EXHIBIT 3.5
Published on
Exhibit 3.5
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SONUS PHARMACEUTICALS, INC.
(AS AMENDED THROUGH MAY 5, 2004)
ARTICLE I - NAME
The name of this Corporation is SONUS Pharmaceuticals, Inc.
ARTICLE II -- REGISTERED OFFICE AND AGENT
The address of registered office of the Corporation in the State of
Delaware is 32 Loockerman Square, Suite L-100, Dover, County of Kent, Delaware
19901. The name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc., County of Kent.
ARTICLE III -- PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware, as amended from time to time.
ARTICLE IV -- AUTHORIZED CAPITAL
This Corporation is authorized to issue two classes of stock to be
designated respectively, "Common Stock" and "Preferred Stock." The total number
of shares of all classes of stock which the Corporation shall have authority to
issue is 80,000,000, of which (i) 75,000,000 shares shall be designated Common
Stock and shall have a par value of $.001 per share; and (ii) 5,000,000 shares
shall be designated Preferred Stock and shall have a par value of $.001 per
share. The Board of Directors is authorized, subject to limitations prescribed
by law, to provide for the issuance of the shares of Preferred Stock in one or
more series, and by filing a certificate pursuant to the applicable law of the
State of Delaware, to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences
and rights of the shares of each such series and the qualifications, limitations
or restrictions thereof. The authority of the Board with respect to each series
shall include, but not be limited to, determination of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate on the shares of that series, whether
dividends shall be cumulative and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of that
series;
(c) Whether that series shall have voting rights, in addition to
the voting rights provided by law and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion privileges and, if
so, the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors shall
determine;
(e) Whether or not the shares of that series shall be redeemable
and, if so, the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable and the amount per share
payable in case of redemption, which amount may vary under different conditions
and at different redemption dates;
(f) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so, the terms and amount
of such sinking fund; and
(g) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of shares
of that series.
ARTICLE V -- BOARD OF DIRECTORS
AND MEETINGS OF STOCKHOLDERS
Section 1. The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors and elections of directors need
not be by written ballot unless otherwise provided in the Bylaws. The number of
directors of the Corporation shall be fixed from time to time by the Board of
Directors either by a resolution or Bylaw adopted by the affirmative vote of a
majority of the entire Board of Directors.
Section 2. Meetings of the stockholders may be held within or without the
State of Delaware, as the Bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained in the Delaware Statutes) outside
the State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or by the Bylaws of the Corporation.
ARTICLE VI -- LIMITATION OF DIRECTORS' LIABILITY
A director of this Corporation shall not be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent that exculpation from liability is not permitted
under the General Corporation Law of the State of Delaware as in effect at the
time such liability is determined. No amendment or repeal of this Article VI
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
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ARTICLE VII -- INDEMNIFICATION OF OFFICERS AND DIRECTORS
This Corporation shall, to the maximum extent permitted from time to time
under the law of the State of Delaware, indemnify and upon request shall advance
expenses to any person who is or was a party or is threatened to be made a party
to any threatened, pending or completed action, suit, proceeding or claim,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was or has agreed to be a director or officer of this
Corporation or while a director or officer is or was serving at the request of
this Corporation as a director, officer, partner, trustee, employee or agent of
any corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against expenses
(including attorney's fees and expenses), judgments, fines, penalties and
amounts paid in settlement incurred in connection with the investigation,
preparation to defend or defense of such action, suit, proceeding or claim;
provided; however, that the foregoing shall not require this Corporation to
indemnify or advance expenses to any person in connection with any action, suit,
proceeding, claim or counterclaim initiated by or on behalf of such person. Such
indemnification shall not be exclusive of other indemnification rights arising
under any by-law, agreement, vote of directors or stockholders or otherwise and
shall inure to the benefit of the heirs and legal representatives of such
person. Any person seeking indemnification under this Article VII shall be
deemed to have met the standard of conduct required for such indemnification
unless the contrary shall be established. Any repeal or modification of the
foregoing provisions of this Article VII shall not adversely affect any right or
protection of a director or officer of this corporation with respect to any acts
or omissions of such director or officer occurring prior to such repeal or
modification.
ARTICLE VIII -- AMENDMENT OF BYLAWS
In furtherance and not in limitation of the power conferred upon the Board
of Directors by law, the Board of Directors shall have the power to make, adopt,
alter, amend and repeal from time to time Bylaws of this corporation, subject to
the right of the stockholders entitled to vote with respect thereto to alter and
repeal Bylaws made by the Board of Directors.
ARTICLE IX -- ACTION BY MEETINGS
Stockholders of the Corporation may not take action by written consent in
lieu of a meeting. Any action contemplated by the stockholders must be taken at
a duly called annual or special meeting.
ARTICLE X -- CUMULATIVE VOTING
At all elections of directors of the Corporation, each stockholder of the
Corporation shall be entitled to as many votes as shall equal the number of
votes which the stockholder would be entitled to cast for the election of
directors with respect to the stockholder's shares of stock multiplied by the
number of directors to be elected by the stockholders, and each stockholder may
cast all of such votes for a single director or may distribute them among the
number to be voted for, or for any two or more of them as the stockholder may
see fit.
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ARTICLE XI -- AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
ARTICLE XIII -- PERPETUAL EXISTENCE
The Corporation is to have perpetual existence.
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