certified or registered mail,
return receipt requested, postage prepaid, and addressed to each holder of
record at the address of such holder appearing on the books of the Corporation.
4.17 Payment of Taxes. The Corporation will pay all taxes (other than
taxes based upon income) and other governmental charges that may be imposed with
respect to the issue or delivery of shares of Common Stock upon conversion of
shares of Preferred Stock, excluding any tax or other charge imposed in
connection with any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in which the shares of Preferred Stock so
converted were registered.
4.18 No Dilution or Impairment. The Corporation shall not amend its
Certificate of Incorporation or participate in any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, for the purpose of avoiding or seeking to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but shall at all times in good faith assist in
carrying out all such action as may be reasonably necessary or appropriate in
order to protect the conversion rights of the holders of the Preferred Stock
against dilution or other impairment.
4.19 Adjustments after Record Date. In any case in which the
provisions of this Section 4 shall require that an adjustment shall become
effective immediately after a record date for an event, the Corporation may
defer until the occurrence of that event: (i) issuing to the holder of any share
of Preferred Stock converted after such record date and before the occurrence of
such event the additional shares of capital stock issuable upon such conversion
by reason of the adjustment required by such event over and above the shares of
capital stock issuable upon such conversion before giving effect to such
adjustment and (ii) paying to such holder any amount in cash in lieu of a
fractional share of capital stock pursuant to Section 4.14 above; provided,
however, that the Corporation shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive such additional
shares, in such case, upon the occurrence of the event requiring such
adjustment.
5. No Reissuance of Preferred Stock. No share or shares of Preferred Stock
acquired by the Corporation by reason of redemption, purchase, conversion or
otherwise shall be reissued, and all such shares shall acquire the status of
undesignated shares of Preferred Stock.
V.
For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
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I. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of directors
that shall constitute the whole Board of Directors shall be fixed by the Board
of Directors in the manner provided in the Bylaws.
A. The Board of Directors may from time to time make, amend, supplement
or repeal the Bylaws; provided, however, that the stockholders may change or
repeal any Bylaw adopted by the Board of Directors by the affirmative vote of
the holders of a majority of the voting power of all of the then outstanding
shares of the capital stock of the Corporation (considered for this purpose as
one class); and, provided further, that no amendment or supplement to the Bylaws
adopted by the Board of Directors shall vary or conflict with any amendment or
supplement thus adopted by the stockholders.
B. The directors of the Corporation need not be elected by written ballot
unless the Bylaws so provide or unless a stockholder demands election by written
ballot at the meeting and before voting begins.
C. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
VI.
A. A director of the corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for any 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 an improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
B. Any repeal or modification of this Article VI shall only be
prospective and shall not effect the rights under this Article VI in effect at
the time of the alleged occurrence of any action or omission to act giving rise
to liability.
VII.
No holder of shares of stock of the Corporation shall have any preemptive
or other right, except as such rights are expressly provided by contract, to
purchase or subscribe for or receive any shares of any class, or series thereof,
of stock of the Corporation, whether now or hereafter authorized, or any
warrants, options, bonds, debentures or other securities convertible into,
exchangeable for or carrying any right to purchase any share of any class, or
series thereof, of stock.
****
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FOUR: This Amended and Restated Certificate of Incorporation has been
duly approved by the Board of Directors of this Corporation.
FIVE: This Amended and Restated Certificate of Incorporation was
approved by the written consent of a majority of the outstanding capital stock
of the Corporation in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware and by a majority of each class
of stock entitled to vote thereon in accordance with Section 228 of the General
Corporation Law of the State of Delaware. The Corporation has two classes of
stock outstanding, Common Stock and Preferred Stock, and each class of stock is
entitled to vote with respect to the Amended and Restated Certificate of
Incorporation. The total number of outstanding shares of Common Stock of the
corporation is nine hundred sixty-one thousand nine hundred eleven (961,911) and
the total number of outstanding shares of Preferred Stock is nine million nine
thousand five hundred twenty-four (9,009,524).
In Witness Whereof, Dendreon Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by its Chief Executive
Officer and President and attested to by its Secretary this 3rd day of
August , 1999.
Dendreon Corporation
By: /s/ Christopher S. Henney
----------------------------------------
Christopher S. Henney, Ph.D.
Chief Executive Officer and President
ATTEST:
/s/ Martin A. Simonetti
-----------------------
Martin Simonetti
Secretary
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