Exhibit 3(i).1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SCICLONE PHARMACEUTICALS, INC.
SciClone Pharmaceuticals, Inc. (the "Corporation"), a corporation organized
and existing under the General Corporation Law of the State of Delaware, does
hereby certify as follows:
1. The Corporation was originally incorporated pursuant to an
original Certificate of Incorporation filed with the Secretary of State of the
State of Delaware on June 26, 2003.
2. This Amended and Restated Certificate of Incorporation has been
duly adopted in accordance with Sections 242 and 245 of the General Corporation
Law and restates, integrates and further amends the provisions of the
Certificate of Incorporation of the Corporation.
3. The Corporation's Certificate of Incorporation is hereby amended
and restated to read in its entirety as follows:
FIRST:
The name of this corporation is SciClone Pharmaceuticals, Inc. (hereinafter
the "Corporation").
SECOND:
The address of the registered office of the Corporation in the State
of Delaware is Incorporating Services, Ltd., 15 East North Street, in the City
of Dover, County of Kent. The name of the registered agent at that address is
Incorporating Services, Ltd.
THIRD:
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
FOURTH:
A. The Corporation is authorized to issue two classes of stock to be
designated respectively "Common Stock" and "Preferred Stock." The total number
of shares which the Corporation is authorized to issue is eight-five million
(85,000,000) shares. Seventy-five million (75,000,000) shares shall be Common
Stock, each having a par value of one-tenth of one cent ($0.001). Ten million
(10,000,000) shares shall be Preferred Stock, each having a par value of one
tenth of one cent ($0.001).
B. Any Preferred Stock not previously designated as to series may be
issued from time to time in one or more series pursuant to a resolution or
resolutions providing for such issue duly adopted by the Board of Directors
(authority to do so being hereby expressly vested in the Board), and such
resolution or resolutions shall also set forth the voting powers, full or
limited or none, of each such series of Preferred Stock and shall fix the
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designations, preferences and relative, participating, optional or other special
rights of each such series of Preferred Stock and the qualifications,
limitations or restrictions of such powers, designations, preferences or rights.
The Board of Directors is authorized to alter the powers, designation,
preferences, rights, qualifications, limitations and restrictions granted to or
imposed upon any wholly unissued series of Preferred Stock and, within the
limits and restrictions stated in any resolution or resolutions of the Board of
Directors originally fixing the number of shares constituting any series of
Preferred Stock, to increase or decrease (but not below the number of shares of
any such series then outstanding) the number of shares of any such series
subsequent to the issue of shares of that series.
FIFTH:
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
A. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
B. The directors of the Corporation need not be elected by
written ballot unless the By-Laws so provide.
C. Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
D. Special meetings of stockholders of the Corporation may
be called only by the Board of Directors, the Chairman of the Board
of Directors or the President, or the holders of record of not less than 25% of
all shares entitled to cast votes at the meeting.
SIXTH:
A. The number of directors that shall constitute the whole Board of
Directors shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board of
Directors for adoption). All directors shall hold office until the expiration of
the term for which elected, and until their respective successors are elected,
except in the case of the death, resignation, or removal of any director. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation or other cause (including removal from office
by a vote of the stockholders) may be filled only by a majority vote of the
directors then in office, though less than a quorum, or by a sole remaining
director, and directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders at which the term of office of the class to
which they have been elected expires, and until their respective successors are
elected, except in the case of the death, resignation, or removal of any
director.
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SEVENTH:
The Board of Directors is expressly empowered to adopt, amend or
repeal By-Laws of the Corporation. The stockholders shall also have power to
adopt, amend or repeal the By-Laws of the Corporation. Any adoption, amendment
or repeal of Bylaws of the Corporation by the stockholders shall require, in
addition to any vote of the holders of any class or series of stock of the
Corporation required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at majority of the voting power of all of the
then outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
EIGHTH:
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 involved 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 derived an
improper personal benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a director,
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 the foregoing provisions of this
Article EIGHTH 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.
NINTH:
The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner prescribed by the
laws of the State of Delaware and all rights conferred upon stockholders are
granted subject to this reservation.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by a duly authorized officer
on this 16th day of July, 2003.
SCICLONE PHARMACEUTICALS, INC.
/s/ Donald R. Sellers
------------------------------------------
Donald R. Sellers, Chief Executive Officer
and President
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