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Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ENDO PHARMACEUTICALS HOLDINGS INC.
The undersigned, Jeffrey R. Black, certifies that he is the Chief
Financial Officer and Senior Vice President of Endo Pharmaceuticals Holdings
Inc., a corporation organized and existing under the laws of the State of
Delaware (the "Corporation"), and does hereby further certify as follows:
(1) The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on November 18,
1997;
(2) This Restated Certificate of Incorporation was duly adopted by
the Board of Directors of the Corporation in accordance with the provisions
of Sections 242 and 245 of the General Corporation Law of the State of
Delaware (the "GCL"); and
(3) The text of the Restated Certificate of Incorporation of the
Corporation, as amended hereby, is restated to read in its entirety, as
follows:
FIRST: The name of the Corporation is Endo Pharmaceuticals
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Holdings Inc.
SECOND: The address of the registered office of the Corporation in the
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State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent at that address is the Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
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act or activity for which a corporation may be organized under the GCL as set
forth in Title 8 of the Delaware Code.
FOURTH: The total number of shares of capital stock which the
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Corporation shall have authority to issue is 215,000,000 shares, consisting of
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(i) 175,000,000 shares of Common Stock, par value $.01 per share (the "Common
Stock") and (ii) 40,000,000 shares of Preferred Stock, par value $.01 per share
(the "Preferred Stock").
A. Common Stock. Except as otherwise provided in this Article
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FOURTH or as otherwise required by law, shares of Common Stock shall be
identical and shall entitle the holders thereof to the same rights and
privileges, subject to the same qualifications, limitations and restrictions.
1. Voting Rights. Except as otherwise required by
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applicable law, the holders of Common Stock will be entitled to one vote per
share on all matters to be voted on by the Corporation's Common Stockholders.
2. Dividends. When and as dividends are declared thereon,
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whether payable in cash, property or securities of the Corporation, the
holders of Common Stock will be entitled to share equally, share for share, in
such dividends.
B. Preferred Stock. The Board of Directors is expressly authorized
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to provide for the issuance of all or any shares of the Preferred Stock in one
or more classes or series, and to fix for each such class or series such voting
powers, full or limited, or no voting powers, and such distinctive designations,
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issuance of such class or series and as may be permitted by
the GCL, including, without limitation, the authority to provide that any such
class or series may be (i) subject to such mandatory or optional redemption at
such time or times and at such price or prices, or, if appropriate, not subject
to such mandatory or optional redemption, (ii) entitled to receive dividends
(which may be cumulative or non-cumulative) at such rates, on such conditions,
and at such times, and payable in preference to, or in such relation to, the
dividends payable on any other class or classes or any other series, (iii)
entitled to such rights upon the dissolution of, or upon any distribution of the
assets of, the Corporation, or (iv) convertible into, or exchangeable for,
shares of any other class or classes of stock, or of any other series of the
same or any other class or classes of stock, of the Corporation at such price or
prices or at such rates of exchange and with such adjustments, all as may be
stated in such resolution or resolutions.
FIFTH: The following provisions are inserted for the management of the
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business and the conduct of the affairs of the Corporation, and for further
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definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders
to make, alter, amend, change, add to or repeal the By-Laws of the
Corporation, as amended and restated from time to time (the "By-Laws").
(3) The number of directors of the Corporation shall not be less than
seven (7) nor more than eleven (11), the exact number of directors to be
fixed from time to time by, or in the manner provided in, the By-Laws of
the Corporation. The number of directors constituting the Board of
Directors shall be fixed at nine (9) as of the date hereof. Election of
directors need not be by written ballot unless the By-Laws so provide.
(4) No director shall be personally liable to the Corporation or any
of 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) pursuant to Section 174 of the GCL or (iv) for any
transaction from which the director derived an improper personal benefit.
Any repeal or modification of this Article FIFTH 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 with respect to acts or omissions occurring prior to such
repeal or modification.
(5) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the GCL, this Certificate of Incorporation, and any By-Laws
adopted by the stockholders; provided, however, that no By-Laws hereafter
adopted by the stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been adopted.
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SIXTH: The Corporation shall indemnify its directors and officers to
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the fullest extent authorized or permitted by law, as now or hereafter in
effect, and such right to indemnification fication shall continue as to a person
who has ceased to be a director or officer of the Corpora tion and shall inure
to the benefit of his or her heirs, executors and personal and legal
representatives; provided, however, that, except for proceedings to enforce
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rights to indemnification, the Corporation shall not be obligated to indemnify
any director or officer (or his or her heirs, executors or personal or legal
representatives) in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented
to by the Board of Directors. The right to indemnification conferred by this
Article SIXTH shall include the right to be paid by the Corporation the expenses
incurred in defending or otherwise participating in any proceeding in advance of
its final disposition.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the advancement of
expenses to employ ees and agents of the Corporation similar to those conferred
in this Article SIXTH to directors and officers of the Corporation.
The rights to indemnification and to the advance of expenses conferred
in this Article SIXTH shall not be exclusive of any other right which any person
may have or hereafter acquire under this Certificate of Incorporation, the By-
Laws, any statute, agreement, vote of stockholders or disinterested directors or
otherwise.
Any repeal or modification of this Article SIXTH by the stockholders
of the Corporation shall not adversely affect any rights to indemnification and
to the advancement of expenses of a director or officer of the Corporation
existing at the time of such repeal or modification with respect to any acts or
omissions occurring prior to such repeal or modification.
SEVENTH: Meetings of stockholders may be held within or without the
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State of Delaware, as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws.
EIGHTH: The Corporation hereby elects not to be governed by Section
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203 of the GCL pursuant to Section 203(b)(3) therein.
NINTH: The Corporation reserves the right to amend, alter, change or
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repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter
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prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
I, THE UNDERSIGNED, do make this Certificate, hereby declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 17th day of July, 2000.
/s/ Jeffrey R. Black
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Name: Jeffrey R. Black
Title: Chief Financial Officer
and Senior Vice President
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