Certificate of Incorporation - CancerVax Corp.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CANCERVAX CORPORATION
CancerVax Corporation (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "DGCL"), DOES HEREBY CERTIFY:
1. The name of the Corporation is CancerVax Corporation. The
Corporation's original Certificate of Incorporation was filed on June 12, 1998.
2. That by action taken by unanimous written consent of the Board
of Directors on September 12, 2003 resolutions were duly adopted setting forth a
proposed amendment and restatement of the Certificate of Incorporation of the
Corporation, declaring said amendment and restatement to be advisable and
directing its officers to submit said amendment and restatement to the
stockholders of the Corporation for consideration thereof. The resolution
setting forth the proposed amendment and restatement is as follows:
"THEREFORE, BE IT RESOLVED, that the Certificate of Incorporation of
the Corporation is hereby amended to read in its entirety as follows, subject to
the required consent of the stockholders of the Corporation:
FIRST: The name of the Corporation (hereinafter the
"Corporation") is CancerVax Corporation.
SECOND: The address, including street, number, city and
county, of the registered office of the Corporation in the State of Delaware is
2711 Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware
19808; and the name of the Registered Agent of the Corporation at such address
is Corporation Service Company.
THIRD: The nature of the business or purposes to be
conducted or promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware (the "DGCL").
FOURTH: The Corporation is authorized to issue two classes of
stock to be designated, respectively, Common Stock, par value $0.00004 per share
("Common Stock") and Preferred Stock, par value $0.00004 per share ("Preferred
Stock"). The total number of shares the Corporation shall have the authority to
issue is 85,000,000 shares, 75,000,000 shares of which shall be Common Stock and
10,000,000 shares of which shall be Preferred Stock.
(1) Common Stock. The voting, dividend and
liquidation rights of the holders of the Common Stock are subject to and
qualified by the rights of the holders of the Preferred Stock of any series as
may be designated by the Board of Directors upon any issuance of the Preferred
Stock or any series. The holders of the Common Stock are entitled to one vote
for each share held at all meetings of stockholders. There shall be no
cumulative voting.
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Dividends may be declared and paid on the Common Stock from funds lawfully
available therefor as and when determined by the Board of Directors and subject
to any preferential dividend rights of any then outstanding Preferred Stock.
Upon the dissolution or liquidation of the Corporation, whether voluntary or
involuntary, holders of the Corporation will be entitled to receive ratably all
assets of the Corporation available for distribution to stockholders, subject to
any preferential rights of any then outstanding Preferred Stock.
(2) Preferred Stock. Shares of Preferred Stock
may be issued from time to time in one or more series, each of such series to
have such terms as stated in the resolution or resolutions providing for the
establishment of such series adopted by the Board of Directors of the
Corporation as hereinafter provided. Authority is hereby expressly granted to
the Board of Directors of the Corporation to issue, from time to time, shares of
Preferred Stock in one or more series, and, in connection with the establishment
of any such series by resolution or resolutions, to determine and fix such
voting powers, full or limited, or no voting powers, and such other powers,
designations, preferences and relative, participating, optional, and other
special rights, and the qualifications, limitations, and restrictions thereof,
if any, including, without limitation, dividend rights, conversion rights,
redemption privileges and liquidation preferences, as shall be stated in such
resolution or resolutions, all to the fullest extent permitted by the DGCL.
Without limiting the generality of the foregoing, the resolution or resolutions
providing for the establishment of any series of Preferred Stock may, to the
extent permitted by law, provide that such series shall be superior to, rank
equally with or be junior to the Preferred Stock of any other series. The
powers, preferences and relative, participating, optional and other special
rights of each series of Preferred Stock, and the qualifications, limitations or
restrictions thereof, if any, may be different from those of any and all other
series at any time outstanding. Except as otherwise expressly provided in the
resolution or resolutions providing for the establishment of any series of
Preferred Stock, no vote of the holders of shares of Preferred Stock or Common
Stock shall be a prerequisite to the issuance of any shares of any series of the
Preferred Stock authorized by and complying with the conditions of this
Certificate of Incorporation.
FIFTH: (1) The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors
having that number of directors set out in the Bylaws of the Corporation as
adopted or as set forth from time to time by a duly adopted amendment thereto by
the Board of Directors or stockholders of the Corporation.
(2) No director (other than directors
elected by one or more series of Preferred Stock) may be removed from office by
the stockholders except for cause and, in addition to any other vote required by
law, upon the affirmative vote of not less than 66 2/3% of the total voting
power of all outstanding securities of the Corporation then entitled to vote
generally in the election of directors, voting together as a single class.
(3) The directors of the Corporation,
other than directors elected by one or more series of Preferred Stock, shall be
divided into three classes, designated Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of directors (other than directors elected by one or more series of
Preferred Stock) constituting the entire Board of Directors. Each director
(other than directors elected by
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one or more series of Preferred Stock) shall serve for a term ending on the date
of the third annual meeting of stockholders next following the annual meeting at
which such director was elected, provided that directors initially designated as
Class I directors shall serve for a term ending on the date of the 2004 annual
meeting, directors initially designated as Class II directors shall serve for a
term ending on the date of the 2005 annual meeting, and directors initially
designated as Class III directors shall serve for a term ending on the date of
the 2006 annual meeting. Notwithstanding the foregoing, each director shall hold
office until such director's successor shall have been duly elected and
qualified or until such director's earlier death, resignation or removal. If the
number of directors (other than directors elected by one or more series of
Preferred Stock) is changed, any increase or decrease shall be apportioned among
the classes so as to maintain the number of directors in each class as nearly
equal as possible, but in no event will a decrease in the number of directors
shorten the term of any incumbent director. Vacancies on the Board of Directors
resulting from death, resignation, removal or otherwise and newly created
directorships resulting from any increase in the number of directors (other than
directors elected by one or more series of Preferred Stock) may be filled solely
by a vote of a majority of the directors then in office (although less than a
quorum) or by a sole remaining director, and each director so elected shall hold
office for a term that shall coincide with the remaining term of the class to
which such director shall have been elected. Whenever the holders of one or more
classes or series of Preferred Stock shall have the right, voting separately as
a class or series, to elect directors, the nomination, election, term of office,
filling of vacancies, removal and other features of such directorships shall not
be governed by this Article FIFTH unless otherwise provided for in the
certificate of designation for such classes or series.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the Corporation and
for the further definition of the powers of the Corporation and its directors
and stockholders:
(1) The Board of Directors is expressly
authorized to make, adopt, amend, alter, rescind or repeal the Bylaws of the
Corporation. Notwithstanding the foregoing, the stockholders may adopt, amend,
alter, rescind or repeal the Bylaws with, in addition to any other vote required
by law, the affirmative vote of the holders of not less than 66 2/3% of the
total voting power of all outstanding securities of the Corporation then
entitled to vote generally in the election of directors, voting together as a
single class.
(2) Elections of directors need not be by
written ballot unless the Bylaws of the Corporation so provide.
(3) Any action required or permitted to be taken
at any annual or special meeting of stockholders may be taken only upon the vote
of stockholders at an annual or special meeting duly noticed and called in
accordance with the DGCL, and may not be taken by written consent of
stockholders without a meeting.
(4) Special meetings of the stockholders of the
Corporation for any purpose or purposes may be called at any time by the
Chairman of the Board of Directors or at
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the written request of a majority of the members of the Board of Directors and
may not be called by any other person; provided, however, that if and to the
extent that any special meeting of stockholders may be called by any other
person or persons specified in any provisions of the Certificate of
Incorporation or any amendment thereto or any certificate filed under Section
151(g) of the DGCL, then such special meeting may also be called by the person
or persons, in the manner, at the times and for the purposes so specified.
EIGHTH: (a) Subject to Article EIGHTH (c), the
Corporation shall indemnify and hold harmless 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 (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she 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 his or her conduct was unlawful. The termination of any action, suit or
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 he or she 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 his or her conduct was unlawful.
(b) Subject to Article EIGHTH (c), the
Corporation shall indemnify and hold harmless any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he or she is or was a director or officer
of the Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection with the
defense or settlement of such action or suit if he or she acted in good faith
and in a manner he or she 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 of the State of Delaware 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 of the State of Delaware or such other court shall deem proper.
(c) Any indemnification under this Article
EIGHTH (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director or officer or other person entitled to indemnification under this
Article EIGHTH is proper in the circumstances because he or she has
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met the applicable standard of conduct set forth in Article EIGHTH (a) or
Article EIGHTH (b), as the case may be. Such determination shall be made, with
respect to an officer or director, (i) by the Board of Directors by a majority
vote of directors who were not parties to such action, suit or proceeding, even
though less than a quorum, (ii) by a committee of directors who were not parties
to such action, suit or proceeding even though less than a quorum, (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (iv) by the stockholders. To the extent,
however, 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 referred to in Article EIGHTH (a) or Article EIGHTH (b), or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith, without the necessity of authorization in
the specific case.
(d) Notwithstanding any contrary determination
in the specific case under Article EIGHTH (c), and notwithstanding the absence
of any determination thereunder, any present or former director or officer of
the Corporation may apply to the Court of Chancery of the State of Delaware for
indemnification to the extent otherwise permissible under Article EIGHTH (a) and
Article EIGHTH (b). The basis of such indemnification by a court shall be a
determination by such court that indemnification of such person is proper in the
circumstances because he or she has met the applicable standards of conduct set
forth in Article EIGHTH (a) or Article EIGHTH (b), as the case may be. Neither a
contrary determination in the specific case under Article EIGHTH (c) nor the
absence of any determination thereunder shall be a defense to such application
or create a presumption that such person seeking indemnification has not met any
applicable standard of conduct. Notice of any application for indemnification
pursuant to this Article EIGHTH (d) shall be given to the Corporation promptly
upon the filing of such application. If successful, in whole or in part, such
person seeking indemnification in the Court of Chancery of the State of Delaware
shall also be entitled to be paid the expense of prosecuting such application.
(e) Expenses incurred by a person who is or was
a director or officer of the Corporation in defending or investigating a
threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Corporation as authorized in this Article
EIGHTH.
(f) The indemnification and advancement of
expenses provided by or granted pursuant to this Article EIGHTH shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, contract,
vote of stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise, both
as to action in his or her official capacity and as to action in another
capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Article EIGHTH (a) and Article
EIGHTH (b) shall be made to the fullest extent permitted by law. The provisions
of this Article EIGHTH shall not be deemed to preclude the indemnification of
any person who is not specified in Article EIGHTH (a) or Article EIGHTH (b) but
whom the
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Corporation has the power or obligation to indemnify under the provisions of the
DGCL, or otherwise.
(g) The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against any liability
asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would
have the power or the obligation to indemnify him or her against such liability
under the provisions of this Article EIGHTH or Section 145 of the DGCL.
(h) For purposes of this Article EIGHTH,
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 the power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, shall stand in the same position under the provisions of this
Article EIGHTH with respect to the resulting or surviving corporation as he or
she would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article EIGHTH, 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 person
with respect to an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner he or she 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 EIGHTH. For
purposes of any determination under Article EIGHTH (c), a person shall be deemed
to have acted in good faith in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe his or
her conduct was unlawful, if his or her action is based on the records or books
of account of the Corporation or another enterprise, or on information supplied
to him or her by the officers of the Corporation or another enterprise in the
course of their duties, or on the advice of legal counsel for the Corporation or
another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant
or by an appraiser or other expert selected with reasonable care by the
Corporation or another enterprise. The term "another enterprise" as used in this
Article EIGHTH (h) shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which such person
is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Article EIGHTH (h) shall not be deemed
to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Article
EIGHTH (a) or (b), as the case may be.
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(i) The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article EIGHTH shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer of the Corporation and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(j) Notwithstanding anything contained in this
Article EIGHTH to the contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Article EIGHTH (d)), the Corporation
shall not be obligated to indemnify any person in connection with a proceeding
(or part, thereof) initiated by such person unless such proceeding (or part
thereof) was authorized or consented to by the Board of Directors of the
Corporation.
(k) The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of
the Corporation similar to those conferred in this Article EIGHTH to directors
and officers of the Corporation.
NINTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that this Article shall not eliminate or
limit the liability of a director (i) for any breach of his or her duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
the law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from
which the director derives an improper personal benefit.
If the DGCL is hereafter amended to authorize
corporate action further limiting or eliminating the personal liability of
directors, then the liability of the director to the Corporation shall be
limited or eliminated to the fullest extent permitted by the DGCL, as so amended
from time to time. Any amendment, repeal or modification of this Article shall
be prospective only, and shall not adversely affect any right or protection of a
director of the Corporation under this Article NINTH in respect of any act or
omission occurring prior to the time of such amendment, repeal or modification.
TENTH: Each reference in this Certificate of Incorporation
to any provision of the DGCL refers to the specified provision of the DGCL, as
the same now exists or as it may hereafter be amended or superseded.
ELEVENTH: The Corporation reserves the right at any time and
from time to time to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, in the manner now or hereafter prescribed by
the laws of the State of Delaware; and all rights conferred on stockholders,
directors or any other persons herein are granted subject to this reservation;
provided, however, that no amendment, alteration, change or repeal may be made
to Article FIFTH, SEVENTH, EIGHTH, NINTH or ELEVENTH without the affirmative
vote of the holders of at least 66 2/3% of the outstanding voting stock of the
corporation, voting together as a single class."
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3. That said Amended and Restated Certificate of Incorporation
has been consented to and authorized by the holders of a majority of the issued
and outstanding stock entitled to vote in accordance with the provisions of
Section 228 of the DGCL.
4. That said Amended and Restated Certificate of Incorporation
was duly adopted in accordance with the applicable provisions of Sections 242
and 245 of the DGCL.
IN WITNESS WHEREOF, CancerVax Corporation has caused this Certificate
to be signed by David F. Hale, its President and Chief Executive Officer and
Hazel M. Aker, its Secretary, this 3rd day of November 2003.
CancerVax Corporation,
a Delaware corporation
By: /s/ DAVID F. HALE
---------------------------------------------
Name: David F. Hale
Title: President and Chief Executive Officer
ATTEST
/s/ HAZEL M. AKER
---------------------------
Name: Hazel M. Aker
Title: Secretary
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