EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
OF
OF
ARTES MEDICAL, INC.
Artes Medical, Inc. (the “Corporation”), a corporation organized and existing under the
General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That the Board of Directors of the Corporation has duly adopted resolutions (i)
authorizing the Corporation to execute and file with the Secretary of State of the State of
Delaware this Certificate of Amendment of Fifth Amended and Restated
Certificate of Incorporation
(the “
Certificate of Amendment”) to combine
each 4.25 outstanding shares of the Corporation’s
Common Stock, par value $0.001 per share, into one (1) share of Common Stock, par value $0.001 per
share; and (ii) declaring such Certificate of Amendment to be advisable and recommended for
approval by the stockholders of the Corporation.
SECOND: That, thereafter, the stockholders of the Corporation approved this Certificate of
Amendment by written consent of the outstanding shares in accordance with Section 228 of the
Delaware General Corporation Law.
THIRD: That this Certificate of Amendment was duly adopted in accordance with the provisions
of Section 242 of the Delaware General Corporation Law by the Board of Directors and stockholders
of the Corporation.
FOURTH: That the capital of the Corporation shall not be reduced under or by reason of this
Certificate of Amendment.
FIFTH: That upon the effectiveness of this Certificate of Amendment, the first paragraph
(
“A”) of Article IV of the Fifth Amended and Restated
Certificate of Incorporation is hereby
amended such that, as amended, said paragraph shall 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 total number of shares which the Corporation is
authorized to issue is two hundred million (200,000,000) shares, each with a par value of
$0.001 per share. One hundred fifty million (150,000,000) shares are Common Stock and fifty
million (50,000,000) shares are Preferred Stock. The first series of Preferred Stock is
designated as Series A Preferred Stock (“Series A Preferred”) and consists of two million
fifty thousand eight hundred thirty-nine (2,050,839) shares. The second series of Preferred
Stock is designated as Series B Preferred Stock (“Series B Preferred”) and consists of six
hundred and seventy-nine thousand two hundred and thirty-nine (679,239) shares. The third
series of Preferred Stock is designated as Series C-1 Preferred Stock (“Series C-1
Preferred”) and consists of seven million fifty-two thousand seven hundred forty one
(7,052,741) shares. The fourth series of Preferred Stock is designated as Series D Preferred Stock (“Series D Preferred”) and consists of
eleven million five hundred thousand (11,500,000) shares. The fifth series of Preferred
Stock is designated as Series E Preferred Stock (“Series E Preferred”) and consists of
twenty five million (25,000,000) shares. Reference to “Preferred Stock” shall include the
Series A Preferred Stock, Series B Preferred Stock, Series C-1 Preferred Stock, Series D
Preferred Stock and Series E Preferred Stock and any other series of Preferred Stock which
may be created in the future.
Upon
the filing of this Certificate of Amendment, each 4.25 shares of Common Stock, par
value $0.001 per share, issued and outstanding at such time shall be combined into one (1)
share of Common Stock, par value $0.001 per share (the “Reverse Stock Split”). No
fractional share shall be issued upon the Reverse Stock Split. All shares of Common Stock
(including fractions thereof) issuable upon the Reverse Stock Split to a given holder shall
be aggregated for purposes of determining whether the Reverse Stock Split would result in
the issuance of any fractional share. If, after the aforementioned aggregation, the Reverse
Stock Split would result in the issuance of a fraction of a share of Common Stock, the
Corporation shall, in lieu of issuing any such fractional share, pay the holder otherwise
entitled to such fraction a sum in cash equal to the fraction multiplied by the fair market
value per share of the Common Stock as determined in a reasonable manner by the Board of
Directors (which shall be the initial public offering price of the Corporation’s Common
Stock if the Corporation completes an initial public offering forthwith following the filing
of this Certificate of Amendment). Upon surrender by a holder of a certificate or
certificates for Common Stock (including, for this purpose, a holder of shares of Common
Stock issuable upon conversion of Preferred Stock), duly endorsed, at the office of the
Corporation, the Corporation shall, as soon as practicable thereafter, issue and deliver to
such holder, or to the nominee or assignee of such holder, a new certificate or certificates
for the number of shares of Common Stock that such holder shall be entitled to following the
Reverse Stock Split.
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