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EXHIBIT 3.01C
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
GUILFORD PHARMACEUTICALS INC.
FIRST: The name of the corporation is Guilford Pharmaceuticals Inc.
(hereinafter called the "Corporation").
SECOND: The registered office of the Corporation in the State of
Delaware is 32 Loockerman Square, Suite L-100, Dover, Delaware 19901. The name
of the Corporation's registered agent at said address is The Prentice Hall
Corporation System, Inc. County of Kent.
THIRD: The purpose of the Corporation is to engage in any lawful acts
or activities for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock that the
Corporation shall have authority to issue is Eighty Million (80,000,000) shares,
consisting of Seventy-Five Million (75,000,000) shares of common stock, par
value $.01 per share, and Five Million (5,000,000) shares of preferred stock,
par value $.01 per share.
A. Common Stock. The Common Stock shall be subject to all of the
rights, privileges, preferences and priorities of the Preferred Stock as set
forth in the certificate of designations filed to establish the respective
series of Preferred Stock. Each share of Common Stock shall have the same
relative rights as and be identical in all respects to all the other shares of
Common Stock.
1. Dividends
Whenever there shall have been paid, or declared and set aside
for payment, to the holders of shares of any class of stock having preference
over the Common Stock as to the payment of dividends, the full amount of
dividends and of sinking fund or retirement payments, if any, to which such
holders are respectively entitled in preference to the Common Stock, then
dividends may be paid on the Common Stock and on any class or series of stock
entitled to participate therewith as to dividends, out of any assets legally
available for the payment of dividends thereon, but only when and as declared by
the Board of Directors of the Corporation.
2. Dissolution, Liquidation, Winding Up
In the event of any dissolution, liquidation, or winding up of
the Corporation, whether voluntary or involuntary, the holders of the Common
Stock shall become entitled to participate in the distribution of any assets of
the Corporation remaining after the Corporation shall have paid, or set aside
for
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payment, to the holders of any class of stock having preference over the Common
Stock in the event of dissolution, liquidation or winding up the full
preferential amounts (if any) to which they are entitled.
3. Voting Rights
Each holder of shares of Common Stock shall be entitled to
attend all special and annual meetings of the stockholders of the Corporation
and, share for share and without regard to class, together with the holders of
all other classes of stock entitled to attend such meetings and to vote (except
any class or series of stock having special voting rights), to cast one vote for
each outstanding share of Common Stock so held upon any matter or thing
(including, without limitation, the election of one or more directors) properly
considered and acted upon by the stockholders.
B. Preferred Stock. The Board of Directors is authorized, subject
to limitations prescribed by the Delaware General Corporation Law and the
provisions of this Article FOURTH to provide, by resolution or resolutions from
time to time adopted without further stockholder approval, and filing a
certificate pursuant to the applicable provision of the Delaware General
Corporation Law, for the issuance of the shares of Preferred Stock in series, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and such rights of the
shares of each such series and the qualifications, limitations and restrictions
thereof. The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
1. The number of shares constituting that series and the
distinctive designation of that series.
2. The dividend rate on the shares of that series,
whether dividends shall be cumulative, and, if so, from which date or dates, and
the relative rights of priority, if any, of payment of dividends on shares of
that series;
3. Whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the terms of such
voting rights;
4. Whether that series shall have conversion privileges,
and, if so, the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors shall
determine;
5. Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption, including
the dates upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different conditions
and at different redemption dates;
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6. Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
7. The rights of the shares of that series in the event
of voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of shares
of that series; and
8. Any other relative rights, preferences and
limitations of that series.
FIFTH: The authorized number of directors of this Corporation shall be
not less than 3 and not more than 12. The number of directors within this range
shall be started in the Corporation's Bylaws, as may be amended from time to
time. No decrease in the number of directors shall have the effect of shortening
the term of any incumbent director.
A. Removal
1. Except as otherwise provided pursuant to the
provisions of this Certificate of Incorporation or a certificate of designations
relating to the rights of the holders of any class or series of Preferred Stock,
voting separately by class or series, to elect directors under specified
circumstances, any director or directors may be removed from office at any time,
by the holders of a majority of the total number of votes of the then
outstanding shares of stock of the Corporation entitled to vote generally in the
election of directors. Any vacancy in the Board of Directors resulting from any
such removal or otherwise shall be filled only by vote of a majority of the
directors then in office, although less than a quorum, and any director so
chosen shall hold office until the next election of directors and until such
director's successor shall be elected and qualified or until any such director's
earlier death, resignation or removal.
SIXTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors of the Corporation is
expressly authorized and empowered to adopt, amend and repeal bylaws of the
Corporation.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach or fiduciary
duty as a director, provided that nothing contained in this Article SEVENTH
shall eliminate or limit the liability of a director (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 of this article to authorize corporate action further limiting or
eliminating the personal liability of directors, then the
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liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as amended.
Any repeal or modification of the foregoing paragraph 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.
EIGHTH: The Corporation reserves the right at any time and from time to
time, to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation 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
now or hereafter prescribed by law.
NINTH:
A. Authorization of Indemnification. Each person who was or is a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether by or in the right of the
Corporation or otherwise (a "proceeding"), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter, an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent, or in any other capacity while serving as
a director, officer, employee or agent, shall be (and shall be deemed to have a
contractual right to be) indemnified and held harmless by the Corporation (and
any successor to the Corporation by merger or otherwise) to the fullest extent
authorized by, and subject to the conditions and (except as provided herein)
procedures set forth in the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but any such amendment shall not be deemed to limit
or prohibit the rights of indemnification hereunder for past acts or omissions
of any such person insofar as such amendment limits or prohibits the
indemnification rights that said law permitted the Corporation to provide prior
to such amendment), against all expenses, liabilities and losses (including
attorney's fees, judgments, fines, ERISA taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith and such indemnification shall continue as to an indemnitee
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the indemnitee's heirs, executors and administrators; provided,
however, that except as provided in Paragraph B hereof with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by such indemnitee (except for a suit or
action pursuant to Subsection B) only if
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such proceeding (or part thereof) was authorized by the board of directors of
the Corporation. Persons who are not directors or officers of the Corporation
may be similarly indemnified in respect of such service to the extent authorized
at any time by the board of directors of the Corporation. The right to
indemnification conferred in this Subsection A shall be a contract right and
shall include the right to be paid by the Corporation (and such successor) the
expenses (including attorney's fees) incurred in the defense of or other
involvement in any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if and to
the extent the Delaware General Corporation Law requires, the advancement of
expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which services was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking") by or on behalf of such indemnitee to repay all
amounts so advanced if it shall ultimately be determined by a final adjudication
from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified under this
Subsection A or otherwise.
B. Reimbursement of Expenses. If a claim under subsection A of
this Article is not paid in full by the Corporation within sixty days after a
written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty days, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
(ii) in any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
the applicable standard of conduct set forth in the Delaware General Corporation
Law. Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee has not met
such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or in the case of such
a suit brought by the indemnitee, be a defense to such suit. In any suit brought
by the indemnitee to enforce a right to indemnification or to an
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advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article or otherwise shall be on the
Corporation.
C. Non-exclusivity. The rights to indemnification and to the
advancement of expenses conferred in this Article shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
the Corporation's Amended and Restated Certificate of Incorporation, any by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
D. Insurance. The Corporation may maintain insurance at its
expense, to protect itself and any person who is a director, officer, employee
or agent of the Corporation or another corporation or of a partnership, joint
venture, trust or other enterprise, against any liability, loss or expenses,
whether or not the Corporation would have the power to indemnify such person
against such liability, loss or expense under the provisions of the Delaware
General Corporation Law.
E. Employees. The Corporation may, to the extent authorized from
time to time by the Board of Directors, grant rights to indemnification and to
the advancement of expenses to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
TENTH: The Corporation is to have perpetual existence.
ELEVENTH: Meeting of stockholders may be held within or without the
State of Delaware, as the bylaws may provide. The books of the Corporation may
be kept (subject to any provision of the Delaware General Corporation Law)
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 bylaws of the Corporation.
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