UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported):

July 23, 2014

 

 

Pfenex Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-36540   27-1356759

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

  (IRS Employer
Identification No.)

10790 Roselle Street

San Diego, CA 92121

(Address of principal executive offices, including zip code)

(858) 352-4400

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report.)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

 

  (d) Election of Directors

As described in Pfenex Inc.’s (the “Company”) Registration Statement on Form S-1 (File No. 333-196539) (the “Registration Statement”), William R. Rohn and Phillip M. Schneider were appointed to the Company’s board of directors on July 24, 2014 in connection with the Company’s initial public offering (the “IPO”). Mr. Schneider will serve as a Class II director and Mr. Rohn will serve as a Class III director until a successor is duly elected and qualified or until an earlier resignation or removal. Mr. Schneider and Mr. Rohn will each serve as members of the audit and compensation, nominating and governance committees. Mr. Schneider will serve as the chair of the audit committee and Mr. Rohn will serve as the chair of the compensation, nominating and governance committee. Mr. Rohn will also serve as chairman of the board of directors.

Most recently, Mr. Rohn served as Chief Operating Officer of Biogen Idec, the successor company to IDEC Pharmaceuticals, a biotechnology company, from 2003 until 2005. Mr. Rohn also held various management positions with IDEC Pharmaceuticals, a biotechnology company, including: President and Chief Operating Officer from 1998 to 2003, Senior Vice President, Commercial Operations from 1996 to 1998 and Senior Vice President, Commercial and Corporate Development from 1993 to 1996. He also held various management positions with Adria Laboratories, a pharmaceutical company acquired by Pfizer Inc., including: Senior Vice President of Commercial Operations from 1991 to 1993 and Vice President of Business Development and Licensing from 1985 to 1990. Mr. Rohn currently serves on the board of directors of Hansen Medical, Inc., a medical device company. Mr. Rohn previously served on the boards of Intellikine, Inc., a pharmaceutical company acquired by Takeda America Holdings, Inc., Cerus Corporation, a biomedical products company, Elan Corporation, plc, a pharmaceutical company acquired by Perrigo Company plc, Metabasis Therapeutics, Inc., a biopharmaceutical company that merged with Ligand Pharmaceuticals Inc., and Pharmacyclics Inc., a pharmaceutical company. Mr. Rohn holds a Bachelor’s degree in Marketing from Michigan State University and has completed graduate-level coursework in Business Administration at Indiana State University.

Most recently, Mr. Schneider held various positions with IDEC Pharmaceuticals Corporation, a biopharmaceutical company, from 1987 to 2003, including: Senior Vice President and Chief Financial Officer from 1997 to 2003, and Director of Finance and Administration from 1992 to 1997. Prior to that, Mr. Schneider held various management positions at Syntex Pharmaceuticals Corporation, a pharmaceutical company, from 1985 to 1987 and KPMG LLP, an audit and tax advisory firm, from 1982 to 1984, where he attained his CPA license. He currently serves as a member of the board of directors of Arena Pharmaceuticals Corporation, a pharmaceutical company, which he joined in 2008, and Auspex Pharmaceuticals, a pharmaceutical company, which he joined in 2014. He previously served as a member of the board of directors of Gen-Probe, Inc., a biotechnology company, from 2002 to 2012. Mr. Schneider holds a B.S. in Biochemistry from the University of California, Davis and an M.B.A. from the University of Southern California.

There was no understanding or arrangement between Mr. Rohn, Mr. Schneider and any other person pursuant to which they were elected as a directors.

Neither Mr. Rohn nor Mr. Schneider is a party to any transaction, or series of transactions, required to be disclosed pursuant to Item 404(a) of Regulation S-K.

On July 24, 2014, in connection with Mr. Rohn and Mr. Schneider’s election as Class III and Class II directors, respectively, we entered into indemnification agreements with each of Mr. Rohn and Mr. Schneider in the form of the Company’s standard indemnification agreement, which was filed with the Securities and Exchange Commission on June 5, 2014 as Exhibit 10.4 to the Registration Statement and is incorporated herein in its entirety by reference.

As non-employee director, each of Mr. Rohn and Mr. Schneider will participate in the compensation program applicable to all non-employee directors, which is summarized below.

Under the Company’s cash compensation policy, each non-employee director receives a base annual retainer of $35,000 per year for service as a board member; $20,000 per year additionally for service as chairman of the board; $10,000 per year additionally for service as chairman of the audit committee; $8,000 per year additionally for service as an audit committee member; $8,000 per year additionally for service as chairman of the compensation, nominating and governance committee; and $5,000 per year additionally for service as a compensation, nominating and governance committee member.

In accordance with the Company’s outside director equity compensation policy and the 2014 Equity Incentive Plan, on July 24, 2014, each of Mr. Rohn and Mr. Schneider was granted an option to purchase 20,000 shares of common stock. On the date of each annual meeting of stockholders following the date of their election to the board, each of Mr. Rohn and Mr. Schneider will be granted an option to purchase 18,000 shares of common stock, subject to each continuing to be a non-employee director on each such date.

The foregoing is only a brief description of the material terms of the Company’s non-employee director compensation program, and is qualified in its entirety by reference to the description of the Company’s non-employee director compensation program under the heading “Management - Director Compensation” in the Registration Statement, filed with the Securities and Exchange Commission on July 17, 2014 and incorporated herein in its entirety by reference.

Item 5.03 Amendments to Articles of Incorporation or Bylaws.

Certificate of Amendment to Amended and Restated Certificate of Incorporation

On July 25, 2014, the Company filed a certificate of amendment to its amended and restated certificate of incorporation (the “Certificate of Amendment”) with the Secretary of State of the State of Delaware. The Certificate of Amendment was approved by the Company’s board of directors and stockholders and was effective July 25, 2014. As described in the Registration Statement, the Certificate of Amendment was filed to adjust the conversion ratio on the Company’s preferred stock such that each share of Series A-1 Preferred Stock converted into approximately 0.91966 shares of common stock and each share of Series A-2 Preferred Stock converted into approximately 1.1406 shares of common stock in connection with the Company’s IPO. The change in the conversion ratio effectively increased the number of shares held by Signet Healthcare Partners Accredited Partnership III, LP and Signet Healthcare Partners QP Partnership III, LP by approximately 450,000 shares, and decreased the number of shares held by entities affiliated with The Dow Chemical Company by approximately 400,000 shares.

The foregoing is only a brief description of the material terms of the Certificate of Amendment and is qualified in its entirety by reference to the Certificate of Amendment, which is filed herewith as Exhibit 3.1 and is incorporated herein by reference.

Amendment and Restatement of Certificate of Incorporation and Bylaws

On July 29, 2014, the Company filed an amended and restated certificate of incorporation (the “Restated Certificate”) and adopted amended and restated bylaws (the “Restated Bylaws”) in connection with the closing of the Company’s IPO. As described in the Registration Statement, the Company’s board of directors and stockholders previously approved the Restated Certificate and Restated Bylaws. The Restated Certificate and Restated bylaws were effective on July 29, 2014.

Among other matters, the Company’s Restated Certificate and Restated Bylaws were amended to include to provisions that:

 

  •   authorize the board of directors to issue, without further action by the Company’s stockholders, up to 10,000,000 shares of undesignated preferred stock;

 

  •   require that any action to be taken by the Company’s stockholders be effected at a duly called annual or special meeting and not by written consent;

 

  •   specify that special meetings of the Company’s stockholders can be called only by the Company’s board of directors, the chairman of the board of directors, the chief executive officer or the president;

 

  •   establish an advance notice procedure for stockholder approvals to be brought before an annual meeting of stockholders, including proposed nominations of persons for election to the board of directors;

 

  •   provide that directors may be removed only for cause;

 

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  •   provide that vacancies on the board of directors may be filled only by a majority of directors then in office, even though less than a quorum;

 

  •   establish that the board of directors is divided into three classes, Class I, Class II and Class III, with each class serving staggered terms;

 

  •   specify that no stockholder is permitted to cumulate votes at any election of the board of directors; and

 

  •   require a super majority of the stockholders and a majority of the board to amend certain of the above-mentioned provisions, including certain amendments related to the blank check preferred stock, removal of directors solely for cause, the classification of the board of directors, and the prohibition on cumulative voting.

The foregoing description is qualified in its entirety by reference to the Restated Certificate, which is filed herewith as Exhibit 3.2, and the Restated Bylaws, which are filed herewith as Exhibit 3.3, and which are both incorporated herein by reference.

Item 8.01. Other Events.

On July 23, 2014, the Company issued a press release announcing the pricing of the IPO. A copy of the press release is attached hereto as Exhibit 99.1.

On July 29, 2014, the Company consummated its IPO of 8,333,333 shares of Common Stock (the “Shares”). The Shares were issued pursuant to the Registration Statement. Total net proceeds to the Company from the sale of the Shares was $46,499,998.

As described in the Registration Statement, and in connection with the closing of the IPO, (i) the Company issued 1,217,784 shares of common stock in satisfaction of all accrued and unpaid dividends through July 28, 2014 upon the conversion of the Company’s convertible preferred stock to common stock immediately prior to the completion of the IPO; (ii) the Company repurchased 423,185 shares of common stock at a purchase price of $0.31 per share, pursuant to the amended and restated subscription agreement, dated May 2, 2014, entered into with certain stockholders, including Signet Healthcare Partners Accredited Partnership III, LP and Signet Healthcare Partners QP Partnership III, LP (“Subscription Agreement”); and (iii) current and former members of the Company’s management team including Bertrand Liang, Patrick Lucy, Henry Talbot, and Charles Squires, forfeited an aggregate of 100,000 shares of common stock.

On July 29, 2014, the Company issued a press release announcing the closing of the IPO described above. A copy of the press release is attached hereto as Exhibit 99.2.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit No.

 

Description

  3.1   Certificate of Amendment to Amended and Restated Certificate of Incorporation of Pfenex Inc.
  3.2   Amended and Restated Certificate of Incorporation of Pfenex Inc.
  3.3(1)   Amended and Restated Bylaws of Pfenex Inc.
99.1   Press Release dated July 23, 2014.
99.2   Press Release dated July 29, 2014.

 

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(1) Previously filed as Exhibit 3.3 to the Company’s Registration Statement on Form S-1, as amended (File No. 333-196539), filed with the Securities and Exchange Commission on June 5, 2014, and incorporated herein by reference.

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

      PFENEX INC.
Date: July 29, 2014     By:  

/s/ Paul Wagner

      Paul Wagner
     

Chief Financial Officer

 

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EXHIBIT INDEX

 

Exhibit No.

 

Description

  3.1   Certificate of Amendment to Amended and Restated Certificate of Incorporation of Pfenex Inc.
  3.2   Amended and Restated Certificate of Incorporation of Pfenex Inc.
  3.3(1)   Amended and Restated Bylaws of Pfenex Inc.
99.1   Press Release dated July 23, 2014.
99.2   Press Release dated July 29, 2014.

 

(1) Previously filed as Exhibit 3.3 to the Company’s Registration Statement on Form S-1, as amended (File No. 333-196539), filed with the Securities and Exchange Commission on June 5, 2014, and incorporated herein by reference.

 

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Exhibit 3.1

CERTIFICATE OF AMENDMENT OF

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

PFENEX INC.

Pfenex Inc., a corporation organized and existing under the laws of the State of Delaware (the “ Corporation ”), certifies that:

1. The name of the Corporation is Pfenex Inc. The Corporation’s original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on November 19, 2009.

2. This Certificate of Amendment of Amended and Restated Certificate of Incorporation was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware and amends the provisions of the Corporation’s Amended and Restated Certificate of Incorporation.

3. The terms and provisions of this Certificate of Amendment of Amended and Restated Certificate of Incorporation have been duly approved by written consent of the required number of shares of outstanding stock of the Corporation pursuant to Subsection 228(a) of the General Corporation Law of the State of Delaware and written notice pursuant to Subsection 228(e) of the General Corporation Law of the State of Delaware has been or will be given to those stockholders whose written consent has not been obtained.

4. Section (C)(4)(a) of Article FOURTH of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety to read in its entirety as follows

(a) Right to Convert . Each share of Preferred Stock shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share and prior to the date such share is automatically converted pursuant to subsection 4(b) or redeemed, if applicable, at the office of the Corporation or any transfer agent for such stock, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series A Original Issue Price by the Conversion Price applicable to such share, determined as hereafter provided, in effect on the date the certificate is surrendered for conversion (an “Optional Conversion”). The initial Conversion Price per share for each share of Preferred Stock shall be $1.00 (the “Conversion Price”) (before giving effect to the reverse split on June 27, 2014); provided, however, that the Conversion Price for each series of Preferred Stock shall be subject to adjustment as set forth in subsection 4(d) and subsection 4(h).

5. Section (C)(4)(h) of Article FOURTH of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety to read in its entirety as follows:

(h) Non-Qualified Public Offering . In the event of a voluntary conversion pursuant to Section (C)4(b)(ii) of Article FOURTH in connection with an initial public offering that is not a Qualified Public Offering, the Conversion Price for each share of Series A-1 Preferred Stock shall be $1.08735837 (before giving effect to the reverse split on June 27, 2014) and the Conversion Price for each share of Series A-2 Preferred Stock shall be $0.8767315448 (before giving effect to the reverse split on June 27, 2014).

IN WITNESS WHEREOF , this Certificate of Amendment of Amended and Restated Certificate of Incorporation has been duly executed by an authorized officer of the Corporation’s on July 25, 2014.

 

  /s/ Bertrand C. Liang

Bertrand C. Liang
President & Chief Executive Officer

Exhibit 3.2

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION OF

PFENEX INC.

Pfenex Inc., a corporation organized and existing under the laws of the State of Delaware (the “ Corporation ”), certifies that:

A. The name of the Corporation is Pfenex Inc. The Corporation was originally incorporated under the same name, and its original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on November 19, 2009.

B. This Amended and Restated Certificate of Incorporation (this “ Amended and Restated Certificate of Incorporation ”) was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, and has been duly approved by the written consent of the stockholders of the Corporation in accordance with Section 228 of the General Corporation Law of the State of Delaware.

C. The text of the Amended and Restated Certificate of Incorporation is amended and restated to read as set forth in Exhibit A attached hereto.

IN WITNESS WHEREOF, Pfenex Inc. has caused this Amended and Restated Certificate of Incorporation to be signed by Bertrand C. Liang, a duly authorized officer of the Corporation, on July 29, 2014.

 

/s/ Bertrand C. Liang

Bertrand C. Liang
President and Chief Executive Officer

EXHIBIT A

ARTICLE I

The name of the corporation is Pfenex Inc. (the “ Corporation ”).

ARTICLE II

The address of the Corporation’s registered office in the State of Delaware is 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle, Delaware 19808. The name of its registered agent at such address is the Corporation Service Company.

ARTICLE III

The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law (“ DGCL ”).

ARTICLE IV

Section 1. This Corporation is authorized to issue two classes of stock, to be designated, respectively, Common Stock and Preferred Stock. The total number of shares of stock that the Corporation shall have authority to issue is two hundred ten million (210,000,000) shares, of which two hundred million (200,000,000) shares are Common Stock, $0.001 par value, and ten million (10,000,000) shares are Preferred Stock, $0.001 par value.

Section 2. Each share of Common Stock shall entitle the holder thereof to one (1) vote on any matter submitted to a vote at a meeting of stockholders.

Section 3. 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 of Directors). The Board of Directors is further authorized, subject to limitations prescribed by law, to fix by resolution or resolutions the designations, powers, preferences and rights, and the qualifications, limitations or restrictions thereof, of any wholly unissued series of Preferred Stock, including, without limitation, authority to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences of any such series, and the number of shares constituting any such series and the designation thereof, or any of the foregoing. The Board of Directors is further authorized to increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares of any such series then outstanding) the number of shares of any series, the number of which was fixed by it, subsequent to the issuance of shares of such series then outstanding, subject to the powers, preferences and rights, and the qualifications, limitations and restrictions thereof stated in this Amended and Restated Certificate of Incorporation or the resolution of the Board of Directors originally fixing the number of shares of such series. If the number of

 

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shares of any series is so decreased, then the Corporation shall take all such steps as are necessary to cause the shares constituting such decrease to resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.

Section 4. Except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Amended and Restated Certificate of Incorporation (including any certificate of designation filed with respect to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon by law or pursuant to this Amended and Restated Certificate of Incorporation (including any certificate of designation filed with respect to any series of Preferred Stock).

 

ARTICLE V

Section 1. The number of directors that constitutes the entire Board of Directors of the Corporation shall be determined in the manner set forth in the Bylaws of the Corporation. At each annual meeting of stockholders, directors of the Corporation shall be elected to hold office until the expiration of the term for which they are elected and until their successors have been duly elected and qualified or until their earlier resignation or removal; except that if any such meeting shall not be so held, such election shall take place at a stockholders’ meeting called and held in accordance with the DGCL.

Section 2. From and after the effectiveness of this Amended and Restated Certificate of Incorporation, the directors of the Corporation (other than any who may be elected by holders of Preferred Stock under specified circumstances) shall be divided into three classes as nearly equal in size as is practicable, hereby designated Class I, Class II and Class III. Directors already in office shall be assigned to each class at the time such classification becomes effective in accordance with a resolution or resolutions adopted by the Board of Directors. At the first annual meeting of stockholders following the date hereof, 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 date hereof, 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 date hereof, 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 term of three years to succeed the directors of the class whose terms expire at such annual meeting. If the number of directors is changed, any newly created directorships or decrease in directorships shall be so apportioned hereafter among the classes as to make all classes as nearly equal in number as is practicable, provided that no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

ARTICLE VI

Section 1. Any director or the entire Board of Directors may be removed from office at any time, but only for cause, and only by the affirmative vote of the holders of at least a majority of the voting power of the issued and outstanding capital stock of the Corporation entitled to vote in the election of directors.

 

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Section 2. Except as otherwise provided for or fixed by or pursuant to the provisions of Article IV hereof in relation to the rights of the holders of Preferred Stock to elect directors under specified circumstances, newly created directorships resulting from any increase in the number of directors, created in accordance with the Bylaws of the Corporation, and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled only 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, or by a sole remaining director, and not by the stockholders. A person so elected by the Board of Directors to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen until his or her successor shall have been duly elected and qualified, or until such director’s earlier death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

ARTICLE VII

Section 1. The Corporation is to have perpetual existence.

Section 2. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority expressly conferred upon them by statute or by this Amended and Restated Certificate of Incorporation or the Bylaws of the Corporation, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation.

Section 3. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, alter, amend or repeal the Bylaws of the Corporation. The affirmative vote of at least a majority of the Board of Directors then in office shall be required in order for the Board of Directors to adopt, amend, alter or repeal the Corporation’s Bylaws. The Corporation’s Bylaws may also be adopted, amended, altered or repealed by the stockholders of the Corporation. Notwithstanding the above or any other provision of this Amended and Restated Certificate of Incorporation, the Bylaws of the Corporation may not be amended, altered or repealed except in accordance with Article X of the Bylaws. No Bylaw hereafter legally adopted, amended, altered or repealed shall invalidate any prior act of the directors or officers of the Corporation that would have been valid if such Bylaw had not been adopted, amended, altered or repealed.

Section 4. The election of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.

Section 5. No stockholder will be permitted to cumulate votes at any election of directors.

 

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ARTICLE VIII

Section 1. Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders.

Section 2. Special meetings of stockholders of the Corporation may be called only by the Chairperson of the Board of Directors, the Chief Executive Officer, the President or the Board of Directors acting pursuant to a resolution adopted by a majority of the Board of Directors, and any power of stockholders to call a special meeting of stockholders is specifically denied. Only such business shall be considered at a special meeting of stockholders as shall have been stated in the notice for such meeting.

Section 3. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner and to the extent provided in the Bylaws of the Corporation.

ARTICLE IX

Section 1. To the fullest extent permitted by the DGCL as the same exists or as may hereafter be amended from time to time, 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. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

Section 2. The Corporation shall indemnify, to the fullest extent permitted by applicable law, any director or officer of the Corporation who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ Proceeding ”) by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding. The Corporation shall be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized by the Board of Directors.

Section 3. The Corporation shall have the power to indemnify, to the extent permitted by applicable law, any employee or agent of the Corporation who was or is a party or is threatened to be made a party to any Proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.

 

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Section 4. Neither any amendment nor repeal of any Section of this Article IX, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation or the Bylaws of the Corporation inconsistent with this Article IX, shall eliminate or reduce the effect of this Article IX in respect of any matter occurring, or any cause of action, suit, claim 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

Meetings of stockholders may be held within or outside of the State of Delaware, as the Bylaws may provide. The books of the Corporation may be kept (subject to any provision contained in the statutes) outside of the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.

ARTICLE XI

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (A) any derivative action or proceeding brought on behalf of the Corporation, (B) any action or proceeding asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (C) any action or proceeding asserting a claim arising pursuant to any provision of the DGCL or the Corporation’s Certificate of Incorporation or Bylaws, or (D) any action or proceeding asserting a claim governed by the internal affairs doctrine.

ARTICLE XII

The Corporation reserves the right to amend or repeal any provision contained in this Amended and Restated Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware and all rights conferred upon stockholders are granted subject to this reservation; provided , however , that notwithstanding any other provision of this Amended and Restated Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote, the Board of Directors acting pursuant to a resolution adopted by a majority of the Board of Directors and the affirmative vote of sixty-six and two-thirds percent (66 2/3%) of the then outstanding voting securities of the Corporation, voting together as a single class, shall be required for the amendment, repeal or modification of the provisions of Section 3 of Article IV, Section 2 of Article V, Article VI, Section 5 of Article VII, Article VIII, Article XI or Article XII of this Amended and Restated Certificate of Incorporation.

***

 

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Exhibit 99.1

 

LOGO

For Immediate Release

PFENEX INC. ANNOUNCES PRICING OF INITIAL PUBLIC OFFERING

SAN DIEGO July 23, 2014 — Pfenex Inc. (NYSE MKT: PFNX) today announced the pricing of its initial public offering of 8,333,333 shares of its common stock at a price to the public of $6.00 per share. In addition, Pfenex has granted the underwriters a 30-day option to purchase up to 1,250,000 additional shares of common stock at the initial public offering price. The shares are expected to begin trading on the NYSE MKT on July 24, 2014, under the symbol “PFNX”.

William Blair & Company, L.L.C. and JMP Securities LLC are acting as joint book-running managers for the offering and Mizuho Securities USA Inc. is acting as a co-manager.

A registration statement relating to these securities has been filed with, and declared effective by, the Securities and Exchange Commission. The offering is being made only by means of a prospectus. A copy of the final prospectus relating to the offering may be obtained from William Blair & Company, L.L.C., Attention: Prospectus Department, 222 West Adams Street, Chicago, IL 60606, or by calling (800) 621-0687 or by emailing a request to prospectus@williamblair.com; or from JMP Securities LLC, Attention: Prospectus Department, 600 Montgomery Street, 10th Floor, San Francisco, CA 94111, or by calling (415) 835-8985.

This press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

About Pfenex Inc.

Pfenex Inc. is a clinical-stage biotechnology company engaged in the development of high-value and difficult to manufacture proteins including biosimilar therapeutics. The company’s lead product candidate is PF582, a biosimilar candidate to Lucentis (ranibizumab), for the potential treatment of patients with retinal diseases. Pfenex has leveraged its Pfēnex Expression Technology™ platform to build a pipeline of product candidates and preclinical products under development including other biosimilars, as well as vaccines, generics and next generation biologics.

Company Contact:

Paul Wagner, Ph.D.

Chief Financial Officer

(858) 352-4333

pwagner@pfenex.com

Investor Contact:

Westwicke Partners, LLC

Robert H. Uhl

Managing Director

(858) 356-5932

robert.uhl@westwicke.com

Exhibit 99.2

 

LOGO

FOR IMMEDIATE RELEASE

Pfenex Announces Closing of Initial Public Offering

San Diego, California, July 29, 2014 — Pfenex Inc. (NYSE MKT: PFNX) today announced that it has closed its previously announced initial public offering of 8,333,333 shares of its common stock at a price to the public of $6.00 per share. All of the common stock was offered by Pfenex. In addition, Pfenex has granted the underwriters a 30-day option to purchase up to 1,250,000 additional shares of common stock at the initial public offering price. The shares of common stock are traded on the NYSE MKT under the symbol “PFNX.”

William Blair & Company, L.L.C. and JMP Securities LLC acted as joint book-running managers for the offering and Mizuho Securities USA Inc. acted as co-manager.

A registration statement relating to these securities was filed with, and declared effective by, the Securities and Exchange Commission on July 23, 2014. A copy of the final prospectus relating to the offering may be obtained from: William Blair & Company, L.L.C., Attention: Prospectus Department, 222 West Adams Street, Chicago, IL 60606, or by calling (800) 621-0687 or by emailing a request to prospectus@williamblair.com; or from JMP Securities LLC, Attention: Prospectus Department, 600 Montgomery Street, 10th Floor, San Francisco, CA 94111, or by calling (415) 835-8985.

This press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

About Pfenex Inc.

Pfenex Inc. is a clinical-stage biotechnology company engaged in the development of high-value and difficult to manufacture proteins including biosimilar therapeutics. The company’s lead product candidate is PF582, a biosimilar candidate to Lucentis (ranibizumab), for the potential treatment of patients with retinal diseases. Pfenex has leveraged its Pfēnex Expression Technology™ platform to build a pipeline of product candidates and preclinical products under development including other biosimilars, as well as vaccines, generics and next generation biologics.

Company Contact:

Paul Wagner, Ph.D.

Chief Financial Officer

(858) 352-4333

pwagner@pfenex.com

Investor Relations contact :

Westwicke Partners, LLC

Robert H. Uhl

Managing Director

(858) 356-5932

robert.uhl@westwicke.com