Exhibit 3.4
CERTIFICATE OF DESIGNATION OF
PREFERENCES AND RIGHTS OF
CONVERTIBLE PREFERRED STOCK, SERIES C
OF
XOMA CORPORATION
_______________
Pursuant to Section 151 of the
General Corporation Law of the
State of Delaware
_______________
XOMA CORPORATION, a corporation organized and exist-
ing under the General Corporation Law of the State of Delaware
(the "Corporation"), does hereby certify that, pursuant to
authority conferred upon the Board of Directors by the Amended
and Restated Certificate of Incorporation of the Corporation,
and pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, said Board of Direc-
tors duly adopted a resolution on July 19, 1995, which approved
the filing of this Certificate of Designation and which resolu-
tion remains in full force and effect as of the date hereof.
Pursuant to such resolution and the authority con-
ferred upon the Board of Directors by the Amended and Restated
Certificate of Incorporation of the Corporation, there is
hereby created a series of preferred stock of the Corporation,
which series shall have the following powers, preferences, and
relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, in
addition to those set forth in the Amended and Restated Cer-
tificate of Incorporation of the Corporation:
1. Certain Definitions. As used herein, the fol-
lowing terms shall have the following meanings (with terms
defined in the singular having comparable meanings when used in
the plural and vice versa), unless the context otherwise
requires:
"Board of Directors" means the Board of Directors of
the Corporation.
"Business Combination" means the occurrence of any of
the following: (a) a merger or consolidation in which the
Corporation is not the surviving entity, except for a
transaction the principal purpose of which is to change
the State of the Corporation's incorporation; (b) the
sale, transfer or other disposition of all or substan-
tially all of the assets of the Corporation; or (c) any
other corporate reorganization or business combination in
which 50% or more of the Corporation's outstanding voting
stock is transferred to different holders in a single
transaction or a series of related transactions.
"Business Combination Date" has the meaning specified
in Section 6(b) hereof.
"Business Day" means a day that is not a Saturday, a
Sunday or a day on which banking institutions in the State
of New York or California are not required to be open.
"Common Stock" means the Common Stock, par value
$.0005 per share, of the Corporation.
"Conversion Certificate" means a certificate substan-
tially in the form of Exhibit 1 attached hereto.
"Conversion Date" means (x) with respect to any con-
version of Series C Preferred Stock into Common Stock pur-
suant to Section 6(a) hereof, the date selected by the
Holder converting such shares of Series C Preferred Stock
as set forth below such Holder's signature on a properly
executed Conversion Certificate received by the Corpora-
tion, and (y) with respect to any conversion of Series C
Preferred Stock into Common Stock pursuant to Section 6(c)
hereof, the date selected by the Corporation for conver-
sion of such shares of Series C Preferred Stock as set
forth in the applicable Notice of Conversion.
"Corporation" means XOMA Corporation, a Delaware
corporation.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Holder" means a registered holder of shares of
Series C Preferred Stock.
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"Liquidation Preference" means $1,000 per share of
Series C Preferred Stock.
"Market Price" on any date means (i) if the Common
Stock is listed on a national securities exchange, the
numerical average of the last reported bid prices per
share of the Common Stock on the principal securities
exchange on which the Common Stock is listed that shall be
consolidated for consolidated trading, if applicable to
such exchange, for the five trading days of such exchange
immediately preceding such date, or (ii) if the Common
Stock is not so listed, the numerical average of the last
reported bid prices per share of the Common Stock as
reported on the NASDAQ National Market for the five NASDAQ
trading days immediately preceding such date, or (iii) if
the Common Stock is neither so listed nor so reported, the
numerical average of the last reported bid price per share
of the Common Stock as quoted by a registered
broker-dealer for the last five days for which such quotes
are available immediately prior to such date; provided
that such quotes must have been available for at least
five days in the preceding thirty-day period, or (iv) if
the Common Stock is not so listed, so reported or so
quoted, the fair value of the Common Stock on such date,
as determined by the Board of Directors in good faith
after taking into account such factors as the Board of
Directors may deem appropriate, including one or more pro-
fessional valuations.
"Notice of Conversion" has the meaning specified in
Section 6(c) hereof.
"Person" or "person" means any natural person, corpo-
ration, partnership, limited liability company, joint ven-
ture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Redemption Date" means, with respect to any shares
of Series C Preferred Stock, the date fixed by the Corpo-
ration for redemption of such shares of Series C Preferred
Stock.
"Redemption Notice" has the meaning specified in
Section 7(c) hereof.
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"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated
thereunder.
"Series B Preferred Stock" means the Senior Convert-
ible Preferred Stock, Series B, par value $.05 per share,
of the Corporation.
"Series C Preferred Stock" has the meaning specified
in Section 2 hereof.
"Series C Preferred Stock Certificate" has the mean-
ing specified in Section 6(e) hereof.
"Stockholder Approval" means the approval by a major-
ity of the votes cast by the holders of shares of Common
Stock (in person or by proxy) at a meeting of the stock-
holders of the Corporation (duly convened at which a quo-
rum was present) of the issuance by the Corporation of 20%
or more of the outstanding Common Stock of the Corporation
for less than the greater of the book or market value of
such Common Stock, as and to the extent required under
Section 6(i) of Part III of Schedule D to the By-Laws of
the National Association of Securities Dealers, Inc. (or
any successor or replacement provision thereof).
2. Designation. The series of preferred stock
established hereby shall be designated the "Convertible Pre-
ferred Stock, Series C" (and shall be referred to herein as the
"Series C Preferred Stock") and the authorized number of shares
of Series C Preferred Stock shall be 5,000 shares.
3. Dividends. The Corporation shall not be
required to pay, and the Holders shall not be entitled to
receive, any dividends on shares of the Series C Preferred
Stock.
4. Ranking. The Series C Preferred Stock shall,
with respect to rights on liquidation, winding-up and dissolu-
tion, rank senior to all classes of Common Stock and to any
other class or series of any class of preferred stock of the
Corporation, whether now outstanding or issued hereafter, other
than the Series B Preferred Stock.
5. Voting Rights. (a) Except as required by the
General Corporation Law of the State of Delaware and as set
forth in Section 5(b) hereof, the Holders shall not be entitled
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to vote on any matter submitted to a vote of stockholders of
the Corporation.
(b) The Corporation shall not, without the consent
of Holders of a majority of the outstanding shares of Series C
Preferred Stock, (i) authorize, create or issue any shares of
capital stock of any class or series ranking senior to the
Series C Preferred Stock with respect to rights on liquidation,
winding-up or dissolution of the Corporation, (ii) except as
may be required by the General Corporation Law of the State of
Delaware, amend, alter or repeal, by any means, the Amended and
Restated Certificate of Incorporation of the Corporation in any
manner which would adversely affect the Holders with respect to
the powers, preferences, or relative, participating, optional
or other special rights, or the qualifications, limitations or
restrictions of the Series C Preferred Stock as set forth
herein, or (iii) otherwise voluntarily become subject to any
restriction which requires a vote of its stockholders and which
would adversely affect the Holders with respect to the powers,
preferences, or relative, participating, optional or other spe-
cial rights, or the qualifications, limitations or restrictions
of the Series C Preferred Stock as set forth herein, other than
restrictions arising solely under the General Corporation Law
of the State of Delaware and restrictions in the Amended and
Restated Certificate of Incorporation of the Corporation as in
effect on June 25, 1995.
6. Conversion. (a) Subject to Section 6(d)
hereof, the Holders shall have the right, at any time or from
time to time, to convert shares of Series C Preferred Stock
into shares of Common Stock on and subject to the terms and
conditions hereinafter set forth. One-half (1/2) of the shares
of Series C Preferred Stock originally issued to each initial
Holder thereof shall be convertible by the then current Holder
thereof into shares of Common Stock on and after the 60th day
following the date on which such shares of Series C Preferred
Stock are released for delivery to the initial Holder thereof
(the "Issuance Date") and prior to the 730th day after the
Issuance Date of such shares of Series C Preferred Stock, and
the balance of the shares of Series C Preferred Stock shall be
convertible by the then current Holder thereof into shares of
Common Stock on and after the 90th day following the Issuance
Date of such shares of Series C Preferred Stock and prior to
the 730th day after the Issuance Date of such shares of Series
C Preferred Stock. No share of Series C Preferred Stock shall
be convertible into shares of Common Stock at the option of the
Holder thereof on or after the 730th day following the Issuance
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Date of such share of Series C Preferred Stock. Each share of
Series C Preferred Stock convertible pursuant to this clause
(a) will be convertible into the number of shares of Common
Stock equal to the number obtained by dividing $1,000 by 80% of
the Market Price on the applicable Conversion Date.
(b) Subject to Section 6(d) hereof, upon the consum-
mation of a Business Combination (the date of such consummation
hereinafter referred to as the "Business Combination Date"),
each outstanding share of Series C Preferred Stock shall, with-
out the necessity of any action by or on behalf of a Holder, be
converted into the number of shares of Common Stock obtained by
dividing $1,000 by 80% of the Market Price on the Business Com-
bination Date. As promptly as practicable after the Business
Combination Date, the Corporation shall issue and deliver to
each Holder at its address as the same appears on the stock
books of the Corporation, a certificate or certificates for the
number of shares of Common Stock issuable upon conversion of
such shares of Series C Preferred Stock, together with a state-
ment of the relevant facts and circumstances surrounding the
Business Combination.
(c) Subject to Section 6(d) hereof, at any time on
or after the 730th day following the Issuance Date of a par-
ticular share of Series C Preferred Stock, the Corporation
shall have the right, at any time or from time to time, to con-
vert such share of Series C Preferred Stock into shares of Com-
mon Stock, such right of the Corporation with respect to the
Series C Preferred Stock to be exercisable by the Corporation
in whole or in part. Each share of Series C Preferred Stock
converted pursuant to this clause (c) will be convertible into
the number of shares of Common Stock equal to the number
obtained by dividing $1,000 by 80% of the Market Price on the
applicable Conversion Date. As promptly as practicable after
the applicable Conversion Date, the Corporation will send a
written notice (a "Notice of Conversion") by first-class mail,
postage prepaid, to each Holder whose shares of Series C Pre-
ferred Stock have been selected for conversion into Common
Stock pursuant to this clause (c), at its address as the same
appears on the stock books of the Corporation setting forth the
applicable Market Price, together with a certificate or certif-
icates for the number of shares of Common Stock issuable upon
conversion of such shares of Series C Preferred Stock.
(d) Notwithstanding any other provision herein to
the contrary, unless the Stockholder Approval shall have been
obtained, the Corporation shall not be required to convert any
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shares of Series C Preferred Stock into shares of Common Stock
to the extent that as a consequence of such conversion,
together with all prior conversions of Series C Preferred
Stock, greater than 4,511,549 shares of Common Stock shall have
been issued upon conversion of shares of Series C Preferred
Stock. The Corporation shall promptly give notice to each
Holder (by first class mail, postage prepaid, at such Holder's
address as the same appears on the stock books of the Corpora-
tion) if on any date the Corporation would not have been
required to convert shares of Series C Preferred Stock as a
consequence of the limitation set forth in this clause (d) had
all outstanding shares of Series C Preferred Stock been surren-
dered for conversion into Common Stock on such date. If at any
time any shares of Series C Preferred Stock surrendered for
conversion are not converted into Common Stock as a consequence
of the limitation set forth in this clause (d), the Corporation
shall promptly notify the Holders in writing of such occurrence
and shall thereafter determine in its sole discretion to either
(i) convene a meeting of the holders of Common Stock as
promptly as practicable and use its reasonable best efforts to
obtain the Stockholder Approval, or (ii) promptly redeem all of
the outstanding shares of Series C Preferred Stock, on and sub-
ject to the terms and conditions of Section 7 hereof. In the
event the Stockholder Approval contemplated in subclause (i)
above is not obtained at such meeting or any adjournment
thereof, the Corporation shall thereafter promptly redeem all
outstanding shares of Series C Preferred Stock, on and subject
to the terms and conditions of Section 7 hereof.
(e) In order to exercise the conversion privilege
provided in Section 6(a) hereof, the Holder of any shares of
Series C Preferred Stock to be converted in whole or in part
shall surrender the certificate representing such shares of
Series B Preferred Stock (the "Series B Preferred Stock Cer-
tificate"), together with a properly executed Conversion Cer-
tificate and any required transfer taxes, at the office or
agency then maintained by the Corporation for the transfer of
the Series C Preferred Stock. No fewer than 100 shares of
Series C Preferred Stock may be converted in any individual
conversion pursuant to Section 6(a) hereof. Each Series C Pre-
ferred Stock Certificate surrendered for conversion pursuant to
Section 6(a) hereof shall, unless the shares issuable on con-
version are to be issued in the same name as the registration
of such Series C Preferred Stock Certificate, be duly endorsed
by, or be accompanied by instruments of transfer in form satis-
factory to the Corporation duly executed by, the Holder or his
duly authorized attorney.
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(f) In the case of any conversion pursuant to Sec-
tion 6(a) hereof, as promptly as practicable after the surren-
der of such Series C Preferred Stock Certificate and the
receipt of such Conversion Certificate and funds, if any, as
aforesaid, the Corporation shall issue and shall deliver at
such office or agency to such Holder, or on his written order,
a certificate or certificates for the number of shares of Com-
mon Stock issuable upon the conversion of such shares of
Series C Preferred Stock represented by the Series C Preferred
Stock Certificate(s) so surrendered or portion thereof in
accordance with the provisions of this Section 6. In case less
than all of the shares of Series C Preferred Stock represented
by a Series C Preferred Stock Certificate surrendered by a
Holder for conversion pursuant to Section 6(a) hereof or con-
verted by the Corporation pursuant to Section 6(d) hereof are
to be converted, the Corporation shall deliver to or upon the
written order of the Holder of such Series C Preferred Stock
Certificate a new Series C Preferred Stock Certificate repre-
senting the shares of Series C Preferred Stock not converted.
In order for any shares of Series C Preferred Stock to be
deemed properly surrendered for conversion, a Holder must indi-
cate in the Conversion Certificate the number of shares of
Series C Preferred Stock which such Holder wishes to convert.
(g) Each conversion pursuant to Section 6(a) hereof
shall be deemed to have been effected on the date on which such
Series C Preferred Stock Certificate shall have been surren-
dered, together with a properly executed Conversion Certificate
and funds, if any, shall have been received by the Corporation
as aforesaid, and the person in whose name any certificate or
certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become on said date the
holder of record of the shares of Common Stock represented
thereby; provided, however, that any such surrender on any date
when the stock books of the Corporation shall be closed shall
constitute the person in whose name the certificates of Common
Stock are to be issued as the record holder thereof for all
purposes on the next succeeding day on which such stock books
are open.
(h) All shares of Series C Preferred Stock that
shall have been properly surrendered by the Holders for conver-
sion pursuant to Section 6(a) hereof which are eligible for
conversion as herein provided, all shares of Series C Preferred
Stock after the Business Combination Date (to the extent con-
vertible pursuant to clause (d) of this Section 6) and all
shares of Series C Preferred Stock converted by the Corporation
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pursuant to Section 6(c) hereof shall no longer be deemed to be
outstanding and all rights with respect to such shares, includ-
ing the rights, if any, to receive notices and to vote, shall
forthwith cease, except only the right of the Holders thereof,
subject to the provisions of this Section 6, to receive shares
of Common Stock in exchange therefor.
(i) The Corporation shall not be required to issue
fractional shares of Common Stock upon the conversion of any
Series C Preferred Stock. If any fractional interest in a
share of Common Stock would be deliverable upon the conversion
of any shares of Series C Preferred Stock, the Corporation
shall (subject to Section 6(d) hereof) issue a number of shares
of Common Stock equal to the next closest whole number, with
half shares being rounded up.
(j) The Corporation shall use its reasonable best
efforts to at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued stock,
for the purpose of effecting the conversion of the shares of
Series C Preferred Stock, such number of its duly authorized
shares of Common Stock (or treasury shares as provided below)
as shall from time to time be sufficient to effect the conver-
sion of all outstanding shares of Series C Preferred Stock into
Common Stock at any time; provided, however, that nothing con-
tained herein shall preclude the Corporation from satisfying
its obligations in respect of the conversion of the Series C
Preferred Stock by delivery of shares of Common Stock that are
held in the treasury of the Corporation. The Corporation
shall, from time to time and in accordance with the General
Corporation Law of the State of Delaware, use its reasonable
best efforts (including, without limitation, convening meetings
of stockholders to increase the number of authorized shares of
Common Stock and recommending approval therefor) to cause the
authorized number of shares of Common Stock to be increased if
the aggregate of the number of authorized shares of Common
Stock remaining unissued and the issued shares of such Common
Stock in its treasury (other than any shares of such Common
Stock reserved for issuance in any other connection) shall not
be sufficient to permit the conversion of all outstanding
shares of Series C Preferred Stock into Common Stock.
(k) If any capital reorganization or reclassifica-
tion of the capital stock of the Corporation (other than a
Business Combination) shall be effected in such a way that
holders of Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for Common
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Stock, then, as a condition of such capital reorganization or
reclassification, lawful and adequate provisions shall be made
whereby each Holder of a share or shares of Series C Preferred
Stock shall thereafter have the right to receive, upon conver-
sion of shares of Series C Preferred Stock on the basis and
upon the terms and conditions specified herein, in lieu of
shares of Common Stock of the Corporation, such shares of
stock, securities or assets issued or payable in such capital
reorganization or reclassification with respect to or in
exchange for that number of shares of such Common Stock equal
to the number of shares of such stock, securities or assets
that would have been receivable had such converting Holder's
shares of Series C Preferred Stock been converted into Common
Stock on the record date for such capital reorganization or
reclassification, and in any such case appropriate provisions
shall be made with respect to the rights and interests of such
Holder to the end that the provisions of this clause (k) shall
equally apply to each successive capital reorganization or
reclassification with respect to any shares of stock or securi-
ties thereafter deliverable upon conversion of the Series C
Preferred Stock.
7. Redemption. (a) Each share of Series C Pre-
ferred Stock (i) may be redeemed (subject to contractual and
other restrictions with respect thereto and the legal avail-
ability of funds therefor) at the option of the Corporation at
any time on or after the 730th day following the Issuance Date
of such share of Series C Preferred Stock (such right of the
Corporation with respect to the Series C Preferred Stock to be
exercisable by the Corporation in whole or, from time to time,
in part in the manner provided in Section 7(b) hereof), and
(ii) shall be redeemed in the manner provided in Section 7(d)
hereof if required pursuant to Section 6(d) hereof, in each
case, at a redemption price of $1,250 per share of Series C
Preferred Stock.
(b) In the event of a redemption of less than all of
the outstanding shares of Series C Preferred Stock, the shares
so redeemed will be determined by the Corporation pro rata
according to the number of shares held by each Holder, except
that the Corporation may redeem all of the shares held by any
Holders of fewer than 100 shares (or all of the shares held by
Holders who would hold less than 100 shares as a result of such
redemption).
(c) The Corporation shall send a written notice of
redemption (a "Redemption Notice") by first-class mail, postage
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prepaid, not fewer than fifteen (15) days nor more than sixty
(60) days prior to the Redemption Date to each Holder as of the
record date fixed for such redemption of Series C Preferred
Stock at such Holder's address as the same appears on the stock
books of the Corporation; provided, however, that no failure to
give such notice to any Holder or Holders nor any deficiency
therein shall affect the validity of the procedure for the
redemption of any shares of Series C Preferred Stock to be
redeemed except as to the Holder or Holders to whom the Corpo-
ration has failed to give said notice or except as to the
Holder or Holders whose notice was defective. The Redemption
Notice shall state:
(i) whether all or less than all the outstanding
shares of Series C Preferred Stock are to be redeemed and
the total number of shares of Series C Preferred Stock
being redeemed;
(ii) the number of shares of Series C Preferred
Stock held of record by that specific Holder that the Cor-
poration intends to redeem;
(iii) the Redemption Date; and
(iv) the manner and place or places at which payment
for the shares called for redemption will, upon presenta-
tion and surrender to the Corporation of the Series C Pre-
ferred Stock Certificates evidencing the shares being
redeemed, be made.
(d) On the Redemption Date, the redemption price
shall become payable for the shares of Series C Preferred Stock
being redeemed on the Redemption Date. As a condition of pay-
ment of the redemption price, each Holder of Series C Preferred
Stock must surrender Series C Preferred Stock Certificates or
Certificates representing the shares of Series C Preferred
Stock being redeemed by the Corporation in the manner and at
the place designated in the Redemption Notice. The full
redemption price for such shares properly tendered for payment
shall be paid to the person whose name appears on such certifi-
cate or certificates as the owner thereof, on and after the
Redemption Date when and as certificates for the shares being
redeemed are properly tendered for payment. Each surrendered
Series C Preferred Stock Certificate shall be cancelled and
retired. In the event that less than all of the shares repre-
sented by any such certificate are redeemed, a new Series C
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Stock Certificate shall be issued representing the unredeemed
shares.
(e) On the Redemption Date, unless the Corporation
defaults in the payment of the redemption price, all rights of
Holders of such redeemed shares will terminate except for the
right to receive the redemption price therefor.
(f) In the event any shares of Series C Preferred
Stock shall be called for redemption, the Holder's right to
convert such shares of Series C Preferred Stock into shares of
Common Stock shall terminate at the close of business on the
Redemption Date.
8. Payment on Liquidation. (a) Upon any voluntary
or involuntary liquidation, dissolution or winding-up of the
Corporation, Holders of Series C Preferred Stock will be enti-
tled to receive an amount in cash equal to the Liquidation
Preference, before any distribution is made on any Common Stock
or any preferred stock of the Corporation other than the Series
B Preferred Stock. After payment of the full amount of the
Liquidation Preferences to which they are entitled, Holders of
Series B Preferred Stock will not be entitled to any further
participation in any distribution of assets of the Corporation.
(b) For the purposes of this Section 8, neither the
voluntary sale, conveyance, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all the property and assets of the Corporation
nor the consolidation or merger of the Corporation with one or
more corporations shall be deemed a voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation,
unless such sale, conveyance, exchange or transfer or merger or
consolidation shall be in connection with a dissolution or
winding-up of the business of the Corporation.
9. Exclusion of Other Rights. Except as may other-
wise be required by the General Corporation Law of the State of
Delaware, shares of the Series C Preferred Stock shall not have
any preferences or relative, participating, optional or other
special rights, other than those specifically set forth in this
Certificate of Designation (as such Certificate of Designation
may be amended from time to time) and in the Corporation's
Amended and Restated Certificate of Incorporation, as amended.
No shares of Series C Preferred Stock shall have any preemptive
or subscription rights whatsoever as to any securities of the
Corporation.
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10. Reissuance of Preferred Stock. Shares of Series
C Preferred Stock that have been issued and reacquired in any
manner, including shares purchased or redeemed, shall (upon
compliance with any applicable provisions of the General Corpo-
ration Law of the State of Delaware) have the status of autho-
rized and unissued shares of preferred stock undesignated as to
series and may be redesignated and reissued as part of any
series of preferred stock.
11. Business Day. If any payment, redemption or
conversion shall be required by the terms hereof to be made on
a day that is not a Business Day, such payment, redemption or
conversion shall be made on the immediately succeeding Business
Day.
12. Headings of Subdivisions. The headings of the
various subdivisions hereof are for convenience of reference
only and shall not affect the interpretation of any of the pro-
visions hereof.
13. Severability of Provisions. If any right, pref-
erence or limitation of the Series C Preferred Stock set forth
in this resolution and in the Certificate of Designation filed
pursuant hereto (as such Certificate of Designation may be
amended from time to time) is invalid, unlawful or incapable of
being enforced by reason of any rule or law or public policy,
all other rights, preferences and limitations set forth in such
Certificate of Designation (as so amended) which can be given
effect without the invalid, unlawful or unenforceable right,
preference or limitation shall, nevertheless, remain in full
force and effect, and no right, preference or limitation herein
set forth shall be deemed dependent upon any other such right,
preference or limitation unless so expressed herein.
14. Notice. All notices and other communications
provided for or permitted to be given to the Corporation here-
under shall be made by hand delivery, next day air courier or
certified first-class mail to the Corporation at its principal
executive offices (currently located on the date of the adop-
tion of these resolutions at 2910 Seventh Street, Berkeley,
California 94710, Attention: General Counsel; with a copy to:
Cahill Gordon & Reindel, 80 Pine Street, New York, New York
10005, Attention: Geoffrey E. Liebmann, Esq.
15. Transferability; Right of Transferees. (a) The
Series C Preferred Stock may be sold, assigned, conveyed,
transferred, pledged, hypothecated or otherwise disposed of
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only in compliance with the provisions of the Securities Act,
including Regulation S promulgated thereunder.
(b) The Series C Preferred Stock Certificates repre-
senting shares of Series C Preferred Stock to be transferred
shall be duly endorsed by the transferring Holder or by his
duly authorized attorney or representative, or accompanied by
proper evidence of succession, assignment or authority to
transfer. In all cases of a transfer by an attorney, the
original power of attorney, duly approved, or a copy thereof,
duly certified, shall be deposited and remain with the Corpora-
tion. In case of a transfer by executors, administrators,
guardians or other legal representatives, duly authenticated
evidence of their authority shall be produced, and may be
required to be deposited and to remain with the Corporation in
its discretion. Upon any registration of a transfer, the Cor-
poration shall deliver new Series C Preferred Stock Certifi-
cates to the persons entitled to the shares of Series C Pre-
ferred Stock represented thereby. The Series C Preferred Stock
Certificates may be exchanged at the option of the Holder
thereof, when surrendered at the offices of the Corporation,
for other Series C Preferred Stock Certificates of different
denominations, of like tenor and representing in the aggregate
a like number of shares of Series C Preferred Stock. Any
Series C Preferred Stock Certificate so surrendered shall be
promptly cancelled by the Corporation and retired. Each Series
C Preferred Stock Certificate issued in exchange as provided
above shall be substantially in the form of the Series C Pre-
ferred Stock Certificate being exchanged and shall be subject
to all of the terms and provisions hereof.
(c) Each of the Series C Preferred Stock Certifi-
cates shall, until the 40th day following the Issuance Date
with respect to the shares of Series C Preferred Stock repre-
sented thereby (or such later date as may be required under the
Securities Act), contain the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND MAY NOT BE
OFFERED OR SOLD BY THE HOLDER HEREOF PRIOR
TO THE 40TH DAY FOLLOWING THE ORIGINAL
ISSUANCE THEREOF, AND THEREAFTER ONLY PUR-
SUANT TO (i) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, OR
(ii) AN EXEMPTION FROM, OR IN A TRANSACTION
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NOT SUBJECT TO, THE REGISTRATION REQUIRE-
MENTS OF THE SECURITIES ACT AND, IN EACH
CASE, IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS."
(d) In addition, each of the Series C Preferred
Stock Certificates shall contain one of the following legends
until such time as such legend, by its terms, no longer shall
apply:
"THESE SECURITIES ARE NOT CONVERTIBLE
AT THE OPTION OF THE HOLDER HEREOF
UNTIL ON OR AFTER THE 60TH DAY FOL-
LOWING THE ORIGINAL ISSUANCE
THEREOF."
"THESE SECURITIES ARE NOT CONVERTIBLE
AT THE OPTION OF THE HOLDER HEREOF
UNTIL ON OR AFTER THE 90TH DAY FOL-
LOWING THE ORIGINAL ISSUANCE
THEREOF."
16. Amendments. The Certificate of Designation
filed pursuant hereto may be amended without notice to or the
consent of any Holder to cure any ambiguity, defect or incon-
sistency provided that such amendment does not adversely affect
the rights of any Holder. Any provisions of the Certificate of
Designation filed pursuant hereto may be amended by the Corpo-
ration with the written consent of Holders representing a
majority of the outstanding shares of Series C Preferred Stock.
The Corporation will, so long as any shares of Series
C Preferred Stock are outstanding, maintain an office or agency
where such shares may be presented for registration or transfer
and where such shares may be presented for conversion and
redemption.
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IN WITNESS WHEREOF, XOMA Corporation has caused this
Certificate of Designation of Preferences and Rights of its
Series C Preferred Stock to be signed and attested by its duly
authorized officers, this day of August, 1995.
XOMA CORPORATION
By: _____________________________
Name:
Title:
ATTEST:
By: ____________________________
Christopher J. Margolin
Secretary
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