Exhibit 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CYGNUS, INC.
CYGNUS, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware DOES HEREBY CERTIFY:
FIRST: The original Certificate of Incorporation of CYGNUS
THERAPEUTIC SYSTEMS, INC. was filed with the Secretary of State of Delaware
on March 15, 1994. The corporate name was changed to CYGNUS, INC. in the
Agreement and Plan of Merger filed with the Secretary of State of Delaware on
September 11, 1995.
SECOND: The Amended and Restated Certificate of Incorporation of
CYGNUS, INC. has been duly adopted in accordance with the provisions of
Sections 245 and 242 of the General Corporation Law of the State of Delaware
by the directors of the Corporation and such Amended and Restated Certificate
of Incorporation shall be amended and restated to read in full as follows:
I.
The name of the corporation is CYGNUS, INC. (the "Corporation").
II.
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle and
the name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
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.
IV.
The Corporation is authorized to issue two classes of shares to be
designated respectively Common Stock and Preferred Stock. The total number of
shares of all classes of stock which the Corporation has authority to issue
is Sixty Million (60,000,000) shares, consisting of Fifty-five Million
(55,000,000) shares of Common Stock, each having a par value of one-tenth of
one cent ($.001) (the "Common Stock") and Five Million (5,000,000) shares of
Preferred Stock, each having a par value of one-tenth of one cent ($.001)
(the "Preferred Stock").
As to the Preferred Stock of the Corporation, the Board of Directors
shall have the power to issue any additional shares of Preferred Stock from
time to time in one or more series. The Board of Directors is hereby
authorized to fix or alter from time to time the voting powers and such
designations, preferences and relative, participating, optional or other
special rights of the shares of each such series and the qualifications,
limitations or restrictions of any wholly unissued series of Preferred Stock,
and to establish from time to time the number of shares constituting any such
series, or any of them.
1.
The Board of Directors is further authorized to increase or decrease
(but not below the number of shares of any such series then outstanding) the
number of shares of any series, the number of which was fixed by it,
subsequent to the issue of shares of such series then outstanding, subject to
the limitations and restrictions stated in the resolution of the Board of
Directors originally fixing the number of shares of such series. If the
number of shares of any series is so decreased, then the shares constituting
such decrease shall resume the status which they had prior to the adoption of
the resolution originally fixing the number of shares of such series.
V.
The Corporation is to have perpetual existence.
VI.
The election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
VII.
The number of directors which constitute the whole Board of
Directors of the Corporation shall be designated in the Bylaws of the
Corporation. Subject to the rights of the holders of any series of Preferred
Stock, no director shall be removed without cause. Subject to any limitations
imposed by law, the Board of Directors or any individual director may be
removed from office at any time with cause by the affirmative vote of the
holders of a majority of the voting power of all the then-outstanding shares
of voting stock of the Corporation entitled to vote at an election of
directors.
VIII.
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 Bylaws of the Corporation. Subject to Section 6.1 of the
Bylaws, the Bylaws may also be altered or amended or new Bylaws adopted by
the affirmative vote of least two-thirds (2/3) of the combined voting power
of all the then-outstanding shares of the Corporation entitled to vote.
IX.
To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or as may hereafter be amended, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director.
Neither any amendment nor repeal of this Article, nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article, shall eliminate or reduce the effect of this Article in respect of
any matter occurring, or any cause of action, suit or claim that, but for
this Article, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
X.
Each director shall serve until his or her successor is duly elected
and qualified or until his or her death, resignation or removal. No decrease
in the number of directors constituting the Board of Directors shall shorten
the term of any incumbent director. No stockholder will be permitted to
cumulate votes at any election of directors.
2.
Subject to the rights of the holders of any series of Preferred
Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes, and any newly created
directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such
vacancies or newly created directorships shall be filled by the stockholders,
except as otherwise provided by law, be filled only by the affirmative vote
of a majority of the directors then in office, even though less than a quorum
of the Board of Directors, and not by the stockholders. Any director elected
in accordance with the preceding sentence shall hold office for the remainder
of the full term of the director for which the vacancy was created or
occurred and until such director's successor shall have been elected and
qualified.
XI.
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) 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 Bylaws of the Corporation.
XII.
No action shall be taken by the stockholders of the Corporation
except at an annual or special meeting of stockholders called in accordance
with the Bylaws and no action shall be taken by the stockholders by written
consent in lieu of a meeting.
XIII.
Notwithstanding any other provisions of this Certificate of
Incorporation 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 of Incorporation, 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
entitled to vote shall be required to alter, amend or repeal Articles VI,
VII, VIII, IX, X, XI, XII, XIII or any provision thereof.
XIV.
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, except as provided in Article XIII,
and all rights conferred upon stockholders herein are granted subject to this
reservation.
The undersigned hereby acknowledges that the foregoing Certificate is
his act and deed and that the facts stated herein are true.
/S/ JOHN C. HODGMAN
-----------------------------------------------
John C. Hodgman
President, Chief Executive Officer and Director
Dated: May 12, 1999
3.