EXHIBIT 3.1.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TULARIK INC.
A DELAWARE CORPORATION
David V. Goeddel and William J. Rieflin hereby certify that:
SECTION 1. The original name of this Corporation was TULARIK MERGER
CORPORATION, and the date of filing of the original Certificate of Incorporation
of the Corporation with the Secretary of State of the State of Delaware was
January 28, 1997.
SECTION 2. They are the duly elected and acting Chief Executive Officer
and Secretary, respectively, of Tularik Inc., a Delaware Corporation (the
"Corporation").
SECTION 3. The Amended and Restated Certificate of Incorporation of the
Corporation is hereby amended and restated in its entirety to read as follows:
"I.
The name of this corporation is TULARIK INC. (the "Corporation").
II.
The address, including street, number, city and county of the
registered office of the Corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington, County of New Castle, and the name of the registered
agent of the Corporation in the State of Delaware at such address is Corporation
Service Company.
III.
The purpose of this Corporation is to engage in any lawful act or
activity for which a Corporation may be organized under the General Corporation
Law of the State of Delaware.
IV.
A. This Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the Corporation is authorized to issue is one hundred fifty
million (150,000,000) shares. One hundred forty-five million (145,000,000)
shares shall be Common Stock, each having a par value of one-tenth of one cent
($.001). Five million (5,000,000) shares shall be Preferred Stock, each having a
par value of one-tenth of one cent ($.001).
B. The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized, by filing a
certificate (a "Preferred Stock Designation") pursuant to the Delaware
General Corporation Law ("DGCL"), to fix or alter from time to time the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions of any wholly unissued
series of Preferred Stock, and to establish from time to time the number of
shares constituting any such series or any of them; and to increase or
decrease the number of shares of any series subsequent to the issuance of
shares of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be decreased in
accordance with the foregoing sentence, the shares constituting such decrease
shall resume the status that they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
V.
For the management of the business and for the conduct of the affairs
of the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
1. The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of Directors. The number
of directors which shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
2. Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances,
directors shall be elected at each
annual meeting of stockholders for a term of one year. Each director shall serve
until his successor is duly elected and qualified or until his death,
resignation or removal. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
3. The Board of Directors or any individual director may be
removed from office at any time (a) with cause by the affirmative vote of the
holders of a majority of the voting power of all the then-outstanding shares of
voting stock of the Corporation, entitled to vote at an election of directors
(the "Voting Stock") or (b) without cause by the affirmative vote of the holders
of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of
all the then-outstanding shares of the Voting Stock.
a. Subject to the rights of the holders of any series of Preferred Stock, any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other causes and any newly created directorships
resulting from any increase in the number of directors, shall, unless the
Board of Directors determines by resolution that any such vacancies or newly
created directorships shall be filled by the stockholders, except as
otherwise provided by law, be filled only by the affirmative vote of a
majority of the directors then in office, even though less than a quorum of
the Board of Directors, and not by the stockholders. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the director for which the vacancy was created or occurred
and until such director's successor shall have been elected and qualified.
b. If at the time of filling any vacancy or any newly created directorship,
the directors then in office shall constitute less than a majority of the
whole board (as constituted immediately prior to any such increase), the
Delaware Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent (10%) of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors
then in offices as aforesaid, which election shall be governed by Section 211
of the DGCL.
B.
1. Subject to paragraph (h) of Section 43 of the Company's
Amended and Restated Bylaws (the "Bylaws"), the Bylaws may be altered, amended
or new Bylaws adopted by the affirmative vote of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding
shares of the Voting Stock. The Board of Directors shall also have the power to
adopt, amend or repeal Bylaws.
2. The directors of the Corporation need not be elected by
written ballot unless the Bylaws so provide. No action shall be taken by the
stockholders of the Corporation except at an annual or special meeting of
stockholders called in accordance with the Bylaws. Special meetings of the
stockholders of the Corporation may be called, for any purpose or purposes, by
(i) the Chairman of the Board of Directors, (ii) the Chief Executive Officer,
(iii) the Board of Directors pursuant to a resolution adopted by a majority of
the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any such resolution
is presented to the Board of Directors for adoption). Advance notice of
stockholder nominations for the election of directors and of business to be
brought by stockholders before any meeting of the stockholders of the
Corporation shall be given in the manner provided in the Bylaws.
VI.
A. The liability of the directors for monetary damages shall be
eliminated to the fullest extent under applicable law.
B. Any repeal or modification of this Article VI shall be prospective
and shall not affect the rights under this Article VI in effect at the time of
the alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
VII.
A. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, except as
provided in Section B of this Article VII, and all rights conferred upon the
stockholders herein are granted subject to this reservation.
B. Notwithstanding any other provisions of this Amended and Restated
Certificate of Incorporation or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class or series of the Voting Stock required by law,
this Amended and Restated Certificate of Incorporation or any preferred stock
designation, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding
shares of the Voting Stock, voting together as a single class, shall be required
to alter, amend or repeal Articles V, VI or VII. VIII.
The Corporation is to have perpetual existence."
SECTION 4. This Amended and Restated Certificate of Incorporation has
been duly approved by the Board of Directors of the Corporation.
SECTION 5. This Amended and Restated Certificate of Incorporation has
been duly adopted and approved by the stockholders and Board of Directors in
accordance with the provisions of Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware, and written notice of such was given
by the Corporation in accordance with said Section 228.
IN WITNESS WHEREOF, TULARIK INC. has caused this Amended and Restated
Certificate of Incorporation to be signed by its Chief Executive Officer and
Secretary in South San Francisco, California this 26th day of April 2000.
TULARIK INC.
By: /s/ David V. Goeddel
---------------------------------
David V. Goeddel
Chief Executive Officer
ATTEST:
By: /s/ William J. Rieflin
-------------------------------------
William J. Rieflin, Secretary