SIXTH

 

                              AMENDED AND RESTATED

 

                          CERTIFICATE OF INCORPORATION

 

                                       OF

 

                        DYNAVAX TECHNOLOGIES CORPORATION

 

                                    ARTICLE I

 

                  The name of the Corporation is Dynavax Technologies

Corporation (the "Corporation").

 

                                   ARTICLE II

 

                  The address, including street, number, city, and county, of

the registered office of the Corporation in the State of Delaware is 1209 Orange

Street, City of Wilmington, County of New Castle, Delaware 19801. The name of

its registered agent at such address is The Corporation Trust Company.

 

                                   ARTICLE III

 

                  The nature of the business and the purposes to be conducted

and promoted by the Corporation shall be: To conduct any lawful business, to

promote any lawful purpose, and to engage in any lawful act or activity for

which corporations may be organized under the General Corporation Law of the

State of Delaware.

 

                                   ARTICLE IV

 

                  The Corporation is authorized to issue two classes of stock to

be designated, respectively, Common Stock and Preferred Stock . The Corporation

shall be authorized to issue 100,000,000 shares of Common Stock at $0.001 par

value, and 5,000,000 shares of Preferred Stock at $0.001 par value. The

Preferred Stock may be issued from time to time in one or more series pursuant

to a resolution or resolutions providing for such issue duly adopted by the

Board of Directors (authority to do so being hereby expressly vested in the

Board). The rights, preferences, privileges and restrictions granted to or

imposed upon the Preferred Stock or any series of Preferred Stock will be

determined or altered by the Board of Directors. The Board of Directors shall

also have the authority to fix or alter the number of shares of any series of

Preferred Stock and the designation of any such series of Preferred Stock. The

Board of Directors, within the limits and restrictions stated in any resolution

or resolutions of the Board of Directors originally fixing the number of shares

constituting any series, may increase or decrease

 

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(but not below the number of shares in any such series then outstanding), the

number of shares of any series subsequent to the issue of shares of that series.

 

                                    ARTICLE V

 

                  The Corporation is to have perpetual existence.

 

                                   ARTICLE VI

 

                  Whenever a compromise or arrangement is proposed between the

Corporation and its creditors or any class of them and/or between the

Corporation and its stockholders or any class of them, any court of equitable

jurisdiction within the State of Delaware may, on the application in a summary

way of the Corporation or of any creditor or stockholder thereof, or on the

application of any receiver or receivers appointed for the Corporation under the

provisions of Section 291 of Title 8 of the Delaware Code or on the application

of trustees in dissolution or of any receiver or receivers appointed for the

Corporation under the provisions of Section 279 of Title 8 of the Delaware Code

order a meeting of the creditors or class of creditors, and/or of the

stockholders or class of stockholders of the Corporation, as the case may be, to

be summoned in such manner as the said court directs. If a majority in number

representing three-fourths in value of the creditors or class of creditors,

and/or of the stockholders or class of stockholders of the Corporation, as the

case may be, agree to any compromise or arrangement and to any reorganization of

the Corporation as a consequence of such compromise or arrangement, the said

compromise or arrangement and the said reorganization shall, if sanctioned by

the court to which the said application has been made, be binding on all the

creditors or class of creditors, and/or on all the stockholders or class of

stockholders, of the Corporation, as the case may be, and also on the

Corporation.

 

                                   ARTICLE VII

 

         A. 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 constitutes the whole Board of Directors of the corporation

shall be designated in the Bylaws of the corporation.

 

         B. CLASSIFIED BOARD. The Board of Directors shall be divided into three

classes designated as Class I, Class II and Class III, respectively. Directors

shall be assigned to each class in accordance with a resolution or resolutions

adopted by the Board of Directors. At the first annual meeting of stockholders

following the closing of an underwritten public offering of the Corporation's

common stock pursuant to an effective registration statement filed under the

Securities Act of 1933, as amended (an "Initial Public Offering"), the term of

office of the Class I directors shall expire and Class I directors shall be

elected for a full term of three years. At the second annual meeting of

stockholders following the closing of an Initial Public Offering, the term of

office of the Class II directors shall expire and Class II directors shall be

elected for a full term of three years. At the third annual meeting of

stockholders following the closing of an Initial Public Offering, the term of

office of the Class III directors shall expire and Class III directors shall be

elected for a full term of three years. At each succeeding annual meeting of

stockholders, directors shall be elected for a full

 

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term of three years to succeed the directors of the class whose terms expire at

such annual meeting.

 

         C. TERM. Notwithstanding the foregoing provisions of this Article, each

director shall serve until his or her successor is duly elected and qualified or

until his or her death, resignation or removal. No decrease in the number of

directors constituting the Board of Directors shall shorten the term of any

incumbent director.

 

         D. VACANCIES. Any vacancies on the Board of Directors resulting from

death, resignation, disqualification, removal, or other causes shall be filled

by either (i) the affirmative vote of the holders of a majority of the voting

power of the then-outstanding shares of voting stock of the corporation entitled

to vote generally in the election of directors ("Voting Stock") voting together

as a single class; or (ii) by the affirmative vote of a majority of the

remaining directors then in office, even though less than a quorum of the Board

of Directors. Newly created directorships resulting from any increase in the

number of directors shall, unless the Board of Directors determines by

resolution that any such newly created directorship shall be filled by the

stockholders, be filled only by the affirmative vote of the directors then in

office, even though less than a quorum of the Board of Directors. Any director

elected in accordance with the preceding sentence shall hold office for the

remainder of the full term of the class of directors in which the new

directorship was created or the vacancy occurred and until such director's

successor shall have been elected and qualified.

 

         E. CHANGE OF CERTAIN PROVISIONS OF THE BYLAWS. The affirmative vote of

sixty-six and two-thirds percent (66-2/3%) of the voting power of the then

outstanding shares of Voting Stock, voting together as a single class, shall be

required for the adoption, amendment or repeal of the following sections of the

corporation's Bylaws by the stockholders of this corporation: 2.9 (Stockholder

Proposals at Annual Meetings), 2.10 (Nominations of Persons for Election to the

Board of Directors) and 3.1 (Directors: Number and Term of Office).

 

         F. ACTION BY STOCKHOLDERS. No action shall be taken by the stockholders

of the corporation except in accordance with the Bylaws.

 

         G. REMOVAL. Any director, or the entire Board of Directors, may be

removed from office at any time (i) with cause by the affirmative vote of the

holders of at least a majority of the voting power of all of the

then-outstanding shares of the Voting Stock, voting together as a single class;

or (ii) without cause by the affirmative vote of the holders of at least

sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the

then-outstanding shares of the Voting Stock.

 

         H. ELECTION BY WRITTEN BALLOT. Elections of directors need not be by

written ballot unless a stockholder demands election by written ballot at the

meeting and before voting begins or unless the Bylaws of the Corporation shall

so provide.

 

                                  ARTICLE VIII

 

                  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

 

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 affirmative vote of the holders of any particular class or series of the Voting

Stock required by law, this Certificate of Incorporation or any Preferred Stock

Designation, at such time as the Corporation closes an Initial Public Offering,

the affirmative vote of the holders of at least sixty-six and two-thirds percent

(66-2/3%) of the voting power of all of the then-outstanding shares of the

Voting Stock, voting together as a single class, shall be required to alter,

amend or repeal Article VII or this Article VIII.

 

                                   ARTICLE IX

 

         A. ELIMINATION OF LIABILITY. To the fullest extent permitted by

Delaware statutory or decisional law, as amended or interpreted, no director of

this Corporation shall be personally liable to the Corporation or its

stockholders for monetary damages for breach of fiduciary duty as a director.

This Article IX.A. does not affect the availability of equitable remedies for

breach of fiduciary duties.

 

         B. INDEMNIFICATION. The Corporation shall, to the fullest extent

permitted by the provisions of Section 145 of the General Corporation Law of the

State of Delaware, as the same may be amended and supplemented, indemnify any

and all persons whom it shall have power to indemnify under said section from

and against any and all of the expenses, liabilities, or other matters referred

to in or covered by said section, and the indemnification provided for herein

shall not be deemed exclusive of any other rights to which those indemnified may

be entitled under any Bylaw, agreement, vote of stockholders or disinterested

directors or otherwise, both as to action in his official capacity and as to

action in another capacity while holding such office, and shall continue as to a

person who has ceased to be a director, officer, employee, or agent and shall

inure to the benefit of the heirs, executors, and administrators of such person.

 

         C. AMENDMENT, REPEAL AND INCONSISTENT PROVISIONS. Neither any amendment

nor repeal of this Article IX, nor the adoption of any provision of this

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.

 

                                    ARTICLE X

 

                  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 Article

VIII of this Certificate, and all rights conferred upon the stockholders herein

are granted subject to this right.

 

                                   ARTICLE XI

 

                  In furtherance and not in limitation of the powers conferred

by statute, the Board of Directors is expressly authorized to make, alter, amend

or repeal the Bylaws of the Corporation.

 

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[As filed 2/5/2004]

 

CERTIFICATE OF AMENDMENT OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
Dynavax Technologies Corporation

Dynavax Technologies Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation"), hereby certifies that:

First: The name of the Corporation is Dynavax Technologies Corporation.

Second: The Corporation was originally incorporated under the same name and the original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on November 6, 2000.

Third: The Board of Directors of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the General Corporation Law of the State of Delaware, adopted resolutions amending its Certificate of Incorporation as follows:

    1. Article IV shall be amended and restated to read in its entirety as follows:

"The Corporation is authorized to issue two classes of stock to be designated, respectively, Common Stock and Preferred Stock. The Corporation shall be authorized to issue 150,000,000 shares of Common Stock at $0.001 par value, and 5,000,000 shares of Preferred Stock at $0.001 par value. The Preferred Stock may be issued from time to time in one or more series pursuant to a resolution or resolutions providing for such issue duly adopted by the Board of Directors (authority to do so being hereby expressly vested in the Board). The rights, preferences, privileges and restrictions granted to or imposed upon the Preferred Stock or any series of Preferred Stock will be determined or altered by the Board of Directors. The Board of Directors shall also have the authority to fix or alter the number of shares of any series of Preferred Stock and the designation of any such series of Preferred Stock. The Board of Directors, within the limits and restrictions stated in any resolution or resolutions of the Board of Directors originally fixing the number of shares constituting any series, may increase or decrease (but not below the number of shares in any such series then outstanding), the number of shares of any series subsequent to the issue of shares of that series."

Fourth: Thereafter pursuant to a resolution of the Board of Directors, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval, and was duly adopted at a Special Meeting of Stockholders held on December 30, 2009 in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

In Witness WhereofDynavax Technologies Corporation has caused this Certificate of Amendment to be signed by its Vice President and Chief Business Officer this 30th day of December, 2009.

 

 

CERTIFICATE OF AMENDMENT OF

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF DYNAVAX TECHNOLOGIES CORPORATION

     DYNAVAX TECHNOLOGIES CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), hereby certifies that: FIRST: The name of the Corporation is Dynavax Technologies Corporation.

     SECOND: The Corporation was originally incorporated under the same name and the original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on November 6, 2000.

     THIRD: The Board of Directors of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the General Corporation Law of the State of Delaware, adopted resolutions amending its Certificate of Incorporation as follows:

1. Article IV shall be amended and restated to read in its entirety as follows:

“The Corporation is authorized to issue two classes of stock to be designated, respectively, Common Stock and Preferred Stock. The Corporation shall be authorized to issue 250,000,000 shares of Common Stock at $0.001 par value, and 5,000,000 shares of Preferred Stock at $0.001 par value. The Preferred Stock may be issued from time to time in one or more series pursuant to a resolution or resolutions providing for such issue duly adopted by the Board of Directors (authority to do so being hereby expressly vested in the Board). The rights, preferences, privileges and restrictions granted to or imposed upon the Preferred Stock or any series of Preferred Stock will be determined or altered by the Board of Directors. The Board of Directors shall also have the authority to fix or alter the number of shares of any series of Preferred Stock and the designation of any such series of Preferred Stock. The Board of Directors, within the limits and restrictions stated in any resolution or resolutions of the Board of Directors originally fixing the number of shares constituting any series, may increase or decrease (but not below the number of shares in any such series then outstanding), the number of shares of any series subsequent to the issue of shares of that series.”

FOURTH: Thereafter pursuant to a resolution of the Board of Directors, this Certificate of

Amendment was submitted to the stockholders of the Corporation for their approval, and was duly adopted at a Special Meeting of Stockholders held on January 5, 2011 in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, DYNAVAX TECHNOLOGIES CORPORATION has caused this Certificate of

Amendment to be signed by its Vice President, Finance this 5th day of January, 2011.

DYNAVAX TECHNOLOGIES CORPORATION

By: /s/ Jennifer Lew

 

Jennifer Lew
Vice President, Finance

 [As Filed: 01-05-2011]