Exhibit 3.2 

 

**CERTIFICATE OF DESIGNATION**

**OF**

**SERIES A JUNIOR PARTICIPATING PREFERRED STOCK**

 

**(Pursuant to Section 151 of the**

**Delaware General Corporation Law)**

 

**RIBAPHARM INC.**, a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Company”), hereby certifies that the following resolution was adopted by the Boardof Directors of the Company (the “Board of Directors”) as required by Section 151 of the General Corporation Law at a meeting duly called and held on June 20, 2003: 

 

RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors in accordance with the provisionsof the Company’s Amended and Restated Certificate of Incorporation, the Board of Directors hereby classifies and designates 2,000,000 shares of the Company’s preferred stock, $.01 par value per share (“Preferred Stock”), asSeries A Junior Participating Preferred Stock, $.01 par value per share (“Series A Junior Participating Preferred Stock”), with the preferences and other rights, voting powers, restrictions, limitations as to dividends and otherdistributions, qualifications and terms and conditions of redemption as set forth in this Certificate of Designation as follows: 

 

**Series A Junior Participating Preferred Stock:**

 

**Section 1.****    Designation and Amount**.    Two Million (2,000,000) shares of Preferred Stock, $.01 parvalue, are designated “Series A Junior Participating Preferred Stock” with the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions specified herein (the “Junior PreferredStock”). Such number of shares may be increased or decreased by resolution of the Board of Directors; *provided,*that no decrease shall reduce the number of shares of Junior Preferred Stock to a number less than the number of shares thenoutstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Company convertible into Junior Preferred Stock. 

 

**Section 2.****    Dividends andDistributions**. 

 

**(A)**    Subjectto the rights of the holders of any shares of any class or series of Preferred Stock (or any similar stock) ranking prior and superior to the Junior Preferred Stock with respect to dividends, the holders of shares of Junior Preferred Stock, inpreference to the 

 

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holders of Common Stock, par value $.0l per share (the “Common Stock”), of the Company, and of any other juniorstock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the first day of April, July, October and January in each year (each suchdate being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Junior Preferred Stock, in an amount per share(rounded to the nearest cent) equal to the greater of (i) $1.00 or (ii) subject to the provision for adjustment hereinafter set forth, 100 times the aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount(payable in kind) of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stocksince the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Junior Preferred Stock. In the event the Company shall atany time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of adividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Junior Preferred Stock were entitled immediately prior to such event under clause (ii) ofthe preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of CommonStock that were outstanding immediately prior to such event. 

 

**(B)**    The Company shall declare a dividend or distribution on the Junior Preferred Stock as provided in paragraph (A) of this Section immediately after it declares a dividend or distribution on the Common Stock(other than a dividend payable in shares of Common Stock); *provided,*that in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the nextsubsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Junior Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. 

 

**(C)**    Dividends shall begin to accrue and be cumulative on outstanding shares of JuniorPreferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends onsuch shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Junior Preferred Stockentitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shallnot bear interest. Dividends paid on the shares of Junior Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all suchshares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Junior Preferred 

 

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Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not morethan 60 days prior to the date fixed for the payment thereof. 

 

**Section 3.****    Voting Rights.**    The holders of shares of Junior Preferred Stock shall have the following voting rights: 

 

**(A)**    Subject to the provision for adjustment hereinafter set forth, each share of JuniorPreferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a vote of the stockholders of the Company. In the event the Company shall at any time declare or pay any dividend on the Common Stock payable in shares ofCommon Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares ofCommon Stock, then in each such case the number of votes per share to which holders of shares of Junior Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction, the numerator of whichis the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 

 

**(B)**    Except as otherwise provided herein, in anyother Certificate of Designation creating a class or series of Preferred Stock or any similar stock, or by law, the holders of shares of Junior Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Companyhaving general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the Company. 

 

**(C)**    Except as set forth herein, or as otherwise provided by law, holders of Junior Preferred Stock shall have no specialvoting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action. 

 

**Section 4.****    Certain Restrictions**. 

 

**(A)**    Whenever quarterly dividends or otherdividends or distributions payable on the Junior Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Junior Preferred Stockoutstanding shall have been paid in full, the Company shall not: 

 

**(i)**    declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Junior Preferred Stock;

 

**(ii)**    declare or pay dividends,or make any other distributions, on any shares of stock ranking on parity (either as to dividends or upon liquidation, dissolution or winding up) with the Junior Preferred Stock, except dividends paid ratably on the Junior Preferred Stock and allsuch parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; 

 

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**(iii)**    redeem or purchase or otherwise acquire for consideration shares ofany stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Junior Preferred Stock, provided that the Company may at any time redeem, purchase or otherwise acquire shares of any such junior stock inexchange for shares of any stock of the Company ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Junior Preferred Stock; or 

 

**(iv)**    redeem or purchase or otherwise acquire for consideration any shares of Junior PreferredStock, or any shares of stock ranking on parity (either as to dividends or upon liquidation, dissolution or winding up) with the Junior Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined bythe Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shalldetermine in good faith will result in fair and equitable treatment among the respective series or classes. 

 

**(B)**    The Company shall not permit any subsidiary of the Company to purchase or otherwise acquire for consideration any sharesof stock of the Company unless the Company could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. 

 

**Section 5.****    Reacquired Shares**.    Any shares of Junior PreferredStock purchased or otherwise acquired by the Company in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of PreferredStock and may be reissued as part of a new class or series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Certificate of Incorporation, or in any other Certificate of Designation creating a classor series of Preferred Stock or any similar stock or as otherwise required by law. 

 

**Section 6.****    Liquidation, Dissolution or Winding Up**.    Upon any liquidation, dissolution or winding up of the Company, no distribution shall be made (i) to theholders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Junior Preferred Stock unless, prior thereto, the holders of shares of Junior Preferred Stock shall have received $100 pershare, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, provided that the holders of shares of Junior Preferred Stock shall be entitled to receive an aggregateamount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount to be distributed per share to holders of shares of Common Stock; or (ii) to the holders of shares of stock ranking on parity(either as to dividends or upon liquidation, dissolution or winding up) with the Junior Preferred Stock, except distributions made ratably on the Junior Preferred Stock and all such parity stock in proportion to the total amounts to which theholders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Company shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision orcombination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common 

 

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Stock, then in each such case the aggregate amount to which holders of shares of Junior Preferred Stock were entitledimmediately prior to such event under the proviso in clause (i) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after suchevent and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 

 

**Section 7.****    Consolidation, Merger, Etc**.    In case the Company shall enter into any consolidation,merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of Junior Preferred Stock shall at the sametime be similarly exchanged or changed into an amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as thecase may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Company shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision orcombination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case theamount set forth in the preceding sentence with respect to the exchange or change of shares of Junior Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stockoutstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 

 

**Section 8.****    No Redemption**.    The shares of Junior Preferred Stockshall not be redeemable. 

 

**Section9.****    Rank**.    The Junior Preferred Stock shall rank, with respect to the payment of dividends and the distribution of assets, junior to all series of any other class of the Company’s PreferredStock except to the extent that any such other class specifically provides that it shall rank on parity with or junior to the Junior Preferred Stock. 

 

**Section 10.****    Amendment**.    At any time shares of Junior Preferred Stock are outstanding, neitherthe Certificate of Incorporation nor this Certificate of Designation shall be amended in any manner that would materially alter or change the powers, preferences or special rights of the Junior Preferred Stock so as to affect them adversely withoutthe affirmative vote of the holders of at least two-thirds of the outstanding shares of Junior Preferred Stock, voting separately as a single class. 

 

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IN WITNESS WHEREOF, the undersigned has executed this Certificate of Designation on June 23, 2003.

 

 

 

By: /S/     DANIEL J.PARACKA                    

Name:     Daniel J. Paracka

Title:       Chairman of the Board of Directors

 

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