1
EXHIBIT 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
LA JOLLA PHARMACEUTICAL COMPANY
1. The undersigned, Steven B. Engle, certifies that he is the Chief
Executive Officer of LA JOLLA PHARMACEUTICAL COMPANY, a Delaware corporation
(the "CORPORATION"), and does further certify that:
2. The name of the Corporation is La Jolla Pharmaceutical Company, the
name under which it was originally incorporated.
3. The original Certificate of Incorporation of the Corporation was filed
in the Office of the Secretary of State of Delaware on May 2, 1989.
4. This Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with Sections 242 and 245 of the General Corporation Law
of the State of Delaware.
5. The text of the Restated Certificate of Incorporation of the
Corporation is hereby amended and restated in its entirety as follows:
ARTICLE I
NAME OF CORPORATION
The name of the Corporation is La Jolla Pharmaceutical Company.
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is 1013 Centre Road, in the City of Wilmington 19805, County of New
Castle. The name of the registered agent of the Corporation at such address is
United States Corporation Company.
ARTICLE III
PURPOSE
The purpose of this Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
Delaware other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the Delaware
Corporations Code.
2
ARTICLE IV
AUTHORIZED CAPITAL STOCK
The Corporation is authorized to issue two classes of stock designated
"Common Stock" and "Preferred Stock." The number of shares of Common Stock that
the Corporation is authorized to issue is 100,000,000; the number of shares of
Preferred Stock that the Corporation is authorized to issue is 8,000,000. The
Board is hereby authorized to issue the shares of Preferred Stock in one or more
series, to fix the number of shares of any such series of Preferred Stock, to
determine the designation of any such series, and to fix the rights,
preferences, and privileges and the qualifications, limitations or restrictions
of the series of Preferred Stock to the full extent permitted under the Delaware
General Corporation Law. The authority of the Board with respect to any series
of Preferred Stock shall include, without limitation, the power to fix or alter
the dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions, if any), the redemption
price or prices, and the liquidation preferences and the number of shares
constituting any such additional series and the designation thereof, or any of
them; and to increase or decrease the number of authorized shares of any series
subsequent to the issue of that series, but not below the number of shares of
such series then outstanding. In case the authorized number of shares of any
series shall be so decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of the resolution originally
fixing the number of shares of such series. All shares of the Common Stock and
the Preferred Stock shall have a par value of $.01 per share.
ARTICLE V
LIMITATION OF DIRECTOR LIABILITY
To the fullest extent permitted by the Delaware General Corporation Law, a
director of this corporation shall not be liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
ARTICLE VI
BOARD POWER REGARDING BYLAWS
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, repeal, alter, amend and
rescind the Bylaws of this corporation; provided, however, that after the
initial adoption of the Bylaws, the Board of Directors may not repeal, alter,
amend, or rescind Section 3.01 thereof which shall establish the manner in which
the number of directors is set.
2
3
ARTICLE VII
ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless the Bylaws of
the Corporation shall so provide.
ARTICLE VIII
NUMBER OF DIRECTORS AND TERM OF OFFICE
The total number of directors of the Corporation shall be not less than
five (5) nor more than nine (9), with the actual total number of directors set
from time to time exclusively by resolution of the Board of Directors. The Board
of Directors shall initially consist of six members until changed by such a
resolution. There shall be three classes of directors (each, a "Class"), known
as Class 1, Class 2 and Class 3. The initial Class 1, Class 2 and Class 3
directors shall serve in office as follows: Class 1 shall retire at the first
annual meeting of stockholders following the filing of the Corporation's Amended
and Restated Certificate of Incorporation (the "Effective Date"), Class 2 shall
retire at the second annual meeting of stockholders following the Effective
Date, and Class 3 shall retire at the third annual meeting of stockholders
following the Effective Date. This annual sequence shall be repeated thereafter.
Each director in a Class shall be eligible for re-election if nominated, and
such director's seat shall be open for election of a director, at the annual
meeting of stockholders of the Corporation at which such Class shall retire, to
hold office for three years or until his successor is elected or appointed.
Any additional directors elected or appointed shall be elected or
appointed to such Class as will ensure that the number of directors in each
Class remains as nearly equal as possible, and if all Classes have an equal
number of directors or if one Class has one director more than the other two
Classes, then any additional directors elected or appointed shall be elected or
appointed to the Class that does not have more directors than any other Class
and is subject to election at an ensuing annual meeting before any other such
Class.
Vacancies due to resignation, death, increases in the number of directors,
or any other cause shall be filled only by the Board of Directors (unless there
are no directors, in which case vacancies will be filled by the stockholders) in
accordance with the rule that each Class of directors shall be as nearly equal
in number of directors as possible. Notwithstanding such rule, in the event of
any change in the authorized number of directors each director then continuing
to serve as such will nevertheless continue as a director of the Class of which
he or she is a member, until the expiration of his or her current term or his
earlier death, resignation or removal. If any newly created directorship or
vacancy on the Board of Directors, consistent with the rule that the three
Classes shall be as nearly equal in number of directors as possible, may be
allocated to one or two or more Classes, then the Board of Directors shall
allocate it to that of the available Classes whose term of office is due to
expire at the earliest date following such allocation. When the Board of
Directors fills a vacancy, the director chosen to fill that vacancy shall be of
the same Class as the director he or she succeeds and shall hold office until
such
3
4
director's successor shall have been elected and qualified or until such
director shall resign or shall have been removed. No reduction of the authorized
number of directors shall have the effect of removing any director prior to the
expiration of such director's term of office.
ARTICLE IX
STOCKHOLDER ACTION BY WRITTEN CONSENT
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by a consent in writing by any such holders.
ARTICLE X
CORPORATE POWER
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
on stockholders herein are granted subject to this reservation; provided,
however, that any amendment of Article VIII or of this Article X will require an
affirmative vote of the holders of seventy-five percent (75%) or more of the
total voting power of all outstanding shares of voting stock of the Corporation.
IN WITNESS WHEREOF, the undersigned Corporation has executed this Amended
and Restated Certificate of Incorporation as of May 21, 1999.
LA JOLLA PHARMACEUTICAL COMPANY
By: /s/ Steven B. Engle
--------------------------------------
Steven B. Engle,
Chief Executive Officer
4