Attached files
file | filename |
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EX-4.7 - EX-4.7 - ENDOCYTE INC | f56327a2exv4w7.htm |
EX-3.5 - EX-3.5 - ENDOCYTE INC | f56327a2exv3w5.htm |
EX-3.3 - EX-3.3 - ENDOCYTE INC | f56327a2exv3w3.htm |
EX-3.1 - EX-3.1 - ENDOCYTE INC | f56327a2exv3w1.htm |
EX-23.1 - EX-23.1 - ENDOCYTE INC | f56327a2exv23w1.htm |
EX-10.18 - EX-10.18 - ENDOCYTE INC | f56327a2exv10w18.htm |
EX-10.17 - EX-10.17 - ENDOCYTE INC | f56327a2exv10w17.htm |
EX-10.19 - EX-10.19 - ENDOCYTE INC | f56327a2exv10w19.htm |
S-1/A - S-1/A - ENDOCYTE INC | f56327a2sv1za.htm |
Exhibit 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
ENDOCYTE, INC.
Endocyte, Inc., a corporation organized and existing under the laws of the State of Delaware,
certifies that:
A. | The name of the Corporation is Endocyte, Inc. The corporations original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on December 11, 2001. The original Certificate of Incorporation has been subsequently amended at various times, most recently on February 11, 2010. | ||
B. | This Amended and Restated Certificate of Incorporation was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, and restates, integrates and further amends the provisions of the corporations most recent prior Certificate of Incorporation. | ||
C. | The text of the corporations most recent prior Certificate of Incorporation is amended and restated to read as set forth in Schedule I attached hereto. |
IN WITNESS WHEREOF, Endocyte, Inc. has caused this Amended and Restated Certificate of
Incorporation to be signed by P. Ron Ellis, a duly authorized officer of the corporation, on
-________,__,2010.
President and Chief Executive Officer |
Schedule I
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ENDOCYTE, INC.
CERTIFICATE OF INCORPORATION
OF
ENDOCYTE, INC.
ONE The name of this corporation is Endocyte, Inc.
TWO The address of the corporations registered office in the State of Delaware is 1209 Orange
Street, City of Wilmington, County of New Castle, 19808. The name of the registered agent at such
address is The Corporation Trust Company.
THREE The purpose of the corporation is to engage in any lawful act or activity for which a
corporation may be organized under the Delaware General Corporation Law.
FOUR Immediately upon the filing of this Amended and Restated Certificate of Incorporation,
(i) each [_____ (___)] outstanding shares of the corporations Common Stock will be combined and
converted into one (1) fully paid and nonassessable share of Common Stock, (ii) each [_____ (__)]
outstanding shares of the corporations Series A-1 Preferred Stock will be combined and converted
into one (1) fully paid and nonassessable share of Series A-1 Preferred Stock, (iii) each [____
(__)] outstanding shares of the corporations Series A-2 Preferred Stock will be combined and
converted into one (1) fully paid and nonassessable share of Series A-2 Preferred Stock, and (iv)
each [___(__)] outstanding shares of the corporations Series B Preferred Stock will be combined
and converted into one (1) fully paid and nonassessable share of Series B Preferred Stock (v) each
[_____ (__)] outstanding shares of the corporations Series C-1 Preferred Stock will be combined
and converted into one (1) fully paid and nonassessable share of Series C-1 Preferred Stock, (vi)
each [_____ (__)] outstanding shares of the corporations Series C-2 Preferred Stock will be
combined and converted into one (1) fully paid and nonassessable share of Series C-2 Preferred
Stock, and (vii) each [_____ (__)] outstanding shares of the corporations Series C-3 Preferred
Stock will be combined and converted into one (1) fully paid and nonassessable share of Series C-3
Preferred Stock, (the occurrence of all combinations and conversions set forth in (i)-(vii), the
Reverse Split). No fractional shares shall be issued upon the Reverse Split. In lieu
of the issuance of fractional shares and in accordance with Section 155 of the General Corporation
Law, the corporation shall pay in cash the fair value of such fraction of a share as of the
consummation of the Reverse Split as determined by the corporations Board of Directors. Each
outstanding stock certificate of the corporation, which represented one or more shares of the
corporations Common Stock, Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series B
Preferred Stock, Series C-1 Preferred Stock, Series C-2 Preferred Stock or Series C-3 Preferred
Stock, as the case may be, shall immediately after the Reverse Split represent that number of
shares of Common Stock, Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series B Preferred
Stock, Series C-1 Preferred Stock, Series C-2 Preferred Stock and Series C-3 Preferred Stock, as
applicable, resulting from the Reverse Split (such adjusted shares, the Reverse Split
Shares).
The corporation shall, upon the request of a record holder of a certificate representing
shares of the Common Stock, Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series B
Preferred
Stock, Series C-1 Preferred Stock, Series C-2 Preferred Stock or Series C-3 Preferred Stock of
the corporation issued and outstanding immediately before the date hereof, issue and deliver to
such holder in exchange for such certificate a new certificate or certificates representing the
Reverse Split Shares.
All further references to share and per share amounts set forth in this Amended and Restated
Certificate of Incorporation which would be affected by the Reverse Split have been appropriately
adjusted to reflect the Reverse Split.
This corporation is authorized to issue two classes of stock to be designated, respectively,
Common Stock and Preferred Stock. The total number of shares which the corporation is
authorized to issue is [59,934,000] shares, [36,600,000] shares of which shall be Common Stock (the
Common Stock) with a par value of [$0.001] and [23,334,000] shares of which shall be
Preferred Stock (the Preferred Stock) with a par value of [$0.001].
FIVE The corporations Board of Directors (the Board) shall consist of ten (10)
directors. The directors shall be elected as provided in Section 4(c) of Article Six hereof.
SIX The rights, preferences, privileges, restrictions and other matters relating to the
[23,334,000] shares of Preferred Stock are as follows
1. Designation. [1,433,000] shares of Preferred Stock are hereby designated Series
A-1 Preferred Stock (Series A-1 Preferred), [462,000] are hereby designated Series A-2
Preferred Stock (Series A-2 Preferred), [1,789,000] are hereby designated Series B
Preferred Stock (Series B Preferred), [3,700,000] are hereby designated Series C-1
Preferred Stock (Series C-1 Preferred), [5,350,000] are hereby designated Series C-2
Preferred Stock (Series C-2 Preferred), and [10,600,000] are hereby designated Series C-3
Preferred Stock (Series C-3 Preferred)
2. Dividends. The holders of the Series A-1 Preferred, Series A-2 Preferred, Series B
Preferred, Series C-1 Preferred, Series C-2 Preferred and Series C-3 Preferred shall be entitled,
when and if declared by the Board, to dividends out of the corporations assets legally available
therefor at the rate per annum of [$0.08] per share of Series A-1 Preferred, [$0.24] per share of
Series A-2 Preferred, [$0.34] per share of Series B Preferred, [$0.34] per share of Series C-1
Preferred, [$0.34] per share of Series C-2 Preferred and [$0.34] per share of Series C-3 Preferred
(as adjusted for stock splits, stock dividends, recapitalizations and the like occurring after the
Filing Date). Dividends on the Preferred Stock shall be payable in preference and prior to any
payment of any dividend on the Common Stock of the corporation. Thereafter, the holders of
Preferred Stock and Common Stock shall be entitled, when and if declared by the Board of Directors,
to dividends out of the corporations assets legally available therefor; provided, however, that no
such dividends may be declared or paid on any shares of Common Stock or Preferred Stock unless at
the same time an equivalent dividend is declared and paid on all outstanding shares of Common Stock
and Preferred Stock; and provided further that the dividend on any series of any Preferred Stock
shall be payable at the same rate per share as would be payable on the shares of Common Stock or
other securities into which such series of Preferred Stock is convertible immediately prior to the
record date for such dividend. The right to such dividends on shares of the Common Stock or
Preferred Stock shall not
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be cumulative, and no right shall accrue to holders of Common Stock or Preferred Stock by
reason of the fact that dividends on said shares are not declared in any prior period.
3. Liquidation Preference.
(a) Preference. In the event of any liquidation, dissolution or winding up of the
corporation, either voluntarily or involuntarily, the holders of Series B Preferred, Series C-1
Preferred, Series C-2 Preferred and Series C-3 Preferred shall be entitled to receive, prior and in
preference to any distribution of any of the assets or surplus funds of the corporation to the
holders of Series A-1 Preferred, Series A-2 Preferred and Common Stock, an amount equal to [$4.25]
per share (as adjusted for stock splits, stock dividends, recapitalizations, and the like occurring
after the Filing Date) for each share of Series B Preferred, Series C-1 Preferred, Series C-2
Preferred and Series C-3 Preferred as the case maybe, then so held plus a further amount equal to
any accrued dividends declared but unpaid on such shares.
All of the preferential amounts to be paid to the holders of the Series B Preferred, Series
C-1 Preferred, Series C-2 Preferred and Series C-3 Preferred under this Section 3 shall be paid or
set apart for payment before the payment or setting apart for payment of any amount for, or the
distribution of any assets of this corporation to, the holders of the Series A-1 Preferred, Series
A-2 Preferred, and Common Stock in connection with such liquidation, dissolution or winding up.
If, upon such liquidation, dissolution or winding up of the corporation, the assets of the
corporation are insufficient to provide for the cash payment of the full aforesaid preferential
amount to the holders of Series B Preferred, Series C-1 Preferred, Series C-2 Preferred and Series
C-3 Preferred, then such assets as are available shall be distributed ratably among the holders of
Series B Preferred, Series C-1 Preferred, C-2 Preferred and C-3 Preferred in proportion to the full
preferential amount each such holder is otherwise entitled to receive.
After the payment or the setting apart of payment to the holders of the Series B Preferred,
Series C-1 Preferred, Series C-2 Preferred and Series C-3 Preferred of the preferential amounts so
payable to them in the event of any liquidation, dissolution or winding up of the corporation,
either voluntarily or involuntarily, the holders of Series A-1 Preferred and A-2 Preferred shall be
entitled to receive, prior and in preference to any distribution of any of the assets or surplus
funds of the corporation to the holders of Common Stock, an amount equal to [$1.00] and [$3.00] per
share, respectively, (as adjusted for stock splits, stock dividends, recapitalizations and the like
occurring after the Filing Date) for each share of Series A-1 Preferred or Series A-2 Preferred, as
the case may be, then so held plus a further amount equal to any dividends declared but unpaid on
such shares.
All of the preferential amounts to be paid to the holders of the Series A-1 Preferred and
Series A-2 Preferred under this Section 3 shall be paid or set apart for payment before the payment
or setting apart for payment of any amount for, or the distribution of any assets of this
corporation to, the holders of the Common Stock in connection with such liquidation, dissolution or
winding up.
If, upon such liquidation, dissolution or winding up of the corporation, the assets of the
corporation are insufficient to provide for the cash payment of the full aforesaid preferential
amount to the holders of Series A-1 Preferred and Series A-2 Preferred, such assets as are
available shall be
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distributed ratably among the holders of Series A-1 Preferred and Series A-2 Preferred in
proportion to the full preferential amount each such holder is otherwise entitled to receive.
After the payment or the setting apart of payment to the holders of the Series A-1 Preferred,
Series A-2 Preferred, Series B Preferred, Series C-1 Preferred, Series C-2 Preferred and Series C-3
Preferred of the preferential amounts so payable to them, the holders of Common Stock shall be
entitled to receive all remaining assets of this corporation.
(b) Consolidation or Merger. The following shall be deemed to be a liquidation,
dissolution or winding up within the meaning of this Section 3: (i) a sale of all or substantially
all of the assets of the corporation or a merger or consolidation which will result in the
corporations stockholders immediately prior to such transaction holding (by virtue of such shares
or securities issued solely with respect thereto) less than 51% of the voting power of the
surviving, continuing or purchasing entity; provided, however, that any payments made may be made
in cash or in securities or other property received from the acquiring entity or in a combination
thereof, on the closing of such transaction; and (ii) the sale, assignment, transfer or termination
in any manner of (A) that certain Amended and Restated Exclusive License Agreement between the
corporation and Purdue Research Foundation, dated as of October 21, 1998, as amended from time to
time (the License Agreement), or (B) the patents, pending patents or patent rights
described in such License Agreement, except that in the case of Section 3(b)(ii) such a transaction
shall not be deemed a liquidation, dissolution or winding up, if it has received unanimous approval
from the corporations Board of Directors.
(c) Noncash Distributions. If any of the assets of the corporation are to be
distributed other than in cash under this Section 3 or for any purpose, then the corporations
Board shall promptly engage independent competent appraisers to determine the value of the assets
to be distributed to the holders of Preferred Stock or Common Stock. The corporation shall, upon
receipt of such appraisers valuation, give prompt written notice to each holder of shares of
Preferred Stock or Common Stock of the appraisers valuation. Notwithstanding the above, any
securities to be distributed to the stockholders shall be valued as follows:
(i) If traded on a securities exchange, the value shall be deemed to be the average of the
closing prices of the securities on such exchange over the 30-day period ending three (3) business
days prior to the distribution;
(ii) If actively traded over-the-counter, the value shall be deemed to be the average of the
closing bid prices over the 30-day period ending three (3) business days prior to the distribution;
and
(iii) If there is no active public market, the value shall be the fair market value thereof,
as mutually determined by the corporation and the holders of not less than a majority of the then
outstanding shares of Preferred Stock, provided that if the corporation and the holders of a
majority of the outstanding shares of Preferred Stock are unable to reach agreement, then by
independent appraisal by an investment banker hired and paid by the corporation, but acceptable to
the holders of not less than a majority of the outstanding shares of Preferred Stock.
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4. Voting Rights.
(a) Preferred Stock. Except as otherwise provided herein or required by law, the
holder of each share of Preferred Stock shall be entitled to vote on all matters and shall be
entitled to the number of votes equal to the number of shares of Common Stock into which each share
of Preferred Stock could be converted pursuant to Section 5 hereof at the record date for the
determination of the stockholders entitled to vote on such matters or, if no such record date is
established, at the date such vote is taken. Except as otherwise provided herein or required by
law, the Preferred Stock shall have voting rights and powers equal to the voting rights and powers
of the Common Stock. Fractional votes shall not, however, be permitted, and any fractional voting
rights resulting from the above formula shall be rounded to the nearest whole number (with one-half
rounded downward to one).
(b) Common Stock. Each holder of shares of Common Stock shall be entitled to one vote
for each share held.
(c) Board of Directors. The holders of the Common Stock, voting as a separate class,
shall be entitled to elect two (2) directors, the holders of the Series A-1 and Series A-2
Preferred, voting together as a separate class, shall be entitled to elect one (1) director, the
holders of Series B Preferred, voting as a separate class, shall be entitled to elect one (1)
director, the holders of Series C-1 Preferred, voting as a separate class, shall be entitled to
elect one (1) director, and the holders of Series C-2 Preferred, voting as a separate class, shall
be entitled to elect one (1) director. All remaining directors shall be elected by the holders of
the Common Stock and the Preferred Stock voting together as a single class. Notwithstanding any
Bylaw provision to the contrary, the stockholders entitled to elect a particular director shall be
entitled to remove such director or to fill a vacancy in the seat formerly held by such director,
all in accordance with the applicable provisions of the Delaware General Corporation Law. This
Section 4(c) shall not apply unless at least [500,000] shares of Preferred Stock are outstanding,
and shall not apply with respect to each Series entitled to elect a director under this Section 4
unless at least [250,000] shares of such Series are outstanding (each as adjusted for combinations,
stock dividends, subdivisions or split-ups occurring after the Filing Date).
(d) Election by Ballot. The election of directors need not be by written ballot
unless stockholders holding at least [250,000] shares of any class or classes demand election by
ballot at the meeting and before the voting begins or unless the corporations Bylaws (the
Bylaws) shall so provide.
5. Conversion. The holders of Preferred Stock shall have conversion rights as follows
(the Conversion Rights):
(a) Right to Convert. Each share of Preferred Stock shall be convertible, at the
option of the holder thereof, at any time after the date of issuance of such share at the office of
the corporation or any transfer agent for such Preferred Stock. Each share of Preferred Stock
shall be convertible into the number of shares of Common Stock which results from dividing the
Conversion Price per share in effect for such series of Preferred Stock at the time of conversion
into the Conversion Value per share of such series of Preferred Stock. The number of shares of
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Common Stock into which each series of Preferred Stock is convertible is hereinafter
collectively referred to as the Conversion Rate for such series. The Conversion
Price per share shall initially be [$1.00] for the Series A-1 Preferred, [$3.00] for the
Series A-2 Preferred, [$4.25] for the Series B Preferred, [$4.25] for the Series C-1 Preferred,
[$4.25] for the Series C-2 Preferred and [$4.25] for the Series C-3 Preferred. The Conversion
Value per share shall be [$1.00] for the Series A-1 Preferred, [$3.00] for the Series A-2
Preferred, [$4.25] for the Series B Preferred, [$4.25] for the Series C-1 Preferred, [$4.25] for
the Series C-2 Preferred and [$4.25] for the Series C-3 Preferred. The Conversion Price of each
series of Preferred Stock shall be subject to adjustment as hereinafter provided.
(b) Automatic Conversion. Each share of Preferred Stock shall automatically be
converted into shares of Common Stock at the then effective Conversion Rate immediately upon the
(i) closing of an underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, covering any of the corporations securities (as that
term is defined under the Securities Act of 1933, as then in effect) with a sales price per share
of Common Stock (as adjusted for combinations, stock dividends, subdivisions or split-ups occurring
after the Filing Date) of at least [$14.00] and with aggregate gross proceeds to the corporation,
at the public offering price, of at least [$25,000,000], or (ii) approval of the holders of at
least fifty percent (50%) of the shares of Preferred Stock then outstanding, voting as a single
class.
(c) Mechanics of Conversion. 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
such Preferred Stock and shall give written notice to the corporation at such office that such
holder elects to convert the same. 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. 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 such conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock on such date.
(d) Fractional Shares. No fractional shares of Common Stock shall be issued upon
conversion of the Preferred Stock. In lieu of any fractional shares to which the holder would
otherwise be entitled, the corporation shall pay cash equal to such fraction multiplied by the
applicable Conversion Value.
(e) Adjustment of Conversion Price. The Conversion Price of each series of Preferred
Stock shall be subject to adjustment from time to time as follows:
(i) If the corporation shall issue any Common Stock (other than Excluded Stock, as defined
below, or stock dividends, subdivisions, split-ups, combinations or dividends and recapitalizations
occurring after the Filing Date, which are covered by Sections 5(e)(vii), (viii), (ix) and (x))
(Additional Shares of Common), for a consideration per share less than the Conversion
Price for the Series A-1 Preferred, the Series A-2 Preferred, the Series B Preferred, the Series
C-1 Preferred or the Series C-3 Preferred in effect immediately prior to the
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issuance of the Additional Shares of Common, then the Conversion Price for such series of
Preferred Stock in effect immediately after each such issuance shall forthwith be reduced, if
shares of such series of Preferred Stock are outstanding, to a price obtained by applying the
Weighted Average Adjustment Formula (as defined below).
(ii) If the corporation shall issue any Additional Shares of Common, for a consideration per
share less than the Conversion Price for the Series C-2 Preferred in effect immediately prior to
the issuance of such Additional Shares of Common but greater than or equal to the Inflection Price
(as defined below), then the Conversion Price for the Series C-2 Preferred shall forthwith be
reduced, if shares of Series C-2 Preferred are outstanding, to a price equal to the consideration
per share received by the corporation for the Additional Shares of Common so issued.
(iii) If the corporation shall issue any Additional Shares of Common, for a consideration per
share less than the Inflection Price, then the Conversion Price for the Series C-2 Preferred shall
forthwith be reduced, if shares of such series of Preferred Stock are outstanding, first to the
Inflection Price and thereafter shall be further adjusted to a price obtained by applying to the
Inflection Price the Weighted Average Adjustment Formula.
(iv) After any adjustment to the Conversion Price for the Series C-2 Preferred pursuant to
Section 5(e)(iii), if the corporation shall issue any Additional Shares of Common, for a
consideration per share less than the Conversion Price for the Series C-2 Preferred Stock in effect
immediately prior to the issuance of such Additional Shares of Common, then the Conversion Price
for the Series C-2 Preferred shall forthwith be adjusted, if shares of Series C-2 Preferred are
outstanding, to a price obtained by applying the Weighted Average Adjustment Formula.
(v) Weighted Average Adjustment Formula means, with respect to the adjustment of the
Conversion Price of one or more series of Preferred Stock pursuant to this Section 5 due to an
issuance of Additional Shares of Common, multiplying such Conversion Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding immediately prior to
such issue plus the number of shares which the aggregate consideration received by the Corporation
for the total number of Additional Shares of Common so issued would purchase at such Conversion
Price, and the denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issue plus the number of such Additional Shares of Common so issued.
(vi) For the purpose of applying this Weighted Average Adjustment Formula, all shares of
Common Stock issuable upon conversion of all outstanding shares of Preferred Stock and the exercise
and/or conversion of any other outstanding Convertible Securities and all outstanding Options shall
be deemed to be outstanding.
(vii) Inflection Price shall mean [$3.38] (as adjusted for stock splits, stock
dividends, recapitalizations and the like occurring after the Filing Date).
For the purposes of any adjustment of a Conversion Price pursuant to this Section 5(e), the
following provisions shall be applicable:
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(1) In the case of the issuance of Common Stock for cash, the consideration shall be deemed to
be the amount of cash paid therefor without deducting any discounts or commissions paid or incurred
by the corporation in connection with the issuance and sale thereof.
(2) In the case of the issuance of Common Stock for a consideration in whole or in part other
than cash, the consideration other than cash shall be deemed to be the fair value thereof as
determined by the Board, in accordance with generally accepted accounting treatment; provided,
however, that if, at the time of such determination, the corporations Common Stock is traded in
the over-the-counter market or on a national or regional securities exchange, such fair market
value as determined by the Board shall not exceed the aggregate Current Market Price (as defined
below) of the shares of Common Stock being issued.
(3) In the case of the issuance of (i) options to purchase or rights to subscribe for Common
Stock (other than Excluded Stock), (ii) securities by their terms convertible into or exchangeable
for Common Stock (other than Excluded Stock), or (iii) options to purchase or rights to subscribe
for securities by their terms convertible into or exchangeable for Common Stock (other than
Excluded Stock):
(A) the aggregate maximum number of shares of Common Stock deliverable upon exercise of such
options to purchase or rights to subscribe for Common Stock (excluding the possible effect of any
antidilution provisions contained therein) shall be deemed to have been issued at the time such
options or rights were issued and for a consideration equal to the consideration (determined in the
manner provided in subdivisions (1) and (2) above), if any, received by the corporation upon the
issuance of such options or rights plus the minimum purchase price provided in such options or
rights for the Common Stock covered thereby;
(B) the aggregate maximum number of shares of Common Stock deliverable upon conversion of or
in exchange for any such convertible or exchangeable securities, or upon the exercise of options to
purchase or rights to subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof (excluding the possible effect of any antidilution provisions
contained therein) shall be deemed to have been issued at the time such securities were issued or
such options or rights were issued and for a consideration equal to the consideration received by
the corporation for any such securities and related options or rights (excluding any cash received
on account of accrued interest or accrued dividends), plus the additional consideration, if any, to
be received by the corporation upon the conversion or exchange of such securities or the exercise
of any related options or rights (the consideration in each case to be determined in the manner
provided in subdivisions (1) and (2) above);
(C) on any change in the number of shares of Common Stock deliverable upon exercise of any
such options or rights or conversion of or exchange for such convertible or exchangeable
securities, or on any change in the minimum purchase price of such options, rights or securities,
other than a change resulting from the antidilution provisions of such options, rights or
securities, the Conversion Price for such series shall forthwith be readjusted to such Conversion
Price as would have obtained had the adjustment made upon (x) the issuance of
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such options, rights or securities not exercised, converted or exchanged prior to such change,
as the case may be, been made upon the basis of such change or (y) the issuance of options or
rights related to such securities not converted or exchanged prior to such change, as the case may
be, been made upon the basis of such change; and
(D) on the expiration of any such options or rights, the termination of any such rights to
convert or exchange or the expiration of any options or rights related to such convertible or
exchangeable securities, the Conversion Price for such series shall forthwith be readjusted to such
Conversion Price as would have obtained had the adjustment made upon the issuance of such options,
rights, convertible or exchangeable securities or options or rights related to such convertible or
exchangeable securities, as the case may be, been made upon the basis of the issuance of only the
number of shares of Common Stock actually issued upon the exercise of such options or rights, upon
the conversion or exchange of such convertible or exchangeable securities or upon the exercise of
the options or rights related to such convertible or exchangeable securities, as the case may be.
(viii) Excluded Stock shall mean:
(A) all shares of Common Stock issued and outstanding on the date hereof;
(B) all shares of Common Stock into which the shares of Preferred Stock are convertible;
(C) an aggregate maximum of [4,750,000] shares of Common Stock or other securities, or options
or warrants to purchase Common Stock or any such other securities, issuable to employees, officers,
consultants or directors of, or licensors of technology to, the corporation, under any agreement,
arrangement or plan, including any incentive stock plan approved by the Board, which must include
approval of the director elected by the holders of Series C-2 Preferred (an Approved
Plan), plus, in addition, any unpurchased shares or other securities underlying awards granted
under an Approved Plan to the extent such awards expire or become unexercisable without having been
exercised in full; and
(D) all shares of Common Stock issued or issuable pursuant to acquisition transactions,
including but not limited to mergers, purchases of assets or other reorganization, and joint
ventures (other than acquisition transactions which result in the corporations stockholders
immediately prior to such transaction not holding (by virtue of such shares or securities issued
solely with respect thereto) more than 50% of the voting power of the surviving, continuing or
purchasing entity; provided, that such issuances are approved by the Board of Directors;
(E) all shares of Common Stock issued in a registered public offering under the Securities Act
of 1933; and
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(F) all shares of Common Stock or other securities, or options or warrants to purchase Common
Stock or any such other securities issued or to be issued to vendors, consultants, suppliers,
lessors or lenders to the corporation, pursuant to any agreement, plan or arrangement approved by
the unanimous consent of the Board.
All outstanding shares of Excluded Stock (including any shares issuable upon conversion of the
Preferred Stock but excluding shares reserved for issuance for option plans for which options have
not yet been granted) shall be deemed to be outstanding for all purposes of the computations of
Section 5(e) above.
(ix) If the number of shares of Common Stock outstanding at any time after the date hereof is
increased by a stock dividend payable in shares of Common Stock or by a subdivision or split-up of
shares of Common Stock, then, on the date such payment is made or such change is effective, the
Conversion Price for the Preferred Stock shall be appropriately decreased so that the number of
shares of Common Stock issuable on conversion of any shares of the Preferred Stock shall be
increased in proportion to such increase of outstanding shares.
(x) If the number of shares of Common Stock outstanding at any time after the date hereof is
decreased by a combination of the outstanding shares of Common Stock, then, on the effective date
of such combination, the Conversion Price for such series shall be appropriately increased so that
the number of shares of Common Stock issuable on conversion of shares of the Preferred Stock shall
be decreased in proportion to such decrease in outstanding shares.
(xi) In case the corporation shall declare a cash dividend upon its Common Stock payable
otherwise than out of retained earnings or shall distribute to holders of its Common Stock shares
of its capital stock (other than Common Stock), stock or other securities of other persons,
evidences of indebtedness issued by the corporation or other persons, assets (excluding cash
dividends) or options or rights (excluding options to purchase and rights to subscribe for Common
Stock or other securities of the corporation convertible into or exchangeable for Common Stock),
then, in each such case, immediately following the record date fixed for the determination of the
holders of Common Stock entitled to receive such dividend or distribution, the Conversion Price for
the Preferred Stock in effect thereafter shall be determined by multiplying the Conversion Price
for the Preferred Stock in effect immediately prior to such record date by a fraction of which the
numerator shall be an amount equal to the remainder of (x) the Current Market Price of one share of
Common Stock less (y) the amount of such cash dividend in respect of one share of Common Stock or
the fair market value (as determined by the Board of Directors, whose determination shall be
conclusive) of the stock, securities, evidences or indebtedness, assets, options or rights so
distributed in respect of one share of Common Stock, as the case may be, and of which the
denominator shall be the Current Market Price of one share of Common Stock. Such adjustment shall
be made on the date such dividend or distribution is made, and shall become effective at the
opening of business on the business day next following the record date for the determination of
stockholders entitled to such dividend or distribution.
(xii) In case, at any time after the date hereof, of any capital reorganization, or any
reclassification of the stock of the corporation (other than a change as a result of a stock
dividend or subdivision, split-up or combination of shares), or the consolidation or merger of the
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corporation with or into another person (other than a consolidation or merger in which the
corporation is the continuing entity and which does not result in any change in the Common Stock),
or of the sale or other disposition of all or substantially all the properties and assets of the
corporation as an entirety to any other person, the shares of Preferred Stock shall, after such
reorganization, reclassification, consolidation, merger, sale or other disposition, be convertible
into the kind and number of shares of stock or other securities or property of the corporation or
of the entity resulting from such consolidation or surviving such merger or to which such
properties and assets shall have been sold or otherwise disposed to which such holder would have
been entitled, if, immediately prior to such reorganization, reclassification, consolidation,
merger, sale or other disposition, he had converted his shares of Preferred Stock into Common
Stock. The provisions of this Section 5(e)(x) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, sales or other dispositions.
(xiii) All calculations under this Section 5 shall be made to the nearest cent or to the
nearest one hundredth (1/100) of a share, as the case may be.
(xiv) For the purpose of any computation pursuant to this Section 5(e), the Current
Market Price at any date of one share of Common Stock, shall be deemed to be the average of
the highest reported bid and the lowest reported offer prices on the preceding business day as
furnished by the National Quotation Bureau, Incorporated (or equivalent recognized source of
quotations); provided, however, that if the Common Stock is not traded in such manner that the
quotations referred to in this Section 5(e) are available for the period required hereunder, then
Current Market Price shall be determined in good faith by the Board.
(f) Minimal Adjustments. No adjustment in a Conversion Price need be made if such
adjustment would result in a change in a Conversion Price of less than $0.01. Any adjustment of
less than $0.01 that is not made shall be carried forward and shall be made at the time of and
together with any subsequent adjustment that, on a cumulative basis, amounts to an adjustment of
$0.01 or more in a Conversion Price.
(g) No Impairment. The corporation will not through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the corporation, but will at all times in
good faith assist in the carrying out of all the provisions of this Section 5 and in the taking of
all such action as may be necessary or appropriate in order to protect the conversion rights of the
holders of Preferred Stock against impairment. This provision shall not restrict the corporations
right to amend its Amended and Restated Certificate of Incorporation with the requisite stockholder
consent.
(h) Certificate as to Adjustments. Upon the occurrence of each adjustment or
readjustment of the Conversion Rate pursuant to this Section 5, the corporation at its expense
shall promptly compute such adjustment or readjustment in accordance with the terms hereof and
prepare and furnish to each holder of 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 written request at any time of any holder of Preferred Stock,
furnish or cause to be furnished to such holder a like certificate setting forth (i) such
adjustments and
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readjustments, (ii) the Conversion Rate 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 the Preferred Stock held by such holder.
(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) or other distribution, the
corporation shall notify each holder of Preferred Stock at least 10 days prior to the date
specified therein, specifying the date on which any such record is to be taken for the purpose of
such dividend or distribution.
(j) Reservation of Stock Issuable Upon Conversion. The corporation shall at all times
reserve and keep available out of its authorized but unissued shares of Common Stock solely for the
purpose of effecting the conversion of the shares of Preferred Stock such number of its shares of
Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding
shares of Preferred Stock; and if at any time the number of authorized but unissued shares of
Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of
Preferred Stock, the corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number
of shares as shall be sufficient for such purpose.
(k) Notices. Any notice required by the provisions of this Section 5 to be given to
the holder of shares of Preferred Stock shall be deemed given if deposited in the United States
mail, postage prepaid, and addressed to each holder of record at his address appearing on the books
of the corporation.
6. Protective Provisions.
(a) Series C-1 Preferred, Series C-2 Preferred and Series C-3 Preferred Protective
Provisions. The corporation shall not, without first obtaining the approval (by vote or
written consent, as provided by law) of the holders of more than sixty-six and two-thirds percent
(66 2/3%) of the outstanding shares of Series C-1 Preferred, if [250,000] shares of the Series C-1
Preferred shall be outstanding (as adjusted for combinations, stock dividends, subdivisions,
split-ups and the like occurring after the Filing Date), more than sixty-six and two-thirds percent
(66 2/3%) of the outstanding shares of Series C-2 Preferred, if at least [250,000] shares of the
Series C-2 Preferred shall be outstanding (as adjusted for combinations, stock dividends,
subdivisions, split-ups and the like occurring after the Filing Date), and more than sixty-six and
two-thirds percent (66 2/3%) of the outstanding shares of Series C-3 Preferred, if at least
[250,000] shares of the Series C-3 Preferred shall be outstanding (as adjusted for combinations,
stock dividends, subdivisions, split-ups and the like occurring after the Filing Date), each voting
separately by series:
(i) Authorized Number. Increase or decrease the authorized number of shares of Common
Stock or Preferred Stock; or
(ii) No Material Change. Materially alter or change the rights, preferences,
privileges or restrictions of the Preferred Stock; or
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(iii) Create Any New Class or Series. Create any new class or series of shares having
any powers, preferences, or special rights superior to or on a parity with the Preferred Stock as
to dividends, assets, liquidation, or voting; or
(iv) Merger or Consolidation. Merge or consolidate with any other corporation, except
into or with a wholly owned subsidiary of the corporation with the requisite stockholder approval;
or
(v) Sale of Assets. Sell, convey, or otherwise dispose of, all or substantially all
of the property or business of the corporation, including, without limitation, the corporations
patent estate or proprietary technologies; or
(vi) Dividend. Declare or pay any dividends on any equity security (other than in
Common Stock of the corporation); or
(vii) Board of Directors. Change the authorized number of the Board of Directors; or
(viii) Dissolution. Voluntarily dissolve or liquidate the corporation; or
(ix) Redemption of Shares. Redeem, repurchase, or otherwise acquire stock of the
corporation (except for acquisitions of Common Stock by the corporation (a) pursuant to agreements
which permit the corporation to repurchase such shares upon termination of services to the
corporation, (b) in exercise of the corporations right of first refusal upon a proposed transfer
or pursuant to a purchase option granted in favor of the Company, or (c) pursuant to that certain
Restricted Stock Purchase Agreement dated July 10, 2001 by and among the Company and certain
holders of Common Stock); or
(x) Change of Protective Provisions. Alter or amend the protective provisions set
forth in this Section 6; or
(xi) Transfer of Voting Securities. Enter into any transaction or series of related
transactions in which in excess of twenty percent (20%) of the corporations outstanding voting
securities, as determined following such transaction, are transferred or otherwise acquired.
(b) Preferred Protective Provisions. So long as at least [250,000] shares (as adjusted
for combinations, stock dividends, subdivisions, split-ups and the like occurring after the Filing
Date) of the Preferred Stock shall be outstanding the corporation shall not, without first
obtaining the approval (by vote or written consent, as provided by law) of the holders of more than
fifty percent (50%) of the outstanding shares of Preferred Stock, voting together as a single
class:
(i) Section 305. Do any act or thing which would result in the taxation of the
holders of the Preferred Stock under Section 305 of the Internal Revenue Code of 1986, as amended
(or any successor provision); or
(ii) Monetary Obligations. Incur an obligation in excess of $500,000 in a transaction
or series of transactions occurring within 12 months of the initial transaction; or
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(iii) Loans and Advances. Make any loan or advance, other than travel advances to
employees in the ordinary course of business; or
(iv) Arms-Length Transactions. Engage in any transaction with any affiliate or
officer, director or stockholder (or their relatives), other than in the ordinary course of
business and at arms-length; or
(v) Business. Engage in any other business other than the development and
commercialization of the corporations vitamin-based drug delivery technologies.
7. Residual Rights. All rights accruing to the outstanding shares of capital stock
not expressly provided for to the contrary herein shall be vested in the Common Stock.
SEVEN The following is applicable to the Common Stock:
1. Dividend Rights. Subject to the prior rights of holders of all classes of stock at
the time outstanding having prior rights as to dividends, the holders of the Common Stock shall be
entitled to receive, when and as declared by the Board of Directors, out of any assets of the
corporation legally available therefor, such dividends as may be declared from time to time by the
Board of Directors.
2. Liquidation Rights. Upon the liquidation, dissolution or winding up of the
corporation, the assets of the corporation shall be distributed as provided in Section 3 of Article
Six hereof.
3. Redemption. The Common Stock is not redeemable.
4. Voting Rights. The holder of each share of Common Stock shall have the right to
one vote, and shall be entitled to notice of any stockholders meeting in accordance with the
Bylaws, and shall be entitled to vote upon such matters and in such manner as may be provided by
law.
EIGHT The corporation is to have perpetual existence.
NINE In furtherance and not in limitation of the powers conferred by statute, the Board is
expressly authorized to make, alter, amend or repeal the Bylaws.
TEN Indemnification of Officers and Directors.
1. To the fullest extent permitted by the Delaware General Corporation Law as the same exists
or as may hereafter be amended, a director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director.
2. The corporation may indemnify to the fullest extent permitted by law any person made or
threatened to be made a party to an action or proceeding, whether criminal, civil, administrative
or investigative, by reason of the fact that he, his testator or intestate is or was a director,
officer or employee of the corporation or any predecessor of the corporation or serves or
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served at any other enterprise as a director, officer, or employee at the request of the
corporation or any predecessor to the corporation.
3. Neither any amendment nor repeal of this Article Ten, nor the adoption of any provision of
this Amended and Restated Certificate of Incorporation inconsistent with this Article Ten, shall
eliminate or reduce the effect of this Article Ten, in respect of any matter occurring, or any
action or proceeding accruing or arising or that, but for this Article Ten, would accrue or arise,
before such amendment, repeal or adoption of an inconsistent provision.
ELEVEN The corporation reserves the right to amend, alter, change or repeal any provision
contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter
prescribed by statute and in this Amended and Restated Certificate of Incorporation, and all rights
conferred upon stockholders herein are granted subject to this reservation.
TWELVE Meetings of stockholders may be held within or without the State of Delaware, as the
Bylaws may provide. The corporations books may be kept (subject to any provision contained in the
statutes) outside of the State of Delaware at such place or places as may be designated from time
to time by the Board or in the Bylaws.
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