**EXHIBIT 3.1**

 

RESTATED

CERTIFICATEOF INCORPORATION

OF

EONLABS, INC.

 

FILEDIN THE OFFICE OF

THESECRETARY OF STATE OF THE STATE OF DELAWARE

ONMAY 29, 2002

 

Filed pursuant to Section245 of the Delaware General Corporation Law

 

THE UNDERSIGNED, being the dulyappointed and acting President and Chief Executive Officer of Eon Labs, Inc.(the “CORPORATION”), a corporation organized and existing under the GeneralCorporation Law of the State of Delaware (the “DGCL”) and originallyincorporated under the name Eon Labs Manufacturing, Inc., hereby certifies onbehalf of the Corporation and not in his individual capacity, as follows:

 

A. The present name of theCorporation is Eon Labs, Inc.

 

B. The Certificate ofIncorporation of the Corporation was filed with the Secretary of State on March17, 1992, a Restated Certificate of Incorporation was filed on September 25,1995, an amendment was filed on December 13, 2000, a Restated Certificate ofIncorporation was filed on November 15, 2001, an amendment was filed on February22, 2002 and an amendment was filed on May 21, 2002.

 

C. This Restated Certificateof Incorporation (this “CERTIFICATE”) was duly adopted by vote of Board ofDirectors of the Corporation (the “Board of Directors”) and the stockholders inaccordance with the applicable provisions of Sections 242 and 245 of the DGCL.This Certificate shall be effective upon filing with the Secretary of State ofthe State of Delaware in accordance with

the provisions of Section103 of the DGCL. 

 

D. This Certificate restatesand integrates and further amends the Restated Certificate of Incorporation ofthe Corporation (the “RESTATED CERTIFICATE”) currently on file with theSecretary of State of the State of Delaware. The text of the RestatedCertificate is hereby restated in its entirety to read as herein set forth: 

 

First: The name of theCorporation is Eon Labs, Inc.

 

Second: The address of theregistered office of the Corporation in the State of Delaware is 2711Centerville Road, Suite 400, Wilmington, New Castle County, Delaware, 19808.The name of the registered agent of the Corporation in the State of Delaware atsuch address is The Prentice-Hall Corporation System, Inc.

 

Third: The purpose of theCorporation is to engage in any lawful act or activity for which corporationsmay be organized under the DGCL, as from time to time amended.

 

Fourth: The total number ofshares of all classes of stock which the Corporation shall have authority toissue is 75,000,000 shares, consisting of (i) 70,000,000 shares of Common Stock,par value $.01 (“Common Stock”), and (ii) 5,000,000 shares of Preferred Stock,par value $.01 (“Preferred Stock”). 

 

A. GENERAL.

 

(1) Subject to theprovisions of this Certificate, the Corporation may issue shares of its CommonStock or Preferred Stock from time to time for such consideration (not lessthan the par value thereof) as may be fixed by the Board of Directors, which isexpressly authorized to fix the same in its absolute and uncontrolleddiscretion. Shares so issued for which the consideration shall have been paidor delivered to the Corporation shall be deemed fully paid capital stock andshall not be liable to any further call or assessment thereon, and the holdersof such shares shall not be liable for any further payments in respect of suchshares. 

 

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(2) Subject to theprovisions of this Certificate, the Corporationshall have authority to create and issuerights and options entitling their holdersto purchase shares of the Corporation’s capital stock of any class or series or other securities of theCorporation, and such rights and options shall be evidenced by instrument(s) approved by the Board of Directors or acommittee of the Board ofDirectors. The Board of Directors or a committee of the Board of Directors shall be empowered to set theexercise price, duration, times for exercise, and other terms of such options or rights; provided, however,that the consideration to bereceived for any shares of capital stock subject thereto shall not be less than the par value thereof.

 

The designations, powers,preferences, rights, qualifications, limitations and restrictions of the CommonStock and the Preferred Stock are as follows:

 

B. COMMON STOCK.

 

(1) GENERAL. Except asotherwise provided herein or as otherwise  provided byapplicable law, all shares of Common Stock shall have identical  rightsand privileges in every respect.

 

(2) RELATIVE RIGHTS OFPREFERRED STOCK AND COMMON STOCK. All preferences, voting powers, relative,participating, optional or other special rights and privileges, andqualification, limitations, or restrictions of the Common Stock are expresslymade subject and subordinate to those that may be fixed with respect to anyshares of any series of the Preferred Stock. 

 

(3) VOTING RIGHTS. Except asotherwise required by law or this Certificate, each holder of Common Stockshall have one vote in respect of each share of stock held by such holder ofrecord on the books of the Corporation on all matters submitted to a vote forstockholders of the Corporation. Holders of Common Stock are not entitled tocumulate votes in the election of any directors.

 

(4) DIVIDENDS. Subject tothe prior rights and preferences, if any, applicable to shares of PreferredStock, the holders of shares of Common Stock shall be entitled to receive, when,as and if declared by the Board of Directors, out of the assets of theCorporation which are by law available therefor, dividends payable either incash, in property or in shares of capital stock. Dividends payable under thisSubsection (B) shall be paid to the holders of record of outstanding CommonStock as their names shall appear on the stock register of the Corporation onthe record date fixed by the Board of Directors in advance of the declarationand payment of each dividend. Any shares of Common Stock issued as a dividendpursuant to this Subsection (B) shall, when so issued, be duly authorized,validly issued, fully paid and non-assessable, and free of all liens andcharges. The Corporation shall not issue fractions of shares of Common Stock onpayment of such dividend but shall issue a whole number of shares to suchholder of Common Stock rounded up or down in the Corporation’s sole discretionto the nearest whole number, without compensation to the stockholder whosefractional share has been rounded down or from any stockholder whose fractionalshare has been rounded up.

 

(5) LIQUIDATION PREFERENCES.In the event of any voluntary or involuntary liquidation, dissolution orwinding up of the affairs of the Corporation, after all creditors of the Corporationshall have been paid in full and after payment of all sums payable in respectof Preferred Stock, if any, the holders of the Common Stock shall share on apro rata basis in all distributions of assets pursuant to such Liquidation. 

 

(6) RESERVATION OF SHARES.The Corporation shall at all times reserve and keep available out of itsauthorized but unissued shares of Common Stock, or out of shares of CommonStock held in its treasury, the full number of shares of Common Stock intowhich all shares of any series of Preferred Stock having conversion privilegesfrom time to time outstanding are convertible.

 

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C. PREFERRED STOCK.

 

(1) The shares of PreferredStock of the Corporation may be issuedfrom time to time in one or more classes or series thereof, the sharesof each class or series thereofto have such voting powers, full or limited, or no voting powers, and such designations,preferences and relative, participating, optional or other special rights, and qualifications, limitations orrestrictions thereof, as are stated andexpressed herein or in the resolution or   resolutions providingfor the issue of such class or series, adopted by the Board of Directors as hereinafter provided.

 

(2) Authority is herebyexpressly granted to and vested in the Boardof Directors, subject to the provisions ofthis Subsection (C), and to the limitationsprescribed by the DGCL, to authorize the issuance of the Preferred Stock from time to time in one or moreclasses or series, and with respect to each such class or series to fix by resolution or resolutions providingfor the issue of such class orseries and the designations, preferences and relative, participating, optional or other specialrights, and qualifications, limitations and restrictions thereof. The authority of the Board of Directors withrespect to each class or seriesthereof shall include, but not be limited to, the determination or fixing of the following:

 

(a) whether or not the classor series is to have voting rights,full, special or limited, or is to be without voting rights, andwhether or not such class orseries is to be entitled to vote as a separate class either alone or together with the holders of one or moreother classes or series of capital stock;

 

(b) the number of shares toconstitute the class or series and the designations thereof;

 

(c) the preferences andrelative, participating, optional or otherspecial rights, if any, and thequalifications, limitations or restrictions thereof, if any, with respect to any class or series;

 

(d) whether or not theshares of any class or series shall beredeemable at the option of the Corporation or the holders thereof orupon the happening of anyspecified event, and, if redeemable, the redemption price or prices (which may be payable in the form ofcash, notes, securities or other property)and the time or times at which, and the terms and conditions upon which, such shares shall be redeemable andthe manner of redemption;

 

(e) whether or not theshares of a class or series shall be subjectto 0the operation of retirement or sinkingfunds to be applied to the purchase or redemption of such shares for retirement, and, if such retirement orsinking fund or funds are to beestablished, the annual amount thereof and the terms and provisions relative to the operation thereof;

 

(f) the dividend rate,whether dividends are payable in cash,securities of the Corporation or other property, the conditions uponwhich and the times when suchdividends are payable, the preference to or the relation to the payment of dividends payable on any otherclass or classes or series of capitalstock, whether or not such dividends shall be cumulative or noncumulative and, if cumulative, the date ordates from which such dividends shallaccumulate;

 

(g) the preferences, if any,and the amounts thereof which theholders of any class or series thereof shall be entitled to receiveupon the voluntary orinvoluntary dissolution of, or upon any distribution of the assets of, the Corporation;

 

(h) whether or not theshares of any class or series, at the option of the Corporation or the holderthereof or upon the happening of any specified event, shall be convertible intoor exchangeable for the shares of any other class or classes or of any otherseries of the same or any other class or classes of capital stock, securities,or other property of the Corporation or any other entity and the conversionprice or prices, ratio or ratios, or the rate or rates at which such conversionor exchange may be made, with such adjustments, if any, as shall be stated andexpressed or provided for in such resolution or resolutions; and

 

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(i) such other specialrights and protective provisions withrespect to any class or series the Board of Directors may provide.

 

(3) The shares of each classor series of Preferred Stock may varyfrom the shares of any other class or series thereof in any or all ofthe foregoing respects. TheBoard of Directors may increase the number of shares of the Preferred Stockdesignated for any existing class orseries by a resolution adding to such class or series authorized and unissued shares of the Preferred Stock notdesignated for any other classor series. The Board of Directors may decrease the number of shares of the Preferred Stock designated forany existing class or series by a resolutionsubtracting from such class or series authorized and unissued shares of the Preferred Stock designated for suchexisting class or series, and the sharesso subtracted shall become authorized, unissued and undesignated shares of the Preferred Stock.  

 

(4) The number of authorizedshares of Preferred Stock may beincreased or decreased (but not below the number of shares thereof thenoutstanding) by the affirmative vote ofthe holders of a majority of the Common Stock without a vote of a majority of the holders of the PreferredStock, or any class or seriesthereof, unless a vote of any such holders is otherwise required pursuant to this Subsection (C).

 

Holders of Preferred Stockshall not be entitled to receive notice of anymeeting of stockholders at which they are notentitled to vote.  

 

Fifth: The number,classification and terms of the Board of Directors andthe procedures to elect directors and toremove directors shall be as follows:

 

A. Except as otherwise fixedby or pursuant to the provisions of thisCertificate relating to the rights of the holders of any class orseries of Preferred Stock toelect directors under specified circumstances, the number of directors constituting the Board of Directorsshall be no less than one, as fixedfrom time to time exclusively by the Board of Directors pursuant to a resolution adopted by a majority of themembers of the Board of Directors. No decrease in the number of directors constituting the Board of Directorsshall shorten the term of anyincumbent director. No director need be a stockholder.  

 

B. Subject to the rights ofholders of any subsequently issued class orseries of Preferred Stock, the directors ofthe Corporation shall be divided by the Board of Directors into three classes (the “CLASSIFIED DIRECTORS”)with the first class (“CLASSI”), second class (“CLASS II”) and third class (“CLASS III”) each to consist as nearly as practicable ofan equal number of directors. The termof office of the initial Class I directors shall expire at the first annualmeeting of stockholders following theeffectiveness of this Restated Certificate of Incorporation by filing of this Restated Certificate ofIncorporation with the Secretaryof State of the State of Delaware (the “EFFECTIVE TIME”), the term of office of the initial Class II directorsshall expire at the second annual meetingof stockholders following the Effective Time, and the term of office of the initial Class III directors shall expireat the third annual meeting of stockholdersfollowing the Effective Time, with each director to hold office until his or her successor shall have beenduly elected and qualified. At each annual meeting of stockholders, the Classified Directors elected tosucceed those ClassifiedDirectors whose terms then expire shall be elected for a term of office to expire at the third succeedingannual meeting of stockholders followingtheir election.  

 

C. The directors of theCorporation need not be elected by written ballotunless the Bylaws otherwise provide.  

 

D. A director of theCorporation may be removed only for cause. Forpurposes of removal of a director of theCorporation, “cause” shall mean (a) a final conviction of a felony involving moral turpitude or (b) willfulmisconduct that is materiallyand demonstrably injurious economically to the Corporation. For purposes of this definition of “cause,”no act, or failure to act, by a directorshall be considered “willful” unless committed in bad faith and without a reasonable belief that the act or failureto act was in the best interest of  

 

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the Corporation or anyAffiliate of the Corporation. “Cause” shall not existunless and until the Corporation hasdelivered to the director a written notice of the act or failure to act that constitutes “cause” and such directorshall not have cured such act oromission within 90 days after the delivery of such notice. As used in this Certificate,“Affiliate” has the meaning given such term under Rule 12b-2 of the Securities Exchange Act of 1934.  

 

Sixth: Meetings of the stockholdersmay be held within or without the Stateof Delaware, as the Bylaws may provide. A special meeting of thestockholders may be called, andbusiness to be considered at any such meeting may be proposed, at any time exclusively by theChairman of the Board of Directors, the Chief Executive Officer or a majority of the members of the Board ofDirectors, and no stockholder ofthe Corporation shall require the Board of Directors to call a special meeting of stockholders or topropose business at a special meetingof stockholders. The books of the Corporation may be kept (subject to any provision contained in the statute)outside the State of Delaware at such place or places as may be designated from time to time by the Board ofDirectors or in the Bylaws.

 

Seventh: From and after thedate (the “WRITTEN CONSENT PROHIBITION TRIGGERDATE”) that Santo Holding (Deutschland) GmbHand its Affiliates (collectively, “SANTO”)own less than 40% of the then outstanding shares of Common Stock (and regardless of whether Santo, at any timeafter the Written Consent Prohibition Trigger Date, owns 40% or more of the then outstanding Common Stock),(i) no action required to betaken or that may be taken at any meeting of holders of Common Stock may be taken without a meetingand (ii) the power of holders of CommonStock to consent in writing, without a meeting, to the taking of any action is specifically denied.

 

Eighth: The Corporationshall indemnify any Person (as hereinafter defined)who was, is, or is threatened to be made aparty to a proceeding (as hereinafter defined) by reason of the fact that he (i) is or was a director orofficer of the Corporation or(ii) while a director or officer of the Corporation, is or was serving at the request of the Corporationas a director, officer, partner, venturer,proprietor, trustee, employee, agent, or similar functionary of another foreign or domestic corporation,partnership, joint venture, sole proprietorship,trust, employee benefit plan, or other enterprise, to the fullest extent permitted under the DGCL, asthe same exists or may hereafter be amended. Such right shall be a contract right and as such shall run tothe benefit of any director orofficer who is elected and accepts the position of director or officer of the Corporation orelects to continue to serve as a directoror officer of the Corporation while this Article Eighth is in effect. Any repeal or amendment of this ArticleEighth shall be prospective only and shall not limit the rights of any such director or officer or theobligations of the Corporationwith respect to any claim arising from or related to the services of such director or officer in anyof the foregoing capacities prior to any such repeal or amendment to this Article Eighth. Such right shallinclude the right to be paid bythe Corporation expenses incurred in investigating or defending any such proceeding in advance ofits final disposition to the maximum extent permitted under the DGCL, as thesame exists or may hereafter be amended,provided that the Corporation shall be entitled to participate in or, at its option, to assume the defense, appealor settlement of such proceeding. Ifa claim for indemnification or advancement of expenses hereunder is not paidin full by the Corporation within sixty(60) days after a written claim has been received by the Corporation, the claimant may at any time thereafterbring suit against theCorporation to recover the unpaid amount of the claim, and if successful in whole or in part, the claimantshall also be entitled to be paid theexpenses of prosecuting such claim. It shall be a defense to any such actionthat such indemnification oradvancement of costs of defense is not permitted under the DGCL, but the burden of proving such defense shall be on theCorporation. Neither the failure of theCorporation (including its Board of Directors or any committee thereof, independent legal counsel, orstockholders) to have made itsdetermination prior to the commencement of such action that indemnification of, or advancement of costsof defense to, the claimant is permissiblein the circumstances nor an actual determination by the Corporation (including its Board of Directors or anycommittee thereof, independent legal counsel, or stockholders) that such indemnification or advancement isnot permissible shall be adefense to the action or create a presumption that such indemnification or advancement is notpermissible. In the event of the death of any Person having a right of indemnification under the foregoingprovisions,

 

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such right shall inure tothe benefit of his or her heirs, executors,administrators, and personal representatives.The rights conferred above shall notbe exclusive of any other right which any person may have or hereafter acquire under any statute, bylaw, resolutionof stockholders or directors, agreement,or otherwise. “Person” as used herein means any corporation, partnership, limited liability company,association, firm, trust, joint venture, political subdivision or instrumentality.

 

The Corporation mayadditionally indemnify any employee or agent of thecorporation to the fullest extent permittedby law.  

 

Without limiting thegenerality of the foregoing, to the extent permitted by then applicable law,the grant of mandatory indemnification pursuant to this Article Eighth shallextend to the proceedings involving the negligence of such Person.

 

As used herein, the term“proceeding” means any threatened, pending, orcompleted action, suit, or proceeding,whether civil, criminal, administrative, arbitrative, or investigative, any appeal in such an action, suit, orproceeding, and any inquiry orinvestigation that could lead to such an action, suit, or proceeding.  

 

Ninth: A director of theCorporation shall not be personally liable to theCorporation or its stockholders for monetarydamages for breach of fiduciary dutyas a director, except for liability (i) for any breach of the director’sduty of loyalty to the Corporation orits stockholders, (ii) for acts or omissionsnot in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 ofthe DGCL or (iv) for any transactionfrom which the director derived an improper personal benefit. Any repeal or amendment of this Article Ninth bythe stockholders of the corporation shall be prospective only, and shall not adversely affect anylimitation on the personalliability of a director of the Corporation arising from an act or omission occurring prior to the time of suchrepeal or amendment. In addition to the circumstances in which a director of the Corporation is notpersonally liable as set forthin the foregoing provisions of this Article Ninth, a director shall not be liable to theCorporation or its stockholders to such further extent as permitted by any lawhereafter enacted, includingwithout limitation any subsequent amendment to the DGCL.  

 

Tenth: All of the power ofthe Corporation, insofar as it may be lawfullyvested by this Certificate in the Board ofDirectors, is hereby conferred upon the Board of Directors. In furtherance of an not in limitation of thatpower or the powers conferred bylaw, a majority of directors then in office (or such higher percentage as may be specified in theBylaws with respect to any provisionthereof) shall have the power to adopt, amend and repeal the Bylaws of the Corporation. Notwithstanding any otherprovisions of this Certificate or any provision of law that might otherwise permit a lesser or no vote, butin addition to any affirmativevote of the holders of any particular class or series of the capital stock of the Corporation required by law or bythis Certificate, theaffirmative vote of the holders of not less than 66 2/3 percent of the outstanding shares of the Corporationthen entitled to vote upon the electionof directors, voting together as a single class, shall be required for the alteration, amendment, or repeal of theBylaws or adoption of new Bylaws by the stockholders of the Corporation.

 

Eleventh: Notwithstandingany other provisions of this Certificate or anyprovision of law that might otherwise permita lesser or no vote, but in additionto any affirmative vote of the holders of any particular class or series of the capital stock of theCorporation required by law or by this Certificate, the affirmative vote of the holders of not less than 662/3 percent of the outstandingshares of the Corporation then entitled to vote upon the election of directors, voting together as asingle class, shall be required to amendor repeal, or to adopt any provision inconsistent with, Article Fifth, Article Sixth, Article Seventh, Article Tenthor this Article Eleventh of this Certificate.

 

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Under penalties of perjury,this 29th day of May, 2002, the undersignedcertifies that he is an authorized officer ofEon Labs, Inc., that the above statedfacts are true and that the filing of this Restated Certificate of Incorporation constitutes the valid act ofEon Labs, Inc.

 
|   | EON LABS, INC.                         |
|--------|----------------------------------------|
|   |                                   |
|   | /s/ BERNHARD HAMPL                     |   |
|   | Bernhard Hampl, Ph.D.                  |
|   | President and Chief  Executive Officer |

 

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**CERTIFICATE OF AMENDMENTTO THE RESTATED CERTIFICATE OF INCORPORATIONOFEON LABS, INC.**

 

**FILED IN THE OFFICE OFTHE SECRETARY OF STATE OF THE STATE OF DELAWAREON JUNE 1, 2004**

 

 

Filed pursuant to Section 242 of the Delaware General Corporation Law

 

 

THE UNDERSIGNED, being the duly appointed and acting Vice President,Finance, Secretary, Treasurer and Chief Financial Officer of Eon Labs, Inc.(the “*Corporation*”), acorporation organized and existing under the General Corporation Law of theState of Delaware (the “*DGCL*”),hereby certifies on behalf of the Corporation and not in his individualcapacity, as follows:

 

A.            The name of thecorporation is Eon Labs, Inc.

 

B.            The Certificate ofIncorporation of the Corporation was filed with the Secretary of State on March17, 1992, a Restated Certificate of Incorporation was filed on September 25,1995, an amendment was filed on December 13, 2000, a Restated Certificate ofIncorporation was filed on November 15, 2001, an amendment was filed onFebruary 22, 2002, an amendment was filed on May 21, 2002 and a RestatedCertificate of Incorporation was filed on May 29, 2002.

 

C.            This Certificate ofAmendment (this “*Certificate*”)was duly adopted by vote of the Company’s Board of Directors and stockholdersin accordance with the applicable provisions of Section 242 of the DGCL.  This Certificate shall be effective uponfiling with the Secretary of State of the State of Delaware in accordance withthe provisions of Section 103 of the DGCL.

 

D.            The RestatedCertificate of Incorporation of the Company is hereby amended by deleting thefirst paragraph of Article Fourth in its entirety and replacing it with thefollowing:

 

“FOURTH             The totalnumber of shares of all classes of stock which the Corporation shall haveauthority to issue is 105,000,000 shares, consisting of (i) 100,000,000 sharesof Common Stock, par value $.01 (“Common Stock”), and (ii) 5,000,000 shares ofPreferred Stock, par value $.01 (“Preferred Stock”).”

 

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IN WITNESS WHEREOF, I have made and signed this Certificate this 1stday of June 2004 and affirm the statements contained herein as true underpenalties of perjury.

 
|   | /s/ William  F. Holt                                                         |   |
|--------|------------------------------------------------------------------------------|--------|
|   | William F.  Holt                                                             |
|   | Vice President,  Finance, Secretary, Treasurer   and Chief Financial Officer |

 

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