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[FORM OF POST-IPO CHARTER]
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACADIA PHARMACEUTICALS INC.
ACADIA Pharmaceuticals Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows:
FIRST: The name of the Corporation is: ACADIA Pharmaceuticals
Inc.
SECOND: The Corporation's original Certificate of
Incorporation was filed with the Secretary of State on January 16, 1997 under
the name Receptor Technologies, Inc.
THIRD: The Amended and Restated Certificate of Incorporation
of this Corporation, in the form attached hereto as Exhibit A, has been duly
adopted by the Board of Directors and stockholders in accordance with the
provisions of Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware. At least two-thirds of each of the outstanding Series A,
Series B, Series C, Series D and Series E Preferred Stock of the Corporation,
each voting as a separate class, at least two-thirds of the outstanding Series
A, Series B, Series D and Series E Preferred Stock of the Corporation, voting as
a separate class, and at least 50% of the outstanding Common Stock and Series A,
Series B, Series C, Series D and Series E Preferred Stock of the Corporation,
voting as a separate class, approved this Restated Certificate of Incorporation
by written consent in accordance with Section 228 of the General Corporation Law
of the State of Delaware and written notice of such was given by the Corporation
in accordance with said Section 228.
FOURTH: The Amended and Restated Certificate of Incorporation
so adopted reads in full as set forth in Exhibit A attached hereto and is hereby
incorporated by reference.
IN WITNESS WHEREOF, ACADIA Pharmaceuticals Inc. has caused
this Amended and Restated Certificate of Incorporation to be signed by its Chief
Executive Officer this ____ day of ____________, 2001.
ACADIA PHARMACEUTICALS INC.
By:
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Uli Hacksell, Ph.D.,
Chief Executive Officer
1.
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EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACADIA PHARMACEUTICALS INC.
I.
The name of this Corporation is ACADIA PHARMACEUTICALS INC.
II.
The address of its registered office in the State of Delaware is
Corporation Service Company, 1013 Centre Road, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is Corporation
Service Company.
III.
The nature of the business or purposes to be conducted or promoted by
the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware (the "DGCL").
IV.
A. This 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 Fifty-Five Million
(55,000,000) shares. Fifty Million (50,000,000) shares shall be Common Stock,
each having a par value of one-hundredth of one cent ($.0001). Five Million
(5,000,000) shares shall be Preferred Stock, each having a par value of
one-hundredth of one cent ($.0001).
B. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, by filing a certificate
pursuant to the DGCL, to fix or alter from time to time the designation, powers,
preferences and 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; and to increase or decrease the number of shares of any
series subsequent to the issuance of shares of that series, but not below the
number of shares of such series then outstanding. In case the number of shares
of any series shall be decreased in accordance with the foregoing sentence, 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.
1.
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C. Each outstanding share of Common Stock shall entitle the holder
thereof to one vote on each matter properly submitted to the stockholders of the
Corporation for their vote; provided, however, that, except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this Certificate of Incorporation (including any certificate of
designation filed with respect to any series of Preferred Stock) that relates
solely to the terms of one or more outstanding series of Preferred Stock if the
holders of such affected series of Preferred Stock are entitled, either
separately or together as a class with the holders of one or more other series
of Preferred Stock, to vote thereon by law or pursuant to this Certificate of
Incorporation (including any certificate of designation filed with respect to
any series of Preferred Stock).
V.
For the management of the business and for the conduct of the affairs
of the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. BOARD OF DIRECTORS.
1. POWERS AND NUMBERS OF DIRECTORS. The management of the
business and the conduct of the affairs of the Corporation shall be vested in
its Board of Directors. The number of directors which shall constitute the whole
Board of Directors shall be fixed exclusively by one or more resolutions adopted
by the Board of Directors and not inconsistent with the Certificate of
Incorporation of the Corporation.
2. BOARD OF DIRECTORS. Subject to the rights of the holders of
any series of Preferred Stock to elect directors under specified circumstances,
following the closing of the initial public offering pursuant to an effective
registration statement under the Act, covering the offer and sale of Common
Stock to the public (the "Initial Public Offering"), the directors shall be
divided into three classes designated as Class I, Class II and Class III,
respectively. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors. At the first annual
meeting of stockholders following the closing of the Initial Public Offering,
the term of office of the Class I directors shall expire and Class I directors
shall be elected for a full term of three years. At the second annual meeting of
stockholders following the closing of the Initial Public Offering, the term of
office of the Class II directors shall expire and Class II directors shall be
elected for a full term of three years. At the third annual meeting of
stockholders following the closing of the Initial Public Offering, the term of
office of the Class III directors shall expire and Class III directors shall be
elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to
succeed the directors of the class whose terms expire at such annual meeting.
Notwithstanding the foregoing provisions of this section, each
director shall serve until his successor is duly elected and qualified or until
his death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
2.
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3. REMOVAL OF DIRECTORS.
a. Subject to the rights of any series of Preferred
Stock to elect additional directors under specified circumstances, following the
closing of the Initial Public Offering, neither the Board of Directors nor any
individual director may be removed without cause.
b. Subject to any limitation imposed by law, any
individual director or directors may be removed with cause by the affirmative
vote of the holders of a majority of the voting power of all then-outstanding
shares of capital stock of the corporation entitled to vote generally at an
election of directors.
4. VACANCIES.
a. 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.
b. If at the time of filling any vacancy or any newly
created directorship, the directors then in office shall constitute less than a
majority of the whole board (as constituted immediately prior to any such
increase), the Delaware Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent (10%) of the total
number of the shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the directors chosen by the directors
then in offices as aforesaid, which election shall be governed by Section 211 of
the DGCL.
B. BYLAWS.
1. Subject to paragraph (h) of Section 42 of the Bylaws and
subject to the rights of the holders of any series of Preferred Stock, the
Bylaws may be altered or amended or new Bylaws adopted by the affirmative vote
of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of
all of the then-outstanding shares of the voting stock of the Corporation
entitled to vote. The Board of Directors shall also have the power to adopt,
amend, or repeal Bylaws.
2. The directors of the Corporation need not be elected by
written ballot unless the Bylaws so provide.
3. 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 or by written
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consent of stockholders in accordance with the Bylaws prior to the closing of
the Initial Public Offering and following the closing of the Initial Public
Offering no action shall be taken by the stockholders by written consent.
4. Advance notice of stockholder nominations for the election
of directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
VI.
A. The liability of the directors for monetary damages shall be
eliminated to the fullest extent under applicable law.
B. Any repeal or modification of this Article VI shall be prospective
and shall not affect the rights under this Article VI in effect at the time of
the alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
VII.
A. 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 paragraph B. of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
B. 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 any
particular class or series of the Corporation required by law, this Certificate
of Incorporation or any certificate of designation filed with respect to a
series of Preferred Stock, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, amend or repeal Articles V, VI and VII.
4.
