Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BARR PHARMACEUTICALS, INC.
ARTICLE ONE
The name of the Corporation is Barr Pharmaceuticals, Inc.
ARTICLE TWO
The address of the Corporation's registered office in the State of
Delaware is 2711 Centerville Road, Suite 400, Wilmington, DE 19808. The name of
its registered agent at such address is Corporation Services Company.
ARTICLE THREE
The nature of the business or purposes to be conducted or promoted 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.
ARTICLE FOUR
Section 1. Authorized Shares. The total number of shares of capital stock
which the Corporation has authority to issue is 202,000,000 shares, consisting
of:
(a) 2,000,000 shares of Preferred Stock, par value $1.00 per share
("Preferred Stock"); and
(b) 200,000,000 shares of Common Stock, par value $.01 per share
("Common Stock").
The Preferred Stock and the Common Stock shall have the rights, preferences and
limitations set forth below.
Section 2. Preferred Stock. The Preferred Stock may be issued from time to
time and in one or more series. The Board of Directors of the Corporation is
authorized to determine or alter the powers, preferences and rights, and the
qualifications, limitations and restrictions granted to or imposed upon any
wholly unissued series of Preferred Stock, and within the limitations or
restrictions stated in any resolution or resolutions of the Board of Directors
originally fixing the number of shares constituting any series of Preferred
Stock, to increase or decrease (but not
below the number of shares of any such series of Preferred Stock then
outstanding) the number of shares of any such series of Preferred Stock, and to
fix the number of shares of any series of Preferred Stock. In the event that the
number of shares of any series of Preferred Stock shall be so decreased, the
shares constituting such decrease shall resume the status which such shares had
prior to the adoption of the resolution originally fixing the number of shares
of such series of Preferred Stock subject to the requirements of applicable law.
The powers, preferences and relative, participating, optional and other special
rights of each series of Preferred Stock, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other series
at any time outstanding. Any of the powers, preferences and rights, and the
qualifications, limitations and restrictions granted to or imposed upon any such
series of Preferred Stock may be made dependent upon facts ascertainable outside
the resolutions or resolutions providing for the issue of such Preferred Stock
adopted by the Board of Directors, provided that the manner in which such facts
shall operate upon the powers, preferences and rights, and the qualifications,
limitations and restrictions of such series of Preferred Stock is clearly and
expressly set forth in the resolution or resolutions providing for the issue of
such series of Preferred Stock adopted by the Board of Directors.
Section 3. Common Stock.
(c) Dividends. Except as otherwise provided by the Delaware General
Corporation Law or this Certificate of Incorporation (the "Certificate"), the
holders of Common Stock, subject to the rights of holders of any series of
Preferred Stock, shall share ratably in all dividends as may from time to time
be declared by the Board of Directors of the Corporation in respect of the
Common Stock out of funds legally available for the payment thereof and payable
in cash, stock or otherwise and in all other distributions, whether in respect
of liquidation or dissolution (voluntary or involuntary) or otherwise after
payment of liabilities and liquidation preference on any outstanding Preferred
Stock.
(d) Conversion Rights. The Common Stock shall not be convertible
into, or exchangeable for, shares of any other class or classes or of any other
series of the same class of the Corporation's capital stock.
(e) Preemptive Rights. No holder of Common Stock shall have any
preemptive rights with respect to the Common Stock or any other securities of
the Corporation, or to any obligations convertible (directly or indirectly) into
securities of the Corporation whether now or hereafter authorized.
(f) Voting Rights. Except as otherwise provided by the Delaware
General Corporation Law or the Certificate and subject to the rights of holders
of any series of Preferred Stock, all of the voting power of the stockholders of
the Corporation shall be vested in the holders of the Common Stock, and each
holder of Common Stock shall have one vote for each share held by such holder on
all matters voted upon by the stockholders of the Corporation.
ARTICLE FIVE
The Corporation is to have perpetual existence.
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ARTICLE SIX
Except as otherwise provided in this Certificate (including any duly
authorized certificate of designation of any series of Preferred Stock),
Directors shall be elected by a plurality of the votes of the shares entitled to
vote in the election of Directors present in person or represented by proxy at
the meeting of the stockholders in which Directors are elected. Elections of
directors need not be by written ballot unless the By-laws of the Corporation
shall so provide.
ARTICLE SEVEN
The number of directors which constitute the entire Board of Directors of
the Corporation shall be designated in the By-laws of the Corporation.
ARTICLE EIGHT
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the By-laws of the Corporation.
ARTICLE NINE
Section 1. Limitation of Liability.
(a) To the fullest extent permitted by the Delaware General
Corporation Law as it now 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 permitted prior
thereto), and except as otherwise provided in the Corporation's Bylaws, no
Director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages arising from a breach of fiduciary duty owed
to the Corporation or its stockholders.
(b) Any repeal or modification of the foregoing paragraph 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.
Section 2. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding"), by reason of the
fact that he or she is or was a Director or officer of the Corporation or a
wholly-owned subsidiary of the Corporation or, while a Director or officer of
the Corporation or a wholly-owned subsidiary of the Corporation, is or was
serving at the request of the Corporation or a wholly-owned subsidiary of the
Corporation as a director, officer, employee, partner, member, manager, trustee,
fiduciary or agent of another corporation or of a partnership, joint venture,
limited liability company, trust or other entity or enterprise, including
service with respect to an employee benefit plan (an "indemnitee"), 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
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amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a Director, officer,
employee, partner, member, manager, trustee, fiduciary or agent and shall inure
to the benefit of the indemnitee's heirs, executors and administrators;
provided, however, that, except as provided in Section 3 of this Article Nine
with respect to proceedings to enforce rights to indemnification, the
Corporation shall not indemnify any such indemnitee in connection with a
proceeding (or part thereof) initiated by such indemnitee except to the extent
such proceeding (or part thereof) was authorized in writing by the Board of
Directors of the Corporation. The right to indemnification conferred in this
Section 2 of this Article Nine shall be a contract right and shall include the
obligation of the Corporation to pay the expenses incurred in defending any such
proceeding in advance of its final disposition (an "advance of expenses");
provided, however, that an advance of expenses incurred by an indemnitee in his
or her capacity as a Director or officer shall be made only upon delivery to the
Corporation of an undertaking (an "undertaking"), by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (a "final adjudication") that such indemnitee is not entitled to be
indemnified for such expenses under this Section 2 of this Article Nine or
otherwise. For purposes of this Article Nine, a wholly-owned subsidiary of the
Corporation shall be deemed to include any subsidiary for which nominal equity
interests have been issued to a persons other than the Corporation or any of its
subsidiaries pursuant to the laws of such subsidiary's jurisdiction of
incorporation or organization.
Section 3. Procedure for Indemnification. Any indemnification of a
Director or officer of the Corporation or advance of expenses under Section 2 of
this Article Nine shall be made promptly, and in any event within forty-five
days (or, in the case of an advance of expenses, twenty days), upon the written
request of the Director or officer. If a determination by the Corporation that
the Director or officer is entitled to indemnification pursuant to this Article
Nine is required, and the Corporation fails to respond within sixty days to a
written request for indemnity, the Corporation shall be deemed to have approved
the request. If the Corporation denies a written request for indemnification or
advance of expenses, in whole or in part, or if payment in full pursuant to such
request is not made within forty-five days (or, in the case of an advance of
expenses, twenty days), the right to indemnification or advances as granted by
this Article Nine shall be enforceable by the Director or officer in any court
of competent jurisdiction. Such person's costs and expenses incurred in
connection with successfully establishing his or her right to indemnification,
in whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for advance of expenses where the undertaking
required pursuant to Section 2 of this Article Nine, if any, 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
such defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of 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
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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 its stockholders) that the claimant has not met such applicable
standard of conduct, shall be defense to the action or create a presumption that
the claimant has not met the applicable standard of conduct. The procedure for
indemnification of other employees and agents for whom indemnification is
provided pursuant to Section 2 of this Article Nine shall be the same procedure
set forth in this Section 3 for Directors or officers, unless otherwise set
forth in the action of the Board of Directors providing indemnification for such
employee or agent.
Section 4. Insurance. The Corporation may purchase and maintain insurance
on its own behalf and on behalf of any person who is or was a Director, officer,
employee or agent of the Corporation or a wholly-owned subsidiary of the
Corporation or was serving at the request of the Corporation or a wholly-owned
subsidiary of the Corporation as a Director, officer, employee, partner, member,
manager, trustee, fiduciary or agent of another corporation, partnership, joint
venture, limited liability company, trust or other entity or enterprise against
any expense, liability or loss asserted against him or her and incurred by him
or her in any such capacity, whether or not the Corporation would have the power
to indemnify such person against such expenses, liability or loss under the
Delaware General Corporation Law.
Section 5. Service for Subsidiaries. Any person serving as a Director,
officer, employee, partner, member, manager, trustee, fiduciary or agent of
another corporation, partnership, joint venture, limited liability company,
trust or other entity or enterprise, at least 50% of whose equity interests are
owned by the Corporation (a subsidiary for purposes of this Article Nine) shall
be conclusively presumed to be serving in such capacity at the request of the
Corporation.
Section 6. Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article Nine shall not adversely affect any right
or protection hereunder of any Director or officer in respect of any act,
omission or condition existing or event or circumstance occurring prior to the
time of such repeal or modification.
Section 7. Reliance. Persons who after the date of the adoption of this
provision become or remain Directors or officers of the Corporation or who,
while a Director or officer fo the Corporation, become or remain a Director,
officer, employee or agent of a subsidiary, shall be conclusively presumed to
have relied on the rights to indemnity, advance of expenses and other rights
contained in this Article Nine in entering into or continuing such service. The
rights to indemnification and to the advance of expenses conferred in this
Article Nine shall apply to claims made against an indemnitee arising out of
acts or omissions which occurred or occur both prior and subsequent to the
adoption hereof.
Section 8. Non-Exclusivity of Rights. The rights to indemnification and to
the advance of expenses conferred in this Article Nine shall not be exclusive of
any other right which any person may have or hereafter acquire hereunder or
under any statute, by-law, agreement, vote of stockholders or disinterested
Directors or otherwise.
Section 9. Other Sources. The Corporation's obligation, if any, to
indemnify or to advance expenses to any Director or officer who was or is
serving at its request as a director,
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officer, employee or agent of an other entity shall be reduced by any amount
such Director or officer may collect as indemnification or advancement of
expenses from such other entity.
Section 10. Other Indemnification and Prepayment of Expenses. This Article
Nine shall not limit the right of the Corporation, to the extent and in the
manner permitted by applicable law, to indemnify and to advance expenses to
persons other than Directors or officers (including employees and agents) with
the same or lesser scope and effect as provided herein when and as authorized by
appropriate corporate action.
Section 11. Merger or Consolidation. For purposes of this Article Nine,
references to the "Corporation" shall include, in addition to the resulting
Corporation, any constituent Corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
Directors or officers, so that any person who is or was a Director or officer of
such constituent Corporation, or at the request of the Corporation or a
wholly-owned subsidiary of the Corporation as a Director, officer, employee,
partner, member, manager, trustee, fiduciary or agent of another corporation or
of a partnership, joint venture, limited liability company, trust or other
entity or enterprise, including service with respect to an employee benefit
plan, shall stand in the same position under this Article Nine with respect to
the resulting or surviving Corporation as he or she would have with respect to
such constituent Corporation if its separate existence had continued.
Section 12. Severability. If any provision of this Article Nine shall be
found to be invalid or limited in application by reason of any law or
regulation, it shall not affect the validity of the remaining provisions hereof.
ARTICLE TEN
Section 1. Terms of Directors. At each annual meeting of stockholders,
directors of the Corporation shall be elected to hold office until the
expiration of the term for which they are elected, and until their successors
have been duly elected and qualified; except that if any such election shall be
not so held, such election shall take place at stockholders' meeting called and
held in accordance with the Delaware General Corporation Law.
Section 2. Vacancies. Subject to the rights of the holders of any series
of Preferred Stock to remove Directors and fill the vacancies thereby created
(as specified in any duly authorized certificate of designation of any series of
Preferred Stock), newly created directorships resulting from any increase in the
number of Directors or vacancies occurring on the Board of Directors for any
reason may be filled by vote of a majority of the remaining members of the Board
of Directors, although less than a quorum, at any meeting of the Board of
Directors. A person so elected by the Board of Directors to fill a vacancy shall
hold office until the next succeeding annual meeting of stockholders of the
Corporation and until his or her successor shall have been duly elected and
qualified.
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ARTICLE ELEVEN
Meetings of stockholders may be held within or without the State of
Delaware, as the By-laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the Delaware General Corporation Laws)
outside of 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 By-laws of the
Corporation.
ARTICLE TWELVE
Subject to the rights of holders of any series of Preferred Stock to act
by written consent as specified in any duly authorized certificate of
designation of any series of Preferred Stock, the stockholders of the
Corporation may not take any action by written consent in lieu of a meeting, and
must take any actions at a duly called annual or special meeting of stockholders
and the power of stockholders to consent in writing without a meeting is
specifically denied. Except as otherwise required by law, special meetings of
stockholders of the Corporation may be called only by either the Board of
Directors pursuant to a resolution adopted by the affirmative vote of the
majority of the total number of directors then in office, by the chairman of the
Board of Directors, or by the chief executive officer or president of the
Corporation.
ARTICLE THIRTEEN
Notwithstanding any other provisions of this Certificate or any provision
of law which might otherwise permit a lesser vote or no vote, but in addition to
any affirmative vote of the holders of the capital stock required by law or this
Certificate, the affirmative vote of the holders of at least two-thirds (2/3) of
the combined voting power of all of the then outstanding shares of the
Corporation eligible to be cast in the election of directors shall be required
to alter, amend or repeal Article Eight, Article Nine, Article Ten, Article
Twelve or Article Fifteen hereof, or this Article Thirteen, or any provision
thereof or hereof.
ARTICLE FOURTEEN
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders, Directors or
any other person herein are granted subject to this reservation.
ARTICLE FIFTEEN
The Corporation expressly elects to be governed by Section 203 of the
Delaware General Corporation Law.
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