EXHIBIT 3.1
PAGE 1
DELAWARE
The First State
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS FILED
FROM AND INCLUDING THE RESTATED CERTIFICATE OF "MEDICIS PHARMACEUTICAL
CORPORATION" AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
RESTATED CERTIFICATE, FILED THE EIGHTEENTH DAY OF DECEMBER, A.D. 2003, AT
2:27 O'CLOCK P.M.
[SEAL] Harriet Smith Windsor, Secretary of State
-----------------------------------------
Harriet Smith Windsor, Secretary of State
2168131 8100X AUTHENTICATION: 3116829
040362524 DATE:05-18-04
AMENDED AND RESTATED CERTIFICATE, OF INCORPORATION
OF
MEDICIS PHARMACEUTICAL CORPORATION
Medicis Pharmaceutical Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation") does
hereby certify:
1. That the name of the corporation is Medicis Pharmaceutical Corporation.
2. That the Corporation filed its original Certificate of Incorporation with
the Secretary of the State of Delaware on July 29,1988.
3. That the Certificate of Incorporation has been previously amended, as
follows:
a. A Certificate of Amendment of the Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware
on October 3, 1988.
b. A Certificate of Amendment of the Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware
on December 20, 1989.
c. A Certificate of Amendment of the Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware
on January 12, 1990.
d. A Certificate of Amendment of the Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware
on January 29, 1992.
e. A Certificate of Amendment of the Certificate of Incorporation
was filed with the Secretary of State of the State of
Delaware on December 15, 1992.
f. A Certificate of Amendment of the Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware
on October 23, 1995.
g. A Certificate of Amendment of the Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware
on November 25, 1996.
4. That, at a meeting of the Board of Director held on September 18, 2003,
this Restated Certificate of Incorporation was duly approved for
submission to the Corporation's shareholders for their approval.
5. That, at a meeting of the shareholders of the Corporation on November 19,
2003, this Restated Certificate of Incorporation was duly adopted and
approved by the Corporation's shareholders.
6. That this Restated Certificate of Incorporation was adopted in accordance
with Section 245 of the General Corporation Law of the State of Delaware.
7. That the Certificate of Incorporation of the Corporation, as hereby
restated, is as follows:
ARTICLE I
The name of the corporation is Medicis Pharmaceutical Corporation (the
"Corporation").
ARTICLE II
The address of the registered agent of the Corporation in the State of Delaware
is 1209 Orange Street, City of Wilmington, County of New Castle. Delaware 19801.
The name of the registered agent of the Corporation at such address is The
Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware, and the Corporation shall have all powers necessary to engage in such
acts or activities, including, but not limited to, the powers enumerated in the
General Corporation Law of Delaware or any amendment thereto.
ARTICLE IV
SECTION 1. AUTHORIZED SHARES.
The total number of Shares of all classes that the Corporation is authorized to
issue is 156,000,000, consisting of 150,000,000 shares of Class A Common Stock,
par value $.014 per share ("Class A Common Stock"); 1,000,000 shares of Class B
Common Stock, par value $.014 per share ("Class D Common Stock"); and 5,000,000
Preferred Stock, par value $.01 per share ("Preferred Stock").
SECTION 2. CLASS A COMMON STOCK AND CLASS B COMMON STOCK.
(A) General. The designations, preferences, limitations and relative rights of
the Class A Common Stock and the Class B Common Stock shall be in all respects
identical, except as stated in this Certificate of Incorporation or as otherwise
required by law.
(B) Voting Rights.
(1) At each meeting of stockholders of the Corporation and upon each
proposal presented at such meeting, every holder of Class A Common Stock
shall be entitled to one vote in person or by proxy for each share of
Class A Common Stock standing in his or her name on the stock transfer
records of the Corporation, and every holder of Class B Common Stock shall
be entitled to ten votes in person or by proxy for each share of Class B
Common Stock standing in his or her name on the stock transfer records of
the Corporation.
(2) Except as provided in this Paragraph (B) or Paragraph (C) of this
Section 2 or as may be otherwise required by law, the holders of Class A
Common Stock and Class B Common Stock shall vote together as a single
class with respect to all matters.
(3) Except as may be otherwise required by law or stated in any Preferred
Stock Designation (as defined in Section 3 of this Article IV), the
holders of Class A Common Stock and Class B Common Stock shall have the
exclusive right to vote for the election of directors and for all other
purposes, each holder of the Class A Common Stock and Class B Common Stock
being entitled to vote as provided in this Paragraph (B) of this Section
2.
(C) Dividends and Distributions. Subject to the rights of the holders of
Preferred Stock, and subject to any other provisions of this Certificate of
Incorporation, as it may be amended from time to time, holders of Class A Common
Stock and Class B Common Stock shall be entitled to receive such dividends and
other distributions in cash, in property or in shares of the Corporation as may
be declared thereon by the Board of Directors from time to time out of assets or
funds of the Corporation legally available therefor; provided, however, that no
cash, property or share dividend or distribution may be declared or paid on the
outstanding shares of either the Class A Common Stock or the Class B Common
Stock unless an identical per share dividend or distribution is simultaneously
declared and paid on the outstanding shares of the other such class of common
stock; provided, further, however, that a dividend of shares may be declared
and paid in Class A Common Stock to holders of Class A Common Stock and in
Class B Common Stock to holders of Class B Common Stock if the number of shares
paid per share to holders of Class A Common Stock and to holders of Class B
Common Stock shall be the same. If the Corporation shall in any manner
subdivide, combine or reclassify the outstanding shares of Class A Common Stock
or Class B Common Stock, the outstanding shares of the other such class shall be
subdivided, combined or reclassified proportionally in the same manner and on
the same basis as the outstanding shares of Class A Common Stock or Class B
Common Stock, as the case may be, have been subdivided, combined or
reclassified. A dividend in shares of Class A Common Stock may be paid to the
holders of shares of any other class of the Corporation.
(D) Limited Issuances of Class B Common Stock. Unless and until the Certificate
of Incorporation is amended to permit other issuances of the Class B Common
Stock, the Corporation shall not issue additional shares of Class B Common Stock
other than the (i) 125,322 shares of Class B Common Stock authorized and
outstanding as of the date of this Certificate of Incorporation; and (ii) the
62,660 shares of Class B Common Stock reserved for issuance upon the automatic
conversion of the Corporation's Series B Automatically Convertible Preferred
Stock; except for shares of Class B Common Stock issued to holders of
outstanding shares of Class B Common Stock in connection with stock splits,
stock dividends, recapitalizations, subdivisions and other similar
distributions. All authorized but unissued shares of Class B Common Stock
(including treasury shares created upon the conversion of Class B Common Stock
to Class A Common Stock or otherwise) are specifically reserved for issuance in
such instances.
(E) Liquidation Rights. Upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, and after the holders, if any, of
the Preferred Stock, of each series shall have been paid in full the amounts to
which they respectively shall be entitled, or a sum sufficient for such payment
in full shall have been set aside, the remaining net assets of the Corporation
shall be distributed pro rata on a share for share basis to the holders of the
Class A Common Stock and Class B Common Stock, to the exclusion of the holder of
the Preferred Stock.
(F) No Conversion of Class A Common Stock. The shares of Class A Common Stock
are not convertible into or exchangeable for shares of Class B Common Stock or
any other shares or securities of the Corporation.
(G) Conversion of Class B Common Stock.
(1) Optional Conversion. Each record holder of Class B Common Stock is
entitled, at any time or from time to time, to convert any or all of the
shares of such holder's Class B Common Stock into shares of Class A Common
Stock at the ratio of one share of Class A Common Stock for each share of
Class B Common Stock.
(2) Optional Conversion Procedures.
(a) Each conversion of shares pursuant to Paragraph (G)(1) of this
Section 2 hereof shall be effected by the surrender of the
certificate or certificates representing the shares to be converted
at the principal office of the Corporation at any time during normal
business hours, together with a written notice by the holder stating
the number of shares that such holder desires to convert. Such
conversion shall be deemed to have been effected as of the close of
business on the date on which such certificate or certificates have
been surrendered, and at such time, the rights of any such holder
with respect to the converted shares of such holder will cease and
the person or persons in whose name or names the certificate or
certificates for shares are to be issued upon such conversion will
be deemed to have become the holder or holders of record of such
shares represented thereby.
(b) Promptly after such surrender, the Corporation will issue and
deliver in accordance with the surrendering holder's instructions
the certificate or certificates for the Class A Common Stock
issuable upon such conversion and a certificate representing any
Class B Common Stock which was represented by the certificate or
certificates delivered to the Corporation in connection with such
convention, but which was not converted.
(3) Automatic Conversion. Each share of Class B Common Stock will convert
automatically into one share of Class A Common Stock upon the sale or
any other transfer thereof (including, without limitation, conveyance into
a trust and transfer by the operation of any will or the laws of descent
and distribution), except upon a sale or any other transfer to a person
who immediately prior to such sale or transfer is a holder of a share or
shares of Class B Common Stock.
(4) Mandatory Conversion. In addition to the foregoing optional right of
conversion, in the event that the Board of Directors of the Corporation
duly adopts a resolution providing therefor and subject to the approval of
the holders of 3 majority of the then-outstanding shares of Class B Common
Stock voting together as a single class at a meeting of the stockholders
or at a meeting of the holders of the Class B Common Stock called for such
purpose (or by written consent in lieu of a stockholders meeting, to the
extent permitted by the applicable law of the State of Delaware), all
outstanding shares of Class B Common stock shall be converted, at the time
specified in the resolutions so adopted by the Board of Directors of the
Corporation and the holders of the then-outstanding Class B Common Stock,
respectively, or, if no time is specified, upon the approval of the
holders of a majority
of the then-outstanding Class B Common Stock, into shares of Class A
Common Stock at the ratio of one share of Class A Common Stock for each
share of Class B Common Stock. Following conversion of the Class B Common
Stock into Class A Common Stock pursuant to this Paragraph (G)(3), each
certificate representing Class B Common Stock shall for all purposes
represent an equal number of shares of Class A Common Stock, provided that
any certificate representing Class B Common Stock may be surrendered at
the principal office of the Corporation together with a written request
that the Corporation issue a certificate or certificates for the Class A
Common Stock issuable upon such conversion and the Corporation shall
thereupon issue such new certificate or certificates in accordance with
such written request.
(5) Issuance Costs. The issuance of certificates upon conversion of shares
pursuant hereto will be made without charge to the holder or holders of
such shares for any issuance tax (except stock transfer tax) in respect
thereof or other costs incurred by the Corporation in connection
therewith.
(6) Reservation of Shares. Solely for the purpose of issuance upon
conversion of such shares as herein provided, the Corporation shall at all
times reserve and keep available out of its authorized but unissued shares
of Class A Common Stock such, number of shares of Class A Common Stock as
are then issuable upon the conversion of all outstanding shares of Class B
Common Stock.
SECTION 3. PREFERRED STOCK.
(A) The Board of Directors of the Corporation is authorized, subject to any
limitations prescribed by law, to provide for the issuance of the shares of
Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware (hereinafter referred to as a "Preferred
Stock Designation") to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences
and rights of the shares of each such series and any qualifications, limitations
or restrictions thereof.
(B) Series A Junior Participating Preferred Stock. Pursuant to the authority
granted to and vested in the Board of Directors under Section 3(A) of this
Certificate of Incorporation, there has been created as of August 17, 1995, a
series of preferred stock, par value $.01 per share, denominated Series A Junior
Participating Preferred Stock, in such number, and with such rights,
preferences, privileges and limitations as are set forth in the Certificate of
Designation attached hereto and incorporated herein as Exhibit "A".
(C) Series B Automatically Convertible Preferred Stock. Pursuant to the
authority granted to and vested in the Board of Directors under Section 3(A) of
this Certificate of Incorporation, there has been created as of July 22, 1996, a
series of preferred stock, par value $.01 per share, denominated Series B
Automatically Convertible Preferred Stock, consisting of 62,660 shares and with
the following relative rights, preferences, privileges and limitations:
Section 1. The relative rights, preferences, privileges and limitations of
Series B Preferred Stock shall be identical in all respects to that of the
Corporation's Class B Common Stock and shall in no way vary from the
rights, preferences, privileges of limitations of the Class B
Common Stock, except that each share of Series B Preferred Stock shall be
automatically (and without any further action by or on behalf of the
Corporation or the holder thereof) converted into one (1) share of Class B
Common Stock immediately upon approval by the Corporation's shareholders
of an amendment to the Corporation's Certificate of Incorporation
increasing the number of authorized shares of Class B Common Stock by a
number equal to or greater than the number of outstanding and issued
shares of Series B Preferred Stock.
Section 2. Shares of Series B Preferred Stock shall be convertible into
Class A Common Stock on the same terms and conditions (including automatic
conversion upon transfer) applicable to the conversion of Class B Common
Stock into Class A Common Stock.
SECTION 4. ISSUANCES OF CLASS A COMMON STOCK, CLASS B COMMON STOCK AND PREFERRED
STOCK.
Subject to the provisions of the laws of the State of Delaware, the Corporation
may issue its Class A Common Stock, Class B Common Stock and Preferred Stock
from time to time for such consideration (not less than the par value thereof)
as may be fixed by the Board of Directors, which is expressly authorized to fix
the same in its discretion, Shares so issued for which the consideration has
been paid or delivered to the Corporation shall be deemed to be fully paid stock
and shall not be liable for any further call or assessment thereon, and the
holders of such shares shall not be liable for any further payments in respect
to such shares.
ARTICLE V
A director of the Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 174 of the Delaware General Corporation Law; or (iv)
for any transaction from which the director has derived an improper personal
benefit. If the Delaware General Corporation Law is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended. Any repeal or modification of this Article V 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.
ARTICLE VI
SECTION 1. RIGHT TO INDEMNIFICATION.
Each person who was or is made a party or is threatened to be made a party to or
is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "Proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was a officer or employee of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such Proceeding is
alleged action in an official capacity as a director, officer, employee or (if
serving for another corporation at the request of the Corporation) agent or in
any other capacity while serving as a director, officer, employee or (if serving
for another corporation at the request of the Corporation) agent, 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 amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment) against all expense, liability and loss (including attorneys fees,
judgments, fines, ERISA excise taxes or penalties and amounts to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or (if serving for another corporation at
the request of the Corporation) agent and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that except as
provided in Section 2 hereof with respect to Proceedings seeking to enforce
rights to indemnification, the Corporation shall indemnify any such person
seeking indemnification in connection with a Proceeding (or pat thereof)
initiated by such person only if such Proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 1 shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such Proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or Officer (and not in any other capacity in which service was, or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a Proceeding shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Article VI or otherwise.
SECTION 2. PAYMENT OF INDEMNIFICATION.
If a claim under Section 1 of this Article VI is not paid in full by the
Corporation within 90 days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall also be entitled to be paid the expenses of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce & claim for expenses incurred in defending any
Proceeding in advance of its final disposition where the required undertaking,
if any is required, 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 proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is 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 stockholders) that the claimant has not
met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
SECTION 3. INDEMNIFICATION NOT EXCLUSIVE
The right to indemnification and the payment of expenses incurred in defending a
Proceeding in advance of its final disposition conferred in this Article VI
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of this Certificate of Incorporation,
By-law, agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 4. INSTANCE.
The Corporation may 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 against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
ARTICLE VII
The name and mailing address of the Incorporator are: Jonah Shacknai, c/o The
Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801.
ARTICLE VIII
The business and affairs of the Corporation shall be managed by the Board of
Directors, and the directors need not be elected by ballot unless required by
the By-laws of the Corporation. The directors of the Corporation shall be
divided into three classes, the number of directors fixed by the By-laws of the
Corporation being divided equally so far as possible among the three classes;
provided, however, in no event shall the number of directors be less than three.
The term of office of one class of the directors elected at the 1995 annual
meeting of stockholders shall expire all the next succeeding annual meeting of
stockholders, the term of office of one class of the directors elected at the
1995 annual meeting of stockholders shall expire at the second succeeding annual
meeting of stockholders and the term of office of one class of the directors
elected at the 1995 annual meeting of stockholders shall expire at the third
succeeding annual meeting of stockholders, and at each annual meeting of
stockholders after the 1995 annual meeting of stockholders, the directors to be
elected at such annual meeting shall be elected for a full terra of three years
to succeed those whose terms then expire. In case of any change in the number of
directors, the increase or decrease shall be apportioned among the several
classes as nearly equally as is possible and any additional director resulting
from an increase shall be elected, and any director elected to fill a vacancy in
the Board in each case resulting from the death, disability, resignation or
removal of a director shall be elected for a term of office which shall be the
same as the term office of the other directors of the class of directors of
which such director is a member. In no case shall a decrease in the number of
directors shorten the term of office of any incumbent director. Except as
otherwise required by law, any vacancy on the Board
of Directors that results from an increase in the number of directors shall be
filled only by a majority of the Board of Directors then in office, provided
that a quorum is present, and any other vacancy occurring in the Board of
Directors shall be filled by a majority of the directors then in office, even if
less than a quorum, or by a sole remaining director. Any director elected to
fill a vacancy not resulting from an increase in the number of directors shall
have the same remaining term as that of his or her predecessor. Notwithstanding
the foregoing, whenever the holders of any one or more classes or series of
stock issued by the Corporation shall have the right, voting separately by class
or 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 Certificate of
Incorporation applicable thereto, such directors so elected shall not he divided
into classes pursuant to Article IX and the number of such directors shall not
be counted in determining the maximum number of directors permitted under the
foregoing provision of Article IX, in each case unless expressly provided by
such terms.
Any director elected by the stockholders or by the Board of Directors to fill a
vacancy may be removed only for cause by the affirmative vote of the holders of
a majority of all the shares of stock of the Corporation outstanding and
entitled to vote for the election of directors, given at a duly called annual
or special meeting of stockholders.
ARTICLE IX
The Board of Directors is expressly authorized to adopt, amend or repeal the
By-laws of the Corporation.
ARTICLE X
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 all rights conferred upon stockholders
herein are granted subject to this reservation,
IN WITNESS WHEREOF, the undesigned has executed this Amended and Restated
Certificate of Incorporation and caused it to be attested by its Secretary on
this 19th day of November, 2003.
/s/ Jonah Shacknai
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Jonah Shacknai
Chairman and Chief Executive Officer
ATTEST:
/s/ Mark A. Prygocki, Sr.
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Mark A. Prygocki, Sr.
Executive Vice President, Chief Financial Officer, Corporate Secretary and
Treasurer