1
RESTATED CERTIFICATE OF INCORPORATION
OF
IMMULOGIC PHARMACEUTICAL CORPORATION,
a Delaware corporation
Incorporated March 27, 1987
Pursuant to Section 245 of the
General Corporation Law of the State of Delaware
The undersigned, Richard E. Bagley and Janet C. Bush are President
and Chief Executive Officer, and Secretary and Treasurer, respectively,
of ImmuLogic Pharmaceutical Corporation, a corporation organized and
existing under the General Corporation Law of the State of Delaware
(the "Corporation"). The Corporation's Certificate of Incorporation was
initially filed in the Office of the Secretary of State of the State of
Delaware on March 27, 1987. Certificates of Amendment to the
Certificate of Incorporation were filed with the Office of the
Secretary of State of the State of Delaware on April 2, 1987, May 26,
1987 and December 9, 1987. The Corporation's Amended and Restated
Certificate of Incorporation was initially filed in the Office of the
Secretary of State of the State of Delaware on July 11, 1988. A
Certificate of Amendment to the Amended and Restated Certificate of
Incorporation was filed with the Office of the Secretary of State of
the State of Delaware on October 4, 1989. The Corporation's current
Amended and Restated Certificate of Incorporation was filed in the
Office of the Secretary of the State of Delaware on March 27, 1991. A
Certificate of Amendment to the Amended and Restated Certificate of
Incorporation was filed with the Office of the Secretary of State of
the State of Delaware on May 20, 1991. The undersigned, as President
and Secretary of the Corporation, do hereby certify that (a) by
unanimous vote the Board of Directors at a meeting held on November 14,
1991 and in accordance with Section 245 of the General Corporation law
of Delaware, the Board of Directors adopted a resolution setting forth
the proposed Restated Certificate of Incorporation of the Corporation;
and (b) this Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the
Corporation's Amended and Restated Certificate of Incorporation and
there is no discrepancy between such provisions and the provisions of
this Restated Certificate of Incorporation.
The Restated Certificate of Incorporation is as follows:
FIRST: The name of the Corporation is: ImmuLogic
Pharmaceutical Corporation.
-1-
2
SECOND: The address of the Corporation's registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange Street
in the City of Wilmington, County of New Castle. The name of the
registered agent of the Corporation at such address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which
the Corporation shall have authority to issue is sixteen million
(16,000,000) shares, consisting of fifteen million (15,000,000) shares
of Common Stock, $.01 par value per share ("Common Stock"), and one
million (1,000,000) shares of undesignated Preferred Stock, $.01 par
value per share (Undesignated Preferred Stock").
A. Common Stock.
-------------
1. GENERAL. The voting, dividend and liquidation rights of
the holders of the Common Stock are subject to and qualified by
the rights of the holders of the Preferred Stock.
2. DIVIDENDS. Dividends may be declared and paid on the
Common Stock from funds lawfully available therefor as and when
determined by the Board of Directors and subject to any
preferential dividend rights of any then outstanding Preferred
Stock.
3. LIQUIDATION. In the event of liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or
involuntary, each issued and outstanding share of Common Stock shall
entitle the holder thereof to receive an equal portion of the net
assets of the Corporation available for distribution to holders of
Common Stock, subject to any preferential rights of any then
outstanding Preferred Stock.
4. VOTING RIGHTS. Each issued and outstanding share of Common
Stock shall entitle the holder thereof to one vote for each share held
at all meetings of stockholders. Except as otherwise required by law or
as otherwise provided herein, holders of Common Stock will vote
together with holders of the Preferred Stock as a single class, subject
to any preferential voting rights of any then outstanding Preferred
Stock. There shall be no cumulative voting.
B. Undesignated Preferred Stock.
-----------------------------
Undesignated Preferred Stock may be issued from time to time in
one or more series, each of such series to have such terms as stated or
expressed herein and in the resolution or resolutions
-2-
3
providing for the issue of such series adopted by the Board of
Directors of the Corporation as hereinafter provided. Different series
of Preferred Stock shall not be construed to constitute different
classes of shares for the purposes of voting by classes unless
expressly provided.
Authority is hereby expressly granted to the Board of Directors
from time to time to issue the Undesignated Preferred Stock in one or
more series, and in connection with the creation of any such series, by
resolution or resolutions providing for the issue of the share thereof,
to determine and fix such voting powers, full or limited, or no voting
powers, and such designations, preferences, relative participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, including without limitation thereof, dividend
rights, conversion rights, redemption privileges and liquidation
preferences, as shall be stated and expressed in such resolutions, all
to the full extent now or hereafter permitted by the General
Corporation Law of the State of Delaware. Without limiting the
generality of the foregoing, the resolutions providing for issuance of
any series of Undesignated Preferred Stock may provide that such series
shall be superior or rank equally or be junior to the Undesignated
Preferred Stock of any other series or any Designated Preferred Stock
to the extent permitted by law and subject to the terms of previously
issued and then outstanding series of Undesignated Preferred Stock or
Designated Preferred Stock. Except as otherwise provided in this
Restated Certificate of Incorporation, no vote of the holders of the
Undesignated Preferred Stock or Common Stock shall be a prerequisite to
the designation or issuance of any shares of any series of the
Undesignated Preferred Stock authorized by and complying with the
conditions of this Restated Certificate of Incorporation, the right to
have such vote being expressly waived by all present and future holders
of the capital stock of the Corporation.
FIFTH: The name and mailing address of the incorporator is
Sandra Ward, c/o Weil, Gotshal & Manges, 767 Fifth Avenue, New
York, New York 10153.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized to make, alter or repeal the bylaws of the Corporation.
EIGHTH: This Article is inserted for indemnification of
officers and directors.
Section 1. ACTIONS, SUITS AND PROCEEDINGS OTHER THAN BY OR
IN THE RIGHT OF THE CORPORATION. The Corporation shall indemnify
each person who was or is a party or is threatened to be made a
-3-
4
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation), by reason
of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to
serve, at the request of the Corporation, as a director, officer or
trustee of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise (including any
employee benefit plan) (all such persons being referred to hereafter as
an "Indemnitee"), or by reason of any action alleged to have been taken
or omitted in such capacity, against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such
action, suit or proceeding and any appeal therefrom, if he acted in
good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a please
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 he reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful. Notwithstanding anything to the contrary in this Article,
except as set forth in Section 6 below, the Corporation shall not
indemnify an Indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by the Indemnitee unless the
initiation thereof was approved by the Board of Directors of the
Corporation.
Section 2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION.
The Corporation shall indemnify any Indemnitee who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or
was, or has agreed to become, a director or officer of the Corporation,
or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer or trustee of, or in a similar
capacity with, another corporation, partnership, joint venture, trust
or other enterprise (including any employee benefit plan), or by reason
of any action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys' fees) and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person
-4-
5
shall have been adjudged to be liable to the Corporation unless and
only to the extent that the Court of Chancery of Delaware or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses (including
attorneys' fees) which the Court of Chancery of Delaware or such other
court shall deem proper.
Section 3. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article, to the extent
that an Indemnitee has been successful, on the merits or otherwise, in
defense of any action, suit or proceeding referred to in Sections 1 and
2 of this Article, or in defense of any claim, issue or matter therein,
or on appeal from any such action, suit or proceeding, he shall be
indemnified against all expenses (including attorneys' fees) actually
and reasonably incurred by him or on his behalf in connection
therewith. Without limiting the foregoing, if any action, suit or
proceeding is disposed of, on the merits or otherwise (including a
disposition without prejudice), without (i) the disposition being
adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was
liable to the Corporation, (iii) a plea of guilty or NOLO CONTENDERE by
the Indemnitee, (iv) an adjudication that the Indemnitee did not act in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, (v) with respect to
any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the Indemnitee
shall be considered for the purposes hereof to have been wholly
successful with respect thereto.
Section 4. NOTIFICATION AND DEFENSE OF CLAIM. As a condition
precedent to his right to be indemnified, the Indemnitee must notify
the Corporation in writing as soon as practicable of any action, suit,
proceeding or investigation involving him for which indemnity will or
could be sought. With respect to any action, suit, proceeding or
investigation of which the Corporation is so notified, the Corporation
will be entitled to participate therein at its own expense and/or to
assume the defense, thereof at its own expense, with legal counsel
reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such
defense, the Corporation shall not be liable to the Indemnitee for any
legal or other expenses subsequently incurred by the Indemnitee in
connection with such claim, other than as provided below in this
Section 4. The Indemnitee shall have the right to employ his own
counsel in connection with such claim, but the fees and expenses of
such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the
Indemnitee unless (i) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (ii) counsel to the Indemnitee
shall have reasonably concluded that there may be a
-5-
6
conflict of interest or position on any significant issue between the
Corporation and the Indemnitee in the conduct of the defense of such
action or (iii) the Corporation shall not in fact have employed counsel
to assume the defense of such action, in each of which cases the fees
and expenses of counsel for the Indemnitee shall be at the expense of
the Corporation, except as otherwise expressly provided by this
Article. The Corporation shall not be entitled, without the consent of
the Indemnitee, to assume the defense of any claim brought by or in the
right of the Corporation or as to which counsel for the Indemnitee
shall have reasonably made the conclusion provided for in clause (ii)
above.
Section 5. ADVANCE OF EXPENSES. Subject to the provisions of
Section 6 below, in the event that the Corporation does not assume the
defense pursuant to Section 4 of this Article of any action, suit,
proceeding or investigation of which the Corporation receives notice
under this Article, any expenses (including attorneys' fees) incurred
by an Indemnitee in defending a civil or criminal action, suit,
proceeding or investigation or any appeal therefrom shall be paid by
the Corporation in advance of the final disposition of such matter,
PROVIDED, HOWEVER, that the payment of such expenses incurred by an
Indemnitee in advance of the final disposition of such matter shall be
made only upon receipt of an undertaking by or on behalf of the
Indemnitee to repay all amounts so advanced in the event that it shall
ultimately be determined that the Indemnitee is not entitled to be
indemnified by the Corporation as authorized in this Article. Such
undertaking may be accepted without reference to the financial ability
of such person to make such repayment.
Section 6. PROCEDURE FOR INDEMNIFICATION. In order to obtain
indemnification or advancement of expenses pursuant to Section 1, 2, 3
or 5 of this Article, the Indemnitee shall submit to the Corporation a
written request, including in such request to such documentation and
information as is reasonably available to the Indemnitee and is
reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification or advancement of expenses.
Any such indemnification or advancement of expenses shall be made
promptly, and in any event within 60 days after receipt by the
Corporation of the written request of the Indemnitee, unless with
respect to requests under Section 1, 2 or 5 the Corporation determines,
by clear and convincing evidence, within such 60-day period that the
Indemnitee did not meet the applicable standard of conduct set forth in
Section 1 or 2, as the case may be. Such determination shall be made in
each instance by (a) a majority vote of a quorum of the director so the
Corporation consisting of persons who are not at that time parties to
the action, suit or proceeding in question ("disinterested directors"),
(b) if no such quorum is obtainable, a majority vote of a committee of
two or more disinterested directors, (c) a majority vote of a quorum of
the outstanding shares of stock of all classes entitled to vote for
directors,
-6-
7
voting as a single class, which quorum shall consist of stockholders
who are not at that time parties to the action, suit or proceeding in
questions, (d) independent legal counsel (who may be regular legal
counsel to the Corporation), or (e) a court of competent jurisdiction.
Section 7. REMEDIES. The right to indemnification or advances as
granted by this Article shall be enforceable by the Indemnitee in any
court of competent jurisdiction if the Corporation denies such request,
in whole or in part, or if no disposition thereof is made within the
60-day period referred to above in Section 6. Unless otherwise provided
by law, the burden of proving that the Indemnitee is not entitled to
indemnification or advancement of expenses under this Article shall be
on the Corporation. Neither the failure of the Corporation to have made
a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the Indemnitee
has met the applicable standard of conduct, nor an actual determination
by the Corporation pursuant to Section 6 that the Indemnitee has not
met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the Indemnitee has not met the
applicable standard of conduct. The Indemnitee's expenses (including
attorneys' fees) incurred in connection with successfully establishing
his right to indemnification, in whole or in part, in any such
proceeding shall also be indemnified by the Corporation.
Section 8. SUBSEQUENT AMENDMENT. No amendment, termination of
repeal of this Article or of the relevant provisions of the General
Corporation Law of Delaware or any other applicable laws shall affect
or diminish in any way the rights of any Indemnitee to indemnification
under the provisions hereof with respect to any action, suit,
proceeding or investigation arising out of or relating to any actions,
transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
Section 9. OTHER RIGHTS. The indemnification and advancement of
expenses provided by this Article shall not be deemed exclusive of any
other rights to which an Indemnitee seeking indemnification or
advancement of expenses may be entitled under any law (common or
statutory), agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in this official capacity and
as to action in any other capacity while holding office for the
Corporation, and shall continue as to an Indemnitee who has ceased to
be a director or officer, and shall inure to the benefit of the estate,
heirs, executors and administrators of the Indemnitee. Nothing
contained in this Article shall be deemed to prohibit, and the
Corporation is specifically authorized to enter into, agreements with
officers and directors providing indemnification rights and procedures
different from those set forth in this Article. In addition, the
Corporation may, to the extent authorized from time to time by its
-7-
8
Board of Directors, grant indemnification rights to other employees or
agents of the Corporation or other persons serving the Corporation and
such rights may be equivalent to, or greater or less than, those set
forth in this Article.
Section 10. PARTIAL INDEMNIFICATION. If an Indemnitee is entitled
under any provision of this Article to indemnification by the
Corporation for some or a portion of the expenses (including attorneys'
fees), judgments, fees or amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any
action, suit, proceeding or investigation and any appeal therefrom but
not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in
settlement to which the Indemnitee is entitled.
Section 11. INSURANCE. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any director, officer,
employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise (including any
employee benefit plan) against any expense, liability or loss incurred
by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the General
Corporation Law of Delaware.
Section 12. MERGER OR CONSOLIDATION. If the Corporation is merged
into consolidated with another corporation and the Corporation is not
the surviving corporation, the surviving corporation shall assume the
obligations of the Corporation under this Article with respect to any
action, suit, proceeding or investigation arising out of or relating to
any actions, transactions or facts occurring prior to the date of such
merger or consolidation.
Section 13. SAVINGS CLAUSE. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each
Indemnitee as to any expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement in connection with any action,
suit, proceeding or investigation, whether civil, criminal or
administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion
of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
Section 14. DEFINITIONS. Terms used herein and defined in Section
145(h) and Section 145(i) of the General Corporation Law of Delaware
shall have the respective meanings assigned to such terms in such
Section 145(h) and Section 145(i).
-8-
9
Section 15. SUBSEQUENT LEGISLATION. If the General Corporation
Law of Delaware is amended after adoption of this Article to expand
further the indemnification permitted to Indemnitees, then the
Corporation shall indemnify such person sot the fullest extent
permitted by the General Corporation Law of Delaware, as so amended.
NINTH: Except to the extent that the General Corporation Law of
Delaware prohibits the elimination or limitation of liability of
directors for breaches of fiduciary duty, no director of the
Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty as a
director, notwithstanding any provision of law imposing such liability.
No amendment to or repeal of this provision 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 actions or omissions of such
director occurring prior to such amendment.
TENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereinafter prescribed by statute, and all rights
conferred by the stockholders herein are granted subject to this
reservation.
ELEVENTH: Whenever a compromise or arrangement is proposed between
the Corporation and its creditors or any class of them and/or between
the 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 the Corporation or of any creditor or
stockholder thereof, or on the application of any receiver or receivers
appointed for the 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 of receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors of class of creditors,
and/or of the stockholders or class of stockholders of the 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 or creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, agree to
any compromise or arrangement and to any reorganization of the
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 the
stockholders or class of stockholders, of the Corporation, as the case
may be, and also on the Corporation.
-9-
10
This Restated Certificate of Incorporation supersedes and takes
the place of the heretofore existing Amended and Restated Certificate
of Incorporation and all amendments, certificates and supplements
thereto.
EXECUTED at Cambridge, Massachusetts, as of the 13th day of
December, 1991.
/s/ Richard E. Bagley
------------------------------
Richard E. Bagley
President
ATTEST:
/s/ Janet C. Bush
-----------------------
Janet C. Bush
Secretary
-10-
11
CERTIFICATE OF AMENDMENT
OF THE
RESTATED
CERTIFICATE OF INCORPORATION
OF
IMMULOGIC PHARMACEUTICAL CORPORATION
IMMULOGIC PHARMACEUTICAL CORPORATION, a corporation organized
and existing under and by virtue of the General Corporation Law of
the State of Delaware (the "corporation"), does hereby certify as
follows:
1. The Board of Directors duly adopted a resolution pursuant
to Section 242 of the General Corporation Law of the State of
Delaware, proposing that an amendment to the Restated Certificate of
Incorporation of the Corporation be approved and declaring said
amendment to be advisable; and
2. The stockholders of the Corporation duly approved this
Certificate of Amendment in accordance with Sections 222 and 242 of
the General Corporation Law of the State of Delaware.
The resolution setting forth the amendment is as follows:
RESOLVED: That Article Fourth of the Restated
Certificate of Incorporation be and hereby is
amended to read as follows:
1. The total number of shares of all classes
of stock which the Corporation shall have authority
to issue is twenty-one million (21,000,000) shares,
consisting of twenty million (20,000,000) shares of
Common Stock, $.01 par value per share ("Common
Stock"), and one million (1,000,000) shares of
undesignated Preferred Stock, $.01 par value per
share ("Undesignated Preferred Stock").
-2-
12
Executed at Cambridge, Massachusetts, as of the 7th day of August,
1992.
/s/ Richard E. Bagley
--------------------------------
Richard E. Bagley
President
ATTEST:
/s/ Janet C. Bush
------------------------
Janet C. Bush
Secretary
-3-
13
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
IMMULOGIC PHARMACEUTICAL CORPORATION
ImmuLogic Pharmaceutical Corporation, a corporation organized
and existing under and by virture of the General Corporation Law
of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, in a
Written Action of Directors in Lieu of Meeting, dated as of March
22, 1994, as filed with the minutes of the Board, duly adopted a
resolution pursuant to Section 242 of the General Corporation Law
of the State of Delaware ("Delaware Law") proposing and declaring
advisable the following amendment to the Restated Certificate of
Incorporation of the Corporation:
RESOLVED: That the first paragraph of Article FOURTH of
the Restated Certificate of Incorporation be
amended to read in its entirety as follows:
FOURTH: The total number of shares of all classes
of stock which the Corporation has authority to
issue is thirty-one million (31,000,000) shares
consisting of thirty million (30,000,000) shares of
common stock, $.01 par value per share ("Common
Stock"), and one million (1,000,000) shares of
undesignated Preferred Stock, $.01 par value per
share ("Undesignated Preferred Stock").
SECOND: That the foregoing Amendment to the Corporation's
Restated Certificate of Incorporation was adopted by the holders
of a majority of the outstanding shares of Common Stock at the
Corporation's Annual Meeting of Stockholders held on May 26, 1994
pursuant to notice duly given.
-5-
14
IN WITNESS WHEREOF, ImmuLogic Pharmaceutical Corporation has
caused this Certificate to be signed by Richard N. Small, its Vice
President, Chief Financial Officer and attested by Stacey L.
Channing, its Secretary, this 7th day of June, 1994.
IMMULOGIC PHARMACEUTICAL
CORPORATION
By: /s/ Richard N. Small
---------------------
Richard N. Small
Its: Vice President, Chief
Financial Officer
ATTEST:
By: /s/ Stacey L. Channing
-----------------------------
Stacey L. Channing
-6-
15
FORM
of
CERTIFICATE OF DESIGNATIONS
of
IMMULOGIC PHARMACEUTICAL CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
---------------------------------
ImmuLogic Pharmaceutical Corporation, a corporation organized and
existing under the General Corporation Law of the State of Delaware
(hereinafter called the "Corporation"), hereby certifies that the
following resolution was adopted by the Board of Directors of the
Corporation as required by Section 151 of the General Corporation Law
at a meeting duly called and held on July 11, 1995:
RESOLVED: That pursuant to the authority granted to and vested in
the Board of Directors of this Corporation (hereinafter called the
"Board of Directors" or the "Board") in accordance with the provisions
of the Restated Certificate of Incorporation, as amended, the Board of
Directors hereby creates a series of Preferred Stock, $.01 par value
(the "Preferred Stock"), of the Corporation and hereby states the
designation and number of shares, and fixes the relative rights,
preferences and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall
be designated as "Series A Junior Participating Preferred Stock" (the
"Series A Preferred Stock") and the number of shares constituting the
Series A Preferred Stock shall be twenty-five thousand (25,000). Such
number of shares may be increased or decreased by resolution of the
Board of Directors; PROVIDED, that no decrease shall reduce the number
of shares of Series A Preferred Stock to a number less than the number
of
16
shares then outstanding plus the number of shares reserved for issuance
upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares
of any series of Preferred Stock (or any similar stock)
ranking prior and superior to the Series A Preferred Stock
with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common
Stock, par value $.01 per share (the "Common Stock"), of the
Corporation, and of any other junior stock, shall be entitled
to receive, when, as and if declared by the Board of
Directors out of funds of the Corporation legally available
for the payment of dividends, quarterly dividends payable in
cash on March 31, June 30, September 30 and December 31 in
each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a
share or fraction of a share of Series A Preferred Stock, in
an amount per share (rounded to the nearest cent) equal to
the greater of (a) $10 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate
per share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share
of Series A Preferred Stock. In the event the Corporation
shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in
each such case the amount to which holders of shares of
-2-
17
Series A Preferred Stock were entitled immediately prior to
such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. In the event the
Corporation shall at any time declare or pay any dividend on
the Series A Preferred Stock payable in shares of Series A
Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series A Preferred
Stock (by reclassification or otherwise than by payment of a
dividend in shares of Series A Preferred Stock) into a
greater or lesser number of shares of Series A Preferred
Stock, then in each such case the amount to which holders of
shares of Series A Preferred Stock were entitled immediately
prior to such event under clause (b) of the first sentence of
this Section 2(A) shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of
shares of Series A Preferred Stock that were outstanding
immediately prior to such event and the denominator of which
is the number of shares of Series A Preferred Stock
outstanding immediately after such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock) and the
Corporation shall pay such dividend or distribution on the
Series A Preferred Stock before the dividend or distribution
declared on the Common Stock is paid or set apart; provided
that, in the event no dividend or distribution shall have
been declared on the Common Stock during the period between
any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $10 per share
on the Series A Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
-3-
18
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of
issue of such shares, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of
Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment
thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Preferred Stock shall
entitle the holder thereof to 1,000 votes on all matters
submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision, combination or consolidation
of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a
-4-
19
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event. In the
event the Corporation shall at any time declare or pay any
dividend on the Series A Preferred Stock payable in shares of
Series A Preferred Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of
Series A Preferred Stock (by reclassification or otherwise
than by payment of a dividend in shares of Series A Preferred
Stock) into a greater or lesser number of shares of Series A
Preferred Stock, then in each such case the number of votes
per share to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event shall be
adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Series A
Preferred Stock that were outstanding immediately prior to
such event and the denominator of which is the number of
shares of Series A Preferred Stock outstanding immediately
after such event.
(B) Except as otherwise provided herein, in the Restated
Certificate of Incorporation or by law, the holders of shares
of Series A Preferred Stock and the holders of shares of
Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class
on all matters submitted to a vote of stockholders of the
Corporation.
(C)(i) If at any time dividends on any Series A
Preferred Stock shall be in arrears in an amount equal to six
quarterly dividends thereon, the holders of the Series A
Preferred Stock, voting as a separate series from all other
series of Preferred Stock and classes of capital stock, shall
be entitled to elect two members of the Board of Directors in
addition to any Directors elected by any other series, class
or classes of securities and the authorized number of
Directors will automatically be increased by two. Promptly
thereafter, the Board of Directors of this Corporation shall,
as soon as may be practicable, call a special meeting of
holders of Series A Preferred Stock for the purpose of
-5-
20
electing such members of the Board of Directors. Said special
meeting shall in any event be held within 45 days of the
occurrence of such arrearage.
(ii) During any period when the holders of Series A
Preferred Stock, voting as a separate series, shall be
entitled and shall have exercised their right to elect two
Directors, then and during such time as such right continues
(a) the then authorized number of Directors shall be
increased by two, and the holders of Series A Preferred
Stock, voting as a separate series, shall be entitled to
elect the additional Directors so provided for, and (b) each
such additional Director shall not be a member of any
existing class of the Board of Directors, but shall serve
until the next annual meeting of stockholders for the
election of Directors, or until his successor shall be
elected and shall qualify, or until his right to hold such
office terminates pursuant to the provisions of this Section
3(C).
(iii) A Director elected pursuant to the terms hereof
may be removed with or without cause by the holders of Series
A Preferred Stock entitled to vote in an election of such
Director.
(iv) If, during any interval between annual meetings
of stockholders for the election of Directors and while the
holders of Series A Preferred Stock shall be entitled to
elect two Directors, there is no such Director in office by
reason of resignation, death or removal, then, promptly
thereafter, the Board of Directors shall call a special
meeting of the holders of Series A Preferred Stock for the
purpose of filling such vacancy and such vacancy shall be
filled at such special meeting. Such special meeting shall in
any event be held within 45 days of the occurrence of such
vacancy.
(v) At such time as the arrearage is fully cured, and
all dividends accumulated and unpaid on any shares of Series
A Preferred Stock outstanding are paid, and, in addition
thereto, at least one regular dividend has been paid
subsequent to curing such arrearage, the term of office of
any Director elected pursuant to this Section 3(C), or his
successor, shall automatically terminate, and the authorized
number of Directors shall
-6-
21
automatically decrease by two, the rights of the holders of
the shares of the Series A Preferred Stock to vote as
provided in this Section 3(C) shall cease, subject to renewal
from time to time upon the same terms and conditions, and the
holders of shares of the Series A Preferred Stock shall have
only the limited voting rights elsewhere herein set forth.
(D) Except as set forth herein, or as otherwise provided
by law, holders of Series A Preferred Stock shall have no
special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders
of Common Stock as set forth herein) for taking any corporate
action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as
provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock and
all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up)
to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or
-7-
22
otherwise acquire shares of any such junior stock in exchange
for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity with the Series A
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. REACQUIRED SHARES. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock
or as otherwise required by law.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any liquidation, dissolution or winding up of
the Corporation, no distribution shall be made (1) to the
holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock unless, prior thereto, the
holders of shares of Series A Preferred Stock shall have
received $10 per share, plus
-8-
23
an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date
of such payment, provided that the holders of shares of
Series A Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 1,000 times the
aggregate amount to be distributed per share to holders of
shares of Common Stock, or (2) to the holders of shares of
stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the
Series A Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution
or winding up.
(B) Neither the consolidation, merger or other business
combination of the Corporation with or into any other
corporation nor the sale, lease, exchange or conveyance of
all or any part of the property, assets or business of the
Corporation shall be deemed to be a liquidation, dissolution
or winding up of the Corporation for purposes of this Section
6.
(C) In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision, combination
or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event
under the proviso in clause (1) of paragraph (A) of this
Section 6 shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event. In the
event the Corporation shall at any time declare or pay any
dividend on the Series A Preferred Stock payable in shares of
Series A Preferred Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of
Series A
-9-
24
Preferred Stock (by reclassification or otherwise than by
payment of a dividend in shares of Series A Preferred Stock)
into a greater or lesser number of shares of Series A
Preferred Stock, then in each such case the aggregate amount
to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in
clause (1) of paragraph (A) of this Section 4 shall be
adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Series A
Preferred Stock that were outstanding immediately prior to
such event and the denominator of which is the number of
shares of Series A Preferred Stock outstanding immediately
after such event.
Section 7. CONSOLIDATION, MERGER, ETC. Notwithstanding anything to
the contrary contained herein, in case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such
case each share of Series A Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 1,000 times
the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of
Series A Preferred Stock shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event. In the event the Corporation shall at
any time declare or pay any dividend on the Series A Preferred Stock
payable in shares of Series A Preferred Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Series A
Preferred Stock (by reclassification or otherwise than by payment of a
dividend in shares of Series A Preferred Stock) into a greater or
lesser number of shares of
-10-
25
Series A Preferred Stock, then in each such case the amount set forth
in the first sentence of this Section 7 with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Series A Preferred Stock that were outstanding
immediately prior to such event and the denominator of which is the
number of shares of Series A Preferred Stock outstanding immediately
after such event.
Section 8. NO REDEMPTION. The shares of Series A Preferred
Stock shall not be redeemable.
Section 9. RANK. The Series A Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets,
junior to all series of any other class of the Preferred Stock issued
either before or after the issuance of the Series A Preferred Stock,
unless the terms of any such series shall provide otherwise.
Section 10. AMENDMENT. The Restated Certificate of Incorporation,
as amended, of the Corporation shall not be amended in any manner which
would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-thirds of
the outstanding shares of Series A Preferred Stock, voting together as
a single class.
Section 11. FRACTIONAL SHARES. Series A Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and have the
benefit of all other rights of holders of Series A Preferred Stock.
-11-
26
IN WITNESS WHEREOF, this Certificate of Designations is executed
on behalf of the Corporation by its President and Chief Executive
Officer and attested by its Secretary this 11th day of July, 1995.
IMMULOGIC PHARMACEUTICAL
CORPORATION
/s/ Robert J. Gerety
-------------------------------------
Robert J. Gerety, M.D., Ph.D.
President and Chief Executive
Officer
Attest:
/s/ Stacey L. Channing
--------------------------------
Stacey L. Channing,
Secretary
-12-
27
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
IMMULOGIC PHARMACEUTICAL CORPORATION
ImmuLogic Pharmaceutical Corporation, 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 the Board of Directors of said Corporation at a
meeting on March 21, 1996 duly adopted a resolution pursuant to
Section 242 of the General Corporation Law of the State of
Delaware ("Delaware Law") proposing and declaring advisable the
following amendment to the Amended and Restated Certificate of
Incorporation of the Corporation:
RESOLVED: That the first paragraph of Article FOURTH of
the Amended and Restated Certificate of
Incorporation, as amended, be amended to read in
its entirety as follows:
FOURTH: The total number of shares of all classes of
stock which the Corporation has authority to issue is
forty-one million shares (41,000,000) consisting of
forty million (40,000,000) shares of common stock,
$.01 par value per share ("Common Stock"), and one
million (1,000,000) shares of Preferred Stock, $.01
par value per share ("Preferred Stock").
28
SECOND: That the foregoing Amendment to the Corporation's
Amended and Restated Certificate of Incorporation, as amended, was
adopted by the holders of a majority of the outstanding shares of
Common Stock at the Corporation's Annual Meeting of Stockholders
held on May 23, 1996 pursuant to notice duly given.
IN WITNESS WHEREOF, ImmuLogic Pharmaceutical Corporation has
caused this Certificate to be signed by Stacey L. Channing, its
Vice President, General Counsel this 24th day of May, 1996.
IMMULOGIC PHARMACEUTICAL CORPORATION
By: /s/ Stacey L. Channing
-----------------------------
Stacey L. Channing
Its: Vice President,
General Counsel
-2-