Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
GILEAD SCIENCES, INC.
GILEAD SCIENCES, INC., a corporation organized and existing under the
General Corporation Law of the State of Delaware, does hereby certify as
follows:
FIRST: The name of the Corporation is Gilead Sciences, Inc.
SECOND: The Corporation's original Certificate of Incorporation was
filed with the Secretary of State on June 22, 1987.
THIRD: The amended and Restated Certificate of Incorporation of the
Corporation, in the form attached hereto as Exhibit A, has been duly adopted in
accordance with the provisions of Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware by the Board of Directors and
stockholders of the Corporation.
FOURTH: The amended and Restated Certificate of Incorporation so adopted
reads in full as set forth in Exhibit A attached hereto and hereby incorporated
by reference.
IN WITNESS WHEREOF, Gilead Sciences, Inc. has caused this Restated
Certificate of Incorporation to be signed by its President and attested to by
its Secretary this 24th day of January, 1992.
GILEAD SCIENCES, INC.
By /s/ Michael L. Riordan
----------------------------
MICHAEL L. RIORDAN
President
ATTEST:
/s/ James C. Gaither
- ------------------------
JAMES C. GAITHER
Secretary
EXHIBIT A
RESTATED
CERTIFICATE OF INCORPORATION
OF
GILEAD SCIENCES, INC.
I.
The name of the Corporation is Gilead Sciences, Inc.
II.
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle,
Delaware 19801, and the name of the registered agent of the Corporation in the
State of Delaware at such address is The Corporation Trust Company.
III.
The purpose of the Corporation is to engage in any lawful act or
activity for which a Corporation may be organized under the General Corporation
Law of Delaware.
IV.
(a) The liability of the directors of the Corporation for monetary
damages shall be eliminated to the fullest extent permissible under Delaware
law.
(b) The Corporation is authorized to provide indemnification of
agents (as defined in Section 145 of the Delaware General Corporation Law) for
breach of duty to the Corporation and its stockholders through bylaw provisions,
through agreements with the agents, and/or through stockholder resolutions, or
otherwise, in excess of the indemnification otherwise permitted by Section 145
of the Delaware General Corporation Law, subject to the limitations on such
excess indemnification set forth in Section 102 of the Delaware General
Corporation Law.
(c) Any repeal or modification of this Article IV shall be
prospective and shall not affect the rights under this Article IV in effect at
the time of the alleged occurrence of any act or omission to act giving rise to
liability or indemnification.
V.
A. The 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 forty million
(40,000,000) shares. Thirty-five million (35,000,000) 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 pursuant to the Delaware General Corporation Law, 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 thereof,
including without limitation the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and the liquidation preferences of any
wholly unissued series of Preferred Stock, and to establish from time to time
the number of shares constituting any such series and the designation thereof,
or any of them (a "Preferred Stock Designation"); and to increase or decrease
the number of shares of any series subsequent to the
2.
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.
VI.
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:
SECTION 1. BOARD OF DIRECTORS.
(a) MANAGEMENT OF CORPORATION. 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
from time to time by the Board of Directors.
Notwithstanding any other provisions of this Certificate of
Incorporation, 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.
(b) REMOVAL.
(i) Prior to the Qualifying Record Date and subject
to any limitations imposed by law, the Board of Directors, or any individual
director, may be removed from office at any time, with or without cause, by the
affirmative vote of the holders of a majority of the outstanding Voting Stock
(as hereinafter defined).
(ii) On and after the Qualifying Record Date and
subject to any limitations imposed by law, Section 1(b)(i) of this Article VI
shall no longer apply and 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 outstanding Voting Stock; or (B) without cause by
the affirmative vote of the holders of at least 66-2/3% of the outstanding
Voting Stock.
(c) VACANCIES. Any vacancies on the Board of Directors
resulting from death, resignation, disqualification, removal or other causes
shall be filled by either (i) the affirmative vote of the holders of a majority
of the Voting Stock voting together as a single class; or (ii) 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. Newly created directorships
resulting from any increase in the number of directors shall, unless the Board
of Directors determines by resolution that any such newly created directorship
shall be filled by the stockholders, be filled only by the affirmative vote of
the directors then in office, even though less than a quorum of the Board of
Directors. Any director elected in accordance with the preceding sentence 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 and until such
director's successor shall have been elected and qualified.
SECTION 2. CUMULATIVE VOTING.
(a) Prior to the date upon which the Corporation is no
longer subject to Section 2115 of the California Corporations Code (the
"Qualifying Record Date"), every stockholder entitled to vote in any election of
directors of the Corporation may cumulate such stockholder's votes and give one
candidate a number of votes equal to the number of directors to be elected
multiplied by the number of votes to which the stockholder's shares are
otherwise entitled, or distribute the stockholder's votes on the same principle
among as many candidates as such stockholder thinks fit. No stockholder,
however, may cumulate such stockholder's votes for one or more candidates unless
(i) the names of such candidates have been properly placed in nomination, in
accordance with the Bylaws of
3.
the Corporation, prior to the voting, (ii) the stockholder has given advance
notice to the Corporation of the intention to cumulate votes in accordance with
the Bylaws, and (iii) the stockholder has given proper notice to the other
stockholders at the meeting, prior to voting, of such stockholder's intention to
cumulate such stockholder's votes. If any stockholder has given proper notice,
all stockholders may cumulate their votes for any candidates who have been
properly placed in nomination. The candidates receiving the highest number of
votes of the shares entitled to be voted for them up to the number of directors
to be elected by such shares shall be declared elected.
(b) On and after the Qualifying Record Date, cumulative
voting shall no longer be available to the stockholders of the Corporation.
SECTION 3. GENERAL.
(a) The Bylaws may be altered or amended or new Bylaws
adopted by the affirmative vote of at least 66-2/3% of the voting power of all
of the then-outstanding shares of the Voting Stock. In furtherance and not in
limitation of the power conferred by statute, the Board of Directors is
expressly authorized to adopt, amend, supplement or repeal the Bylaws. The Board
of Directors may from time to time make, amend, supplement or repeal the Bylaws;
provided, however, that the stockholders may change or repeal any Bylaw adopted
by the Board of Directors by the requisite affirmative vote of stockholders as
set forth in the Bylaws; and, provided further, that no amendment or supplement
to the Bylaws adopted by the Board of Directors shall vary or conflict with any
amendment or supplement thus adopted by the stockholders.
(b) The directors of the Corporation need not be elected by
written ballot unless the Bylaws so provide.
(c) 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, and no action shall be taken by the stockholders by
written consent.
(d) 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 of the Corporation.
VII.
No holder of shares of stock of the Corporation shall have any
preemptive or other right, except as such rights are expressly provided by
contract, to purchase or subscribe for or receive any shares of any class, or
series thereof, of stock of the Corporation, whether now or hereafter
authorized, or any warrants, options, bonds, debentures or other securities
convertible into, exchangeable for or carrying any right to purchase any share
of any class, or series thereof, of stock; but such additional shares of stock
and such warrants, options, bonds, debentures or other securities convertible
into, exchangeable for or carrying any right to purchase any shares of any
class, or series thereof, of stock may be issued or disposed of by the Board of
Directors to such persons, and on such terms and for such lawful consideration,
as in its discretion it shall deem advisable or as the Corporation shall have by
contract agreed.
VIII.
The Corporation is to have perpetual existence.
IX.
(a) The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, except as provided in paragraph
(b) of this Article IX, and all rights conferred upon the stockholders herein
are granted subject to this reservation.
4.
(b) Notwithstanding any other provisions of this 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 Certificate
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least 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 Article VI, Article VII or Article IX.
5.
CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION OF
GILEAD SCIENCES, INC.
JOHN C. MARTIN and MARK L. PERRY hereby certify as follows:
ONE: The name of the corporation is Gilead Sciences, Inc.
TWO: The Restated Certificate of Incorporation of Gilead Sciences,
Inc. was filed with the Secretary of State of the State of Delaware on January
29, 1992.
THREE: That they are the duly elected and acting President and
Secretary, respectively, of Gilead Sciences, Inc., a Delaware corporation.
FOUR: The Board of Directors of Gilead Sciences, Inc., acting in
accordance with the provisions of Sections 141 and 242 of the General
Corporation Law of the State of Delaware, adopted resolutions to amend its
Restated Certificate of Incorporation as follows:
Article V shall be amended and restated to read in its entirety as
follows:
"V.
A. The Corporation is authorized to issue two classes of
stock to be designated, respectively, "Common Stock" and "Preferred
Stock." The total numbers of shares which the corporation is authorized
to issue is one hundred five million (105,000,000) shares. One hundred
million (100,000,000) shares shall be designated Common Stock, each
having a par value of one-tenth of one cent ($0.001). Five million
(5,000,000) shares shall be designated Preferred Stock, each having a
par value of one-tenth of one cent ($0.001).
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 pursuant to the Delaware General Corporation Law,
to fix or alter from time to time the designation, powers, preferences
and rights or the shares of each such series and the qualifications,
limitations or restrictions thereof, including without limitation the
dividend rights, dividend rate, conversion rights, voting rights, rights
and terms of redemption (including sinking fund provisions), redemption
price or prices, and the liquidation preferences of any wholly unissued
series of Preferred Stock, and to establish from time to time the number
of shares constituting any such series and the designation thereof, or
any of them (a "Preferred Stock Designation"); and to increase or
decrease the number of shares of that 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."
FIVE: Thereafter, pursuant to a resolution of the Board of Directors,
this Certificate of Amendment was submitted to the stockholders of the
Corporation for their approval, and was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
SIX: All other provisions of the Restated Certificate of
Incorporation shall remain in full force and effect.
6.
IN WITNESS WHEREOF, Gilead Sciences, Inc. has caused this Certificate of
Amendment to be signed by its President and attested to by its Secretary this
17th day of July, 1999.
/s/ John C. Martin
--------------------------------------
John C. Martin
President
/s/ Mark L. Perry
--------------------------------------
Mark L. Perry
Secretary
7.
CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GILEAD SCIENCES, INC.
John C. Martin and Mark L. Perry do hereby certify as follows:
ONE: The name of the corporation is Gilead Sciences, Inc.
TWO: The date on which the Amended and Restated Certificate of
Incorporation of the corporation was filed with the Secretary of State of the
State of Delaware was January 29, 1992. A Certificate of Amendment to the
Amended and Restated Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on July 29, 1999.
THREE: They are duly elected and acting President and Secretary,
respectively of Gilead Sciences, Inc., a Delaware corporation.
FOUR: The Board of Directors of the corporation, acting in accordance
with the provisions of Section 242 of the General Corporation Law of the State
of Delaware, adopted resolutions to amend the Amended and Restated Certificate
of Incorporation of the corporation in the following form:
Article V shall be amended and restated to read in its entirety as
follows:
"V
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
five hundred five million (505,000,000) shares. Five hundred million
(500,000,000) 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 pursuant to the Delaware General Corporation Law, to fix or
alter from time to time the designation, powers, preferences and rights or
the shares of each such series and the qualifications, limitations or
restrictions thereof, including without limitation the dividend rights,
dividend rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption price or
prices, and the liquidation preferences of any wholly unissued series of
Preferred Stock, and to establish from time to time the number of shares
constituting any such series and the designation thereof, or any of them
(a "Preferred Stock Designation"); and to increase or decrease the number
of shares of that 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."
FIVE: Thereafter, pursuant to a resolution of the Board of Directors,
this Certificate of Amendment was submitted to the stockholders of the
corporation for their approval and was duly adopted in accordance with the
provision of Section 242 of the General Corporation Law of the State of
Delaware.
SIX: All stock provisions of the Amended and Restated Certificates of
Incorporation shall remain in full force and effect.
8.
IN WITNESS WHEREOF, Gilead Sciences, Inc. has caused this Certificate of
Amendment to be signed by its President and attested to by its Secretary this
day of February 02, 2001.
GILEAD SCIENCES, INC.
/s/ John C. Martin
-------------------------------
John C. Martin
PRESIDENT
ATTEST:
/s/ Mark L. Perry
- ---------------------------
Mark L. Perry
SECRETARY
9.