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Exhibit 3.2
AS AMENDED ON MAY 24, 2000
RESTATED CERTIFICATE OF INCORPORATION
OF CYTOTHERAPEUTICS, INC.
Cytotherapeutics, Inc., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Cytotherapeutics, Inc.
Cytotherapeutics, Inc. was originally incorporated under the name Cellular
Transplants, Inc., and the original Certificate of Incorporation of the
corporation was filed with the Secretary of State of the State of Delaware on
August 2, 1988. A Restated Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on February 14, 1992 (the "Restated
Certificate of Incorporation").
2. Pursuant to Section 245 of the General Corporation law of the State
of Delaware, this Restated Certificate of Incorporation restates and integrates,
but does not further amend the provisions of the Restated Certificate of
Incorporation of this corporation. There is no discrepancy between the
provisions of the Restated Certificate of Incorporation as the same has been
heretofore amended or supplemented and the provisions of this Restated
Certificate of Incorporation.
3. The text of the Restated Certificate of Incorporation as heretofore
amended or supplemented is hereby restated to read in its entirety as follows:
ONE. The name of this corporation is Cytotherapeutics, Inc.
TWO. The address of the corporation's registered office in the State
of Delaware is 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such office is The Corporation Trust
Company.
THREE. The nature of the business or purposes to be conducted by
this Corporation is to engage in any lawful act or activity for which a
corporation may be organized under the General Corporation Law of Delaware.
FOUR. The total number of shares of stock that this Corporation
shall have authority to issue is 46,000,000, consisting of 45,000,000 shares of
Common Stock, with a par value of $.01 per share (the "Common Stock"), and
1,000,000 shares of Undesignated Preferred Stock with a par value of $.01 per
share (the "Undesignated Preferred Stock").
The relative rights, preferences, privileges and restrictions granted
to or imposed on the respective classes of the shares of capital stock or the
holders thereof are as follows:
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1. DIVIDENDS. The holders of Common Stock shall be entitled to such
dividends as are declared by the Board of Directors. The right to such dividends
on shares of the Common Stock shall not be cumulative and no right shall accrue
to holders of Common Stock by reason of the fact that dividends on said shares
are not declared in any prior period.
2. LIQUIDATION PREFERENCE.
a. (Eliminated)
b. (Eliminated)
c. COMMON PREFERENCE. In the event of any liquidation,
dissolution or winding up of the Corporation, either voluntarily or
involuntarily and subject to the rights of the holders of the Undesignated
Preferred Stock, if assets remain, the holders of the Common Stock shall be
entitled to receive an amount equal to $1.00 per share. If, upon such
liquidation, dissolution or winding up of the Corporation, the Assets of the
Corporation are insufficient to provide for the cash payment of the full
aforesaid preferential amount to the holders of Common Stock, the entire
remaining assets legally available for distribution shall be distributed ratably
among the holders of Common Stock in proportion to the full preferential amount
each such holder is otherwise entitled to receive.
d. NON-PREFERENCE DISTRIBUTION. After the payment or the
setting apart of payment to the holders of the Common Stock of the full
preferential amounts so payable to them and subject to the rights of the holders
of the Undesignated Preferred Stock, the entire remaining assets of this
Corporation legally available for distribution shall be distributed equally
among the holders of the Common Stock.
e. CONSOLIDATION OR MERGER. A consolidation or merger of the
Corporation with or into any other corporation or corporations, or the merger of
any other corporation or corporations into the Corporation, in which
consolidation or merger the stockholders of the Corporation receive
distributions in cash or securities of another corporation or corporations as a
result of such consolidation or merger (other than solely to effect a
reincorporation), or a sale of all or substantially all of the assets of the
Corporation, shall be deemed to be a liquidation, dissolution or winding up
within the meaning of this Section 2.
f. NONCASH DISTRIBUTIONS. If any of the assets of the
Corporation are to be distributed other than in cash under this Section 2 or for
any purpose, then the Board of Directors of the Corporation shall promptly
engage independent competent appraisers to determine the value of the assets to
be distributed to the holders of Preferred Stock or Common Stock. The
Corporation shall, upon receipt of such appraiser's valuation, give prompt
written notice to each holder of shares of Preferred Stock or Common Stock of
the appraiser's valuation.
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3. VOTING RIGHTS.
a. (Eliminated)
b. (Eliminated)
c. COMMON STOCK. Each holder of shares of Common Stock shall
be entitled to one vote for each share thereof held, such voting rights to be
counted together with all other shares of capital stock of the Corporation
having voting powers and not as a separate class.
d. BOARD OF DIRECTORS. Of the authorized members of the
Corporation's Board of Directors:
i. (Eliminated)
ii. (Eliminated)
iii. (Eliminated)
iv. subject to the rights of the holders of the
Undesignated Preferred Stock, the holders of Common
Stock, voting separately as a single class, shall be
entitled to elect all remaining authorized members
(and to fill any vacancies with respect thereto).
4. (Eliminated)
5. (Eliminated)
6. (Eliminated)
7. THE UNDESIGNATED PREFERRED STOCK.
a. ISSUANCE. The Undesignated Preferred Stock may be issued
from time to time in one or more series. All shares of any one series of
Undesignated Preferred Stock shall be identical in all respects, except that
shares of any one series issued on different dates may differ as to dates, if
any, from which dividends thereon are to accrue and/or cumulate.
b. DESIGNATIONS, POWERS, ETC. The Board of Directors of this
Corporation is expressly granted authority, at any time and from time to time by
the adoption of a resolution or resolutions not inconsistent with the provisions
of this Restated Certificate of Incorporation, to authorize the issuance by this
Corporation of one or more series of Undesignated Preferred Stock and to fix and
determine with respect to each such series all the designations, preferences,
powers and relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, to the full extent now or
hereafter permitted by law, and including, but without limiting the generality
of the foregoing, the following:
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i. The number of shares of such series, which may
subsequently be increased (except as otherwise
provided by the resolution or resolutions of the
Board of Directors providing for the issuance of such
series) or decreased (to a number not less than the
number of shares then outstanding) by resolution or
resolutions of the Board of Directors, and the
distinctive designation thereof;
ii. The dividend rights of such series; the preferences,
if any, over any other class or series of stock, or
of any other class or series of stock over such
series, as to dividends; the extent, if any, to which
shares of such series shall be entitled to
participate in dividends with shares of any other
series or class of stock; whether dividends on shares
of such series shall be fully, partially or
conditionally cumulative, or a combination thereof;
and any limitations, restrictions or conditions on
the payment of such dividends;
iii. The rights of such series, and the preferences, if
any, over any other class or series of stock, or of
any other class or series of stock over such series,
in the event of any voluntary or involuntary
liquidation, dissolution or winding up of this
Corporation and the extent, if any, to which shares
of any such series shall be entitled to participate
in such event with any other series or class of
stock;
iv. Whether or not the shares of such series shall be
redeemable, and, if redeemable, the date or dates
upon or after which they shall be redeemable, the
amount per share payable thereon in the case of the
redemption thereof, which amount may vary at
different redemption dates;
v. The terms of any purchase, retirement or sinking fund
which may be provided for the shares of such series;
vi. The right, if any, of holders of shares of such
series to convert the same into, or exchange the same
for Common Stock, and the terms and conditions of
such conversion or exchange, as well as provisions
for adjustment of the conversion rate in such events
as the Board of Directors shall determine; and
vii. The voting powers, if any, of such series in addition
to the voting powers (if any) required by law.
c. RIGHTS IN THE EVENT OF LIQUIDATION, DISSOLUTION OR WINDING
UP. In the event of any liquidation, dissolution or winding up of this
Corporation, whether voluntary or involuntary, the holders of Undesignated
Preferred Stock of each series shall be entitled to receive only such amount of
amount as shall have been fixed by this Restated Certificate of
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Incorporation or by the resolution or resolutions of the Board of Directors
providing for the issuance of such series.
FIVE. The following provisions shall apply to the Board of
Directors:
(a) CLASSIFICATION OF DIRECTORS. Except as otherwise provided
in this Restated Certificate of Incorporation or a certificate of designation of
this Corporation relating to the rights of the holders of any class or series of
Undesignated Preferred Stock, voting separately by class or series, to elect
additional directors under specified circumstances, the number of directors of
this Corporation shall be as fixed from time to time by or pursuant to the
By-Laws of this Corporation. Effective upon the first closing of a public
offering pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering any of this Corporation's securities, the
directors, other than those who may be elected by the holders of any class or
series of Preferred Stock voting separately by class or series, shall be
classified, with respect to the time for which they severally hold office, into
three classes, Class I, Class II and Class III, which shall be as nearly equal
in number as possible, and shall be adjusted from time to time in the manner
specified in the By-Laws of this Corporation to maintain such proportionality.
Each initial director in Class I shall hold office for a term expiring at the
first annual meeting of stockholders following the classification of directors,
each initial director in Class II shall hold office initially for a term
expiring at the second annual meeting of stockholders following the
classification of directors, and each initial director in Class III shall hold
office for a term expiring at the third annual meeting of stockholders following
the classification of directors. Notwithstanding the foregoing provisions of
this Section FIVE, each director shall serve until his or her successor is duly
elected and qualified or until his or her earlier death, resignation or removal.
At each annual meeting of stockholders following the classification of
directors, the successors to the class of directors whose term expires at that
meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election and until their successors have been duly elected and qualified or
until their earlier death, resignation or removal.
(b) REMOVAL OF DIRECTORS. Except as otherwise provided
pursuant to the provisions of this Restated Certificate of Incorporation or a
certificate of designation of this Corporation relating to the rights of the
holders of any class or series of Undesignated Preferred Stock, voting
separately by class or series, to elect directors under specified circumstances,
any director or directors may be removed from office at any time, but only for
cause and only by the affirmative vote, at any regular meeting or special
meeting of the stockholders, of not less than 80% of the total number of votes
of the then outstanding shares of stock of this Corporation entitled to vote
generally in the election of directors, voting together as a single class, but
only if notice of such proposal was contained in the notice of such meeting. Any
vacancy in the Board of Directors resulting from any such removal or otherwise
shall be filled only by vote of a majority of the directors then in office,
although less than a quorum, and any directors so chosen shall hold office until
the next election of the class for which such directors shall have been chosen
and until their successor shall be elected and qualified or until their earlier
death, resignation or removal.
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(c) CHANGE OF AUTHORIZED NUMBER OF DIRECTORS. In the event of
any increase or decrease in the Authorized number of directors, the newly
created or eliminated directorships resulting from such increase or decrease
shall be apportioned by the Board of Directors among the three classes of
directors so as to maintain such classes as nearly equal as possible. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
(d) DIRECTORS ELECTED BY HOLDERS OF UNDESIGNATED PREFERRED
STOCK. Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Undesignated Preferred Stock issued by this Corporation
shall have the right, voting separately by class or series, to elect directors
at an annual or special meeting of stockholders, the election, term of office,
filling of vacancies and other features of such directorships shall be governed
by the terms of this Restated Certificate of Incorporation or a certificate of
designation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Section FIVE unless expressly provided by
such terms.
SIX. The corporation is to have perpetual existence.
SEVEN. In furtherance and not in limitation of the power conferred
upon the Board of Directors by law, the Board of Directors shall have the power
to make, adopt, alter, amend and repeal from time to time By-Laws of this
Corporation, subject to the right or the stockholders entitled to vote with
respect thereto to amend or repeal By-Laws made by the Board of Directors as
provided for in this Restated Certificate of Incorporation. The affirmative vote
of 80% of the total number of votes of the then outstanding shares of capital
stock of this Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required for the
adoption, amendment or repeal of By-Laws by the stockholders of this
Corporation.
EIGHT. If at any time this Corporation shall have a class of stock
registered pursuant to the provisions of the Securities Exchange Act of 1934,
for so long as such class is so registered, any action by the stockholders of
such class must be taken at an annual or special meeting of stockholders and may
not be taken by written consent.
NINE. A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent
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that exculpation from liability is not permitted under the Delaware General
Corporation Law as in effect at the time such liability is determined. No
amendment or repeal of this Section RIGHT shall apply to or have any effect on
the liability or alleged liability of any director of the corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
TEN. The Corporation shall, to the maximum extent permitted from
time to time under the law oft he State of Delaware, indemnify and upon request
shall advance expenses to any person who is or was a party or is threatened to
be made a party to any threatened, pending or completed action, suit, proceeding
or claim, whether civil, criminal, administrative or investigative, by reason of
the fact that such person is or was or has agreed to be a director or officer of
the Corporation of while a director or officer is or was serving at the request
of the Corporation as a director, officer, partner, trustee, employee or agent
of any corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against expenses
(including attorney's fees and expenses), judgments, fines, penalties and
amounts paid in settlement incurred in connection with the investigation
preparation to defend of defense or such action, suit, proceeding or claim;
PROVIDED, HOWEVER, that the foregoing shall not require the Corporation to
indemnify or advance expenses to any person in connection with any action, suit,
proceeding, claim or counterclaim initiated by or on behalf of such person. Such
indemnification shall not be exclusive of other indemnification rights arising
under any by-law, agreement, vote of directors or stockholders or otherwise and
shall inure to the benefit of the heirs and legal representatives of such
person. Any person seeking indemnification under this Section NINE shall be
deemed to have met the standard of conduct required for such indemnification
unless the cont5rary shall be established. Any repeal or modification of the
foregoing provisions of this Section TEN shall not adversely affect any right or
protection of a director or officer of the Corporation with respect to any acts
or omissions of such director or officer occurring prior to such repeal or
modification.
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ELEVEN. Advance notice of new business and stockholder nominations
for the election of directors shall be given in the manner and to the extent
provided in the Bylaws of the corporation. Elections of directors need not be by
written ballot unless the Bylaws of the corporation shall so provide.
TWELVE. The Board of Directors of this Corporation, when evaluating
any offer of another party (a) to make a tender or exchange offer for any equity
security of this Corporation or (b) to effect a business combination, shall, in
connection with the exercise of its judgment in determining what is in the best
interests of this Corporation as a whole, be authorized to give due
consideration to any such factors as the Board of Directors determines to be
relevant, including, without limitation:
(i) the interests of this Corporation's stockholders,
including the possibility that these interests might be best served by
the continued independence of the corporation;
(ii) whether the proposed transaction might violate federal or
state laws;
(iii) not only the consideration being offered in the
proposed transaction, in relation to the then current market price for
the outstanding capital stock of this Corporation, but also to the
market price for the capital stock of this Corporation over a
period of years, the estimated price that might be achieved in a
negotiated sale of this Corporation as a whole or in part or through
orderly liquidation, the premiums over market price for the securities
of other corporations in similar transactions, current political,
economic and other factors bearing on securities prices and this
Corporation's financial condition and future prospects; and
(iv) the social, legal and economic effects upon employees,
suppliers, customers, creditors and others having similar relationships
with this Corporation, upon the communities in which this Corporation
conducts its business and upon the economy of the state, region and
nation.
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In connection with any such evaluation, the Board of Directors is authorized to
conduct such investigations and engage in such legal proceedings as the Board of
Directors may determine.
THIRTEEN. Notwithstanding any other provisions of this Restated
Certificate of Incorporation or the By-Laws (and notwithstanding the fact that a
lesser percentage may be specified by law, this Restated Certificate of
Incorporation or the By-Laws of this Corporation), the affirmative vote of 80%
or the total number of votes of the then outstanding shares of capital stock of
this Corporation entitled to vote generally in the election of directors, voting
together as s single class, shall be required to amend or repeal, or to adopt
any provision inconsistent with the purpose or intent of Sections FIVE, SEVEN,
EIGHT, NINE, TEN, ELEVEN, TWELVE and this Section THIRTEEN. Notice of any such
proposed amendment, repeal or adoption, shall be contained in the notice of the
meeting at which it is to be considered. Subject to the provisions set forth
herein, this Corporation reserves the right to amend, alter, repeal or rescind
any provision contained in this Restated Certificate of incorporation in the
manner now or hereafter prescribed by law.
This Restated Certificate of Incorporation has been duly adopted by
the Board of Directors in accordance with Section 245 of the Delaware General
Corporation Law.
IN WITNESS WHEREOF, said CytoTherapeutics, Inc. has caused this
Restated Certificate of Incorporation to be signed by Seth A. Rudnick, its
President, and W. Bradford Smith, its Secretary, this 11th day of August, 2000.
CYTOTHERAPEUTICS, INC.
/s/ Seth A. Rudnick
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Seth A. Rudnick, President
ATTEST:
By: /s/ W. Bradford Smith
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W. Bradford Smith, Secretary
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
CYTOTHERAPEUTICS, INC.
CytoTherapeutics, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, hereby certifies that:
The name of the Corporation is CytoTherapeutics, Inc. CytoTherapeutics,
Inc. was originally incorporated under the name Cellular Transplants, Inc. and
the original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on August 2, 1988. A Restated
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on February 14,1992 and again restated on August 11, 1992. The
certificate of incorporation of the Corporation, as restated, is hereby further
amended to read as follows:
"ONE: The name of this corporation is StemCells, Inc."
The said amendment has been consented to and authorized by the stockholders
of the corporation, acting by unanimous written consent given in accordance with
the applicable provisions of Section 228 of the General Corporation Law of the
State of Delaware, effective on May 23, 2000.
The said amendment has been duly adopted in accordance with the applicable
provisions of Sections 242 and 228 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Iris Brest, its Secretary, this 23th day of May, 2000.
CYTOTHERAPEUTICS, INC.
By: /s/ Iris Brest
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Secretary
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