exv10w3



 



	 	 	 
	Exhibit 10.3

	 	Form of Amended and Restated Certificate of Incorporation of Bone
Care International, Inc., a Delaware corporation.









AMENDED AND RESTATED



CERTIFICATE OF INCORPORATION



OF



BONE CARE INTERNATIONAL, INC.



ARTICLE I


     
The name of this Corporation is BONE CARE
INTERNATIONAL, INC.




ARTICLE II


     
The Corporation’s registered office in the
State of Delaware is located at Corporation Trust Center, 1209
Orange Street, in the City of Wilmington, County of New Castle.
The name and address of the Corporation’s registered agent
is The Corporation Trust Company, Corporation Trust Center, 1209
Orange Street Wilmington, Delaware 19801.




ARTICLE III


     
The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.




ARTICLE IV


     
The total number of shares of all classes of
capital stock which the Corporation shall have the authority to
issue is 85,000,000 shares which shall be divided into two
classes as follows:




		
	 	     
    (a) 10,000,000 shares of Preferred
    Stock of the par value of $0.01 per share (“Preferred
    Stock”); and
    
	 
	 	     
    (b) 75,000,000 shares of Common Stock,
    no par value (“Common Stock”)
    





ARTICLE V


     
A statement of the voting powers and of the
designations, preferences and relative, participating optional
or other special rights, and the qualifications, limitations and
restrictions thereof, of each class of capital stock of the
Corporation, is as follows:



     
(1) In General



     
No holders of shares of this Corporation of any
class, or of bonds, debentures or other securities convertible
into capital stock of any class, shall be entitled as of right
to subscribe for, purchase, or receive any capital stock of any
class whether now or hereafter authorized, or any bonds,
debentures or other securities whether now or hereafter
authorized, convertible into capital stock of any class, or any
capital stock into which said bonds, debentures or other
securities may be convertible, and all such additional shares of
capital stock, debentures or other securities, together with the
capital stock into which the same may be converted, may be
issued and disposed of by the Board of Directors to such persons
and on such terms and for such consideration (as far as may be
permitted by law) as the Board of Directors in their absolute
discretion may deem advisable.



     
All persons who shall acquire capital stock in
the Corporation shall acquire the same subject to the provisions
of this Certificate of Incorporation.



     
(2) Preferred Stock



     
The Preferred Stock may be issued from time to
time in one or more series, with such distinctive serial
designations as may be stated or expressed in the resolution or
resolutions providing for the issue of such capital stock
adopted from time to time by the Board of Directors; and in such
resolution or resolutions providing for the issue of shares of
each particular series, the Board of Directors is also expressly
authorized to fix: the consideration for which the shares of
such series are to be issued; the number of shares constituting
such series; the rate of dividends upon which and the times at
which dividends on shares of such series shall be payable and
the preference, if any, which such dividends shall have relative
to dividends on shares of any other class or classes or any
other series of capital stock of the Corporation; whether such
dividends shall be cumulative or noncumulative, and if
cumulative, the date or dates from which dividends on shares of
such



 








 




series shall be cumulative; the voting rights, if
any, to be provided for shares of such series; the rights, if
any, which the holders of shares of such series shall have in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation; the
rights, if any, which the holders of shares of such series shall
have to convert such shares into or exchange such shares for
shares of any other class or classes or any other series of
capital stock of the Corporation and the terms and conditions,
including price and rate of exchange, of such conversion or
exchange; the redemption price or prices and other terms of
redemption, if any, for shares of such series; and any and all
other preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions
thereof pertaining to shares of such series.




     
(3) Common Stock




		
	 	     
    (a) Subject to preferences and rights to
    which holders of capital stock other than the Common Stock may
    have become entitled by resolution or resolutions of the Board
    of Directors as hereinbefore provided, such dividends (payable
    in cash, capital stock, or otherwise) as may be determined by
    the Board of Directors may be declared and paid out of funds
    legally available therefor upon the Common Stock from time to
    time.
    
	 
	 	     
    (b) In the event of any liquidation,
    dissolution or winding up of the affairs of the Corporation, the
    holders of the Common Stock shall be entitled to share ratably
    in all assets available for distribution to the shareholders,
    subject to preferences and rights to which the holders of
    capital stock other than the Common Stock may have become
    entitled by resolution or resolutions of the Board of Directors
    as hereinbefore provided.
    
	 
	 	     
    (c) Subject to the rights of the holders of
    any series of Preferred Stock or any other class of capital
    stock of the Corporation (other than the Common Stock) then
    outstanding, the Common Stock shall have the exclusive right to
    vote for the election of Directors and for all other purposes,
    and holders of shares of Preferred Stock shall not be entitled
    to receive notice of any meeting of stockholders at which they
    are not entitled to vote. The holders of Common Stock shall be
    entitled to one vote for each of the shares held by them of
    record at the time for determining holders thereof entitled to
    vote.
    





ARTICLE VI


     
(1) For the purpose of this Article VI,
the term “Business Combination” shall mean any merger
or consolidation of the Corporation with or into any other
corporation, or the sale or lease or exchange of all or
substantially all of the property and of the assets of the
Corporation to any person.



     
(2) The affirmative vote of the holders of
60% of all of the securities of the Corporation then entitled to
vote at a meeting of shareholders, considered for the purposes
of this Article VI as one class, shall be necessary for the
adoption or authorization of any Business Combination with any
person. The foregoing vote shall be in lieu of any lesser vote
of the holders of the voting securities of the Corporation
voting as one class otherwise required by law or by agreement,
but shall be in addition to any class vote or other vote
otherwise required by law, this Certificate of Incorporation or
any agreement to which the Corporation is a party.




ARTICLE VII


     
The private property of the stockholders of the
Corporation shall not be subject to the payment of corporate
debts to any extent whatever.




ARTICLE VIII


     
(1) Power of the Board of Directors.
The business and affairs of the Corporation shall be managed
under the direction of its Board of Directors. In furtherance,
and not in limitation, of the powers conferred by the laws of
the State of Delaware, the Board of Directors is expressly
authorized:




		
	 	     
    (a) to make, alter, amend or repeal the
    By-Laws of the Corporation; provided, however, that no
    By-Laws hereafter adopted shall invalidate any prior act of the
    Board Directors that would have been valid if such By-Laws had
    not been adopted;
    
	 
	 	     
    (b) to determine the rights, powers, duties,
    rules and procedures that affect the power of the Board of
    Directors to direct the business and affairs of the Corporation,
    including the power to designate and empower committees of the
    Board of Directors, to elect, appoint and empower the officers
    and other
    




 








 


		
	 	
    agents of the Corporation, and to determine the
    time and place of, and the notice requirements for, meetings of
    the Board of Directors, as well as quorum and voting
    requirements (except as otherwise provided in this Certificate
    of Incorporation) for, and the manner of taking, action of the
    Board of Directors; and
    
	 
	 	     
    (c) to exercise all such powers and do all
    such acts as may be exercised by the Corporation, subject to the
    provisions of the laws of the State of Delaware, this
    Certificate of Incorporation, and any By-Laws of the Corporation.
    




     
(2) Number of Directors. The number
of Directors constituting the entire Board of Directors shall be
not less than 5 nor more than 12. Subject to the rights of
holders of any series of Preferred Stock or any other class of
capital stock of the Corporation (other than the Common Stock)
then outstanding, the specific number of Directors constituting
the entire Board of Directors shall be as authorized from time
to time exclusively by the affirmative vote of a majority of the
entire Board of Directors. As used in this Certificate of
Incorporation, the term “entire Board of Directors”
means the total authorized number of Directors that the
Corporation would have if there were no vacancies.



     
(3) Classified Board. Subject to the
rights of holders of any series of Preferred Stock or any other
class of capital stock of the Corporation (other than the Common
Stock) then outstanding, the Directors shall be divided into
three classes, with respect to the time that they severally hold
office, as nearly equal in number as possible, with the initial
term of office of the first class of Directors to expire at the
2005 Annual Meeting of Stockholders, the initial term of office
of the second class of Directors to expire at the 2006 Annual
Meeting of Stockholders and the initial term of office of the
third class of Directors to expire at the 2007 Annual Meeting of
Stockholders. Commencing with the 2005 Annual Meeting of
Stockholders, Directors elected to succeed those Directors whose
terms have thereupon expired shall be elected for a term of
office to expire at the third succeeding Annual Meeting of
Stockholders after their election, and upon the election and
qualification of their successors. A person elected as a
Director shall be deemed a Director as of the time of such
election. Subject to the rights of holders of any series of
Preferred Stock or any other class of capital stock of the
Corporation (other than the Common Stock) then outstanding, if
the number of Directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain or
attain, if possible, an equal number of Directors in each class,
but in no case will a decrease in the number of Directors
shorten the term of any incumbent Director. If such equality is
not possible, the increase or decrease shall be apportioned
among the classes in such a way that the difference in the
number of Directors in any two classes shall not exceed one.



     
(4) Removal of Directors. Subject to
the rights of the holders of any series of Preferred Stock or
any other class of capital stock of the Corporation (other than
the Common Stock) then outstanding, any Director, or the entire
Board of Directors, may be removed from office at any time prior
to the expiration of his or their term of office, but only for
cause and only by the affirmative vote of the holders of record
of outstanding shares representing at least eighty percent (80%)
of the voting power of all of the shares of capital stock of the
Corporation then entitled to vote generally in the election of
Directors, voting together as a single class, and any vacancy so
created may be filled by the affirmative vote of the holders of
record of outstanding shares representing at least eighty
percent (80%) of such voting power.




ARTICLE IX


     
Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them
and or between this Corporation and its stockholders or any
class of them, any court of equitable jurisdiction within the
State of Delaware may, on the application in a summary way of
this Corporation or of any creditor or stockholder thereof, or
on the application of any receiver or receivers appointed for
this Corporation under the provisions of section 291 of
Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of
section 279 of Title 8 of the Delaware Code order a
meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said Court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as
the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such



 








 




compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by
the Court to which the said application has been made, be
binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.





ARTICLE X


     
The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
Certificate of Incorporation in the manner now or hereafter
prescribed by law, and all rights and powers conferred herein on
stockholders, directors and officers are subject to this
reserved power; provided, however, that,
notwithstanding the fact that a lesser percentage may be
specified by the General Corporation Law of Delaware, the
affirmative vote of the holders of record of outstanding shares
representing at least eighty percent (80%) of the voting power
of all of the shares of capital stock of the Corporation then
entitled to vote generally in the election of Directors, voting
together as a single class, shall be required to amend, alter,
change, repeal or adopt any provision or provisions inconsistent
with, Articles VI, VIII and X of this Certificate of
Incorporation unless such amendment, alteration, change, repeal
or adoption of any inconsistent provision or provisions is
declared advisable by the Board of Directors by the affirmative
vote of at least two-thirds of the entire Board of Directors.




ARTICLE XI


     
No Director shall be personally liable to the
Corporation or its stockholders for monetary damages for any
breach of fiduciary duty by such Director as a Director.
Notwithstanding the foregoing, a Director shall be liable to the
extent provided by applicable law (i) for 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 General
Corporation Law of Delaware; or (iv) for any transaction
from which the Director derived an improper personal benefit. If
the General Corporation Law of Delaware is amended to authorize
corporate action further eliminating or limiting the personal
liability of directors, then the liability of a Director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of Delaware, as so
amended. No amendment to or repeal of these provisions shall
apply to or have any effect on the liability or alleged
liability of any Director of the Corporation for or with respect
to any acts or omissions of such Director occurring prior to
such amendment or repeal.