Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF ATLANTIC PHARMACEUTICAL, INC.
[as amended through September 25, 2003]
I, the sole director, for purposes of restating the Certificate of
Incorporation of Atlantic Pharmaceuticals, Inc., a Delaware corporation which
has not received payment for any of its stock and which was originally
incorporated on May 18, 1993 under this same name (the "Corporation"), hereby
certificate as follows:
1. This Restated Certificate of Incorporation of the Corporation has been
duly adopted in accordance with the provisions of Sections 241 and 245 of the
General Corporation Law of the State of Delaware.
2. The text of the Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
FIRST: The name of the corporation is Manhattan Pharmaceuticals, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle, and the name of its registered agent at that address is The
Corporation Trust Company.
THIRD: 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 the State of Delaware.
FOURTH: A. The corporation is authorized to issue two classes of stock
designated "Common Stock" and "Preferred Stock," respectively. The total number
of shares of Common Stock authorized to be issued is 150,000,000, and each such
share will have a par value of $0.001. The total number of shares of Preferred
Stock authorized to be issued is 10,000,000, and each such share will have a par
value of $0.001.
B. Effective 12:01 a.m. on September 25, 2003 (the "Effective Time")
every five (5) shares of Common Stock of the Corporation issued and
outstanding immediately prior to the Effective Time ("Old Common Stock")
shall automatically be combined, without any action on the part of the
holder thereof, into one (1) share of fully paid and nonassessable Common
Stock of the Corporation ("New Common Stock"), subject to the treatment of
fractional share interests described below.
C. Following the Effective Time, each holder of Old Common Stock
shall be entitled to receive upon surrender of such holder's
certificate(s) representing Old Common Stock (whether one or more, "Old
Certificates") for cancellation pursuant to procedures adopted by the
Corporation, a certificate(s) representing the number of whole shares of
New Common Stock (whether one or more, "New Certificates") into which and
for which the shares of Old Common Stock formerly represented by such Old
Certificates so surrendered are reclassified under the terms hereof. From
and after the Effective Time, until surrendered for exchange, each
outstanding Old Certificate shall be deemed for all purposes to represent
(i) the whole number of shares of New Common Stock into which the Old
Common Stock represented by such Old Certificate shall be combined, and
(ii) the right to receive New Certificates and, where applicable, cash in
lieu of fractional shares, as provided below.
D. No fractional shares of Common Stock of the Corporation shall be
issued. No stockholder of the Corporation shall transfer any fractional
shares of Common Stock of the Corporation. The Corporation shall not
recognize on its stock record books any purported transfer of any
fractional share of Common Stock of the Corporation. A holder of Old
Certificates at the Effective Time who would otherwise be entitled to a
fraction of a share of New Common Stock shall, in lieu thereof, be
entitled to receive a cash payment in an amount equal to the fraction to
which the stockholder would otherwise be entitled multiplied by the last
reported per share sale price of the Common Stock on the day immediately
prior to the Effective Time, as reported on the Over-the-Counter Bulletin
Board (or if such price is not available, then such other price as
determined by the Board of Directors).
E. Shares of Preferred Stock may be issued from time to time in one
or more series. The Board of Directors is hereby authorized, by adopting
appropriate resolutions and causing one or more certificates of amendment
to be signed, verified and delivered in accordance with the General
Corporation Law, to establish from time to time the number of shares to be
included in such series, and to fix the designations, relative rights,
preferences and limitations of the shares of each such series. Such
designations, relative rights, preferences and limitations may include,
but are not limited to, the fixing or alteration of the dividend rights,
dividend rate, conversion rights, exchange rights, voting rights, rights
and terms of redemption (including sinking fund provisions), the
redemption price or prices, and the liquidation preferences of any wholly
unissued series of shares of Preferred Stock, or any of them. In
accordance with the authority hereby granted, the Board of Directors may
increase or decrease the number of shares of any series subsequent to the
issue of shares of that series, but not above the total number of
authorized shares of Preferred Stock and not below the number of shares of
such series then outstanding. In case the number of shares of any series
shall be so decreased, the shares constituting such decrease shall resume
the status that they had prior to the adoption of the resolution
originally fixing the number of shares of such series. Except as may
otherwise be required by law or this Certificate of Incorporation, the
terms of any series of Preferred Stock may be amended without the consent
of the holders of any other series of Preferred Stock, or Common Stock.
FIFTH: The number of directors which shall constitute the whole Board of
Directors shall be fixed by, or in the same manner provided in, the Bylaws of
the Corporation.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind the Bylaws of the Corporation.
SEVENTH: Election of directors at an annual or special meeting of
stockholders need not be made by written ballot unless the Bylaws of the
Corporation shall so provide.
EIGHTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware, may, on application in a summary way
of the Corporation or of any creditor or stockholder thereof on the application
or any receiver or receivers appointed for the Corporation under the provisions
of Section 291 of Title 8 of the Delaware Code or on the application of the
trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or
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class of creditors, and/or of the stockholders or a class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, the binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders or class of stockholders, of the Corporation, as the case may be,
and also on the Corporation.
NINTH: The personal liability of directors of the Corporation is hereby
eliminated to the fullest extent permitted by paragraph 7 of Subsection (b) of
Section 102 of the General Corporation Law of the State of Delaware as the same
may be amended and supplemented.
TENTH: The Corporation shall, to the full extent permitted by Section 145
of the Delaware General Corporation Law, as amended and supplemented from time
to time, indemnify all persons whom it may indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such person.
ELEVENTH: 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 on
stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, the undersigned being the sole member of the Board of
Directors has duly executed this certificate in the name and on behalf of
Atlantic Pharmaceuticals, Inc., and affirms that the statements made herein are
true under the penalties of perjury, this 1st day of July, 1990.
ATLANTIC PHARMACEUTICALS, INC.
By: /s/ Lindsay A. Rosenwald
-------------------------------------
Name: Lindsay A. Rosenwald
Title: Sole Director
[Including amendments filed on or about September 5, 1995, October 6, 1998,
February 21, 2003 and September 22, 2003, all of which are reflected in the
above Restated Certificate of Incorporation.]
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