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EXHIBIT 3.01
FOURTH
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ATHEROGENICS, INC.
I.
CORPORATE NAME
The name of the Corporation is AtheroGenics, Inc. (the "Corporation").
II.
PURPOSE OF CORPORATION
The Corporation is organized for the purpose of engaging in any and all
lawful businesses not specifically prohibited to corporations for profit under
the laws of the State of Georgia, and the Corporation shall have all powers
necessary to conduct any such businesses and all other powers enumerated in the
Georgia Business Corporation Code (the "Code") or under any act amendatory
thereof, supplemental thereto or substituted therefor.
III.
AUTHORIZED SHARES
SECTION 3.1 CAPITAL STOCK. The Corporation is authorized to issue two
classes of stock designated "Common Stock" and "Preferred Stock." The number of
shares of Common Stock which the Corporation is authorized to issue is one
hundred million (100,000,000), the number of shares of Preferred Stock which the
Corporation is authorized to issue is five million (5,000,000).
SECTION 3.2. SHARES ACQUIRED BY THE CORPORATION. Shares of Common Stock
that have been acquired by the Corporation shall become treasury shares and may
be resold or otherwise disposed of by the Corporation for such consideration as
shall be determined by the Board of Directors, unless or until the Board of
Directors shall by resolution provide that any or all treasury shares so
acquired shall constitute authorized, but unissued shares.
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IV.
REGISTERED OFFICE AND AGENT
The street address and county of the registered office of the
Corporation is Suite 5300, 303 Peachtree Street, Atlanta, Fulton County, Georgia
30308. The registered agent at such office is Leonard A. Silverstein.
V.
PRINCIPAL OFFICE
The mailing address of the principal office of the Corporation shall be
8995 Westside Parkway, Alpharetta, Georgia 30004.
VI.
DIRECTORS
SECTION 6.1. CLASSIFICATION OF DIRECTORS: The Board of Directors shall
be divided into three classes as nearly equal in number as possible, with the
term of office of one class expiring each year. In the event that the number of
directors shall not be evenly divisible by three, the Board of Directors shall
determine in which group or groups the remaining director or directors, as the
case may be, should be included. The term of office of each director shall be
three years or until the earlier of their death, resignation or removal;
provided, however, that, the persons initially named as directors by resolution
of the Board of Directors in Group 1 shall hold office until the 2001 annual
meeting of shareholders, the persons initially named as directors by resolution
of the Board of Directors in Group 2 shall hold office until the 2002 annual
meeting of shareholders, and the persons initially named as directors by
resolution of the Board of Directors in Group 3 shall hold office until the 2003
annual meeting of the shareholders or until the earlier of their death,
resignation or removal. Election of directors need not be by ballot unless the
Bylaws of the Corporation shall so provide.
SECTION 6.2. VACANCY. Any director may resign at any time, upon written
notice to the Corporation. The entire Board of Directors or any individual
director may be removed only for cause. During the intervals between annual
meetings of shareholders, any vacancy occurring in the Board of Directors caused
by resignation, removal, death or other incapacity, and any newly created
directorships resulting from an increase in the number of directors, shall be
filled by a majority vote of the directors then in office, whether or not a
quorum. Each director chosen to fill a vacancy shall hold office for the
unexpired term in respect of which such vacancy occurred. Each director chosen
to fill a newly created directorship shall hold office until the next election
of the class for which such director shall have been chosen. When the number of
directors is changed, any newly created directorships or any decrease in
directorships shall be so apportioned among the classes as to make all classes
as nearly equal in number as possible.
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SECTION 6.3. AUTHORITY. In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is expressly authorized:
a. To make, alter or repeal the Bylaws of the Corporation.
b. To authorize and cause to be executed mortgages and liens upon
the real and personal property of the Corporation.
c. To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper purpose
and to abolish any such reserve in the manner in which it was created.
d. By resolution approved by the Board of Directors, to authorize
the issuance of any series of Preferred Stock or any debt security of
the Corporation, with full, limited or no voting power, and with such
designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions
thereof, as shall be determined by the Board of Directors.
e. By resolution approved by the Board of Directors, to designate
one or more committees, each committee to consist of two or more of the
directors of the Corporation, which, to the extent provided in the
resolution or in the Bylaws of the Corporation, shall have and may
exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of
the Corporation to be affixed to all papers which may require it. Such
committee or committees shall have such name or names as may be stated
in the Bylaws of the Corporation or as may be determined from time to
time by resolution approved by the Board of Directors.
f. When and as authorized by the affirmative vote of the holders
of a majority of the stock issued and outstanding having voting power
given at a shareholders' meeting duly called for that purpose to sell,
lease or exchange all of the property and assets of the Corporation,
including its goodwill and its corporate franchises, upon such terms
and conditions and for such consideration, which may be in whole or in
part shares of stock in, and/or other securities of, any other business
entity or entities, as its Board of Directors shall deem expedient and
for the best interests of the Corporation.
VII.
LIMITATIONS ON DIRECTOR AND OFFICER LIABILITY
No director or officer of the Corporation shall be personally liable to
the Corporation or its shareholders for monetary damages for breach of duty of
care or other duty as a director or officer, except for liability (1) for any
appropriation, in violation of his duties, of any business opportunity of the
Corporation; (2) for acts or omissions which involve intentional misconduct or a
knowing violation of the law; (3) for the types of liability set forth in
Section 14-2-832 of the
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Code; or (4) for any transaction from which the director received an improper
personal benefit. If the Code is amended after the effective date of this
Article to authorize corporate action further limiting the personal liability of
directors or officers, then the liability of a director or officer of the
Corporation shall be limited to the fullest extent permitted by the Code, as so
amended. Any repeal or modification of the foregoing paragraph by the
shareholders of the Corporation shall not adversely affect any right or
protection of a director or officer of the Corporation existing at the time of
such repeal or modification.
VIII
ACTION WITHOUT MEETING
Any action required or permitted to be taken at a shareholders' meeting
may be taken without a meeting of the shareholders only if the action is
evidenced by one or more written consents describing the action taken, which
consents are signed by all of the shareholders who would be entitled to vote at
a meeting.
IX.
CONSIDERATIONS AVAILABLE TO THE BOARD OF DIRECTORS
The Board of Directors of the Corporation, when evaluating any offer of
another person to make a tender or exchange offer for any equity security of the
Corporation, to merge or consolidate the Corporation with another person, or to
purchase or otherwise acquire all or substantially all of the properties and
assets of the Corporation, shall, in determining what is in the best interests
of the Corporation and its shareholders, give due consideration to all relevant
factors, including without limitation (i) the fairness and adequacy of the
consideration offered in relation to: the then current market price or fair
value of the Corporation (including the estimated fair value of the Corporation
in a freely negotiated transaction), historical financial results and the then
current financial condition of the Corporation, historical and comparative
market information (including price/earnings ratios, market trends, comparative
premiums for sale of control and general economic conditions), the then current
market or replacement price of the tangible and intangible assets of the
Corporation, the ability of management of the Corporation, the future earnings
prospects of the Corporation and the then estimated future value of the
Corporation as an independent entity; (ii) the nature of the consideration
offered (including the estimated present value and future earnings of any
noncash consideration); (iii) the amount of the Corporation's securities sought
to be acquired and, if less than all, the effect of the acquisition on the
remaining shareholders (including consideration of the resulting market
liquidity, stock prices and likelihood of subsequent freezeout transactions);
(iv) the method of financing the proposed transaction, including the financial
condition of the offeror, its ability to finance and consummate the proposed
transaction, the extent to which the assets of the Corporation will be used
directly or indirectly therefor, and the likelihood of success; (v) the timing
of the proposed transaction; (vi) the availability of other alternatives; (vii)
the legality of the proposed transaction (including possible legal and
regulatory obstacles and delays); (viii) the reputation and integrity of the
offeror in the business community and the perceived purpose of the proposed
transaction in light of the operating history and reputation of the Corporation
and its subsidiaries in the communities they serve; (ix) the social, legal and
economic effects of the
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transaction on the employees, customers and other constituents of the
Corporation and its subsidiaries; (x) the effects and impact of the proposed
transaction on the communities in which the Corporation and its subsidiaries
operate or are located; and (xi) the desirability of maintaining independence
from any other person.
X.
AMENDMENT
SECTION 10.1. AMENDMENT TO FOURTH AMENDED AND RESTATED ARTICLES OF
INCORPORATION. The Corporation reserves the right, subject to Section 10.2 to
amend, alter, change or repeal any provision contained in these Articles of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon shareholders herein are granted subject to this
reservation.
SECTION 10.2. RESTRICTIONS. Notwithstanding the provisions of Section
10.1 and any provisions of the Bylaws of the Corporation, no amendment to these
Articles of Incorporation or amendment to the Bylaws adopted by the shareholders
shall amend, modify or repeal any or all of the provisions of Article VI,
Article IX, or this Article X of these Articles of Incorporation or Section 1,
Section 3 and Section 7 of Article I, Section 2 and Section 4 of Article II,
Article V, Article VI or Section 3 of Article VII of the Bylaws of the
Corporation unless adopted by the affirmative vote or consent of the holders of
not less than seventy-five percent (75%) of the outstanding shares of each class
of stock of the Corporation entitled to vote in elections of directors,
including the affirmative vote or consent of the holders of not less than
seventy-five percent (75%) of the outstanding shares of each class of stock of
the Corporation entitled to vote in elections of directors other than those
shares beneficially owned by any Interested Shareholder (as such term is defined
in ss. 14-2-1110 of the Georgia Business Corporation Code); provided, however,
that in the event the Board of Directors of the Corporation shall, by resolution
duly adopted by not less than seventy-five percent (75%) of the members of the
Board of Directors (including not less than seventy-five percent (75%) of the
members of the Board of Directors who vote in favor of such resolution and who
were duly elected and acting members of the Board of Directors prior to the time
any Interested Shareholder became an Interested Shareholder), recommend to the
shareholders the adoption of any such amendment, the shareholders of record
holding a majority of the outstanding shares of each class of stock of the
Corporation entitled to vote in elections of Directors may amend, modify or
repeal any or all of such provisions.
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IN WITNESS WHEREOF, the undersigned officers have executed these
Articles of Incorporation as of ___ day of _________, 2000.
ATHEROGENICS, INC.
By:
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Russell M. Medford, M.D., Ph.D
CEO and President
ATTEST:
By:
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Mark P. Colonnese
Assistant Secretary
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