EXHIBIT 3.1
CERTIFICATE OF DESIGNATIONS, PREFERENCES,
RELATED RIGHTS, QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS
OF
SERIES A JUNIOR PARTICIPATING PREFERRED SHARES
OF
ESPERION THERAPEUTICS, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
Esperion Therapeutics, Inc., a Delaware corporation (the "Company"),
certifies that pursuant to the authority contained in Article Fourth of the
Certificate of Incorporation of the Company, as amended, and in accordance with
the provisions of Section 151 of the General Company Law of the State of
Delaware, the Board of the Company at a meeting duly called and held on April
18, 2002 adopted the following resolution which resolution remains in full force
and effect on the date hereof:
RESOLVED, that pursuant to the authority expressly vested in
the Board of Directors of Esperion Therapeutics, Inc. (the "Company") by Article
Fourth of the Certificate of Incorporation of the Company, as amended, the Board
of Directors hereby fixes and determines the voting rights, designations,
preferences, qualifications, privileges, limitations, restrictions, options,
conversion rights and other special or relative rights of a series of the
Preferred Stock, par value $.01 per share, which shall consist of 500,000 shares
and shall be designated as Series A Junior Participating Preferred Shares (the
"Series A Preferred Shares").
Special Terms of the Series A Preferred Shares
SECTION 1. Dividends and Distributions.
(a) The rate of dividends payable per share of Series A
Preferred Shares on the first day of January, April, July and October in each
year or such other quarterly payment date as shall be specified by the Board of
Directors (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of the Series A Preferred
Shares, shall be (rounded to the nearest cent) equal to the greater of (i)
$10.00 or (ii) subject to the provision for adjustment hereinafter set forth,
one hundred (100) times the aggregate per share amount of all cash dividends,
and one hundred (100) times the aggregate per share amount (payable in cash,
based upon the fair market value at the time the non-cash dividend or other
distribution is declared or paid as determined in good faith by the Board of
Directors) of all non-cash dividends or other distributions other than a
dividend payable in shares of common stock of the Company, par value $.001 per
share (the "Common Stock"), or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of the Series A Preferred Shares. Dividends
on the Series A Preferred Shares shall be paid out of funds legally available
for such purpose. In the event the Company shall at any time after April 18,
2002 (the "Rights Dividend Declaration Date") (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding shares
of Common Stock, or (iii) combine the outstanding shares of Common Stock into a
smaller number of shares, then in each such case the amounts to which holders of
Series A Preferred Shares were entitled immediately prior to such event under
clause (ii) of the preceding sentence shall be adjusted by multiplying each such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) Dividends shall begin to accrue and be cumulative on
outstanding Series A Preferred Shares from the Quarterly Dividend Payment Date
next preceding the date of issue of such Series A Preferred Shares, unless the
date of issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of Series A Preferred Shares entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be cumulative from such
quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the Series A Preferred Shares in an amount less than
the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding.
SECTION 2. Voting Rights. In addition to any other voting
rights required by law, the holders of Series A Preferred Shares shall have the
following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Shares shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the stockholders of the
Company. In the event the Company shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number of shares, then in each
such case the number of votes per share to which holders of Series A Preferred
Shares were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
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(b) In the event that dividends upon the Series A Preferred
Shares shall be in arrears to an amount equal to six full quarterly dividends
thereon, the holders of such Series A Preferred Shares shall become entitled to
the extent hereinafter provided to vote noncumulatively at all elections of
directors of the Company, and to receive notice of all stockholders' meetings to
be held for such purpose. At such meetings, to the extent that directors are
being elected, the holders of such Series A Preferred Shares voting as a class
shall be entitled solely to elect two members of the Board of Directors of the
Company; and all other directors of the Company shall be elected by the other
stockholders of the Company entitled to vote in the election of directors. Such
voting rights of the holders of such Series A Preferred Shares shall continue
until all accumulated and unpaid dividends thereon shall have been paid or funds
sufficient therefor set aside, whereupon all such voting rights of the holders
of shares of such series shall cease, subject to being again revived from time
to time upon the reoccurrence of the conditions described above as giving rise
thereto.
At any time when such right to elect directors separately as a
class shall have so vested, the Company may, and upon the written request of the
holders of record of not less than 15% of the then outstanding total number of
shares of all the Series A Preferred Shares having the right to elect directors
in such circumstances shall, call a special meeting of holders of such Series A
Preferred Shares for the election of directors. In the case of such a written
request, such special meeting shall be held within ninety (90) days after the
delivery of such request, and, in either case, at the place and upon the notice
provided by law and in the Bylaws of the Company; provided, that the Company
shall not be required to call such a special meeting if such request is received
less than one hundred twenty (120) days before the date fixed for the next
ensuing annual or special meeting of stockholders of the Company. Upon the
mailing of the notice of such special meeting to the holders of such Series A
Preferred Shares, or, if no such meeting be held, then upon the mailing of the
notice of the next annual or special meeting of stockholders for the election of
directors, the number of directors of the Company shall be increased to the
extent, but only to the extent, necessary to provide sufficient vacancies to
enable the holders of such Series A Preferred Shares to elect the two directors
hereinabove provided for, and all such vacancies shall be filled only by vote of
the holders of such Series A Preferred Shares as hereinabove provided. Whenever
the number of directors of the Company shall have been increased, the number as
so increased may thereafter be further increased or decreased in such manner as
may be permitted by the Bylaws and without the vote of the holders of Series A
Preferred Shares, provided that no such action shall impair the right of the
holders of Series A Preferred Shares to elect and to be represented by two
directors as herein provided.
So long as the holders of Series A Preferred Shares are
entitled hereunder to voting rights, any vacancy in the Board of Directors
caused by the death or resignation of any director elected by the holders of
Series A Preferred Shares, shall, until the next meeting of stockholders for the
election of directors, in each case be filled by the remaining director elected
by the holders of Series A Preferred Shares having the right to elect directors
in such circumstances.
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Upon termination of the voting rights of the holders of Series
A Preferred Shares, the terms of office of all persons who shall have been
elected directors of the Company by vote of the holders of Series A Preferred
Shares or by a director elected by such holders shall forthwith terminate.
(c) Except as otherwise provided herein, in the Certificate of
Incorporation of the Company, as amended, or by law, the holders of Series A
Preferred Shares and the holders of Common Stock (and the holders of shares of
any other series or class entitled to vote thereon) shall vote together as one
class on all matters submitted to a vote of stockholders of the Company.
SECTION 3. Reacquired Shares. Any Series A Preferred Shares
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but un-issued Preferred Stock
and may be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors.
SECTION 4. Liquidation, Dissolution or Winding Up. In the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company, the holders of Series A Preferred Shares shall be entitled to
receive the greater of (a) $40.00 per share, plus accrued dividends to the date
of distribution, whether or not earned or declared, or (b) an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of Common
Stock. In the event the Company shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number of shares, then in each
such case the amount to which holders of Series A Preferred Shares were entitled
immediately prior to such event pursuant to clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
SECTION 5. Consolidation, Merger, Etc. In case the Company
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case the Series
A Preferred Shares shall at the same time be similarly exchanged or changed in
an amount per share (subject to the provision for adjustment hereinafter set
forth) equal to one hundred (100) times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Company shall at any time after the Rights Declaration Date (i)
declare any dividend on Common Stock payable in shares of Common
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Stock, (ii) subdivide the outstanding shares of Common Stock, or (iii) combine
the outstanding shares of Common Stock into a smaller number of shares, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Shares shall be adjusted
by multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 6. No Redemption. The Series A Preferred Shares shall
not be redeemable.
SECTION 7. Ranking. The Series A Preferred Shares shall rank
junior to all other series of the Company's Preferred Stock as to the payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
SECTION 8. Fractional Shares. Series A Preferred Shares may be
issued in fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights of holders
of Series A Preferred Shares.
IN WITNESS WHEREOF, the Company has caused this certificate to be
signed by Roger S. Newton, Ph.D., its President and Chief Executive Officer, and
attested by Christine K. Ballman, its Assistant Secretary and General Counsel,
this 18th day of April, 2002.
ESPERION THERAPEUTICS, INC.
By: /s/ Roger S. Newton
---------------------------------------------
Name: Roger S. Newton, Ph.D.
Title: President and Chief Executive Officer
ATTEST:
By: /s/ Christine K. Ballman
-----------------------------------------
Name: Christine K. Ballman
Title: Assistant Secretary and General Counsel
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