EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
ENDEAVOR PHARMACEUTICALS, INC.
Endeavor Pharmaceuticals, Inc. (the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, does hereby certify as follows:
FIRST:
(a) The name of the Corporation is Endeavor
Pharmaceuticals, Inc. The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
April 6, 1994 under the name GenerEst, Inc.
(b) This Restated Certificate of Incorporation (this
"Restated Certificate of Incorporation"), which further amends and restates the
certificate of incorporation of the Corporation as heretofore amended and
restated, was duly adopted by the Board of Directors of the Corporation (the
"Board of Directors") and by written consent of the stockholders of the
Corporation in accordance with Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware.
(c) This Restated Certificate of Incorporation shall
become effective as of the ______ day of __________, 2002.
(d) The Certificate of Incorporation of the Corporation,
as heretofore amended and restated, is hereby amended and restated so as to read
in its entirety as follows:
SECOND:
(a) The name of the Corporation is Endeavor
Pharmaceuticals, Inc. (hereinafter, the "Corporation").
(b) The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, Wilmington, New
Castle County, Delaware 19801. The name of its registered agent at that address
is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware as set forth in Title 8 of the
General Corporation Law of the State of Delaware (the "GCL").
FOURTH: (a) Authorized Capital Stock. The total number of
shares of stock which the Corporation shall have authority to issue is
180,000,000 shares of common stock, each
having a par value of $0.01, and 20,000,000 shares of preferred stock, each
having a par value of $0.01.
(b) Common Stock. The powers, preferences and rights, and
the qualifications, limitations and restrictions thereof, of the common stock
are as follows:
(1) Dividends. Subject to the terms of any
outstanding series of preferred stock and any other provisions of this Restated
Certificate of Incorporation, as it may be amended from time to time, holders of
shares of common stock shall be entitled to receive such dividends and other
distributions in cash, stock or property of the Corporation when, as and if
declared thereon by the Board of Directors from time to time out of assets or
funds of the Corporation legally available therefor.
(2) Liquidation, Dissolution, etc. In the event
of any liquidation, dissolution or winding up (either voluntary or involuntary)
of the Corporation, the holders of shares of common stock shall be entitled to
receive the assets and funds of the Corporation available for distribution to
stockholders after payments to creditors and to the holders of any preferred
stock of the Corporation that may at the time be outstanding, in proportion to
the number of shares held by them, respectively.
(3) Voting. Except as otherwise required by law
and subject to the terms of any outstanding series of preferred stock, each
outstanding share of common stock shall be entitled to one vote per share on all
matters presented to stockholders for a vote.
(c) Preferred Stock. The Board of Directors is expressly
authorized to provide for the issuance of all or any shares of the preferred
stock in one or more series, and to fix for each such series the number of
shares comprising such series, the designation thereof and such voting powers,
full or limited, or no voting powers, preferences and relative, participating,
optional or other special rights and such qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions adopted by the Board of Directors providing for the issuance of such
series and as may be permitted by the GCL, including, without limitation, the
authority to provide that any such series may be (i) subject to redemption at
such time or times and at such price or prices; (ii) entitled to receive
dividends (which may be cumulative or non-cumulative) in such amounts, on such
conditions, and at such times, and payable in preference to, or in such relation
to, the dividends payable on any other class or classes or any other series;
(iii) entitled to such rights upon the dissolution of, or upon any distribution
of the assets of, the Corporation; or (iv) convertible into, or exchangeable
for, shares of any other class or classes of stock, or of any other series of
the same or any other class or classes of stock, of the Corporation at such
price or prices or at such rates of exchange and with such adjustments; all as
may be stated in such resolution or resolutions.
(d) The authorized number of shares of the common stock
or preferred stock may be increased or decreased by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to vote thereon
irrespective of the provisions of Section 242(b)(2) of the GCL (or any successor
provision thereto).
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FIFTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the Corporation,
and for further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(a) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
(b) The authorized number of directors comprising the
entire Board of Directors shall be as determined by resolution of the Board of
Directors from time to time. Election of directors need not be by written ballot
unless the Bylaws so provide.
(c) The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as may be possible, of one-third of the total number of directors constituting
the entire Board of Directors. The term of the initial Class I directors shall
expire at the first annual meeting of stockholders held following the date this
Restated Certificate of Incorporation becomes effective; the term of the initial
Class II directors shall expire at the second annual meeting of stockholders
held following the date this Restated Certificate of Incorporation becomes
effective; and the term of the initial Class III directors shall expire at the
third annual meeting of stockholders held following the date this Restated
Certificate of Incorporation becomes effective. At each annual meeting of
stockholders beginning with the first annual meeting of stockholders held after
the date this Restated Certificate of Incorporation becomes effective,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a term expiring at the third succeeding annual meeting of
stockholders. In all events, however, a director shall hold office until the
annual meeting at which his or her term expires and until his or her successor
shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. If the number
of directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible, and any additional director of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class, but in no case will a decrease
in the number of directors shorten the term of any incumbent director.
(d) Subject to the terms of any one or more series of
preferred stock, any newly created directorship on the Board of Directors that
results from an increase in the number of directors and any vacancy occurring on
the Board of Directors may be filled only by a majority of the Board of
Directors then in office, even if less than a quorum, or by a sole remaining
director. Any director of any class elected to fill a newly created directorship
resulting from an increase in the number of directors of such class shall hold
office for a term that shall coincide with the remaining term of that class. Any
director elected to fill a vacancy shall have the same remaining term as that of
his predecessor. Subject to the rights, if any, of the holders of shares of
preferred stock then outstanding, any or all of the directors of the Corporation
may be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of at least eighty percent (80%) of the voting
power of the Corporation's then outstanding capital stock entitled to vote
generally in the election of directors.
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Notwithstanding the foregoing, whenever the holders of any one
or more series of preferred stock issued by the Corporation shall have the
right, voting separately as a series or together as a class with one or more
other series, to elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies and other
features of such directorships shall be governed by the terms of this Restated
Certificate of Incorporation applicable thereto, and such directors so elected
shall not be divided into classes pursuant to this Article FIFTH unless
expressly provided by such terms.
(e) No director shall be personally liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent that such elimination or
limitation of liability is not permitted under the GCL. Any repeal or
modification of this Article FIFTH, Section (e) by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification with respect
to acts or omissions occurring prior to such repeal or modification.
SIXTH: The Corporation shall indemnify and advance expenses to
its directors and officers to the fullest extent authorized or permitted by law,
as now or hereafter in effect, and such rights to indemnification and
advancement of expenses shall continue as to a person who has ceased to be a
director or officer of the Corporation and shall inure to the benefit of his or
her heirs, executors and personal and legal representatives; PROVIDED, HOWEVER,
that, except for proceedings to enforce rights to indemnification and
advancement of expenses, the Corporation shall not be obligated to indemnify or
advance expenses to any director or officer (or his or her heirs, executors or
personal or legal representatives) in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees (including, without limitation, officers)
and agents of the Corporation similar to those conferred in this Article SIXTH
to directors and officers of the Corporation.
The rights to indemnification and to the advancement of
expenses conferred in this Article SIXTH shall not be exclusive of any other
right which any person may have or hereafter acquire under this Restated
Certificate of Incorporation, the Bylaws of the Corporation, any statute,
agreement, vote of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article SIXTH by the
stockholders of the Corporation shall not adversely affect any rights to
indemnification and to the advancement of expenses of a director or officer of
the Corporation existing at the time of such repeal or modification with respect
to any acts or omissions occurring prior to such repeal or modification.
SEVENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the Bylaws may provide. The books of the
Corporation may be kept (subject to any provision contained in the GCL) outside
the State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the Bylaws of the Corporation.
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EIGHTH: In furtherance and not in limitation of the powers
conferred upon it by the laws of the State of Delaware, the Board of Directors
shall have the power to make, alter, amend, change, add to or repeal the
Corporation's Bylaws. The affirmative vote of at least a majority of the entire
Board of Directors shall be required to adopt, amend, alter or repeal the
Corporation's Bylaws. The Corporation's Bylaws also may be altered, amended,
changed, added to or repealed by the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of the shares entitled to vote at an
election of directors.
NINTH: 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 stockholders of the Corporation, and the ability of the
stockholders to consent in writing to the taking of any action is hereby
specifically denied.
TENTH: Unless otherwise required by law, special meetings of
stockholders, for any purpose or purposes, may be called by either (i) the
Chairman, if there be one, (ii) the Board of Directors or (iii) a committee of
the Board of Directors that has been duly designated by the Board of Directors
and whose powers and authority include the power to call such meetings. The
ability of the stockholders to call a special meeting of stockholders is hereby
specifically denied.
ELEVENTH: There shall be no limitation on the qualification of
any person to be or be elected as a director or on the ability of any director
to vote on any matter brought before the Board of Directors or any committee of
the Board of Directors, except (i) as required by applicable law, (ii) as set
forth in this Restated Certificate of Incorporation or (iii) as set forth in any
Bylaw adopted by the Board of Directors with respect to the eligibility for
election as a director upon reaching a specified age or, in the case of employee
directors, with respect to the qualification for continuing service of directors
upon ceasing employment from the Corporation.
TWELFTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
Upon this Restated Certificate of Incorporation becoming
effective, each share of common stock of the Corporation which immediately prior
thereto was outstanding or held in treasury shall be reclassified as and become
[ ] shares of common stock, $0.01 par value, of the Corporation. Each
certificate which theretofore represented outstanding shares of common stock
shall thereafter be deemed to represent the number of shares of common stock
adjusted to reflect said reclassification, except that no such certificate shall
represent fractional shares. With respect to any fraction of a share that would
otherwise have been issuable in such reclassification, the Corporation shall pay
to the holder an amount in cash equal to such fraction multiplied by the per
share price at which shares are initially sold in the Corporation's initial
public offering of common stock pursuant to a registration statement under the
Securities Act of 1933, as amended. Subject to the foregoing, upon any surrender
for transfer or exchange of any certificate or certificates representing shares
of outstanding common stock, the Corporation will issue and deliver a
certificate or certificates for a number of shares of common stock which gives
effect to the reclassification.
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IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be executed on its behalf this _____ day of
______________, 2002.
ENDEAVOR PHARMACEUTICALS, INC.
By:
----------------------------------------------
Name: R. Forrest Waldon
Title: Chairman and Chief Executive Officer
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