EXHIBIT 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TELIK, INC.
Telik, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware does hereby certify:
First: The original Certificate of Incorporation was filed with the
Secretary of State of Delaware on October 20, 1988, under the name "Terrapin
Diagnostics, Inc."
Second: The Amended and Restated Certificate of Incorporation of Telik,
Inc. in the form attached hereto as Exhibit A has been duly adopted in
accordance with the provisions of Sections 228, 245 and 242 of the General
Corporation Law of the State of Delaware by the directors and stockholders of
the Corporation. Written consent and written notice have been given in
accordance with such Section 228.
Third: The Amended and Restated Certificate of Incorporation so adopted
reads in full as set forth in Exhibit A attached hereto and is hereby
incorporated herein by this reference.
In Witness Whereof, Telik, Inc. has caused this Certificate to be signed by
the Chairman & Chief Executive Officer and the Secretary on this ____ day of
September, 1998.
Telik, Inc.
By:___________________________________
Clifford Orent, Chairman & Chief
Executive Officer
Attest:
By:__________________________________
Robert L. Jones, Secretary
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TELIK, INC.
First: The name of the corporation is Telik, Inc. (the "Corporation").
Second: The address of the registered office of the Corporation is 1013
Centre Road, Wilmington, Delaware, New Castle County and the name of the
registered agent is The Prentice-Hall Corporation System, Inc.
Third: The purpose of this Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
Fourth: A. The Corporation is authorized to issue two classes of shares
to be designated Common Stock ("Common Stock") and Preferred Stock ("Preferred
Stock"), respectively. The total number of shares of stock which the
Corporation shall have authority to issue is Twenty Four Million Twenty Three
Thousand Seven Hundred Ninety Nine (24,023,799) of which Twenty Three Million
(23,000,000) shares are Common Stock and One Million Twenty Three Thousand Seven
Hundred Ninety Nine (1,023,799) shares are Preferred Stock, and the par value of
each share is One Cent ($0.01).
B. The Preferred Stock shall be divided into series. The first series
shall consist of 20,000 shares and is designated "Series B Preferred Stock."
The second series shall consist of 114,720 shares and is designated "Series E
Preferred Stock." The third series shall consist of 169,600 shares and is
designated "Series F Preferred Stock." The fourth series shall consist of
273,050 shares and is designated "Series G Preferred Stock." The fifth series
shall consists of 93,429 shares and is designated "Series H Preferred Stock."
The sixth series shall consist of 143,000 shares and is designated "Series I
Preferred Stock." The seventh series shall consist of 210,000 shares and is
designated "Series J Preferred Stock."
C. The powers, preferences, rights, restrictions and other matters
relating to the Preferred Stock are as follows:
1. Dividend Provisions. Subject to the rights of series of Preferred
Stock which may from time to time come into existence, the holders of shares of
Series B Preferred Stock, Series E Preferred Stock, Series F Preferred Stock,
Series G Preferred Stock, Series H Preferred Stock, Series I Preferred Stock and
Series J Preferred Stock shall be entitled to receive dividends, pari passu, out
of any assets legally available therefor, prior and in preference to any
declaration or payment of any dividend (payable other than in Common Stock or
other securities and rights convertible into or entitling the holder thereof to
receive, directly or indirectly, additional shares of Common Stock of the
Corporation) on the Common Stock of the Corporation and no dividends shall be
paid on any share of Common Stock unless a dividend is paid with respect to all
outstanding shares of Series F Preferred Stock, Series G Preferred Stock, Series
H Preferred Stock, Series I Preferred Stock and Series J Preferred Stock in an
amount for each such share of
1.
Series F Preferred Stock, Series G Preferred Stock, Series H Preferred Stock,
Series I Preferred Stock or Series J Preferred Stock or equal to or greater than
the aggregate amount of such dividends for all shares of Common Stock into which
such share of Series F Preferred Stock, Series G Preferred Stock, Series H
Preferred Stock, Series I Preferred Stock or Series J Preferred Stock could then
be converted. Such dividends shall be payable only when, as and if declared by
the Board of Directors and shall be non-cumulative.
2. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, subject to the rights of series of
Preferred Stock which may from time to time come into existence, the holders of
each share of Series B Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock, Series G Preferred Stock, Series H Preferred Stock, Series I
Preferred Stock and Series J Preferred Stock shall be entitled to receive, pari
passu and prior and in preference to any distribution of any of the assets of
the Corporation to the holders of Common Stock by reason of their ownership
thereof, an amount per share equal to $20.00 for each outstanding share of
Series B Preferred Stock (the "Original Series B Issue Price"), $50.00 for each
outstanding share of Series E Preferred Stock (the "Original Series E Issue
Price"), $50.00 for each outstanding share of Series F Preferred Stock (the
"Original Series F Issue Price"), $50.00 for each outstanding share of Series G
Preferred Stock (the "Original Series G Issue Price"), $50.00 for each
outstanding shares of Series H Preferred Stock (the "Original Series H Issue
Price"), $50.00 for each outstanding share of Series I Preferred Stock (the
"Original Series I Issue Price") and $50.00 for each outstanding share of Series
J Preferred Stock (the "Original Series J Issue Price") plus all accrued or
declared but unpaid dividends for each share of Series B Preferred Stock, each
share of Series E Preferred Stock, each share of Series F Preferred Stock, each
share of Series G Preferred Stock, each share of Series H Preferred Stock, each
share of Series I Preferred Stock and each share of Series J Preferred Stock
then held by them. If upon the occurrence of such event, the assets and funds
distributed among the holders of the Preferred Stock shall be insufficient to
permit the payment to such holders of the full preferential amounts set forth
above, then, subject to the rights of series of Preferred Stock which may from
time to time come into existence, the entire assets and funds of the Corporation
legally available for distribution shall be distributed ratably among the
holders of the Preferred Stock in proportion to the amount of such stock owned
by each such holder.
(b) Subject to the rights of series of Preferred Stock which may from
time to time come into existence in the event of any liquidation, dissolution or
winding up of the Corporation, either voluntary or involuntary, and subject to
the payment in full of the liquidation preferences with respect to the Series B
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock, Series G
Preferred Stock, Series H Preferred Stock, Series I Preferred Stock and Series J
Preferred Stock as provided in subparagraph (a) of this Section 2, the holders
of the Common Stock shall be entitled to receive, prior and in preference to any
further distribution of any of the assets or surplus funds of the Corporation to
the holders of the Series B Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock, Series G Preferred Stock, Series H Preferred Stock, Series I
Preferred Stock and Series J Preferred Stock, by reason of their ownership
thereof, the amount of $3.00 per share (as adjusted for any stock dividends,
combinations or splits with respect to such shares) for each share of Common
Stock then held by
2.
them and no more. Subject to the payment in full of the liquidation preferences
with respect to the Series B Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock, Series G Preferred Stock, Series H Preferred Stock, Series I
Preferred Stock and Series J Preferred Stock as provided in subparagraph (a) of
this Section 2, and subject to the rights of series of Preferred Stock which may
from time to time come into existence, if upon the occurrence of such event, the
assets and funds thus distributed among the holders of the Common Stock shall be
insufficient to permit the payment to such holders of the full aforesaid
preferential amount, then the entire remaining assets and funds of the
Corporation legally available for distribution shall be distributed among the
holders of the Common Stock in proportion to the shares of Common Stock then
held by them.
(c) Subject to the rights of series of Preferred Stock which may from
time to time come into existence, after payment to the holders of the Common
Stock and the Series B Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock, Series G Preferred Stock, Series H Preferred Stock, Series I
Preferred Stock and Series J Preferred Stock of the amounts set forth in Section
2(a) and (b) above, the entire remaining assets and funds of the Corporation
legally available for distribution, if any, shall be distributed among the
holders of the Common Stock, Series E Preferred Stock, Series F Preferred Stock,
Series G Preferred Stock, Series H Preferred Stock, Series I Preferred Stock and
Series J Preferred Stock in proportion to the shares of Common Stock then held
by them and the shares of Common Stock which they then have the right to acquire
upon conversion of the shares of the Series E Preferred Stock, Series F
Preferred Stock, Series G Preferred Stock, Series H Preferred Stock, Series I
Preferred Stock and Series J Preferred Stock then held by them.
(d) A consolidation or merger of the Corporation with or into any
other corporation or corporations, or a sale, conveyance or disposition of all
or substantially all of the assets of the Corporation shall be deemed to be a
liquidation, dissolution or winding up within the meaning of this Section 2.
3. Conversion. The holders of the Preferred Stock shall have conversion
rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series B Preferred Stock shall be
convertible, at the option of the holder thereof, at any time after the date of
issuance of such share, at the office of the Corporation or any transfer agent
for the Series B Preferred Stock, into such number of fully paid and
nonassessable shares of Common Stock as is determined by dividing the Original
Series B Issue Price by the Series B Conversion Price (as defined below) at the
time in effect for such share. The price at which shares of Common Stock shall
be deliverable upon conversion of shares of Series B Preferred Stock (the
"Series B Conversion Price") shall initially be $3.56 per share of Common Stock;
provided, however, that the Series B Conversion Price shall be subject to
adjustment as set forth in this Section 3. Each share of Series E Preferred
Stock shall be convertible, at the option of the holder thereof, at any time
after the date of issuance of such share, at the office of the Corporation or
any transfer agent for the Series E Preferred Stock, into such number of fully
paid and nonassessable shares of Common Stock as is determined by dividing the
Original Series E Issue Price by the Series E Conversion Price (as defined
below), determined as hereinafter provided, in effect at the time of conversion.
The price at which shares of Common Stock shall be deliverable upon conversion
of shares of
3.
Series E Preferred Stock (the "Series E Conversion Price") shall initially be
$3.00 per share of Common Stock; provided, however, that the Series E Conversion
Price shall be subject to adjustment as set forth in this Section 3. Each share
of Series F Preferred Stock shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of such share, at the office of
the Corporation or any transfer agent for the Series F Preferred Stock, into
such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing the Original Series F Issue Price by the Series F
Conversion Price (as defined below) at the time in effect for such share. The
price at which shares of Common Stock shall be deliverable upon conversion of
shares of Series F Preferred Stock (the "Series F Conversion Price") shall be
$3.60 per share of Common Stock; provided, however, that the Series F Conversion
Price shall be subject to adjustment as set forth in this Section 3. Each share
of Series G Preferred Stock shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of such share, at the office of
the Corporation or any transfer agent for the Series G Preferred Stock, into
such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing the Original Series G Issue Price by the Series G
Conversion Price (as defined below) at the time in effect for such share. The
price at which shares of Common Stock shall be deliverable upon conversion of
shares of Series G Preferred Stock (the "Series G Conversion Price") shall be
$4.20 per share of Common Stock; provided, however, that the Series G Conversion
Price shall be subject to adjustment as set forth in this Section 3. Each share
of Series H Preferred Stock shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of such share, at the office of
the Corporation or any transfer agent for the Series H Preferred Stock, into
such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing the Original Series H Issue Price by the Series H
Conversion Price (as defined below) at the time in effect for such share. The
price at which shares of Common Stock shall be deliverable upon conversion of
shares of Series H Preferred Stock (the "Series H Conversion Price") shall be
$5.78 per share of Common Stock; provided, however, that the Series H Conversion
Price shall be subject to adjustment as set forth in this Section 3. Each share
of Series I Preferred Stock shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of such share, at the office of
the Corporation or any transfer agent for the Series I Preferred Stock, into
such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing the Original Series I Issue Price by the Series I
Conversion Price (as defined below) at the time in effect for such share. The
price at which shares of Common Stock shall be deliverable upon conversion of
shares of Series I Preferred Stock (the "Series I Conversion Price") shall be
$4.20 per share of Common Stock; provided, however, that the Series I Conversion
Price shall be subject to adjustment as set forth in this Section 3. Each share
of Series J Preferred Stock shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of such share, at the office of
the Corporation or any transfer agent for the Series J Preferred Stock, into
such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing the Original Series J Issue Price by the Series J
Conversion Price (as defined below) at the time in effect for such share. The
price at which shares of Common Stock shall be deliverable upon conversion of
shares of Series J Preferred Stock (the "Series J Conversion Price") shall be
$4.20 per share of Common Stock; provided, however, that the Series J Conversion
Price shall be subject to adjustment as set forth in this Section 3.
(b) Mandatory Conversion. Each share of Series B Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock, Series G Preferred Stock,
Series H Preferred Stock,
4.
Series I Preferred Stock and Series J Preferred Stock shall automatically be
converted into shares of Common Stock at the applicable Series B Conversion
Price, Series E Conversion Price, Series F Conversion Price, Series G Conversion
Price, Series H Conversion Price, Series I Conversion Price or Series J
Conversion Price then in effect pursuant to Section 3(a) hereof upon the earlier
of (i) immediately upon the closing of a firmly underwritten registered public
offering of Common Stock of the Corporation pursuant to the Securities Act of
1933 (other than a registration relating solely to a transaction under Rule 145
under such Act (or any successor thereto) or to an employee benefit plan), at an
offering price per share of at least $12.00 per share of Common Stock (as
adjusted for stock splits, stock dividends, recapitalizations and the like) and
resulting in the receipt by the Corporation of at least ten million dollars
($10,000,000) of gross proceeds (before applicable discounts, commissions and
expenses), or (ii) upon the date specified by a vote or written consent or
agreement of holders of at least two-thirds (2/3) of the shares of Series B
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock, Series G
Preferred Stock, Series H Preferred Stock, Series I Preferred Stock and Series J
Preferred Stock then outstanding, voting together as a single class. Each share
of Series J Preferred Stock shall automatically be converted into shares of
Common Stock at the applicable Series J Conversion Price, then in effect
pursuant to Section 3(a) hereof upon the date specified by a vote or written
consent or agreement of holders of at least two-thirds (2/3) of the shares of
Series J Preferred Stock.
(c) Mechanics of Conversion. Before any holder of Preferred Stock
shall be entitled to convert the same into shares of Common Stock pursuant to
Section 3(a) hereof, and before the Corporation shall be obligated to issue
certificates for shares of Common Stock upon the automatic conversion of the
Preferred Stock pursuant to Section 3(b) hereof, such holder shall surrender the
certificate or certificates therefor, duly endorsed, at the office of the
Corporation or of any transfer agent for the Preferred Stock, and shall give
written notice by mail, postage prepaid, to the Corporation at its principal
corporate office, of the election to convert the same and shall state therein
the name or names in which the certificate or certificates for shares of Common
Stock are to be issued (except that no such written notice of intent to convert
shall be necessary in the event of an automatic conversion upon a public
offering pursuant to Section 3(b) hereof). The Corporation shall, as soon as
practicable thereafter, issue and deliver at such office to such holder of
Series B Preferred Stock, Series E Preferred Stock, Series F Preferred Stock,
Series G Preferred Stock, Series H Preferred Stock, Series I Preferred Stock or
Series J Preferred Stock or to the nominee or nominees of such holder, a
certificate or certificates for the number of shares of Common Stock to which
such holder shall be entitled as aforesaid. Such conversion shall be deemed to
have been made immediately prior to the close of business on the date of such
surrender of the shares of Series B Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock, Series G Preferred Stock, Series H Preferred Stock,
Series I Preferred Stock or Series J Preferred Stock to be converted, and the
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of such date. On the date fixed for
any mandatory conversion pursuant to Section 3(b) above, all rights under this
Restated Certificate of Incorporation with respect to the Series B Preferred
Stock, Series E Preferred Stock, Series F Preferred Stock, Series G Preferred
Stock, Series H Preferred Stock, Series I Preferred Stock or Series J Preferred
Stock will terminate (except the right upon the surrender of the certificates to
receive certificates for the number of shares of Common Stock into which such
shares have been converted).
5.
(d) Adjustments to Conversion Price for Diluting Issues:
(i) Special Definitions. For purposes of this subparagraph 5(d),
the following definitions shall apply:
(A) "Option" shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire either Common Stock or Convertible
Securities, other than those shares excluded from the definition of Additional
Shares of Common Stock.
(B) "Convertible Securities" shall mean any evidence of
indebtedness, shares (other than Common Stock) or other securities directly or
indirectly convertible into or exchangeable for Common Stock, other than those
shares excluded from the definition of Additional Shares of Common Stock.
(C) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to subparagraph 3(d)(ii), deemed to
be issued) by the Corporation after the Original Issue Date (as defined in
section D below), other than:
(I) shares of Common Stock issued or issuable upon
conversion of shares of Preferred Stock; or
(II) shares of Common Stock issuable to officers,
directors and employees of, and consultants to, the Corporation and its
subsidiaries pursuant to stock purchase or option plans or arrangements or other
officer, director, employee or consultant stock incentive or benefit plans or
arrangements (collectively, the "Plans") approved by the Board of Directors; or
(III) shares of Common Stock issued or issuable as a
dividend or distribution on Preferred Stock; or
(IV) shares of Common Stock issued or issuable for
which adjustment of the Series B Conversion Price, Series E Conversion Price,
Series F Conversion Price, Series G Conversion Price, Series H Conversion Price,
Series I Conversion Price or Series J Conversion Price is made pursuant to
Section 3(e) herein.
(D) "Original Issue Date" shall mean the date on which a
share of Series J Preferred Stock was first issued.
(ii) Issue of Securities Deemed Issue of Additional Shares of
Common Stock. In the event the Corporation at any time or from time to time
after the Original Issue Date shall issue any Options or Convertible Securities
or shall fix a record date for the determination of holders of any class of
securities entitled to receive any such Options or Convertible Securities, then
the maximum number of shares (as set forth in the instrument relating thereto
without regard to any provisions contained therein for a subsequent adjustment
of such number) of Common Stock issuable upon the exercise of such Options or,
in the case of Convertible Securities and Options therefore, the conversion or
exchange of such Convertible Securities, shall be deemed to be Additional Shares
of Common Stock issued as of the time of such issue or, in the case such a
record date shall have been fixed, as of the close of business on
6.
such record date; provided that in any such case in which Additional Shares of
Common Stock are deemed to be issued:
(A) no further adjustment in the Series B Conversion Price,
Series E Conversion Price, Series F Conversion Price, Series G Conversion Price,
Series H Conversion Price, Series I Conversion Price or Series J Conversion
Price shall be made upon the subsequent issue of Convertible Securities or
shares of Common Stock upon the exercise of such Options or conversion or
exchange of such Convertible Securities;
(B) if such Options or Convertible Securities by their
terms provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Corporation, or decrease in the number of shares of
Common Stock issuable, upon the exercise, conversion or exchange thereof, the
Series B Conversion Price, Series E Conversion Price, Series F Conversion Price,
Series G Conversion Price, Series H Conversion Price, Series I Conversion Price
or Series J Conversion Price computed upon the original issue thereof (or upon
the occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange under such
Convertible Securities;
(C) upon the expiration of any such Options or any rights
of conversion or exchange under such Convertible Securities which shall not have
been exercised, the Series B Conversion Price, Series E Conversion Price, Series
F Conversion Price, Series G Conversion Price, Series H Conversion Price, Series
I Conversion Price or Series J Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon such expiration, be recomputed
as if:
(I) in the case of Convertible Securities or Options
for Common Stock the only Additional Shares of Common Stock issued were the
shares of Common Stock, if any, actually issued upon the exercise of such
Options or the conversion or exchange of such Convertible Securities and the
consideration received therefor was the consideration actually received by the
Corporation for the issue of all such Options, whether or not exercised, plus
the consideration actually received by the Corporation upon such exercise, or
for the issue of all such Convertible Securities which were actually converted,
if any, actually received by the Corporation upon such conversion or exchange,
and
(II) in the case of Options for Convertible
Securities, only the Convertible Securities, if any, actually issued upon the
exercise thereof were issued at the time of issue of such Options, and the
consideration received by the Corporation for the Additional Shares of Common
Stock deemed to have been then issued was the consideration actually received by
the Corporation for the issue of all such Options, whether or not exercised,
plus the consideration deemed to have been received the Corporation (determined
pursuant to subparagraph 3(c)(iv)) upon the issue of the Convertible Securities
with respect to which such Options were actually exercised;
7.
(III) in the case of any Options which expire by their
terms not more than thirty (30) days after the date of issue thereof, no
adjustment of the Series B Conversion Price, Series E Conversion Price, Series F
Conversion Price, Series G Conversion Price, Series H Conversion Price, Series I
Conversion Price or Series J Conversion Price shall be made until the expiration
or exercise of all such Options, whereupon such adjustment shall be made in the
same manner provided in clause (II) above; and
(IV) if such record date shall have been fixed and
such Options or Convertible Securities are not issued on the date fixed thereof,
the adjustment previously made in the Series B Conversion Price, Series E
Conversion Price, Series F Conversion Price, Series G Conversion Price, Series H
Conversion Price, Series I Conversion Price or Series J Conversion Price which
became effective on such record date shall be canceled as of the close of
business on such record date, and thereafter the Series B Conversion Price,
Series E Conversion Price, Series F Conversion Price, Series G Conversion Price,
Series H Conversion Price, Series I Conversion Price or Series J Conversion
Price shall be adjusted pursuant to this subparagraph as of the actual date of
issuance of such Options or Convertible Securities.
(iii) Adjustment of Conversion Price upon Issuance of
Additional Shares of Common Stock. In the event this Corporation shall issue
Additional Shares of Common Stock (including Additional Shares of Common Stock
deemed to be issued pursuant to subparagraph 3(d)(ii)) at any time on or after
the Original Issue Date (including the issuance of Series J) without
consideration or for a consideration per share less than the Series B Conversion
Price, Series E Conversion Price, Series F Conversion Price, Series G Conversion
Price, Series H Conversion Price, Series I Conversion Price or Series J
Conversion Price in effect on the date of and immediately prior to such issue
(any such series in respect of which such issuance or deemed issuance occurs
being referred to herein as an "Affected Series"), then and in such event, the
Conversion Price of any Affected Series shall be reduced, concurrently with such
issue, to a price (calculated to the nearest cent) determined by multiplying
such Conversion Price by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such issue plus the
number of shares of Common Stock which the aggregate consideration received by
the Corporation for the total number of Additional Shares of Common Stock so
issued would purchase at such Conversion Price, and the denominator of which
shall be the number of shares of Common Stock outstanding immediately prior to
such issue plus the number of such Additional Shares of Common Stock so issued;
and provided further that, for the purposes of this subparagraph 3(d)(iii), all
shares of Common Stock issuable upon conversion of outstanding Options and
Preferred Stock shall be deemed to be outstanding, and immediately after any
Additional Shares of Common Stock are deemed issued pursuant to subparagraph
3(d)(ii), such Additional Shares of Common Stock shall be deemed to be
outstanding. The Series B Conversion Price, Series E Conversion Price, Series F
Conversion Price, Series G Conversion Price, Series H Conversion Price, Series I
Conversion Price and Series J Conversion Price shall not be increased except as
set forth in subparagraph 3(d)(ii)(B) and in paragraph 3(f).
(iv) Determination of Consideration. For purposes of this
subparagraph 3(d)(iv), the consideration received by the Corporation for the
issue of any Additional Shares of Common Stock shall be computed as follows:
8.
(A) Cash and Property. Such consideration shall:
(I) insofar as it consists of cash, be computed at
the aggregate amount of cash received by the Corporation excluding amounts paid
or payable for accrued interest or accrued dividends;
(II) insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(III) in the event Additional Shares of Common Stock
are issued together with other shares or securities or other assets of the
Corporation for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (I) and (II) above,
as determined in good faith by the Board of Directors.
(B) Options and Convertible Securities. The consideration
per share received by the Corporation for Additional Shares of Common Stock
deemed to have been issued pursuant to subparagraph 3(d)(ii), relating to
Options and Convertible Securities, shall be determined by dividing:
(I) the total amount, if any, received or receivable
by the Corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration) payable to
the Corporation upon the exercise of such Options or the conversion or exchange
of such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities, by
(II) the maximum number of shares of Common Stock (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities.
(e) Adjustments for Dividends and Distributions. In the event the
Corporation should at any time or from time to time fix a record date for the
effectuation of a split or subdivision of the outstanding shares of Common Stock
or the determination of holders of Common Stock entitled to receive a dividend
or other distribution payable in additional shares of Common Stock or other
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as "Common Stock Equivalents") without payment of any consideration
by such holder for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such dividend distribution, split or subdivision if no record date is fixed),
the applicable Conversion Price for a series of Preferred Stock shall be
appropriately decreased so that the number of shares of Common Stock issuable on
conversion of each share of such series
9.
shall be increased in proportion to such increase of the aggregate of shares of
Common Stock outstanding and those issuable with respect to such Common Stock
Equivalents.
(f) Adjustments for Combinations. If the number of shares of Common
Stock outstanding at any time after the Original Issue Date is decreased by a
combination of the outstanding shares of Common Stock, then, following the
record date of such combination, the Conversion Price for the Preferred Stock
shall be appropriately increased so that the number of shares of Common Stock
issuable on conversion of each share of such series shall be decreased in
proportion to such decrease in outstanding shares.
(g) Other Distributions. In the event the Corporation shall declare a
distribution payable in securities of other persons, evidences of indebtedness
issued by the Corporation or other persons, assets (excluding cash dividends) or
options or rights not referred to in subsection 3(e), then, in each such case
for the purpose of this subsection 3(g), the holders of the Preferred Stock
shall be entitled to a proportionate share of any such distribution as though
they were the holders of the number of shares of Common Stock of the Corporation
into which their shares of Preferred Stock are convertible as of the record date
fixed for the determination of the holders of Common Stock of the Corporation
entitled to receive such distribution.
(h) Recapitalizations. If at any time or from time to time there
shall be a recapitalization of the Common Stock (other than a subdivision or
combination provided for elsewhere in this Section 3) provision shall be made so
that the holders of the Preferred Stock shall thereafter be entitled to receive
upon conversion of the Preferred Stock the number of shares of stock or other
securities or property of the Company or otherwise, to which a holder of Common
Stock deliverable upon conversion would have been entitled on such
recapitalization. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 3 with respect to the rights of
the holders of the Preferred Stock after the recapitalization to the end that
the provisions of this Section 3 (including adjustment of the Conversion Price
then in effect and the number of shares purchasable upon conversion of the
Series B Preferred Stock, Series E Preferred Stock, Series F Preferred Stock,
Series G Preferred Stock, Series H Preferred Stock, Series I Preferred Stock or
Series J Preferred Stock) shall be applicable after that event as nearly
equivalent as may be practicable.
(i) No Impairment. The Corporation will not, by amendment of this
Amended and Restated Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 3 and in the taking of all
such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of the Series B Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock, Series G Preferred Stock, Series H
Preferred Stock, Series I Preferred Stock and Series J Preferred Stock against
impairment.
10.
(j) No Fractional Shares and Certificate as to Adjustments.
(A) No fractional shares shall be issued upon conversion of
the Series B Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock, Series G Preferred Stock, Series H Preferred Stock, Series I Preferred
Stock or Series J Preferred Stock and the number of shares of Common Stock to be
issued shall be rounded to the nearest whole share. All shares of Common Stock
(including fractions thereof) issuable upon conversion of more than one share of
Series B Preferred Stock, Series E Preferred Stock, Series F Preferred Stock,
Series G Preferred Stock, Series H Preferred Stock, Series I Preferred Stock or
Series J Preferred Stock by a holder thereof shall be aggregated for the
purposes of determining whether the conversion would result in the issuance of
any fractional share. If the conversion would result in the issuance of a
fraction of a share of Common Stock, the Corporation shall, in lieu of issuing
any fractional share, pay the holder otherwise entitled to such fraction a sum
in cash equal to the fair market value of such fraction on the date of
conversion (as determined in good faith by the Board of Directors of the
Corporation).
(B) Upon the occurrence of each adjustment or readjustment
of the Conversion Price of Series B Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock, Series G Preferred Stock, Series H Preferred Stock,
Series I Preferred Stock or Series J Preferred Stock pursuant to this Section 3,
the Corporation, at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to each
holder of Series B Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock, Series G Preferred Stock, Series H Preferred Stock, Series I Preferred
Stock or Series J Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon the written request at any
time of any holder of Series B Preferred Stock, Series E Preferred Stock, Series
F Preferred Stock, Series G Preferred Stock, Series H Preferred Stock, Series I
Preferred Stock or Series J Preferred Stock furnish or cause to be furnished to
such holder a like certificate setting forth (A) such adjustment and
readjustment, (B) the Conversion Price at the time in effect, and (C) the number
of shares of Common Stock and the amount, if any, of other property which at the
time would be received upon the conversion of a share of Series B Preferred
Stock, Series E Preferred Stock, Series F Preferred Stock, Series G Preferred
Stock, Series H Preferred Stock, Series I Preferred Stock or Series J Preferred
Stock.
(k) Notices of Record Date. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, the Corporation
shall mail to each holder of Series B Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock, Series G Preferred Stock, Series H Preferred Stock,
Series I Preferred Stock or Series J Preferred Stock, at least 20 days prior to
the date specified therein, a notice specifying the date on which any such
record is to be taken for the purpose of such dividend, distribution or right,
and the amount and character of such dividend, distribution or right.
(l) Reservation of Stock Issuable upon Conversion. The Corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common
11.
Stock solely for the purpose of effecting the conversion of the shares of the
Series B Preferred Stock, Series E Preferred Stock, Series F Preferred Stock,
Series G Preferred Stock, Series H Preferred Stock, Series I Preferred Stock and
Series J Preferred Stock such number of its shares of Common Stock as shall from
time to time be sufficient to effect the conversion of all outstanding shares of
the Series B Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock, Series G Preferred Stock, Series H Preferred Stock, Series I Preferred
Stock and Series J Preferred Stock; and if at any time the number of authorized
but unissued shares of Common Stock shall not be sufficient to effect the
conversion of all then outstanding shares of the Series B Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock, Series G Preferred Stock,
Series H Preferred Stock, Series I Preferred Stock and Series J Preferred Stock
in addition to such other remedies as shall be available to the holder of such
Preferred Stock, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purposes.
(m) Notices. Any notice required by the provision of this Section 3
to be given to the holders of shares of Series B Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock, Series G Preferred Stock, Series H
Preferred Stock, Series I Preferred Stock or Series J Preferred Stock shall be
deemed given if deposited in the United States mail, postage prepaid, and
addressed to each holder of record at his address appearing on the books of the
Corporation.
4. Voting Rights.
(a) The holder of each share of Series B Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock, Series G Preferred Stock, Series H
Preferred Stock, Series I Preferred Stock or Series J Preferred Stock shall have
the right to one vote for each share of Common Stock into which such share of
Series B Preferred Stock, Series E Preferred Stock, Series F Preferred Stock,
Series G Preferred Stock, Series H Preferred Stock, Series I Preferred Stock or
Series J Preferred Stock could then be converted (with any fractional share
determined on an aggregate conversion basis being rounded to the nearest whole
share), and with respect to such vote, such holder shall have full voting rights
and powers equal to the voting rights and powers of the holders of Common Stock
(except as otherwise expressly provided herein or as required by law, voting
together with the Common Stock as a single class), and shall be entitled,
notwithstanding any provision hereof, to notice of any stockholders' meeting in
accordance with the Bylaws of the Corporation.
(b) So long as 20,000 shares of Series F Preferred Stock remain
outstanding, the holders of the Series F Preferred Stock shall be entitled,
voting as a separate class, to elect three (3) directors of the Corporation at
each annual election of directors. So long as 50,000 shares of Series E
Preferred Stock remain outstanding, the holders of the Series E Preferred Stock
shall be entitled, voting as a separate class, to elect two (2) directors of the
Corporation at each annual election of directors. So long as 60,000 shares of
Series H Preferred Stock remain outstanding, the holders of the Series H
Preferred Stock shall be entitled, voting as a separate class, to elect one (1)
director of the Corporation at each annual election of directors. So long as
110,000 shares of Series J Preferred Stock remain outstanding, the holders of
the Series J Preferred Stock shall be entitled, voting as a separate class, to
elect one (1) director of the
12.
Corporation at each annual election of directors. Subject to the rights of
series of Preferred Stock which may from time to time come into existence, any
remaining directors shall be elected by the holders of the Series B Preferred
Stock, Series G Preferred Stock, Series H Preferred Stock, Series I Preferred
Stock and Series J Preferred Stock and Common Stock, voting together as a single
class, at each annual election of directors. In the case of any vacancy (other
than a vacancy caused by removal) in the office of a director occurring among
the directors elected by the holders of a class or series of stock pursuant to
this Section 4(b), the remaining directors so elected by that class or series
may by affirmative vote of a majority thereof (or the remaining director so
elected if there be but one, of if there are no such directors remaining, by the
affirmative vote of the holders of a majority of the shares of that class or
series), elect a successor or successors to hold office for the unexpired term
of the director or directors whose place or places shall be vacant. Any director
who shall have been elected by the holders of a class or series of stock or by
any directors so elected as provided in the immediately preceding sentence
hereof may be removed during the aforesaid term of office, either with or
without cause, by, and only by, the affirmative vote of the holders of the
shares of the class or series of stock entitled to elect such director or
directors, given either at a special meeting of such shareholders duly called
for that purpose or pursuant to a written consent of shareholders, and any
vacancy thereby created may be filled by the holders of that class of stock
represented at the meeting or pursuant to unanimous written consent.
(c) So long as 20,000 shares of Series F Preferred Stock remain
outstanding, the number of the authorized directors of the Corporation shall not
exceed twelve (12) directors without the consent of a majority of the directors
elected by the Series F Preferred Stock. So long as 20,000 shares of Series F
Preferred Stock remain outstanding, without the consent of a majority of the
directors selected by the holders of the Series F Preferred Stock then in
office, the Corporation shall not reduce the number of directors that the
holders of Series F Preferred Stock are entitled to elect.
5. Covenants.
(a) In addition to any other rights provided by law, so long as
50,000 shares of Series E Preferred Stock shall be outstanding, the Corporation
shall not, without first obtaining the affirmative vote or written consent of a
majority in interest of the outstanding shares of Series E Preferred Stock,
voting separately as a series, amend or repeal any provision of, or add any
provision to, this Amended and Restated Certificate of Incorporation or the
Corporation's Bylaws so as to alter, materially and adversely, the rights,
preferences or privileges of the Series E Preferred Stock.
(b) In addition to any other rights provided by law, so long as any
shares of Series F Preferred Stock shall be outstanding, the Corporation shall
not, without first obtaining the affirmative vote or written consent of a
majority in interest of the outstanding shares of Series F Preferred Stock,
voting separately as a series, amend or repeal any provision of, or add any
provision to, this Amended and Restated Certificate of Incorporation or the
Corporation's Bylaws so as to alter, materially and adversely, the rights,
preferences or privileges of the Series F Preferred Stock.
13.
(c) In addition to any other rights provided by law, so long as any
shares of Series G Preferred Stock shall be outstanding, the Corporation shall
not, without first obtaining the affirmative vote or written consent of a
majority in interest of the outstanding shares of Series G Preferred Stock,
voting separately as a series, amend or repeal any provision of, or add any
provision to, this Amended and Restated Certificate of Incorporation or the
Corporation's Bylaws so as to alter, materially and adversely, the rights,
preferences or privileges of the Series G Preferred Stock.
(d) In addition to any other rights provided by law, so long as any
shares of Series H Preferred Stock shall be outstanding, the Corporation shall
not, without first obtaining the affirmative vote or written consent of a
majority in interest of the outstanding shares of Series H Preferred Stock,
voting separately as a series, amend or repeal any provision of, or add any
provision to the Amended and Restated Certificate of Incorporation or the
Corporation's Bylaws so as to alter, materially and adversely, the rights,
preferences or privileges of the Series H Preferred Stock.
(e) In addition to any other rights provided by law, so long as any
shares of Series I Preferred Stock shall be outstanding, the Corporation shall
not, without first obtaining the affirmative vote or written consent of a
majority in interest of the outstanding shares of Series I Preferred Stock,
voting separately as a series, amend or repeal any provision of, or add any
provision to, this Amended and Restated Certificate of Incorporation or the
Corporation's Bylaws so as to alter, materially and adversely, the rights,
preferences or privileges of the Series I Preferred Stock.
(f) In addition to any other rights provided by law, so long as any
shares of Series J Preferred Stock shall be outstanding, the Corporation shall
not, without first obtaining the affirmative vote or written consent of a
majority in interest of the outstanding shares of Series J Preferred Stock,
voting separately as a series, amend or repeal any provision of, or add any
provision to, this Amended and Restated Certificate of Incorporation or the
Corporation's Bylaws so as to alter, materially and adversely, the rights,
preferences or privileges of the Series J Preferred Stock.
(g) In addition to any other rights provided by law, so long as
50,000 shares of Preferred Stock shall be outstanding, the Corporation shall
not, without first obtaining the affirmative vote or written consent of a
majority in interest of the outstanding shares of Preferred Stock, voting
together as a single class: (a) create any new class or series of shares which
has a preference over or is on a parity with the Preferred Stock; (b) effect any
liquidation, dissolution, consolidation, acquisition or merger of the
Corporation, with, by or into any other corporation or corporations or a sale of
the assets of the Corporation (other than a merger in which the shareholders of
the Corporation immediately prior to the merger own a majority of the shares of
the surviving corporation immediately after such merger); or (c) take any action
which results in a taxable event to the holders of Preferred Stock under Section
305 of the Internal Revenue Code of 1986, as amended.
6. Status of Converted Stock. In the event any shares of Series B
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock, Series G
Preferred Stock, Series H Preferred Stock, Series I Preferred Stock or Series J
Preferred Stock shall be converted pursuant to Section
14.
3, the shares so converted shall be retired and shall resume the status of
authorized and unissued shares of Preferred Stock.
Fifth: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors shall have the power, subject to the provisions
of Section C.5 of Article Fourth, both before and after receipt of any payment
for any of the Corporation's capital stock, to adopt, amend, repeal or otherwise
alter the Bylaws of the Corporation without any action on the part of the
stockholders; provided, however that the grant of such power to the Board of
Directors shall not divest the stockholders of nor limit their power, subject to
the provisions of Section C.5, Article Fourth, to adopt, amend, repeal or
otherwise alter the Bylaws.
Sixth: Elections of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
Seventh: The Corporation reserves the right to adopt, repeal, rescind or
amend in any respect any provisions contained in this Restated Certificate of
Incorporation in the manner now or hereafter prescribed by applicable law, and
all rights conferred on stockholders herein are granted subject to this
reservation.
Eighth: A Director of the Corporation shall, to the full extent permitted
by the Delaware General Corporation Law as it now exists or as it may hereafter
be amended, not be liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. Neither any amendment nor
repeal of this Article Eighth, nor the adoption of any provision of this
Restated Certificate of Incorporation inconsistent with this Article Eighth,
shall eliminate or reduce the effect of this Article Eighth in respect of any
matter occurring, or any cause of action, suit or claim that, but for this
Article Eighth, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
15.
Certificate Of Amendment
Of
Amended and Restated Certificate Of Incorporation
Of
Telik, Inc.
Telik, Inc., a corporation organized and existing under the laws of the
State of Delaware (the "Corporation") hereby certifies that:
1. The name of the Corporation is Telik, Inc. The name under which this
Corporation was originally incorporated is Terrapin Diagnostics, Inc.
2. The date of filing of the Corporation's original Certificate of
Incorporation with the Secretary of State of the State of Delaware was
October 20, 1988.
3. The following amendment of the Amended and Restated Certificate of
Incorporation was duly adopted in accordance with the provisions of
Section 242 of the Delaware General Corporation Law by resolution duly
adopted by the Board of Directors of this Corporation and was approved
by the stockholders of the Corporation in accordance with the
provisions of Section 228 of the Delaware General Corporation Law.
4. Article Fourth, Section C(3)(b) of the Amended and Restated
Certificate of Incorporation is hereby amended to read in its entirety
as follows:
"Article Fourth
(b) Mandatory Conversion. Each share of Series B Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock, Series G Preferred
Stock, Series H Preferred Stock, Series I Preferred Stock and Series J
Preferred Stock shall automatically be converted into shares of Common
Stock at the applicable Series B Conversion Price, Series E Conversion
Price, Series F Conversion Price, Series G Conversion Price, Series H
Conversion Price, Series I Conversion Price or Series J Conversion
Price then in effect pursuant to Section 3(a) hereof upon the earlier
of (i) immediately upon the closing of a firmly underwritten
registered public offering of Common Stock of the Corporation pursuant
to the Securities Act of 1933 (other than a registration relating
solely to a transaction under Rule 145 under such Act (or any
successor thereto) or to an employee benefit plan), resulting in the
receipt by the Corporation of at least ten million dollars
($10,000,000) of gross proceeds (before applicable discounts,
commissions and expenses), or (ii) upon the date specified by a vote
or written consent or agreement of holders of at least two-thirds
(2/3) of the shares of Series B Preferred Stock, Series E Preferred
Stock, Series F Preferred Stock, Series G Preferred Stock, Series H
Preferred Stock, Series I Preferred Stock and Series J Preferred Stock
then outstanding, voting together as a single class. Each share of
Series J Preferred Stock shall automatically be converted into shares
of Common Stock at the applicable Series J Conversion Price, then in
effect pursuant to Section 3(a) hereof upon the date specified by a
vote or written consent or agreement of holders of at least two-thirds
(2/3) of the shares of Series J Preferred Stock."
5. All other provisions of the Amended and Restated Certificate of
Incorporation shall remain in full force and effect.
In Witness Whereof, Telik, Inc. has caused this certificate to be signed
by its Chairman, President and Chief Executive Officer, Michael M. Wick, M.D.,
Ph.D. and attested by its Secretary, Deborah A. Marshall, this ___ day of March,
2000.
Telik, Inc.
_________________________________________________
Michael M. Wick, M.D., Ph.D.
President, Chief Executive Officer and Chairman
Attest:
___________________________________
Deborah A. Marshall
Secretary
Certificate Of Amendment
Of
Amended and Restated Certificate Of Incorporation
Of
Telik, Inc.
Telik, Inc., a corporation organized and existing under the laws of the
State of Delaware (the "Corporation") hereby certifies that:
1. The name of the Corporation is Telik, Inc. The name under which this
Corporation was originally incorporated is Terrapin Diagnostics, Inc.
6. The date of filing of the Corporation's original Certificate of
Incorporation with the Secretary of State of the State of Delaware was
October 20, 1988.
7. The following amendment of the Amended and Restated Certificate of
Incorporation was duly adopted in accordance with the provisions of
Section 242 of the Delaware General Corporation Law by resolution duly
adopted by the Board of Directors of this Corporation and was approved
by the stockholders of the Corporation in accordance with the
provisions of Section 228 of the Delaware General Corporation Law.
8. Article Fourth, Section (A) of the Amended and Restated Certificate of
Incorporation is hereby amended to read in its entirety as follows:
"Article Fourth
A. The Corporation is authorized to issue two classes of shares to
be designated Common Stock ("Common Stock") and Preferred Stock
("Preferred Stock"), respectively. The total number of shares of
stock which the Corporation shall have the authority to issue is
Fifty Million (50,000,000) of which Forty Six Million Nine
Hundred Seventy Six Two Hundred One (46,976,201) Shares are
Common Stock and Three Million Twenty Three Thousand Seven
Hundred Ninety Nine (3,023,799) shares are Preferred Stock, and
the par value of each share is One Cent ($0.01).
The Two Million (2,000,000) shares of Preferred Stock may be
issued from time to time in one or more series. The Board of
Directors is hereby authorized, by filing a certificate pursuant
to the Delaware General Corporation Law, to fix or alter from
time to time the designation, powers, preferences and rights of
the shares of each such series and the qualifications,
limitations or restrictions of any wholly unissued series of
Preferred Stock, and to establish from time to time the number of
shares constituting any such series or any of them; and to
increase or decrease the number of shares of any series
subsequent to the issuance of shares of that series, but not
below the number of shares of such series then outstanding. In
case the number of shares of any series shall be decreased in
accordance with the foregoing sentence, the shares constituting
such decrease shall resume the status that they had prior to the
adoption of the resolution originally fixing the number of shares
of such series."
9. All other provisions of the Amended and Restated Certificate of
Incorporation shall remain in full force and effect.
In Witness Whereof, Telik, Inc. has caused this certificate to be signed by
its President, Chief Executive Officer and Chairman, Michael M. Wick, M.D.,
Ph.D. and attested by its Secretary, Deborah A. Marshall, this ___ day of March,
2000.
Telik, Inc.
_________________________________________________
Michael M. Wick, M.D., Ph.D.
President, Chief Executive Officer and Chairman
Attest:
___________________________________
Deborah A. Marshall
Secretary
TELIK, INC.
CERTIFICATE OF DESIGNATION
OF
SERIES K PREFERRED STOCK
(Pursuant to Section 151 of the General Corporation
Law of the State of Delaware)
__________________________
Telik, Inc. Delaware corporation (the "Company"), in accordance with the
provisions of Section 103 of the General Corporation Law of the State of
Delaware (the "DGCL") DOES HEREBY CERTIFY:
That pursuant to authority vested in the Board of Directors of the Company
by the Amended and Restated Certificate of Incorporation of the Company, as
amended, the Board of Directors of the Company, at a meeting duly called and
held on March 22, 2000, adopted a resolution providing for the creation of a
series of the Company's Preferred Stock, $.01 par value, which series is
designated "Series K Preferred Stock," which resolution is as follows:
Resolved, that pursuant to authority vested in the Board of Directors of
the Company by the Amended and Restated Certificate of Incorporation, as
amended, the Board of Directors does hereby provide for the creation of a series
of the Preferred Stock, $.01 par value, of the Company, and to the extent that
the voting powers and the designations, preferences and relative, participating,
optional or other special rights thereof and the qualifications, limitations or
restrictions of such rights have not been set forth in the Amended and Restated
Certificate of Incorporation of the Company, as amended, does hereby fix the
same as follows:
SERIES K PREFERRED STOCK
A. Designation. The shares of such series shall be designated as "Series
K Preferred Stock" (the "Series K Preferred Stock").
B. Amount. The number of shares constituting such series of Series K
Preferred Stock shall be Two Million (2,000,000).
C. Rank. The Series K Preferred Stock shall rank (i) senior to the
Common Stock, par value $.01 per share (the "Common Stock"), of the Company, now
or hereafter issued, as to payment of dividends and distribution of assets upon
liquidation, dissolution, or winding up of the Company, whether voluntary or
involuntary, and (ii) on a parity with any currently outstanding series of
preferred stock, both as to payment of dividends and as to distributions of
assets upon liquidation, dissolution, or winding up of the Company, whether
voluntary or involuntary.
The rights, preferences, privileges, restrictions and other matters
relating to the Series K Preferred Stock are as follows:
1.
7. Dividend Provisions. The holders of shares of Series K Preferred Stock
shall be entitled to receive dividends, pari passu with any other series of
Preferred Stock then outstanding, out of any assets legally available therefor,
prior and in preference to any declaration or payment of any dividend (payable
other than in Common Stock or other securities and rights convertible into or
entitling the holder thereof to receive, directly or indirectly, additional
shares of Common Stock of the Corporation) on the Common Stock of the
Corporation and no dividends shall be paid on any share of Common Stock unless a
dividend is paid with respect to all outstanding shares of Series K Preferred
Stock equal to or greater than the aggregate amount of such dividends for all
shares of Common Stock into which such share of Series K Preferred Stock could
then be converted. Such dividends shall be payable only when, as and if declared
by the Board of Directors and shall be non-cumulative.
8. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, the holders of each share of
Series K Preferred Stock shall be entitled to receive, pari passu with any other
series of Preferred Stock then outstanding, and prior and in preference to any
distribution of any of the assets of the Corporation to the holders of Common
Stock by reason of their ownership thereof, an amount per share equal to $6.00
for each outstanding share of Series K Preferred Stock (the "Original Series K
Issue Price") plus all accrued or declared but unpaid dividends for each share
of Series K Preferred Stock then held by them. If upon the occurrence of such
event, the assets and funds distributed among the holders of the Preferred Stock
shall be insufficient to permit the payment to such holders of the full
preferential amounts set forth above, then the entire assets and funds of the
Corporation legally available for distribution shall be distributed ratably
among the holders of the Preferred Stock in proportion to the amount of such
stock owned by each such holder.
(b) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, and subject to the payment in full
of the liquidation preferences, as provided in subparagraph (a) of this Section
2, the holders of the Common Stock shall be entitled to receive, prior and in
preference to any further distribution of any of the assets or surplus funds of
the Corporation to the holders of the Series K Preferred Stock and, by reason of
their ownership thereof, the amount of $3.00 per share (as adjusted for any
stock dividends, combinations or splits with respect to such shares) for each
share of Common Stock then held by them and no more. Subject to the payment in
full of the liquidation preferences as provided in subparagraph (a) of this
Section 2, if upon the occurrence of such event, the assets and funds thus
distributed among the holders of the Common Stock shall be insufficient to
permit the payment to such holders of the full aforesaid preferential amount,
then the entire remaining assets and funds of the Corporation legally available
for distribution shall be distributed among the holders of the Common Stock in
proportion to the shares of Common Stock then held by them.
(c) After payment to the holders of the Common Stock and Preferred
Stock of the amounts set forth in Section 2(a) and (b) above, the entire
remaining assets and funds of the Corporation legally available for
distribution, if any, shall be distributed among the holders of the Common Stock
and Preferred Stock in proportion to the shares of Common Stock then held
2.
by them and the shares of Common Stock which they then have the right to acquire
upon conversion of the shares of the Preferred Stock then held by them.
(d) A consolidation or merger of the Corporation with or into any
other corporation or corporations, or a sale, conveyance or disposition of all
or substantially all of the assets of the Corporation shall be deemed to be a
liquidation, dissolution or winding up within the meaning of this Section 2.
9. Conversion. The holders of the Series K Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series K Preferred Stock shall be
convertible, at the option of the holder thereof, at any time after the date of
issuance of such share, at the office of the Corporation or any transfer agent
for the Series K Preferred Stock, into such number of fully paid and
nonassessable shares of Common Stock as is determined by dividing the Original
Series K Issue Price by the Series K Conversion Price (as defined below) at the
time in effect for such share. The price at which shares of Common Stock shall
be deliverable upon conversion of shares of Series K Preferred Stock (the
"Series K Conversion Price") shall initially be $6.00 per share of Common Stock;
provided, however, that the Series K Conversion Price shall be subject to
adjustment as set forth in this Section 3.
(b) Mandatory Conversion. Each share of Series K Preferred Stock
shall automatically be converted into shares of Common Stock at the applicable
Series K Conversion Price then in effect pursuant to Section 3(a) hereof upon
the earlier of (i) immediately upon the closing of a firmly underwritten
registered public offering of Common Stock of the Corporation pursuant to the
Securities Act of 1933 (other than a registration relating solely to a
transaction under Rule 145 under such Act (or any successor thereto) or to an
employee benefit plan resulting in the receipt by the Corporation of at least
ten million dollars ($10,000,000) of gross proceeds (before applicable
discounts, commissions and expenses), or (ii) upon the date specified by a vote
or written consent or agreement of holders of at least two-thirds (2/3) of the
shares of Series K Preferred Stock then outstanding.
(c) Mechanics of Conversion. Before any holder of Series K Preferred
Stock shall be entitled to convert the same into shares of Common Stock pursuant
to Section 3(a) hereof, and before the Corporation shall be obligated to issue
certificates for shares of Common Stock upon the automatic conversion of the
Series K Preferred Stock pursuant to Section 3(b) hereof, such holder shall
surrender the certificate or certificates therefor, duly endorsed, at the office
of the Corporation or of any transfer agent for the Series K Preferred Stock,
and shall give written notice by mail, postage prepaid, to the Corporation at
its principal corporate office, of the election to convert the same and shall
state therein the name or names in which the certificate or certificates for
shares of Common Stock are to be issued (except that no such written notice of
intent to convert shall be necessary in the event of an automatic conversion
upon a public offering pursuant to Section 3(b) hereof). The Corporation shall,
as soon as practicable thereafter, issue and deliver at such office to such
holder of Series K Preferred Stock or to the nominee or nominees of such holder,
a certificate or certificates for the number of shares of Common Stock to which
such holder shall be entitled as aforesaid. Such conversion shall be
3.
deemed to have been made immediately prior to the close of business on the date
of such surrender of the shares of Series K Preferred Stock to be converted, and
the person or persons entitled to receive the shares of Common Stock issuable
upon such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of such date. On the date fixed for
any mandatory conversion pursuant to Section 3(b) above, all rights under this
Certificate of Designation with respect to the Series K Preferred Stock will
terminate (except the right upon the surrender of the certificates to receive
certificates for the number of shares of Common Stock into which such shares
have been converted).
(d) Adjustments to Conversion Price for Diluting Issues:
(i) Special Definitions. For purposes of this subparagraph 5(d),
the following definitions shall apply:
(A) "Option" shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire either Common Stock or Convertible
Securities, other than those shares excluded from the definition of Additional
Shares of Common Stock.
(B) "Convertible Securities" shall mean any evidence of
indebtedness, shares (other than Common Stock) or other securities directly or
indirectly convertible into or exchangeable for Common Stock, other than those
shares excluded from the definition of Additional Shares of Common Stock.
(C) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to subparagraph 3(d)(ii), deemed to
be issued) by the Corporation after the Original Issue Date (as defined in
section D below), other than:
(I) shares of Common Stock issued or issuable upon
conversion of shares of Preferred Stock; or
(II) shares of Common Stock issuable to officers,
directors and employees of, and consultants to, the Corporation and its
subsidiaries pursuant to stock purchase or option plans or arrangements or other
officer, director, employee or consultant stock incentive or benefit plans or
arrangements (collectively, the "Plans") approved by the Board of Directors; or
(III) shares of Common Stock issued or issuable as a
dividend or distribution on Preferred Stock; or
(IV) shares of Common Stock issued or issuable for
which adjustment of the Series K Conversion Price is made pursuant to Section
3(e) herein.
(D) "Original Issue Date" shall mean the date on which a
share of Series K Preferred Stock was first issued.
(ii) Issue of Securities Deemed Issue of Additional Shares of
Common Stock. In the event the Corporation at any time or from time to time
after the Original
4.
Issue Date shall issue any Options or Convertible Securities or shall fix a
record date for the determination of holders of any class of securities entitled
to receive any such Options or Convertible Securities, then the maximum number
of shares (as set forth in the instrument relating thereto without regard to any
provisions contained therein for a subsequent adjustment of such number) of
Common Stock issuable upon the exercise of such Options or, in the case of
Convertible Securities and Options therefore, the conversion or exchange of such
Convertible Securities, shall be deemed to be Additional Shares of Common Stock
issued as of the time of such issue or, in the case such a record date shall
have been fixed, as of the close of business on such record date; provided that
in any such case in which Additional Shares of Common Stock are deemed to be
issued:
(A) no further adjustment in the Series K Conversion Price
shall be made upon the subsequent issue of Convertible Securities or shares of
Common Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
(B) if such Options or Convertible Securities by their
terms provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Corporation, or decrease in the number of shares of
Common Stock issuable, upon the exercise, conversion or exchange thereof, the
Series K Conversion computed upon the original issue thereof (or upon the
occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange under such
Convertible Securities;
(C) upon the expiration of any such Options or any rights
of conversion or exchange under such Convertible Securities which shall not have
been exercised, the Series K Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon such expiration, be recomputed
as if:
(I) in the case of Convertible Securities or Options
for Common Stock the only Additional Shares of Common Stock issued were the
shares of Common Stock, if any, actually issued upon the exercise of such
Options or the conversion or exchange of such Convertible Securities and the
consideration received therefor was the consideration actually received by the
Corporation for the issue of all such Options, whether or not exercised, plus
the consideration actually received by the Corporation upon such exercise, or
for the issue of all such Convertible Securities which were actually converted,
if any, actually received by the Corporation upon such conversion or exchange,
and
(II) in the case of Options for Convertible Securities,
only the Convertible Securities, if any, actually issued upon the exercise
thereof were issued at the time of issue of such Options, and the consideration
received by the Corporation for the Additional Shares of Common Stock deemed to
have been then issued was the consideration actually received by the Corporation
for the issue of all such Options, whether or not exercised, plus the
consideration deemed to have been received the Corporation (determined pursuant
to
5.
subparagraph 3(c)(iv)) upon the issue of the Convertible Securities with respect
to which such Options were actually exercised;
(III) in the case of any Options which expire by their
terms not more than thirty (30) days after the date of issue thereof, no
adjustment of the Series K Conversion Price shall be made until the expiration
or exercise of all such Options, whereupon such adjustment shall be made in the
same manner provided in clause (II) above; and
(IV) if such record date shall have been fixed and
such Options or Convertible Securities are not issued on the date fixed thereof,
the adjustment previously made in the Series K Conversion Price which became
effective on such record date shall be canceled as of the close of business on
such record date, and thereafter the Series K Conversion Price shall be adjusted
pursuant to this subparagraph as of the actual date of issuance of such Options
or Convertible Securities.
(iii) Adjustment of Conversion Price upon Issuance of Additional
Shares of Common Stock. In the event this Corporation shall issue Additional
Shares of Common Stock (including Additional Shares of Common Stock deemed to be
issued pursuant to subparagraph 3(d)(ii)) at any time on or after the Original
Issue Date (including the issuance of Series K Preferred Stock) without
consideration or for a consideration per share less than the Series K Preferred
Stock Conversion Price in effect on the date of and immediately prior to such
issue (any such series in respect of which such issuance or deemed issuance
occurs being referred to herein as an "Affected Series"), then and in such
event, the Conversion Price of any Affected Series shall be reduced,
concurrently with such issue, to a price (calculated to the nearest cent)
determined by multiplying such Conversion Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such issue plus the number of shares of Common Stock which the
aggregate consideration received by the Corporation for the total number of
Additional Shares of Common Stock so issued would purchase at such Conversion
Price, and the denominator of which shall be the number of shares of Common
Stock outstanding immediately prior to such issue plus the number of such
Additional Shares of Common Stock so issued; and provided further that, for the
purposes of this subparagraph 3(d)(iii), all shares of Common Stock issuable
upon conversion of outstanding Options and Preferred Stock shall be deemed to be
outstanding, and immediately after any Additional Shares of Common Stock are
deemed issued pursuant to subparagraph 3(d)(ii), such Additional Shares of
Common Stock shall be deemed to be outstanding. The Series K Conversion Price
shall not be increased except as set forth in subparagraph 3(d)(ii)(B) and in
paragraph 3(f).
Notwithstanding the foregoing, until the second anniversary of the Original
Issue Date for the Series K Preferred Stock, in the event this Corporation shall
issue Additional Shares of Common Stock (including Additional Shares of Common
Stock deemed to be issued pursuant to subparagraph 3(d)(ii)) at any time on or
after the Original Issue Date of Series K Preferred Stock without consideration
or for a consideration per share less than the Series K Conversion Price in
effect on the date of and immediately prior to such issue, then and in such
event, the Conversion Price of the Series K Preferred Stock shall be reduced,
concurrently with such issue, to a price equal to the issue price for such
Additional Shares of Common Stock.
(iv) Determination of Consideration. For purposes of this
subparagraph 3(d)(iv), the consideration received by the Corporation for the
issue of any Additional Shares of Common Stock shall be computed as follows:
(A) Cash and Property. Such consideration shall:
(I) insofar as it consists of cash, be computed at the
aggregate amount of cash received by the Corporation excluding amounts paid or
payable for accrued interest or accrued dividends;
6.
(II) insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(III) in the event Additional Shares of Common Stock
are issued together with other shares or securities or other assets of the
Corporation for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (I) and (II) above,
as determined in good faith by the Board of Directors.
(B) Options and Convertible Securities. The consideration
per share received by the Corporation for Additional Shares of Common Stock
deemed to have been issued pursuant to subparagraph 3(d)(ii), relating to
Options and Convertible Securities, shall be determined by dividing:
(I) the total amount, if any, received or receivable
by the Corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration) payable to
the Corporation upon the exercise of such Options or the conversion or exchange
of such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities, by
(II) the maximum number of shares of Common Stock (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities.
(e) Adjustments for Dividends and Distributions. In the event the
Corporation should at any time or from time to time fix a record date for the
effectuation of a split or subdivision of the outstanding shares of Common Stock
or the determination of holders of Common Stock entitled to receive a dividend
or other distribution payable in additional shares of Common Stock or other
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as "Common Stock Equivalents") without payment of any consideration
by such holder for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such dividend distribution, split or subdivision if no record date is fixed),
the applicable Conversion Price for a series of Series K Preferred Stock shall
be appropriately decreased so that the number of shares of Common Stock issuable
on conversion of each share of Series K Preferred Stock shall be increased in
proportion to such increase of the aggregate of shares of Common Stock
outstanding and those issuable with respect to such Common Stock Equivalents.
(f) Adjustments for Combinations. If the number of shares of Common
Stock outstanding at any time after the Original Issue Date is decreased by a
combination of the outstanding shares of Common Stock, then, following the
record date of such combination, the
7.
Conversion Price for the Series K Preferred Stock shall be appropriately
increased so that the number of shares of Common Stock issuable on conversion of
each share of Series K Preferred shall be decreased in proportion to such
decrease in outstanding shares.
(g) Other Distributions. In the event the Corporation shall declare a
distribution payable in securities of other persons, evidences of indebtedness
issued by the Corporation or other persons, assets (excluding cash dividends) or
options or rights not referred to in subsection 3(e), then, in each such case
for the purpose of this subsection 3(g), the holders of the Series K Preferred
Stock shall be entitled to a proportionate share of any such distribution as
though they were the holders of the number of shares of Common Stock of the
Corporation into which their shares of Series K Preferred Stock are convertible
as of the record date fixed for the determination of the holders of Common Stock
of the Corporation entitled to receive such distribution.
(h) Recapitalizations. If at any time or from time to time there
shall be a recapitalization of the Common Stock (other than a subdivision or
combination provided for elsewhere in this Section 3) provision shall be made so
that the holders of the Series K Preferred Stock shall thereafter be entitled to
receive upon conversion of the Series K Preferred Stock the number of shares of
stock or other securities or property of the Company or otherwise, to which a
holder of Common Stock deliverable upon conversion would have been entitled on
such recapitalization. In any such case, appropriate adjustment shall be made in
the application of the provisions of this Section 3 with respect to the rights
of the holders of the Series K Preferred Stock after the recapitalization to the
end that the provisions of this Section 3 (including adjustment of the
Conversion Price then in effect and the number of shares purchasable upon
conversion of the Series K Preferred Stock) shall be applicable after that event
as nearly equivalent as may be practicable.
(i) No Impairment. The Corporation will not, by amendment of this
Certificate of Designation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Corporation, but will at all times in good faith assist in the carrying out of
all the provisions of this Section 3 and in the taking of all such action as may
be necessary or appropriate in order to protect the Conversion Rights of the
holders of the Series K Preferred Stock against impairment.
(j) No Fractional Shares and Certificate as to Adjustments.
(A) No fractional shares shall be issued upon conversion of
the Series K Preferred Stock and the number of shares of Common Stock to be
issued shall be rounded to the nearest whole share. All shares of Common Stock
(including fractions thereof) issuable upon conversion of more than one share of
Series K Preferred Stock by a holder thereof shall be aggregated for the
purposes of determining whether the conversion would result in the issuance of
any fractional share. If the conversion would result in the issuance of a
fraction of a share of Common Stock, the Corporation shall, in lieu of issuing
any fractional share, pay the holder otherwise entitled to such fraction a sum
in cash equal to the fair market value of such
8.
fraction on the date of conversion (as determined in good faith by the Board of
Directors of the Corporation).
(B) Upon the occurrence of each adjustment or readjustment
of the Conversion Price of Series K Preferred Stock pursuant to this Section 3,
the Corporation, at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to each
holder of Series K Preferred Stock a certificate setting forth such adjustment
or readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon the written request at any
time of any holder of Series K Preferred Stock furnish or cause to be furnished
to such holder a like certificate setting forth (A) such adjustment and
readjustment, (B) the Conversion Price at the time in effect, and (C) the number
of shares of Common Stock and the amount, if any, of other property which at the
time would be received upon the conversion of a share of Series K Preferred
Stock.
(k) Notices of Record Date. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, the Corporation
shall mail to each holder of Series K Preferred Stock, at least 20 days prior to
the date specified therein, a notice specifying the date on which any such
record is to be taken for the purpose of such dividend, distribution or right,
and the amount and character of such dividend, distribution or right.
(l) Reservation of Stock Issuable upon Conversion. The Corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock solely for the purpose of effecting the conversion of the
shares of the Series K Preferred Stock such number of its shares of Common Stock
as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series K Preferred Stock; and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of the Series K
Preferred Stock in addition to such other remedies as shall be available to the
holder of Series K Preferred Stock, the Corporation will take such corporate
action as may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purposes.
(m) Notices. Any notice required by the provision of this Section 3
to be given to the holders of shares of Series K Preferred Stock shall be deemed
given if deposited in the United States mail, postage prepaid, and addressed to
each holder of record at his address appearing on the books of the Corporation.
10. Voting Rights.
The holder of each share of Series K Preferred Stock shall have the right
to one vote for each share of Common Stock into which such share of Series K
Preferred Stock could then be converted (with any fractional share determined on
an aggregate conversion basis being rounded
9.
to the nearest whole share), and with respect to such vote, such holder shall
have full voting rights and powers equal to the voting rights and powers of the
holders of Common Stock (except as otherwise expressly provided herein or as
required by law, voting together with the Common Stock as a single class), and
shall be entitled, notwithstanding any provision hereof, to notice of any
stockholders' meeting in accordance with the Bylaws of the Corporation.
11. Covenants.
(a) In addition to any other rights provided by law, so long as any
shares of Series K Preferred Stock shall be outstanding, the Corporation shall
not, without first obtaining the affirmative vote or written consent of a
majority in interest of the outstanding shares of Series K Preferred Stock,
voting separately as a series, amend or repeal any provision of, or add any
provision to, this Certificate of Designation or the Amended and Restated
Certificate of Incorporation or the Corporation's Bylaws so as to alter,
materially and adversely, the rights, preferences or privileges of the Series K
Preferred Stock.
(b) In addition to any other rights provided by law, so long as
50,000 shares of Preferred Stock shall be outstanding, the Corporation shall
not, without first obtaining the affirmative vote or written consent of a
majority in interest of the outstanding shares of Preferred Stock, voting
together as a single class: (a) create any new class or series of shares which
has a preference over or is on a parity with the Preferred Stock; (b) effect any
liquidation, dissolution, consolidation, acquisition or merger of the
Corporation, with, by or into any other corporation or corporations or a sale of
the assets of the Corporation (other than a merger in which the shareholders of
the Corporation immediately prior to the merger own a majority of the shares of
the surviving corporation immediately after such merger); or (c) take any action
which results in a taxable event to the holders of Preferred Stock under Section
305 of the Internal Revenue Code of 1986, as amended.
12. Status of Converted Stock. In the event any shares of Series K
Preferred Stock shall be converted pursuant to Section 3, the shares so
converted shall be retired and shall resume the status of authorized and
unissued shares of Preferred Stock.
10.
In Witness Whereof, Telik, Inc. has caused this Certificate of Designation
to be signed by the Chairman & Chief Executive Officer and the Secretary on this
31st day of March, 2000.
Telik, Inc.
By: /s/ Michael M. Wick
-------------------------------------
Michael M. Wick,
Chairman & Chief Executive Officer
Attest:
By: /s/ Deborah A. Marshall
----------------------------
Deborah A. Marshall, Secretary
11.