Attached files
file | filename |
---|---|
EX-3.2 - EX-3.2 - Alexza Pharmaceuticals Inc. | f59706exv3w2.htm |
EX-31.2 - EX-31.2 - Alexza Pharmaceuticals Inc. | f59706exv31w2.htm |
EX-32.1 - EX-32.1 - Alexza Pharmaceuticals Inc. | f59706exv32w1.htm |
EX-31.1 - EX-31.1 - Alexza Pharmaceuticals Inc. | f59706exv31w1.htm |
EXCEL - IDEA: XBRL DOCUMENT - Alexza Pharmaceuticals Inc. | Financial_Report.xls |
10-Q - FORM 10-Q - Alexza Pharmaceuticals Inc. | f59706e10vq.htm |
Exhibit
3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
ALEXZA PHARMACEUTICALS, INC.
Alexza Pharmaceuticals, Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, Does Hereby Certify:
1. The name of the corporation is Alexza Pharmaceuticals, Inc. The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was on
December 19, 2000 under the name FaxMed, Inc.
2. This Restated Certificate of Incorporation of Alexza Pharmaceuticals, Inc. has been duly
adopted in accordance with the provisions of Sections 228, 242 and 245 of the General Corporation
Law of the State of Delaware.
3. This Restated Certificate of Incorporation restates and further amends the Restated
Certificate of Incorporation of this corporation by restating the text of the original Restated
Certificate of Incorporation in full to read as follows:
I.
The name of this corporation is Alexza Pharmaceuticals, Inc.
II.
The address of the registered office of the Company in the State of Delaware is 615 South
Dupont Highway, City of Dover, County of Kent. The name of its registered agent at such address is
National Corporate Research, Ltd.
III.
The purpose of this corporation is to engage in any lawful act or activity for which a
corporation may be organized under the Delaware General Corporation Law (DGCL).
IV.
A. 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 one hundred five million (105,000,000) shares. one hundred
million (100,000,000) shares shall be Common Stock, each having a par value of $.0001. Five
million (5,000,000) shares shall be Preferred Stock, each having a par value of $.0001.
B. The Preferred Stock may be issued from time to time in one or more series. The Board of
Directors is hereby expressly authorized to provide for the issue of all of any of the shares of
the Preferred Stock in one or more series, and to fix the number of shares and to
1.
determine or alter for each such series, such voting powers, full or limited, or no voting
powers, and such designation, preferences, and relative, participating, optional, or other rights
and such qualifications, limitations, or restrictions thereof, as shall be stated and expressed in
the resolution or resolutions adopted by the Board of Directors providing for the issuance of such
shares and as may be permitted by the DGCL. The Board of Directors is also expressly authorized to
increase or decrease the number of shares of any series subsequent to the issuance of shares of
that series, but not below the number of shares of such series then outstanding. In case the
number of shares of any series shall be decreased in accordance with the foregoing sentence, the
shares constituting such decrease shall resume the status that they had prior to the adoption of
the resolution originally fixing the number of shares of such series. The number of authorized
shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority of the Common Stock, without
a vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such
holders is required pursuant to the terms of any certificate of designation filed with respect to
any series of Preferred Stock.
C. Each outstanding share of Common Stock shall entitle the holder thereof to one vote on each
matter properly submitted to the stockholders of the Corporation 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 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 are entitled, either
separately or together as a class with the holders of one or more other such series, to vote
thereon by law or pursuant to this Certificate of Incorporation (including any certificate of
designation filed with respect to any series of Preferred Stock).
V.
For the management of the business and for the conduct of the affairs of the corporation, and
in further definition, limitation and regulation of the powers of the corporation, of its directors
and of its stockholders or any class thereof, as the case may be, it is further provided that:
A.
1. Board of Directors. The management of the business and the conduct of the affairs
of the corporation shall be vested in its Board of Directors. The number of directors which shall
constitute the Board of Directors shall be fixed exclusively by resolutions adopted by a majority
of the authorized number of directors constituting the Board of Directors.
2. Election of Directors
a. Directors shall be elected at each annual meeting of stockholders to hold office until the
next annual meeting. Each director shall hold office either until the expiration of the term for
which elected or appointed and until a successor has been elected and qualified, or until such
directors death, resignation or removal. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
2.
b. No stockholder entitled to vote at an election for directors may cumulate votes to which
such stockholder is entitled, unless, at the time of such election, the corporation is subject to
Section 2115(b) of the California General Corporation Law (CGCL). During such time or times that
the corporation is subject to Section 2115(b) of the CGCL, every stockholder entitled to vote at an
election for directors may cumulate such stockholders votes and give one candidate a number of
votes equal to the number of directors to be elected multiplied by the number of votes to which
such stockholders shares are otherwise entitled, or distribute the stockholders votes on the same
principle among as many candidates as such stockholder thinks fit. No stockholder, however, shall
be entitled to so cumulate such stockholders votes unless (i) the names of such candidate or
candidates have been placed in nomination prior to the voting and (ii) the stockholder has given
notice at the meeting, prior to the voting, of such stockholders intention to cumulate such
stockholders votes. If any stockholder has given proper notice to cumulate votes, all
stockholders may cumulate their votes for any candidates who have been properly placed in
nomination. Under cumulative voting, the candidates receiving the highest number of votes, up to
the number of directors to be elected, are elected.
3. Removal of Directors
a. During such time or times that the corporation is subject to Section 2115(b) of the CGCL,
the Board of Directors or any individual director may be removed from office at any time without
cause by the affirmative vote of the holders of at least a majority of the outstanding shares
entitled to vote on such removal; provided, however, that unless the entire Board is removed, no
individual director may be removed when the votes cast against such directors removal, or not
consenting in writing to such removal, would be sufficient to elect that director if voted
cumulatively at an election which the same total number of votes were cast (or, if such action is
taken by written consent, all shares entitled to vote were voted) and the entire number of
directors authorized at the time of such directors most recent election were then being elected.
b. At any time or times that the corporation is not subject to Section 2115(b) of the CGCL and
subject to any limitations imposed by law, Section A(3)(a) above shall not apply and the Board of
Directors or any director may be removed from office at any time (i) with cause by the affirmative
vote of the holders of a majority of the voting power of all then-outstanding shares of capital
stock of the corporation, entitled to vote generally at an election of directors or (ii) without
cause by the affirmative vote of the holders of at least seventy-five percent (75%) of the voting
power of all then-outstanding shares of capital stock of the corporation entitled to vote
generally at an election of directors.
4. Vacancies
a. Subject to the rights of the holders of any series of Preferred Stock, any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal or other causes and
any newly created directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies or newly created
directorships shall be filled by the stockholders, except as otherwise provided by law, be filled
only by the affirmative vote of a majority of the directors then in
3.
office, even though less than a quorum of the Board of Directors, and not by the stockholders.
Any director elected in accordance with the preceding sentence shall hold office for the remainder
of the full term of the director for which the vacancy was created or occurred and until such
directors successor shall have been elected and qualified.
b. At any time or times that the corporation is subject to Section 2115(b) of the CGCL, if,
after the filling of any vacancy by the directors, the directors then in office who have been
elected by stockholders shall constitute less than a majority of the directors then in office, then
(i) Any holder or holders of an aggregate of five percent (5%) or more of the total number of
shares at the time outstanding having the right to vote for those directors may call a special
meeting of stockholders; or
(ii) The Superior Court of the proper county shall, upon application of such stockholder or
stockholders, summarily order a special meeting of stockholders, to be held to elect the entire
board, all in accordance with Section 305(c) of the CGCL. The term of office of any director shall
terminate upon that election of a successor.
B.
1. Bylaw Amendments. The Board of Directors is expressly empowered to adopt, amend
or repeal the Bylaws of the corporation. Any adoption, amendment or repeal of the Bylaws
of the corporation by the Board of Directors shall require the approval of a majority of the
authorized number of directors. The stockholders shall also have power to adopt, amend or repeal
the Bylaws of the corporation; provided, however, that, in addition to any vote of the holders of
any class or series of stock of the corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least seventy-five (75%) of the voting
power of all of the then-outstanding shares of the capital stock of the corporation entitled to
vote generally in the election of directors, voting together as a single class, shall be required
to adopt, amend or repeal any provision of the Bylaws of the corporation.
2. The directors of the corporation need not be elected by written ballot unless the Bylaws so
provide.
3. No action shall be taken by the stockholders of the corporation except at an annual or
special meeting of stockholders called in accordance with the Bylaws.
4. Advance notice of stockholder nominations for the election of directors and of business to
be brought by stockholders before any meeting of the stockholders of the corporation shall be given
in the manner provided in the Bylaws of the corporation.
VI.
A. The liability of the directors for monetary damages shall be eliminated to the fullest
extent under applicable law. If the DGCL is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability of a director of
the corporation shall be eliminated to the fullest extent permitted by the DGCL, as so amended.
4.
B. This corporation is authorized to provide indemnification of agents (as defined in Section
317 of the CGCL) for breach of duty to the corporation and its shareholders through bylaw
provisions or through agreements with the agents, or through shareholder resolutions, or otherwise,
in excess of the indemnification otherwise permitted by Section 317 of the CGCL, subject at any
time or times the corporation is subject to Section 2115(b) to the limits on such excess
indemnification set forth in Section 204 of the CGCL.
C. Any repeal or modification of this Article VI shall be prospective and shall not affect the
rights under this Article VI in effect at the time of the alleged occurrence of any act or omission
to act giving rise to liability or indemnification.
VII.
A. The corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, except as provided in paragraph B. of this Article VII, and all rights conferred upon the
stockholders herein are granted subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of Incorporation or any provision
of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative
vote of the holders of any particular class or series of the corporation required by law or by this
Certificate of Incorporation or any certificate of designation filed with respect to a series of
Preferred Stock, the affirmative vote of the holders of at least seventy-five percent (75%) of the
voting power of all of the then-outstanding shares of capital stock of the corporation entitled to
vote generally in the election of directors, voting together as a single class, shall be required
to alter, amend or repeal Articles V, VI, and VII.
5.
In Witness Whereof, Alexza Pharmaceuticals, Inc. has caused this Restated Certificate
of Incorporation to be signed by its President and Chief Executive
Officer this 13th day March, 2006.
Alexza Pharmaceuticals, Inc. |
||||
By: | /s/ Thomas B. King | |||
Thomas B. King | ||||
President and Chief Executive Officer | ||||
6.