EXHIBIT 3.1
STATE OF DELAWARE
SECRETARY OF CORPORATIONS
FILED 5:30 PM 05/09/2003
CERTIFICATE OF INCORPORATION
OF
PHARMACEUTICAL RESOURCES, INC.
FIRST: The name of the corporation is Pharmaceutical Resources, Inc.
(the "Corporation").
SECOND: The address of the Corporation's registered office in the
State of Delaware is 2711 Centerville Road, Suite 400, in the City of
Wilmington, County of New Castle 19808. The name of its registered agent at that
address is Corporation Service Company.
THIRD: The purpose of 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 (the "Delaware Code").
FOURTH: (A) The total number of shares of capital stock that the
Corporation shall have authority to issue is 96,000,000, of which 90,000,000
shall be shares of common stock having a par value of $0.01 per share (the
"Common Stock") and 6,000,000 shares shall be shares of preferred stock having a
par value of $0.0001 per share (the "Preferred Stock").
(B) The Preferred Stock may be issued in one or more
classes or series. The board of directors of the Corporation (the "Board") is
hereby authorized to issue, in its sole discretion, the shares of Preferred
Stock in such class or series and to fix, from time to time, before their
issuance, the number of shares to be included in any class or series and the
designation, relative rights, preferences and limitations of all shares of such
class or series. The authority of the Board with respect to each class or series
of the Preferred Stock shall include, without limiting the generality of the
foregoing, the determination of any or all of the following:
(i) The number of shares of any class or series
and the designation to distinguish the shares of such class or series from
the shares of all other classes or series;
(ii) The voting powers, if any, and whether such
voting powers are full or limited in such class or series;
(iii) The redemption provisions, if any, applicable
to such class or series, including the redemption price or prices to be
paid;
(iv) Whether dividends, if any, shall be cumulative
or non-cumulative, the dividend rate or rates of such class or series and
the manner of determining the same, and the dates and preferences of
dividends on such class or series;
(v) The rights of such class or series upon the
voluntary or involuntary dissolution of, or upon any distribution of the
assets of, the Corporation;
(vi) The provisions, if any, pursuant to which the
shares of such class or series are convertible into, or exchangeable for,
shares of any other class or classes or of any other series of the same or
of any other class or classes of shares, or any other security, of the
Corporation or any other corporation or entity, and the price or prices or
the rates of exchange applicable thereto;
(vii) The rights, if any, to subscribe for or to
purchase any securities of the Corporation or any other corporation or
entity;
(viii) The provisions, if any, of a sinking fund
applicable to such class or series; and
(ix) Any other relative, participating, optional or
other special powers, preferences, rights, qualifications, limitations or
restrictions thereof,
all as shall be determined from time to time by the Board and shall be stated in
said resolution or resolutions providing for the issuance of such Preferred
Stock.
(C) Except as may be provided in this Certificate of
Incorporation, by the Board in a Preferred Stock designation or by applicable
law, the Common Stock shall have the exclusive right to vote for the election of
directors and for all other purposes, and holders of Preferred Stock shall not
be entitled to receive notice of any meeting of stockholders at which they are
not entitled to vote or consent.
(D) The Corporation shall be entitled to treat the person
in whose name any share of its capital stock is registered as the owner thereof
for all purposes, and shall not be bound to recognize any equitable or other
claim to, or interest in, such share on the part of any other person, whether or
not the Corporation shall have notice thereof, except as expressly provided by
applicable law.
FIFTH: The name and mailing address of the incorporator are Marian E.
Gustafson, c/o Kirkpatrick & Lockhart LLP, 599 Lexington Avenue, New York, NY
10022-6030.
SIXTH: (A) The Board shall have the power to adopt, amend and
repeal the By-laws of the Corporation. The stockholders entitled to vote in the
election of directors may adopt additional By-laws and may amend or repeal any
By-law adopted by the Board.
(B) Subject to the rights of the holders of any class or
series of capital stock having a preference over the Common Stock as to
dividends and/or upon liquidation, the number of directors that shall constitute
the entire Board shall not be less than three nor more than 13, with the actual
number of directors to be determined from time to time by the Board in
accordance with this Certificate of Incorporation and pursuant to duly adopted
resolutions of the Board. Any decrease in the number of directors will not
shorten the term of any incumbent director.
(C) Commencing with the directors elected at the Annual
Meeting of Stockholders in 2003, the directors, other than any who may be
elected by the holders of any class or series of stock having a preference over
the Common Stock as to dividends and/or upon liquidation, shall be classified
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with respect to the time for which they severally hold office into three
classes, as nearly equal in number as possible. The first class of directors
shall be elected for a term expiring at the Annual Meeting of Stockholders to be
held in 2006, the second class of directors shall be elected for a term expiring
at the Annual Meeting of Stockholders to be held in 2004 and the third class of
directors shall be elected for a term expiring at the Annual Meeting of
Stockholders to be held in 2005, with each of the members of the three classes
to hold office until his or her successor is duly elected and qualified.
Commencing at the 2007 Annual Meeting of the Stockholders, and at each
succeeding annual meeting of the stockholders thereafter, the successors of the
class of directors whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting of stockholders held in the
third year following the year of their election. Any vacancy or newly-created
directorship resulting from any increase in the authorized number of directors
may be filled by a majority of only those directors who were directors of the
Company immediately prior to such vacancy or newly-created directorship, even
though such directors may constitute less than a quorum, or by a sole remaining
director. Any director so chosen to fill a vacancy or a newly-created
directorship shall hold office until the next election of the class for which
such director shall have been chosen and until his/her successor shall be
elected and qualified.
(D) Notwithstanding anything contained in this Certificate
of Incorporation to the contrary, the affirmative vote of the stockholders
holding at least sixty-six and two-thirds (66 2/3%) percent of the Voting Stock
(as defined below), voting together as a single class, shall be required to
alter, change, amend, repeal, or adopt any provision inconsistent with, this
Article Sixth (including this Paragraph (D)).
(E) For the purpose of this Article Sixth, "Voting Stock"
shall mean the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors. In any vote required by or
provided for in this Article Sixth, each share of Voting Stock shall have the
number of votes granted to it generally in the election of directors.
SEVENTH: Meetings of stockholders shall be held at such place, in or
outside the State of Delaware, as may be designated by or in the manner provided
in the By-laws of the Corporation or, if not so designated, as determined by the
Board. Elections of directors need not be by written ballot except as and to the
extent required by the By-laws of the Corporation.
EIGHTH: No director shall be personally liable to the Corporation or
its stockholders for monetary damages for any breach of fiduciary duty as a
director, except to the extent that such elimination or limitation of liability
is not permitted under the Delaware Code as in effect at the time of breach of
such fiduciary duty. Any amendment, modification or repeal of this Article or of
the Delaware Code shall not adversely affect any right or protection of a
director of the Corporation with respect to any such breach of fiduciary duty
occurring prior to the time of such amendment, modification or repeal.
NINTH: (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by the Delaware Code, each director and officer of
the Corporation who was or is, or is threatened to be made, a party to or
otherwise involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that such person is or was a director,
officer, employee or agent of the Corporation, or a trustee, custodian,
administrator, committeeman or fiduciary of any employee benefit plan, or a
person serving another corporation, partnership, joint venture, trust, other
enterprise or nonprofit entity in any of the foregoing capacities at the request
of the Corporation (an "Authorized Representative"), against all expenses
(including attorneys' fees and disbursements), liabilities, judgments, fines
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(including excise taxes and penalties) and amounts paid in settlement actually
and reasonably incurred by such person in connection with such Proceeding,
whether the basis of such person's involvement in the Proceeding is an alleged
act or omission in such person's capacity as an Authorized Representative or in
another capacity while serving in such capacity, or both. The Corporation shall
be required to indemnify an incumbent or former director or officer in
connection with a Proceeding initiated by such person only if and to the extent
that such Proceeding was authorized by the Board or it is a civil suit by such
person to enforce rights to indemnification or advancement of expenses.
(B) The Corporation shall promptly pay all expenses
(including attorneys' fees and disbursements) actually and reasonably incurred
by a director or officer of the Corporation in defending or appearing (otherwise
than as a plaintiff) in any Proceeding described in Paragraph (A) of this
Article in advance of the final disposition of such Proceeding upon receipt of
an undertaking by or on behalf of such person to repay all amounts so advanced
if it shall ultimately be determined by a final, unappealable judicial decision
that such person is not entitled to be indemnified for such expenses under this
Article or otherwise.
(C) The Corporation shall have the power to indemnify any
person who is or was an Authorized Representative (other than current or former
officers or directors, who are covered by Paragraph (A) above) against any loss,
liability and expense in connection with a Proceeding, and may pay expenses
incurred by such person in connection with such Proceeding in advance of the
final disposition of the Proceeding, to the fullest extent permitted by
applicable law.
(D) The rights to indemnification and advancement of
expenses provided by or granted pursuant to this Article shall be presumed to
have been relied upon by directors and officers of the Corporation in serving or
continuing to serve the Corporation, shall continue as to a person who ceases to
be an Authorized Representative, shall inure to the benefit of the heirs,
executors and administrators of such person, and shall be enforceable as
contract rights. Such rights shall not be deemed exclusive of any other rights
to which a person seeking indemnification or advancement of expenses may be
entitled under any statute, agreement, the Corporation's By-laws, vote of
stockholders or disinterested directors, or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office or position. The Corporation may enter into contracts to provide any
Authorized Representative with specific rights to indemnification and
advancement of expenses, which contracts may confer rights and protections to
the maximum extent permitted by applicable law. The Corporation may purchase and
maintain insurance, borrow money, create trust funds, pledge, mortgage or create
security interests in the assets of the Corporation, obtain letters of credit or
use other means from time to time to ensure payment of such amounts as may be
necessary to perform the Corporation's obligations under this Article or in any
such contract, whether or not the Corporation would have the power to indemnify
an Authorized Representative against such loss, liability and expenses. The
Corporation may purchase such insurance from, or such insurance may be reinsured
in whole or in part by, an insurer owned by or otherwise affiliated with the
Corporation. The By-laws of the Corporation may contain additional provisions
implementing and supplementing the provisions of this Article.
(E) Any amendment, modification or repeal of this Article
shall not adversely affect any right or protection of a director or officer of
the Corporation with respect to any act or omission occurring prior to the time
of such amendment, modification or repeal.
TENTH: Any action permitted or required to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, without
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prior notice and without a vote, only if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of all shares
of the Voting Stock.
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The undersigned incorporator makes this Certificate for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, and hereby declares and certifies that this is the act and
deed of the undersigned and that the facts stated herein are true.
Date: May 9, 2003 /s/ Marian E. Gustafson
------------------------------
Marian E. Gustafson
Sole Incorporator
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State of Delaware
Secretary of State
Division of Corporations
Filed 1:13 PM 06/24/2003
CERTIFICATE OF MERGER
OF
PHARMACEUTICAL RESOURCES, INC.
A New Jersey corporation
AND
PHARMACEUTICAL RESOURCES, INC.
A Delaware corporation
Pursuant to the provisions of Section 252 of the General Corporation
Law of the State of Delaware, it is hereby certified that:
1. The constituent business corporations participating in the merger
herein certified are:
(i) Pharmaceutical Resources, Inc., which is incorporated
under the laws of the State of New Jersey ("PRI NJ"); and
(ii) Pharmaceutical Resources, Inc., which is incorporated
under the laws of the State of Delaware ("PRI DE").
2. An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the aforesaid constituent
corporations in accordance with the provisions of subsection (c) of Section 252
of the General Corporation Law of the State of Delaware; by PRI NJ in accordance
with the laws of the State of its incorporation; and by PRI DE in the manner
provided in Section 251 of the General Corporation Law of the State of Delaware.
3. The name of the surviving corporation in the merger herein
certified is Pharmaceutical Resources, Inc., which will continue its existence
as said surviving corporation under its present name upon the effective date of
said merger pursuant to the provisions of the General Corporation Law of the
State of Delaware.
4. The Certificate of Incorporation of PRI DE, as now in force and
effect, shall continue to be the Certificate of Incorporation of said surviving
corporation unless and until amended and changed pursuant to the provisions of
the General Corporation Law of the State of Delaware.
5. The complete executed Agreement and Plan of Merger between the
aforesaid constituent corporations is on file at the principal executive office
of the surviving corporation, which address is: One Ram Ridge Road, Spring
Valley, NY 10977. A copy of the Agreement and Plan of Merger will be furnished
by the surviving corporation, on request, and without cost, to any stockholder
of each of the aforesaid constituent corporations.
6. The authorized capital stock of PRI NJ consists of 90,000,000
shares of Common Stock having a par value of $0.01 per share and 6,000,000
shares of Preferred Stock having a par value of $0.0001 per share.
7. The Agreement and Plan of Merger between the aforesaid
constituent corporations provides that the merger herein certified shall be
effective on filing of this Certificate with the Secretary of State of Delaware.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Dated: June 24, 2003.
PHARMACEUTICAL RESOURCES, INC.
A New Jersey corporation
By: /s/ Dennis J. O'Connor
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Name: Dennis J. O'Connor
Title: Vice President, Chief Financial
Officer & Secretary
PHARMACEUTICAL RESOURCES, INC.
A Delaware corporation
By: /s/ Joseph Schott
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Name: Joseph Schott
Title: Assistant Secretary