EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VIMRx PHARMACEUTICALS INC.
The undersigned, the President of VIMRx PHARMACEUTICALS INC., a
Delaware corporation (the "Corporation"), does hereby execute the following
Amended and Restated Certificate of Incorporation pursuant to Sections 242(b)
and 245 of the Delaware General Corporation Law:
1. The name of the Corporation is:
VIMRx PHARMACEUTICALS INC.
2. The Corporation was originally incorporated under the name of
"Cellular Immunology Corporation" and the original Certificate of Incorporation
of the Corporation was filed in the Office of the Secretary of State of Delaware
on December 30, 1986.
3. The Certificate of Incorporation of the Corporation is hereby
amended and restated to read in its entirely as follows:
"FIRST: The name of the Corporation is:
VIMRx PHARMACEUTICALS INC.
SECOND: The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
The name of its registered agent at such address is The Corporation Trust
Company.
THIRD: The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may,
now or hereafter, be organized under the Delaware General Corporation Law
("Delaware Law").
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is Forty Million (40,000,000), all of which shall
be common stock with a par value of $.001.
FIFTH: Except to the extent otherwise specifically provided in the
Bylaws of the Corporation, the Board of Directors may adopt, amend or repeal the
Bylaws of the Corporation.
SIXTH: No election of directors of the Corporation need be by written
ballot unless the Bylaws of the Corporation so provide.
SEVENTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be
amended and supplemented, or by any successor thereto, indemnify any and all
persons whom it shall have power to indemnify under said Section from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said Section. The Corporation shall advance expenses to the
fullest extent permitted by said Section. Such right to indemnification and
advancement of expenses shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. The indemnification and
advancement of expenses provided for herein shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
EIGHTH: To the fullest extent that the General Corporation Law of the
State of Delaware, as it exists on the date hereof or as it may hereafter be
amended, permits the limitation or elimination of the liability of directors, no
director shall be personally liable to the Corporation or its stockholders for
any monetary damages for breach of fiduciary duty as a director.
Notwithstanding the foregoing, a director shall be liable to the extent provided
by applicable law (i) for any breach of such director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which such director derived an improper personal benefit.
NINTH: Neither the amendment or repeal of Articles SEVENTH or EIGHTH,
nor the adoption of any provision of this Certificate of Incorporation
inconsistent with such Articles shall adversely affect any right or protection
existing under such Articles at the time of such amendment, repeal or adoption."
4. The seven million nine hundred forty seven thousand seven hundred
twenty-four (7,947,724) shares of common stock, $.01 par value, of the
Corporation presently issued and outstanding are hereby converted and changed
into an aggregate of four million seven hundred sixty thousand four hundred
twenty-one (4,760,421) issued and outstanding shares of the new class of common
stock, $.001 par value, of the Corporation at the rate of .59896544 new shares
of $.001 par value for each outstanding share of $.01 par value, rounded up to
the next whole share with respect to the aggregate number of newly converted
shares to be issued to each holder of record of $.01 par value shares, all such
newly converted shares to be restricted from sale, assignment or transfer prior
to August 31, 1991, the certificates for such shares to be legended accordingly,
and any purported sale, assignment or transfer prior to such date to be void and
of no force or effect.
5. The foregoing amendment to the Certificate of Incorporation of the
Corporation was adopted by vote of the Board of Directors and the written
consent of the holders of a majority of the outstanding capital stock of the
Corporation in accordance with Sections 228, 242 and 245 of the Delaware Law.
Prompt notice thereof has been given to those stockholders who have not so
consented in writing, in accordance with
-2-
Section 228 of the Delaware Law.
IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of July,
1990.
/s/ Richard F. Maradie
------------------------
Richard F. Maradie
President
Attest: /s/ Barbara Freides
---------------------
Barbara Freides
Assistant Secretary
-3-
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VIMRx PHARMACEUTICALS INC.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
VIMRx Pharmaceuticals Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies as follows:
1. The name of the Corporation is VIMRx Pharmaceuticals Inc. and the
name under which the Corporation originally was incorporated is Cellular
Immunology Corporation.
2. The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of Delaware on December 30, 1986.
3. The Amended and Restated Certificate of Incorporation of the
Corporation as heretofore amended or supplemented, is hereby further amended by
striking out "Article FOURTH" and substituting in lieu thereof a new "Article
FOURTH" changing the authorized capital stock of the Corporation to read as
follows:
"FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is Sixty Million (60,000,000), all of
which shall be common stock with a par value of $.001."
4. The amendment to the Amended and Restated Certificate of
Incorporation, herein certified has been duly adopted in the manner and by the
vote prescribed by Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to
be affixed hereto and this certificate to be signed by its President and
attested by its Secretary this 12th day of June, 1993.
VIMRx PHARMACEUTICALS INC.
By /s/ Richard I. Podell
-----------------------
Richard I. Podell
President
Attest:
By: /s/ Lowell S. Lifschultz
---------------------------
Lowell S. Lifschultz
Secretary
-2-
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
VIMRx PHARMACEUTICALS INC.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
VIMRx Pharmaceuticals Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies as follows:
1. The name of the Corporation is VIMRx Pharmaceuticals Inc. and the
name under which the Corporation originally was incorporated is "Cellular
Immunology Corporation."
2. The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of Delaware on December 30, 1986.
3. The Amended and Restated Certificate of Incorporation of the
Corporation as heretofore amended or supplemented (the "Certificate of
Incorporation"), is hereby further amended by striking out "Article IV" and
substituting in lieu thereof a new "Article IV" changing the authorized capital
stock of the Corporation to read as follows:
"FOURTH:
The authorized capitol stock of the Corporation shall consist of one
hundred twenty million (120,000,000) shares, consisting of one hundred twenty
million (120,000,000) shares of Common Stock, each having a par value of $.001
(the "Common Stock")."
4. The amendment to the Certificate of Incorporation herein certified
has been duly adopted in the manner and by the vote prescribed by Section 242 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to
be affixed hereto and this certificate to be signed by a duly authorized officer
of the Corporation and attested by its Secretary this 20th day of June, 1996.
VIMRx PHARMACEUTICALS INC.
By: /s/ Richard L. Dunning
----------------------
Richard L. Dunning
President and Chief Executive Officer
Attest:
By: /s/ Lowell S. Lifschultz
------------------------
Lowell S. Lifschultz
Secretary
-2-
CERTIFICATE OF CHANGE OF REGISTERED AGENT
and
REGISTERED OFFICE
VIMRx PHARMACEUTICALS INC., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
The present registered agent of the corporation is The Corporation
Trust Company and the present registered office of the corporation is in the
county of New Castle.
The Board of Directors of VIMRx PHARMACEUTICALS INC. adopted the
following resolution on the 6th of February, 1997.
RESOLVED, that the registered office of the Corporation in the State
of Delaware be and it hereby is changed to 2751 Centerville Road in
the City of Wilmington, County of New Castle and the authorization of
the present registered agent of this corporation be and the same is
hereby withdrawn, and VIMRx PHARMACEUTICAL INC. shall be and is hereby
constituted and appointed the registered agent of this corporation at
the above address of its registered office.
IN WITNESS WHEREOF, VIMRx PHARMACEUTICALS INC. has caused this statement to be
signed by Richard L. Dunning, its President this 10th day of March, 1997.
By: /s/ Richard L. Dunning
----------------------
Richard L. Dunning
President
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
VIMRx PHARMACEUTICALS INC.
----------------------------------------
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
----------------------------------------
VIMRx Pharmaceuticals Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies as follows:
1. The name of the Corporation is VIMRx Pharmaceuticals Inc. and the
name under which the Corporation originally was incorporated was "Cellular
Immunology Corporation."
2. The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of Delaware on December 13, 1986.
3. The Amended and Restated Certificate of Incorporation of the
Corporation, as heretofore amended or supplemented (the "Certificate of
Incorporation"), is hereby further amended by striking out "Article IV" and
substituting in lieu thereof a new "Article IV" changing the authorized capital
stock of the Corporation to read as follows:
"FOURTH:
A. The authorized capital stock of the Corporation shall consist of one
hundred twenty million one hundred fifty thousand (120,150,000) shares,
consisting of one hundred twenty million (120,000,000) shares of Common Stock,
each having a par value of $.001 (the "Common Stock"), and one hundred fifty
thousand (150,000) shares of Preferred Stock, each having a par value of $.001
(the "Preferred Stock").
B. The Board of Directors hereby creates and establishes and authorizes
the issuance of a first series of preferred stock, such series to consist of
150,000 shares of this Corporation's authorized and unissued Preferred Stock,
each share having a par value of $.001, and the Board of Directors hereby fixes
the designation of such series as "Series A Cumulative Convertible Preferred
Stock" (hereinafter referred to as the "Preferred Stock") and fixes the number
of shares constituting such series at 150,000, and hereby determines the powers,
preferences, rights, qualifications, limitations and restrictions of such series
as follows:
Section 1.
Dividends
(a) The holders of the Preferred Stock shall be entitled to receive
dividends thereon at the rate of 6% of the Liquidation Preference (as defined in
Section 2) per share per annum, (as
adjusted for any combinations, consolidations, stock distributions or stock
dividends with respect to such shares) as and when declared by the Board of
Directors, before any dividend or distribution shall be declared, set apart for,
or paid upon the Common Stock of the Corporation, which dividend shall be
payable in additional shares of Preferred Stock, each valued at their
Liquidation Preference. The dividends on the Preferred Stock shall be
cumulative, so that if the Corporation fails in any fiscal year to pay such
dividends on all of the issued and outstanding Preferred Stock, such deficiency
in the dividends shall be fully paid before any dividends or distributions shall
be paid on or set apart for the Common Stock. All dividends and distributions on
the Preferred Stock shall be made pro rata per share to all holders of Preferred
Stock; provided, however, that, notwithstanding the foregoing, until all
cumulative dividends on the Preferred Stock shall have been fully paid, all
dividends and distributions on the Preferred Stock shall be made ratably to the
holders thereof in proportion to the respective amounts that would be payable on
such shares if such dividend arrearages were paid in full. Such dividends shall
accrue annually on the anniversary of the Original Issuance Date (as defined in
Section 3(d)).
(b) For purposes of this Section 1, unless the context requires otherwise,
"distribution" shall mean the transfer of cash or property without
consideration, whether by way of dividend or otherwise, or the purchase or
redemption of shares of the Corporation (other than repurchases of Common Stock
held by employees or directors of, or consultants to, the Corporation upon
termination of their employment or services pursuant to agreements providing for
such repurchase and other than redemptions in liquidation or dissolution of the
Corporation) for cash or property, including any such transfer, purchase or
redemption by a subsidiary of the Corporation.
Section 2.
Liquidation Rights
(a) Treatment at Liquidation, Dissolution or Winding Up.
(i) Except as otherwise provided in Section 2(b) below, in the event
of any liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, the holders of Preferred Stock shall be
entitled to be paid first out of the assets of the Corporation available for
distribution to holders of the Corporation's capital stock of all classes,
before payment or distribution of any of such assets to the holders of any other
class of the corporation's capital stock, an amount equal to $1,000 per share of
Preferred Stock (the "Liquidation Preference,") which amount shall be subject to
equitable adjustment whenever there shall occur a stock dividend, stock split,
combination of shares, reclassification or other similar event affecting such
shares), and shall include any accrued but unpaid dividends.
(ii) After payment shall have been made in full to the holders of
Preferred Stock pursuant to Section 2(a)(i) hereof or funds necessary for such
payment shall have been set aside by the Corporation in trust for the account of
the holders of Preferred Stock to be available for such payment, the remaining
assets of the Corporation shall be distributed ratably to the holders of Common
Stock to the exclusion of the Preferred Stock.
(iii) If the assets of the Corporation shall be insufficient to permit
the payment in full to the holders of Preferred Stock of all amounts
distributable to them under Section 2(a)(i) hereof, then the entire assets of
the Corporation available for such distribution
2
shall be distributed ratably among the holders of Preferred Stock in proportion
to the full preferential amount each such holder is otherwise entitled to
receive.
(b) Treatment of Reorganizations, Consolidations, Mergers and Sales of
Assets. A consolidation or merger of the Corporation with or into another
unaffiliated corporation or a sale of all or substantially all of the assets of
the Corporation, shall not be regarded as a liquidation, dissolution or winding
up of the affairs of the Corporation for purposes of this Section 2, but shall
result in conversion of the Preferred Stock into Common Stock as set forth in
Section 3(c).
(c) Distributions Other Than Cash. The value of any distribution provided
for in this Section 2, or portion thereof, payable in property other than cash
shall be the fair value (as determined by the Board of Directors in good faith)
of such property at the time of such distribution.
Section 3.
Conversion
The holders of Preferred Stock shall have conversion rights (the
"Conversion Rights") and the Preferred Stock shall be subject to conversion, as
follows:
(a) Right to Convert; Conversion Price. Each share of Preferred Stock shall
be convertible, without the payment of any additional consideration by the
holder thereof and at the option of the holder thereof, at any time after
eighteen (18) months after the Original Issuance Date (as defined in Section
3(d) below), at the office of the Corporation or any transfer agent for the
Preferred Stock, into such whole number of fully paid and nonassessable shares
of Common Stock as is determined by dividing $1,000 by the Conversion Price,
determined as hereinafter provided, in effect at the time of conversion. The
Conversion Price at which shares of Common Stock shall be deliverable upon
conversion without the payment of any additional consideration by the holder of
Preferred Stock (the "Conversion Price") shall initially be the highest average
of closing bid prices per share of Common Stock on the principal market on which
such Common Stock trades for any sixty (60) consecutive trading day period
commencing with the Original Issuance Date and ending on the date which is
eighteen (18) months from such date, but in no event shall such Conversion Price
be less than $5.50 or greater than $7.50. Such initial Conversion Price shall be
subject to adjustment, in order to adjust the number of shares of Common Stock
into which Preferred Stock is convertible, as hereinafter provided. The right of
conversion with respect to any shares of Preferred Stock which the Corporation
redeems pursuant to Section 5(a) hereof shall terminate at the close of business
on the Redemption Date (as defined in Section 5 of this Certificate of
Designations), unless the Corporation shall default in the payment of the
redemption price for such shares of Preferred Stock, in which case such
termination shall occur upon payment of the redemption price of such shares.
(b) Mechanics of Conversion; Dividends; Fractional Shares. Before any
holder of Preferred Stock shall be entitled to convert the same into shares of
Common Stock, 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 to the Corporation
at such office that such holder elects to convert the same. At the time of each
conversion of shares of Preferred Stock, the Corporation shall also issue shares
of Common Stock in an amount equal to all dividends declared and unpaid on the
shares of Preferred Stock surrendered for conversion to the date upon which such
conversion is deemed to occur, valued at
3
the Conversion Price. In lieu of any fractional shares of Common Stock to which
the holder would otherwise be entitled, the Corporation shall pay cash equal to
such fraction multiplied by the then effective Conversion Price. The Corporation
shall, as soon as practicable thereafter, issue and deliver at such office to
such holder of Preferred Stock, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled as aforesaid,
together with cash in lieu of any fraction of a share. 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 Preferred Stock to be converted, and the
person or persons entitled to receive the shares of Common Stock issuable upon
conversion shall be treated for all purposes as the record holder or holders of
such shares of Common Stock on such date.
(c) Automatic Conversion.
(i) Each share of Preferred Stock shall automatically be converted
into shares of Common Stock at the then effective Conversion Price:
(1) on the date which is seven (7) years after the Original
Issuance Date; or
(2) immediately prior to the effective time of any merger, sale
of assets, reorganization or like event in which the Corporation is not the
surviving entity (if such event occurs prior to eighteen months from the
Original Issuance Date, then the Conversion Price shall be equal to the fair
value of the consideration to be received by the holder of a share of Common
Stock, as determined in good faith by the Corporation's Board of Directors, but
in no event greater than $7.50), or
(3) upon the written election of the holders of not less than a
majority in voting power of the then outstanding shares of Preferred Stock to
require such mandatory conversion.
(ii) Upon the occurrence of an event specified in Section 3(c)(i)
hereof, all shares of Preferred Stock shall be converted automatically without
any further action by any holder of such shares and whether or not the
certificate(s) representing such shares are surrendered to the Corporation or
the transfer agent for the Preferred Stock; provided, however, that the
Corporation shall not be obligated to issue a certificate or certificates
evidencing the shares of Common Stock issuable upon such conversion unless the
certificate(s) evidencing such shares of Preferred Stock being converted are
either delivered to the Corporation or the transfer agent for the Preferred
Stock, or the holder notifies the Corporation or such transfer agent that such
certificate or certificates have been lost, stolen, or destroyed and executes an
agreement satisfactory to the Corporation to indemnify the Corporation from any
loss incurred by it in connection therewith ("Indemnity Agreement"), except that
such holder shall not be required to provide any indemnity bond. Upon the
automatic conversion of Preferred Stock, each holder of Preferred Stock shall
surrender the certificate(s) representing such holder's shares of Preferred
Stock or the aforesaid Indemnity Agreement at the office of the Corporation or
of the transfer agent for the Preferred Stock. Thereupon, there shall be issued
and delivered to such holder, promptly at such office and in such holder's name
as shown on such surrendered certificate(s), a certificate or certificates for
the number of shares of Common Stock into which the shares of Preferred Stock
surrendered were convertible on the date on which such automatic conversion
occurred. No fractional shares of Common Stock shall be issued upon the
automatic conversion of Preferred Stock. In lieu of any fractional shares of
Common Stock to which the holder would
4
otherwise be entitled, the Corporation shall pay cash equal to such fraction
multiplied by the then effective Conversion Price.
(d) Adjustment for Stock Splits and Combinations. If the Corporation shall
at any time or from time to time after the date on which shares of the Preferred
Stock are first issued (the "Original Issuance Date") effect a subdivision of
the outstanding Common Stock, the Conversion Price in effect immediately before
that subdivision shall be proportionately decreased. If the Corporation shall at
any time or from time to time after the Original Issuance Date combine the
outstanding shares of Common Stock, the Conversion Price in effect immediately
before the combination shall be proportionately increased. Any adjustment under
this paragraph shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(e) Adjustment for Certain Dividends and Distributions.
(1) In the event the Corporation at any time or from time to time
after the Original Issuance Date shall make or issue, or fix a record date for
the determination of holders of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common Stock, then and in
each such event the Conversion Price then in effect shall be decreased as of the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Conversion
Price then in effect by a fraction:
(A) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and
(B) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the number of shares
of Common Stock issuable in payment of such dividend or distribution;
provided, however, if such record date shall have been fixed and such dividend
is not fully paid or such distribution is not fully made on the date fixed
therefor, the Conversion Price shall be recomputed accordingly as of the close
of business on such record date and thereafter the Conversion Price shall be
adjusted pursuant to this paragraph as of the time of actual payment of such
dividends or distributions.
(2) For the purposes of Section 3(e)(1) hereof, the total number of
shares of Common Stock deemed to be issued and outstanding shall include (i) all
shares of Common Stock issuable on conversion of all shares of Preferred Stock
outstanding and (ii) all shares of Common Stock issued and outstanding and
entitled to receive such dividend.
(f) Adjustments for Other Dividends and Distributions. In the event the
Corporation at any time or from time to time after the Original Issuance Date
shall make or issue, or fix a record date for the determination of holders of
Common Stock entitled to receive, a dividend or other distribution payable in
securities of the Corporation other than shares of Common Stock, including a
cash dividend, then and in each such event provision shall be made so that the
holders of Preferred Stock shall receive upon conversion thereof in addition to
the number of shares of Common Stock receivable thereupon, the amount of
securities of the Corporation
5
and/or cash that they would have received had their Preferred Stock been
converted into Common Stock on the date of such event and had they thereafter,
during the period from the date of such event to and including the conversion
date, retained such securities receivable by them as aforesaid during such
period, giving application to all adjustments called for herein during such
period.
(g) Adjustment for Reclassification, Exchange or Substitution. If the
Common Stock issuable upon the conversion of the Preferred Stock shall be
changed into the same or a different number of shares of any class or classes of
stock, whether by capital reorganization, reclassification, or otherwise (other
than a subdivision or combination of shares or stock dividend provided for
above, or a reorganization, merger, consolidation, or sale of assets provided
for in Section 3(c), then and in each such event the holder of each such share
of Preferred Stock shall have the right thereafter to convert such share into
the kind and amount of shares of stock and other securities and property
receivable upon such reorganization, reclassification, or other change, by
holders of the number of shares of Common Stock into which such shares of
Preferred Stock might have been converted immediately prior to such
reorganization, reclassification, or change, all subject to further adjustment
as provided herein.
(h) [INTENTIONALLY OMITTED]
(i) Adjustment of Conversion Price Upon Issuance of Additional Shares of
Common Stock.
(1) Subject always to Section 3(i)(5), in the event that at any time
or from time to time after the Original Issuance Date, through and including the
date which ends eighteen (18) months after the Original Issuance Date, but not
thereafter, the corporation shall issue any shares of Common Stock or securities
convertible into or exercisable to purchase shares of Common Stock ("Additional
Shares of Common Stock") excluding shares issued upon a stock split or
combination as provided in Section 3(d) or as a dividend or distribution as
provided in Sections 3(e) or (f)), without consideration or for a consideration
per share less than the Conversion Price in effect on the date of, and
immediately prior to, the issuance or deemed issuance of such Additional Shares
of Common Stock, (which shall include the assumed conversion of all convertible
securities and the assumed exercise of all convertible securities or rights to
purchase shares of Common Stock in accordance with the terms of such convertible
securities or rights to purchase Common Stock), then and in such event, the
applicable Conversion Price then in effect shall be reduced, concurrently with
such issue, to a price (calculated to the nearest cent) determined by
multiplying such Conversion Price by a fraction:
(A) the numerator of which shall be (x) the number of shares of
Common Stock outstanding immediately prior to such issue plus (y) the number of
shares of Common Stock which the aggregate consideration received or deemed to
have been received by the corporation for the total number of Additional Shares
of Common Stock so issued would purchase at the Conversion Price in effect on
the date of, and immediately prior to, the issuance or deemed issuance of such
Additional Shares of Common Stock, and
(B) 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 or deemed to be issued.
6
(2) For the purposes of Section 3(i) (1) hereof, all shares of Common
Stock issuable upon conversion of shares of Preferred Stock outstanding
immediately prior to any issue of Additional Shares of Common Stock, or any
event with respect to which Additional Shares of Common Stock shall be deemed to
be issued, shall be deemed to be outstanding; and immediately after any
Additional Shares of Common Stock are deemed issued pursuant to Section 3(i)(l)
such Additional Shares of Common Stock shall be deemed to be outstanding.
(3) Notwithstanding anything to the contrary contained herein, the
applicable Conversion Price in effect at the time Additional Shares of Common
Stock are issued or deemed to be issued shall not be reduced pursuant to Section
3(i)(1) hereof at such time if the amount of such reduction would be an amount
less than $. 01, but any such amount shall be carried forward and reduction with
respect thereto made at the time of and together with any subsequent reduction
which, together with such amount and any other amount or amounts so carried
forward, shall aggregate $.01 or more.
(4) Determination of Consideration. For purposes of this Section 3(i)
, the consideration received by the Corporation for the issue of any Additional
Shares of Common Stock shall be computed as follows:
(i) Cash and Property: Such consideration shall:
(A) insofar as it consists of cash, be computed at the
aggregate amounts of cash received by the Corporation, excluding amounts
paid or payable for accrued interest or accrued dividends;
(B) 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
(C) 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 (A) and (B)
above, as determined in good faith by the Board of Directors.
(ii) 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 Section 3(i)(1) , relating to options, warrants
or rights to purchase Common Stock, and convertible securities, shall be
determined by dividing (W) 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 (X) 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. (5)Notwithstanding any other provision
of this Section 3(i), there shall be no deemed issuance of Additional Shares
7
of Common Stock upon (A) issuance of any shares of Preferred Stock as a dividend
on the Preferred Stock, (B) conversion of any Preferred Stock, (C) exercise of
any options or warrants issued and outstanding on the Original Issuance Date,
(D) grant or exercise of any options to purchase Common Stock pursuant to the
Corporation's Stock Option Plan as in effect on the Original Issuance Date or
any subsequent amendment thereof which is approved by the Corporation's
stockholders pursuant to Securities and Exchange Commission regulations, or (E)
the sale for cash of no more than 3,333,334 shares of Common Stock for aggregate
gross proceeds of no more than $10,000,000, at a gross per-share price of no
less than $3.00. In the event that the gross per-share sale price of a share of
Common Stock under Section 3(i)(5)(E) shall be less than $3.00, then the
difference between $3.00 and the actual gross per- share sale price shall be
subtracted from the Conversion Price utilized in the calculation set forth in
Section 3(i)(1)(A)(y).
(j) Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Conversion Price pursuant to this Section 3, the
Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each affected
holder of 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 affected holder of Preferred Stock, furnish or cause to be furnished
to such holder a like certificate setting forth (i) such adjustments and
readjustments, (ii) the Conversion Price at the time in effect, and (iii) 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 each share of 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 which is the same as cash dividends paid in previous
quarters) or other distribution, the Corporation shall mail to each holder of
Preferred Stock at least ten (10) days prior to such record date a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend or distribution.
(l) Common Stock Reserved. The Corporation shall reserve and keep
available out of its authorized but unissued Common Stock such number of shares
of Common Stock as shall from time to time be sufficient to effect the
conversion of all Preferred Stock.
(m) Certain Taxes. The Corporation shall pay any issue or transfer taxes
payable in connection with the conversion of any shares of Preferred Stock;
provided, however, that the Corporation shall not be required to pay any tax
that may be payable in respect of any transfer to a name other than that of the
holder of such Preferred Stock.
Section 4.
Voting Rights
Except as otherwise required by law or by Section 7, the holders of
Preferred Stock shall not have the right to vote on any matter submitted to a
vote of the stockholders of the Corporation. With respect to all questions as to
which, under law, stockholders are entitled to vote by classes, the holders of
Preferred Stock shall vote together as a single class separately from the
holders of Common Stock.
8
Section 5.
No Reissuance Preferred Stock
No share or shares of Preferred Stock acquired by the Corporation by reason
of redemption, purchase, conversion or otherwise shall be reissued, and all such
shares shall be canceled, retired and eliminated from the shares which the
Corporation shall be authorized to issue.
Section 6.
Protective Covenant
The Corporation shall not, without the affirmative vote or written consent
of the holders of a majority of the then issued and outstanding shares of
Preferred Stock, amend its Certificate of Incorporation to provide for the
creation or issuance of any class or series of capital stock which shall rank
pari passu or senior to the Preferred Stock in priority to receive the
liquidation preference on the Preferred Stock."
4. The amendment to the Certificate of Incorporation herein certified has
been duly adopted in the manner and by the vote prescribed by Section 242 of the
General Corporation Law of the State of Delaware.
9
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Richard L. Dunning, its President, and attested by Lowell S.
Lifschultz, its Secretary, as of this 16th day of December, 1997.
VIMRx PHARMACEUTICALS INC.
By: /s/ Richard L. Dunning
-------------------------------------------
Richard L. Dunning
President and Chief Executive Officer
Attest:
By: /s/ Lowell S. Lifschultz
--------------------------
Lowell S. Lifschultz
Secretary
10
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
VIMRX PHARMACEUTICALS INC.
============================================
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
==============================================
VIMRX Pharmaceuticals Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies as follows:
1. The name of the Corporation is VIMRX Pharmaceuticals Inc. and the
name under which the Corporation originally was incorporated was "Cellular
Immunology Corporation."
2. The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of Delaware on December 13, 1986.
3. The Amended and Restated Certificate of Incorporation of the
Corporation, as heretofore amended or supplemented (the "Certificate of
Incorporation"), is hereby further amended by striking out "Article I" and
substituting in lieu thereof a new "Article I" changing the name of the
Corporation to read as follows:
"FIRST: The name of the Corporation is:
Nexell Therapeutics Inc."
4. The Amended and Restated Certificate of Incorporation of the
Corporation, as heretofore amended or supplemented (the "Certificate of
Incorporation"), is hereby further amended by striking out "Article IV" and
substituting in lieu thereof a new "Article IV" changing the authorized capital
stock of the Corporation to read as follows:
"FOURTH
A. The authorized capital stock of the Corporation shall consist of one
hundred sixty-one million, one hundred fifty thousand (161,150,000) shares,
consisting of one hundred sixty million (160,000,000) shares of Common Stock,
each having a par value of $.001 (the "Common Stock"), and one million, one
hundred fifty thousand (1,150,000) shares of Preferred Stock, each having a par
value of $.001 (the "Preferred Stock").
B. The Preferred Stock may be issued from time to time in one or more
series of any number of shares, provided that the aggregate number of shares
issued and not canceled of any and all such series shall not exceed the total
number of shares of Preferred Stock hereinabove authorized. Each series of
Preferred Stock shall be distinctively designated by letter
or descriptive words. All series of Preferred Stock shall rank equally and be
identical in all respects except as provided by this Article FOURTH or in a
resolution of the Board of Directors providing for the issuance of any series of
Preferred Stock.
C. Authority is hereby expressly vested in the Board of Directors from
time to time to issue the Preferred Stock as Preferred Stock of any series and
in connection with the creation of each such series to fix by the resolution or
resolutions providing for the issue of shares thereof the designations,
preferences, limitations and relative participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, to the full
extent now or hereafter permitted by this Certificate of Incorporation and the
laws of the State of Delaware, including, without limitation:
(1) the distinctive designation of such series and the number of
shares which shall constitute such series, which number may be increased (but
not above the total number of authorized shares of the Preferred Stock) or
decreased (but not below the number of shares thereof then outstanding) from
time to time by a resolution or resolutions of the Board of Directors, all
subject to the conditions or restrictions set forth in the resolution or
resolutions adopted by the Board of Directors providing for the issuance of any
series of Preferred Stock;
(2) the dividend rate payable on shares of such series, the
conditions and dates upon which such dividends shall be payable, the preferences
or relation which such dividend shall bear to the dividends payable on any other
class or classes or any other series of capital stock (except as otherwise
expressly provided in this Certificate of Incorporation), and whether such
dividends shall be cumulative or non-cumulative and, if cumulative, the date or
dates from which dividends shall accumulate;
(3) whether the shares of such series shall be subject to redemption
by the Corporation and, if made subject to redemption, the price or prices at
which, and the terms and conditions on which, the shares of such series may be
redeemed by the Corporation;
(4) the amount or amounts payable upon the shares of such series in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation and the preferences or relation which such payments shall
bear to such payments made on any other class or classes or any other series of
capital stock (except as otherwise expressly provided in this Certificate of
Incorporation);
(5) whether or not the shares of such series shall be made
convertible into, or exchangeable for, shares of any other class or classes of
capital stock of the Corporation, or any series thereof, or for any other series
of the same class of capital stock of the Corporation or for debt of the
Corporation evidenced by an instrument of indebtedness, and, if so convertible
or exchangeable, the conversion price or prices, or the rate or rates of
exchange, and the adjustments thereof, if any, at which such conversion or
exchange may be made, and any other terms and conditions of such conversion or
exchange;
(6) whether the holders of shares of such series shall have any right
or power to vote or to receive notice of any meeting of stockholders, either
generally or as a condition to specified corporate action; and
2
(7) any other preferences and relative, participating, optional or
other special rights and qualifications, limitations or restrictions thereof as
may be permitted by the laws of the State of Delaware and as shall not be
inconsistent with this Article FOURTH.
D. Shares of Preferred Stock which have been issued and reacquired in any
manner by the Corporation (excluding, until the Corporation elects to retire
them, shares which are held as treasury shares, but including shares redeemed,
shares purchased and retired and shares which have been converted into shares of
Common Stock) shall have the status of authorized but unissued shares of
Preferred Stock and may be reissued as a part of the series of which they were
originally a part or may be reissued as a part of another series of Preferred
Stock, all subject to the conditions or restrictions on issuance set forth in
the resolution or resolutions adopted by the Board of Directors providing for
the issuance of any series of Preferred Stock.
E. Except as otherwise provided by the resolution or resolutions
providing for the issuance of any series of Preferred Stock, or in subsection H
of this Article FOURTH, after payment shall have been made to the holders of
Preferred Stock of the full amount of dividends to which they shall be entitled
pursuant to the resolution or resolutions providing for the issuance of any
series of Preferred Stock, the holders of Common Stock shall be entitled, to the
exclusion of the holders of Preferred Stock of any and all series, to receive
such dividends as from time to time may be declared by the Board of Directors.
F. Except as otherwise provided by the resolution or resolutions
providing for the issuance of any series of Preferred Stock, in the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment shall have been made to the holders of Preferred
Stock of the full amounts to which they shall be entitled pursuant to the
resolution or resolutions providing for the issuance of any series of Preferred
Stock, the holders of Common Stock shall be entitled, to the exclusion of the
holders of Preferred Stock of any and all series, to share, ratably according to
the number of shares of Common Stock held by them, in all remaining assets of
the Corporation available for distribution to its stockholders.
G. The holders of Preferred Stock shall not have any preemptive rights
except to the extent such rights shall be specifically provided for in the
resolution or resolutions providing for the issuance thereof adopted by the
Board of Directors.
H. The Board of Directors hereby creates and establishes and authorizes
the issuance of a first series of preferred stock, such series to consist of
150,000 shares of this Corporation's authorized and unissued Preferred Stock,
each share having a par value of $.001, and the Board of Directors hereby fixes
the designation of such series as "Series A Cumulative Convertible Preferred
Stock" (hereinafter referred to as the "Series A Preferred Stock") and fixes the
number of shares constituting such series at 150,000, and hereby determines the
powers, preferences, rights, qualifications, limitations and restrictions of
such series as follows:
SECTION 1.
DIVIDENDS
(a) The holders of the Series A Preferred Stock shall be entitled to
receive dividends thereon at the rate of 6% of the Liquidation Preference (as
defined in Section 2) per share per annum, (as adjusted for any combinations,
consolidations, stock distributions or stock dividends with respect to such
shares) as and when declared by the Board of Directors, before any dividend
3
or distribution shall be declared, set apart for, or paid upon the Common Stock
of the Corporation, which dividend shall be payable in additional shares of
Series A Preferred Stock, each valued at their Liquidation Preference. The
dividends on the Series A Preferred Stock shall be cumulative, so that if the
Corporation fails in any fiscal year to pay such dividends on all of the issued
and outstanding Series A Preferred Stock, such deficiency in the dividends shall
be fully paid before any dividends or distributions shall be paid on or set
apart for the Common Stock. All dividends and distributions on the Series A
Preferred Stock shall be made pro rata per share to all holders of Series A
Preferred Stock; provided, however, that, notwithstanding the foregoing, until
all cumulative dividends on the Series A Preferred Stock shall have been fully
paid, all dividends and distributions on the Series A Preferred Stock shall be
made ratably to the holders thereof in proportion to the respective amounts that
would be payable on such shares if such dividend arrearages were paid in full.
Such dividends shall accrue annually on the anniversary of the Original Issuance
Date (as defined in Section 3(d)).
(b) For purposes of this Section 1, unless the context requires otherwise,
"distribution" shall mean the transfer of cash or property without
consideration, whether by way of dividend or otherwise, or the purchase or
redemption of shares of the Corporation (other than repurchases of Common Stock
held by employees or directors of, or consultants to, the Corporation upon
termination of their employment or services pursuant to agreements providing for
such repurchase and other than redemptions in liquidation or dissolution of the
Corporation) for cash or property, including any such transfer, purchase or
redemption by a subsidiary of the Corporation.
SECTION 2.
LIQUIDATION RIGHTS
(a) Treatment at Liquidation, Dissolution or Winding Up.
(i) Except as otherwise provided in Section 2(b) below, in the event
of any liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, the holders of Series A Preferred Stock shall
be entitled to be paid first out of the assets of the Corporation available for
distribution to holders of the Corporation's capital stock of all classes,
before payment or distribution of any of such assets to the holders of any other
class of the corporation's capital stock, an amount equal to $1,000 per share of
Series A Preferred Stock (the "Liquidation Preference"), which amount shall be
subject to equitable adjustment whenever there shall occur a stock dividend,
stock split, combination of shares, reclassification or other similar event
affecting such shares), and shall include any accrued but unpaid dividends.
(ii) After payment shall have been made in full to the holders of
Series A Preferred Stock pursuant to Section 2(a)(i) hereof or funds necessary
for such payment shall have been set aside by the Corporation in trust for the
account of the holders of Series A Preferred Stock to be available for such
payment, the remaining assets of the Corporation shall be distributed ratably to
the holders of Common Stock to the exclusion of the Series A Preferred Stock.
(iii) If the assets of the Corporation shall be insufficient to
permit the payment in full to the holders of Series A Preferred Stock of all
amounts distributable to them under Section 2(a)(i) hereof, then the entire
assets of the Corporation available for such
4
distribution shall be distributed ratably among the holders of Series A
Preferred Stock in proportion to the full preferential amount each such holder
is otherwise entitled to receive.
(b) Treatment of Reorganizations, Consolidations, Mergers and Sales of
Assets. A consolidation or merger of the Corporation with or into another
unaffiliated corporation or a sale of all or substantially all of the assets of
the Corporation, shall not be regarded as a liquidation, dissolution or winding
up of the affairs of the Corporation for purposes of this Section 2, but shall
result in conversion of the Series A Preferred Stock into Common Stock as set
forth in Section 3(c).
(c) Distributions Other Than Cash. The value of any distribution provided
for in this Section 2, or portion thereof, payable in property other than cash
shall be the fair value (as determined by the Board of Directors in good faith)
of such property at the time of such distribution.
SECTION 3.
CONVERSION
The holders of Series A Preferred Stock shall have conversion rights (the
"Conversion Rights") and the Series A Preferred Stock shall be subject to
conversion, as follows:
(a) Right to Convert; Conversion Price. Each share of Series A Preferred
Stock shall be convertible, without the payment of any additional consideration
by the holder thereof and at the option of the holder thereof, at any time after
June 17, 1999, at the office of the Corporation or any transfer agent for the
Series A Preferred Stock, into such whole number of fully paid and nonassessable
shares of Common Stock as is determined by dividing $1,000 by the Conversion
Price, determined as hereinafter provided, in effect at the time of conversion.
The Conversion Price at which shares of Common Stock shall be deliverable upon
conversion without the payment of any additional consideration by the holder of
Series A Preferred Stock (the "Conversion Price") shall initially be $2.75. Such
initial Conversion Price shall be subject to adjustment, in order to adjust the
number of shares of Common Stock into which Series A Preferred Stock is
convertible, as hereinafter provided. The right of conversion with respect to
any shares of Series A Preferred Stock which the Corporation redeems pursuant to
Section 5(a) hereof shall terminate at the close of business on the Redemption
Date (as defined in Section 5 of this Certificate of Designations), unless the
Corporation shall default in the payment of the redemption price for such shares
of Series A Preferred Stock, in which case such termination shall occur upon
payment of the redemption price of such shares.
(b) Mechanics of Conversion; Dividends; Fractional Shares. Before any
holder of Series A Preferred Stock shall be entitled to convert the same into
shares of Common Stock, 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 A Preferred Stock, and shall give written notice
to the Corporation at such office that such holder elects to convert the same.
At the time of each conversion of shares of Series A Preferred Stock, the
Corporation shall also issue shares of Common Stock in an amount equal to all
dividends declared and unpaid on the shares of Series A Preferred Stock
surrendered for conversion to the date upon which such conversion is deemed to
occur, valued at the Conversion Price. In lieu of any fractional shares of
Common Stock to which the holder would otherwise be entitled, the Corporation
shall pay cash equal to such fraction multiplied by the then effective
Conversion Price. The Corporation shall, as soon as practicable
5
thereafter, issue and deliver at such office to such holder of Series A
Preferred Stock, a certificate or certificates for the number of shares of
Common Stock to which such holder shall be entitled as aforesaid, together with
cash in lieu of any fraction of a share. 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 A Preferred Stock to be converted, and the
person or persons entitled to receive the shares of Common Stock issuable upon
conversion shall be treated for all purposes as the record holder or holders of
such shares of Common Stock on such date.
(c) Automatic Conversion.
(i) Each share of Series A Preferred Stock shall automatically be
converted into shares of Common Stock at the then effective Conversion Price on
the earliest of:
(1) December 17, 2004; or
(2) immediately prior to the effective time of any merger, sale
of assets, reorganization or like event in which the Corporation is not the
surviving entity (if such event occurs prior to June 17, 1999, then the
Conversion Price shall be equal to the fair value of the consideration to be
received by the holder of a share of Common Stock, as determined in good faith
by the Corporation's Board of Directors, but in no event greater than $2.75), or
(3) upon the written election of the holders of not less than a
majority in voting power of the then outstanding shares of Series A Preferred
Stock to require such mandatory conversion.
(ii) Upon the occurrence of an event specified in Section 3(c)(i)
hereof, all shares of Series A Preferred Stock shall be converted automatically
without any further action by any holder of such shares and whether or not the
certificate(s) representing such shares are surrendered to the Corporation or
the transfer agent for the Series A Preferred Stock; provided, however, that the
Corporation shall not be obligated to issue a certificate or certificates
evidencing the shares of Common Stock issuable upon such conversion unless the
certificate(s) evidencing such shares of Series A Preferred Stock being
converted are either delivered to the Corporation or the transfer agent for the
Series A Preferred Stock, or the holder notifies the Corporation or such
transfer agent that such certificate or certificates have been lost, stolen, or
destroyed and executes an agreement satisfactory to the Corporation to indemnify
the Corporation from any loss incurred by it in connection therewith ("Indemnity
Agreement"), except that such holder shall not be required to provide any
indemnity bond. Upon the automatic conversion of Series A Preferred Stock, each
holder of Series A Preferred Stock shall surrender the certificate(s)
representing such holder's shares of Series A Preferred Stock or the aforesaid
Indemnity Agreement at the office of the Corporation or of the transfer agent
for the Series A Preferred Stock. Thereupon, there shall be issued and delivered
to such holder, promptly at such office and in such holder's name as shown on
such surrendered certificate(s), a certificate or certificates for the number of
shares of Common Stock into which the shares of Series A Preferred Stock
surrendered were convertible on the date on which such automatic conversion
occurred. No fractional shares of Common Stock shall be issued upon the
automatic conversion of Series A Preferred Stock. In lieu of any fractional
shares of Common Stock to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the then
effective Conversion Price.
6
(d) Adjustment for Stock Splits and Combinations. If the Corporation shall
at any time or from time to time after December 17, 1997 (the "Original Issuance
Date") effect a subdivision of the outstanding Common Stock, the Conversion
Price in effect immediately before that subdivision shall be proportionately
decreased. If the Corporation shall at any time or from time to time after the
Original Issuance Date combine the outstanding shares of Common Stock, the
Conversion Price in effect immediately before the combination shall be
proportionately increased. Any adjustment under this paragraph shall become
effective at the close of business on the date the subdivision or combination
becomes effective.
(e) Adjustment for Certain Dividends and Distributions.
(1) In the event the Corporation at any time or from time to time
after the Original Issuance Date shall make or issue, or fix a record date for
the determination of holders of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common Stock, then and in
each such event the Conversion Price then in effect shall be decreased as of the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Conversion
Price then in effect by a fraction:
(A) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and
(B) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date plus the number
of shares of Common Stock issuable in payment of such dividend or
distribution;
provided, however, if such record date shall have been fixed and such dividend
is not fully paid or such distribution is not fully made on the date fixed
therefor, the Conversion Price shall be recomputed accordingly as of the close
of business on such record date and thereafter the Conversion Price shall be
adjusted pursuant to this paragraph as of the time of actual payment of such
dividends or distributions.
(2) For the purposes of Section 3(e)(1) hereof, the total number of
shares of Common Stock deemed to be issued and outstanding shall include (i) all
shares of Common Stock issuable on conversion of all shares of Series A
Preferred Stock outstanding and (ii) all shares of Common Stock issued and
outstanding and entitled to receive such dividend.
(f) Adjustments for Other Dividends and Distributions. In the event the
Corporation at any time or from time to time after the Original Issuance Date
shall make or issue, or fix a record date for the determination of holders of
Common Stock entitled to receive, a dividend or other distribution payable in
securities of the Corporation other than shares of Common Stock, including a
cash dividend, then and in each such event provision shall be made so that the
holders of Series A Preferred Stock shall receive upon conversion thereof in
addition to the number of shares of Common Stock receivable thereupon, the
amount of securities of the Corporation and/or cash that they would have
received had their Series A Preferred Stock been converted into Common Stock on
the date of such event and had they thereafter, during the period from the date
of such event to and including the conversion date, retained such securities
7
receivable by them as aforesaid during such period, giving application to all
adjustments called for herein during such period.
(g) Adjustment for Reclassification, Exchange or Substitution. If the
Common Stock issuable upon the conversion of the Series A Preferred Stock shall
be changed into the same or a different number of shares of any class or classes
of stock, whether by capital reorganization, reclassification, or otherwise
(other than a subdivision or combination of shares or stock dividend provided
for above, or a reorganization, merger, consolidation, or sale of assets
provided for in Section 3(c), then and in each such event the holder of each
such share of Series A Preferred Stock shall have the right thereafter to
convert such share into the kind and amount of shares of stock and other
securities and property receivable upon such reorganization, reclassification,
or other change, by holders of the number of shares of Common Stock into which
such shares of Series A Preferred Stock might have been converted immediately
prior to such reorganization, reclassification, or change, all subject to
further adjustment as provided herein.
(h) Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Conversion Price pursuant to this Section 3, the
Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each affected
holder of Series A 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 affected holder of Series A Preferred Stock, furnish or cause to be
furnished to such holder a like certificate setting forth (i) such adjustments
and readjustments, (ii) the Conversion Price at the time in effect, and (iii)
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 each share of Series
A Preferred Stock.
(i) 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 which is the same as cash dividends paid in previous
quarters) or other distribution, the Corporation shall mail to each holder of
Series A Preferred Stock at least ten (10) days prior to such record date a
notice specifying the date on which any such record is to be taken for the
purpose of such dividend or distribution.
(j) Common Stock Reserved. The Corporation shall reserve and keep
available out of its authorized but unissued Common Stock such number of shares
of Common Stock as shall from time to time be sufficient to effect the
conversion of all Series A Preferred Stock.
(k) Certain Taxes. The Corporation shall pay any issue or transfer taxes
payable in connection with the conversion of any shares of Series A Preferred
Stock; provided, however, that the Corporation shall not be required to pay any
tax that may be payable in respect of any transfer to a name other than that of
the holder of such Series A Preferred Stock.
8
SECTION 4.
VOTING RIGHTS
Except as otherwise required by law or by Section 7, the holders of Series
A Preferred Stock shall not have the right to vote on any matter submitted to a
vote of the stockholders of the Corporation. With respect to all questions as to
which, under law, stockholders are entitled to vote by classes, the holders of
Series A Preferred Stock shall vote together as a single class separately from
the holders of Common Stock.
SECTION 5.
NO REISSUANCE OF SERIES A PREFERRED STOCK
No share or shares of Series A Preferred Stock acquired by the Corporation
by reason of redemption, purchase, conversion or otherwise shall be reissued,
and all such shares shall be canceled, retired and eliminated from the shares
which the Corporation shall be authorized to issue.
SECTION 6.
PROTECTIVE COVENANT
The Corporation shall not, without the affirmative vote or written consent
of the holders of a majority of the then issued and outstanding shares of Series
A Preferred Stock, amend its Certificate of Incorporation or adopt a resolution
of the Board of Directors to provide for the creation or issuance of any class
or series of capital stock which shall rank pari passu or senior to the Series A
Preferred Stock in priority to receive the liquidation preference on the Series
A Preferred Stock."
5. The amendment to the Certificate of Incorporation herein
certified has been duly adopted in the manner and by the vote prescribed by
Section 242 of the General Corporation Law of the State of Delaware.
9
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this certificate signed by its President and Chief Executive
Officer and attested by its Secretary this 25th day of May, 1999.
VIMRX PHARMACEUTICALS INC.
By: /s/ Richard L. Dunning
----------------------------------------
Richard L. Dunning
President and Chief Executive Officer
Attest:
By: /s/ Lowell S. Lifschultz
------------------------------------
Lowell S. Lifschultz
Secretary
10