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EXHIBIT 3.1
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
ARENA PHARMACEUTICALS, INC.
ARENA PHARMACEUTICALS, INC. a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. The original name of this corporation is Arena Pharmaceuticals, Inc.
and the date of filing the original Certificate of Incorporation of this
corporation with the Secretary of State of the State of Delaware is April 14,
1997. The Certificate of Incorporation was amended and restated on June 26,
1997, November 26, 1997 and January 29, 1999;
2. This Fourth Amended and Restated Certificate of Incorporation
restates and amends the Third Amended and Restated Certificate of Incorporation
of the Company, as amended to date. This Fourth Amended and restated Certificate
of Incorporation was duly adopted by the directors and stockholders of the
Company in accordance with the applicable provisions of Sections 228, 242 and
245 of the Delaware General Corporation Law;
3. The Third Amended and Restated Certificate of Incorporation of this
corporation as amended to date is hereby amended and restated in its entirety to
read as follows:
ARTICLE I.
The name of the corporation is Arena Pharmaceuticals, Inc. (the
"Corporation").
ARTICLE II.
The address of the registered office of the Corporation in the State of
Delaware is:
Corporation Service Company
1013 Centre Road
Wilmington, DE 19805
County of New Castle
The name of the Corporation's registered agent at said address is the
Corporation Service 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 General Corporation
Law of the State of Delaware.
ARTICLE 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 Seventy Five Million,
(75,000,000) shares, Sixty-Seven Million Five Hundred Thousand (67,500,000)
shares of which shall be Common Stock (the "Common Stock") and Seven Million,
Five Hundred Thousand, (7,500,000) shares of which shall be Preferred Stock (the
"Preferred Stock"). The Preferred Stock shall have a par value of $.0001 per
share and the Common Stock shall have a par value of $.0001 per share.
B. The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares of Common Stock then outstanding)
by the affirmative vote of the holders of a majority of the stock of the
Corporation.
C. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, within the limitations and
restrictions stated in this Restated Certificate of Incorporation, to fix or
alter the dividend rights, dividend rate, conversion rights, voting rights,
rights and terms of redemption (including sinking fund provisions), the
redemption price or prices, the liquidation preferences of any wholly unissued
series of Preferred Stock, and the number of shares constituting any such series
and the designation thereof, or any of them; and to increase or decrease the
number of shares of any series subsequent to the issue 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 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.
The Company shall, to the fullest extent permitted by Section 145 of the
Delaware General Corporation Law, as the same may be amended and supplemented,
indemnify any and all persons whom it shall have power to 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. Such indemnification shall be
mandatory and not discretionary.
The Company shall to the fullest extent permitted by the Delaware
General Corporation Law advance all costs and expenses (including, without
limitation, attorneys' fees and expenses) incurred by any director or officer
within 15 days of the presentation of same to the Company, with respect to any
one or more actions, suits or proceedings,
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whether civil, criminal, administrative or investigative, so long as the Company
receives from the director or officer an unsecured undertaking to repay such
expenses if it shall ultimately be determined that such director or officer is
not entitled to be indemnified by the Company under the Delaware General
Corporation Law. Such obligation to advance costs and expenses shall be
mandatory, and not discretionary, and shall include, without limitation, costs
and expenses incurred in asserting affirmative defenses, counterclaims and
crossclaims. Such undertaking to repay may, if first requested in writing by the
applicable director or officer, be on behalf of (rather than by) such director
or officer, provided that in such case the Company shall have the right to
approve the party making such undertaking.
The indemnification and advancement of expenses provided for herein
shall not be deemed exclusive of any other rights to which those indemnified or
entitled to advancement of expenses may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his or her 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 a person.
ARTICLE VI.
A. A director of the corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for any 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 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 amended after
approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
B. Any repeal or modification of this Article IV shall only be
prospective and shall not effect the rights under this Article IV in effect at
the time of the alleged occurrence of any action or omission to act giving rise
to liability.
ARTICLE VII.
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:
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A. 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 by the Board
of Directors in the manner provided in the Bylaws.
B. The Board of Directors may from time to time make, amend, supplement
or repeal the Bylaws; provided, however, that the stockholders may change or
repeal any Bylaw adopted by the Board of Directors by the affirmative vote of
the holders of a majority of the voting power of all of the then outstanding
shares of the capital stock of the Corporation; and, provided further, that no
amendment or supplement to the Bylaws adopted by the Board of Directors shall
vary or conflict with any amendment or supplement thus adopted by the
stockholders.
C. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
4. This Restated Certificate of Incorporation has been duly approved by
the Board of Directors of this Corporation.
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IN WITNESS WHEREOF, Arena Pharmaceuticals, Inc. has caused this Fourth
Amended and Restated Certificate of Incorporation to be signed by the President
and the Secretary on July __, 2000.
ARENA PHARMACEUTICALS, INC.
By:________________________________
Jack Lief,
President and Chief Executive Officer
By:_________________________________
Richard P. Burgoon, Jr.,
Senior Vice President, Operations
General Counsel and Secretary
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