EXHIBIT
3.11
ACCESS
PHARMACEUTICALS, INC.
CERTIFICATE
OF AMENDMENT
TO
CERTIFICATE
OF DESIGNATIONS, RIGHTS AND PREFERENCES
OF
SERIES
A CUMULATIVE CONVERTIBLE PREFERRED STOCK
Pursuant
to Section 242 of the
General
Corporation Law of the State of Delaware
Access Pharmaceuticals, Inc., a
corporation organized and existing under the laws of the State of Delaware (the
“Corporation”),
hereby certifies that the following resolutions (a) were duly adopted by the
Board of Directors of the Corporation pursuant to authority conferred upon the
Board of Directors by the provisions of the Certificate of Incorporation of the
Corporation, as amended (the “Certificate of
Incorporation”), which authorizes the issuance of up to 2,000,000 shares
of preferred stock, $0.01 par value per share, at a meeting of the Board of
Directors held on December 18, 2007, (b) was consented to by holders of more
than 66% of the outstanding shares of the Series A Cumulative Convertible
Preferred Stock, par value $0.01 per share, of the Corporation (the “Series A Preferred
Stock”) and (c) was consented to by holders of more than 50% of the
voting power of the common stock, par value $0.01 per share, of the Corporation
(the “Common
Stock”) voting together with the holders of Series A Preferred Stock on
an as converted basis.
RESOLVED, that effective upon
the filing of this Certificate of Amendment to Certificate of Designations,
Rights and Preferences of Series A Cumulative Convertible Preferred Stock (this
“Certificate of
Amendment”), the Certificate of Designations, Rights and Preferences of
Series A Cumulative Convertible Preferred Stock dated and filed with the
Delaware Secretary of State on November 9, 2007 (the “Certificate of
Designation”), be amended as follows:
1. The
first paragraph of Section 4 of the Certificate of Designation is hereby deleted
in its entirety and replaced with the following:
“4. Actions Requiring the
Consent of Holders of Series A Preferred Stock. As long as 20% of the
shares of Series A Preferred Stock issued pursuant to the Purchase Agreement
remain outstanding, the consent of the holders of at least 66% of the shares of
Series A Preferred Stock at the time outstanding, given in accordance with the
Certificate of Incorporation and Bylaws of the Corporation, as amended from time
to time, shall be necessary for effecting or validating any of the following
transactions or acts, whether by merger, consolidation or otherwise (for the
avoidance of doubt, no such consent shall be required for the Corporation to
amend the Certificate merely to increase the Corporation’s authorized shares of
Common Stock or undesignated preferred stock):”
2.
Existing Section 4(h) of the Certificate of Designation is hereby re-numbered as
Section 4(j) and the following new Sections 4(h) and 4(i) are inserted after
existing Section 4(g):
“(h) any
Change of Control or any liquidation, winding up or dissolution of the
Corporation or any subsidiary thereof, whether in one transaction or a series of
transactions, or adoption of any plan for the same;
(i) in a
transaction or series of related transactions involving aggregate potential
consideration in excess of $20 million, any sale, transfer, license, sublicense,
encumbrance or other disposition of any of the Corporation’s intellectual
property, including, without limitation, patents, trademarks, service marks,
copyrights, trade secrets, technologies, compounds and trade names, whether
owned outright by the Corporation or licensed from another person or entity,
whether in registered or unregistered form, and whether or not an application
for registration has been filed; or”
3.
Existing Section 5(b) of the Certificate of Designation is hereby deleted in its
entirety (except that, for avoidance of doubt, the existing defined terms
“Conversion Triggering Event” and “Registration Statement” contained in Section
5(b) are not deleted and remain in full force and effect) and replaced with the
following:
“(b) Mandatory Conversion.
With the prior written consent of holders of not less than a majority of the
Series A Preferred Stock at such time outstanding, if a Conversion Triggering
Event (as defined below) has occurred, and provided that the Corporation has
delivered a written notice to the holders of the Series A Preferred Stock (the
“Notice”) that
the Corporation intends to convert all of the outstanding Series A Preferred
Stock into Common Stock, then, subject to the limitations set forth in Section
5(i) hereof, as of the date that is sixty-five days following the date that such
Notice is given (the “Mandatory Conversion
Date”), the Series A Preferred Stock shall be converted into such number
of fully paid and non-assessable shares of Common Stock as is determined by
dividing (i) the aggregate Liquidation Preference of the shares of Series A
Preferred Stock to be converted plus accrued and unpaid dividends thereon by
(ii) the applicable Conversion Value (as hereinafter defined) then in effect for
such Series A Preferred Stock (the “Mandatory
Conversion”). Nothing in this Section 5(b) shall be construed
so as to limit the right of a holder of Series A Preferred Stock to convert
pursuant to Section 5(a) at any time. The Corporation may not deliver a Notice,
and any Mandatory Conversion delivered by the Corporation shall not be
effective, unless all of the Equity Conditions have been met on each Trading Day
during the twenty day period prior to and including the later of the Mandatory
Conversion Date and the Trading Day after the date that the Conversion Shares
issuable pursuant to such conversion are actually delivered to the Holders
pursuant to the Notice.”
4.
Existing Section 5(c)(iii) of the Certificate of Designation is hereby deleted
in its entirety and replaced with the following:
“(iii) The
Corporation’s obligation to issue Common Stock upon conversion of Series A
Preferred Stock in accordance with this Certificate of Designation shall be
absolute, is independent of any covenant of any holder of Series A Preferred
Stock, and shall not be subject to: (A) any offset or defense; or (B)
any claims against the holders of Series A Preferred Stock whether pursuant to
this Certificate of Designation, the Preferred Stock and Warrant Purchase
Agreement or any subsequent Series A Amended and Restated Preferred Stock and
Warrant Purchase Agreement (in either case the “Purchase Agreement”)
entered into among the Corporation and the purchasers of the Series A Preferred
Stock on or about the Filing Date, the Investor Rights Agreement, the Warrants
or otherwise.”
RESOLVED, that the
Certificate of Designation shall remain in full force and effect except as
expressly amended hereby.
[Signature
page follows.]
THE UNDERSIGNED, being a duly
authorized officer of the Corporation, does file this Certificate of Amendment
to Certificate of Designations, Rights and Preferences of Series A Cumulative
Convertible Preferred Stock, hereby declaring and certifying that the facts
herein stated are true and accordingly has hereunto set his hand this 10th day
of June, 2008.
ACCESS
PHARMACEUTICALS, INC.
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By:
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/s/ Stephen B.
Thompson |
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Name: |
Stephen B.
Thompson |
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Title: |
Secretary,
|
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Vice
President, |
| |
|
Chief
Financial Officer |