Attached files
Exhibit 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
CLOVIS ONCOLOGY, INC.
The undersigned, being a duly appointed and authorized officer of Clovis Oncology, Inc., a
corporation organized and existing under the laws of the State of Delaware (the Corporation),
does hereby certify, on behalf of the Corporation and not in his individual capacity, as follows:
1. The name of the Corporation is Clovis Oncology, Inc.
2. The Corporations original Certificate of Incorporation was filed with the Secretary of
State of the State of Delaware on April 20, 2009.
3. Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware
(the DGCL), this Amended and Restated Certificate of Incorporation of the Corporation restates
and integrates and further amends the provisions of the Corporations Certificate of Incorporation.
4. This Amended and Restated Certificate of Incorporation of the Corporation was duly
authorized in accordance with Sections 141, 228, 242 and 245 of the DGCL, and is executed,
acknowledged and filed in accordance with Section 103 of the DGCL.
5. The text of the Amended and Restated Certificate of Incorporation of the Corporation is
hereby restated and further amended to read in its entirety as follows:
ARTICLE I
The name of the corporation is Clovis Oncology, Inc. (the Corporation).
ARTICLE II
The address of the Corporations registered office in the State of Delaware is 1209 Orange
Street, City of Wilmington, County of New Castle, 19801. The name of the registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (the
DGCL).
ARTICLE IV
The total number of shares of stock that the Corporation shall have authority to issue is
110,000,000 shares, consisting of 100,000,000 shares of Common Stock, $0.001 par value per
share (the Common Stock), and 10,000,000 shares of Preferred Stock, $0.001 par value per
share (the Preferred Stock).
The rights, powers, preferences, privileges and restrictions granted to or imposed upon the
Common Stock and Preferred Stock are as set forth in Article V below.
ARTICLE V
The terms and provisions of the Common Stock and Preferred Stock are as follows:
1. Common Stock.
(a) General. The voting, dividend and liquidation rights of the holders of Common
Stock are subject to and qualified by the rights of the holders of Preferred Stock of any series as
may be designated by the Board of Directors upon any issuance of Preferred Stock of any series.
(b) Voting. Each outstanding share of Common Stock shall entitle the holder thereof
to one vote on each matter properly submitted to the stockholders for their vote; provided,
however, that, except as otherwise required by law, holders of Common Stock shall not be entitled
to vote on any amendment to this Amended and Restated Certificate of Incorporation (including any
certificate of designation filed with respect to any series of Preferred Stock) that relates solely
to the terms of one or more outstanding series of Preferred Stock if the holders of such affected
series of Preferred Stock are entitled, either separately or together as a class with the holders
of one or more other series of Preferred Stock, to vote thereon by law or pursuant to this Amended
and Restated Certificate of Incorporation (including any certificate of designation filed with
respect to any series of Preferred Stock). There shall be no cumulative voting.
(c) Dividends. Dividends may be declared and paid on the Common Stock from funds
lawfully available therefor as, if and when determined by the Board of Directors of the Corporation
(the Board of Directors) and subject to any preferential dividend or other rights of any then
outstanding Preferred Stock.
(d) Liquidation. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, subject to the rights of any then
outstanding Preferred Stock, if any, the holders of the Common Stock shall share of a pro rata
basis in all distributions of assets available for distribution to stockholders pursuant to such
liquidation.
(e) Change in Authorized Common Stock. Except as otherwise provided in this Amended
and Restated Certificate of Incorporation, the number of authorized shares of Common Stock may be
increased or decreased (but not below the number of shares of Common Stock then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote
(voting together as a single class on an as-converted basis) irrespective of the provisions of
Section 242(b)(2) of the DGCL and the holders of Common Stock shall not be entitled to any separate
class vote in connection with any such increase or decrease of the aggregate number of authorized
shares of Common Stock.
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2. Preferred Stock.
(a) Preferred Stock may be issued from time to time in one or more series pursuant to a
resolution or resolutions for such issue duly adopted by the Board of Directors (authority to do so
being hereby expressly vested in the Board of Directors). The Board of Directors is further
authorized, subject to limitations prescribed by law, to fix by resolution or resolutions the
designations, powers, preferences and rights, and the qualifications, limitations or restrictions
thereof, of any wholly unissued series of Preferred Stock, including without limitation authority
to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights, voting
rights, rights and terms of redemption, redemption price or prices, and liquidation preferences of
any such series, and the number of shares constituting any such series and the designation thereof,
or any of the foregoing.
(b) The Board of Directors is further authorized to increase (but not above the total number
of authorized shares of the class) or decrease (but not below the number of shares of any such
series then outstanding) the number of shares of any series, the number of which was fixed by it,
subsequent to the issuance of shares of such series then outstanding, subject to the powers,
preferences and rights, and the qualifications, limitations and restrictions thereof stated in this
Amended and Restated Certificate of Incorporation or the resolution of the Board of Directors
originally fixing the number of shares of such series. If the number of shares of any series is so
decreased, then the shares constituting such decrease shall resume the status which they had prior
to the adoption of the resolution originally fixing the number of shares of such series.
ARTICLE VI
Unless otherwise set forth herein, and subject to the rights of the holders of Preferred
Stock, the number of directors which constitute the Board of Directors shall be no less than three,
as fixed from time to time exclusively by the Board of Directors pursuant to a resolution adopted
by a majority of the members of the Board of Directors. At each annual meeting of stockholders,
directors of the Corporation shall be elected to hold office until the expiration of the term for
which they are elected and until their successors have been duly elected and qualified or until
their earlier resignation or removal.
Effective upon the date of filing of this Amended and Restated Certificate of Incorporation
(the Effective Date), the directors of the Corporation shall be divided into three classes as
nearly equal in size as is practicable, hereby designated Class I, Class II and Class III. The
Board of Directors may assign members of the Board of Directors already in office to such classes
at the time such classification becomes effective. The term of office of the initial Class I
directors shall expire at the first regularly scheduled annual meeting of stockholders following
the Effective Date, the term of office of the initial Class II directors shall expire at the second
annual meeting of stockholders following the Effective Date and the term of office of the initial
Class III directors shall expire at the third annual meeting of stockholders following the
Effective Date. At each annual meeting of stockholders, commencing with the first regularly
scheduled annual meeting of stockholders following the Effective Date, each of the successors
elected to replace the directors of a class whose term shall have expired at such annual meeting
shall be
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elected to hold office until the third annual meeting next succeeding his or her election and
until his or her respective successor shall have been duly elected and qualified.
If the number of directors is hereafter changed, any newly created directorships or decrease
in directorships shall be so apportioned among the classes as to make all classes as nearly equal
in number as is practicable, provided that no decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
Any director may be removed from office by the stockholders only for cause. Vacancies
occurring on the Board of Directors for any reason and newly created directorships resulting from
an increase in the authorized number of directors may be filled only by vote of a majority of the
remaining members of the Board of Directors, although less than a quorum, or by a sole remaining
director, at any meeting of the Board of Directors. A person so elected by the Board of Directors
to fill a vacancy or newly created directorship shall hold office until the next election of the
class for which such director shall have been chosen and until his or her successor shall be duly
elected and qualified.
During any period when the holders of any series of Preferred Stock have the right to elect
additional directors as provided for or fixed pursuant to the provisions of Article V hereof, then
upon commencement and for the duration of the period during which such right continues: (i) the
then otherwise total authorized number of directors of the Corporation shall automatically be
increased by such specified number of directors, and the holders of such Preferred Stock shall be
entitled to elect the additional directors so provided for or fixed pursuant to said provisions,
and (ii) each such additional director shall serve until such directors successor shall have been
duly elected and qualified, or until such directors right to hold such office terminates pursuant
to said provisions, whichever occurs earlier, subject to his earlier death, disqualification,
resignation or removal. Except as otherwise provided by the Board of Directors in the resolution or
resolutions establishing such series, whenever the holders of any series of Preferred Stock having
such right to elect additional directors are divested of such right pursuant to the provisions of
such stock, the terms of office of all such additional directors elected by the holders of such
stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or
removal of such additional directors, shall forthwith terminate and the total authorized number of
directors of the Corporation shall be reduced accordingly.
ARTICLE VII
Meetings of the stockholders may be held within or without the State of Delaware, as the
Bylaws of the Corporation may provide. A special meeting of the stockholders may be called, and
business to be considered at any such meeting may be proposed, at any time exclusively by the
Chairman of the Board of Directors, the Chief Executive Officer or a majority of the members of the
Board of Directors. Subject to the rights of the holders of any Preferred Stock, no stockholder
shall have the power to require the Board of Directors to call a special meeting of stockholders or
to propose business at a special meeting of stockholders. The books of the Corporation may be kept
(subject to any provision contained in the statute) outside the State of Delaware at such place or
places as may be designated from time to time by the Board of Directors or in the Bylaws of the
Corporation.
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ARTICLE VIII
Elections of directors need not be by written ballot unless the Bylaws of the Corporation
shall so provide.
ARTICLE IX
No action required to be taken or that may be taken at any meeting of stockholders may be
taken without a meeting, and no action shall be taken by the stockholders by written consent;
provided, however, that, to the extent expressly permitted by the certificate of designation
relating to one or more series of Preferred Stock, any action required or permitted to be taken by
the holders of such series of Preferred Stock, voting separately as a series or separately as a
class with one or more other such series, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding shares of the relevant class or series having not less than
the minimum number of votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted and shall be delivered to the
Corporation by delivery to its registered office in Delaware, its principal place of business, or
to an officer or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded.
ARTICLE X
In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors is expressly authorized to make, alter, amend or repeal the Bylaws of the Corporation.
Notwithstanding any other provisions of this Amended and Restated Certificate of Incorporation
or any provision of law that might otherwise permit a lesser or no vote, but in addition to any
affirmative vote of the holders of any particular class or series of the capital stock of the
Corporation, the affirmative vote of the holders of not less than 80 percent of the voting power of
the outstanding shares of the Corporation then entitled to vote upon the election of directors,
voting together as a single class, shall be required to amend or repeal, or to adopt (i) any
provision inconsistent with, Article VI, Article VII, Article VIII, Article IX or this Article X of
this Amended and Restated Certificate of Incorporation or (ii) any provision of the Bylaws of the
Corporation.
ARTICLE XI
1. Indemnification of Directors and Officers in Third Party Proceedings. Subject to
the other provisions of this Article XI, the Corporation shall indemnify, to the fullest extent
permitted by the DGCL, as now or hereinafter in effect, any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (a Proceeding) (other than an action by
or in the right of the Corporation) by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was a director or officer of the Corporation serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such
person
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in connection with such Proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to believe such persons
conduct was unlawful. The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such person reasonably
believed to be in or not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that such persons conduct was
unlawful.
2. Indemnification of Directors and Officers in Actions by or in the Right of the
Corporation. Subject to the other provisions of this Article XI, the Corporation shall
indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
Proceeding by or in the right of the Corporation to procure a judgment in its favor by reason of
the fact that such person is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such Proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to the best interests
of the Corporation; except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the Corporation unless and
only to the extent that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
3. Successful Defense. To the extent that a present or former director or officer of
the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described in section 2 or section 3 of this Article XI, or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses (including attorneys
fees) actually and reasonably incurred by such person in connection therewith.
4. Indemnification of Others. Subject to the other provisions of this Article XI, the
Corporation shall have power to indemnify its employees and agents to the extent not prohibited by
the DGCL or other applicable law. The Board shall have the power to delegate the determination of
whether employees or agents shall be indemnified.
5. Advanced Payment of Expenses. Expenses (including attorneys fees) incurred by an
officer or director of the Corporation in defending any Proceeding shall be paid by the Corporation
in advance of the final disposition of such Proceeding upon receipt of a written request therefor
(together with documentation reasonably evidencing such expenses) and an undertaking by or on
behalf of such officer or director to repay such amounts if it shall ultimately be determined that
such person is not entitled to be indemnified by the Corporation under this Article XI or the DGCL.
Such expenses (including attorneys fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if
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any, as the Corporation deems appropriate. The right to advancement of expenses shall not
apply to any Proceeding for which indemnity is excluded pursuant to these bylaws, but shall apply
to any Proceeding referenced in section 6(ii) or 6(iii) of this Article XI prior to a determination
that the person is not entitled to be indemnified by the Corporation.
Notwithstanding the foregoing, unless otherwise determined pursuant to section 7 of this
Article XI, no advance shall be made by the Corporation to an officer of the Corporation (except in
the event that such officer is or was a director of the Corporation, in which event this paragraph
shall not apply) in any Proceeding if a determination is reasonably and promptly made (i) by a
majority vote of the directors who are not parties to such Proceeding, even though less than a
quorum, or (ii) by a committee of such directors designated by majority vote of such directors,
even though less than a quorum, or (iii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, that facts known to the decision-making
party at the time such determination is made demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be in or not opposed to the
best interests of the Corporation.
6. Limitation on Indemnification. Subject to the requirements in section 3 of this
Article XI and the DGCL, the Corporation shall not be obligated to indemnify any person pursuant to
this Article XI in connection with any Proceeding (or any part of any Proceeding):
(i) for which payment has actually been made to or on behalf of such person under any statute,
insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond
the amount paid;
(ii) for an accounting or disgorgement of profits pursuant to Section 16(b) of the 1934 Act,
or similar provisions of federal, state or local statutory law or common law, if such person is
held liable therefor (including pursuant to any settlement arrangements);
(iii) for any reimbursement of the Corporation by such person of any bonus or other
incentive-based or equity-based compensation or of any profits realized by such person from the
sale of securities of the Corporation, as required in each case under the 1934 Act (including any
such reimbursements that arise from an accounting restatement of the Corporation pursuant to
Section 304 of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act), or the payment to the
Corporation of profits arising from the purchase and sale by such person of securities in violation
of Section 306 of the Sarbanes-Oxley Act), if such person is held liable therefor (including
pursuant to any settlement arrangements);
(iv) initiated by such person, including any Proceeding (or any part of any Proceeding)
initiated by such person against the Corporation or its directors, officers, employees, agents or
other indemnitees, unless (a) the Board authorized the Proceeding (or the relevant part of the
Proceeding) prior to its initiation, (b) the Corporation provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Corporation under applicable law, (c) otherwise
required to be made under section 7 of this Article XI or (d) otherwise required by applicable law;
or
(v) if prohibited by applicable law.
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7. Determination; Claim. If a claim for indemnification or advancement of expenses
under this Article XI is not paid by the Corporation or on its behalf within 90 days after receipt
by the Corporation of a written request therefor, the claimant shall be entitled to an adjudication
by a court of competent jurisdiction of his or her entitlement to such indemnification or
advancement of expenses. To the extent not prohibited by law, the Corporation shall indemnify such
person against all expenses actually and reasonably incurred by such person in connection with any
action for indemnification or advancement of expenses from the Corporation under this Article XI,
to the extent such person is successful in such action, and, if requested by such person, shall
advance such expenses to such person, subject to the provisions of section 5 of this Article XI.
In any such suit, the Corporation shall, to the fullest extent not prohibited by law, have the
burden of proving that the claimant is not entitled to the requested indemnification or advancement
of expenses.
8. Non-Exclusivity of Rights. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article XI shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be entitled under the
certificate of incorporation or any statute, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such persons official capacity and as
to action in another capacity while holding such office. The Corporation is specifically
authorized to enter into individual contracts with any or all of its directors, officers, employees
or agents respecting indemnification and advancement of expenses, to the fullest extent not
prohibited by the DGCL or other applicable law.
9. Insurance. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted
against such person and incurred by such person in any such capacity, or arising out of such
persons status as such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of the DGCL.
10. Survival. The rights to indemnification and advancement of expenses conferred by
this Article XI 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.
11. Effect of Repeal or Modification. Any amendment, alteration or repeal of this
Article XI shall not adversely affect any right or protection hereunder of any person in respect of
any act or omission occurring prior to such amendment, alteration or repeal.
12. Certain Definitions. For purposes of this Article XI, references to the
Corporation shall include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to indemnify its directors,
officers, employees or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of such constituent
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corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under the provisions of
this Article XI with respect to the resulting or surviving corporation as such person would have
with respect to such constituent corporation if its separate existence had continued. For purposes
of this Article XI, references to other enterprises shall include employee benefit plans;
references to fines shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to serving at the request of the Corporation shall include
any service as a director, officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner not opposed to the best
interests of the Corporation as referred to in this Article XI.
ARTICLE XII
Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of
the Corporation may provide. The books of the Corporation 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 of Directors or in the Bylaws of the Corporation.
ARTICLE XIII
Subject to Article X above, 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 all rights conferred upon the stockholders
herein are granted subject to this reservation.
ARTICLE XIV
Unless the Corporation consents in writing to the selection of an alternative forum, the Court
of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative
action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of
breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to
the Corporation or the Corporations stockholders, (iii) any action asserting a claim arising
pursuant to any provision of the DGCL or the Corporations certificate of incorporation or bylaws,
or (iv) any action asserting a claim governed by the internal affairs doctrine, in each such case
subject to said Court of Chancery having personal jurisdiction over the indispensable parties named
as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in
shares of capital stock of the Corporation shall be deemed to have notice of and consented to the
provisions of this Article XIV.
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IN WITNESS WHEREOF, Clovis Oncology, Inc. has caused this Amended and Restated Certificate of
Incorporation to be signed by Patrick J. Mahaffy, a duly authorized officer of the Corporation, on
__________ __, 2011.
Patrick J. Mahaffy, | ||||
President and Chief Executive Officer | ||||
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