EXHIBIT 3.2
FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
XCEL PHARMACEUTICALS, INC.
Xcel Pharmaceuticals, Inc., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
A. The corporation was originally incorporated as "MJBC CORP." pursuant to
an original Certificate of Incorporation of the corporation filed with the
Secretary of State of the State of Delaware on January 24, 2001. On March 21,
2001, the corporation filed with the Secretary of State of Delaware a
Certificate of Amendment to its Certificate of Incorporation. An Amended and
Restated Certificate of Incorporation was filed with the Secretary of State of
Delaware on March 29, 2001, changing the name of the corporation to "Xcel
Pharmaceuticals, Inc."
B. This Amended and Restated Certificate of Incorporation (i) has been duly
adopted in accordance with the provisions of Sections 242 and 245 of the
Delaware General Corporation Law by the board of directors and stockholders of
the corporation and (ii) restates and integrates and further amends the
provisions of the Certificate of Incorporation of the corporation.
C. The text of the Certificate of Incorporation as heretofore amended is
hereby amended and restated in its entirety, effective as of the effective date
of this filing, to read as follows:
ARTICLE I
The name of the corporation is Xcel Pharmaceuticals, Inc.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle,
19801. The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted by the
corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware as
the same exists or hereafter may be amended.
ARTICLE IV
A. Classes of Stock. The total number of shares of all classes of capital
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stock that the corporation shall have authority to issue is one hundred five
million (105,000,000), of which one hundred million (100,000,000)shares with par
value of one hundredth of one cent ($.0001)
each shall be Common Stock (the "Common Stock") and five million (5,000,000)
shares with a par value of one hundredth of one cent ($.0001) each shall be
Preferred Stock (the "Preferred Stock"). The number of authorized shares of
Common Stock or Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the then outstanding shares of Common Stock, without a
vote of the holders of the Preferred Stock, or of any series thereof, unless a
vote of any such Preferred Stock holders is required pursuant to the provisions
established by the Board of Directors of the corporation (the "Board of
Directors") in the resolution or resolutions providing for the issue of such
Preferred Stock, and if such holders of such Preferred Stock are so entitled to
vote thereon, then, except as may otherwise be set forth in this Amended and
Restated Certificate of Incorporation, the only stockholder approval required
shall be the affirmative vote of a majority of the combined voting power of the
Common Stock and the Preferred Stock so entitled to vote.
B. Preferred Stock. The Preferred Stock may be issued in any number of
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series, as determined by the Board of Directors. The Board of Directors is
expressly authorized to provide for the issue, in one or more series, of all or
any of the shares of Preferred Stock and, in the resolution or resolutions
providing for such issue, to establish for each such series the number of its
shares, the voting powers, full or limited, of the shares of such series, or
that such shares shall have no voting powers, and the designations, preferences
and relative, participating, optional or other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof. The
Board of Directors is also expressly authorized (unless forbidden in the
resolution or resolutions providing for such issue) to increase or decrease (but
not below the number of shares of the series then outstanding) the number of
shares of any series of Preferred Stock, at any time including after the
issuance of shares of that series and, at any time prior to the issuance of
shares of that series, to amend by resolution the voting powers, designation,
preferences and relative, participating, optional or other special rights of the
shares of such series, and the qualifications, limitations or restrictions
thereof. In case the number of shares of any such series shall be so decreased,
the shares constituting such decrease shall resume the status of authorized but
unissued shares of Preferred Stock.
C. Common Stock.
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1. Relative Rights of Preferred Stock and Common Stock. All preferences,
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voting powers, relative, participating, optional or other special rights and
privileges, and all qualifications, limitations, or restrictions, of the Common
Stock are expressly made subject and subordinate to those that may be fixed with
respect to any shares of the Preferred Stock.
2. Voting Rights. Except as otherwise required by law or this Amended and
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Restated Certificate of Incorporation, each holder of Common Stock shall have
one vote in respect of each share of stock held by such holder of record on the
books of the corporation for the election of directors and on all matters
submitted to a vote of stockholders of the corporation.
3. Dividends. Subject to the preferential rights of the Preferred Stock,
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the holders of shares of Common Stock shall be entitled to receive, when and if
declared by the Board of Directors, out of the assets of the corporation which
are by law available therefor, dividends payable either in cash, in property or
in shares of capital stock.
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4. Dissolution, Liquidation or Winding Up. In the event of any dissolution,
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liquidation or winding up of the affairs of the corporation, after distribution
in full of the preferential amounts, if any, to be distributed to the holders of
shares of the Preferred Stock, holders of Common Stock shall be entitled, unless
otherwise provided by law or this Amended and Restated Certificate of
Incorporation, to receive all of the remaining assets of the corporation of
whatever kind available for distribution to stockholders ratably in proportion
to the number of shares of Common Stock held by them respectively.
ARTICLE V
The corporation is to have perpetual existence.
ARTICLE VI
A. Number of Directors. The authorized number of directors of the
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corporation shall be determined from time to time by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors at any regular
or special meeting of such Board, within any limits prescribed in the bylaws of
the corporation.
B. Classes of Directors. The Board of Directors, other than those directors
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elected by the holders of any series of Preferred Stock as provided for or fixed
pursuant to the provisions of Article IV of this Amended and Restated
Certificate of Incorporation, shall be divided into three classes, designated
Class I, Class II and Class III, as nearly equal in number as possible, and the
term of office of directors of one class shall expire at each annual meeting of
stockholders, and in all cases as to each director such term shall extend until
his or her successor shall be elected and shall qualify or until his or her
earlier resignation, removal from office, death or incapacity. Additional
directorships resulting from an increase in number of directors shall be
apportioned among the classes as equally as possible. The initial term of office
of directors of Class I shall expire at the annual meeting of stockholders in
2003, the initial term of office of directors of Class II shall expire at the
annual meeting of stockholders in 2004 and the initial term of office of
directors of Class III shall expire at the annual meeting of stockholders in
2005. At each annual meeting of stockholders a number of directors equal to the
number of directors of the class whose term expires at the time of such meeting
(or, if less, the number of directors properly nominated and qualified for
election) shall be elected to hold office until the third succeeding annual
meeting of stockholders after their election. Each director shall serve until
his or her successor shall have been duly elected and qualified, unless he shall
resign, become disqualified, disabled or shall otherwise be removed.
At each annual election, directors chosen to succeed those whose terms then
expire shall be of the same class as the directors they succeed, unless by
reason of any intervening changes in the authorized number of directors, the
Board of Directors shall designate one or more directorships whose term then
expires as directorships of another class in order to more nearly achieve
equality of number of directors among the classes.
Notwithstanding the rule that the three classes shall be as nearly equal in
number of directors as possible, in the event of any change in the authorized
number of directors, each director then continuing to serve as such shall
nevertheless continue as a director of the class of
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which he is a member until the expiration of his current term, or his prior
death, resignation or removal. If any newly created directorship may,
consistently with the rule that the three classes shall be as nearly equal in
number of directors as possible, be allocated to either class, the Board of
Directors shall allocate it to that of the available class whose term of office
is due to expire at the earliest date following such allocation.
C. Vacancies. Except as otherwise provided for or fixed pursuant to the
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provisions of Article IV of this Amended and Restated Certificate of
Incorporation relating to the rights of the holders of any series of Preferred
Stock to elect directors, and subject to the provisions hereof, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or another cause may be filled only by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum of the Board of Directors. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the class of directors in which the new directorship was created or in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified or until his or her earlier resignation, removal from
office, death or incapacity. Subject to the provisions of this Amended and
Restated Certificate of Incorporation, no decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
D. Elections. Elections of directors need not be by written ballot unless
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the bylaws of the corporation shall so provide.
E. Changes. The Board of Directors of this corporation, by amendment to the
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corporation's bylaws or as otherwise permitted in the corporation's bylaws, is
expressly authorized to change the number of directors in any or all of the
classes of directors without consent of the stockholders.
ARTICLE VII
A. Power of Stockholders to Act by Written Consent. No action required or
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permitted to be taken at any annual or special meeting of the stockholders may
be taken without a meeting, and the power of stockholders to consent in writing,
without a meeting, to the taking of any action is specifically denied.
B. Special Meetings of Stockholders. Special meetings of the stockholders
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of the corporation may be called only by the Chairman of the Board or the Chief
Executive Officer of the corporation or by a resolution adopted by the
affirmative vote of a majority of the Board of Directors.
C. Any of the provisions of Sections A. or B. of this Article VII may be
waived in any particular instance by the approval of at least sixty-six and
two-thirds percent (66-2/3%) of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships
at the time any such waiver is presented to the Board of Directors).
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ARTICLE VIII
A. Limitation on Liability. A director of the corporation shall not be
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personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability which by
express provision of the General Corporation Law of Delaware as in effect from
time to time, cannot be eliminated.
If the Delaware General Corporation Law hereafter is amended to further
eliminate or limit the liability of directors, then the liability of a director
of the corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended Delaware
General Corporation Law.
B. Indemnification. Each person who is or is made a party or is threatened
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to be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said law permitted
the corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in the
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second paragraph of this section, the corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors. The right to indemnification conferred in
this section shall be a contract right and shall include the right to be paid by
the corporation for any expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Delaware
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General Corporation Law requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this section or otherwise. The corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
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If a claim under the first paragraph of this section is not paid in full by
the corporation within thirty (30) days after a written claim has been received
by the corporation, the claimant may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel or stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
section shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of this Amended and Restated
Certificate of Incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
C. Insurance. The corporation may maintain insurance, at its expense, to
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protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
D. Repeal and Modification. Any repeal or modification of the foregoing
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provisions of this Article VIII shall not adversely affect any right or
protection of any director, officer, employee or agent of the corporation
existing at the time of such repeal or modification.
E. Other Indemnification. To the fullest extent permitted by applicable
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law, the corporation is authorized to provide indemnification of (and
advancement of expenses to) agents of the corporation (and any other persons to
which Delaware law permits the corporation to provide indemnification) through
bylaw provisions, agreements with such directors, officers, employees and agents
or other persons, vote of stockholders or disinterested directors or otherwise,
in excess of the indemnification and advancement otherwise permitted by Section
145 of the Delaware General Corporation Law, subject only to limits created by
applicable Delaware law (statutory or non-statutory) with respect to actions for
breach of duty to the corporation, its stockholders and others.
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ARTICLE IX
The Board of Directors is expressly empowered to adopt, amend or repeal the
by-laws of the corporation; provided, however, that any adoption, amendment or
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repeal of the by-laws of the corporation by the Board of Directors shall require
the approval of at least sixty-six and two-thirds percent (66-2/3%) of the total
number of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any resolution providing for
adoption, amendment or repeal is presented to the Board of Directors). The
stockholders shall also have the power to adopt, amend or repeal the by-laws of
the corporation; provided, however, that in addition to any vote of the holders
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of any class or series of stock of the corporation required by law or by this
Amended and Restated Certificate of Incorporation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then outstanding shares of the stock of the corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required for such adoption, amendment or repeal by the
stockholders of any provisions of the by-laws of the corporation.
ARTICLE X
Notwithstanding any other provision of this Amended and Restated
Certificate of Incorporation, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the
then outstanding shares of the stock of the corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to amend in any respect or repeal any provisions of this Article X,
or any provision of Articles VI, VII, VIII and IX.
IN WITNESS WHEREOF, Xcel Pharmaceuticals has caused this certificate to be
signed by the undersigned officers, thereunto duly authorized, this ____ day of
_______, 2002.
XCEL PHARMACEUTICALS, INC.
By:
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Michael T. Borer
Chief Executive Officer
By:
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John R. Cook
Secretary
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