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EXHIBIT 3.3
RESTATED CERTIFICATE OF INCORPORATION
OF
ALLERGAN SPECIALTY THERAPEUTICS, INC.
(Originally incorporated under the same name on November 12, 1997)
FIRST: NAME. The name of this corporation is Allergan Specialty
Therapeutics, Inc. (the "corporation").
SECOND: REGISTERED OFFICE; REGISTERED AGENT. The address of the registered
office of this corporation in the State of Delaware is 9 East
Loockerman Street, in the City of Dover, County of Kent. The name of
the registered agent of this corporation at such address is National
Registered Agents, Inc.
THIRD: PURPOSE. The purpose of this 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.
FOURTH: AUTHORIZED CAPITAL STOCK.
(A) This corporation is authorized to issue two classes of shares, which shall
be known as Class A Common Stock ("Class A Common Stock") and Class B Common
Stock ("Class B Common Stock"). The total number of shares of stock of all
classes that this corporation is authorized to issue is 6,001,000. The total
number of shares of Class A Common Stock which this corporation is authorized to
issue is 6,000,000. The total number of shares of Class B Common Stock which
this corporation is authorized to issue is 1,000. Each share of Class A Common
Stock shall have a par value of $0.01, and each share of Class B Common Stock
shall have a par value of $1.00.
Effective immediately upon the filing of this Restated Certificate of
Incorporation (the "Filing Date"), each share of Common Stock, par value $1.00
per share, of this corporation outstanding immediately prior to such filing
shall be converted into and reclassified as ten shares of Class B Common Stock.
(B) The powers, designations, preferences, and relative, participating, optional
or other special rights granted to, and the qualifications, limitations and
restrictions imposed upon, the Class A Common Stock and Class B Common Stock and
the respective holders thereof are as follows:
(1) REDEMPTION. The shares of Class A Common Stock are redeemable and
may be redeemed as provided in (but only as provided in) Article FIFTH, Section
(F).
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(2) DIVIDENDS. The holders of shares of Class A Common Stock and Class B
Common Stock shall be entitled to receive per share and without preference such
dividends as may be declared by the Board of Directors from time to time out of
funds legally available therefor. No dividend may be declared on the Class A
Common Stock unless the same per share dividend is declared on the Class B
Common Stock, and no dividend may be declared on the Class B Common Stock unless
the same per share dividend is declared on the Class A Common Stock. Dividends
may not be declared, nor may shares of Class A Common Stock or Class B Common
Stock be repurchased, or redeemed (other than pursuant to Section (F) of Article
FIFTH), if, after payment of such dividend, or after effecting such repurchase
or redemption, the amount of this corporation's cash, cash equivalents,
short-term and long-term investments would be less than the amount of Available
Funds remaining after expenditures pursuant to the Research and Development
Agreement, as of the date of such dividend, repurchase or redemption.
(3) LIQUIDATION. In the event of voluntary or involuntary liquidation of
this corporation, the holders of the Class A Common Stock and Class B Common
Stock of the corporation shall be entitled to receive, on a pro rata per share
basis and without preference, all of the remaining assets of this corporation
available for distribution to its stockholders.
(4) VOTING RIGHTS. Except as otherwise required by law or provided
herein, the holders of Class A Common Stock and Class B Common Stock shall vote
together as a single class. Each holder of Class A Common Stock and Class B
Common Stock shall have one vote for each share standing in his or her name on
all matters submitted to a vote of holders of the common shares. At any meeting
of the stockholders of this corporation, the determination of a quorum shall be
based upon the presence of shares of Class A Common Stock and Class B Common
Stock representing a majority of the voting power of all of the shares of Class
A Common Stock and Class B Common Stock. This corporation shall not, without the
affirmative vote of the holders of a majority of the issued and outstanding
shares of Class B Common Stock, voting separately and as a class, (a) alter or
change the powers, designations, preferences and relative, participating,
optional or other special rights granted to, or the qualifications, limitations
and restrictions imposed upon, the Class A Common Stock or the Class B Common
Stock, (b) alter or change this Article FOURTH or any of Articles FIFTH, SIXTH
or SEVENTH of this Restated Certificate of Incorporation, or otherwise make any
amendment to this Restated Certificate of Incorporation that would alter the
rights of the holders of the Class B Common Stock, (c) authorize the creation or
issuance of any additional class or series of stock, (d) undertake the voluntary
dissolution, liquidation or winding up of this corporation, (e) merge or
consolidate this corporation with or into any other corporation or entity, (f)
sell, lease, exchange, transfer or otherwise dispose of any substantial asset of
this corporation or (g) alter the bylaws of this corporation in a manner
described in the
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last sentence of Article EIGHTH. Furthermore, from and after the Purchase Option
Exercise Date, as defined in Article FIFTH, (i) the holders of Class B Common
Stock shall be entitled to remove directors with or without cause; and (ii) the
holders of the Class B Common Stock shall have the sole right to elect the
directors of this corporation. No new directorships created as a result of the
increase in the size of the Board of Directors pursuant to the preceding
sentence shall be filled other than by the holders of the Class B Common Stock.
(5) CONVERSION. The Class B Common Stock shall automatically convert
into fully paid and non-assessable shares of Class A Common Stock of this
corporation at 12:01 a.m. New York time on the day immediately following the
expiration of the Purchase Option without exercise granted in Article FIFTH. The
Class B Common Stock shall convert into Class A Common Stock at the rate of one
share of Class A Common Stock for each share of Class B Common Stock.
FIFTH: PURCHASE OPTION.
(A) DEFINITIONS. For purposes of this Restated Certificate of Incorporation, the
following terms shall have the following definitions:
(1) Allergan means Allergan, Inc. and its successors or assigns of the
Purchase Option.
(2) Allergan Common Stock means the Common Stock of Allergan or, if such
Common Stock is converted into or exchanged for another class or series of stock
of Allergan or any other corporation, such other class or series of stock.
(3) Available Funds means, as of any date of determination, $200 million
plus any investment income earned thereon less (i) the aggregate amount of all
Research and Development Costs paid or incurred by this corporation as of such
date, (ii) this corporation's aggregate reasonable ongoing administrative
expenses paid or incurred as of such date and (iii) the aggregate amount of all
Technology Fee payments paid or incurred by this corporation as of such date.
(4) ASTI Product means any dosage form of a compound which is the
subject of research and development as a potential human pharmaceutical product
which has been recommended by Allergan and accepted by the Board of Directors of
this corporation for development as such under the Research and Development
Agreement. Such recommendations may be made on on a field of use basis as
provided in the Research and Development Agreement. The following compounds have
been selected as the initial ASTI Products as of the Filing Date: (i) Tazarotene
(oral), (ii) Memantine, (iii) AGN 4310 and (iv) a compound to be selected from
the RAR alpha-selective agonist class of retinoid compounds for the treatment of
various cancers.
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(5) Developed Technology means any technology generated or otherwise
obtained pursuant to the Research and Development Agreement.
(6) Developed Technology Product means any product other than an ASTI
Product (i) covered, at the time of sale in a country, by one or more unexpired
patents issued in such country that are included in Developed Technology and
(ii) with respect to which Allergan receives any consideration.
(7) Developed Technology Royalties means the payments made by Allergan
to this corporation with respect to net sales of Developed Technology Products.
(8) Fair Market Value means, with reference to Allergan Common Stock,
(a) if Allergan Common Stock is listed on the New York Stock Exchange or any
other securities exchange reporting closing sales prices (including without
limitation the Nasdaq National Market), the average of the closing sales price
of Allergan Common Stock on such exchange (which shall be the New York Stock
Exchange or, if Allergan Common Stock is not then traded on such exchange, on
the principal exchange on which Allergan Common Stock is then traded), for the
twenty trading days ending with the trading day that is two trading days prior
to the date of determination, (b) if Allergan Common Stock is not listed on any
securities exchange described in clause (a) but is quoted on Nasdaq or another
quotation system providing bid prices, the average (over the twenty day period
described in clause (a)) of the bid prices at the close of each day in such
period on Nasdaq (or, if Allergan Common Stock is not then quoted on Nasdaq, the
largest quotation system on which Allergan Common Stock is then quoted), and (c)
if Allergan Common Stock is not listed on any exchange or quoted on any
quotation system, the value thereof as determined in good faith by Allergan's
board of directors.
(9) Final Purchase Option Exercise Price means the Purchase Option
Exercise Price minus (a) the amount by which this corporation's Liabilities
existing at the Purchase Option Exercise Date (other than Liabilities under the
Research and Development Agreement, Services Agreement and Technology License
Agreement) exceed the aggregate of this corporation's then existing cash, cash
equivalents and short-term and long-term investments (but excluding from such
cash, cash equivalents and short-term and long-term investments the amount of
Available Funds determined as of the Purchase Option Exercise Date which had
not, as of such date, been paid by this corporation in accordance with the
Research and Development Agreement) and minus (b), if the Purchase Option
Exercise Price was determined based upon the provisions of clause (c) of Section
(A)(19) of this Article FIFTH, any additional amounts not already included in
the calculation set forth in Article FIFTH, Section (A)(19) that are paid by (or
due from) this corporation under the Research and Development Agreement from the
date of the last report of such expenditures provided by this corporation to
Allergan in a Status Statement
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through the Purchase Option Exercise Date pursuant to the Research and
Development Agreement.
(10) Liabilities means, with respect to this corporation, (a) all
liabilities required to be reflected or reserved against in this corporation's
financial statements under generally accepted accounting principles consistently
applied ("GAAP") and (b) any reimbursement or similar obligation with respect to
any letter of credit issued for the account of this corporation or as to which
this corporation is otherwise liable. Liabilities of the type described in (b)
shall be valued at the full amount of the potential liability of the corporation
thereon.
(11) License Agreement means any License Agreement between Allergan and
this corporation entered into upon the exercise by Allergan of the license
option granted to it pursuant to the License Option Agreement, as any such
agreement may be amended or modified from time to time by amendments approved by
Allergan and the Board of Directors of this corporation.
(12) License Option Agreement means the License Option Agreement between
Allergan and this corporation dated as of _________, 1998, as such agreement may
be amended or modified from time to time by amendments approved by Allergan and
the Board of Directors of this corporation.
(13) Licensed Product means an ASTI Product as to which the license
option under the License Option Agreement has been exercised by Allergan.
(14) Pre-Selection Work means research and pre-clinical development work
involving a product candidate owned or controlled by Allergan or a third party
funded by this corporation pursuant to the Research and Development Agreement
and undertaken in order to determine the suitability of such candidate for
research and development.
(15) Pre-Selection Product means a product, other than one which becomes
an ASTI Product, for which this corporation funds Pre-Selection Work.
(16) Pre-Selection Product Payments means the payments made by Allergan
to this corporation with respect to net sales of Pre-Selection Products.
(17) Product Payments means payments made by Allergan to this
corporation under a License Agreement with respect to Licensed Products.
(18) Purchase Option Exercise Date means the date upon which Allergan
notifies this corporation in writing of its exercise of the Purchase Option as
provided in Section (C) of this Article FIFTH.
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(19) Purchase Option Exercise Price means the greatest of the following:
(A) (i) 25 times the aggregate of (A) all worldwide payments made
by and all worldwide payments due to be made by Allergan to this corporation
with respect to all Licensed Products, Developed Technology Products and
Pre-Selection Products for the four calendar quarters immediately preceding the
quarter in which the Purchase Option is exercised (the "Base Period") and (B)
all payments that would have been made by Allergan to this corporation during
the Base Period if Allergan had not previously exercised its payment buy-out
option with respect to such Licensed Product, Developed Technology Product or
Pre-Selection Product; provided, however, that for purposes of the foregoing
calculation, for any Licensed Product, Developed Technology Product or
Pre-Selection Product which has not been commercially sold during each of the
four calendar quarters in the Base Period, Allergan will be deemed to have made
Product Payments, Developed Technology Royalties and Pre-Selection Product
Payments to this corporation for each such quarter equal to the average of the
Product Payments, Developed Technology Royalties and Pre-Selection Product
Payments made by or due from Allergan to this corporation for each of such
calendar quarters during which such product was commercially sold, less (ii) any
amounts previously paid to exercise any payment buy-out option for any Licensed
Product, Developed Technology Product or Pre-Selection Product pursuant to a
License Agreement or the Research and Development Agreement.
(B) the Fair Market Value of five hundred thousand (500,000) shares
of Allergan Common Stock (which number of shares shall be proportionately
adjusted for any stock dividend, split-up, combination or reclassification of
the Allergan Common Stock) determined as of the Purchase Option Exercise Date;
(C) $250 million less the aggregate amount of all Technology Fee
payments and Research and Development Costs paid or incurred by this corporation
as of the Purchase Option Exercise Date; and
(D) $60 million.
(20) Purchase Option Expiration Time means 11:59 p.m. New York time on
December 31, 2002; provided that such date will be extended for successive six
month periods if, as of any June 30 or December 31 beginning with June 30, 2001,
this corporation has not paid (or accrued expenses for) at least 95% of all
Available Funds pursuant to the Research and Development Agreement.
Notwithstanding the foregoing sentence, the Purchase Option Expiration Time will
in no event occur later than 11:59 p.m. New York time on the 90th day after this
corporation provides Allergan with a statement that, as of the end of any
calendar month, there are less than $15 million of Available Funds remaining.
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(21) Research and Development Agreement means the Research and
Development Agreement between Allergan and this corporation, dated as of
_________, 1998, as such agreement may be amended or modified from time to time
by amendments approved by Allergan and the Board of Directors of this
corporation.
(22) Research and Development Costs means payments paid by or due from
this corporation under the Research and Development Agreement as last reported
by this corporation to Allergan in a Status Statement through the Purchase
Option Exercise Date.
(23) Services Agreement means the Services Agreement between Allergan
and this corporation, dated as of _________, 1998, as such agreement may be
amended or modified from time by amendments approved by Allergan and the Board
of Directors of this corporation.
(24) Status Statement means, as of any date, a balance sheet prepared by
the Company and delivered to Allergan dated as of such date, together with (a) a
statement and brief description of all other liabilities of this corporation
constituting Total Liabilities as of such date not reflected on such balance
sheet, (b) a statement of the amount of Available Funds remaining as of such
date, and (c) a statement of the total amounts paid by and due from this
corporation pursuant to the Research and Development Agreement through such
date.
(25) Technology Fee means the payments to be made over a maximum period
of four (4) years by this corporation to Allergan pursuant to the Technology
License Agreement.
(26) Technology License Agreement means the Technology License Agreement
between Allergan and this corporation , dated as of _________, 1998, as such
agreement may be amended or modified from time to time by amendments approved by
Allergan and the Board of Directors of this corporation.
(27) Total Liabilities means (a) all Liabilities, plus (b) any other
debts, liabilities or obligations, absolute or contingent, matured or unmatured,
liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever
arising, including all costs and expenses relating thereto, and including those
debts, liabilities and obligations arising under any law, rule or regulation, or
under any pending or threatened action, suit or proceeding, or any order or
consent decree of any governmental entity or any award of any arbitrator of any
kind, and those arising under any contract, commitment or undertaking.
(B) GRANT OF OPTION. Allergan is hereby granted an exclusive irrevocable
purchase option to purchase all issued and outstanding shares of Class A Common
Stock of this corporation for the Final Purchase Option Exercise Price (the
"Purchase Option"). The
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Purchase Option, if exercised, must be exercised as to all, but not less than
all, issued and outstanding shares of Class A Common Stock and may be exercised
at any time at or prior to the Purchase Option Expiration Time. Allergan shall
pay the Final Purchase Option Exercise Price in cash. The Purchase Option,
together with the other rights of Allergan under this Article FIFTH and Article
SIXTH, may, at Allergan's option, be assigned or otherwise transferred to any
person or entity, including this corporation.
(C) MANNER OF EXERCISE. The Purchase Option shall be exercised, if at all, at or
before the Purchase Option Expiration Time by written notice (the "Exercise
Notice") from Allergan to this corporation stating that the Purchase Option is
being exercised and setting forth (1) the Purchase Option Exercise Price; and
(2) a closing date (the "Closing Date") on which all of the issued and
outstanding shares of Class A Common Stock will be purchased. The Purchase
Option shall be deemed to be exercised as of the date of mailing by first class
mail of the Exercise Notice to this corporation at its principal offices.
(D) CLOSING.
(1) CLOSING DATE; COOPERATION. Except as set forth below, the Closing
Date shall be the date specified as such in the Exercise Notice, which date
specified shall be no later than sixty (60) days after the Purchase Option
Exercise Date. The Closing Date may be extended by Allergan if, in the judgment
of Allergan, an extension of the Closing Date is necessary to obtain any
governmental or third party consent to the purchase of the Class A Common Stock
or to permit the expiration prior to the Closing Date of any statutory or
regulatory waiting period. Allergan may extend the Closing Date for the reasons
set forth in the preceding sentence by delivering written notice of such
extension to this corporation on or prior to the previously specified Closing
Date. This corporation shall cooperate with Allergan to effect the closing of
the Purchase Option, including without limitation seeking any required
third-party or governmental consents, and filing any applications,
notifications, registration statements or the like which may be necessary to
effect the closing.
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(2) CERTAIN RESTRICTIONS FOLLOWING PURCHASE OPTION EXERCISE DATE. From
the Purchase Option Exercise Date until the Closing Date, this corporation will
not take any of the following actions (or permit any such actions to be taken on
its behalf) except with the prior written consent of Allergan:
(A) borrow money, or mortgage, remortgage, pledge, hypothecate or
otherwise encumber any of its assets;
(B) sell, lease, lend, exchange or otherwise dispose of any of its
assets, other than sales of inventory in the ordinary course of business;
(C) pay or declare any dividends or make any distributions on or in
respect of any shares of its capital stock;
(D) default in its obligations under any material contract,
agreement, commitment or undertaking of any kind or enter into any material
contract, agreement, purchase order or other commitment; or
(E) enter into any other transaction or agreement or arrangement, or
incur any liabilities, not in the ordinary course of this corporation's
business.
(3) DETERMINATION OF FINAL PURCHASE OPTION EXERCISE PRICE. Not later
than twenty (20) business days following the Purchase Option Exercise Date, this
corporation shall deliver a final Status Statement to Allergan prepared as of
the Purchase Option Exercise Date. Following receipt of such Status Statement
and completion of any other investigation as Allergan shall deem necessary or
appropriate, and prior to the Closing Date, Allergan shall determine the Final
Purchase Option Exercise Price by making the adjustments to the Purchase Option
Exercise Price contemplated by Section (A)(9) of this Article FIFTH and shall
notify this corporation of such determination.
(4) PAYMENT OF FINAL PURCHASE OPTION EXERCISE PRICE. On or before the
Closing Date, Allergan shall deposit the full amount of the Final Purchase
Option Exercise Price with a bank or banks or similar entities designated by
Allergan to pay, on Allergan's behalf, the Final Purchase Option Exercise Price
(the "Payment Agent"). Funds deposited with the Payment Agent shall be delivered
in trust for the benefit of the holders of Class A Common Stock, and Allergan
shall provide the Payment Agent with irrevocable instructions to pay, on or
after the Closing Date, the Final Purchase Option Exercise Price for the shares
of Class A Common Stock to the holders of record thereof determined as of the
Closing Date. Payment for shares of Class A Common Stock shall be mailed to each
holder at the address set forth in this corporation's records or at the address
provided by each holder or, if no address is set forth in this corporation's
records for a holder or
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provided by such holder, to such holder at the address of this corporation. As
soon as practicable upon Allergan's request, this corporation shall provide, or
shall cause its transfer agent to provide, to Allergan or to the Payment Agent,
free of charge, a complete list of the record holders of shares of Class A
Common Stock, as of a specified date, including the number of shares of Class A
Common Stock held of record and the address of each record holder as set forth
in the records of this corporation's transfer agent.
(E) TRANSFER OF TITLE. Transfer of title to all of the issued and outstanding
shares of Class A Common Stock shall be deemed to occur automatically on the
Closing Date and thereafter this corporation shall be entitled to treat Allergan
as the sole holder of all of the issued and outstanding shares of its Class A
Common Stock, notwithstanding the failure of any holder of Class A Common Stock
to tender the certificates representing such shares to the Payment Agent,
whether or not such tender is required or requested by the Payment Agent. This
corporation shall instruct its transfer agent not to accept any shares of Class
A Common Stock for transfer on and after the Closing Date. This corporation
shall take all actions reasonably requested by Allergan to assist in
effectuating the transfer of shares of Class A Common Stock in accordance with
this Article FIFTH.
(F) REDEMPTION OF CLASS A COMMON STOCK. At Allergan's election (which election
may be made at any time, provided it is made, by delivery of written notice
thereof to this corporation, not less than five days prior to the Closing Date),
this corporation shall, subject to applicable restrictions in the Delaware
General Corporation Law, redeem on the Closing Date all issued and outstanding
shares of Class A Common Stock for an aggregate redemption price equal to the
Final Purchase Option Exercise Price. Such redemption shall be in lieu of
Allergan paying the Final Purchase Option Exercise Price directly to the
stockholders of this corporation, and shall be subject to Allergan providing the
Final Purchase Option Exercise Price to this corporation to allow this
corporation to pay the redemption price.
SIXTH: PROTECTIVE PROVISIONS.
(A) LEGEND. Certificates evidencing shares of Class A Common Stock issued by or
on behalf of this corporation shall bear a legend in substantially the following
form: "The shares of Allergan Specialty Therapeutics, Inc. evidenced hereby are
subject to an option in favor of Allergan, Inc., its successors and assigns, as
described in the Restated Certificate of Incorporation of Allergan Specialty
Therapeutics, Inc. to purchase such shares at a purchase price determined in
accordance with Article FIFTH thereof exercisable by notice delivered to this
corporation at or prior to the Purchase Option Expiration Time (as defined in
the Restated Certificate of Incorporation of Allergan Specialty Therapeutics,
Inc.). Copies of the Restated Certificate of Incorporation of Allergan Specialty
Therapeutics, Inc. are available at the principal place of business of
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Allergan Specialty Therapeutics, Inc. at 2525 Dupont Drive, Irvine, California
92612 and will be furnished to any stockholder on request and without cost."
(B) NO CONFLICTING ACTION. This corporation shall not take, nor permit any other
person or entity within its control to take, any action inconsistent with
Allergan's rights under Article FIFTH. This corporation shall not enter into any
arrangement, agreement or understanding, whether oral or in writing, that is
inconsistent with or limits or impairs the rights of Allergan and the
obligations of this corporation hereunder, including without limitation any
arrangement, agreement or understanding which imposes any obligation upon this
corporation, or deprives this corporation of any material rights, as a
consequence of the exercise of the Purchase Option or the acquisition of the
outstanding Class A Common Stock pursuant thereto.
(C) INSPECTION AND VISITATION RIGHTS; STATUS STATEMENTS. Allergan shall have the
right to inspect and copy, on reasonable notice and during regular business
hours, the books and records of this corporation. Allergan shall also have the
right to request from time to time (but not more frequently than monthly) a
Status Statement as of such fiscal month end as Allergan may request. Each
Status Statement shall be sent within twenty (20) business days of request by
Allergan. Allergan shall also have the right to send a non-voting representative
to attend all meetings of this corporation's Board of Directors and any
committees thereof. Any representative, if designated in writing by Allergan as
such, shall receive notice of all meetings of this corporation's Board of
Directors and each committee thereof, as well as copies of all documents and
other materials provided to any directors of this corporation in connection with
any such meeting not later than the time such materials are provided to other
directors. Such representative shall also be provided with copies of all
resolutions adopted or proposed to be adopted by unanimous written consent not
later than the time such resolutions are provided to other directors.
SEVENTH: BOARD OF DIRECTORS.
(A) The number of directors which shall constitute the whole Board of Directors
of this corporation shall initially be five.
(B) Subject to the provisions of this Article SEVENTH, nomination of candidates
for election to the Board of Directors shall be made as provided in the bylaws
of this corporation. Election of directors need not be by written ballot.
(C) Subject to Article FOURTH, Section (B)(4), the holders of the Class B Common
Stock, voting together as a separate class, shall be entitled to elect one (1)
director of the corporation, and the holders of the Class A Common Stock shall
be entitled to elect up to four (4) directors of the corporation. Subject to the
provisions of this Article SEVENTH, each director shall serve until the next
annual meeting of stockholders of this corporation
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following such director's election as a member of the Board of Directors or
until his or her successor is duly elected and qualified or until his or her
death, resignation, disqualification or removal.
(D) Except as otherwise provided in Article FOURTH, Section (B)(4), or as
required by law, a vacancy in any directorship elected by the holders of the
Class B Common Stock shall be filled only by vote or written consent of the
holders of the Class B Common Stock, and a vacancy in any directorship elected
by the holders of the Class A Common Stock shall be filled only by vote or
written consent of the holders of the Class A Common Stock. 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 the vacancy occurred and until such director's successor shall have
been elected and qualified. Except as otherwise provided in Article FOURTH,
Section (B)(4), or as required by law, a director elected by the holders of the
Class B Common Stock may be removed without cause only by vote of holders of a
majority of the outstanding shares of Class B Common Stock, and a director
elected by the holders of the Class A Common Stock may be removed without cause
only by vote of holders of a majority of the outstanding shares of Class A
Common Stock.
(E) The name and mailing address of each person who is to serve as a director
until the first annual meeting of the stockholders after the Filing Date or
until a successor is elected or appointed and qualified are as follows:
NAME MAILING ADDRESS
Lester J. Kaplan, Ph.D. 2525 Dupont Drive
Irvine, CA 92612
William C. Shepherd 2525 Dupont Drive
Irvine, CA 92612
Gary L. Neil, Ph.D. 2525 Dupont Drive
Irvine, CA 92612
Marvin E. Rosenthale, Ph.D. 2525 Dupont Drive
Irvine, CA 92612
[To come]
EIGHTH:BYLAWS. In furtherance and not in limitation of the powers
conferred by statute, and subject to the next sentence, the Board of Directors
and the stockholders of this corporation are each expressly authorized to adopt,
amend or repeal the bylaws of this corporation subject to any particular
provisions concerning amendments set forth in this Restated Certificate of
Incorporation or the bylaws of this corporation. Any amendment of the bylaws
shall be subject to the provisions of this Restated Certificate of Incorporation
and no amendment to the bylaws may be adopted by the stockholders without the
approval of holders of a majority of the Class B Common Stock voting separately
as a class if such amendment would regulate the conduct of the Board's affairs
or the manner in which it may act.
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NINTH: STOCKHOLDER MEETINGS.
(A) SPECIAL MEETINGS. Special meetings of the stockholders for any purpose or
purposes whatsoever may be called at any time only by the Board of Directors,
the Chairman of the Board or the President of this corporation.
(B) NO ACTION WITHOUT MEETING. At any time when this corporation has more than
one stockholder of any class of capital stock, no action required to be taken or
which may 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.
Notwithstanding the foregoing, the holder or holders of the Class B Common Stock
may take any action permitted to be taken by such holders as a class by written
consent without a meeting.
TENTH: LIMITATION OF LIABILITY AND INDEMNIFICATION OF DIRECTORS.
(A) ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS. No director of this
corporation shall be personally liable to this corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director except, to the
extent provided by applicable law, for liability (i) for any breach of the
director's duty of loyalty to this corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Article TENTH shall
apply to or have any effect on the liability or alleged liability of any
director of this corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment.
(B) INDEMNIFICATION AND INSURANCE.
(1) RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding"), because he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of this corporation or is or was
serving at the request of this 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 the 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
this 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
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this corporation to provide broader indemnification rights than that law
permitted this corporation to provide before such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, penalties,
fines, Employee Retirement Income Security Act of 1974 excise taxes or
penalties, and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith; provided, however, that this
corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
the proceeding (or part thereof) was authorized by the Board of Directors of
this corporation. Such indemnification shall continue as to a person who has
ceased to be a director or officer of this corporation and shall inure to the
benefit of his or her heirs, executors and administrators. The right to
indemnification conferred by this Section shall be a contract right which may
not be retroactively amended and shall include the right to be paid by this
corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that 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
with respect to an employee benefit plan) in advance of the final disposition of
the proceeding shall be made only upon delivery to this corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if ultimately it shall be determined that such director or officer
is not entitled to be indemnified under this Section or otherwise. This
corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of this corporation with the same scope and effect as the
indemnification of directors and officers.
(2) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Paragraph 1 of
this Section is not paid in full by this corporation within ninety (90) days
after a written claim has been received by this corporation, the claimant may at
any time thereafter bring suit against this 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, has been tendered to this
corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for this corporation
to indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on this corporation. Neither the failure of this corporation
(including its Board of
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Directors, independent legal counsel, or its 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 this corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant has not met the applicable standard of
conduct.
(3) NONEXCLUSIVITY OF RIGHTS. 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 Restated Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise.
(4) INSURANCE. This corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of this
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not this
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
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IN WITNESS WHEREOF, the undersigned officer has executed this Restated
Certificate of Incorporation on _________, 1998 and does hereby certify that
this Restated Certificate of Incorporation, which restates and integrates, and
also further amends, the provisions of this corporation's Certificate of
Incorporation, was duly adopted by the stockholders of this corporation in
accordance with Sections 242 and 245 of the Delaware General Corporation Law.
ALLERGAN SPECIALTY THERAPEUTICS, INC.
By: _____________________________________
Lester J. Kaplan, Ph.D.
President and Chief Executive Officer