AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
The undersigned, Alfred E. Mann, in accordance with the provisions of
Sections 242 and 245 of the Delaware General Corporation Law ("DGCL") hereby
FIRST: He is the duly elected and acting Chairman of the Board and Chief
Executive Officer of MannKind Corporation, a Delaware corporation (the
SECOND: The original name of this Corporation was Pharmaceutical Discovery
Corporation and the date of filing of the original Certificate of Incorporation
of this Corporation with the Secretary of State of the State of Delaware was
February 14, 1991.
THIRD: This Amended and Restated Certificate of Incorporation (the
"AMENDED AND RESTATED CERTIFICATE") has been duly approved and adopted by the
Board of Directors of the Corporation (the "BOARD") in accordance with the
applicable provisions of Sections 242 and 245 of the DGCL.
FOURTH: This Amended and Restated Certificate has been duly approved and
adopted by the stockholders of the Corporation in accordance with the applicable
provisions of Sections 228, 242 and 245 of the DGCL.
FIFTH: The text of the Restated Certificate of Incorporation, as
heretofore amended or supplemented, is hereby amended and restated in its
entirety to read as follows:
The name of this corporation is MannKind Corporation (the "CORPORATION").
The address of the registered office of the corporation in the State of
Delaware is 2711 Centerville Road, Suite 400, City of Wilmington, County of New
Castle, 19808 and the name of the registered agent of the Corporation in the
State of Delaware at such address is the Corporation Service Company.
The purpose of this Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the DGCL.
A. This Corporation is authorized to issue two classes of stock to be
designated, respectively, "COMMON STOCK" and "PREFERRED STOCK." The total number
of shares which the Corporation is authorized to issue is one hundred million
(100,000,000) shares. Ninety million (90,000,000) shares shall be Common Stock,
each having a par value of one cent ($.01). Ten million (10,000,000) shares
shall be Preferred Stock, each having a par value of one cent ($.01).
B. The Preferred Stock may be issued from time to time in one or more
series. The Board is hereby expressly authorized to provide for the issue of all
or any of the remaining shares of the Preferred Stock in one or more series, and
to fix the number of shares and to determine or alter for each such series, such
voting powers, full or limited, or no voting powers, and such designation,
preferences, and relative, participating, optional, or other rights and such
qualifications, limitations, or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board providing for
the issuance of such shares and as may be permitted by the DGCL. The Board is
also expressly authorized to increase or decrease the number of shares of any
series subsequent to the issuance of shares of that series, but not below the
number of shares of such series then outstanding. In case the number of shares
of any series shall be decreased in accordance with the foregoing sentence, the
shares constituting such decrease shall resume the status that they had prior to
the adoption of the resolution originally fixing the number of shares of such
series. The number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the Common Stock, without a
vote of the holders of the Preferred Stock, or of any series thereof, unless a
vote of any such holders is required pursuant to the terms of any certificate of
designation filed with respect to any series of Preferred Stock.
C. Each outstanding share of Common Stock shall entitle the holder thereof
to one vote on each matter properly submitted to the stockholders of the
Corporation for their vote; provided, however, that, except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this Certificate of Incorporation (including any certificate of
designation filed with respect to any series of Preferred Stock) that relates
solely to the terms of one or more outstanding series of Preferred Stock if the
holders of such affected series are entitled, either separately or together as a
class with the holders of one or more other such series, to vote thereon by law
or pursuant to this Certificate of Incorporation (including any certificate of
designation filed with respect to any series of Preferred Stock).
For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. BOARD OF DIRECTORS
1. The management of the business and the conduct of the affairs of
the Corporation shall be vested in the Board. The number of directors which
shall constitute the
Board shall be fixed exclusively by resolutions adopted by a majority of the
authorized number of directors constituting the Board.
2. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, directors
shall be elected at each annual meeting of stockholders for a term of one year.
Each director shall serve until his successor is duly elected and qualified or
until his death, resignation or removal. No decrease in the number of directors
constituting the Board shall shorten the term of any incumbent director.
3. Subject to the rights of the holders of any series of Preferred
Stock, any vacancies on the Board resulting from death, resignation,
disqualification, removal or other causes and any newly created directorships
resulting from any increase in the number of directors, shall, unless the Board
determines by resolution that any such vacancies or newly created directorships
shall be filled by the stockholders, except as otherwise provided by law, be
filled only by the affirmative vote of a majority of the directors then in
office, even though less than a quorum of the Board, and not by the
stockholders. Any director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the director for which
the vacancy was created or occurred and until such director's successor shall
have been elected and qualified.
4. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
B. BYLAW AMENDMENTS. The Board is expressly empowered to adopt, amend
or repeal the Bylaws of the Corporation. The stockholders shall also have power
to adopt, amend or repeal the Bylaws of the Corporation; provided, however,
that, in addition to any vote of the holders of any class or series of stock of
the Corporation required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least sixty-six and two-thirds percent (66
2/3%) of the voting power of all of the then-outstanding shares of the capital
stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to adopt, amend
or repeal any provision of the Bylaws of the Corporation.
C. STOCKHOLDER ACTION. No action shall be taken by the stockholders of
the Corporation except at an annual or special meeting of stockholders called in
accordance with the Bylaws. No action shall be taken by the stockholders by
written consent or electronic transmission.
D. ADVANCE NOTICE. Advance notice of stockholder nominations for the
election of directors and of business to be brought by stockholders before any
meeting of the stockholders of the Corporation shall be given in the manner
provided in the Bylaws of the Corporation.
A. The liability of the directors for monetary damages shall be
eliminated to the fullest extent under applicable law. If the DGCL is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the corporation
shall be eliminated to the fullest extent permitted by the DGCL, as so amended.
B. Any repeal or modification of this Article VI shall be prospective
and shall not affect the rights under this Article VI in effect at the time of
the alleged occurrence of any act or omission to act giving rise to liability or
A. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, except as provided in paragraph B. of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Corporation required by law or by this
Certificate of Incorporation or any certificate of designation filed with
respect to a series of Preferred Stock, the affirmative vote of the holders of
at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all
of the then-outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class,
shall be required to alter, amend or repeal Articles V, VI, and VII.
IN WITNESS WHEREOF, MANNKIND CORPORATION has caused this Amended and
Restated Certificate of Incorporation to be signed on this ____ day of
__________, 2004 by the undersigned who affirms that the statements made herein
are true and correct.
ALFRED E. MANN
Chairman of the Board and
Chief Executive Officer