Exhibit 3.1
Amended and Restated Certificate of Incorporation of the Registrant, as amendedthrough November 12, 2003. Changes made pursuant to the Certificate ofOwnership and Merger filed with the Delaware Secretary of State on November 12,2003 are shown in the following manner: **additions**~~deletions~~.
**RESTATED CERTIFICATE OF INCORPORATION**
**OF**
**VALEANT PHARMACEUTICALS INTERNATIONAL**
               First: The name of the Corporation is
                    ~~ICN Pharmaceuticals, Inc.~~
                    **Valeant Pharmaceuticals International.**
               Second: The address of the Corporation’s registered office in the Stateof Delaware is Corporation Trust Center, 1209 Orange Street in the City ofWilmington, County of New Castle, Delaware 19801. The name of its registeredagent at such address is The Corporation Trust Company.
               Third: The purpose of the Corporation is to engage in any lawful act oractivity for which corporations may be organized under the General CorporationLaw of the State of Delaware.
               Fourth: The total number of shares of all classes of capital stock whichthe Corporation shall have the authority to issue is Two Hundred and TenMillion Shares (210,000,000) shares divided into two classes of which TenMillion (10,000,000) shares, par value $.01 per share, shall be designatedPreferred Stock and Two Hundred Million (200,000,000) shares, par value $.01per share, shall be designated Common Stock.
**A.** **Preferred Stock**
          1. ***Issuance***. The Board of Directors is authorized, subject to limitationsprescribed by law, to provide for the issuance of shares of Preferred Stock inone or more series, to establish the number of shares to be included in eachsuch series, and to fix the designations, voting powers, preferences, andrights of the shares of each such series, and any qualifications, limitationsor restrictions thereof.
          2. ***Series A Preferred Stock.***
          Section 1. Designation and Amount. One million (1,000,000) shares of thePreferred Stock of the Corporation shall be designated as “Series AParticipating Preferred Stock”, par value $.01 per share (the “*Series APreferred Stock*”). Such number of shares may be increased or decreased byresolution of the Board of Directors; provided that no decrease shall reducethe number of shares of Series A Preferred Stock to a number less than that ofthe shares then outstanding plus the number of
 

 

shares issuable upon exercise of outstanding rights, options or warrantsor upon conversion of outstanding securities issued by the Corporation.
          Section 2. *Dividends and Distributions.*
               (A) Subject to the prior and superior rights of the holders of any sharesof any series of Preferred Stock of the Corporation ranking prior and superiorto the shares of Series A Preferred Stock with respect to dividends, theholders of shares of Series A Preferred Stock shall be entitled to receive,when, as and if declared by the Board of Directors out of assets legallyavailable for the purpose, quarterly dividends payable in cash on the firstbusiness day of January, April, July and October in each year (each such datebeing referred to herein as a *“Quarterly Dividend PaymentDate”*), commencing onthe first Quarterly Dividend Payment Date after the first issuance of a shareor fraction of a share of Series A Preferred Stock, in an amount per share(rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) subjectto the provision for adjustment hereinafter set forth, 100 times the aggregateper share amount of all cash dividends, and 100 times the aggregate per shareamount (payable in kind) of all non-cash dividends or other distributions otherthan a dividend payable in shares of Common Stock, par value $.01 per share, ofthe Corporation (the “Common Stock”) or a subdivision of the outstanding sharesof Common Stock (by reclassification or otherwise), declared on the CommonStock since the immediately preceding Quarterly Dividend Payment Date, or withrespect to the first Quarterly Dividend Payment Date, since the first issuanceof any share or fraction of a share of Series A Preferred Stock.
               (B) The Corporation shall declare a dividend or distribution on the SeriesA Preferred Stock as provided in paragraph (A) above immediately after itdeclares a dividend or distribution on the Common Stock (other than a dividendpayable in shares of Common Stock); provided that, in the event no dividend ordistribution shall have been declared on the Common Stock during the periodbetween any Quarterly Dividend Payment Date and the next subsequent QuarterlyDividend Payment Date, a dividend of $1.00 per share on the Series A PreferredStock shall nevertheless by payable on such subsequent Quarterly DividendPayment Date.
               (C) Dividends shall begin to accrue and be cumulative on outstandingshares of Series A Preferred Stock from the Quarterly Dividend Payment Datenext preceding the date of issue of such shares of Series A Preferred Stock,unless the date of issue of such shares is prior to the record date for thefirst Quarterly Dividend Payment Date, in which case dividends on such sharesshall begin to accrue from the date of issue of such shares, or unless the dateof issue is a Quarterly Dividend Payment Date or is a date after the recorddate for the determination of holders of shares of Series A Preferred Stockentitled to receive a quarterly dividend and before such Quarterly DividendPayment Date, in either of which events such dividends shall begin to accrueand be cumulative from such Quarterly Dividend Payment Date. Accrued butunpaid dividends shall not bear interest. Dividends paid on the shares ofSeries A Preferred Stock in an amount less than the total amount of suchdividends at the time accrued and payable on such shares shall be allocated prorata on a share-by-share basis among all such shares at the time outstanding.The Board of Directors may fix a record date for the determination of holdersof shares of Series A Preferred Stock entitled to receive payment of a dividendor distribution declared thereon, which record date shall be not more than 30days prior to the date fixed for the payment thereof.
 

 

          Section 3. *Voting Rights*. The holders of shares of Series A PreferredStock shall have the following voting rights:
               (A) Except as provided in paragraph C of this Section 3, and subject tothe provision for adjustment hereinafter set forth, each share of Series APreferred Stock shall entitle the holder thereof to 100 votes on all matterssubmitted to a vote of the stockholders of Corporation.
               (B) Except as otherwise provided herein or by law, the holders of sharesof Series A Preferred Stock and the holders of shares of Common Stock shallvote together as one class on all matters submitted to a vote of stockholdersof the Corporation.
               (C) (i) If, on the date used to determine stockholders of record for anymeeting of stockholders for the election of directors, a default in preferencedividends (as defined in subparagraph (v) below) on the Series A PreferredStock shall exist, the holders of the Series A Preferred Stock shall have theright, voting as a class described in subparagraph (ii) below, to elect twodirectors (in addition to the directors elected by holders of Common Stock ofthe Corporation). Such right may be exercised (a) at any meeting ofstockholders for the election of directors or (b) at a meeting of the holdersof shares of Voting Preferred Stock (as hereinafter defined), called for thepurpose in accordance with the By-Laws of Corporation, until all suchcumulative dividends (referred to above) shall have been paid in full or untilnon-cumulative dividends have been paid regularly for at least one year.
               (ii) The right of the holders of Series A Preferred Stock to elect twodirectors, as described above, shall be exercised as a class concurrently withthe rights of holders of any other series of any class of preferred stock ofthe Corporation upon which voting rights to elect such directors have beenconferred and are then exercisable. The Series A Preferred Stock and anyadditional series of such preferred stock which the Corporation may issue andwhich may provide for the right to vote with the Series A Preferred Stock arecollectively referred to herein as *“Voting Preferred Stock.”*
               (iii) Each director elected by the holders of shares of Voting PreferredStock shall be referred to herein as a *“Preferred Director.”*A PreferredDirector so elected shall continue to serve as such director for a term of oneyear, except that upon any termination of the right of all of such holders tovote as a class for Preferred Directors, the term of office of such directorsshall terminate. Any Preferred Director may be removed, without cause, by, andshall not be so removed except by, the vote of the holders of record of amajority of the outstanding shares of Voting Preferred Stock then entitled tovote for the election of directors, present (in person or by proxy) and votingtogether as single class (a) at a meeting of the stockholders, or (b) at ameeting of the holders of shares of such Voting Preferred Stock, called forthat purpose in accordance with the By-laws of the Corporation.
               (iv) So long as a default in any preference dividends on the Series APreferred Stock shall exist or the holders of any other series of VotingPreferred Stock shall be entitled to elect Preferred Directors, (a) any vacancyin the office of a Preferred Director may be filled (except as provided in thefollowing clause (b)) by an instrument in writing signed by the remainingPreferred Director and filed with the Corporation and (b) in the case of theremoval of any Preferred Director or in case there is no remaining PreferredDirector, the vacancy or vacancies may be filled by the vote of the holders ofthe outstanding shares of Voting Preferred Stock then entitled to vote for theelection of directors, present (in person or by proxy) and voting together as asingle class, at such time as the removal shall be effected or such vacanciesexist, as the case may be. Each director appointed as
 

 

aforesaid by the remaining Preferred Director shall be deemed, for allpurposes hereof, to be a Preferred Director.
               (v) For purposes hereof, a *“default in preference dividends”*on Series APreferred Stock shall be deemed to have occurred whenever the amount ofcumulative and unpaid dividends on the Series A Preferred Stock shall beequivalent to six full quarterly dividends or more (whether or notconsecutive), and, having so occurred, such default shall be deemed to existthereafter until, but only until, all cumulative dividends on all shares of theSeries A Preferred Stock then outstanding shall have been paid through the lastQuarterly Dividend Payment Date or until, but only until, non-cumulativedividends have been paid regularly for at least one year.
               (D) Except as set forth herein (or as otherwise required by applicablelaw), holders of Series A Preferred Stock shall have no general or specialvoting rights and their consent shall not be required for taking any corporateaction.
          Section 4. *Certain Restrictions*.
               (A) Whenever quarterly dividends or other dividends or distributionspayable on the Series A Preferred Stock as provided in Section 2 are inarrears, thereafter and until all accrued and unpaid dividends anddistributions, whether or not declared, on the shares of Series A PreferredStock outstanding shall have been paid in full, the Corporation shall not
               (i) declare or pay dividends, or make any other distributions, on anyshares of Common Stock or any other stock ranking junior (either as todividends or upon liquidation, dissolution or winding up) to the Series APreferred Stock;
               (ii) declare or pay dividends, or make any other distributions, on anyshares of stock ranking on a parity (either as to dividends or uponliquidation, dissolution or winding up) with the Series A Preferred Stock,except dividends paid ratably on the Series A Preferred Stock and all suchparity stock on which dividends are payable or in arrears in proportion to thetotal amounts to which the holders of all such shares are then entitled (basedupon their respective liquidation values);
               (iii) redeem or purchase or otherwise acquire for consideration (exceptas provided in (iv) below) shares of Common Stock or any other stock rankingjunior (either as to dividends or upon liquidation, dissolution or winding up)to the Series A Preferred Stock, provided that the Corporation may at any timeredeem, purchase or otherwise acquire shares of any such junior stock inexchange for shares of any stock of the Corporation ranking junior (both as todividends and upon dissolution liquidation, or winding up) to the Series APreferred Stock;
               (iv) redeem or purchase or otherwise acquire for consideration any sharesof Series A Preferred Stock, or any shares of stock ranking on a parity (eitheras to dividends or upon liquidation, dissolution or winding up) with the SeriesA Preferred Stock, except in accordance with a purchase offer made in writingor by publication (as determined by the Board of Directors) to all holders ofsuch shares upon such terms as the Board of Directors, after consideration ofthe respective annual dividend rates and other relative rights and preferencesof the respective series and classes, shall determine in good faith will resultin fair and equitable treatment among the respective series or classes.
 

 

               (B) The Corporation shall not permit any subsidiary of the Corporation topurchase or otherwise acquire for consideration any shares of stock of theCorporation unless the Corporation could, under paragraph (A) of this Section4, purchase or otherwise acquire such shares at such time and in such manner.
          Section 5. *Reacquired Shares*. Any shares of Series A Preferred Stockpurchased or otherwise acquired by the Corporation in any manner whatsoevershall be retired and canceled promptly after the acquisition thereof. All suchshares shall upon their cancellation become authorized but unissued shares ofPreferred Stock and may be reissued as part of a new series of Preferred Stocksubject to the conditions and restrictions on issuance set forth herein or inany certificate of designation creating a series of Preferred Stock or asotherwise required by law.
          Section 6. *Liquidation, Dissolution or Winding Up.*
               (A) Subject to the prior and superior rights of holders of any shares ofstock of the Corporation ranking prior and superior to the shares of Series APreferred Stock with respect to rights upon liquidation dissolution or windingup (voluntary or otherwise), no distribution shall be made to the holders ofCommon Stock or any other shares of stock ranking junior (either as todividends or upon liquidation, dissolution or winding up) to the Series APreferred Stock unless, prior thereto, the holders of shares of Series APreferred Stock shall have received $100 per share, plus an amount equal toaccrued and unpaid dividends and distributions thereon, whether or not declaredto the date of such payment (the *“Series A LiquidationPreference”*). Followingthe payment of the full amount of the Series A Liquidation Preference, noadditional distributions shall be made to the holders of shares of Series APreferred Stock unless, prior thereto, the holders of shares of Common Stockshall have received an amount per share (the *“Capital Adjustment”*) equal to thequotient obtained by dividing (i) the Series A Liquidation Preference by (ii)100 (subject to the provision for adjustment hereinafter set forth insubparagraph (C) below) (such number in clause (ii), the *“Adjustment Number”*).Following the payment of the full amount of the Series A Liquidation Preferenceand the Capital Adjustment in respect of all outstanding shares of Series APreferred Stock and Common Stock, respectively, and subject to the rights ofthe holders of any other series of Preferred Stock then outstanding, holders ofSeries A Preferred Stock and holders of Common Stock shall receive theirratable and proportionate share of the remaining assets to be distributed inthe ratio of the Adjustment Number to 1 with respect to such Preferred Stockand Common Stock, on a per share basis, respectively.
               (B) In the event that there are not sufficient assets available to permitpayment in full of the Series A Liquidation Preference and the liquidationpreferences of all other series of preferred stock of the Corporation, if any,which rank on a parity with the Series A Preferred Stock, then such remainingassets shall be distributed ratably to the holders of Series A Preferred Stockand the holders of such parity shares in proportion to their respectiveliquidation preferences.
          Section 7. *Consolidation, Merger, etc.*In case the Corporation shallenter into any consolidation, merger, combination or other transaction in whichthe shares of Common Stock are exchanged for or changed into other stock orsecurities, cash and/or any other property, then, in any such case, the sharesof Series A Preferred Stock shall at the same time be similarly exchanged orchanged or changed in an amount per share (subject to the provision foradjustment hereinafter set forth) equal to 100 times the aggregate amount ofstock, 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 orexchanged.
 

 

          Section 8. *No Redemption*. The shares of Series A Preferred Stock shallnot be redeemable.
          Section 9. *Ranking.*The Series A Preferred Stock shall rank junior toall other series of Preferred Stock of the Corporation as to the payment ofdividends and the distribution of assets, unless the terms of any series ofPreferred Stock shall provide otherwise.
          Section 10. *Amendment*. The Restated Certificate of Incorporation of theCorporation shall not be amended in any manner which would materially alter orchange the powers, preferences or special rights of the Series A PreferredStock so as to affect them adversely without the affirmative vote of theholders of a majority or more of the outstanding shares of Series A PreferredStock, voting separately as a class.
          Section 11. *Adjustment.*In the event the Corporation shall at any timeafter November 2, 1994 (the “Rights Record Date”) (i) declare any dividend onCommon Stock payable in shares of Common Stock, (ii) subdivide the outstandingCommon Stock, (iii) combine the outstanding Common Stock into a smaller numberof shares, or (iv) issue any shares of Common Stock in a reclassification orchange of the outstanding shares of Common Stock (including any suchreclassification or change in connection with a merger in which the Corporationis the continuing or surviving Corporation), then in each such case (w) theamount to which holders of shares of Series A Preferred Stock were entitledimmediately prior to such event under clause (b) of Section 2(A) above, (x) thenumber of votes applicable to each share of Series A Preferred Stockimmediately prior to such event under Section 3(A) above, (y) the adjustmentnumber (for purposes of Section 6(A) above) and (z) the amount to which holdersof shares of Series A Preferred were entitled immediately prior to such eventunder Section 7 above, shall be adjusted by multiplying such amount or numberby a fraction the numerator of which is the number of shares of Common Stockoutstanding immediately after such event and the denominator of which is thenumber of shares of Common Stock that were outstanding immediately prior tosuch event.
**B.** **Common Stock**
     1. *Dividends.*Subject to the preferential rights, if any, of theholders of any series of Preferred Stock then outstanding, the holders ofshares of Common Stock shall be entitled to receive, when and if declaredby the Board of Directors, out of the assets of the Corporation which areby law available therefor, dividends payable either in cash, in propertyor in shares of Common Stock or other securities of the Corporation.
     2. *Voting Rights.*Subject to the rights, if any, of the holders ofany series of Preferred Stock then outstanding at every annual or specialmeeting of stockholders of the Corporation, every holder of Common Stockshall be entitled to one vote, in person or by proxy, for each share ofCommon Stock standing in his/her name on the books of the Corporation, oneach matter voted upon by stockholders.
     3. *Liquidation, Dissolution, or Winding Up*. In the event of anyvoluntary or involuntary liquidation, dissolution, or winding up of theaffairs of the Corporation, after payment or provision for payment of thedebts and other liabilities of the Corporation, and subject to thepreferential and other amounts, if any, to which the holders of any seriesof Preferred Stock then
 

 

outstanding shall be entitled, the holders of all outstanding sharesof Common Stock shall be entitled to share ratably in the remaining netassets of the Corporation.
               Fifth: The business and affairs of the Corporation shall be managed by orunder the direction of the Board of Directors. The Board of Directors mayexercise all such authority and powers of the Corporation and do all suchlawful acts and things as are not by statute or this Restated Certificate ofIncorporation directed or required to be exercised or done by the stockholders.
          **A.***Number of Directors.*The number of directors of the Corporation(exclusive of directors to be elected by the holders of any one or more seriesof the Preferred Stock of the Corporation which may be outstanding, votingseparately as a series or class) shall be fixed from time to time by action ofnot less than a majority of the members of the Board of Directors then inoffice, but in no event shall be less than three nor more than twenty.
          **B.***Classes.*Except for any directors elected separately by the holdersof any one or more series of Preferred Stock, the directors shall be dividedinto three classes, as nearly equal in number as reasonably possible, with theterm of office of the first class to expire at the 1995 annual meeting ofstockholders, the term of office of the second class to expire at the 1996annual meeting of stockholders and the term of office of the third class toexpire at the 1997 annual meeting of stockholders and at each annual meeting ofstockholders following adoption of this Restated Certificate of Incorporationdirectors shall be elected to succeed those directors whose terms expire for aterm of office to expire at the third succeeding annual meeting of stockholdersafter their election. Directors need not be stockholders. All directors shallhold office until the expiration of the term for which elected and until theirsuccessors are elected, except in the case of the death, resignation,disqualification or removal of any director.
          **C**. *Vacancies*. Subject to the rights, if any, of the holders of anyseries of Preferred Stock then outstanding, newly created directorshipsresulting from any increase in the authorized number of directors or anyvacancies in the Board of Directors resulting from death, resignation,disqualification or removal may be filled only by a majority vote of thedirectors then in office, though less than a quorum, and directors so chosenshall hold office for a term expiring at the annual meeting of stockholders atwhich the term of office of the class to which they have been elected expires.No decrease in the number of directors constituting the Board of Directorsshall shorten the term of any incumbent director.
          **D.***Removal*. Except for any directors elected separately by the holdersof any one or more series of Preferred Stock, any director, or the entire Boardof Directors, may be removed from office at any time, but only for cause andonly by the affirmative vote of the holders of at least 66 2/3% of the votingpower of all of the then outstanding shares of capital stock of the Corporationentitled to vote generally in the election of directors, voting together as asingle class.
               Sixth: Subject to the rights of the holders of any series of PreferredStock, any action required or permitted to be taken at any annual or specialmeeting of stockholders may be taken only upon the vote of the stockholders atan annual or special meeting duly called and may not be taken by writtenconsent of the stockholders.
 

 

               Seventh: Subject to the rights of the holders of any series of PreferredStock, special meetings of the stockholders, unless otherwise prescribed bystatute, may be called at any time only by the Board of Directors or theChairman of the Board of the Corporation.
               Eighth: At an annual meeting of stockholders, only such business shall beconducted, and only such proposals shall be acted upon, as shall have beenproperly brought before the annual meeting of stockholders (a) by, or at thedirection of, the Board of Directors or (b) by a stockholder of the Corporationwho complies with the procedures set forth in this Article Eighth. Forbusiness or a proposal to be properly brought before an annual meeting ofstockholders by a stockholder, the stockholder must have given timely noticethereof in writing to the Secretary of the Corporation. To be timely, astockholder’s notice must be delivered to or mailed and received at theprincipal executive offices of the Corporation not less than 60 days nor morethan 90 days prior to the scheduled date of the annual meeting, regardless ofany postponement, deferral or adjournment of that meeting to a later date;*provided, however*, that if less than 70 days’ notice or prior public disclosureof the date of the annual meeting is given or made to stockholders, notice bythe stockholder to be timely must be so delivered or received not later thanthe close of business on the 10th day following the earlier of (i) the day onwhich such notice of the date of the meeting was mailed or (ii) the day onwhich such public disclosure was made.
          A stockholder’s notice to the Secretary shall set forth as to each matterthe stockholder proposes to bring before an annual meeting of stockholders (i)a description, in 500 words or less, of the business desired to be broughtbefore the annual meeting and the reasons for conducting such business at theannual meeting, (ii) the name and address, as they appear on the Corporation’sbooks, of the stockholder proposing such business and any other stockholdersknown by such stockholder to be supporting such proposal, (iii) the class andnumber of shares of the Corporation which are beneficially owned by suchstockholder on the date of such stockholder’s notice and by any otherstockholders known by such stockholder to be supporting such proposal on thedate of such stockholder’s notice, (iv) a description, in 500 words or less, ofany interest of the stockholder in such proposal and (v) a representation thatthe stockholder is a holder of record of stock of the Corporation and intendsto appear in person or by proxy at the meeting to present the proposalspecified in the notice. Notwithstanding anything in this Restated Certificateof Incorporation to the contrary, no business shall be conducted at a meetingof stockholders except in accordance with the procedures set forth in thisArticle Eighth.
          The chairman of the meeting shall, if the facts warrant, determine anddeclare to the meeting that the business was not properly brought before themeeting in accordance with the procedures prescribed by this Article Eighth,and if he should so determine, he shall so declare to the meeting and any suchbusiness not properly brought before the meeting shall not be transacted.Notwithstanding the foregoing, nothing in this Article Eighth shall beinterpreted or construed to require the inclusion of information about any suchproposal in any proxy statement distributed by, at the direction of, or onbehalf of, the Board of Directors.
               Ninth: Subject to the rights, if any, of the holders of any series ofPreferred Stock then outstanding, only persons nominated in accordance with theprocedures set forth in this Article Ninth shall be eligible for election asdirectors. Nominations of persons for election to the Board may be made at anannual meeting of stockholders or special meeting of stockholders called by theBoard of Directors for the purpose of electing directors (i) by or at thedirection of the Board or (ii) by any stockholder of the Corporation entitledto vote for the election of directors at such meeting who
 

 

complies with the notice procedures set forth in this Article Ninth. Suchnominations, other than those made by or at the direction of the Board, shallbe made pursuant to timely notice in writing to the Secretary of theCorporation. To be timely, a stockholder’s notice must be delivered to ormailed and received at the principal executive offices of the Corporation notless than 60 days nor more than 90 days prior to the scheduled date of themeeting, regardless of any postponement, deferral or adjournment of thatmeeting to a later date; *provided, however,*that if less than 70 days’ noticeor prior public disclosure of the date of the meeting is given or made tostockholders, notice by the stockholder to be timely must be so delivered orreceived not later than the close of business on the 10th day following theearlier of (i) the day on which such notice of the date of the meeting wasmailed or (ii) the day on which such public disclosure was made.
          A stockholder’s notice to the Secretary shall set forth (i) as to eachperson whom the stockholder proposes to nominate for election or reelection asa director (a) the name, age, business address and residence address of suchperson, (b) the principal occupation or employment of such person, (c) theclass and number of shares of the Corporation which are beneficially owned bysuch person on the date of such stockholder’s notice and (d) any otherinformation relating to such person that is required to be disclosed insolicitations of proxies for election of directors, or is otherwise required,in each case pursuant to Regulation 14A under the Securities Exchange Act of1934, as amended, or any successor statute thereto (the “Exchange Act”)(including without limitation such person’s written consent to being named inthe proxy statement as a nominee and to serving as a director if elected); (ii)as to the stockholder giving notice (a) the name and address, as they appear onthe Corporation’s books, of such stockholder and any other stockholders knownby such stockholder to be supporting such nominee(s), (b) the class and numberof shares of the Corporation which are beneficially owned by such stockholderon the date of such stockholder’s notice and by any other stockholders known bysuch stockholder to be supporting such nominee(s) on the date of suchstockholder’s notice, (c) a representation that the stockholder is a holder ofrecord of stock of the Corporation entitled to vote at such meeting and intendsto appear in person or by proxy at the meeting to nominate the person orpersons specified in the notice; and (iii) a description of all arrangements orunderstandings between the stockholder and each nominee and other person orpersons (naming such person or persons) pursuant to which the nomination ornominations are to be made by the stockholder.
               No person shall be eligible for election as a director of the Corporationunless nominated in accordance with the procedures set forth in this ArticleNinth. The chairman of the meeting shall, if the facts warrant, determine anddeclare to the meeting that a nomination was not made in accordance with theprocedures prescribed by this Article Ninth, and if he should so determine, heshall so declare to the meeting and the defective nomination shall bedisregarded.
               Tenth: The Board of Directors is expressly authorized to adopt, amend orrepeal the By-Laws of the Corporation. Any By-Laws made by the directors underthe powers conferred hereby may be amended or repealed by the directors or bythe stockholders. Notwithstanding the foregoing and anything contained in thisRestated Certificate of Incorporation to the contrary, the By-Laws shall not beamended or repealed by the stockholders, and no provision inconsistenttherewith shall be adopted by the stockholders, without the affirmative vote ofthe holders of at least 75% of the voting power of all shares of theCorporation entitled to vote generally in the election of directors, votingtogether as a single class.
 

 

               Eleventh: Elections of directors need not be by written ballot unless theBy-Laws of the Corporation shall otherwise provide.
               Twelfth: A director of the Corporation shall not be personally liable tothe Corporation or its stockholders for monetary damages for breach offiduciary duty as a director, *provided, however*, that the foregoing shall noteliminate or limit the liability of a director (i) for any breach of thedirector’s duty of loyalty to the Corporation or its stockholders, (ii) foracts or omissions not in good faith or which involve intentional misconduct ofa knowing violation of law, (iii) under Section 174 of the General CorporationLaw of the State of Delaware, or (iv) for any transaction from which thedirector derived an improper personal benefit. If the General Corporation Lawof the State of Delaware is hereafter amended to permit further elimination orlimitation of the personal liability of directors, then the liability of adirector of the Corporation shall be eliminated or limited to the fullestextent permitted by the General Corporation Law of the State of Delaware as soamended. Any repeal or modification of this Article Twelfth shall notadversely affect any right or protection of a director of the Corporation inrespect of any act or omission occurring prior to the time of such repeal ormodification.
               Thirteenth: Whenever a compromise or arrangement is proposed between thisCorporation and its creditors or any class of them and/or between thisCorporation and its stockholders or any class of them, any court of equitablejurisdiction within the State of Delaware may, on the application in a summaryway of this Corporation or of any creditor or stockholder thereof or on theapplication of any receiver or receivers appointed for this Corporation underthe provisions of Section 291 of the General Corporation Law of the State ofDelaware or on the application of trustees in dissolution or of any receiver orreceivers appointed for this Corporation under the provisions of Section 279 ofthe General Corporation Law of the State of Delaware order a meeting of thecreditors or class of creditors, and/or of the stockholders or class ofstockholders of this Corporation, as the case may be, to be summoned in suchmanner as the said court directs. If a majority in number representingthree-fourths in value of the creditors or class of creditors, and/or of thestockholders or class of stockholders of this Corporation, as the case may be,agree to any compromise or arrangement and to any reorganization of thisCorporation as a consequence of such compromise or arrangement, the saidcompromise or arrangement and the same reorganization shall, if sanctioned bythe court to which said application has been made, be binding on all thecreditors or class of creditors, and/or on all of the stockholders or class ofstockholders, of this Corporation, as the case may be, and also on thisCorporation.
               Fourteenth:
          **A.**For purposes of this Article Fourteenth, the following terms shall bedefined as follows:
     (1) The term “Business Combination” shall mean (a) any merger orconsolidation of the Corporation or a Subsidiary with a Related Person,(b) any sale, lease, exchange, mortgage, pledge, transfer or otherdisposition other than in the ordinary course of business to or with aRelated Person of any assets of the Corporation or a Subsidiary having anaggregate fair market value of $25,000,000 or more, (c) the issuance ortransfer by the Corporation of any shares of Voting Stock or securitiesconvertible into or exercisable for such shares (other than by way of prorata distribution to all stockholders) to a Related Person, (d) anyrecapitalization, merger or
 

 

consolidation that would have the effect of increasing the votingpower of a Related Person, (e) the adoption of any plan or proposal forthe liquidation or dissolution of the Corporation or a Subsidiaryproposed, directly or indirectly, by or on behalf of a Related Person, (f)any merger or consolidation of the Corporation with another Personproposed, directly or indirectly, by or on behalf of a Related Personunless the entity surviving or resulting from such merger or consolidationhas a provision in its certificate or articles of incorporation, charteror similar governing instrument which is substantially identical to thisArticle Fourteenth or (g) any agreement, contract or other arrangement orunderstanding providing, directly or indirectly, for any of thetransactions described in this Paragraph A(1).
     (2) The term “Related Person” shall mean any individual, partnership,corporation, trust or other Person which, together with its “affiliates”and “associates”, as defined in Rule 12b-2 under the Exchange Act as ineffect on January 1, 1993, and together with any other individual,partnership, corporation, trust or other Person with which it or they haveany agreement, contract or other arrangement or understanding with respectto acquiring, holding, voting or disposing of Voting Stock, “beneficiallyowns” (within the meaning of Rule 13d-3 under the Exchange Act on saiddate) an aggregate of 10% or more of the outstanding Voting Stock. ARelated Person, its affiliates and associates and all such otherindividuals, partnerships, corporations and other Persons with whom it orthey have any such agreement, contract or other arrangement orunderstanding, shall be deemed a single Related Person for purposes ofthis Article Fourteenth; *provided, however*, that the members of the Boardof Directors of the Corporation shall not be deemed to be associates orotherwise to constitute a Related Person solely by reason of their boardmembership. A person who is a Related Person as of (i) the time anydefinitive agreement relating to a Business Combination is entered into,(ii) the record date for the determination of stockholders entitled tonotice of and to vote on a Business Combination or (iii) immediately priorto the consummation of a Business Combination, shall be deemed a RelatedPerson for purposes of this Article Fourteenth.
     (3) The term “Continuing Director” shall mean any member of the Boardof Directors of the Corporation who is not an “affiliate” or “associate”of the Related Person referred to in Paragraph A(2) of this ArticleFourteenth and was a member of the Board of Directors prior to the timethat such Related Person became a Related Person, and any successor of aContinuing Director who is unaffiliated with such Related Person and isrecommended to succeed a Continuing Director by a majority of theContinuing Directors.
     4) The term “Person” shall mean any individual, firm, corporation orother entity.
     (5) The term “Subsidiary” shall mean any corporation or other entityof which the Person in question owns, directly or indirectly, not lessthan 50% of any class of equity securities or not less than 50% of thevoting power of all securities of the Corporation entitled to votegenerally in the election of directors.
     (6) The term “Voting Stock” shall mean any shares of the Corporationentitled to vote generally in the election of directors.
     7) The term “Entire Board of Directors” shall mean the total numberof directors which the Corporation would have if there were no vacanciesor unfilled newly created directorships.
 

 

     (8) The term “Market Value” shall mean the average of the high-andlow-quoted sales price on the date in question (or, if there is noreported sale on such date, on the last preceding date on which anyreported sale occurred) of a share on the Composite Tape for the New YorkStock Exchange — Listed Stocks, or, if the shares are not listed oradmitted to trading on such exchange, on the principal United Statessecurities exchange registered under the Exchange Act on which the sharesare listed or admitted to trading, or, if the shares are not listed oradmitted to trading on any such exchange, the mean between the closinghigh bid and low-asked quotations with respect to a share on such date asquoted on the National Association of Securities Dealers AutomatedQuotations System, or any similar system then in use, or, if no suchquotations are available, the fair market value on such date of a share asat least 66 2/3% of the Continuing Directors shall determine.
          **B**. In addition to any other vote required by this Restated Certificate ofIncorporation or the General Corporation Law of the State of Delaware, theaffirmative vote of the holders of not less than 85% of the outstanding VotingStock held by stockholders other than a Related Person by or with whom or onwhose behalf, directly or indirectly, a Business Combination is proposed,voting as a single class, shall be required for the approval or authorizationof such Business Combination; provided, however, that the 85% votingrequirement shall not be applicable and such Business Combination may beapproved by the vote required by law, if any, or by any other provision of thisCertificate of Incorporation if either:
     (1) The Business Combination is approved by the Board of Directors ofthe Corporation by the affirmative vote of at least 66 2/3% of theContinuing Directors, or
     (2) All of the following conditions are satisfied:
     (a) The aggregate amount of cash and the fair market value ofthe property, securities or other consideration to be received pershare of capital stock of the Corporation in the BusinessCombination by the holders of capital stock of the Corporation,other than the Related Person involved in the Business Combination,shall not be less than the highest of (i) the highest per shareprice (including brokerage commissions, soliciting dealers’ fees,and dealer-management compensation, and with appropriate adjustmentsfor recapitalizations, stock splits, stock dividends and liketransactions and distributions) paid by such Related Person inacquiring any of its holdings of such class or series of capitalstock, (ii) the highest per share Market Value of such class orseries of capital stock within the twelve-month period immediatelypreceding the date the proposal for such Business Combination wasfirst publicly announced or (iii) the book value per share of suchclass or series of capital stock, determined in accordance withgenerally accepted accounting principles, as of the last day of themonth immediately preceding the date the proposal for such BusinessCombination was first publicly announced;
     (b) The consideration to be received in such BusinessCombination by holders of capital stock other than the RelatedPerson involved shall, except to the extent that a shareholderagrees otherwise as to all or part of the shares which he or sheowns, be in the same form and of the same kind as the considerationpaid by the Related Person in acquiring capital stock already ownedby it, provided, however, that if the Related Person
 

 

has paid for capital stock with varying forms of consideration,the form of consideration for shares of capital stock acquired inthe Business Combination by the Related Person shall either be cashor the form used to acquire the largest number of shares of capitalstock previously acquired by it; and
     (c) A proxy statement responsive to the requirements of theExchange Act and regulations promulgated thereunder, whether or notthe Corporation is then subject to such requirements, shall bemailed to the stockholders of the Corporation for the purpose ofsoliciting stockholder approval of such Business Combination andshall contain at the front thereof, in a prominent place, (i) anyrecommendations as to the advisability (or inadvisability) of theBusiness Combination which the Continuing Directors may choose tostate and (ii) the opinion of a reputable investment banking firmselected by the Continuing Directors as to the fairness of the termsof such Business Combination, from a financial point of view, to thepublic stockholders (other than the Related Person) of theCorporation.
          **C**. A Related Person shall be deemed for purposes of this ArticleFourteenth to have acquired a share of the Corporation at the time when suchRelated Person became the beneficial owner thereof (as such term is defined inParagraph A(2) of this Article Fourteenth). With respect to shares owned byaffiliates, associates and other Persons whose ownership is attributed to aRelated Person, if the price paid by such Related Person for such shares is notdeterminable, the price so paid shall be deemed to be the higher of (i) theprice paid upon acquisition thereof by the affiliate, associate or other Personor (ii) the Market Value of the shares in question at the time when the RelatedPerson became the beneficial owner thereof.
          For purposes of this Article Fourteenth, in the event of a BusinessCombination upon consummation of which the Corporation would be the survivingcorporation or would continue to exist (unless it is provided, contemplated orintended that as part of such Business Combination a plan of liquidation ordissolution of the Corporation will be effected), the term “other considerationto be received” in Paragraph B(2)(a) shall include (without limitation) commonstock or other capital stock of the Corporation retained by stockholders of theCorporation (other than Related Persons who are parties to such BusinessCombination).
          Nothing contained in this Article shall be construed to relieve anyRelated Person from any fiduciary obligation imposed by law.
          **D.**Notwithstanding any other provision of this Restated Certificate ofIncorporation or the By-Laws of the Corporation (and notwithstanding the factthat a lesser percentage may be permitted by law), any amendment, addition,alteration, change or repeal of this Article Fourteenth, or any other amendmentof this Restated Certificate of Incorporation inconsistent with or modifying orpermitting circumvention of this Article Fourteenth, must first be proposed bythe Board of Directors of the Corporation, upon the affirmative vote of atleast two-thirds of the directors then in office at a duly constituted meetingof the Board of Directors called for such purpose, and thereafter approved bythe affirmative vote of the holders of not less than 85% of the thenoutstanding Voting Stock held by stockholders other than a Related Person by orwith whom or on whose behalf, directly or indirectly, a Business Combination isproposed, voting as a single class; provided, however, that this Paragraph Dshall not apply to, and such 85% vote shall not be required for, any suchamendment, addition,
 

 

alteration, change or repeal recommended to stockholders of theCorporation by the affirmative vote of not less than 66 2/3% of the ContinuingDirectors. For the purposes of this Paragraph D only, if at the time when anysuch amendment, addition, alteration, change or repeal is under considerationthere is no proposed Business Combination, the term “Continuing Directors”shall be deemed to mean the Entire Board of Directors.
               Fifteenth: The Board of Directors, each committee of the Board ofDirectors and each individual director, in discharging their respective dutiesunder applicable law and this Restated Certificate of Incorporation and indetermining what they each believe to be in the best interests of theCorporation and its stockholders, may consider the effects, both short-term andlong-term, of any action or proposed action taken or to be taken by theCorporation, the Board of Directors or any committee of the Board on theinterests of (i) the employees, associates, associated physicians,distributors, patients or other customers, suppliers and/or creditors of theCorporation and its subsidiaries and (ii) the communities in which theCorporation and its subsidiaries own or lease property or conduct business, allto the extent that the Board of Directors or any committee of the Board ofDirectors or any individual director deems pertinent under the circumstances(including the possibility that the interests of the Corporation may best beserved by the continued independence of the Corporation); provided, however,that the provisions of this Article Fifteenth shall not limit in any way theright of the Board of Directors to consider any other lawful factors in makingits determinations, including, without limitation, the effects, both short-termand long-term, of any action or proposed action on the Corporation or itsstockholders directly; and provided further that this Article Fifteenth shallbe deemed solely to grant discretionary authority to the Board of Directors,each committee of the Board of Directors and each individual director and shallnot be deemed to provide to any specific constituency any right to beconsidered.
               Sixteenth: Each person who was or is made a party or is threatened to bemade a party to or is involved (including, without limitation, as a witness) inany actual or threatened action, suit or proceeding (or any part thereof),whether civil, criminal, administrative or investigative (hereinafter a“proceeding”), by reason of the fact that he is or was a director, officer,employee or agent of the Corporation or is or was serving at the request of thecorporation as a director, officer, employee or agent of another corporation orof a partnership, joint venture, trust or other enterprise, including servicewith respect to an employee benefit plan (hereinafter an “indemnitee”), whetherthe basis of such proceeding is alleged action in an official capacity as adirector, officer, employee or agent or in any other capacity while serving assuch director, officer, employee or agent, shall be indemnified and heldharmless by the Corporation to the full extent authorized by the GeneralCorporation Law of the State of Delaware, as the same exists or may hereafterbe amended (but, in the case of any such amendment, only to the extent thatsuch amendment permits the Corporation to provide broader indemnificationrights than said law permitted the Corporation to provide prior to suchamendment), or by other applicable law as then in effect, against all expense,liability and loss (including attorneys’ fees, judgments, fines, excise taxesunder the Employee Retirement Income Security Act of 1974, as amended from timeto time (“ERISA”), penalties and amounts to be paid in settlement) actually andreasonably incurred or suffered by such indemnitee in connection therewith.The Corporation shall not be required to indemnify any indemnitee in connectionwith a proceeding initiated by such indemnitee unless the initiation of suchproceedings by the indemnitee was authorized by the Board of Directors of theCorporation.
 

 

          **A.***Procedure*. Any indemnification under this Article Sixteenth (unlessordered by a court) shall be made by the Corporation only as authorized in thespecific case upon a determination that indemnification of the director,officer, employee or agent is proper in the circumstances because he/she hasmet the applicable standard of conduct set forth in the General Corporation Lawof the State of Delaware, as the same exists or hereafter may be amended (but,in the case of any such amendment, only to the extent that such amendmentpermits the Corporation to provide broader indemnification rights than said lawpermitted the Corporation to provide prior to such amendment). Suchdetermination shall be made (a) by a majority vote of the directors who werenot parties to such action, suit or proceeding (the “Disinterested Directors”),even if less than a quorum or (b) if there are no Disinterested Directors or ifthe Disinterested Directors so direct, by independent legal counsel in awritten opinion, or (c) by the stockholders.
          **B.***Advances for Expense*. Costs, charges and expenses (includingattorneys’ fees) incurred by a director or officer of the Corporation indefending a civil or criminal action, suit or proceeding shall be paid by theCorporation in advance of the final disposition of such action, suit orproceeding upon receipt of an undertaking by or on behalf of the director orofficer to repay all amounts so advanced in the event that it shall ultimatelybe determined that such director or officer is not entitled to be indemnifiedby the Corporation as authorized in this Article Sixteenth. Such costs,charges and expenses incurred by other employees and agents may be so paid uponsuch terms and conditions, if any, as the majority of the DisinterestedDirectors deems appropriate. The majority of the Disinterested Directors may,in the manner set forth above, and upon approval of such director, officer,employee or agent of the Corporation, authorize the Corporation’s counsel torepresent such person, in any action, suit or proceeding whether or not theCorporation is a party to such action, suit or proceeding.
          **C.***Procedure for Indemnification*. Any indemnification or advance ofcosts, charges and expenses under this Article Sixteenth, shall be madepromptly, and in any event with 60 days upon the written request of thedirector, officer, employee or agent. The right to indemnification or advancesas granted by this Article Sixteenth shall be enforceable by the director,officer, employee or agent in any court of competent jurisdiction, if theCorporation denies such request, in whole or in part, or if no dispositionthereof is made within 60 days. Such person’s costs and expenses incurred inconnection with successfully establishing his/her right to indemnification, inwhole or in part, in any such action shall also be indemnified by theCorporation. It shall be a defense to any such action (other than an actionbrought to enforce a claim under Section 145(c) of the General Corporation Lawof the State of Delaware or for the advance of costs, charges and expensesunder this Article Sixteenth where the required undertaking, if any, has beenreceived by the Corporation) that the claimant has not met the standard ofconduct set forth in the General Corporation Law of the State of Delaware, asthe same exists or hereafter may be amended (but, in case of any suchamendment, only to the extent that such amendment permits the Corporation toprovide broader indemnification rights than said law permitted the Corporationto provide prior to such amendment), but the burden of proving such defenseshall be on the Corporation. Neither the failure of the Corporation (includingits Board of Directors, its independent legal counsel and its stockholder) tohave made a determination prior to the commencement of such action thatindemnification of the claimant is proper in the circumstances because he/shehas met the applicable standard of conduct set forth in the General CorporationLaw of the State of Delaware, as the same exists or hereafter may be amended(but, in the case of any such amendment, only to the extent that such amendmentpermits the Corporation to provide broader indemnification rights that said lawpermitted the Corporation to provide prior to such amendment), nor the factthat there has been an actual determination by the Corporation (including itsBoard of Directors, its independent legal counsel and its
 

 

stockholders) that the claimant has not met such applicable standard ofconduct, shall be a defense to the action or create a presumption that theclaimant has not met the applicable standard of conduct.
          **D.***Other Rights; Continuation of Rights to Indemnification*. Theindemnification and advancement of expenses provided by this Article Sixteenthshall not be deemed exclusive of any other rights to which a person seekingindemnification or advancement of expenses may by entitled under any law(common or statutory), by-law, agreement, vote of stockholders or disinteresteddirectors or otherwise, both as to action in his/her official capacity and asto action in another capacity while holding office or while employed by oracting as agent for the Corporation, and shall continue as to a person who hasceased to be a director, officer, employee or agent, and shall inure to thebenefit of the estate, heirs, executors and administrators of such person. Allrights to indemnification under this Article Sixteenth shall be deemed to be acontract between the Corporation and each director, officer, employee or agentof the Corporation who serves or served in such capacity at any time while thisArticle Sixteenth is in effect. Any repeal or modification of this ArticleSixteenth or any repeal or modification of relevant provisions of the GeneralCorporation Law of the State of Delaware or any other applicable laws shall notin any way diminish any rights to indemnification of such director, officer,employee or agent or the obligation of the actions, transactions or factsoccurring prior to the final adoption of such modification or repeal. For thepurposes of this Article Sixteenth, references to “the Corporation” include allconstituent corporations absorbed in consolidation or merger as well as theresulting or surviving corporation, so that any person who is or was adirector, officer, employee or agent of such a constituent corporation or is orwas serving at the request of such constituent corporation as a director,officer, employee or agent of another corporation, partnership, joint venture,trust or other enterprise shall stand in the same position under the provisionsof this Article Sixteenth, with respect to the resulting or survivingcorporation, as he would if he/she had served the resulting or survivingcorporation in the same capacity.
          **E.***Insurance.*The Corporation shall have power to purchase and maintaininsurance on behalf of any person who is or was or has agreed to become adirector, officer, employee or agent of the Corporation, or is or was servingat the request of the Corporation as a director, officer, employee or agent ofanother corporation, partnership, joint venture, trust or other enterpriseagainst any liability asserted against him/her and incurred by him/her or onhis/her behalf in any such capacity, or arising out of his/her status as such,whether or not the Corporation would have the power to indemnify him/heragainst such liability under the provisions of this Article Sixteenth;provided, however, that such insurance is available on acceptable terms whichdetermination shall be made by a vote of a majority of the Board of Directors.
          **F.***Savings Clause*. If this Article Sixteenth or any portion hereof shallbe invalidated on any ground by any court of competent jurisdiction, then theCorporation shall nevertheless indemnify each person entitled toindemnification under the first paragraph of this Article Sixteenth as to allexpense, liability and loss (including attorneys’ fees, judgments, fines, ERISAexcise taxes, penalties and amounts to be paid in settlement) actually andreasonable incurred or suffered by such person and for which indemnification isavailable to such person pursuant to this Article Sixteenth to the full extentpermitted by any applicable portion of this Article Sixteenth that shall nothave been invalidated and to the full extent permitted by applicable law.
               Seventeenth: In furtherance and not in limitation of the powers conferredby law or in this Restated Certificate of Incorporation, the Board of Directors(and any committee of the Board
 

 

of Directors) is expressly authorized, to the extent permitted by law, totake such action or actions as the Board or such committee may determine to bereasonably necessary or desirable to (A) encourage any person to enter intonegotiations with the Board of Directors and management of the Corporation withrespect to any transaction which may result in a change in control of theCorporation which is proposed or initiated by such person or (B) contest oroppose any such transaction which the Board of Directors or such committeedetermines to be unfair, abusive or otherwise undesirable with respect to theCorporation and its business, assets or properties or the stockholders of theCorporation, including, without limitation, the adoption of such plans or theissuance of such rights, options, capital stock, notes, debentures or otherevidences of indebtedness or other securities of the Corporation, which rights,options, capital stock, notes, evidence of indebtedness and other securities(i) may be exchangeable for or convertible into cash or other securities onsuch terms and conditions as may be determined by the Board or such committeeand (ii) may provide for the treatment of any holder or class of holdersthereof designated by the Board of Directors or any such committee in respectof the terms, conditions, provisions and rights of such securities which isdifferent from, and unequal to, the terms, conditions, provisions and rightsapplicable to all other holders thereof.
               Eighteenth: The Corporation reserves the right to amend, add, alter,change, repeal or adopt any provision contained in this Restated Certificate ofIncorporation, in the manner now or hereafter prescribed by statute, and allrights conferred upon stockholders herein are granted subject to thisreservation. In addition to any affirmative vote required by applicable law orany other provision of this Restated Certificate of Incorporation or specifiedin any agreement, and in addition to any voting rights granted to or held bythe holders of any series of Preferred Stock, the affirmative vote of theholders of not less than 75% of the voting power of all securities of theCorporation entitled to vote generally in the election of directors shall berequired to amend, add, alter, change, repeal or adopt any provisionsinconsistent with Articles Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth, and Eighteenth of thisRestated Certificate of Incorporation.