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RESTATED CERTIFICATE OF INCORPORATION
OF
CURIS, INC.
CURIS, INC. (the "Corporation"), a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"General Corporation Law"), hereby certifies as follows:
The name of the Corporation is Curis, Inc. A Certificate of Incorporation
of the Corporation was filed with the Secretary of State of the State of
Delaware on February 14, 2000.
This Restated Certificate of Incorporation restates and integrates and
further amends the Certificate of Incorporation of the Corporation, was duly
adopted by the Board of Directors of the Corporation in accordance with the
provisions of Sections 141 and 245 of the Delaware General Corporation Law, and
was approved by written consent of the stockholders of the Corporation given in
accordance with the provisions of Section 228 and Section 242 of the Delaware
General Corporation Law (prompt notice of such action having been given to those
stockholders who did not consent in writing).
The text of the Certificate of Incorporation of the Corporation is hereby
restated and amended to read in its entirety as follows:
FIRST: The name of this corporation (the "Corporation") is Curis, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of
New Castle, and the name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The Corporation is authorized to issue two classes of capital
stock, one of which is designated as common stock, $.01 par value per share
("Common Stock"), and the other of which is designated as preferred stock, $.01
par value per share ("Preferred Stock"). The total number of shares of both
classes of capital stock that the Corporation shall have authority to issue is
130,000,000 shares, consisting of 125,000,000 shares of Common Stock and
5,000,000 shares of Preferred Stock. The Preferred Stock may be issued from time
to time in one or more series as set forth in Section (b) of this Article
FOURTH. The following is a statement of the designations and the powers,
preferences and rights of, and the qualifications, limitations or restrictions
applicable to, each class of capital stock of the Corporation.
(A) COMMON STOCK
(1) General. The voting, dividend and liquidation rights of holders
of Common Stock are subject to and qualified by the rights of holders of
Preferred Stock of any series as may be designated in any resolution or
resolutions providing for the issue of such series as may be adopted by
the board of directors as hereinafter provided.
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(2) Voting. Holders of Common Stock are entitled to one vote for
each share held at all meetings of stockholders. The number of authorized
shares of Common Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the capital stock of the Corporation entitled to
vote, irrespective of the provisions of Section 242(b)(2) of the General
Corporation Law of the State of Delaware.
(3) Dividends. Dividends may be declared and paid on Common Stock
from funds lawfully available therefor, as and when determined by the
board of directors and subject to any preferential dividend rights of any
series of Preferred Stock then outstanding.
(4) Liquidation. Upon the dissolution or liquidation of the
Corporation, whether voluntary or involuntary, holders of Common Stock
will be entitled to receive all assets of the Corporation available for
distribution to stockholders of the Corporation, subject to any
preferential rights of any series of Preferred Stock then outstanding.
(B) PREFERRED STOCK
(1) Issuance. Preferred Stock may be issued from time to time in one
or more series, each of which series shall have such terms as are set
forth herein and in any resolution or resolutions providing for the issue
of such series as may be adopted by the board of directors as hereinafter
provided. Any shares of Preferred Stock that may be redeemed, purchased or
acquired by the Corporation may be reissued except as otherwise expressly
provided in this Certificate of Incorporation or provided by law.
Different series of Preferred Stock shall not be construed to constitute
different classes of capital stock for the purposes of voting by classes
unless expressly provided.
(2) Authority of Board. Authority is hereby expressly granted to the
board of directors to provide for the issuance of Preferred Stock from
time to time in one or more series, and in connection with the creation of
any such series, to determine and fix such voting powers, full or limited,
or no voting powers, and such designations, preferences and relative
participating, optional or other special rights thereof, and
qualifications, limitations or restrictions applicable thereto, as shall
be stated and expressed in such resolutions, all to the full extent now or
hereafter permitted by the General Corporation Law of the State of
Delaware. Without limiting the generality of the foregoing, a resolution
or resolutions providing for issuance of any series of Preferred Stock may
provide for dividend rights, conversion rights, redemption privileges and
liquidation preferences applicable to such series and may provide that
such series shall rank superior, equal or junior to the Preferred Stock of
any other series, in each case except as otherwise expressly provided in
this Certificate of Incorporation or as provided by law. Except as
otherwise provided in this Certificate of Incorporation, no vote of
holders of Common Stock or holders of Preferred Stock shall be a
prerequisite to the designation or issuance of any shares of any series of
Preferred Stock authorized by and complying with the conditions of this
Certificate of Incorporation.
FIFTH: Special meetings of stockholders may be called at any time by the
Chairman of the Board, the Chief Executive Officer (or if there is no Chief
Executive Officer, the President) or the board of directors. Business transacted
at any special meeting of stockholders shall be limited to matters relating to
the purpose or purposes stated in the notice of the general meeting. From and
after the effective date of the Form 8-A Registration Statement under the
Securities
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Exchange Act of 1934, as amended, the stockholders of the Corporation shall not
be permitted to take any action otherwise required to be taken at any annual
meeting or special meeting of the stockholders of the Corporation by a consent
in writing in lieu of any such meeting.
SIXTH: No director shall be personally liable to the Corporation or to
any of its stockholders for monetary damages arising out of such director's
breach of fiduciary duty as a director of the Corporation, except to the extent
that the elimination or limitation of such liability is not permitted by the
General Corporation Law of the State of Delaware, as the same exists or may
hereafter be amended. No amendment to or repeal of the provisions of this
Article SIXTH shall deprive any director of the Corporation of the benefit of
the provisions of this Article SIXTH with respect to any act or failure to act
of any director occurring prior to such amendment or repeal.
SEVENTH: In furtherance of and not in limitation of powers conferred by
statute, it is further provided that:
(A) AMENDMENT OF BY-LAWS
Subject to the limitations and exceptions, if any, contained in the
by-laws of the Corporation, the by-laws may be adopted, amended or
repealed by the board of directors.
(B) ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless
otherwise provided in the by-laws of the Corporation.
(C) LOCATION OF CORPORATE BOOKS
Subject to any applicable requirements of the General Corporation
Law of the State of Delaware, the books of the Corporation may be kept
outside the State of Delaware at such location or locations as may be
designated from time to time by the board of directors or in the by-laws
of the Corporation.
EIGHTH: The Corporation shall indemnify each person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that such person is or was, or has agreed to become, a
director or officer of the Corporation, or is or was serving or has agreed to
serve, at the request of the Corporation, as a director, officer or trustee of,
or in a similar capacity with, another corporation (including any partially or
wholly owned subsidiary of the Corporation), partnership, joint venture, trust
or other enterprise (including any employee benefit plan), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any such action, suit or
proceeding to the maximum extent permitted by the General Corporation Law of
Delaware. The foregoing right of indemnification shall in no way be exclusive of
any other rights of indemnification to which any such director or officer may be
entitled, under any by-law, agreement, vote of directors or stockholders or
otherwise. No amendment to or repeal of the provisions of this paragraph shall
deprive a person of the benefit of this paragraph with respect to any act or
failure to act of such person occurring prior to such amendment or repeal.
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NINTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them or between the Corporation
and its stockholders or any class of them, any court of equitable jurisdiction
within the State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for the Corporation under Section 279 of
Title 8 of the Delaware Code, order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case my be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of the Corporation, as the case
may be, and also on the Corporation.
TENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by the General Corporation Law of the State
of Delaware and this Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation. Notwithstanding any
provision of law, any other provision of this Certificate of Incorporation or
any provision of the by-laws of the Corporation, the affirmative vote of the
holders of three-fourths of the shares of capital stock of the Corporation
issued and outstanding and entitled to vote shall be required to amend or
repeal, or to adopt any provision inconsistent with, any provision of Article
FIFTH or this Article TENTH.
ELEVENTH: The name of the sole incorporator of the Corporation is
Jonathan H. Hulbert and his mailing address is c/o Foley, Hoag & Eliot LLP, One
Post Office Square, Boston, Massachusetts 02109.
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be executed by the undersigned as of the 16th day
June, 2000.
CURIS, INC.
By: /s/ Doros Platika
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Doros Platika
President and Chief Executive Officer
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