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EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DELCATH SYSTEMS, INC.
FIRST: The name of the corporation is Delcath Systems, Inc.
SECOND: The address, including street, number, city and county of the
registered office of the Corporation in the State of Delaware is 229 South State
Street, City of Dover, County of Kent; and the name of the registered agent of
the Corporation in the State of Delaware at such address is the Corporation
Service Company.
THIRD: The nature of the business and the purposes to be conducted and
promoted by the Corporation shall be to conduct any lawful business, to promote
any lawful purpose, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: The total number of all classes of shares of stock which the
corporation shall have authority to issue is twenty-five million (25,000,000)
shares, consisting of ten million (10,000,000) shares of Preferred Stock with a
par value of $.01 per share, and fifteen million (15,000,000) shares of Common
Stock with a par value of $.01 per share, amounting in the aggregate to two
hundred and fifty thousand dollars ($250,000).
The designation and powers, rights and preferences, and the
qualifications, limitation, or restrictions with respect to each class or series
of such class of the stock of the Corporation shall be as determined by
resolution of the Board of Directors from time to time.
FIFTH: The corporation is to have perpetual existence.
SIXTH: 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 and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. 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
shall be determined by affirmative vote of a majority of the Board of Directors,
but shall be not less than three (3).
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2. The directors shall be divided into three classes, designated Class
I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
Board of Directors. The term of the initial Class I directors shall terminate on
the date of the 2001 annual meeting of stockholders; the term of the initial
Class II directors shall terminate on the date of the 2002 annual meeting of
stockholders and the term of the Class III directors shall terminate on the date
of the 2003 annual meeting of stockholders. At each annual meeting of
stockholders beginning in 2001, successors to the class of directors whose term
expires at that annual meeting shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease in directorships shall
be apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional directors of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. Directors shall hold office until the annual
meeting for the year in which their terms expire and until their successors
shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. A majority of
total directors shall constitute a quorum for the transaction of business.
Except as otherwise required by law, any vacancy on the Board of Directors,
however resulting, may be filled only by the affirmative vote of a majority of
the remaining directors then in office even if less than a quorum. Any director
elected to fill a vacancy shall hold office for a term that shall coincide with
the remaining term of that class.
3. Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock issued by the Corporation shall have
the right, voting separately by class or series, to elect directors at an annual
or special meeting of stockholders, the election, term of office, filling of
vacancies and features of such directorships shall be governed by the terms of
this Certificate of Incorporation or the resolution or resolutions adopted by
the Board of Directors applicable thereto, and such directors so elected shall
not be divided into classes pursuant to this Article unless expressly provided
by such terms.
4. Subject to the rights, if any, of the holders of shares of Preferred
Stock then outstanding, any or all of the directors of the Corporation may be
removed from office at any time, with or without cause, by affirmative vote of
two-thirds of the directors then in office or for cause only by the affirmative
vote of the holders of at least eighty percent (80%) of the outstanding stock of
the Corporation then entitled to vote generally for the election of directors,
considered for purposes of this Article as one class.
5. The power to adopt, amend, or repeal the By-Laws of the Corporation
may be exercised by the affirmative vote of a majority of the Board of Directors
of the Corporation. In addition, the By-Laws may be amended by the stockholders,
except that Articles II, III, IV, V, VI and IX of the By-Laws shall not be
altered, amended or repealed by the stockholders, and no provision inconsistent
therewith shall be adopted by the stockholders, without the affirmative vote of
at least eighty percent (80%) of the outstanding stock of the Corporation
entitled to vote thereon.
6. The Board of Directors shall have the power, when considering a
tender offer or merger or acquisition proposal, to take into account any and all
factors that the Board of Directors determines to be relevant, including, but
not limited to the following:
(a) the interests of the Corporation's stockholders, including the
possibility that these interests might be best served by the continued
independence of the Corporation;
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(b) whether the proposed transaction might violate federal or state
laws;
(c) not only the consideration being offered in the proposed
transaction, in relation to the then current market price for the outstanding
capital stock of the Corporation, but also to the market price for the capital
stock of the Corporation over a period of years, the estimated price that might
be achieved in a negotiated sale of the Corporation as a whole or in part or
through orderly liquidation, the premiums over market price for the securities
of other corporations in similar transactions, current political, economic and
other factors bearing on securities prices and the Corporation's financial
condition and future prospects; and
(d) the social, legal and economic effects upon employees,
suppliers, customers, creditors and others having similar relationships with the
Corporation, upon the communities in which the Corporation conducts its business
and upon the economy of the state, region and nation.
7. The holders of shares of any class having the right to cast 10% or
more of the votes which may be cast on any matter at a meeting of stockholders
shall have the right to call a special meeting of stockholders by delivering to
the President or Secretary of the Corporation a notice demanding that a special
meeting be called as soon as practicable after the delivery of such notice.
SEVENTH: No person serving as a director of the Corporation shall be
personally liable to the Corporation or its stockholders for breach of his or
her fiduciary duty as a director; provided, however, that the foregoing shall
not eliminate or limit the liability of a director of the Corporation (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.
EIGHTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify (and advance expenses to) any and all
persons who it shall have power to indemnify (and advance expenses to) under
said section from and against any and all of the expenses, liabilities, or other
matters referred to in or covered by said section, and the indemnification and
advancement provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any By-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his 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.
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NINTH: Annual meetings of the stockholders shall be held on the date
set in the Corporation's By-Laws. Any stockholder who desires to present a
proposal or other matter or to nominate any person for election to the Board of
Directors at an annual meeting of stockholders shall be entitled to present such
proposal, matter or nomination at the annual meeting only if such stockholder
notifies the Corporation, in writing, signed by the stockholder or stockholders
submitting the notice, addressed to the Secretary of the Corporation, describing
in detail the proposal or other matter to be presented and, in the case of
nomination of a director, specifically identifying the person or persons such
stockholder is nominating, sent by and delivery, overnight delivery or certified
mail, return receipt requested, and such notice is received by the Secretary or
President of the Corporation not less than one hundred and twenty (120) calendar
days before the date of the Corporation's proxy statement released to the
stockholders in connection with the previous year's annual meeting. In the event
the Corporation did not hold an annual meeting the previous year, or if the date
of the current year's annual meeting has been changed by more than thirty (30)
calendar days from the date of the previous year's meeting, such notice must be
received by the Secretary or President not less than sixty (60) days before the
date set for the current year's meeting.
TENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered, or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
certificate of incorporation are granted subject to the provision of this
Article TENTH, except that Articles SIXTH, SEVENTH, EIGHTH, NINTH and this
Article TENTH shall not be altered, amended or repealed and no provision
inconsistent therewith shall be adopted without the affirmative vote of the
holders of at least eighty percent (80%) of the voting power of all the stock of
the Corporation entitled to vote generally in the election of directors, voting
together as a single class.
IN WITNESS WHEREOF, DELCATH SYSTEMS, INC. has caused this Amended and
Restated Certificate of Incorporation to be executed and acknowledged by M. S.
Koly, its President and CEO this _____ day of ______________, 2000.
DELCATH SYSTEMS, INC.
BY: ____________________________
M. S. Koly, President and CEO
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