If a stockholder owns 10,000 shares of Common Stock prior to the Reverse Stock Split, after
the Reverse Stock Split that same stockholder would own 3,333 shares in the case of a Reverse Stock Split at the ratio of
1-for-3,
2,500 shares in the case of a Reverse
Stock Split at the ratio of
1-for-4,
2,000 shares in the case of a Reverse Stock Split at the ratio of
1-for-5,
1,666 shares in the case of a Reverse Stock Split at the ratio of
1-for-6,
1,428
shares in the case of a Reverse Stock Split at the ratio of
1-for-7,
1,250 shares in the case of a Reverse Stock Split at the ratio of
1-for-8,
1,111 shares in the case of a Reverse Stock Split at the ratio of
1-for-9,
1,000 shares in the case of a Reverse Stock
Split at the ratio of
1-for-10,
909 shares in the case of a Reverse Stock Split at the ratio of
1-for-11,
833 shares in the case of a Reverse Stock Split at the ratio of
1-for-12,
769
shares in the case of a Reverse Stock Split at the ratio of
1-for-13,
714 shares in the case of a Reverse Stock Split at the ratio of
1-for-14,
666 shares in the case of a Reverse Stock Split at the ratio of
1-for-15,
625 shares in the case of a Reverse Stock
Split at the ratio of
1-for-16,
588 shares in the case of a Reverse Stock Split at the ratio of
1-for-17,
555 shares in the case of a Reverse Stock Split at the ratio of
1-for-18,
526
shares in the case of a Reverse Stock Split at the ratio of
1-for-19,
and 500 shares in the case of a Reverse Stock Split at the ratio of
1-for-20.
The lasting effect of the proposed Reverse
Stock Split upon the market price for our Common Stock cannot be predicted, and the history of similar reverse stock splits for companies in like circumstances is varied. We cannot assure you that the market price per new share of our Common Stock
after the Reverse Stock Split (which we refer to as New Shares) will rise in proportion to the reduction in the number of old shares of our Common Stock outstanding (which we refer to as Old Shares) as a result of the Reverse
Stock Split. We also cannot assure you that the market price per New Share will either exceed or remain in excess of the $1.00 minimum bid price as required by the Nasdaq Capital Requirements, or that we will otherwise continue to meet the Nasdaq
Capital Requirement, including, for example, the applicable minimum Market Value (as defined in Nasdaq Rule 5005) of Listed Securities (as defined in Nasdaq Rule 5005) requirements. For instance, in 2015 and 2013 we executed a reverse split of our
Common Stock in order to maintain compliance with the Nasdaq Capital Requirements. We cannot assure you that another reverse split of our Common Stock will not be necessary in the future. The market price of our Common Stock is dependent on our
financial condition, performance, prospects and a number of other factors, many of which are unrelated to the number of shares outstanding. If our efforts to meet the Nasdaq Capital Requirements are unsuccessful, our Common Stock would remain
subject to delisting.
The liquidity of our Common Stock could be adversely affected by the reduced number of shares that would be
outstanding after the Reverse Stock Split, and the reduced number of shares may make it more difficult to trade shares of the Common Stock. In addition, the Reverse Stock Split will increase the number of our stockholders who own odd lots (less than
100 shares). Stockholders who hold odd lots typically will experience an increase in the cost of selling their shares, as well as possible greater difficulty in effecting those sales.
The Reverse Stock Split will affect all of our holders of Common Stock uniformly and will not affect any stockholders percentage
ownership interests in the Company or proportionate voting power, except to the extent that the Reverse Stock Split results in any of our stockholders owning a fractional share, in which case such stockholders will receive a cash payment in lieu of
such fractional share. The Companys issued Common Stock will remain fully paid and
non-assessable.
The Reverse Stock Split will not affect the par value of our Common Stock. As a result, upon the effectiveness of the Reverse Stock Split, the
stated capital on our balance sheet attributable to our Common Stock will be reduced proportionately based on the exchange ratio selected by the Board for the Reverse Stock Split, and the additional
paid-in
capital account will be credited with the amount by which the stated capital is reduced. The per share net income or loss and net book value of our Common Stock will be increased because there will be fewer shares of our Common Stock outstanding. In
addition, proportionate adjustments will be made to the per share exercise price and the number of shares issuable upon the exercise or settlement of all outstanding options, restricted stock units and warrants to purchase or acquire, as applicable,
shares of Common Stock of the Company, and the number of shares reserved for issuance pursuant to our existing equity incentive, stock option and employee stock purchase plans will be reduced proportionately based on the exchange ratio selected by
the Board for the Reverse Stock Split.
10
The Reverse Stock Split will have no effect on the total number of shares of Common Stock we
are authorized to issue under the Restated Certificate of Incorporation. Therefore, upon effectiveness of the Reverse Stock Split, the number of shares of Common Stock that are authorized and unissued will increase relative to the number of issued
and outstanding shares. We may use the additional authorized and unissued shares of our Common Stock resulting from the Reverse Stock Split to issue additional shares of our Common Stock from time to time in equity financings, under our equity
compensation plans or in connection with other matters. The Board currently has no plans, arrangements or understandings regarding the issuance of such additional authorized and unissued shares of the Companys Common Stock.
Our Common Stock is currently registered under Section 12(b) of the Exchange Act, and we are subject to the periodic reporting and other
requirements of the Exchange Act. The proposed Reverse Stock Split will not affect the registration of the Common Stock under the Exchange Act. If the proposed Reverse Stock Split is implemented, the Common Stock will continue to be reported on the
Nasdaq Capital Market under the symbol ABIO.
Potential Anti-Takeover Effect of the Reverse Stock Split
Upon effectiveness of the Reverse Stock Split, the number of authorized shares of Common Stock that are not issued or outstanding will increase
relative to the number of shares of Common Stock that are issued and outstanding prior to the Reverse Stock Split. Although this increase could, under certain circumstances, have an anti-takeover effect (for example, by permitting issuances that
would dilute the stock ownership of a person seeking to effect a change in the composition of the Board or contemplating a tender offer or other transaction for the combination of the Company with another company), Proposal No. 1 is not being
proposed in response to any effort of which we are aware to accumulate shares of our Common Stock or to obtain control of the Company.
Effective Date
The Reverse Stock Split will be effected at 5:01 p.m. Eastern time, on the date that the certificate of amendment to the Restated
Certificate of Incorporation is filed with the Secretary of State of the State of Delaware. Beginning at the effective time of the Reverse Stock Split, each certificate representing Old Shares will be deemed for all corporate purposes to represent
New Shares. The texts of the proposed certificates of amendment to the Restated Certificate of Incorporation are in the forms annexed to this proxy statement as
Annexes A-1
through
A-18.
Exchange of Stock Certificates
The transfer agent for the Company will act as the exchange agent for purposes of implementing the exchange of stock certificates.
Holders of Old Shares will be asked to surrender to the exchange agent certificates representing Old Shares in exchange for certificates representing New Shares in accordance with the procedures to be set forth in a letter of transmittal to be sent
by the exchange agent. No new certificates will be issued to a stockholder until the stockholder has surrendered the stockholders outstanding certificate(s) together with the properly completed and executed letter of transmittal to the
exchange agent. Stockholders should not destroy any stock certificates and should not submit any certificates until requested to do so.
Fractional
Shares
No fractional shares of Common Stock will be issued as a result of the proposed Reverse Stock Split. Instead, stockholders who
otherwise would be entitled to receive fractional shares will, upon surrender to the exchange agent of certificates representing their fractional shares, be entitled to receive cash in an amount equal to the product obtained by multiplying
(i) the closing sales price of our Common Stock as reported on the Nasdaq Capital Market on the effective date of the certificate of amendment to the Restated Certificate of Incorporation by (ii) the number of shares of our Common Stock
held by such stockholder before the Reverse Stock Split that would otherwise have been exchanged for such fractional share interest. Holders of as many as nineteen shares (if we were to implement a
1-for-20
Reverse Stock Split) of our Common Stock would be eliminated as a result of the cash payment in lieu of any issuance of fractional shares or interests in connection with the Reverse Stock Split. The
exact number by which the number of
11
holders of our Common Stock would be reduced will depend on the Reverse Stock Split ratio adopted and the number of stockholders that hold less than the Reverse Stock Split ratio as of the
effective date of the Reverse Stock Split. As of September 12, 2018, there were approximately 48 holders of record of our Common Stock, of which 35 were holders of less than 20 shares of our Common Stock. As a result of the Reverse Stock Split,
assuming the maximum Reverse Stock Split ratio of
1-for-20
were selected, we estimate that cashing out fractional stockholders would potentially reduce that number of
stockholders of record to 13.
Federal Income Tax Consequences of the Reverse Stock Split
The following is a summary of certain material federal income tax consequences of the Reverse Stock Split to certain holders of Old Shares, but
does not purport to be a complete discussion of all of the potential tax considerations relating thereto. This summary is based on the provisions of the United States federal income tax law (including the Internal Revenue Code of 1986, as amended
(the Code), Treasury Regulations promulgated thereunder, and judicial and administrative interpretations thereof) as of the date hereof, all of which are subject to change retroactively as well as prospectively. Our views regarding the
tax consequences of the Reverse Stock Split are not binding upon the Internal Revenue Service or the courts, and there can be no assurance that the Internal Revenue Service or the courts will accept the positions expressed below. This summary
assumes that the Old Shares were, and the New Shares will be, held as a capital asset, as defined in the Code (i.e., generally, property held for investment). Further, it does not discuss any state, local, foreign or other tax
consequences. In addition, this summary does not address the tax consequences applicable to a holders particular circumstances or to holders that are subject to special tax rules, including without limitation banks, insurance companies,
regulated investment companies, personal holding companies, foreign entities, nonresident alien individuals, broker-dealers, traders,
tax-exempt
entities and persons who hold Old Shares as a position in a
hedging transaction, straddle, conversion transaction or other risk reduction transaction. THIS SUMMARY OF CERTAIN MATERIAL U.S. FEDERAL TAX CONSIDERATIONS IS FOR GENERAL INFORMATION ONLY AND IS NOT TAX ADVICE. EACH
STOCKHOLDER IS URGED TO CONSULT WITH SUCH STOCKHOLDERS OWN TAX ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT.
Other than the cash payments, if any, received by a stockholder in lieu of fractional shares as discussed below, no gain or loss should be
recognized by a stockholder upon such stockholders exchange of Old Shares for New Shares pursuant to the Reverse Stock Split. The aggregate tax basis of the New Shares received pursuant to the Reverse Stock Split will be the same as the
stockholders aggregate tax basis in the Old Shares exchanged therefor, less any basis attributable to fractional share interests. Stockholders who receive cash in lieu of fractional share interests in the New Shares as a result of the Reverse
Stock Split will be treated as having received the fractional shares pursuant to the Reverse Stock Split and then as having exchanged the fractional shares for cash in a redemption by the Company, and will generally recognize gain or loss equal to
the difference between the amount of cash received in lieu of a fractional share and their adjusted basis allocable to the fractional share interests redeemed. Such gain or loss will be long term capital gain or loss if the Old Shares were held for
more than one year. The stockholders holding period for the New Shares will include the period during which the stockholder held the Old Shares surrendered in the Reverse Stock Split.
No gain or loss will be recognized by us as a result of the Reverse Stock Split.
No Dissenters Rights
Under
applicable Delaware law, the Companys stockholders are not entitled to dissenters or appraisal rights with respect to the proposed amendment to the Restated Certificate of Incorporation to effect the Reverse Stock Split. We will not
independently provide our stockholders with any such right.
12
A
NNEX
A-1
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as
amended, as follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 3 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-2
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 4 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-3
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
,
a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 5 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-4
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 6 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-5
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 7 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-6
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 8 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-7
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 9 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-8
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 10 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-9
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 11 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-10
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 12 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-11
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The
Board of Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as
amended, as follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 13 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-12
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 14 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-13
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 15 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-14
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 16 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-15
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 17 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-16
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 18 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-17
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 19 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
A
NNEX
A-18
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCA BIOPHARMA, INC.
ARCA
BIOPHARMA
, I
NC
.
, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the
DGCL
), does hereby certify:
F
IRST
:
The name
of the corporation is ARCA biopharma, Inc. (the
Corporation
).
S
ECOND
:
The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 16, 2004 under the name Nuvelo Merger Sub, Inc.
T
HIRD
:
The Board of
Directors (the
Board
) of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, adopted resolutions amending its Amended and Restated Certificate of Incorporation, as amended, as
follows:
1.
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended to add the following provisions in their entirety to the existing provisions of Article IV:
Effective at 5:01 p.m. Eastern time, on the date of the filing of this Certificate of Amendment to the Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the Effective Time), the shares of the Corporations Common Stock, par value $0.001 per share, issued and outstanding immediately prior to
the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time shall be combined into a smaller number of shares such that each 20 shares of issued and outstanding Common
Stock immediately prior to the Effective Time are combined into one validly issued, fully paid and nonassessable share of Common Stock, par value $0.001 per share. Notwithstanding the immediately preceding sentence, no fractional shares shall be
issued and, in lieu thereof, upon surrender after the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be
entitled to a fractional share of Common Stock as a result of the combination, following the Effective Time (after taking into account all fractional shares of Common Stock otherwise issuable to such holder), shall be entitled to receive a cash
payment equal to the fraction to which such holder would otherwise be entitled multiplied by the fair value of the Common Stock on the date of the Effective Time, as determined by the Board of Directors.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and
outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time
into which the shares of Common Stock formerly represented by such certificate shall have been combined (as well as the right to receive cash in lieu of fractional shares of Common Stock after the Effective Time), provided however, that each person
of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the
number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been combined.
F
OURTH
: Thereafter,
pursuant to a resolution by the Board, this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval in accordance with the provisions of Section 211 and 242 of the DGCL. Accordingly, said proposed
amendment has been adopted in accordance with Section 242 of the DGCL.
I
N
W
ITNESS
W
HEREOF
,
ARCA
BIOPHARMA
, I
NC
.
has caused this Certificate of Amendment to be signed by its duly authorized officer this ______ day of ________, 2018.
In their discretion, the proxies are also authorized to vote upon such other matters as may properly come before the
Special Meeting.
PROXY SOLICITED BY THE BOARD OF DIRECTORS OF ARCA BIOPHARMA, INC.
FOR THE
SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON OCTOBER 18, 2018
The undersigned hereby acknowledges receipt of the Notice of Special Meeting of
Stockholders and Proxy Statement of ARCA biopharma, Inc. (the Company) in connection with the Companys Special Meeting of Stockholders to be held at the Companys Headquarters, 11080 CirclePoint Road, Suite 140, Westminster,
Colorado 80020 at 9:00 a.m., Mountain Time, on Thursday, October 18, 2018, and does hereby appoint Michael R. Bristow, M.D., Ph.D., Thomas A. Keuer and Christopher D. Ozeroff, and each of them (with full power to act alone), as proxies of the
undersigned with all the powers the undersigned would possess if personally present and with full power of substitution in each of them, to appear and vote all shares of Common Stock of the Company which the undersigned would be entitled to vote if
personally present at the 2018 Special Meeting of Stockholders, and at any postponement or adjournment thereof.
The shares represented hereby will
be voted as directed herein.
IN EACH CASE, IF NO DIRECTION IS INDICATED, SUCH SHARES WILL BE VOTED FOR PROPOSAL 1. AS TO ANY OTHER MATTER THAT MAY PROPERLY COME BEFORE THE MEETING OR ANY POSTPONEMENT OR ADJOURNMENT THEREOF, SAID PROXY
HOLDERS WILL VOTE IN ACCORDANCE WITH THEIR BEST JUDGMENT. THIS PROXY MAY BE REVOKED IN WRITING AT ANY TIME PRIOR TO THE VOTING THEREOF.
PLEASE VOTE, DATE AND SIGN ON THE REVERSE SIDE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE.
Please be sure to sign and date this Proxy.
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Using a
black ink
pen, mark your votes with an
X
as shown in this example. Please do not write outside the designated areas.
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☒
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Special Meeting Proxy
Card
|
q
PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.
q
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A
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Proposals The Board of Directors recommends a vote
FOR
Proposal 1.
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For
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Against
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Abstain
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1.
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Approval of a series of certificates of amendment to the Companys Restated Certificate of Incorporation, as amended, to effect a reverse split of the Companys outstanding common stock,
pursuant to which any whole number of outstanding shares between, and including, three and twenty would be combined into one share of common stock and to authorize the Companys Board of Directors to select and file one such certificate of
amendment and abandon the other certificates of amendment, or to abandon all such certificates of amendment as permitted under Section 242(c) of the Delaware General Corporation Law, to be determined by the Board of Directors within one year of
approval.
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☐
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☐
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☐
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In their discretion, the proxies are also authorized to vote upon such other matters as may properly come before the
Special Meeting.
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B
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Authorized Signatures This section must be completed for your vote to be counted. Date and Sign Below
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Please date and sign exactly as the name appears on this card. Joint owners should each sign. Please give full title when signing as executor, administrator, trustee, attorney, guardian for a
minor, etc. Signatures for corporations and partnerships should be in the corporate or firm name by a duly authorized person.
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Date (mm/dd/yyyy) Please print date below.
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Signature 1 Please keep signature within the box.
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Signature 2 Please keep signature within the box.
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/ /
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Important notice regarding the Internet availability of
proxy materials for the Special Meeting of Stockholders.
q
PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED
ENVELOPE.
q
Proxy ARCA BIOPHARMA, INC.
PROXY SOLICITED BY THE BOARD OF DIRECTORS OF ARCA BIOPHARMA, INC.
FOR THE
SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON OCTOBER 18, 2018
The undersigned hereby acknowledges receipt of the Notice of Special Meeting of
Stockholders and Proxy Statement of ARCA biopharma, Inc. (the Company) in connection with the Companys Special Meeting of Stockholders to be held at the Companys Headquarters, 11080 CirclePoint Road, Suite 140, Westminster,
Colorado 80020 at 9:00 a.m., Mountain Time, on Thursday, October 18, 2018, and does hereby appoint Michael R. Bristow, M.D., Ph.D., Thomas A. Keuer and Christopher D. Ozeroff, and each of them (with full power to act alone), as proxies of the
undersigned with all the powers the undersigned would possess if personally present and with full power of substitution in each of them, to appear and vote all shares of Common Stock of the Company which the undersigned would be entitled to vote if
personally present at the 2018 Special Meeting of Stockholders, and at any postponement or adjournment thereof.
The shares represented hereby will
be voted as directed herein.
IN EACH CASE, IF NO DIRECTION IS INDICATED, SUCH SHARES WILL BE VOTED FOR PROPOSAL 1. AS TO ANY OTHER MATTER THAT MAY PROPERLY COME BEFORE THE MEETING OR ANY POSTPONEMENT OR ADJOURNMENT THEREOF, SAID PROXY
HOLDERS WILL VOTE IN ACCORDANCE WITH THEIR BEST JUDGMENT. THIS PROXY MAY BE REVOKED IN WRITING AT ANY TIME PRIOR TO THE VOTING THEREOF.
PLEASE VOTE, DATE AND SIGN ON THE REVERSE SIDE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE.
Please be sure to sign and date this Proxy.