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RESTATED CERTIFICATE OF INCORPORATION
OF
BARR LABORATORIES, INC.
Under Section 807 of the Business Corporation Law
We, the undersigned, Bruce L. Downey and Paul M. Bisaro, being
respectively the President and the Secretary of Barr Laboratories, Inc., hereby
certify:
1. The name of the corporation is Barr Laboratories, Inc.
2. The Certificate of Incorporation was filed by the Department of State
on May 6, 1970.
3. The text of the Certificate of Incorporation is hereby restated without
amendments or changes to read as herein set forth in full:
FIRST: The name of the corporation is
BARR LABORATORIES, INC.
SECOND: The corporation is formed for the following purpose or purposes:
To conduct and carry on in all its branches the business of
manufacturing, selling, and distributing chemicals, chemical
compounds, drugs, medicines, and chemical, medicinal, and
pharmaceutical preparations, compounds, and materials of every
kind and description, and all articles and products related
thereto; and to purchase, manufacture, produce, refine, mine, or
otherwise acquire, invest in, own, hold, use, mortgage, create
security interests in, pledge, sell, assign, transfer or
otherwise dispose of, trade, deal in, and deal with any and all
kinds of chemicals and source materials, ingredients, mixtures,
derivatives and compounds thereof, and any and all kinds of
products of which any of the foregoing constitute an ingredient
or in the production of which any of the foregoing are used,
including but not limited to medicines, pharmaceuticals, and
industrial chemicals of all kinds.
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To carry on a general mercantile, industrial, investing, and trading
business in all its branches; to devise, invent, manufacture, fabricate,
assemble, install, service, maintain, alter, buy, sell, import, export, license
as licensor or licensee, lease as lessor or lessee, distribute, job, enter into,
negotiate, execute, acquire, and assign contracts in respect of, acquire,
receive, grant, and assign licensing arrangements, options, franchises, and
other rights in respect of, and generally deal in and with, at wholesale and
retail, as principal, and as sales, business, special, or general agent,
representative, broker, factor, merchant, distributor, jobber, advisor, and in
any other lawful capacity, goods, wares, merchandise, commodities, and
unimproved, improved, finished, processed, and other real, personal, and mixed
property of any and all kinds, together with the components, resultants, and
by-products thereof; to acquire by purchase or otherwise own, hold, lease,
mortgage, sell, or otherwise dispose of, erect, construct, make, alter, enlarge,
improve, and to aid or subscribe toward the construction, acquisition or
improvement of any factories, shops, storehouses, buildings, and commercial and
retail establishments of every character, including all equipment, fixtures,
machinery, implements and supplies necessary, or incidental to, or connected
with, any of the purposes or business of the corporation; and generally to
perform any and all acts connected therewith or arising therefrom or incidental
thereto, and all acts proper or necessary for the purpose of the business.
To apply for, register, obtain, purchase, lease, take licenses in respect
of or otherwise acquire, and to hold, own, use, operate, develop, enjoy, turn to
account, grant licenses and immunities in respect of, manufacture under and to
introduce, sell, assign, mortgage, pledge or otherwise dispose of, and, in any
manner deal with and contract with reference to:
(a) inventions, devices, formulae, processes and any improvements and
modifications thereof;
(b) letters patent, patent rights, patented processes, copyrights, designs, and
similar rights, trade marks, trade symbols and other indications of origin and
ownership granted by or recognized under the laws of the United States of
America or of any state or subdivision thereof, or of any foreign country or
subdivision thereof, and all rights connected therewith or appertaining
thereunto;
(c) franchises, licenses, grants and concessions.
To have, in furtherance of the corporate purposes, all of the powers conferred
upon corporations organized under the Business Corporation Law subject to any
limitations thereof contained in this certificate of incorporation or in the
laws of the State of New York.
THIRD: The office of the corporation is to be located in New York City, New York
County.
FOURTH: The number of shares of all classes of stock which the corporation shall
have authority to issue is 100,000,000 shares of common stock of the par value
of $.01 per share, entitled to one vote per share, and 2,000,000 shares of
preferred stock of the par value of $1.00 per share. The Board of Directors
shall have authority, by amendments to the Certificate of
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Incorporation made from time to time by action of the Board of Directors without
stockholder approval, in the manner provided by law, to divide the shares of
Preferred Stock into series, to determine the number of shares of any such
series, and to determine for any series the designation, relative rights,
preferences, and limitations of the shares of any such series to the extent not
fixed by the Certificate of Incorporation. Without limiting the generality of
the foregoing, the authority hereby vested in the Board of Directors as to each
series of Preferred Stock shall include, except to the extent restricted by law,
authority in respect of:
(a) the voting rights, if any, of the shares of such series, whether
full or limited or multiple;
(b) the dividends payable in respect thereof, whether cumulative,
non-cumulative or partially cumulative;
(c) whether the dividends thereon shall be payable on a parity with or
in preference to or contingent upon dividends payable on any other
class or series;
(d) the preferential rights thereof upon dissolution or liquidation or
upon any distribution of assets of the Company;
(e) whether the shares thereof shall be subject to redemption, in whole
or in part, at the option of the Company in cash, in bonds or other
written obligations of the Company for the payment of money, or
property, and at what price or prices, within such period or periods
and under such condition as are stated in any amendment to the
Certificate of Incorporation or in such other instrument as may be
provided by law for the statement thereof;
(f) the requirements of any sinking fund or funds if any, to be applied
to the purchase or redemption of shares of such series and the
amount of or manner of creating such fund or funds and the manner of
application thereof;
(g) the rights, if any, of the holders of shares of such series to
convert the same into, or to exchange the same for, shares of any
other class or classes or of any series of the same, and the price
or prices and rate or rates of exchange at which such shares shall
be convertible or exchangeable, and other terms or conditions of
such conversion or exchange; and
(h) any restriction on an increase in the number of shares of any series
theretofore authorized and any qualifications, limitations or
restrictions of rights or powers to which shares of any future
series shall be subject.
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Section 1 - Series A Preferred Stock.
(a) 1,000,000 shares of the authorized shares of Preferred Stock, par
value $1.00 each, shall be designated Cumulative Convertible
Preferred Stock, Series A (the "Series A Preferred Stock".)
The powers, preferences and rights and the qualifications,
limitations or restrictions thereof in respect of the Cumulative
Series A Preferred Stock, are as follows:
(b) The holders of the Series A Preferred Stock shall be entitled to
receive, when and as declared cumulative preferred cash dividends at
the rate of $.50 per share per annum payable on such dates as the
directors may determine in preference to dividends on any other
class of stock.
(c) At any time after full cumulative dividends for all previous
dividend periods shall have been paid on the Series A Preferred
Stock, and after declaring and setting aside a sum for the payment
of full cumulative dividends on the Series A Preferred Stock for the
then current dividend period, and provided all accumulated dividends
on all outstanding shares of Series A Preferred Stock shall have
been paid in full or set apart for payment in full, then, and not
prior thereto, out of the net profits or net assets of the
Corporation applicable to dividends, dividends may be declared on
the other class or classes of stock, subject to the respective terms
and provisions (if any) applicable thereto.
(d) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation shall be made or set
apart to any other class or classes of stock, the Series A Preferred
Stock shall be entitled to receive a sum equivalent to all unpaid
cumulative dividends (if any) accumulated thereon, and, in addition
thereto, each share of the Series A Preferred Stock shall be
entitled to receive five dollars ($5.00) per share, and no more.
After distribution, voluntary or involuntary, as the case may be,
shall have been made to the Series A Preferred Stock, as herein
provided, but not prior thereto, the other class or classes of stock
shall be entitled to receive all the remainder of the assets so
distributed, subject to the respective terms and provisions (if any)
applying thereto.
(e) Nothing herein contained shall limit any right of the Corporation
conferred hereby or by law to purchase any shares of the Series A
Preferred Stock.
(f) All shares of Series A Preferred Stock shall be entitled to the
number of votes equal to the number of shares of common stock of the
Corporation into which each such share of Series A Preferred Stock
may be converted, and to receive notices of any meetings of the
holders of the Corporation's capital stock.
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(g) At the option of the holders thereof, the Corporation shall convert
all or any part of the shares of Series A Preferred Stock held by
the holder thereof into shares of common stock of the Corporation at
the rate of one share of Series A Preferred Stock for four shares of
common stock. The holder of the shares to be so converted shall
deliver the certificate or certificates representing such shares,
properly endorsed for transfer, to the Corporation at its principal
place of business on the conversion date (as hereinafter defined)
against receipt of the shares of common stock into which such shares
are being converted. The Corporation shall pay any and all transfer
taxes payable on the transfer and issuance.
(h) Conversions of the Series A Preferred Stock pursuant to paragraph
(g) hereof shall be instituted by the mailing of a notice to the
Corporation by the holder thereof stating the number of shares of
Series A Preferred Stock to be converted. The postmarked date of
such notice shall be the conversion date as used herein. From and
after the conversion date, all rights of such holder with respect to
the shares of Series A Preferred Stock to be converted permanently
cease and terminate except the right to receive the shares of common
stock to be issued to the holder as of the conversion date.
FIFTH: No shareholder of this corporation shall by reason of his holding shares
of any class have any preemptive or preferential right to purchase or subscribe
to any shares of any class of this corporation, now or hereafter to be
authorized, or any notes, debentures, bonds, or other securities convertible
into or carrying options or warrants to purchase shares of any class, now or
hereafter to be authorized (whether or not the issuance of any such shares, or
such notes, debentures, bonds or other securities, would adversely affect the
dividend or voting rights of such shareholder), other than such rights, if any,
as the Board of Directors in its discretion, from to time to time may grant; and
at such price as the Board of Directors in its discretion may fix; and the Board
of Directors may issue shares of any class of this corporation, or any notes,
debentures, bonds, or other securities convertible into carrying options or
warrants to purchase shares of any class without offering any such shares of any
class, either in whole or in part, to the existing shareholders of any class.
SIXTH: The Secretary of State is designated as the agent of the corporation upon
whom process against the corporation may be served. The post office address
within the State of New York to which the Secretary of State shall mail a copy
of any process against the corporation served upon him is: 460 Park Avenue, New
York, NY 10022.
SEVENTH: The duration of the corporation is to be perpetual.
EIGHTH: Except as may otherwise be specifically provided in this certificate of
incorporation, no provision of this certificate of incorporation is intended by
the corporation to be construed as limiting, prohibiting, denying, or abrogating
any of the general or specific powers or rights conferred under the Business
Corporation Law upon the corporation, upon its shareholders, bondholders, and
security holders, and upon its directors, officers, and other corporate
personnel, including, in particular, the power of the corporation to furnish
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indemnification to directors and officers in the capacities defined and
prescribed by the Business Corporation Law and the defined and prescribed rights
of said persons to indemnification as the same are conferred by the Business
Corporation Law.
4. This Restatement of the Certificate of Incorporation was authorized
by the Board of Directors.
IN WITNESS WHEREOF, we have signed this Certificate on this ___ day of
January 1998 and we affirm the statements contained therein as true under
penalties of perjury
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Paul M. Bisaro Bruce L. Downey
Secretary President