APPENDIX A
THIRD
CERTIFICATE OF AMENDMENT
TO THE
EIGHTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PDS BIOTECHNOLOGY CORPORATION
2014 EQUITY INCENTIVE PLAN
Adopted by the Board of Directors on May 19, 2023
THIRD AMENDED AND RESTATED PDS BIOTECHNOLOGY CORPORATION
2014 EQUITY INCENTIVE PLAN
Section 1. Purpose of the Plan. The purpose of the Third Amended and Restated PDS Biotechnology Corporation, 2014 Equity Incentive Plan (formerly known asa corporation organized and existing under and by virtue of the Second Amended and RestatedGeneral Corporation Law of the State of Delaware (the “Corporation”),
DOES HEREBY CERTIFY THAT:
FIRST: The name of the Corporation is PDS Biotechnology Corporation 2014 Equity Incentive Plan) (the “PlanCorporation.”) is to assist the Company and its Subsidiaries in attracting and retaining valued Employees, Consultants and Non-Employee Directors by offering them a greater stake in the Company’s success and a closer identity with it, and to encourage ownership of the Company’s stock by such Employees, Consultants and Non-Employee Directors.
Section 2. Definitions. As used herein, the following definitions shall apply:
2.1. “SECOND:Award” means the grant of Restricted Stock, Options, SARs, Restricted Stock Units or Other Awards under the Plan.
2.2. “Award Agreement” means the written agreement, instrument or document evidencing an Award.
2.3. “Board” means the The Board of Directors of the Company.
2.4. “Cause” means,
(a) if the applicable Participant is party to an effective employment, consulting, severance or similar agreementCorporation, acting in accordance with the Company or a Subsidiary,provisions of Sections 141 and such term is defined therein, “Cause”242 of the General Corporation Law of the State of Delaware, adopted resolutions amending its Eighth Amended and Restated Certificate of Incorporation, as amended, as follows:
Subsection (a) of ARTICLE IV – CAPITALIZATION shall be deleted in its entirety and the following shall be inserted in lieu thereof:
“(a) Authorized Shares. The total number of shares of stock which the Corporation shall have authority to issue is One Hundred Fifty Five Million (155,000,000), consisting of One Hundred Fifty Million (150,000,000) shares of Common Stock, par value $0.00033 per share (“Common Stock”), and Five Million (5,000,000) shares of Preferred Stock, par value $0.00033 per share (“Preferred Stock”). Such stock may be issued from time to time by the meaningCorporation for such consideration as may be fixed by the board of directors of the Corporation (the “Board of Directors”). Except as otherwise provided by law, the shares of stock of the Corporation, regardless of class, may be issued by the Corporation from time to time in such agreement;amounts, for such consideration and for such corporate purposes as the Board of Directors may from time to time determine.”
(b) if the applicable Participant is not a partyTHIRD: That this Certificate of Amendment was submitted to an effective employment, consulting, severance or similar agreement or if no definition of “Cause” is set forth in the applicable employment, consulting, severance or similar agreement, “Cause” shall have the meaning provided in the applicable Award Agreement;
(c) if neither (a) nor (b) applies, then “Cause” shall mean, as determined by the Committee in its sole discretion, (i) the Participant’s willful misconduct or gross negligence in connection with the performance of the Participant’s duties for the Company or its Subsidiaries; (ii) the Participant’s conviction of, or a plea of guilty or nolo contendere to, a felony or a crime involving fraud or moral turpitude; (iii) the Participant’s engaging in any business that directly or indirectly competes with the Company or its Subsidiaries; or (iv) disclosure of trade secrets, customer lists or any other confidential information of the Company or its Subsidiaries to a competitor or an unauthorized person.
2.5. “Change in Control” means, unless otherwise provided in an Award Agreement:
(a) the acquisition in one or more transactions (whether by purchase, merger or otherwise) by any “Person” (as such term is used for purposes of Section 13(d) or Section 14(d) of the Exchange Act, but excluding, for this purpose, (i) the Company or its Subsidiaries, (ii) any employee benefit plan of the Company or its Subsidiaries, (iii) an entity owned, directly or indirectly, by the stockholders of the CompanyCorporation for their approval and was duly adopted at an Annual Meeting of Stockholders held on June 24, 2024, in substantiallyaccordance with the same proportions as their ownershipprovisions of stockSection 242 of the Company) of “Beneficial Ownership” (within the meaning of Rule 13d-3 under the Exchange Act) of more than fifty percent (50%)General Corporation Law of the combined voting powerState of Delaware.
FOURTH: All other provisions of the Company’s then outstanding voting securities;Eighth Amended and Restated Certificate of Incorporation shall remain in full force and effect.
(b) a change inFIFTH: That this Certificate of Amendment to the compositionEighth Amended and Restated Certificate of Incorporation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment as of the Board such that the individuals who asday of any date constitute the Board (the “Incumbent BoardJune, 2024.”) cease to constitute a majority of the Board at any time during the 24-month period immediately following such date; provided, however, that if the election, or nomination for election by the Company’s shareholders, of any new director was approved by a vote of at least a majority of the Incumbent Board, such new director shall be considered as a member of the Incumbent Board, and provided further that any reductions in the size of the Board that are instituted voluntarily by the Incumbent Board shall not constitute a Change in Control, and after any such reduction the “Incumbent Board” shall mean the Board as so reduced;
| | | PDS BIOTECHNOLOGY CORPORATION |
| | | | |
| | | By: | | | |
| | | Name: | | | Frank Bedu-Addo, Ph.D. |
| | | Title: | | | President and Chief Executive Officer |