Filing
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Delaware
(State of Incorporation or organization) |
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84-1318182
(I.R.S. Employer ID Number) |
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9948 Hibert Street, Suite 100
San Diego, California
Address of principal executive offices |
92131
Zip Code |
| Title of each Class to Be Registered | Name of Each Exchange on Which Each Class Is to be Registered | |||
| Common Stock, par value $0.001 per share |
American Stock Exchange LLC |
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| 2 | ||
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| ADVENTRX PHARMACEUTICALS, INC | ||
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| Date: April 22, 2004 | By: | /s/ Steven M. Plumb |
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| Title: Chief Financial Officer | ||
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| 3 | ||
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No. |
Description |
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3.1 |
Certificate of Incorporation of Victoria Enterprises, Inc. |
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3.2 |
Certificate of Amendment of Certificate of Incorporation of Victoria Enterprises, Inc. |
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3.3 |
Certificate of Amendment of Certificate of Incorporation of BioQuest, Inc. |
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3.4 |
Certificate of Amendment of Certificate of Incorporation of BioQuest, Inc. |
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3.5 |
Certificate of Ownership and Merger Merging Biokeys, Inc. with and into Biokeys Pharmaceuticals, Inc. |
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3.6* |
Amended and Restated Bylaws of Biokeys Pharmaceuticals, Inc. |
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3.7 |
Certificate of Amendment to the Certificate of Incorporation of ADVENTRX Pharmaceuticals, Inc. |
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4.1* |
Certificate of Designation of BioQuest, Inc. |
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4.2** |
Certificate of Designation of Series B Convertible Preferred Stock and Series C Convertible Preferred Stock of Biokeys Pharmaceuticals, Inc. effective September 23, 2002 |
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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
VICTORIA ENTERPRISES, INC.
ARTICLE I - NAME
1. The name of the corporation is Victoria Enterprises, Inc.
ARTICLE II - REGISTERED AGENT
2. The address of its registered office in the State of Delaware is 201
North Walnut Street, in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is The Company Corporation.
ARTICLE III - PURPOSE
3. 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 Delaware.
ARTICLE IV - CAPITALIZATION
4. The total number of shares of stock which the corporation shall have
the authority to issue is 31,000,000.
4.1 Of the authorized shares, 30,000,000 shall be shares of common
stock (the "Common Stock") with a par value of $.001 per share.
4.2 Of the authorized shares, 1,000,000 shall be shares of preferred
stock (the "Preferred Stock") with a par value of $.10 per share. The
designations of the Preferred Shares and the powers, preferences,
qualifications, limitations or restrictions, and relative rights thereof shall
be as follows:
a. The board of directors is expressly authorized at any time
and from time to time to provide for the issuance of the Preferred Stock in one
or more series, with such voting powers and with such designations, preferences
and relative, participating, option or other special rights and qualifications,
limitations or restrictions thereof as shall be expressed in the resolution or
resolutions providing for the issue thereof adopted by the board of directors
and as are not expressed in this Certificate of Incorporation or any amendment
hereto, including (but without limiting the generality of the foregoing the
following:
1
(1) the designation of such series;
(2) the dividend rate of such series, the conditions
and dates upon which such dividends shall be payable, the preference or relation
which such dividends shall bear to the dividends payable on any other class or
classes or on any-other series of any class or classes of capital stock of the
corporation, and whether such dividends shall be cumulative or noncumulative;
(3) whether the shares of such series may be redeemed
by the corporation, and, if so, the times, prices and other terms and conditions
of such redemption;
(4) the terms and amount of any sinking fund provided
for the purchase or redemption of the shares of such series;
(5) whether the shares of such series shall be
convertible into or exchangeable for shares of any other class or classes or of
any other series of any class or classes of capital stock of the corporation,
and, if the provision be made for conversion or exchange, the times, prices,
rates, adjustments and other terms and condition of such conversion or exchange.
(6) the restrictions and conditions, if any, upon the
issue or reissue of any additional Preferred Shares ranking on a parity with or
prior to such shares as to dividends or upon dissolution; and
(7) the rights of holders of the shares of such
series upon the liquidation or the distribution of assets of the corporation,
which rights may be different in the case of a voluntary liquidation than in the
case of an involuntary liquidation.
b. Except as otherwise required by law and except for such
voting powers with respect to the election of directors or other matters as may
be stated in the resolutions of the board of directors creating any series of
Preferred Shares, the holders of any such series shall have no voting power
whatsoever.
c. 200,000 shares of Preferred Stock are hereby designated
Series A Preferred Stock ("A Preferred Stock") with the following rights,
preferences and limitations:
(i) the A Preferred Stock shall be non-voting, (ii)
the holders of the A Preferred Stock, as a group, shall have the right to
receive, pro rata, a mandatory dividend of 10% of the Company's adjusted gross
profit as reflected on its annual corporate income tax return and to be paid
within ten days of the filing thereof, and (iii) upon dissolution or winding up
of the Company, 10% of the assets of the Company shall be distributed on a pro
rata basis to the holders of the A Preferred Stock prior to division and
distribution of assets to the holders of the Company's Common Stock.
4.3 Each share of common stock shall be entitled to one vote,
either in person or by proxy, at all stockholder meetings.
4.4 Cumulative voting shall not be allowed in the election of
directors.
4.5 All outstanding shares of common stock shall share equally
in dividends and upon liquidation subject to the rights of any Preferred Shares.
Dividends are payable at the discretion of the board of directors at such times
and in such amounts as it deems advisable, subject to the rights of any
Preferred Shares and the provisions of the Delaware General Corporation Law.
2
ARTICLE V - INCORPORATOR
5. The name and mailing address of the incorporator is as follows:
NAME MAILING ADDRESS
Kimberly Andras The Company Corporation,
201 N. Walnut St.
Wilmington, DE 19801
6. The corporation is to have perpetual existence.
ARTICLE VI - LIMITATION OF LIABILITY
7. 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 except for liability (i) for any breach of the director's
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 law, (iii) under Section 174 of the Delaware General Corporation
law, or (iv) for any transaction from which the director derived any improper
personal benefit.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this Certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated as true, and
accordingly have hereunto set my hand this 1st day of December, 1995.
/s/ Kimberly Andras
3
EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
VICTORIA ENTERPRISES, INC.
The undersigned corporation, in order to amend its Certificate of
Incorporation, hereby certifies as follows:
FIRST: The name of the corporation is: VICTORIA ENTERPRISES, INC.
SECOND: The corporation hereby amends its Certificate of Incorporation as
follows:
Paragraph FIRST of the Certificate of Incorporation, relating to the
corporate title of the corporation, is hereby amended to read as follows:
"FIRST: The name of the corporation is: BIOQUEST, INC."
THIRD: The amendment effected herein was authorized by the consent in
writing, setting forth the action so taken, signed by the holders of at least a
majority of the outstanding shares entitled to vote thereon, and due notice so
taken has been given to those shareholders who have not consented in writing
pursuant to Sections 222 and 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, I hereunto sign my name and affirm that the statements
made herein are true under the penalties of perjury, this 31st day of November,
1996.
/s/ Robert Knight
------------------------
Robert Knight, President
EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BIOQUEST, INC.
BIOQUEST, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify as follows:
FIRST: The Certificate of Incorporation of the Corporation was filed in
the Office of the Secretary of State of the State of Delaware on the 1st day of
December, 1995, pursuant to the General Corporation Law of the State of Delaware
under the name of Victoria Enterprises, Inc. A Certificate of Amendment of the
Certificate of Incorporation effecting change in the name of the Corporation to
its present name was filed in the Office of the Secretary of State of the State
of Delaware on the 14th day of November, 1996.
SECOND: That at a meeting of the Board of Directors of the Corporation,
resolutions were duly adopted setting forth a proposed amendment of the
Certificate of Incorporation of said Corporation, declaring said amendment to be
advisable and providing for consideration thereof at the next scheduled meeting
of the stockholders of the Corporation. The resolutions to setting forth the
proposed amendment are as follows:
RESOLVED, that the Certificate of Incorporation be amended to
effectuate a combination and reverse split of all the issued and outstanding
shares of common stock of the Corporation in a ratio of one - for - 1.989949857;
and it is further
RESOLVED, that current Article IV of the Certificate of
Incorporation be deleted in its entirety and the following be substituted in
lieu thereof; Title per certificate
"ARTICLE IV- CAPITALIZATION
4. The Corporation is authorized to issue $1,000,000 Shares in
two classes, to be designated, respectively, Preferred Stock,
par value $0.01 per share ("Preferred"), and Common Stock, par
value $0.001 per share ("Common").
4.1 The total number of shares of Common that the Corporation
shall have authority to issue is 50,000,000. The total number
of shares of Preferred that the Corporation shall have
authority to issue is 1,000,000. The Preferred may be issued
from time to time in one or more series.
4.2 The Board of Directors is hereby authorized, subject to
limitations prescribed by law and the provisions of this
Article IV, by resolution to provide for the issuance of
Preferred shares in one or more series, and to establish from
time to time the number of shares to be included in each such
series, and to fix the designation, powers, privileges,
preferences and relative participating, optional or other
rights, if any, of the shares of each such series and the
qualifications, limitations or restrictions thereof.
4.3 The authority of the Board of Directors with respect to
each series shall include, but not be limited to,
determination of the following:
A. The number of shares constituting that series (including an
increase or decrease in the number of shares of any such
series (but not below the number of shares in any series then
outstanding) and the distinctive designation of that series;
B. The dividend rate on the shares in that series, whether
dividends shall be cumulative, and, if so, from which date or
dates, and the relative rights of priority, if any, of payment
of dividends on shares of that series;
C. Whether that series shall have voting rights (including
multiple or fractional votes per share) in addition to the
voting rights provided by law, and, if so, the terms of such
voting rights;
D. Whether that series shall have conversion privileges, and,
if so, the terms and conditions of such privileges, including
provision for adjustment of the conversion rate in such events
as the Board of Directors shall determine;
E. Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which
they shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different
conditions and at different redemption rates;
F. Whether that series shall have a sinking fund or sinking
funds for the redemption or purchase of shares of that series,
and, if so, the terms and amount of such sinking fund or
funds;
G. The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, and the relative rights of priority, if
any, of payment of shares of that series; and
H. Any other relative rights, preferences and limitations of
that series.
4.4 No holder of sham of the Corporation of any class, now or
hereafter authorized, shall have any preferential or
preemptive rights to subscribe for, purchase or receive any
shares of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any
rights to subscribe for, purchase or receive any securities
convertible to or exchangeable for such shares, which may at
any time be issued, sold or offered for sale by the
Corporation, except in the case of any shares of Preferred to
which such rights are specifically granted by any resolution
or resolutions of the Board of Directors adopted pursuant to
this Article IV."
and it is further
RESOLVED, that at 5:00 pm, EST, on the date of the
filing of this Certificate of Amendment to the Certificate of
Incorporation, all outstanding shares of Common Stock held by
each holder of record on such date shall be automatically
combined at the rate of one- for-1.989949857 without any
further action on the part of the holders thereof or the
Corporation. No fractional shares will be issued. All
fractional shares for one-half share or more shall be
increased to the next higher whole number of shares and all
fractional shares of less than one-half share shall be
decreased to the next lower whole number of shares,
respectively; and it is further
THIRD: That, pursuant to resolutions of the Corporation's Board of
Directors, the 2000 annual meeting of the stockholders of the Corporation was
duly called and held on the 23rd day of June, 2000 upon -notice in accordance
with Section 222 of the General Corporation Law of the State of Delaware, at
which meeting the-necessary numbers of shares as required by statute were voted
in favor of the amendment.
FOURTH: That the aforesaid amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FIFTH: That the capital of said Corporation shall not be reduced under or
by reason of said amendment.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
hereunto affixed and this Certificate to be signed by its officers thereunto
duly authorized as of the 25th day of June, 2000.
Dated: As of June 25, 2000. BIOQUEST, INC.
By: /s/ Warren C. Lau
-------------------
Warren C. Lau,
President
ATTEST:
/s/ Robert D, Whitworh
- ----------------------------
Robert D. Whitworth
Secretary
EXHIBIT 3.4
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BIOQUEST, INC.
UNDER SECTION 242 OF THE
DELAWARE GENERAL CORPORATION LAW
Pursuant to the provisions of Section 242 of the General Corporation Law,
the undersigned, being the President of the corporation, hereby certifies that:
FIRST: The name of the corporation is Bioquest, Inc.
SECOND: The amendment to the Certificate of Incorporation effected by this
Certificate is as follows:
(a) Paragraph FIRST of the Certificate of Incorporation, relating to the
name of the corporation, is hereby amended to read as follows:
"FIRST: The name of the corporation is:
Biokeys Pharmaceuticals, Inc."
THIRD: The aforesaid amendment of the Certificate of Incorporation was
duly adopted and approved in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, I hereunto sign my name and affirm that the statements
made herein are true under the penalties of perjury, this 12th day of October,
2000.
BIOQUEST, INC.
BY: /s/ WARREN C. LAU
-----------------
Warren C. Lau,
President
EXHIBIT 3.5
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
BIOKEYS, INC.
WITH AND INTO
BIOKEYS PHARMACEUTICALS, INC.
(Pursuant to Section 253 of the Delaware General Corporation Law)
The undersigned, Nicholas J. Virca, Chief Executive Officer, President and
Secretary of Biokeys Pharmaceuticals, Inc., a Delaware corporation (the
"Corporation"), hereby certifies:
1. That the Corporation is incorporated pursuant to the Delaware General
Corporation Law;
2. That the Corporation owns all of the outstanding shares of each class
of the capital stock of Biokeys, Inc., a Delaware corporation;
3. That the Corporation, by the following resolutions of its Board of
Directors, duly adopted on May 19, 2003, determined to merge into itself
Biokeys, Inc. and change the name of the Corporation on the conditions set forth
in such resolutions:
RESOLVED: That pursuant to Section 253 of the Delaware General
Corporation Law, Biokeys Pharmaceuticals, Inc. shall merge into itself its
subsidiary, Biokeys, Inc., and assume all of Biokeys, Inc.'s liabilities and
obligations;
RESOLVED FURTHER: That the Certificate of Incorporation of the
Corporation be amended by striking Article I in its entirety and replacing
therefor: "1. The name of the corporation is ADVENTRX Pharmaceuticals, Inc.";
and
RESOLVED FURTHER: That the Chief Executive Officer, President and
Secretary of Biokeys Pharmaceuticals, Inc. be, and hereby is, authorized and
directed to make, execute and acknowledge a Certificate of Ownership and Merger
setting forth a copy of the resolution to merge Biokeys, Inc. with and into
Biokeys Pharmaceuticals, Inc. and to assume Biokeys, Inc.'s liabilities and
obligations and to file the Certificate of Ownership and Merger in the office of
the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, Biokeys Pharmaceuticals, Inc. has caused this
certificate to be signed by Nicholas J. Virca, its authorized officer, this 29th
day of May, 2003.
/s/ Nicholas J. Virca
--------------------------------------------------
Nicholas J. Virca
Chief Executive Officer, President and Secretary
EXHIBIT 3.7
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
ADVENTRX PHARMACEUTICALS, INC.
The undersigned, Nicholas J. Virca, hereby certifies that:
1. He is the duly elected and acting Chief Executive Officer and President
of ADVENTRX Pharmaceuticals, Inc., a Delaware corporation (the "Corporation").
2. The Certificate of Incorporation of the Corporation was originally
filed with the Secretary of State of the State of Delaware on December l, 1995.
3. The amendment to the Certificate of Incorporation of the Corporation
set forth below was duly adopted by the Corporation's Board of Directors and
stockholders in accordance with the applicable provisions of Sections 141, 228
and 242 of the Delaware General Corporation Law.
4. Article IV, Sections 4 and 4.1 of the Certificate of Incorporation of
the Corporation shall be amended to read in their entirety as follows:
"4. The Corporation is authorized to issue up to 101,000,000
shares of stock in two classes to be designated, respectively,
Preferred Stock, par value $0.01 per share (`Preferred"), and
Common Stock, par value $0.001 per share ("Common").
4.1 The total number of shares of Common that the Corporation
shall have authority to issue is 100,000,000. The total number
of shares of Preferred that the Corporation shall have
authority to issue is 1,000,000. Shares of Preferred maybe
issued from time to time in one or more series."
Executed at San Diego, California, on January 5, 2004.
/s/ Nicholas J. Virca
---------------------------------------------------------
Nicholas J. Virca, Chief Executive Officer and President
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