FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
Pharmion Corporation, a corporation organized and existing under the
laws of the State of Delaware, hereby certifies that:
1. The name of the Corporation is Pharmion Corporation. The Certificate
of Incorporation of the corporation was originally filed with the Secretary of
State of Delaware on August 26, 1999.
2. Pursuant to Section 242 and 245 of the General Corporation Law of
the State of Delaware, this Fourth Amended and Restated Certificate of
Incorporation restates and integrates and further amends the provisions of the
Certificate of Incorporation of this Corporation.
3. Immediately prior to the filing of this Fourth Amended and Restated
Certificate of Incorporation all shares of the Corporation's then designated
Series A-1, Series A-2, Series B and Series C Preferred Stock were converted
upon the consent of the required percentage of the holders of such series of
Preferred Stock. All shares of preferred stock that were so converted were
cancelled upon such conversion and are not reissuable by the Corporation.
4. This Fourth Amended and Restated Certificate of Incorporation was
duly adopted by the written consent of the Board of Directors of the Corporation
and by the written consent of the stockholders of the corporation in accordance
with the applicable provisions of Sections 141, 228, 242 and 245 of the General
Corporation Law of the State of Delaware.
5. The text of the Fourth Amended and Restated Certificate of
Incorporation of the corporation is hereby restated and further amended to read
in its entirety as follows:
"The name of this corporation is Pharmion Corporation (the
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
(A) CLASSES OF STOCK. The 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 110,000,000 shares, each with a par value of $0.001 per share. 100,000,000
shares shall be Common Stock and 10,000,000 shares shall be Preferred Stock.
(B) GENERAL PROVISIONS.
1. Subject to the provisions of this Certificate, the
Corporation may issue shares of its Common Stock or Preferred Stock from time to
time for such consideration (not less than the par value thereof) as may be
fixed by the Board of Directors, which is expressly authorized to fix the same
in its absolute and uncontrolled discretion. Shares so issued for which the
consideration shall have been paid or delivered to the Corporation shall be
deemed fully paid capital stock and shall not be liable to any further call or
assessment thereon, and the holders of such shares shall not be liable for any
further payments in respect of such shares.
2. Subject to the provisions of this Certificate, the
Corporation shall have authority to create and issue rights and options
entitling their holders to purchase shares of the Corporation's capital stock of
any class or series or other securities of the Corporation, and such rights and
options shall be evidenced by instrument(s) approved by the Board of Directors
or a committee of the Board of Directors. The Board of Directors or a committee
of the Board of Directors shall be empowered to set the exercise price,
duration, times for exercise, and other terms of such options or rights;
provided, however, that the consideration to be received for any shares of
capital stock subject thereto shall not be less than the par value thereof.
The designations, powers, preferences, rights, qualifications,
limitations and restrictions of the Common Stock and the Preferred Stock are as
(C) COMMON STOCK.
1. GENERAL. Except as otherwise provided herein or as
otherwise provided by applicable law, all shares of Common Stock shall have
identical rights and privileges in every respect.
2. RELATIVE RIGHTS OF PREFERRED STOCK AND COMMON STOCK. All
preferences, voting powers, relative, participating, optional or other special
rights and privileges, and qualifications, limitations, or restrictions of the
Common Stock are expressly made subject and subordinate to those that may be
fixed with respect to any shares of any series of the Preferred Stock.
3. VOTING RIGHTS. Except as otherwise required by law or this
Certificate, each holder of Common Stock shall have one vote in respect of each
share of stock held by such holder of record on the books of the Corporation on
all matters submitted to a vote for stockholders of the Corporation. Except as
otherwise provided in the Corporation's Certificate of Incorporation, the number
of authorized shares of Common 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 stock of the Corporation entitled to vote,
irrespective of the provisions of Section 242(b)(2) of the General Corporation
Law of Delaware. Holders of Common Stock are not entitled to cumulate votes in
the election of any directors.
4. DIVIDENDS. Subject to the prior rights and preferences, if
any, applicable to shares of Preferred Stock, the holders of shares of 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,
dividends payable either in cash, in property or in shares of capital stock.
Dividends payable under this Subsection (C) shall be paid to the holders of
record of outstanding Common Stock as their names shall appear on the stock
register of the Corporation on the record date fixed by the Board of Directors
in advance of the declaration and payment of each dividend. Any shares of Common
Stock issued as a dividend pursuant to this Subsection (C) shall, when so
issued, be duly authorized, validly issued, fully paid and non-assessable, and
free of all liens and charges. The Corporation shall not issue fractions of
shares of Common Stock on payment of such dividend but shall issue a whole
number of shares to such holder of Common Stock rounded up or down in the
Corporation's sole discretion to the nearest whole number, without compensation
to the stockholder whose fractional share has been rounded down or from any
stockholder whose fractional share has been rounded up.
5. LIQUIDATION PREFERENCES. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, after all creditors of the Corporation shall have been paid in full
and after payment of all sums payable in respect of Preferred Stock, if any, the
holders of the Common Stock shall share on a pro rata basis in all distributions
of assets pursuant to such liquidation.
6. RESERVATION OF SHARES. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, or out of shares of Common Stock held in its treasury, the full number of
shares of Common Stock into which all shares of any series of Preferred Stock
having conversion privileges from time to time outstanding are convertible.
(D) PREFERRED STOCK.
1. GENERAL. The shares of Preferred Stock of the Corporation
may be issued from time to time in one or more classes or series thereof, the
shares of each class or series thereof to have such voting powers, full or
limited, or no voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as are stated and expressed herein or in the resolution
or resolutions providing for the issue of such class or series, adopted by the
Board of Directors as hereinafter provided.
2. ISSUANCE, DESIGNATIONS, PREFERENCES AND RIGHTS. Authority
is hereby expressly granted to and vested in the Board of Directors, subject to
the provisions of this Subsection (D), and to the limitations prescribed by the
DGCL, to authorize the issuance of the Preferred Stock from time to time in one
or more classes or series, and with respect to each such class or series to fix
by resolution or resolutions providing for the issue of such class or series and
the designations, preferences and relative, participating, optional or other
special rights, and
qualifications, limitations and restrictions thereof. The authority of the Board
of Directors with respect to each class or series thereof shall include, but not
be limited to, the determination or fixing of the following:
(a) whether or not the class or series is to have
voting rights, full, special or limited, or is to be without voting rights, and
whether or not such class or series is to be entitled to vote as a separate
class either alone or together with the holders of one or more other classes or
series of capital stock;
(b) the number of shares to constitute the class or
series and the designations thereof;
(c) the preferences and relative, participating,
optional or other special rights, if any, and the qualifications, limitations or
restrictions thereof, if any, with respect to any class or series;
(d) whether or not the shares of any class or series
shall be redeemable at the option of the Corporation or the holders thereof or
upon the happening of any specified event, and, if redeemable, the redemption
price or prices (which may be payable in the form of cash, notes, securities or
other property) and the time or times at which, and the terms and conditions
upon which, such shares shall be redeemable and the manner of redemption;
(e) whether or not the shares of a class or series
shall be subject to the operation of retirement or sinking funds to be applied
to the purchase or redemption of such shares for retirement, and, if such
retirement or sinking fund or funds are to be established, the annual amount
thereof and the terms and provisions relative to the operation thereof;
(f) the dividend rate, whether dividends are payable
in cash, securities of the Corporation or other property, the conditions upon
which and the times when such dividends are payable, the preference to or the
relation to the payment of dividends payable on any other class or classes or
series of capital stock, whether or not such dividends shall be cumulative or
noncumulative and, if cumulative, the date or dates from which such dividends
(g) the preferences, if any, and the amounts thereof
which the holders of any class or series thereof shall be entitled to receive
upon the voluntary or involuntary dissolution of, or upon any distribution of
the assets of, the Corporation;
(h) whether or not the shares of any class or series,
at the option of the Corporation or the holder thereof or upon the happening of
any specified event, shall be convertible into or exchangeable for the shares of
any other class or classes or of any other series of the same or any other class
or classes of capital stock, securities, or other property of the Corporation or
any other entity and the conversion price or prices, ratio or ratios, or the
rate or rates at which such conversion or exchange may be made, with such
adjustments, if any, as shall be stated and expressed or provided for in such
resolution or resolutions; and
(i) such other special rights and protective
provisions with respect to any class or series the Board of Directors may
3. The shares of each class or series of Preferred Stock may
vary from the shares of any other class or series thereof in any or all of the
foregoing respects. The Board of Directors may increase the number of shares of
the Preferred Stock designated for any existing class or series by a resolution
adding to such class or series authorized and unissued shares of the Preferred
Stock not designated for any other class or series. The Board of Directors may
decrease the number of shares of the Preferred Stock designated for any existing
class or series by a resolution subtracting from such class or series authorized
and unissued shares of the Preferred Stock designated for such existing class or
series, and the shares so subtracted shall become authorized, unissued and
undesignated shares of the Preferred Stock.
4. 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 a majority of the holders of the Preferred Stock, or any
class or series thereof, unless a vote of any such holders is otherwise required
pursuant to this Subsection (D).
Holders of Preferred Stock shall not be entitled to receive notice of
any meeting of stockholders at which they are not entitled to vote.
(A) BOARD OF DIRECTORS. The number, classification and terms of the
Board of Directors and the procedures to elect directors and to remove directors
shall be as follows:
1. NUMBER OF DIRECTORS. Except as otherwise fixed by or
pursuant to the provisions of this Certificate relating to the rights of the
holders of any class or series of Preferred Stock to elect directors under
specified circumstances, the number of directors constituting the Board of
Directors shall be no less than one, 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. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director. No director need be a stockholder.
2. CLASSIFICATIONS. Subject to the rights of holders of any
subsequently issued class or series of Preferred Stock, the directors of the
Corporation shall be divided by the Board of Directors into three classes (the
"Classified Directors") with the first class ("Class I"), second class ("Class
II") and third class ("Class III") each to consist as nearly as practicable of
an equal number of directors. The term of office of the initial Class I
directors shall expire at the first 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, with each
director to hold office until his or her successor shall have been duly elected
and qualified. At each annual meeting of stockholders, the Classified Directors
elected to succeed those Classified Directors whose terms then expire shall be
elected for a term of office to expire at the third succeeding annual meeting of
stockholders following their election.
3. WRITTEN BALLOTS. Elections of the directors need not be by
written ballot unless otherwise provided in the Bylaws of the Corporation.
4. REMOVAL. A director of the Corporation may be removed only
for cause. For purposes of removal of a director of the Corporation, "cause"
shall mean (a) a final conviction of a felony involving moral turpitude or (b)
willful misconduct that is materially and demonstrably injurious economically to
the Corporation. For purposes of this definition of "cause," no act, or failure
to act, by a director shall be considered "willful" unless committed in bad
faith and without a reasonable belief that the act or failure to act was in the
best interest of the Corporation or any Affiliate of the Corporation. "Cause"
shall not exist unless and until the Corporation has delivered to the director a
written notice of the act or failure to act that constitutes "cause" and, if
cure is possible, such director shall not have cured such act or omission within
90 days after the delivery of such notice. As used in this Certificate,
"Affiliate" has the meaning given such term under Rule 12b-2 of the Securities
Exchange Act of 1934.
5. VACANCIES. Vacancies on the Board of Directors may be
filled by no less than a majority vote of the remaining directors then in
office, or by the sole remaining director, or by the stockholders if the vacancy
was caused by removal of the director by the stockholders.
Meetings of the stockholders may be held within or without the State of
Delaware, as the Bylaws 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, and no
stockholder of the Corporation shall 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
No action required to be taken or that may be taken at any meeting of
holders of Common Stock may be taken without a meeting. The power of holders of
Common Stock to consent in writing, without a meeting, to the taking of any
action is specifically denied.
The Board of Directors of the Corporation is expressly authorized to
make, alter or repeal Bylaws of the Corporation, subject to any restrictions
contained in the Bylaws of the Corporation or in this Certificate of
(A) 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 breach of
fiduciary duty as a director.
(B) The Corporation shall 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 or officer of the
Corporation or any predecessor of the Corporation, or serves or served at any
other enterprise as a director or officer at the request of the Corporation or
any predecessor to the Corporation, against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by or on behalf of such person in connection with such action or
proceeding and any appeal therefrom.
(C) Neither any amendment nor repeal of this ARTICLE IX, nor the
adoption of any provision of the Corporation's Certificate of Incorporation
inconsistent with this ARTICLE IX, shall eliminate or reduce the effect of this
ARTICLE IX in respect of any matter occurring, or any action or proceeding
accruing or arising or that, but for this ARTICLE IX, would accrue or arise,
prior to such amendment, repeal or adoption of an inconsistent provision."
Notwithstanding any other provisions of this Certificate 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 required by law or by this
Certificate, the affirmative vote of the holders of not less than 80 percent 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 any provision inconsistent with, ARTICLE V, ARTICLE
VI, ARTICLE VII, ARTICLE VIII or this ARTICLE X of this Certificate.
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* * *
IN WITNESS WHEREOF, Pharmion Corporation has caused this Fourth Amended
and Restated Certificate of Incorporation to be duly executed by its Chief
Executive Officer this __ day of ____________, 2003.
Name: Patrick J. Mahaffy
Title: Chief Executive Officer