Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
EYETECH PHARMACEUTICALS, INC.
FIRST: The name of the Corporation is Eyetech Pharmaceuticals, Inc.
SECOND: The address of the Corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is One Hundred Thirty Million
(130,000,000) shares, consisting of (i) One Hundred Twenty-five Million
(125,000,000) shares of Common Stock, par value $.01 per share (the "Common
Stock"), and (ii) Five Million (5,000,000) shares of Preferred Stock, par value
$.01 per share (the "Preferred Stock").
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of the Corporation.
A COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the
holders of the Common Stock are subject to and qualified by the rights of the
holders of the Preferred Stock of any series as may be designated by the Board
of Directors upon any issuance of the Preferred Stock of any series.
2. Voting. The holders of the Common Stock shall have voting
rights at all meetings of stockholders, each such holder being entitled to one
vote for each share thereof held by such holder; provided, however, that, except
as otherwise required by law, holders of Common Stock shall not be entitled to
vote on any amendment to this Certificate of Incorporation (which, as used
herein, shall mean the certificate of incorporation of the Corporation, as
amended from time to time, including the terms of any certificate of designation
of any series of Preferred Stock) that relates solely to the terms of one or
more outstanding series of Preferred Stock if the holders of such affected
series are entitled, either separately or together as a class with the holders
of one or more other such series, to vote thereon pursuant to this Certificate
of Incorporation. There shall be no cumulative voting.
The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders
of a majority of the stock of the Corporation entitled to vote, irrespective of
the provisions of Section 242(b)(2) of the General Corporation Law of Delaware.
3. Dividends. Dividends may be declared and paid on the Common
Stock from funds lawfully available therefor as and when determined by the Board
of Directors and subject to any preferential dividend or other rights of any
then outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the
Corporation, whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of the Corporation available for distribution to
its stockholders, subject to any preferential or other rights of any then
outstanding Preferred Stock.
B PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided by law. Different series of
Preferred Stock shall not be construed to constitute different classes of shares
for the purposes of voting by classes unless expressly provided.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more series, and in
connection with the creation of any such series, by resolution or resolutions
providing for the issuance of the shares thereof, to determine and fix the
number of shares of such series and such voting powers, full or limited, or no
voting powers, and such designations, preferences and relative participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, including without limitation thereof, dividend rights,
conversion rights, redemption privileges and liquidation preferences, as shall
be stated and expressed in such resolutions, all to the full extent now or
hereafter permitted by the General Corporation Law of Delaware. Without limiting
the generality of the foregoing, the resolutions providing for issuance of any
series of Preferred Stock may provide that such series shall be superior or rank
equally or be junior to the Preferred Stock of any other series to the extent
permitted by law.
The number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, irrespective of the provisions of Section 242(b)(2) of the
General Corporation Law of Delaware.
FIFTH: Except as otherwise provided herein, the Corporation reserves
the right to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, in the manner now or hereafter prescribed by
statute and this Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation.
SIXTH: In furtherance and not in limitation of the powers conferred
upon it by the laws of the State of Delaware, and subject to the terms of any
series of Preferred Stock, the Board of Directors shall have the power to adopt,
amend, alter or repeal the Corporation's Bylaws. The
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affirmative vote of a majority of the directors present at any regular or
special meeting of the Board of Directors at which a quorum is present shall be
required to adopt, amend, alter or repeal the Corporation's Bylaws. The
Corporation's Bylaws also may be adopted, amended, altered or repealed by the
affirmative vote of the holders of at least seventy-five percent (75%) of the
votes which all the stockholders would be entitled to cast in any annual
election of directors or class of directors, in addition to any other vote
required by this Certificate of Incorporation. Notwithstanding any other
provisions of law, this Certificate of Incorporation or the Bylaws of the
Corporation, and notwithstanding the fact that a lesser percentage may be
specified by law, the affirmative vote of the holders of at least seventy-five
percent (75%) of the votes which all the stockholders would be entitled to cast
in any annual election of directors or class of directors shall be required to
amend or repeal, or to adopt any provision inconsistent with, this Article
SIXTH.
SEVENTH: Except to the extent that the General Corporation Law of
Delaware prohibits the elimination or limitation of liability of directors for
breaches of fiduciary duty, no director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for any
breach of fiduciary duty as a director, notwithstanding any provision of law
imposing such liability. No amendment to or repeal of this provision shall apply
to or have any effect on the liability or alleged liability of any director of
the Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
EIGHTH: The Corporation shall provide indemnification as follows:
1. Actions, Suits and Proceedings Other than by or in the Right
of the Corporation. The Corporation shall indemnify each person who was or is a
party or threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was, or has agreed to become, a director
or officer of the Corporation, or is or was serving, or has agreed to serve, at
the request of the Corporation, as a director, officer, partner, employee or
trustee of, or in a similar capacity with, another corporation, partnership,
joint venture, trust or other enterprise (including any employee benefit plan)
(all such persons being referred to hereafter as an "Indemnitee"), or by reason
of any action alleged to have been taken or omitted in such capacity, against
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by or on behalf of Indemnitee in
connection with such action, suit or proceeding and any appeal therefrom, if
Indemnitee acted in good faith and in a manner which Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his or her conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner which Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
2. Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify any Indemnitee who was or is a party to or
threatened to be made a party to any
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threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that
Indemnitee is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer, partner, employee or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) and, to the extent permitted by law,
amounts paid in settlement actually and reasonably incurred by or on behalf of
Indemnitee in connection with such action, suit or proceeding and any appeal
therefrom, if Indemnitee acted in good faith and in a manner which Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, except that no indemnification shall be made under this Section 2
in respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Corporation, unless, and only to the extent, that
the Court of Chancery of Delaware shall determine upon application that, despite
the adjudication of such liability but in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnity for such
expenses (including attorneys' fees) which the Court of Chancery of Delaware
shall deem proper.
3. Indemnification for Expenses of Successful Party.
Notwithstanding any other provisions of this Article, to the extent that an
Indemnitee has been successful, on the merits or otherwise, in defense of any
action, suit or proceeding referred to in Sections 1 and 2 of this Article
EIGHTH, or in defense of any claim, issue or matter therein, or on appeal from
any such action, suit or proceeding, Indemnitee shall be indemnified against all
expenses (including attorneys' fees) actually and reasonably incurred by or on
behalf of Indemnitee in connection therewith. Without limiting the foregoing, if
any action, suit or proceeding is disposed of, on the merits or otherwise
(including a disposition without prejudice), without (i) the disposition being
adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by Indemnitee, (iv) an
adjudication that Indemnitee did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and (v) with respect to any criminal proceeding, an adjudication
that Indemnitee had reasonable cause to believe his conduct was unlawful,
Indemnitee shall be considered for the purposes hereof to have been wholly
successful with respect thereto.
4. Notification and Defense of Claim. As a condition precedent to
an Indemnitee's right to be indemnified, such Indemnitee must notify the
Corporation in writing as soon as practicable of any action, suit, proceeding or
investigation involving such Indemnitee for which indemnity will or could be
sought. With respect to any action, suit, proceeding or investigation of which
the Corporation is so notified, the Corporation will be entitled to participate
therein at its own expense and/or to assume the defense thereof at its own
expense, with legal counsel reasonably acceptable to Indemnitee. After notice
from the Corporation to Indemnitee of its election so to assume such defense,
the Corporation shall not be liable to Indemnitee for any legal or other
expenses subsequently incurred by Indemnitee in connection with such action,
suit, proceeding or investigation, other than as provided below in this Section
4. Indemnitee shall have the right to employ his or her own counsel in
connection with such action, suit, proceeding or investigation, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of Indemnitee unless
(i) the employment of counsel by Indemnitee has been authorized by the
Corporation,
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(ii) counsel to Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position on any significant issue between the
Corporation and Indemnitee in the conduct of the defense of such action, suit,
proceeding or investigation or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action, suit, proceeding or
investigation, in each of which cases the fees and expenses of counsel for
Indemnitee shall be at the expense of the Corporation, except as otherwise
expressly provided by this Article. The Corporation shall not be entitled,
without the consent of Indemnitee, to assume the defense of any claim brought by
or in the right of the Corporation or as to which counsel for Indemnitee shall
have reasonably made the conclusion provided for in clause (ii) above. The
Corporation shall not be required to indemnify Indemnitee under this Article
EIGHTH for any amounts paid in settlement of any action, suit, proceeding or
investigation effected without its written consent. The Corporation shall not
settle any action, suit, proceeding or investigation in any manner which would
impose any penalty or limitation on Indemnitee without Indemnitee's written
consent. Neither the Corporation nor Indemnitee will unreasonably withhold or
delay its consent to any proposed settlement.
5. Advance of Expenses. Subject to the provisions of Section 6 of
this Article EIGHTH, in the event that the Corporation does not assume the
defense pursuant to Section 4 of this Article EIGHTH of any action, suit,
proceeding or investigation of which the Corporation receives notice under this
Article, any expenses (including attorneys' fees) incurred by or on behalf of
Indemnitee in defending an action, suit, proceeding or investigation or any
appeal therefrom shall be paid by the Corporation in advance of the final
disposition of such matter; provided, however, that the payment of such expenses
incurred by or on behalf of Indemnitee in advance of the final disposition of
such matter shall be made only upon receipt of an undertaking by or on behalf of
Indemnitee to repay all amounts so advanced in the event that it shall
ultimately be determined that Indemnitee is not entitled to be indemnified by
the Corporation as authorized in this Article; and further provided that no such
advancement of expenses shall be made under this Article EIGHTH if it is
determined (in the manner described in Section 6) that (i) Indemnitee did not
act in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, or (ii) with respect to any
criminal action or proceeding, Indemnitee had reasonable cause to believe his
conduct was unlawful. Such undertaking shall be accepted without reference to
the financial ability of Indemnitee to make such repayment.
6. Procedure for Indemnification. In order to obtain
indemnification or advancement of expenses pursuant to Section 1, 2, 3 or 5 of
this Article EIGHTH, an Indemnitee shall submit to the Corporation a written
request. Any such advancement of expenses shall be made promptly, and in any
event within 30 days after receipt by the Corporation of the written request of
Indemnitee, unless the Corporation determines within such 30-day period that
Indemnitee did not meet the applicable standard of conduct set forth in Section
1, 2 or 5 of this Article EIGHTH, as the case may be. Any such indemnification,
unless ordered by a court, shall be made with respect to requests under Section
1 or 2 only as authorized in the specific case upon a determination by the
Corporation that the indemnification of Indemnitee is proper because Indemnitee
has met the applicable standard of conduct set forth in Section 1 or 2, as the
case may be. Such determination shall be made in each instance (a) by a majority
vote of the directors of the Corporation consisting of persons who are not at
that time parties to the action, suit or proceeding in question ("disinterested
directors"), whether or not a quorum, (b) by a
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committee of disinterested directors designated by majority vote of
disinterested directors, whether or not a quorum, (c) if there are no
disinterested directors, or if the disinterested directors so direct, by
independent legal counsel (who may, to the extent permitted by law, be regular
legal counsel to the Corporation) in a written opinion, or (d) by the
stockholders of the Corporation.
7. Remedies. The right to indemnification or advancement of
expenses as granted by this Article shall be enforceable by Indemnitee in any
court of competent jurisdiction. Neither the failure of the Corporation to have
made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Corporation
pursuant to Section 6 of this Article EIGHTH that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that Indemnitee has not met the applicable standard of conduct.
Indemnitee's expenses (including attorneys' fees) reasonably incurred in
connection with successfully establishing Indemnitee's right to indemnification,
in whole or in part, in any such proceeding shall also be indemnified by the
Corporation.
8. Limitations. Notwithstanding anything to the contrary in this
Article, except as set forth in Section 7 of this Article EIGHTH, the
Corporation shall not indemnify an Indemnitee pursuant to this Article EIGHTH in
connection with a proceeding (or part thereof) initiated by such Indemnitee
unless the initiation thereof was approved by the Board of Directors of the
Corporation. Notwithstanding anything to the contrary in this Article, the
Corporation shall not indemnify an Indemnitee to the extent such Indemnitee is
reimbursed from the proceeds of insurance, and in the event the Corporation
makes any indemnification payments to an Indemnitee and such Indemnitee is
subsequently reimbursed from the proceeds of insurance, such Indemnitee shall
promptly refund indemnification payments to the Corporation to the extent of
such insurance reimbursement; provided, however, that nothing contained in this
Section 8 shall be construed to require any Indemnitee to seek reimbursement
under any insurance policy.
9. Subsequent Amendment. No amendment, termination or repeal of
this Article or of the relevant provisions of the General Corporation Law of
Delaware or any other applicable laws shall affect or diminish in any way the
rights of any Indemnitee to indemnification under the provisions hereof with
respect to any action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal.
10. Other Rights. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or vote of stockholders
or disinterested directors or otherwise, both as to action in Indemnitee's
official capacity and as to action in any other capacity while holding office
for the Corporation, and shall continue as to an Indemnitee who has ceased to be
a director or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of Indemnitee. Nothing contained in this Article
shall be deemed to prohibit, and the Corporation is specifically authorized to
enter into, agreements with officers and directors providing indemnification
rights and procedures different from those set forth in this Article. In
addition, the Corporation may, to the extent authorized from time to time by its
Board of Directors, grant
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indemnification rights to other employees or agents of the Corporation or other
persons serving the Corporation and such rights may be equivalent to, or greater
or less than, those set forth in this Article.
11. Partial Indemnification. If an Indemnitee is entitled under
any provision of this Article to indemnification by the Corporation for some or
a portion of the expenses (including attorneys' fees), judgments, fines or
amounts paid in settlement actually and reasonably incurred by or on behalf of
Indemnitee in connection with any action, suit, proceeding or investigation and
any appeal therefrom but not, however, for the total amount thereof, the
Corporation shall nevertheless indemnify Indemnitee for the portion of such
expenses (including attorneys' fees), judgments, fines or amounts paid in
settlement to which Indemnitee is entitled.
12. Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise (including any employee benefit plan) against any
expense, liability or loss incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the General
Corporation Law of Delaware.
13. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
14. Definitions. Terms used herein and defined in Section 145(h)
and Section 145(i) of the General Corporation Law of Delaware shall have the
respective meanings assigned to such terms in such Section 145(h) and Section
145(i).
NINTH: This Article is inserted for the management of the business and
for the conduct of the affairs of the Corporation.
1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Corporation's Board of
Directors.
2. Number of Directors; Election of Directors. Subject to the
rights of holders of any series of Preferred Stock to elect directors, the
number of directors of the Corporation shall be established by the Board of
Directors. Election of directors need not be by written ballot, except as and to
the extent provided in the Bylaws of the Corporation.
3. Classes of Directors. Subject to the rights of holders of any
series of Preferred Stock to elect directors, the Board of Directors shall be
and is divided into three classes: Class I, Class II and Class III.
4. Terms of Office. Subject to the rights of holders of any
series of Preferred Stock to elect directors, each director shall serve for a
term ending on the date of the third annual
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meeting following the annual meeting at which such director was elected;
provided, that each director initially appointed to Class I shall serve for a
term expiring at the Corporation's annual meeting of stockholders held in 2004;
each director initially appointed to Class II shall serve for a term expiring at
the Corporation's annual meeting of stockholders held in 2005; and each director
initially appointed to Class III shall serve for a term expiring at the
Corporation's annual meeting of stockholders held in 2006; provided further,
that the term of each director shall continue until the election and
qualification of his successor and be subject to his earlier death, resignation
or removal.
5. Quorum. The greater of (a) a majority of the directors at any
time in office and (b) one-third of the number of directors fixed pursuant to
Section 2 of this Article NINTH shall constitute a quorum. If at any meeting of
the Board of Directors there shall be less than such a quorum, a majority of the
directors present may adjourn the meeting from time to time without further
notice other than announcement at the meeting, until a quorum shall be present.
6. Action at Meeting. Every act or decision done or made by a
majority of the directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board of Directors unless a greater
number is required by law or by this Certificate of Incorporation.
7. Removal. Subject to the rights of holders of any series of
Preferred Stock, directors of the Corporation may be removed only for cause and
only by the affirmative vote of the holders of at least seventy-five percent
(75%) of the votes which all the stockholders would be entitled to cast in any
annual election of directors or class of directors.
8. Vacancies. Subject to the rights of holders of any series of
Preferred Stock, any vacancy or newly created directorships in the Board of
Directors, however occurring, shall be filled only by vote of a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director and shall not be filled by the stockholders. A director elected to fill
a vacancy shall hold office until the next election of the class for which such
director shall have been chosen, subject to the election and qualification of a
successor and to such director's earlier death, resignation or removal.
9. Stockholder Nominations and Introduction of Business, Etc.
Advance notice of stockholder nominations for election of directors and other
business to be brought by stockholders before a meeting of stockholders shall be
given in the manner provided by the Bylaws of the Corporation.
10. Amendments to Article. Notwithstanding any other provisions of
law, this Certificate of Incorporation or the Bylaws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least seventy-five percent (75%) of the
votes which all the stockholders would be entitled to cast in any annual
election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article NINTH.
TENTH: Stockholders of the Corporation may not take any action by
written consent in lieu of a meeting. Notwithstanding any other provisions of
law, this Certificate of Incorporation
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or the Bylaws of the Corporation, and notwithstanding the fact that a lesser
percentage may be specified by law, the affirmative vote of the holders of at
least seventy-five percent (75%) of the votes which all the stockholders would
be entitled to cast in any annual election of directors or class of directors
shall be required to amend or repeal, or to adopt any provision inconsistent
with, this Article TENTH.
ELEVENTH: Special meetings of stockholders for any purpose or purposes
may be called at any time by the Board of Directors, the Chairman of the Board
or the Chief Executive Officer, but such special meetings may not be called by
any other person or persons. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose or purposes
stated in the notice of meeting. Notwithstanding any other provision of law,
this Certificate of Incorporation or the Bylaws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least seventy-five percent (75%) of the
votes which all the stockholders would be entitled to cast in any annual
election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article ELEVENTH.
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates, integrates and amends the certificate of incorporation of the
Corporation, and which has been duly adopted in accordance with Sections 228,
242 and 245 of the Delaware General Corporation Code, has been executed by its
duly authorized officer this 6th day of February, 2003.
EYETECH PHARMACEUTICALS, INC.
By: /s/Glenn Sblendorio
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Name: Glenn Sblendorio
Title: Senior Vice President and Chief
Financial Officer
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