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FOURTH RESTATED CERTIFICATE OF INCORPORATION
OF
VERSICOR INC.
Pursuant to the provisions of Section 242 of the General
Corporation Law of the State of Delaware (the "DGCL"), Versicor Inc. (the
"Corporation") hereby certifies as follows:
1. The Third Restated Certificate of Incorporation of the
Corporation was filed with the Delaware Secretary of State on October 29, 1999
(the "Certificate of Incorporation").
2. This Fourth Restated Certificate of Incorporation amends
and restates the provisions of the Third Restated Certificate of Incorporation
of the Corporation. This Fourth Restated Certificate of Incorporation has been
duly adopted in accordance with the provisions of Sections 228, 242 and 245 of
the DGCL and the Certificate of Incorporation of the Corporation by the Board of
Directors and stockholders of the Corporation. A majority of the outstanding
shares of Common Stock and the holders of the requisite number of Series
Preferred (as defined in section C.(iii)) approved this Fourth Restated
Certificate of Incorporation by written consent in accordance with Section 228
of the DGCL and written notice of such was given by the Corporation in
accordance with said Section 228.
3. The text of the Certificate of Incorporation of the
Corporation is hereby restated and amended to read in its entirety as follows:
ARTICLE I
The name of the Corporation is Versicor Inc.
ARTICLE II
The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street in the City of Wilmington, County of New
Castle. The name of its registered agent 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 a corporation may be organized under the DGCL.
ARTICLE IV
A. CLASSES OF STOCK. This Corporation is authorized to issue
two classes of stock to be designated, respectively, "Common Stock" and
"Preferred Stock." The total
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number of shares of stock which the Corporation shall have authority to issue
is forty-nine million two hundred ninety-two thousand one hundred and eleven
(49,292,111) shares, consisting of thirty-five million (35,000,000) shares of
which shall be shares of Common Stock, of the par value of $.001 per share,
and fourteen million two hundred ninety-two thousand one hundred eleven
(14,292,111) shares of Preferred Stock, of the par value of $.001 per share.
B. THE RIGHTS, PREFERENCES, PRIVILEGES, RESTRICTIONS AND OTHER
MATTERS RELATING TO THE COMMON STOCK.
(i) VOTING RIGHTS. The holder of each share of Common
Stock shall have the right to one (1) vote for each such share, and shall be
entitled to notice of any stockholders' meeting in accordance with the Bylaws
of this Corporation, and shall be entitled to vote upon such matters and in
such manner as may be provided by law; provided, however, that
notwithstanding Section 242(b)(2) of the DGCL, such holders shall not be
entitled to vote separately as a class upon any proposed amendment or
alteration of the Corporation's Certificate of Incorporation that would
increase the aggregate number of authorized shares of Common Stock of the
Corporation.
(ii) LIQUIDATION RIGHTS. Upon any liquidation, dissolution
or winding up of the affairs of the Corporation, the holders of the Common
Stock shall be entitled to receive all remaining assets of the Corporation
distributed ratably among such holders.
(iii) DIVIDENDS. Dividends may be paid on the Common Stock
as and when declared by the Board of Directors out of funds legally available
therefor.
(C) PREFERRED STOCK.
(i) The Board of Directors may classify any unissued
shares of Preferred Stock and reclassify any previously classified but
unissued shares of Preferred Stock of any series from time to time, in one or
more series of stock.
(ii) The shares of Preferred Stock may be issued from time
to time in one or more series. The Board of Directors is hereby expressly
authorized to fix and determine by resolution or resolutions the number of
shares of each series of Preferred Stock and the designation thereof, and
voting and other powers, preferences and relative, participating, optional or
other special rights, if any, with such qualifications, limitations or
restrictions on such powers, preferences and rights, if any, as shall be
stated in the resolution or resolutions providing for the issue of such
series of Preferred Stock as may be adopted from time to time by the Board of
Directors prior to the issuance of any shares thereof, in accordance with the
DGCL, and to the full extent permitted thereby; including, without
limitation, any dividend rights, dividend rates, conversion rights and terms,
voting rights, redemption rights and terms (including any sinking fund
provisions), redemption price(s) and terms, and rights in the event of
liquidation, dissolution or distribution of assets. Subject to any
limitations or restrictions stated in any resolution or resolutions of the
Board of Directors originally fixing the number of shares constituting any
series, the Board of Directors may by resolution or resolutions likewise
adopted
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increase or decrease (but not below the number of shares of such series then
outstanding) the number of any such series subsequent to the issuance of
shares of that series, and in case the number of shares of any series shall
be so decreased, 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.
ARTICLE V
No holder of any stock of the Corporation shall be entitled
as of right to purchase or subscribe for any part of any stock of the
Corporation authorized by this Certificate of Incorporation or of any
additional stock of any class to be issued by reason of any increase of the
authorized stock of the Corporation, or of any bonds, certificates of
indebtedness, debentures or other securities convertible into stock of the
Corporation, but any stock authorized by this Certificate of Incorporation,
or any such additional authorized issue of new stock or of securities
convertible into stock may be issued and disposed of by the Board of
Directors to such persons, firms, corporations or associations for such
consideration and upon such terms and in such manner as the Board of
Directors may in their discretion determine, without offering any thereof on
the same terms or on any terms to the stockholders then of record or to any
class of stockholders, unless the Board of Directors, in its sole discretion,
elects to do so.
ARTICLE VI
A. The Corporation shall be entitled to treat the person in
whose name any share, right or option is registered as the owner thereof, for
all purposes, and shall not be bound to recognize any equitable or other
claim to or interest in such share, right or option on the part of any other
person, whether or not the Corporation shall have notice thereof, save as may
be expressly provided by the laws of the State of Delaware.
B. A director shall be fully protected in relying in good
faith upon the books of account of the Corporation or statements prepared by
any of its officials as to the value and amount of the assets, liabilities
and/or net profits of the Corporation, or any other facts pertinent to the
existence and amount of surplus or other funds from which dividends might
properly be declared and paid.
C. Without action by the stockholders, the shares of stock may
be issued by the Corporation from time to time for such consideration not
less than the par value thereof, as may be fixed from time to time by the
Board of Directors thereof, and any and all such shares so issued, the full
consideration for which has been paid or delivered, shall be deemed fully
paid stock and not liable to any further call or assessment thereon, and the
holder of such shares shall not be liable for any further call or assessment
thereon or for any further payment thereon.
ARTICLE VII
The Corporation is to have perpetual existence.
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ARTICLE VIII
The private property of the stockholders shall not be subject
to the payment of corporate debts to any extent whatsoever.
ARTICLE IX
A. All corporate powers shall be exercised by the Board of
Directors, except as otherwise provided by statute or by this Certificate of
Incorporation.
B. Elections of directors need not be by ballot.
C. The Board of Directors shall consist of such number of
directors as shall be determined from time to time in the manner provided by
the Bylaws.
D. The Board of Directors shall be and is divided into three
classes, Class I, Class II and Class III, which shall be as nearly equal in
number as possible. Each director shall serve for a term ending on the date
of the third annual meeting following the annual meeting at which such
director is elected; provided, however, that each initial director of Class I
shall hold office until the annual meeting of stockholders in 2000; each
initial director in Class II shall hold office until the annual meeting of
stockholders in 2001; and each initial director in Class III shall hold
office until the annual meeting of stockholders in 2002.
E. In the event of any increase or decrease in the authorized
number of directors, (i) each director then serving as such shall
nevertheless continue as a director of the class of which he is a member
until the expiration of his current term, or his prior death, retirement,
resignation or removal, and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be apportioned
by the Board of Directors among the three classes of directors so as to
maintain such classes as nearly equal as possible.
F. Notwithstanding any of the foregoing provisions of this
Certificate of Incorporation, each director shall serve until his successor
is elected and qualified, or until his death, retirement, resignation or
removal. Should a vacancy occur or be created, whether arising through death,
resignation or removal of a director, or through an increase in the number of
directors of any class, such vacancy shall be filled by a majority vote of
the remaining directors of the class in which such vacancy occurs or by the
sole remaining director of that class if only one such director remains, or
by the majority vote of the members of the remaining classes if no such
director remains. A director so elected to fill a vacancy shall serve for the
remainder of the then present term of office of the class to which he is
elected.
G. Notwithstanding any of the provisions of this Certificate
of Incorporation, whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors of the Corporation
by the provisions of this Certificate of
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Incorporation or any resolution or resolutions of the Board of Directors
fixing the terms and provisions of such class or series, vacancies and newly
created directorships of such class or classes or series may be filled by a
majority of the directors elected by such class or classes or series thereof
then in office, or by the sole remaining director so elected.
H. Subject to the rights of holders of one or more classes or
series of Preferred Stock to elect one or more directors, any director, or
the entire Board of Directors, may be removed from office at any time, but
only for cause and then only by the affirmative vote of the holders of at
least 75% of the votes entitled to be cast in the election of directors. For
the purpose of this paragraph, "cause" shall mean with respect to any
particular director a final judgment of a court of competent jurisdiction
holding that such director caused demonstrable, material harm to the
Corporation through bad faith or active and deliberate dishonesty.
I. Any amendment, alteration or repeal of this Article IX or
any provision hereof shall require the approval of the holders of the shares
of the Corporation representing at least 75% of the shares then entitled to
vote thereon.
J. IN FURTHERANCE AND NOT IN LIMITATION OF THE POWERS
CONFERRED BY STATUTE, THE BOARD OF DIRECTORS IS EXPRESSLY AUTHORIZED:
(a) To fix, determine and vary from time to time the amount to
be maintained as surplus and the amount or amounts to be set
apart as working capital.
(b) To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper
purpose and/or to abolish any such reserve in the manner in
which it was created.
(c) To make, amend, alter, change, add to or repeal Bylaws for
the Corporation without any action on the part of the
stockholders. The Bylaws made by the directors may be amended,
altered, changed, added to or repealed by the stockholders.
(d) To authorize and cause to be executed mortgages and liens,
without limit as to amount, upon the real and personal
property of the Corporation, including after-acquired
property.
(e) From time to time to determine whether and to what extent,
at what time and place, and under what conditions and
regulations the accounts and books of the Corporation or any
of them shall be open to the inspection of any stockholders;
and no stockholder shall have any right to inspect any account
or book or document of the Corporation except as conferred by
statute or Bylaws or as authorized by a resolution of the
stockholders or Board of Directors.
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(f) To authorize the payment of compensation to the directors
for services to the Corporation, including fees for attendance
at meetings of the Board of Directors, of the Executive
Committee, and of other committees, and to determine the
amount of such compensation and fees.
ARTICLE X
A. A director of the Corporation shall not be disqualified by
his office from dealing or contracting with the Corporation either as a
vendor, purchaser or otherwise, nor shall any transaction or contract of the
Corporation be void or voidable by reason of the fact that any director or
any firm of which any director is a member or any corporation of which any
director is a stockholder, officer or director, is in any way interested in
such transaction or contract, provided that such transaction or contract is
or shall be authorized, ratified or approved either (1) by a vote of a
majority of a quorum of the Board of Directors or of the Executive Committee,
without including in such majority or quorum any director so interested or
member of a firm so interested, or a stockholder, officer or director of a
corporation so interested, or (2) by the written consent of the holders of
record of a majority of all the outstanding shares of stock of the
Corporation entitled to vote or the affirmative vote of the holders of a
majority of the stock of the Corporation represented at any meeting at which
a quorum is present, nor shall any director be liable to account to the
Corporation for any profits realized by or from or through any such
transaction or contract of the Corporation authorized, ratified or approved
as aforesaid by reason of the fact that he, or any firm of which he is a
member or any corporation of which he is a stockholder, officer or director
was interested in such transaction or contract. Nothing herein contained
shall create liability in the events above described or prevent the
authorization, ratification or approval of such transactions or contracts in
any other manner permitted by law.
B. Any contract, transaction or act of the Corporation or of
the Board of Directors which shall be ratified by the affirmative vote of the
holders of a majority of the stock of the Corporation represented at any
meeting at which a quorum is present and which is called for that purpose,
shall be as valid and binding as though ratified by every stockholder of the
Corporation; provided, however, that any failure of the stockholders to
approve or ratify such contract, transaction or act, when and if submitted,
shall not be deemed in any way to invalidate the same or to deprive the
Corporation, its directors or officers of their right to proceed with such
contract, transaction or action.
ARTICLE XI
A. The affirmative vote of the holders of not less than a
majority of the outstanding voting stock of the Corporation shall be required
for the approval or authorization of any: (i) merger or consolidation of the
Corporation with or into any other corporation; or (ii) sale, lease, exchange
or other disposition of all or substantially all of the assets of the
Corporation to or with any other disposition of all or substantially all of
the assets of the Corporation to or with any other corporation, person or
other entity.
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B. Any amendment, alteration or appeal of this Article XI or
any provision hereof shall require the approval of the holders of shares of
the Corporation representing at least 75% of the shares then entitled to vote
thereon.
ARTICLE XII
A. 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
DGCL, or (iv) for any transaction from which the Director derived any
improper personal benefit. The foregoing sentence notwithstanding, if the
DGCL hereafter is amended to authorize further limitations of the liability
of a director of a corporation, then a Director of the Corporation, in
addition to the circumstances in which a Director is not personally liable as
set forth in the preceding sentence, shall be held free from liability to the
fullest extent permitted by the DGCL as so amended. Any repeal or
modification of the foregoing provisions of this Article XII 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.
B. Any amendment, alteration or repeal of this Article XII or
any provision hereof shall require the approval of the holders of the shares
of the Corporation representing at least 75% of the shares then entitled to
vote thereon.
ARTICLE XIII
A. The stockholders of the Corporation shall not have the
ability to take action by written consent; any action by the stockholders of
the Corporation must be taken at an Annual Meeting or Special Meeting.
B. Any amendment, alteration or repeal of this Article XIII or
any provision hereof shall require the approval of the holders of the shares
of the Corporation representing at least 75% of the shares then entitled to
vote thereon.
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IN WITNESS WHEREOF, Versicor Inc. has caused this Fourth
Restated Certificate of Incorporation to be signed by the President and Chief
Executive Officer, and attested to by the Secretary in Fremont, California this
____ day of ___________, 2000.
ATTEST:
By: _____________________________ By: _______________________________
George F. Horner III Barclay J. Kamb
President and Chief Executive Officer Secretary
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