EXHIBIT 3(i)(a)
CERTIFICATE OF AMENDMENT
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OF
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RESTATED CERTIFICATE OF INCORPORATION
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OF
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INCYTE PHARMACEUTICALS, INC.
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It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
Incyte Pharmaceuticals, Inc.
2. The Restated Certificate of Incorporation of the Corporation is hereby
amended by striking out Article I and Article IV Section A thereof and by
substituting in lieu of said Article I and Article IV Section A the following
new Article I and Article IV Section A:
"ARTICLE I
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"The name of the corporation is Incyte Genomics, Inc."
"ARTICLE IV
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"A. Classes of Stock. The total number of shares of all classes of
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capital stock which the corporation shall have authority to issue is two
hundred five million (205,000,000), of which two hundred million
(200,000,000) shares of the par value of one-tenth of one cent ($.001)
each shall be Common Stock (the "Common Stock") and five million
(5,000,000) shares of the par value of one-tenth of one cent ($.001) each
shall be Preferred Stock (the "Preferred Stock"). The number of
authorized shares of Common Stock or Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding)
by the affirmative vote of the holders of a majority of the then
outstanding shares of Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such
Preferred Stock holders is required pursuant to the provisions
established by the Board of Directors of this Corporation (the "Board of
Directors") in the resolution or resolutions providing for the issue of
such Preferred Stock, and if such holders of such Preferred Stock are so
entitled to vote thereon, then, except as may otherwise be set forth in
this Restated Certificate of Incorporation, the only stockholder approval
required shall be the affirmative vote of a majority of the combined
voting power of the Common Stock and the Preferred Stock so entitled to
vote."
3. This Certificate of Amendment of Restated Certificate of Incorporation
was duly adopted by the Board of Directors of the Corporation.
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4. This Certificate of Amendment of Restated Certificate of Incorporation
was duly adopted by the stockholders in accordance with Section 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Incyte Pharmaceuticals, Inc. has caused this
certificate to be signed by its Chief Executive Officer and Secretary this 5th
day of June, 2000.
By: /s/ ROY A. WHITFIELD
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Roy A. Whitfield
Chief Executive Officer
Attest:
By: /s/ LEE BENDEKGEY
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Lee Bendekgey
Secretary
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CERTIFICATE OF DESIGNATION
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OF SERIES A PARTICIPATING PREFERRED STOCK
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OF
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INCYTE PHARMACEUTICALS, INC.
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We, Roy A. Whitfield, the Chief Executive Officer, and Elias Lee Bendekgey,
the Secretary, of Incyte Pharmaceuticals, Inc., a corporation organized and
exist ing under the General Corporation Law of the State of Delaware, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation of the Corporation, the said Board of Directors on
September 25, 1998, adopted the following resolution creating a series of
250,000 shares of Preferred Stock designated as Series A Participating Preferred
Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation in accordance with the provisions of its Certificate of
Incorporation, a series of Preferred Stock of the Corporation be and it hereby
is created, and that the designation and amount thereof and the powers,
preferences and relative, participating, optional and other special rights of
the shares of such series, and the qualifications, limitations or restrictions
thereof are as follows:
1. Designation and Amount. The shares of such series shall be designated
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as "Series A Participating Preferred Stock," par value $.001 per share, and
the number of shares constituting such series shall be 250,000. Such number of
shares may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series A
Participating Preferred Stock to a number less than that of the shares then
outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities
issued by the Corporation.
2. Dividends and Distributions.
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(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Participating Preferred Stock with respect to dividends,
the holders of shares of Series A Participating Preferred Stock in preference
to the holders of shares of Common Stock, par value $.001 per share (the
"Common Stock"), of the Corporation and any other junior stock, shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in cash
on the first day of March, June, September and December in each year (each
such date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Participating Preferred
Stock in an amount per share (rounded to the nearest cent) equal to the
greater of (a) $25.00, or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount of all cash
dividends, and 1,000 times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of
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Common Stock (by reclassification or otherwise), declared on the Common Stock,
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series A Participating Preferred Stock.
In the event the Corporation shall at any time after the close of business on
October 13, 1998 (the "Rights Declaration Date") (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, by reclassification or otherwise, then in each such case the
amount to which holders of shares of Series A Participating Preferred Stock
were entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Participating Preferred Stock as provided in paragraph (a) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $25.00 per
share on the Series A Participating Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Participating Preferred Stock unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of issue of
such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares
of Series A Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Participating Preferred
Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a share-by-
share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than thirty (30) days prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A Participating
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Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Participating Preferred Stock shall entitle the holder thereof
to 1,000 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock into a greater number
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of shares, or (iii) combine the outstanding Common Stock into a smaller number
of shares, by reclassification or otherwise, then in each such case the number
of votes per share to which holders of shares of Series A Participating
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, in the Certificate of
Incorporation or by law, the holders of shares of Series A Participating
Preferred Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Participating
Preferred Stock shall be in arrears in an amount equal to six quarterly
dividends thereon, the holders of the Series A Participating Preferred
Stock, voting as a separate series from all other series of Preferred
Stock and classes of capital stock, shall be entitled to elect two
members of the Board of Directors in addition to any Directors elected by
any other series, class or classes of securities and the authorized
number of Directors will automatically be increased by two. Promptly
thereafter, the Board of Directors of this Corporation shall, as soon as
may be practicable, call a special meeting of holders of Series A
Participating Preferred Stock for the purpose of electing such members of
the Board of Directors. Said special meeting shall in any event be held
within forty-five (45) days of the occurrence of such arrearage.
(ii) During any period when the holders of Series A Participating
Preferred Stock, voting as a separate series, shall be entitled and shall
have exercised their right to elect two Directors, then and during such
time as such right continues (a) the then authorized number of Directors
shall be increased by two, and the holders of Series A Participating
Preferred Stock, voting as a separate series, shall be entitled to elect
the additional Directors so provided for, and (b) each such additional
Director shall not be a member of any existing class of the Board of
Directors, but shall serve until the next annual meeting of stockholders
for the election of Directors, or until his or her successor shall be
elected and shall qualify, or until his or her right to hold such office
terminates pursuant to the provisions of this Section 3(c).
(iii) A Director elected pursuant to the terms hereof may be removed
with or without cause by the holders of Series A Participating Preferred
Stock entitled to vote in an election of such Director.
(iv) If, during any interval between annual meetings of stockholders
for the election of Directors and while the holders of Series A
Participating Preferred Stock shall be entitled to elect two Directors,
there are fewer than two such Directors in office by reason of
resignation, death or removal, then, promptly thereafter, the Board of
Directors shall call a special meeting of the holders of Series A
Participating Preferred Stock for the purpose of filling such
vacancy(ies)
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and such vacancy(ies) shall be filled at such special meeting. Such
special meeting shall in any event be held within forty-five (45) days of
the occurrence of any such vacancy(ies).
(v) At such time as the arrearage is fully cured, and all dividends
accumulated and unpaid on any shares of Series A Participating Preferred
Stock outstanding are paid, and, in addition thereto, at least one
regular dividend has been paid subsequent to curing such arrearage, the
term of office of any Director elected pursuant to this Section 3(c), or
his or her successor, shall automatically terminate, and the authorized
number of Directors shall automatically decrease by two, and the rights
of the holders of the shares of the Series A Participating Preferred
Stock to vote as provided in this Section 3(c) shall cease, subject to
renewal from time to time upon the same terms and conditions.
(D) Except as set forth herein or as otherwise provided by law,
holders of Series A Participating Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock and any other
capital stock of the Corporation having general voting rights as set forth
herein) for taking any corporate action.
4. Certain Restrictions.
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(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Participating Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Participating
Preferred Stock outstanding shall have been paid in full, the Corporation
shall not
(i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration any shares
of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Participating
Preferred Stock except dividends paid ratably on the Series A Participating
Preferred Stock and all such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Participating
Preferred Stock provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such parity stock in exchange
for shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the Series A
Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Participating Preferred Stock or any shares of stock ranking on a
parity with the Series A Participating Preferred Stock except in accordance
with a purchase offer
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made in writing or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective Series And classes, shall
determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
5. Reacquired Shares. Any shares of Series A Participating Preferred
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Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
6. Liquidation, Dissolution or Winding Up.
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(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred Stock
unless, prior thereto, the holders of shares of Series A Participating
Preferred Stock shall have received per share, the greater of $1,000.00 or
1,000 times the payment made per share of Common Stock, plus an amount equal
to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series A Liquidation Preference").
Following the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the holders of shares
of Series A Participating Preferred Stock unless, prior thereto, the holders
of shares of Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 1,000 (as appropriately adjusted as set forth
in subparagraph (C) below to reflect such events as stock splits, stock
dividends and recapitalization with respect to the Common Stock) (such number
in clause (ii), the "Adjustment Number"). Following the payment of the full
amount of the Series A Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Participating Preferred Stock
and Common Stock, respectively, holders of Series A Participating Preferred
Stock and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of
the Adjustment Number to 1 with respect to such Preferred Stock and Common
Stock, on a per share basis, respectively.
(B) In the event there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and the liquidation
preferences of all other series of Preferred Stock, if any, which rank on a
parity with the Series A Participating Preferred Stock then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event there are
not sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
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(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, by reclassification or
otherwise, then in each such case the Adjustment Number in effect immediately
prior to such event shall be adjusted by multiplying such Adjustment Number by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
7. Consolidation, Merger, etc. In case the Corporation shall enter into
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any consolidation, merger, combination or other transaction in which the shares
of Common Stock are exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case the shares of Series A
Participating Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of shares
of Series A Participating Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that are outstanding immediately prior to
such event.
8. Redemption. The shares of Series A Participating Preferred Stock
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shall not be redeemable.
9. Ranking. The Series A Participating Preferred Stock shall rank junior
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to all other series of the Corporation's Preferred Stock as to the payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
10. Amendment. The Certificate of Incorporation and the Bylaws of the
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Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the outstanding shares of Series A Participating Preferred Stock
voting separately as a class.
11. Fractional Shares. Series A Participating Preferred Stock may be
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issued in fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Participating Preferred Stock.
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IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do
affirm the foregoing as true under the penalties of perjury as of the 25th day
of September, 1998.
By /s/ ROY A. WHITFIELD
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Roy A. Whitfield
Chief Executive Officer
Attest:
/s/ ELIAS LEE BENDEKGEY
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Elias Lee Bendekgey
Secretary
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CERTIFICATE OF AMENDMENT
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OF
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RESTATED CERTIFICATE OF INCORPORATION
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OF
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INCYTE PHARMACEUTICALS, INC.
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It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
Incyte Pharmaceuticals, Inc.
2. The Restated Certificate of Incorporation of the Corporation is hereby
amended by striking out Article IV Section A thereof and by substituting in lieu
of said Article IV Section A the following new Article IV Section A:
"ARTICLE IV
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"A. Classes of Stock. The total number of shares of all classes of
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capital stock which the corporation shall have authority to issue is
eighty million (80,000,000), of which seventy-five million (75,000,000)
shares of the par value of one-tenth of one cent ($.001) each shall be
Common Stock (the "Common Stock") and five million (5,000,000) shares of
the par value of one-tenth of one cent ($.001) each shall be Preferred
Stock (the "Preferred Stock"). The number of authorized shares of Common
Stock or Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the then outstanding shares of Common Stock,
without a vote of the holders of the Preferred Stock, or of any series
thereof, unless a vote of any such Preferred Stock holders is required
pursuant to the provisions established by the Board of Directors of this
Corporation (the "Board of Directors") in the resolution or resolutions
providing for the issue of such Preferred Stock, and if such holders of
such Preferred Stock are so entitled to vote thereon, then, except as may
otherwise be set forth in this Restated Certificate of Incorporation, the
only stockholder approval required shall be the affirmative vote of a
majority of the combined voting power of the Common Stock and the
Preferred Stock so entitled to vote."
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3. This Certificate of Amendment of Restated Certificate of Incorporation
was duly adopted by the Board of Directors of the Corporation.
4. This Certificate of Amendment of Restated Certificate of Incorporation
was duly adopted by written consent of the stockholders in accordance with
sections 228 and 242 of the General Corporation Law of the State of Delaware and
written notice of such action has been given as provided in section 228.
IN WITNESS WHEREOF, Incyte Pharmaceuticals, Inc. has caused this
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certificate to be signed by its President and Secretary this 30th day of June,
1997.
By /s/ ROY A. WHITFIELD
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Roy A. Whitfield
Chief Executive Officer
Attest:
By /s/ RANDAL W. SCOTT
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Randal W. Scott
Secretary
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RESTATED CERTIFICATE OF INCORPORATION
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OF
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INCYTE PHARMACEUTICALS, INC.
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INCYTE PHARMACEUTICALS, INC., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
FIRST: The name of the corporation is Incyte Pharmaceuticals, Inc.
SECOND: The original Certificate of Incorporation of the corporation was
filed with the Secretary of State of the State of Delaware on April 8, 1991 and
the original name of the corporation was INCYTE Pharmaceuticals, Inc.
THIRD: Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware, this Restated Certificate of Incorporation restates,
integrates and further amends the provisions of the Certificate of Incorporation
of this corporation.
FOURTH: The text of the Restated Certificate of Incorporation as
heretofore amended or supplemented is hereby restated and amended to read in its
entirety as follows:
ARTICLE I
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The name of the corporation is Incyte Pharmaceuticals, Inc.
ARTICLE II
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The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle, Delaware 19801. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
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The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or
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activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE IV
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A. Classes of Stock. The total number of shares of all classes of
----------------
capital stock which the corporation shall have authority to issue is twenty
five million (25,000,000), of which twenty million (20,000,000) shares of the
par value of one-tenth of one cent ($.001) each shall be Common Stock (the
"Common Stock") and five million (5,000,000) shares of the par value of one-
tenth of one cent ($.001) each shall be Preferred Stock (the "Preferred
Stock"). The number of authorized shares of Common Stock or Preferred Stock
may be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the then
outstanding shares of Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such Preferred
Stock holders is required pursuant to the provisions established by the Board
of Directors of this Corporation (the "Board of Directors") in the resolution
or resolutions providing for the issue of such Preferred Stock, and if such
holders of such Preferred Stock are so entitled to vote thereon, then, except
as may otherwise be set forth in this Restated Certificate of Incorporation,
the only stockholder approval required shall be the affirmative vote of a
majority of the combined voting power of the Common Stock and the Preferred
Stock so entitled to vote.
B. Preferred Stock. The Preferred Stock may be issued from time to time
---------------
in one or more series. The Board of Directors is expressly authorized to
provide for the issue, in one or more series, of all or any of the remaining
shares of Preferred Stock and, in the resolution or resolutions providing for
such issue, to establish for each such series the number of its shares, the
voting powers, full or limited, of the shares of such series, or that such
shares shall have no voting powers, and the designations, preferences and
relative, participating, optional or other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof. The
Board of Directors is also expressly authorized (unless forbidden in the
resolution or resolutions providing for such issue) to increase or decrease
(but not below the number of shares of the series then outstanding) the number
of shares of any series subsequent to the issuance of shares of that series.
In case the number of shares of any such series shall be so decreased, 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.
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C. Common Stock.
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1. Relative Rights of Preferred Stock and Common Stock. All preferences,
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voting powers, relative, participating optional or other special rights and
privileges, and qualifications, limitations, or restrictions of the Common Stock
are expressly made subject and subordinate to those that may be fixed with
respect to any shares of the Preferred Stock.
2. Voting Rights. Except as otherwise required by law or this restated
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certificate of incorporation, each holder of Common Stock shall have one vote in
respect of each share of stock held by him of record on the books of the
corporation for the election of directors and on all matters submitted to a vote
of stockholders of the corporation.
3. Dividends. Subject to the preferential rights of the Preferred Stock,
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holders of Common Stock shall be entitled to receive, when and if declared by
the board of directors, out of the assets of the corporation which are by law
available therefor, dividends payable either in cash, in property or in shares
of capital stock.
4. Dissolution, Liquidation or Winding Up. In the event of any
--------------------------------------
dissolution, liquidation or winding up of the affairs of the corporation, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of the Preferred Stock, holders of Common Stock shall be
entitled, unless otherwise provided by law or this Restated Certificate of
Incorporation, to receive all of the remaining assets of the corporation of
whatever kind available for distribution to stockholders ratably in proportion
to the number of shares of Common Stock held by them respectively.
ARTICLE V
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The corporation is to have perpetual existence.
ARTICLE VI
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In furtherance and not in limitation of the powers conferred by the laws of
the State of Delaware:
A. The Board of Directors is expressly authorized to adopt, amend or
repeal the by-laws of the corporation; provided, however, that the by-laws may
only be amended in accordance with the provisions thereof.
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B. Elections of directors need not be by written ballot unless the by-
laws of the corporation shall so provide.
C. The books of the corporation may be kept at such place within or
without the State of Delaware as the by-laws of the corporation may provide or
as may be designated from time to time by the Board of Directors.
ARTICLE VII
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A. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation and its stockholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violations of law; (iii) under Section 174 of the Delaware General Corporation
Law; or (iv) for any transaction from which the director derived an improper
personal benefit.
B. Each person who is or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official capacity
as a director, officer, employee or agent or in any other capacity while
serving as a director, officer, employee or agent, shall be indemnified and
held harmless by the corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the corporation to provide broader indemni-
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fication rights than said law permitted the corporation to provide prior to
such amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in the second paragraph hereof, the
corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of Directors
of the corporation. The right to indemnification conferred in this section
shall be a contract right and shall include the right to be paid by the
corporation any expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this section or otherwise. The corporation may, by action of
its Board of Directors, provide indemnification to employees and agents of the
corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
If a claim under the first paragraph of this section is not paid in full
by the corporation within thirty (30) days after a written claim has been
received by the corporation, the claimant may at any time thereafter bring
suit against the corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the
corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the corporation
to indemnify the claimant for the amount claimed, but the burden of proving
such defense shall be on the corporation. Neither the failure of the
corporation (including its Board of Directors, independent legal counsel, or
its stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in the Delaware General Corporation Law, nor an actual determination by
the corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
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The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
section shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Restated Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
C. The corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
D. Any repeal or modification of the foregoing provisions of this Article
VII shall not adversely affect any right or protection of any director, officer,
employee or agent of the corporation existing at the time of such repeal or
modification.
E. The amendment or repeal of this Article VII shall require the approval
of the holders of shares representing at least sixty six and two-thirds percent
(66-2/3%) of the shares of the corporation entitled to vote in the election of
directors, voting as one class.
ARTICLE VIII
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The corporation reserves the right to amend or repeal any provision
contained in this restated certificate of incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon a stockholder
herein are granted subject to this reservation.
FIFTH: This Restated Certificate of Incorporation was duly adopted by the
Board of Directors of this corporation.
SIXTH: This Restated Certificate of Incorporation was duly adopted by
written consent of the stockholders in accordance with Sections 228, 245 and 242
of the General
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Corporation Law of the State of Delaware and written notice of such action has
been given as provided in Section 228.
IN WITNESS WHEREOF, Incyte Pharmaceuticals, Inc. has caused this
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certificate to be signed by its President and Secretary this 5th day of
November, 1993.
By: /s/ ROY A. WHITFIELD
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Roy A. Whitfield
President
Attest:
By: /s/ RANDAL W. SCOTT
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Randal W. Scott
Secretary
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