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EXHIBIT 3.2
SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF IMMUSOL, INC.
A CALIFORNIA CORPORATION
Tsvi Goldenberg, Ph.D. and Faye H. Russell certify that:
1. They are the Chief Executive Officer and the Secretary,
respectively, of Immusol, Inc. a California corporation (the "corporation").
2. The Amended and Restated Articles of Incorporation of the
corporation are amended and restated to read as follows:
ARTICLE I
The name of the corporation is Immusol, Inc.
ARTICLE II
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 California other than the banking business, the trust company business
or the practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III
Section 1. Classes of Stock. 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 Thirty Million (30,000,000) shares of Common Stock and
Five Million (5,000,000) shares of Preferred Stock.
Section 2. Powers, Preferences and Rights and Qualifications,
Limitations and Restrictions of Preferred Stock. The Preferred Stock may be
issued from time to time in one or more series. The Board of Directors is
hereby authorized 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 issuance of shares of that series, but not below the number of
shares of such series then outstanding. In case the number of shares
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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.
ARTICLE IV
Section 1. Liability of Directors. The liability of the directors of
the corporation for monetary damages shall be eliminated to the fullest extent
permissible under California law.
Section 2. Indemnity of Directors, Officers and Agents. The
corporation is authorized to indemnify the directors and officers of the
corporation to the fullest extent permissible under California law. The
corporation is authorized to provide indemnification of agents (as defined in
Section 317 of the California Corporations Code) through bylaw provisions,
agreements with agents, vote of shareholders or disinterested directors or
otherwise, in excess of the indemnification otherwise permitted by Section 317
of the California Corporations Code, subject only to the applicable limits set
forth in Section 204 of the California Corporations Code with respect to
actions for breach of duty to the corporation and its shareholders.
Section 3. Repeal or Modification. Any repeal or modification of the
foregoing provisions of this Article IV shall be prospective and shall not
adversely affect any right of indemnification or liability of a director,
officer or agent of the corporation relating to acts or omissions occurring
prior to such repeal or modification.
ARTICLE V
Newly created directorships resulting from any increase in the
authorized number of directors shall, unless the Board of Directors determines
by resolution that any such newly created directorship shall be filled by the
shareholders, 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; provided, however, that the ability of the Board of Directors to
fill any such vacancy shall terminate at the next annual meeting of the
shareholders at which directors are elected following the creation of any such
vacancy. Any director elected in accordance with the preceding sentence shall
hold office until such director's successor shall have been elected and
qualified.
ARTICLE VI
No action shall be taken by the shareholders of the corporation except
at an annual or special meeting of shareholders called in accordance with the
bylaws, and no action shall be taken by the shareholders by written consent.
ARTICLE VII
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Advance notice of shareholder nominations for the election of
directors and of business to be brought by shareholders before any meeting of
the shareholders of the corporation shall be given in the manner provided in
the bylaws of the corporation.
ARTICLE VIII
The election of directors by the shareholders shall not be by
cumulative voting. At each election of directors, each shareholder entitled
to vote may vote all the shares held by that shareholder for each of the
several nominees for director up to the number of directors to be elected.
The shareholder may not cast more votes for any single nominee than the number
of shares held by that shareholder. This Article VIII shall become effective
only when the Corporation becomes a "listed corporation" within the meaning of
the California Corporations Code Section 301.5(d).
ARTICLE IX
[Intentionally Omitted]
ARTICLE X
Amendment or Rescission of Articles. The corporation reserves the
right to repeal, alter, amend or rescind any provision contained in the
articles of incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred on shareholders herein are granted subject to
this reservation.
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3. The foregoing Second Amendment and Restatement of Articles of
Incorporation has been duly approved by the Board of Directors.
4. The foregoing Second Amendment and Restatement of Articles of
Incorporation has been duly approved by the required vote of shareholders in
accordance with Sections 902 and 903 of the Corporations Code. As of the time
shareholder approval for these restated articles was obtained, the total number
of outstanding Common shares of the Corporation was 7,109,000, the total number
of outstanding Series A Preferred shares of the Corporation was 2,000,000, and
the total number of outstanding Series B-1 Preferred shares of the Corporation
was 915,477. No other shares were outstanding. The number of shares voting in
favor of the amendment equaled or exceeded the vote required. The percentage
vote required was (i) more than 50% of the Common Stock voting as a separate
class, (ii) more than 50% of the Preferred Stock voting as a separate class,
(iii) more than 50% of the Series A Preferred Stock voting as a separate class,
(iv) more than 50% of the
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Series B-1 Preferred Stock voting as a separate class, and (v) more than 50% of
the Common Stock and Preferred Stock voting together as a single class.
5. Subsequent to the shareholder approval, all outstanding shares
of Preferred Stock were converted to Common Stock.
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We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are true and
correct of our own knowledge.
Date: ______________________, 1996
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Tsvi Goldenberg, Ph.D., President
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Faye H. Russell, Secretary
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF IMMUSOL, INC.]