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[OPHIDIAN PHARMACEUTICALS, INC. LOGO]
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE
SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement [ ] Confidential for Use of
the Commission Only (as permitted
by Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
OPHIDIAN PHARMACEUTICALS, INC.
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(Name of Registrant as Specified in its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box)
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction
applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was
determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials:
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously.
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Identify the previous filing by registration statement number, or the form or
schedule and the date of its filing.
(1) Amount previously paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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OPHIDIAN
PHARMACEUTICALS, INC.
5445 EAST CHERYL PARKWAY
MADISON, WI 53711
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NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON FRIDAY, JULY 23, 1999
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TO THE STOCKHOLDERS:
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of
Ophidian Pharmaceuticals, Inc., a Delaware Corporation (the "Company"), will be
held on Friday, July 23, 1999, at 9:00 a.m., local time, in the auditorium of
the BioPharmaceutical Technology Center at 5445 East Cheryl Parkway, Madison,
Wisconsin 53711 for the following purpose:
Adoption of proposed amendments to the Company's Certificate of
Incorporation to effect a one-for-eight reverse stock split of the issued
and outstanding shares of the Company's Common Stock, par value $0.0025 per
share.
The proposed amendments and the reasons, effects, and mechanics of the proposed
reverse stock split are all more fully described in the Proxy Statement
accompanying this Notice. Only stockholders of record at the close of business
on June 24, 1999 (the "Record Date"), are entitled to notice of, and to vote at,
the meeting and any adjournments thereof.
All stockholders are cordially invited to attend the meeting in person. However,
to assure your representation at the meeting, you are urged to mark, sign, date,
and return the enclosed proxy as promptly as possible in the postage-prepaid
envelope enclosed for that purpose. Any stockholder attending the Special
Meeting may vote in person even if such stockholder previously signed and
returned a proxy.
By Order of the Board of Directors,
Madison, Wisconsin Susan P. Maynard
June 24, 1999 Secretary
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OPHIDIAN
PHARMACEUTICALS, INC.
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PROXY STATEMENT FOR SPECIAL MEETING OF STOCKHOLDERS
The enclosed Proxy is solicited on behalf of the Board of Directors of Ophidian
Pharmaceuticals, Inc. (the "Company) for use in connection with a Special
Meeting of the Stockholders (the "Special Meeting") to be held Friday, July 23,
1999, at 9:00 a.m., Central Daylight time, or at any adjournments or
postponements thereof, for the purposes set forth in this Proxy Statement and in
the accompanying Notice of Special Meeting of Stockholders. The Special Meeting
will be held in the auditorium of the BioPharmaceutical Technology Center at
5445 East Cheryl Parkway, Madison, Wisconsin 53711. The telephone number for the
location of the Special Meeting is (608) 274-4330. The Company's principal
executive offices are also located at 5445 East Cheryl Parkway, Madison,
Wisconsin 53711. The Company's telephone number is (608) 271-0878.
These proxy solicitation materials were mailed on or about June 28, 1999, to all
stockholders entitled to vote at the Special Meeting.
INFORMATION CONCERNING SOLICITATION AND VOTING
RECORD DATE AND SHARES OUTSTANDING
Stockholders of record at the close of business on June 24, 1999 (the "Record
Date"), are entitled to notice of, and to vote at, the Special Meeting. At the
Record Date, 9,223,018 shares of the Company's Common Stock, $0.0025 par value
per share (the "Common Stock"), were issued, outstanding, and entitled to vote
at the Special Meeting.
REVOCABILITY OF PROXIES
Any proxy given pursuant to this solicitation may be revoked by the person
giving it at any time before it is voted by (a) delivering a written notice to
the Secretary of the Company or the acting secretary of the Special Meeting; or
(b) giving oral notice to the presiding officer during the Special Meeting; or
(c) duly executing a proxy bearing a later date; or (d) attending the Special
Meeting and voting in person. The mere presence at the Special Meeting of a
stockholder who has filed a proxy will not constitute a revocation.
VOTING AND SOLICITATION
Every stockholder of record on the Record Date is entitled, for each share of
Common Stock held, to one vote on each proposal or item that comes before the
Special Meeting.
Ophidian Proxy Statement - Page 1 of 7
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The cost of this solicitation will be borne by the Company. The Company may
reimburse expenses incurred by brokerage firms and other persons representing
beneficial owners of shares in forwarding solicitation material to the
beneficial owners. Proxies may also be solicited by certain of the Company's
Directors, officers and regular employees, without additional compensation,
personally, by telephone, facsimile, e-mail, or telegram.
QUORUM; ABSTENTIONS; AND BROKER NON-VOTES
The required quorum for the transaction of business at the Special Meeting is a
majority of the shares outstanding on the Record Date. Broker non-votes and
shares held by persons abstaining and any other shares represented for any
purpose, other than objecting to holding the meeting or transacting business at
the meeting, will be counted in determining whether a quorum is present.
SECURITIES AND PRINCIPAL HOLDERS THEREOF
The following table sets forth the beneficial ownership of the Company's
Securities as of June 18, 1999, by (a) each person known by the Company to be
the beneficial owner of more than 5% of any class of the Company's Securities,
(b) the directors of the Company, (c) the executive officers of the Company, and
(d) all directors and executive officers as a group. A total of 9,223,018 shares
of the Company's Common Stock and 1,000,000 Common Stock ($2.00) Purchase
Warrants and 1,933,088 Common Stock ($7.32) Purchase Warrants were issued and
outstanding as of June 18, 1999.
<TABLE>
<CAPTION>
Number of Number of Number of
Shares $7.32 $2.00
Name and Address of Beneficially Percentage Warrants Percentage Warrants Percentage
Beneficial Owner Owned (1) Owned Beneficially Owned Beneficially Owned
Owned(1) Owned (1)
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<S> <C> <C> <C> <C> <C> <C>
Dr. Margaret B. van Boldrik(2) ............. 1,367,800 14.8%
Eli Lilly and Company
Lilly Corporate Center,
Indianapolis, IN 46285 ..................... 699,300 7.6
Dr. Sean B. Carroll(3) ..................... 540,333 5.9 333 *
Dr. Peter Model(4) ......................... 535,532 5.8 45,000 2.3
Mr. William A. Linton(5) ................... 513,020 5.6
Mr. Rex J. Bates(6) ........................ 502,878 5.5 9,150 * 500,000 50.0
Mr. Davis U. Merwin ........................ 437,650 4.7 9,150 * 500,000 50.0
Dr. Douglas C. Stafford(7) ................. 199,300 2.2 100 *
Mr. Donald L. Nevins(8) .................... 124,600 1.4 88,500 4.6
Dr. Joseph R. Firca(9) ..................... 108,000 1.2
Dr. W. Leigh Thompson(10) .................. 11,051 *
Ms. Susan P. Maynard(11) ................... 4,945 *
All Directors and Officers as a Group
(8 persons)(12)(13) ........................ 2,854,106 30.9 105,083 5.4 1,000,000 100.0
</TABLE>
*Less than 1%.
(1) Includes ownership of shares of Common Stock plus options exercisable
within 60 days of June 18, 1999. Shares of Common Stock subject to
outstanding options are deemed outstanding for purposes
Ophidian Proxy Statement - Page 2 of 7
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of computing the percentage of ownership of the person holding such
options but are not deemed outstanding for computing the percentage
ownership for any other persons.
(2) Dr. van Boldrik's beneficial ownership includes 1,277,800 shares owned by
Dr. van Boldrik, 45,000 shares held by the Willem Erin Samburu Carroll
van Boldrik Trust A and 45,000 shares held by the Jan Patrick Jabiru van
Boldrik Carroll Trust A. Dr. van Boldrik is the sole trustee for both
trusts.
(3) Dr. Carroll's beneficial ownership includes 450,333 shares owned by Dr.
Carroll, 45,000 shares held by the Jan Patrick Jabiru van Boldrik Carroll
Trust B, and 45,000 shares held by the Willem Erin Samburu Carroll van
Boldrik Trust B. Dr. Carroll is the sole trustee for both trusts.
(4) Includes 455,182 shares held by the Model Charitable Lead Trust and Peter
Model Trust II, for which Dr. Model is one of two co-trustees, and
options to purchase 5,350 shares currently vested in the 1992 Stock
Option Plan at an exercise price of $5.50 per share which expire January
2007.
(5) Includes 262,520 shares owned by Promega Corporation of which Mr. Linton
is Chairman, President and Chief Executive Officer and may be deemed to
have voting and investment power over the shares.
(6) Includes 80,000 shares held by Susan Stein Elmendorf, who has delegated
investment authority to Mr. Bates, who disclaims any beneficial ownership
of such shares; and options to purchase 25,000 shares currently vested in
the 1992 Stock Option Plan at an exercise price of $2.00 which expire in
July 2006, options to purchase 5,000 shares currently vested in the 1992
Stock Option Plan at an exercise price of $4.50 which expire in January
2006 and options to purchase 5,000 shares currently vested in the 1992
Stock Option Plan at an exercise price of $5.50 per share which expire
January 2007.
(7) Includes 100 shares and also includes options to purchase 137,200 shares
currently vested in the 1990 Stock Option Plan at an exercise price of
$0.0625 which expire in July 2000, options to purchase 50,000 shares
currently vested in the 1990 Stock Option Plan at an exercise price of
$2.00 which expire in October 2001, and options to purchase 12,000 shares
currently vested in the 1992 Stock Option Plan at an exercise price of
$5.50 which expire in July 2007.
(8) Includes shares owned by Bessie Nevins Trust (30,000), Mr. Nevins' son,
Donald L. Nevins III (200), and grandson, Jared Lester Nevins (200),
stepsons, Matthias J. Malin (200) and David G. Raquet (200), and
stepdaughters, Alexandra Nevins (200), Debra N. Safford (200), E. Paige
Malin (200) and Anne K. Malin (200) and wife, Sylvia M. Nevins (23,400),
and her granddaughters Annelise N. Raquet (200) and Kira Lynn Raquet
(200). Also includes warrants owned by Bessie Nevins Trust (10,000), Mr.
Nevins' son, Donald L. Nevins III (500), and grandson, Jared Lester
Nevins (500), stepsons, Matthias J. Malin (500) and David G. Raquet
(500), and stepdaughters, Alexandra Nevins (500), Debra N. Safford (500),
E. Paige Malin (500) and Anne K. Malin (500) and wife, Sylvia M. Nevins
(17,500).
(9) Includes options to purchase 100,000 shares currently vested in the 1990
Stock Option Plan at an exercise price of $2.00 which expire in July
2002, and options to purchase 8,000 shares currently vested in the 1992
Stock Option Plan at an exercise price of $5.50 which expire in July
2007.
(10) Includes options to purchase 5,323 shares currently vested in the 1992
Stock Option Plan at an exercise price of $4.50 per share which expire in
January 2006 and options to purchase 5,000 shares currently vested in the
1992 Stock Option Plan at an exercise price of $5.50 per share which
expire January 2007.
(11) Includes options to purchase 4,445 shares currently vested in the 1992
Stock Option Plan at an exercise price of $4.50 per share which expire in
August 2003.
(12) Address is 5445 East Cheryl Parkway, Madison, Wisconsin 53711.
Ophidian Proxy Statement - Page 3 of 7
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(13) Includes 362,318 shares of Common Stock issuable upon exercise of
outstanding options which will vest within 60 days of June 18, 1999, of
which 137,200 have an exercise price of $0.0625, 175,000 have an exercise
price of $2.00, 14,768 have an exercise price of $4.50 and 35,350 have an
exercise price of $5.50 per share.
PROPOSAL TO AMEND CERTIFICATE OF INCORPORATION
TO EFFECT A REVERSE STOCK SPLIT
GENERAL
The Board of Directors of the Company ("Board of Directors") has approved and
hereby is soliciting stockholder approval of an amendment to the Company's
Certificate of Incorporation in the form set forth in Appendix A to the Proxy
Statement (the "Amendment") pursuant to which each eight (8) shares of the
issued and outstanding shares of Common Stock of the Company ("Old Common
Stock") shall be converted into one (1) issued and outstanding share of Common
Stock of the Company (the "New Common Stock"). If approved by the Company's
stockholders, this 1 to 8 reverse stock split (the "Reverse Split") will become
effective upon its filing with the Delaware Secretary of State (the "Effective
Date").
In order to effect the Reverse Split, the stockholders of the Company are being
asked to adopt the Amendment. The Board of Directors has proposed the Amendment
for adoption by the stockholders because it believes that the Reverse Split is
in the best interests of both the Company and its stockholders. The Board of
Directors, however, reserves the right, notwithstanding stockholder approval
and without further action by the stockholders, to decide not to proceed with
the Reverse Split if at any time prior to the Amendment's effectiveness it
determines, in its sole discretion, that the Reverse Split is no longer in the
best interests of the Company and its stockholders. The Board of Directors may
make any and all changes to the Amendment that it deems necessary in order to
file the Amendment with the Delaware Secretary of State and give effect to the
Reverse Split.
EFFECTS OF REVERSE STOCK SPLIT
The Certificate of Incorporation provides for 22,400,000 authorized shares of
Common Stock with a par value of $0.0025 per share, of which 9,223,018 shares
are issued and outstanding as of June 18, 1999 and for 2,000,000 shares of
Preferred Stock with a par value of $0.001, none of which are issued and
outstanding as of June 18, 1999. If effected, the Reverse Split would reduce the
number of outstanding shares of Old Common Stock from 9,223,018 to approximately
1,152,877 shares of New Common Stock as of the Effective Date. (The foregoing
assumes no issuances or repurchases of Common Stock between June 18, 1999 and
the Effective Date.) The Reverse Split would have no effect on either the par
values or the number of authorized shares of either the Common Stock or the
Preferred Stock.
If effected, the Reverse Split would reduce the number of shares reserved for
issuance upon exercise of the Company's outstanding Common Stock ($2.00)
Purchase Warrants from 1,000,000 shares of Old Common Stock to 125,000 shares
of New Common Stock at a new exercise price of $16.00 per share. If effected,
the Reverse Split would reduce the number of shares reserved for issuance
upon exercise of the Company's outstanding Common Stock ($7.32) Purchase
Warrants from 2,044,163 shares of Old Common Stock to 255,520 shares of New
Common Stock at a new exercise price of $58.56 per share.(1)(2)
(1) The Common Stock ($7.32) Purchase Warrants carry an anti-dilutive
provision which increases from 1 to 1.05746 the number of shares of Old
Common Stock purchasable for $7.32 as a result of the issuance of the
Common Stock ($2.00) Purchase Warrants (total increase from 1,933,088 to
2,044,163 shares of Old Common Stock if all the Common Stock ($7.32)
Purchase Warrants are exercised).
(2) Excludes 350,000 shares of Old Common Stock (43,750 shares of New Common
Stock) reserved for issuance upon exercise of the Common Stock ($7.32)
Purchase Warrants held by the Company's underwriters.
Ophidian Proxy Statement - Page 4 of 7
<PAGE> 8
The Reverse Split would not affect any stockholder's proportionate equity
interest or proportional voting power in the Company except for those
stockholders who would receive cash in lieu of fractional shares as described
below. None of the rights currently accruing to holders of the Company's Common
Stock or options or warrants to purchase Common Stock will be affected by the
Reverse Split.
BACKGROUND AND REASONS FOR THE PROPOSED REVERSE STOCK SPLIT
The principal reason for the Reverse Split is to maintain the Company's
eligibility for listing on the Nasdaq SmallCap Market and to increase the
stock's attractiveness to the investor community. In order to maintain its
listing on the Nasdaq SmallCap Market, the minimum daily closing bid price per
share must be at least $1.00. On May 7, 1999, the closing bid price for the
Common Stock had been below $1.00 for 30 consecutive trading days. On this date,
the Company received notification that the Company's Common Stock had failed to
maintain a closing bid price of at least $1.00 per share as required by Nasdaq.
Failure to maintain this minimum price could result in the future delisting of
the Common Stock on the Nasdaq SmallCap Market, which might affect the trading
in and liquidity of the Common Stock.
The Board of Directors is also recommending that the stockholders approve the
Reverse Split in hopes that it will broaden the market for the Common Stock.
Various brokerage house policies and practices tend to discourage individual
brokers within those firms from dealing with lower priced stocks. For example,
low-priced stocks often cannot be used as collateral for margin accounts and
certain administrative policies can make the handling of the lower priced stocks
economically unattractive to brokers. Additionally, institutional investors
typically are unwilling to invest in companies whose stock trades at less than
$5. Finally, the transaction costs of dealing in a low priced stock can be
unattractively high because broker's commissions on low-priced stocks generally
represent a higher percentage of the stock price than commissions on higher
priced stocks.
While the Board of Directors believes that the Company's Common Stock will trade
at higher prices than have prevailed in recent months, there can be no assurance
that the trading price will equal or exceed the direct arithmetical result of
the reverse split.
MECHANICS OF THE PROPOSED REVERSE STOCK SPLIT
If the Reverse Split is approved by the requisite vote of the Company's
Stockholders and the Board of Directors does not thereafter elect to abandon the
Reverse Split as described above, the Amendment will be filed with the Delaware
Secretary of State. The Reverse Split will be effective on the date of such
filing. Upon filing the Amendment, every eight (8) issued and outstanding shares
of the Old Common Stock will, immediately following filing of the Amendment, be
automatically and without any action on the part of the stockholders, converted
into and reconstituted as one (1) share of New Common Stock.
Ophidian Proxy Statement - Page 5 of 7
<PAGE> 9
As soon as practical after the Effective Date, the Company will mail, or cause
to be mailed, a letter of transmittal to each stockholder of record of shares of
Old Common Stock outstanding as of the Effective Date. The letter of transmittal
will set forth instructions for surrender to the Company's transfer agent of the
certificates representing the Old Common Stock in exchange for the certificates
representing the appropriate number of shares of the New Common Stock.
CERTIFICATES SHOULD NOT BE SENT TO THE COMPANY OR THE TRANSFER AGENT PRIOR TO
RECEIPT OF SUCH LETTER OF TRANSMITTAL FROM THE COMPANY. Until this exchange is
completed, the stockholder's Old Common Stock shall be deemed equal to the
number of whole shares of New Common Stock to which each stockholder is entitled
as a result of the Reverse Split.
No scrip or fractional share certificates will be issued in connection with the
Reverse Split. In lieu of the issuance of fractional shares of stock, the
Company will pay to the stockholder a cash amount (without interest) equal to
eight (8) times such fractional share of New Common Stock multiplied by the last
reported sale price of the Old Common Stock on the Nasdaq SmallCap Market on the
last business day prior to the Effective Date or, if no such sale is made on
such day, the average of the closing bid and asked prices for such day on the
Nasdaq SmallCap Market. Similarly, no scrip or fractional shares will be issued
on the exercise of either of the Common Stock ($2.00 or $7.32) Purchase Warrants
in connection with the Reverse Split. In lieu of the issuance of fractional
shares of stock, the Company will pay to the warrant holder a cash amount
(without interest) equal to such fractional share of New Common Stock multiplied
by the last reported sale price of the New Common Stock on the Nasdaq SmallCap
Market on the business day the warrant certificate is delivered to the Company
or its transfer agent with the appropriate cash exercise price or, if no such
sale is made on such day, the average of the closing bid and asked prices for
such day on the Nasdaq SmallCap Market.
No holder shall be entitled to dividends, voting rights or any other rights as a
stockholder with respect to any fractional shares. No service charge will be
payable by stockholders in connection with the exchange of certificates or the
issuance of cash for fractional interests, all of which costs will be borne by
the Company.
FEDERAL INCOME TAX CONSEQUENCES OF THE PROPOSED REVERSE STOCK SPLIT
The following description of federal income tax consequences is based upon
present federal tax laws and does not purport to be a complete discussion of
such consequences. ACCORDINGLY, STOCKHOLDERS ARE ADVISED TO CONSULT THEIR OWN
TAX ADVISORS FOR MORE DETAILED INFORMATION REGARDING THE EFFECT OF THE REVERSE
SPLIT ON THEIR INDIVIDUAL TAX STATUS.
The Company believes that the Reverse Split will qualify as a "recapitalization"
under Section 368(a)(1)(E) of the Code. As a result, no gain or loss will be
recognized by the Company or its stockholders in connection with the Reverse
Split. Stockholders of the Company who exchange their Old Common Stock for New
Common Stock will recognize no gain or loss for federal income tax purposes. A
stockholder's aggregate tax basis in his, her or its share of New Common Stock
received from the Company will be the same as his, her or its aggregate tax
basis in the Old Common Stock. The holding period of the New Common Stock
received by the stockholder will include the stockholder's holding period for
the shares of Old Common Stock, provided that the shares of Old Common Stock
were held as a capital asset on the date of the exchange.
A stockholder who receives cash in lieu of a fractional share of Common Stock
that otherwise would be held as a capital asset generally should recognize
capital gain or loss
Ophidian Proxy Statement - Page 6 of 7
<PAGE> 10
equal to the difference between the cash received and his, her, or its basis in
such fractional share of Common Stock. For this purpose, a stockholder's basis
in such fractional share of Common Stock will be determined as if the
stockholder actually received such fractional share.
ACCOUNTING EFFECTS OF THE REVERSE STOCK SPLIT
Following the Effective Date, the par value of the Company's Common Stock will
remain at $0.0025 per share. As a result, the Company's stated capital will be
reduced and the Company's capital in excess of par value (paid-in-capital) will
increase accordingly. Stockholders' equity will remain unchanged.
NO DISSENTERS' RIGHTS
Dissenting stockholders have no appraisal rights under Delaware law or under the
Company's Certificate of Incorporation or Bylaws in connection with the Reverse
Split.
VOTE REQUIRED
The approval of the Amendment requires the affirmative vote of a majority of the
outstanding shares of the Common Stock.
THE BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THE PROPOSAL TO
AMEND THE COMPANY'S CERTIFICATE OF INCORPORATION TO EFFECT A REVERSE STOCK
SPLIT.
SIGNATURE
Pursuant to the requirements of Section 14 of the Securities and Exchange Act of
1934, as amended, and Regulation 14A thereunder, the Company has caused this
Proxy Statement to be mailed to the stockholders of the Common Stock and filed
with the Securities and Exchange Commission.
THE BOARD OF DIRECTORS
By:
----------------------------------------
Peter Model
Director, Chairman of the Board
Dated: June 24, 1999
Ophidian Proxy Statement - Page 7 of 7
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EXHIBIT A
To Proxy Statement of Ophidian Pharmaceuticals, Inc.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Ophidian Pharmaceuticals, Inc., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
hereby certifies as follows:
FIRST: That the Board of Directors of the Corporation has, by unanimous
written consent pursuant to section 141(f) of the Delaware General Corporation
Law, duly adopted resolutions setting forth a proposed amendment of the
Corporation's Certificate of Incorporation, declaring the amendment to be
advisable, and calling a meeting of the stockholders of the Corporation for
consideration of the amendment. The resolution setting forth the proposed
amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this Corporation be
amended by changing Article IV so that, as amended, Article IV shall be
and read, in its entirety, as follows:
"4.1 Authorized Stock.
The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 24,400,000 consisting
solely of:
22,400,000 shares of common stock, $.0025 par value per share
("Common Stock");
2,000,000 shares of preferred stock, $.001 par value per share
("Preferred Stock");
Upon the amendment of this Article IV, every eight (8) issued
and outstanding shares of Common Stock, $0.0025 par value per share
(the "Old Common Stock"), shall, automatically and without action on
the part of the stockholders, be converted into and reconstituted as
one (1) share of Common Stock, $0.0025 par value per share (the "New
Common Stock"), subject to the treatment to the treatment of fractional
share interests as described below. Each holder of a certificate or
certificates that, immediately prior to this Certificate of Amendment
of the Certificate of Incorporation becoming effective pursuant to the
Delaware General Corporation Law (the "Effective Date"), represented
outstanding shares of the Old Common Stock (the "Old Certificates,"
whether one or more) shall be entitled to receive a certificate or
certificates for the number of shares of New Common Stock they own by
presenting their Old
Page A-1
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EXHIBIT A
To Proxy Statement of Ophidian Pharmaceuticals, Inc.
Certificates to the Corporation's transfer agent for cancellation and
exchange. No scrip or fractional certificates will be issued, and no
such fractional share interest will entitle the holder thereof to vote
or to any other rights of a stockholder of the Corporation, other than
the right to receive cash in lieu of the fractional shares as provided
below. Each holder of Old Common Stock shall be entitled to receive a
cash payment in lieu of fractional shares from the Corporation, which
payment shall be determined by multiplying such fraction by eight (8)
times the last reported sale price of the Old Common Stock on the
NASDAQ SmallCap Market on the last business day prior to the Effective
Date, or if no such sale is made on such day, the average of the
closing bid and asked prices for such day on the NASDAQ SmallCap
Market."
SECOND: That thereafter, pursuant to resolution by its Board of
Directors, a special meeting of the stockholders of the Corporation was duly
called and held, upon notice in accordance with Section 222 of the Delaware
General Corporation Law, and at such Special Meeting, the stockholders adopted
and approved the foregoing amendment to the Corporation's Certificate of
Incorporation in accordance with the provisions of Section 212 of the Delaware
General Corporation Law.
THIRD: That the amendment of the Certificate of Incorporation was duly
adopted in accordance with the provisions of Section 242 of the Delaware General
Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be executed by its President and Chief Executive Officer, this the
____ day of July, 1999.
OPHIDIAN PHARMACEUTICALS, INC.
By:
--------------------------------------
Douglas C. Stafford
President & Chief Executive Officer
Page A-2
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[OPHIDIAN PHARMACEUTICALS, INC. LETTERHEAD]
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THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD JULY 23, 1999
The undersigned shareholder of Ophidian Pharmaceuticals, Inc., a
Delaware corporation (the "Company"), hereby appoints Peter Model and Margaret
B. van Boldrik, and each of them individually, proxies, each with full power of
substitution, to vote, as specified below, all shares of Common Stock of the
Company held of record by the undersigned on June 24, 1999, at the Special
Meeting of Shareholders of the Company to be held on July 23, 1999, at 9:00 a.m.
at 5445 East Cheryl Parkway, Madison, Wisconsin and any adjournments or
postponements thereof.
PLEASE COMPLETE, DATE, SIGN, AND RETURN THIS PROXY PROMPTLY IN THE
ENVELOPE PROVIDED, WHETHER YOU PLAN TO ATTEND THE SPECIAL MEETING OR NOT. IF YOU
DO PLAN TO ATTEND, YOU MAY, OF COURSE, VOTE YOUR SHARES IN PERSON. THIS PROXY
WILL BE VOTED AS DIRECTED OR, IF NO DIRECTION IS INDICATED, WILL BE VOTED IN
FAVOR OF THE PROPOSED ITEM OF BUSINESS.
PLEASE MARK VOTE IN BOX, USING DARK INK ONLY, IN THE FOLLOWING MANNER: /X/
1. APPROVAL OF AN AMENDMENT TO THE CERTIFICATE OF INCORPORATION TO EFFECT
A ONE-FOR-EIGHT REVERSE STOCK SPLIT OF THE COMPANY'S COMMON STOCK, PAR
VALUE $.0025 PER SHARE.
/ / For / / Against / / Abstain
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE PROPOSAL.
PLEASE COMPLETE, DATE, AND SIGN THIS PROXY AND RETURN IT PROMPTLY IN THE
ACCOMPANYING ENVELOPE.
Date:
-----------------------------
Signature(s):
----------------------------- -----------------------------
(title/capacity):
------------------------- -----------------------------
NOTE: Please sign exactly as your name appears on this proxy. If signing for an
estate, trust, or corporation, your title and/or capacity should be so stated.
If shares are held jointly, at least one joint owner must sign.
