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Exhibit 3.1
FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
VERSICOR INC.
VERSICOR, INC., a corporation duly organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
as follows:
1. The original name of this corporation is Sepracor
Combinatorial Chemistry Corporation and the date of filing of its original
Certificate of Incorporation with the Secretary of the State of Delaware was
May 2, 1995. A Certificate of Amendment was filed with the Secretary of State
of Delaware on August 31, 1995 changing the name of the Corporation to
Versicor Inc. A Certificate of Amendment was filed with the Secretary of
State of Delaware on December 30, 1996. A Certificate of Amendment was filed
with the Secretary of State of Delaware on August 28, 1997. A Restated
Certificate was filed with the Secretary of State of Delaware on December 3,
1997. The Second Restated Certificate was filed with the Secretary of State
of Delaware on March 25, 1999. The Third Restated Certificate of
Incorporation of the Corporation was filed with the Delaware Secretary of
State of Delaware on October 28, 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) of the Third Restated Certificate of Incorporation) 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.
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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 number of shares of stock which the Corporation shall have
authority to issue is one hundred five million (105,000,000) shares, consisting
of one hundred million (100,000,000) shares of Common Stock, par value $.001 per
share, and five million (5,000,000) shares of Preferred Stock, par value $.01
per share.
(b) THE RIGHTS, PREFERENCES, PRIVILEGES, RESTRICTIONS AND OTHER MATTERS
RELATING TO THE COMMON STOCK.
(1) 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.
(2) 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.
(3) 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.
(1) 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.
(2) 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
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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 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
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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.
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 2001; each initial director in Class II
shall hold office until the annual meeting of stockholders in 2002; and each
initial director in Class III shall hold office until the annual meeting of
stockholders in 2003.
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
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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 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; except that any amendment of the authorized
number of directors shall require the approval of the holders
of shares of the Corporation representing at least 75% of the
shares their entitled to vote thereon.
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(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.
(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
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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.
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.
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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 Vice President, Finance and Chief
Financial Officer in Fremont, California this ___ day of __________ 2000.
ATTEST:
By: _____________________________________ By: ___________________________
George F. Horner III Dov A. Goldstein
President and Chief Executive Officer Vice President, Finance and
Chief Financial Officer
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