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Exhibit 4(b)
RESTATED CERTIFICATE OF INCORPORATION
OF
MEDAREX, INC.
TO: The Secretary of State
State of New Jersey
Pursuant to the provisions of Section 14A:9-5, Corporations,
General, of the New Jersey Statutes, the undersigned corporation hereby executes
the following Restated Certificate of Incorporation:
FIRST: The name of the corporation is Medarex, Inc.
SECOND: The purpose or purposes for which the corporation
is organized are:
To engage in any activity within the lawful business purposes
for which corporations may be organized under the New Jersey Business
Corporation Act.
THIRD: The aggregate number of shares which the
Corporation shall have the authority to issue is 22,000,000 shares, of which
20,000,000 shall be Common Stock, par value $.01 per share (the "Common Stock"),
and 2,000,000 shares shall be Preferred Stock, par value $1.00 per share (the
"Preferred Stock").
The Preferred Stock may be issued from time to time in one or
more series with such designations, preferences and relative participating,
optional or other special rights and qualifications, limitations or restrictions
thereof, as shall be stated in the resolutions adopted by the Board of Directors
providing for the issuance of such Preferred Stock or series thereof; and the
Board of Directors is hereby expressly vested with authority to fix such
designations, preferences and relative participating, optional or other special
rights or qualifications, limitations or restrictions
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for each series, including, but not by way of limitation, the power to fix the
redemption and liquidation preferences, the rate of dividends payable and the
time for and the priority of payment thereof and to determine whether such
dividends shall be cumulative or not and to provide for and fix the terms of
conversion of such Preferred Stock or any series thereof into Common Stock of
the Corporation and fix the voting power, if any, of shares of Preferred Stock
or any series thereof.
FOURTH: The address of the corporation's current registered
office is 28 West State Street, Trenton, New Jersey 08608, and the name of its
current registered agent at such address is The Corporation Trust Company.
FIFTH: The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors consisting of not less
than three (3) nor more than ten (10) Directors. The Board of Directors shall be
divided into three classes, designated Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of Directors constituting the entire Board of Directors. The exact number
of directors in each class shall be determined from time to time by resolution
adopted by the Board of Directors. At the 1991 Annual Meeting of shareholders,
Class I Directors shall be elected for a one-year term, Class II Directors shall
be elected for a two-year term and Class III Directors for a three-year term. At
each succeeding annual meeting of Shareholders beginning in 1992, successors to
the class of Directors whose term expires at that annual meeting shall be
elected for a three-year term. If the number of Directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of Directors in each class as nearly equal as possible, and any
additional Director elected to fill a newly-created directorship resulting from
an increase in the number of Directors shall hold office only until the next
annual meeting of Shareholders and until his successor is elected and qualified.
A Director shall hold office until the annual meeting for the year in which
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his term expires and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office.
Any vacancy on the Board of Directors, whether resulting from
an increase in the number of Directors or otherwise, may be filled by a majority
of the Directors then in office, although less than a quorum, or by a sole
remaining director. Any Director elected to fill a vacancy not resulting from an
increase in the number of Directors shall hold office from the unexpired term
for which his predecessor was elected.
SIXTH: The number of directors constituting the current Board
of Directors is five (5). The names and addresses of the Directors are as
follows:
Names Address
----- -------
Donald L. Drakeman 20 Nassau Street
Princeton, New Jersey 08540
Charles R. Schaller 20 Nassau Street
Princeton, New Jersey 08540
Michael W. Fanger 2 Maynard Street
Hanover, New Hampshire 03756
Sean Gorman Star Route
East Hartford, Vermont 05084
Michael A. Appelbaum 20 Nassau Street
Princeton, New Jersey 08542
SEVENTH: The Corporation shall be governed by the provisions
of the New Jersey Shareholders Protection Act, Section 14A:10A, Corporations,
General, of the New Jersey Statutes, as the same shall be amended from time to
time (the "Act"). Notwithstanding any other provision of this Restated
Certificate of Incorporation or the By-laws of the Corporation (and in addition
to any other vote that may be required by law, this Restated Certificate of
Incorporation or the By-laws), this Article SEVENTH may be amended only by the
affirmative vote, in person or by
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proxy, of the holders of sixty-six and two-thirds percent (66 2/3%) in interest
of the issued and outstanding voting stock of the Corporation (considered for
this purpose as one class) including the holders of sixty-six and two-thirds
percent (66 2/3%) of the outstanding voting stock of the Corporation held by
persons other than "Interested Stockholders" as such term is defined in Section
14A:10A-3 of the Act; provided, however, that such provision may be amended,
altered, repealed or adopted, by either (a) the affirmative vote of sixty-six
and two-thirds (66 2/3%) of the Corporation's issued and outstanding voting
stock or (b) the approval of a majority of the Disinterested Directors and the
holders of a majority in interest of the issued and outstanding voting stock of
the Corporation. For purposes of this Article SEVENTH, "Disinterested Director"
means any member of the Board of Directors of the Corporation who si
unaffiliated with, and not a nominee of, an Interested Stockholder and was a
member of the Board prior to the time that the Interested Stockholder became an
Interested Stockholder, and any successor of a Disinterested Director who is
unaffiliated with, and not a nominee of, an Interested Stockholder and who is
recommended to succeed a Disinterested Director then on the Board of Directors.
EIGHTH: The personal liability for monetary damages of the
directors of the Corporation is hereby eliminated to the fullest extent
permitted by the provisions of the New Jersey Business Corporation Act, as the
same may be amended and supplemented from time to time.
The Corporation shall indemnify any and all of its directors,
officers, employees, Members of the Scientific Advisory Board or agents or
former directors, officers, employees, Members of the Scientific Advisory Board
or agents or any person who may have served at its request as a director,
officer, employee, Member of the Scientific Advisory Board or agent of another
corporation in which it owns shares of capital stock or of which it is a
creditor, to the fullest extent permitted under the indemnification provisions
of the New Jersey Business Corporation Act. Except as otherwise prohibited by
applicable law, such indemnification shall not be deemed exclusive of
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any other rights to which those indemnified may be entitled under any by-law,
resolution of shareholders or directors, or contract. Any repeal or modification
of this Article EIGHTH by the shareholders of the Corporation shall not
adversely affect any right or protection of a director, officer, employee,
Member of the Scientific Advisory Board or agent of the Corporation existing at
the time of such repeal or modification with respect to acts or omissions
(alleged and actual) occurring prior to such repeal or modification.
NINTH: The effective date of this Certificate shall be
upon filing. Dated this 6th day of May, 1991.
MEDAREX, INC .
By: /s/ Donald L. Drakeman
--------------------------
Donald L. Drakeman
President
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CERTIFICATE REQUIRED TO BE FILED WITH THE
RESTATED CERTIFICATE OF INCORPORATION
OF
MEDAREX, INC.
Pursuant to the provisions of Section 14A:9-5(5),
Corporations, General of the New Jersey Statutes, the undersigned corporation
hereby executes the following certificate:
FIRST: The name of the corporation is Medarex, Inc.
SECOND: The Restated Certificate of Incorporation was adopted
by the shareholders of the Corporation on the 30th day of April, 1991.
THIRD: At the time of the adoption of the Restated
Certificate of Incorporation, the total number of shares entitled to vote
thereon, and the number of outstanding shares of each class or series entitled
to vote thereon as a class and the vote of such shares, was:
--------------------------------------------------------------------------------
Total Number of Number of Shares Voted
Class or Series Shares Entitled to Vote For Against
--------------- ----------------------- --- -------
--------------------------------------------------------------------------------
Common 2,506,000 2,462,000 0
--------------------------------------------------------------------------------
Preferred 0 0 0
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FOURTH: The effective date of this amendment shall be upon
filing. This Certificate is dated as of the 6th day of May, 1991.
MEDAREX, INC.
By: /s/ Donald L. Drakeman
-------------------------------
Donald L. Drakeman
President
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CERTIFICATE OF AMENDMENT TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
MEDAREX, INC.
TO: The Secretary of State
State of New Jersey
Pursuant to the provisions of Section 14A:9-2(4) and Section
14A:9-4(3), Corporations, General, of the New Jersey Statutes, the undersigned
corporation (the "Corporation") hereby executes the following Certificate of
Amendment to its Restated Certificate of Incorporation:
FIRST: The name of the Corporation is Medarex, Inc.
SECOND: The following amendment to the Restated Certificate
of Incorporation was approved by the directors and thereafter duly adopted by
the shareholders of the Corporation on the 18th day of May, 1995.
RESOLVED, that Article Third of the Restated Certificate of
Incorporation be amended to read in its entirety as follows:
"THIRD: The aggregate number of shares which the Corporation
shall have the authority to issue is 42,000,000 shares, of
which 40,000,000 shall be Common Stock, par value $.01 per
share (the "Common Stock"), and 2,000,000 shares shall be
Preferred Stock, par value $1.00 per share (the "Preferred
Stock").
The Preferred Stock may be issued from time to time in
one or more series with such designations, preferences and
relative participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as shall
be stated in the resolutions adopted by the Board of Directors
providing for the issuance of such Preferred Stock or series
thereof; and the Board of Directors is hereby expressly vested
with authority to fix such designations, preferences and
relative participating, optional or other special rights or
qualifications, limitations or restrictions for each series,
including, but not by way of limitation, the power to fix the
redemption and liquidation preferences, the rate of dividends
payable and the time for and the priority of payment thereof
and to determine whether such dividends shall be cumulative or
not and to provide for and fix the terms of conversion of such
Preferred Stock or any series thereof into Common Stock of the
Corporation and fix the voting power, if any, of shares of
Preferred Stock or any series thereof."
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THIRD: The number of shares of common stock outstanding at the
time of the adoption of the amendment was 8,713,738. The total number of shares
of common stock entitled to vote thereon was 8,713,738. If the shares of any
class or series are entitled to vote thereon as a class, set forth below the
designation and number of outstanding shares entitled to vote thereon of each
such class or series.
--------------------------------------------------------------------------------
Total Number of Number of Shares Voted
Class or Series Shares Entitled to vote For Against Abstain
--------------- ----------------------- --- ------- -------
--------------------------------------------------------------------------------
Common 8,713,738 5,722,159 177,849 42,167
--------------------------------------------------------------------------------
Preferred 0 0 0 0
--------------------------------------------------------------------------------
FOURTH: the effective date of this amendment shall be upon
filing. This Certificate is dated as of the 18/th/ day of May, 1995.
MEDAREX, INC.
By: /s/ Donald L. Drakeman
--------------------------------
Donald L. Drakeman
President
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CERTIFICATE OF AMENDMENT TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
MEDAREX, INC.
TO: The Secretary of State
State of New Jersey
Pursuant to the provisions of Section 14A:9-2(4) and Section
14A:9-4(3), Corporations, General, of the New Jersey Statutes, the undersigned
corporation (the "Corporation") hereby executes the following Certificate of
Amendment to its Restated Certificate of Incorporation:
FIRST: The name of the Corporation is Medarex, Inc.
SECOND: The following amendment to the Restated Certificate
of Incorporation was approved by the directors and thereafter duly adopted by
the shareholders of the Corporation on the 18th day of May, 2000.
RESOLVED, that Article Third of the Restated Certificate
of Incorporation be amended to read in its entirety as
follows:
"THIRD: The aggregate number of shares which the
Corporation shall have the authority to issue is
102,000,000 shares, of which 100,000,000 shall be Common
Stock, par value $.01 per share (the "Common Stock"), and
2,000,000 shares shall be Preferred Stock, par value $1.00
per share (the"Preferred Stock").
Shares of Preferred Stock may be issued from time to time
in one or more series with such designations, preferences
and relative participating, optional or other special
rights and qualifications, limitations or restrictions
thereof, as shall be stated in the resolutions adopted by
the Board of Directors providing for the issuance of such
Preferred Stock or series thereof; and the Board of
Directors is hereby expressly vested with authority to fix
such designations, preferences and relative participating,
optional or other special rights or qualifications,
limitations or restrictions for each series, including,
but not by way of limitation, the power to fix the
redemption and liquidation preferences, the rate of
dividends payable and the time for and the priority of
payment thereof and to determine whether such dividends
shall be cumulative or not and to provide for and fix the
terms of conversion of such Preferred Stock or any series
thereof into Common Stock of the Corporation and fix the
voting power, if any, of shares of Preferred Stock or any
series thereof."
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THIRD: The number of shares of common stock outstanding at
the time of the adoption of the amendment was 35,155,185. The total number of
shares of common stock entitled to vote thereon was 35,151,835. If the shares of
any class or series are entitled to vote thereon as a class, set forth below the
designation and number of outstanding shares entitled to vote thereon of each
such class or series.
Class or Series Total Number of Number of Shares Voted
--------------- Shares Entitled to Vote For Against Abstain
----------------------- --- ------- -------
Common 35,151,835 22,874,061 2,772,254 18,069
Preferred 0 0 0 0
FOURTH: The effective date of this amendment shall be upon
filing. This Certificate is dated as of the 22/nd/ day of May, 2000.
MEDAREX, INC.
By: /s/ W. Bradford Middlekauff
---------------------------------
W. Bradford Middlekauff
Vice President,
Counsel and Secretary
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