Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
ARGUS PHARMACEUTICALS, INC.
ARGUSPHARMACEUTICALS, INC. (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, does hereby
certify that it was incorporated on June 13, 1986 as THE MACROPHAGE COMPANY.
ARTICLE ONE
This Restated Certificate of Incorporation has been duly adopted in
accordance with the applicable provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware (the "DGCL") by the Board of Directors
of the Corporation.
ARTICLE TWO
This Restated Certificate of Incorporation was approved by written consent
of the stockholders pursuant to Section 228 of the DGCL.
ARTICLE THREE
The outstanding shares of the Corporation's common stock, par value $.001
per share ("Old Common Stock"), are hereby reclassified and converted into
shares of the Corporation's Common Stock, par value $.001 per share ("Common
Stock"), on the basis of one share of Common Stock for each 3.3 shares of Old
Common Stock. The Corporation shall not issue any fractional shares of Common
Stock in connection with any of the foregoing reclassification and conversion of
Old Common Stock; instead, any fractional interest in Common Stock resulting
from application of the specified reclassification and conversion ratios shall
be rounded up or down to the nearest whole share of Common Stock, and in the
event that any fractional interest is rounded down, there shall be no cash paid
by or to the Corporation in respect of any such fractional interest.
ARTICLE FOUR
The Certificate of Incorporation of this Corporation and all amendments
thereto are hereby superseded by the following Restated Certificate of
Incorporation which accurately sets forth the entire text of the Certificate of
Incorporation:
ARTICLE I
NAME
The name of the Corporation is Argus Pharmaceuticals, Inc.
ARTICLE II
REGISTERED OFFICE/AGENT
The registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle, Delaware 19801. The name of its registered agent at such address
is The Corporation Trust Company.
ARTICLE III
PURPOSES
The purposes of the Corporation are to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
CAPITAL STOCK
A. Classes of Stock
The total number of shares of all classes of capital stock that the
Corporation shall be authorized to issue is 35,000,000 shares, divided into the
following: (i) 10,000,000 shares of preferred stock, par value $.001 per share
("Preferred Stock"), and (ii) 25,000,000 shares of common stock, par value $.001
per share ("Common Stock").
B. Preferred Stock
Shares of Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby vested with the authority to fix by
resolution the powers, designations, preferences and relative, participating,
optional and other special rights of each series of Preferred Stock, including,
without limitation, the dividend rate, conversion rights, voting rights,
redemption price and liquidation preference, and the qualifications, limitations
or restrictions on such preferences and/or rights and to fix the number of
shares constituting any such series. Unless otherwise provided by the
resolution(s) adopted by the Board of Directors providing for the issue of any
series of Preferred Stock, the number of shares comprising such series may be
increased or decreased (but not below the number of shares then outstanding)
from time to time by duly adopted resolutions(s) of the Board of Directors.
C. Common Stock
Except as otherwise provided in this Restated Certificate of Incorporation
or by law or by the resolution(s) of the Board of Directors providing for the
issue of any series of the Preferred Stock, each holder of Common Stock shall be
entitled to one vote for each share held. Subject to all of the rights of the
Preferred Stock or any series thereof, the holders of the Common Stock shall be
entitled to receive, when and as declared by the Board of Directors, out of
funds legally available therefor, dividends payable in cash, stock or otherwise.
Upon any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntarily, and after the holders of the Preferred Stock of each
series shall have been paid in full the amounts to which they respectively shall
be entitled, or a sum sufficient for such payments in full shall have been set
aside, the remaining net assets of the Corporation shall be distributed pro rata
to the holders of the Common Stock in accordance with their respective rights
and interest.
ARTICLE V
BOARD OF DIRECTORS
Except as otherwise provided by law, the business and affairs of the
Corporation shall be managed by, or under the direction of its Board of
Directors. The number of directors of the Corporation shall be fixed by and in
the manner provided in, the Corporation's Bylaws, but shall not be fewer than
three nor more than 15. None of the directors need be a stockholder or a
resident of the State of Delaware. Elections of directors need not be by written
ballot unless the Corporation's Bylaws provide otherwise. In furtherance and not
in limitation of the rights, powers, privileges and discretionary authority
conferred by the DGCL or other applicable law, the Board of Directors is
expressly authorized to adopt, amend or repeal the Bylaws of the Corporation.
ARTICLE VI
STOCKHOLDERS
Stockholder action may only be taken at an annual or special meeting with
prior notice and a vote. No stockholder action may be taken by written consent.
Meetings of stockholders may be held within or without the State of Delaware as
the Bylaws may provide. In addition to such special meetings as are provided by
law or this Restated Certificate of Incorporation, special meetings of the
stockholders may be called only by (a) the Board of Directors pursuant to a
resolution adopted by a majority of the Board of Directors then in office, (b)
the Chairman of the Board, (c) the President of the Corporation or (d) the
holders of not less than 30% of the total voting power of all shares of stock of
the Corporation entitled to vote in the election of directors. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place(s) as may be designated from time to
time by the Board of Directors or in the Bylaws of the Corporation.
ARTICLE VII
LIMITED DIRECTOR LIABILITY
A director of the corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for 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 involved intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL for unlawful
payment of dividends or improper redemption of stock, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
DGCL is hereafter amended to authorize the further elimination or limitation of
the liability of directors, then the liability of a director of the Corporation,
in addition to the limitation on personal liability provided herein, shall be
limited to the fullest extent permitted by the DGCL, as amended. Any repeal or
modification of this paragraph by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any limitation on the personal
liability of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE VIII
INDEMNIFICATION
A. Mandatory Indemnification
Each person who at any time is or was a director of the Corporation, and is
threatened to be or is made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative, arbitrative
or investigative (a "Proceeding"), by reason of the fact that such person is or
was a director of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, venturer, proprietor, member,
employee, trustee, agent or similar functionary of another domestic or foreign
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other for-profit or non-profit enterprise, whether the basis of
a Proceeding is alleged action in such person's official capacity or in another
capacity while holding such office, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the DGCL, or any other
applicable law as may from time to time be in effect (but, in the case of any
such amendment or enactment, only to the extent that such amendment or law
permits the Corporation to provide broader indemnification rights than such law
prior to such amendment or enactment permitted the Corporation to provide),
against all expense, liability and loss (including, without limitation, court
costs and attorneys' fees, judgments, fines, excise taxes or penalties, and
amounts paid or to be paid in settlement) actually and reasonably incurred or
suffered by such person in connection with a Proceeding, and such
indemnification shall continue as to a person who has ceased to be a director of
the Corporation or a director, officer, partner, venturer, proprietor, member,
employee, trustee, agent or similar functionary of another domestic or foreign
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other for-profit or non-profit enterprise, and shall inure to
the benefit of such person's heirs, executors and administrators. The
Corporation's obligations under Section A include, but are not limited to, the
convening of any meeting, and the consideration of any matter thereby, required
by statute in order to determine the eligibility of any person for
indemnification.
B. Prepayment of Expenses
Expenses incurred by a director of the Corporation in defending a
Proceeding shall be paid by the Corporation in advance of the final disposition
of such Proceeding to the fullest extent permitted by, and only in compliance
with, the DGCL or any other applicable laws as may from time to time be in
effect, including, without limitation, any provision of the DGCL which requires,
as a condition precedent to such expense advancement, the delivery to the
Corporation of an undertaking, by or on behalf of such director, to repay all
amounts so advanced if it shall ultimately be determined that such director is
not entitled to be indemnified under Section A of this Article VIII or
otherwise. Repayments of all amounts so advanced shall be upon such terms and
conditions, if any, as the Corporation's Board of Directors deems appropriate.
C. Vesting
The Corporation's obligation to indemnify and to prepay expenses under
Sections A and B of this Article VIII shall arise, and all rights granted to the
Corporation's directors hereunder shall vest, at the time of the occurrence of
the transaction or event to which a Proceeding relates, or at the time that the
action or conduct to which such Proceeding relates was first taken or engaged in
(or omitted to be taken or engaged in), regardless of when such Proceeding is
first threatened, commenced or completed. Notwithstanding any other provision of
this Certificate of Incorporation or the Bylaws of the Corporation, no action
taken by the Corporation, either by amendment of this Certificate of
Incorporation or the Bylaws of the Corporation or otherwise, shall diminish or
adversely affect any rights to indemnification or prepayment of expenses granted
under Sections A and B of this Article VIII which shall have become vested as
aforesaid prior to the date that such amendment or other corporate action is
effective or taken, whichever is later.
D. Enforcement
If a claim under Section A or Section B or both Sections A and B of this
Article VIII is not paid in full by the Corporation within 30 days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit in a court of competent jurisdiction against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall also be entitled to be paid the expense of
prosecuting such claim. It shall be a defense to any such suit (other than a
suit brought to enforce a claim for expenses incurred in defending any
Proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the DGCL or
other applicable law to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. The failure of the
Corporation (including its Board of Directors, independent legal counsel, or
stockholders) to have made a determination prior to the commencement of such
suit as to whether indemnification is proper in the circumstances based upon the
applicable standard of conduct set forth in the DGCL or other applicable law
shall neither be a defense to the action nor create a presumption that the
claimant has not met the applicable standard of conduct. The termination of
any Proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal Proceeding, had reasonable cause
to believe that his conduct was unlawful.
E. Nonexclusive
The indemnification provided by this Article VIII shall not be deemed
exclusive of any other rights to which a person seeking indemnification may be
entitled under any stature, bylaw, other provisions of this Certificate of
Incorporation, agreement, vote of stockholders of disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office.
F. Permissive Indemnification
The rights to indemnification and prepayment of expenses which are
conferred to the Corporation's directors by Sections A and B of this Article
VIII may be conferred upon any officer, employee or agent of the Corporation if,
and to the extent, authorized by the Board of Directors.
G. Insurance
The Corporation shall have power to purchase and maintain insurance, at its
expense, on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, partner, venturer, proprietor, member, employee,
trustee, agent or similar functionary of another domestic or foreign
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other for-profit or non-profit enterprise against any expense,
liability or loss asserted against such person and incurred by such person in
any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Corporation's Bylaws, the provisions of
this Article VIII, the DGCL or other applicable law.
ARTICLE IX
COMPROMISE
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this 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 this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
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 this Corporation under
the provisions of 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 this Corporation, as the case may 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 this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as 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 stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
IN WITNESS WHEREOF, Argus Pharmaceuticals, Inc. has caused this Restated
Certificate of Incorporation to be signed by its Vice President and attested to
by its Secretary and Controller this 24th day of June, 1992.
/s/ Kenneth M. Cohen
--------------------
Kenneth M. Cohen,
Vice President
Acknowledged this 24th
day of June, 1992.
/s/Terance A. Murnane
- ---------------------
Terance A. Murnane,
Secretary and Controller
STATE OF TEXAS S
S
COUNTY OF HARRIS S
I, Rosa L. Williams, a notary public, in and for Harris County, Texas, do
hereby certify that on this the 24th day of June, 1992, personally appeared
before me, Kenneth M. Cohen, who being by me duly sworn, declared that he is the
person who signed the foregoing Restated Certificate of Incorporation of Argus
Pharmaceuticals, Inc. as Vice President of Argus Pharmaceuticals, Inc., as the
act and deed of such corporation, and that the statements contained therein are
true.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 24th day of June, 1992.
/s/ ROSA L. WILLIAMS
[SEAL] -------------------------------------------
Notary Public in and for the State of Texas
My Commission Expires May 8, 1994
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ARGUS PHARMACEUTICALS, INC.
Argus Pharmaceuticals, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation").
DOES HEREBY CERTIFY:
FIRST: That a meeting of the Board of Directors of the Corporation,
resolutions were duly adopted setting forth a proposed amendment of the Amended
and Restated Certificate of Incorporation of the Corporation, declaring said
amendment to be advisable and calling a meeting of the stockholders of the
Corporation for consideration thereof. The resolution setting forth the proposed
amendment is as follows:
RESOLVED, that the Amended and Restated Certificate of Incorporation
of the Corporation be amended to change each of Article I, Article IV and
Article V thereto, so that as amended,
Article I shall be and read as follows:
ARTICLE I
NAME
The name of the Corporation is Aronex Pharmaceuticals, Inc.
Article IV shall be and read as follows:
ARTICLE IV
CAPITAL STOCK
A. Classes of Stock
The total number of shares of all classes of capital stock that the
Corporation shall be authorized to issue is 85,000,000 shares, divided into
the following: (i) 10,000,000 shares of preferred stock, par value $.001
per share ("Preferred Stock"), and (ii) 75,000,000 shares of common stock,
par value $.001 per share ("Common Stock").
-1-
B. Preferred Stock
Shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby vested with the authority to
fix by resolution the powers, designations, preferences and relative,
participating, optional and other special rights of each series of
Preferred Stock, including, without limitation, the dividend rate,
conversion rights, voting rights, redemption price and liquidation
preference, and the qualifications, limitations or restrictions on such
preferences and/or rights to fix the number of shares constituting any such
series. Unless otherwise provided by the resolution(s) adopted by the Board
of Directors providing for the issue of any series of Preferred Stock, the
number of shares comprising such series may be increased or decreased (but
not below the number of shares then outstanding) from time to time by only
adopted resolution(s) of the Board of Directors.
C. Common Stock
Except as otherwise provided in this Amended and Restated Certificate
of Incorporation or by law or by the resolution(s) of the Board of
Directors providing for the issue of any series of the Preferred Stock,
each holder of Common Stock shall be entitled to one vote for each shares
held. Subject to all of the rights of the Preferred Stock or any series
thereof, the holders of the Common Stock shall be entitled to receive, when
and as declared by the Board of Directors, out of funds legally available
therefor, dividends payable in cash, stock or otherwise. Upon any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, and after the holders of the Preferred Stock of
each series shall have been paid in full the amounts to which they
respectively shall be entitled, or a sum sufficient for such payments in
full shall have been set aside, the remaining net assets of the Corporation
shall be distributed pro rata to the holders of the Common Stock in
accordance with their respective rights and interest.
Article V shall be and read as follows:
ARTICLE V
BOARD OF DIRECTORS
A. Classification
Except as otherwise provided by law, the business and affairs of the
Corporation shall be managed by, or under the direction of, its Board of
Directors. The Board of Directors shall be divided into three classes,
Class I, Class II and Class III, which shall be as nearly equal in number
as possible. At the annual meeting of stockholders to be held in 1995, or
any special meeting held in lien thereof, Class I Directors shall be
elected for a term expiring at the annual meeting of stockholders to be
held in 1998, Class II Directors shall be elected for a term expiring at
the annual meting of stockholders to be held in 1997, and Class III
Directors shall be elected for a term expiring at the annual meeting of
stockholders to be held
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in 1996, with each director to hold office until his or her successor is
elected and qualified. At each annual meeting of stockholders subsequent to
1995, the successor(s) of the class of directors whose term expires at that
annual meeting shall be elected to hold office for a term expiring at the
annual meeting of stockholders to be held in the third year following the
year of such director's election. None of the directors need be a
stockholder or a resident of the State of Delaware. The election of
directors need not be by written ballot, unless so provided in the
Corporation's Bylaws. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any incumbent director.
Any newly created or eliminated directorship resulting from an increase or
decrease in the Board of Directors shall be appointed by the Board of
Directors among the three classes of directors so as to maintain such
classes as nearly equal as possible. In furtherance and not in limitation
of the rights, powers, privileges and discretionary authority conferred by
the DGCL, or other applicable law, the Board of Directors is expressly
authorized to adopt, amend or repeal the Bylaws of the Corporation.
B. Vacancies
Except as otherwise provided for in this Amended and Restated
Certificate of Incorporation, vacancies resulting from newly-created
directorships, death, resignation, removal or other cause shall be filled
only by the affirmative vote of a majority of the remaining directors then
in office, even though less than a quorum of the Board of Directors, or by
a sole remaining director. Any director elected in accordance with the
preceding sentence of this Article V shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred until such director's successor shall have
been elected and qualified.
C. Removal
Any director may be removed from office only for cause and only by
either the affirmative vote of a majority of the continuing directors other
than such director, or by the affirmative vote of the holders of 80% of the
then outstanding shares of each class of stock of the Corporation having
voting power for the election of directors.
SECOND: That thereafter, pursuant to resolution of 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 General Corporation law
of the State of Delaware at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by David M. Leech, its President and Chief Executive Officer and Terance
A. Murnane, its Controller and Secretary, this 11th day of September, 1995.
/s/ David M. Leech
-------------------------
David M. Leech, President
and Chief Executive Officer
ATTEST: /s/Terance A. Murnane
-----------------------
Terance A. Murnane,
Controller and Secretary
-4-
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ARONEX PHARMACEUTICALS, INC.
Aronex Pharmaceuticals, Inc. (the "Corporation"), organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "DGCL") does hereby certify:
FIRST: That the Board of Directors of the Corporation duly adopted
resolutions setting forth the following amendment to the Amended and Restated
Certificate of Incorporation of the Corporation (the "Amendment"), declaring the
Amendment to be advisable and calling for the submission of the proposed
Amendment to the stockholders of the Corporation for consideration thereof. The
resolution setting forth the proposed Amendment is as follows:
ARTICLE IV of the Amended and Restated Certificate of Incorporation of
Aronex Pharmaceuticals, Inc., a Delaware corporation, is hereby amended by
adding thereto new Section D to read as follows:
D. Reverse Split
(i) Effective immediately upon the filing of this Amendment to the Amended
and Restated Certificate of Incorporation in the office of the Secretary of
State of the State of Delaware, each outstanding share of previously existing
Common Stock shall be and hereby is converted into and reclassified as one-half
of a share of Common Stock; provided, however, that fractional shares of Common
Stock will not be issued and each holder of a fractional share of Common Stock
shall receive in lieu thereof a cash payment from the Corporation determined by
multiplying such fractional share of Common Stock by two times the average
closing price of a share of previously existing Common Stock on the Nasdaq
National Market for the five trading days immediately preceding the effective
date, and upon such other terms as the officers of the Corporation, in their
sole discretion, deem to be advisable and in the best interests of the
Corporation.
(ii) Certificates representing reclassified shares are hereby canceled and
upon presentation of the canceled certificates to the Corporation, the holders
thereof shall be entitled to receive certificate(s) representing the new shares
into which such canceled shares have been converted.
SECOND: That thereafter pursuant to a resolution of the 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 DGCL at which
meeting the necessary number of shares as required by statute were voted in
favor of the Amendment.
THIRD: That the Amendment was duly adopted in accordance with the
provisions of Section 242 of the DGCL.
FOURTH: That the Amendment shall be effective on the date this
Certificate of Amendment is filed and accepted by the Secretary of State of the
State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by James M. Chubb, its President, and attested by Terance A. Murnane, its
Secretary, this 28th day of June, 1996.
ARONEX PHARMACEUTICALS, INC.
By: /s/ James M. Chubb
--------------------
James M. Chubb
President
Attest: /s/ Terance A. Murnane
--------------------
Terance A. Murnane
Secretary