CERTIFICATE OF INCORPORATION
OF
CATALYST PHARMACEUTICAL PARTNERS, INC.

     The undersigned Incorporator, for the purpose of forming a corporation under the laws of the State of Delaware, hereby adopts the following Certificate of Incorporation:

ARTICLE I.
NAME

The name of the corporation is Catalyst Pharmaceutical Partners, Inc. (the “Corporation”)

ARTICLE II
REGISTERED OFFICE

     The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, in the city of Wilmington, County of New Castle, State of Delaware (zip code 19808). The name of its registered agent at such address is Corporation Service Company.

ARTICLE III
PURPOSES

     The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporate Laws for the State of Delaware (“DGCL”)

ARTICLE IV
CAPITAL STOCK

     The total number of shares of capital stock which the Corporation shall have the authority to issue is 105,000,000, of which (i) 100,000,000 shares shall be Common Stock, par value $0.001 per share (the “Common Stock”) and (ii) 5,000,000 shares shall be Preferred Stock, par value $0.001 per share (the “Preferred Stock”).

     The designations, powers, preferences and rights of, and the qualifications, limitations and restrictions upon, each class or series of stock shall be determined in accordance with, or as set forth below.

A. Common Stock

     Section 1. General. Except as otherwise expressly provided, all shares of Common Stock shall be identical and shall entitle the holders thereof to the same rights and privileges.

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     Section 2. Voting. Each holder of record shall be entitled to one vote for each share of Common Stock standing in his name on the books of the Corporation.

     Section 3. Dividends. Subject to applicable law, the holders of shares of Common Stock shall be entitled to receive dividends out of funds legally available therefor at such times and in such amounts as the Board of Directors may determine in its sole discretion, with each share of Common Stock sharing equally, share for share, in such dividends.

     Section 4. Liquidation. Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (each, a “Liquidation Event”), after the payment or provision for payment of all debts and liabilities of the Corporation and all preferential amounts to which the holders of Preferred Stock are entitled with respect to the distribution of assets in liquidation, the holders of Common Stock shall be entitled to share ratably in the remaining assets of the Corporation entitled for distribution.

B. Preferred Stock

     Subject to any limitations prescribed by law, the Board of Directors or any authorized committee thereof is expressly authorized to provide for the issuance of shares of Preferred Stock in one or more series of such stock, and by filing a certificate pursuant to applicable law in the State of Delaware, to establish or change from time-to-time and fix the number of shares to be included in each such series, and to fix the designations, powers, preferences and the relative, participating, optional or other special rights of the shares of each series and any qualifications, limitations and restrictions thereof. Any action by the Board of Directors or any authorized committee thereof under this Article IV to fix the designations, powers, preferences and the relative, participating, optional or other special rights of the shares of a series of Preferred Stock and any qualifications, limitations and restrictions thereof shall require the affirmative vote of the majority of the Directors then in office or a majority of the members of such committee. The authority of the Board of Directors or any authorized committee thereof shall include, but not be limited to, the right to determine or fix one or more of the following with respect to each series of Preferred Stock to the extent permitted by law:

     (a) The distinctive serial designation and the number of shares constituting such series;

     (b) The dividend rates of the amount of dividends to be paid on the shares of such series, whether dividends shall be cumulative, and, if so, from which date or dates, the payment date or dates for dividends, and the participating and other rights, if any, with respect to dividends;

     (c) The amounts payable on, and the preferences, if any, of the shares of the series in respect of dividends, and whether such dividends, if any, shall be full or cumulative;

     (d) The dates at which dividends, if any, shall be payable;

     (e) The voting powers, full or limited, if any, of the shares of such series;

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     (f) Whether the shares of such series shall be redeemable, and, if so, the price or prices at which, and the terms and conditions on which, such shares may be redeemed;

     (g) The amount or amounts payable upon the shares of such series and any preferences applicable thereto in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation;

     (h) Whether the shares of such series shall be entitled to the benefit of a sinking or retirement fund to be applied to the purchase or redemption of such shares, and if so entitled, the amount of such fund and the manner of its application, including the price or prices at which such shares may be redeemed or purchased through the application of such fund;

     (i) Whether the shares of such series shall be convertible into, or exchangeable for, shares of any other class or classes or of any other series of the same or any other class or classes of stock of the Corporation, and, if so convertible or exchangeable, the conversion price or prices, or the rate or rates of exchange, and the adjustments thereof, if any, at which such conversion or exchange may be made, and any other terms and conditions of such conversion or exchange;

     (j) The price or other consideration for which the shares of such series shall be issued;

     (k) Whether the shares of such series which are redeemed or converted shall have the status of authorized but unissued shares of Preferred Stock (or series thereof) and whether such shares may be reissued as shares of the same or any other class or series of stock; and

     (l) Such other powers, preferences, rights, qualifications, limitations, and restrictions thereof as the Board of Directors or any authorized committee thereof may deem advisable.

C. Rights

     The Board of Directors is expressly authorized to create and issue rights (the “Rights”) entitling the holders thereof to purchase from the Corporation shares of capital stock or other securities. The times at which and the terms upon which the Rights are to be issued will be determined by the Board of Directors and set forth in the contracts or instruments that evidence the Rights. The authority of the Board of Directors with respect to the Rights shall include, but not be limited to, determination of the following:

(a) The initial purchase price per share of the capital stock or other securities of the Corporation to be purchased upon exercise of the Rights;

(b) Provisions relating to the times at which and the circumstances under which the Rights may be exercised or sold or otherwise transferred, either together with or separately from, any other securities of the Corporation;

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(c) Provisions that adjust the number or exercise price of the Rights or amount or nature of the securities or other property receivable upon exercise of Rights in the event of a combination, split or recapitalizations of any capital stock of the Corporation, a change in ownership of the Corporation’s securities or a reorganization, merger, consolidation, sale of assets or other occurrence relating to the Corporation or any capital stock of the Corporation, and provisions restricting the ability of the Corporation to enter into any such transaction absent an assumption by the other party or parties thereto of the obligations of the Corporation under such Rights;

(d) Provisions that deny the holder of a specified percentage of the outstanding securities of the Corporation the right to exercise the Rights and/or cause the Rights held by such holder to become void;

(e) Provisions that permit the Corporation to redeem the Rights; and

(f) The appointment of a Rights Agent with respect to the Rights;

and such other provisions relating to the Rights as may be determined by the Board of Directors.

ARTICLE V
INCORPORATOR

     The incorporator of the Corporation is Philip B. Schwartz, whose mailing address is One Southeast Third Avenue, Miami, Florida 33131.

ARTICLE VI
STOCKHOLDER ACTION

     Any action required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders and may not be taken or effected by a written consent of stockholders in lieu thereof.

ARTICLE VII
DIRECTORS

     Section 1. General. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as otherwise provided for herein or required by law.

     Section 2. Election of Directors. Election of Directors need not be by written ballot unless the By-laws of the Corporation shall so provide.

     Section 3. Terms of Directors. The number of Directors of the Corporation shall be fixed by resolution duly adopted from time to time by the Board of Directors.

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     Notwithstanding the foregoing, whenever, pursuant to the provision of Article IV of this Certificate of Incorporation, the holders of any one or more series of Preferred Stock shall have the right, voting separately as a series or with holders of other such series, of Preferred Stock, to elect Directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Certificate of Incorporation and any certificate of designations applicable thereto.

     During any period when the holders of any series of Preferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Article IV hereof, then upon commencement and for the duration of the period during which such right continues; (i) the then otherwise total authorized number of Directors of the Corporation shall automatically be increased by such specified number of Directors, and the holders of such Preferred Stock shall be entitled to elect the additional Directors so provided for or fixed pursuant to said provisions, and (ii) each such additional Director shall serve until such Director’s successor shall have been duly elected or qualified, or until such Director’s right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to such Director’s earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect additional Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such additional Directors elected by the holders of such stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional Directors, shall forthwith terminate and the total and authorized number of Directors of the Corporation shall be reduced accordingly.

     Section 4. Vacancies.

     Subject to the rights, if any, of the holders of any series of Preferred Stock to elect Directors and to fill vacancies in the Board of Directors relating thereto, any and all vacancies and newly created directorships in the Board of Directors, however occurring, including, without limitation, by reason of an increase in size of the Board of Directors, or the death, resignation, disqualification or removal of a Director, shall be filled solely by the affirmative vote of a majority of the remaining Directors then in office, even if less than a quorum of the Board of Directors. Any Director appointed in accordance with the full preceding sentence shall hold office until the next annual meeting of stockholders or until such Director’s successor shall have been duly elected or qualified or until his or her earlier death, resignation, or removal. In the event of a vacancy in the Board of Directors, the remaining Directors, except as otherwise provided by law, may exercise the powers of the full board of Directors until the vacancy is filled.

     Section 5. Removal.

     Subject to the rights, if any, of any series of Preferred Stock to elect Directors and to remove any Director whom the holders of any such stock have the right to elect, any Director (including persons elected by Directors to fill vacancies in the Board of Directors) may be

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removed from office only by the affirmative vote of at least two-thirds of the total votes which would be eligible to be cast by stockholders in the election of such Director.

ARTICLE VIII
LIMITATION OF LIABILITY

     A Director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except for liability (i) for any breach of the Director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the Director derived an improper personal benefit. If the DGCL is amended after the effective date of this Certificate of Incorporation 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 or limited to the fullest extent permitted by the DGCL, as so amended.

     Any repeal or modification of this Article VII by either of (i) the stockholders of the Corporation or (ii) an amendment to the DGCL, shall not adversely affect any right or protection existing at the time of such repeal or modification with respect to any acts or omissions occurring before such repeal or modification of a person serving as a Director at the time of such repeal or modification.

ARTICLE IX
AMENDMENT OF BY-LAWS

     Section 1. Amendment by Directors. Except as otherwise provided by law, the By-laws of the Corporation may be amended or repealed by the Board of Directors.

     Section 2. Amendment by Stockholders. The By-laws of the Corporation may be amended or repealed at any annual meeting of stockholders, or special meeting of stockholders called for such purpose, by the affirmative vote of at least two-thirds of the total votes eligible to be cast on such amendment or repeal by holders of voting stock, voting together as a single class, provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal it shall only require the affirmative vote of a majority of the total votes eligible to be cast on such amendment or repeal by holders of voting stock, voting as a single class.

ARTICLE X
AMENDMENT OF CERTIFICATE OF INCORPORATION

     The Corporation reserves the right to amend or repeal this Certificate of Incorporation in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation. No amendment or repeal of this Certificate of Incorporation shall be made unless the same is first approved by the Board of Directors pursuant to a resolution adopted by the Board of Directors in accordance with Section 242 of the DGCL, and, except as otherwise provided by law, thereafter approved by

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the stockholders. Whenever any vote of the holders of voting stock is required, and in addition to any other vote of holders of voting stock that is required by this Certificate of Incorporation or by law, the affirmative vote of a majority of the total votes eligible to be cast by holders of voting stock with respect to such amendment or repeal, voting together as a single class at a duly constituted meeting of stockholders called expressly for such purpose shall be required to amend or repeal any provisions of this Certificate of Incorporation; provided, however, that the affirmative vote of not less than 80% of the total votes eligible to be cast by holders of voting stock, voting together as a single class, shall be required to amend or repeal any of the provisions of Article VI, VII, VIII, IX or X of this Certificate of Incorporation.

     Executed this 21st day of July, 2006 by:

 

 

 

 

 

 

 

 

 

/s/ Philip B. Schwartz  

 

 

Philip B. Schwartz, Incorporator 

 

 

 

 

 

CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
CATALYST PHARMACEUTICAL PARTNERS, INC.,
a Delaware Corporation

     Pursuant to Section 241 of the Delaware General Corporation Law (the “DGCL”), the Certificate of Incorporation of CATALYST PHARMACEUTICAL PARTNERS, INC., a Delaware corporation, hereinafter referred to as the corporation, is amended as follows:

     1. The following is added to Article IV of the Certificate of Incorporation of the Corporation:

Section 2. Series A Preferred Stock. The Corporation shall designate a series of Preferred Stock, to be designated as Series A Preferred Stock, with the following rights, privileges, and preferences:

     (a) Designation and Amount. The shares of such series shall be designated as Series A Preferred Stock (the “Series A Preferred Stock”) and the number of shares constituting the Series A Preferred Stock shall be 500,000. 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 Series A Preferred Stock to a number less than the number of shares then outstanding 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 Corporation convertible into Series A Preferred Stock.

     (b) Dividends and Distributions

     (1) In the event that the Corporation declares, makes or pays any dividends or other distributions upon the Common Stock (whether payable in cash, securities, rights or other property), the Corporation shall also declare and pay to the holders of the Series A Preferred Stock, at the same time that it declares and pays such dividends or other distributions to the holders of the Common Stock (and with the same record date), the dividends or distributions which would have been declared and paid with respect to the Common Stock issuable upon conversion of the Series A Preferred Stock had all of the outstanding Series A Preferred Stock been converted immediately prior to the record date for such dividend or distribution, or if no record date is fixed, the date as of which the record holders of Common Stock entitled to such dividends or distributions are determined.

     (2) In the event the Corporation shall at any time after the issue date declare and pay any dividend on the Common Stock payable in shares

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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 a dividend 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 Series A Preferred Stock were entitled immediately prior to such event 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 Common Stock that were outstanding immediately prior to such event.

     (c) Conversion Rights.

     (1) A holder of shares of Series A Preferred Stock may convert such shares into Common Stock at any time, at the option of the holder thereof. A holder of shares of Series A Preferred Stock exercising his conversion rights shall receive that number of shares of Common Stock as is determined by dividing $10.00 by the conversion price then in effect for such Series A Preferred Stock (the “Conversion Price”). Initially, the Conversion Price for the Series A Preferred Stock shall be $1.00, and each share of Series A Preferred Stock shall convert into approximately 10 shares of Common Stock.

     (2) To convert Series A Preferred Stock, a holder must (i) surrender the certificate or certificates evidencing the shares of Series A Preferred Stock to be converted, duly endorsed in a form satisfactory to the Corporation, at the office of the Corporation or transfer agent for the Series A Preferred Stock; (ii) notify the Corporation at such office that he elects to convert the Series A Preferred Stock and the number of shares he wishes to convert; (iii) state in writing the name or names in which he wishes the certificate or certificates for shares of Common Stock to be issued; and (iv) pay any transfer or similar tax if required. In the event that a holder fails to notify the Corporation of the number of shares of Series A Preferred Stock which he wishes to convert, he shall be deemed to have elected to convert all shares represented by the certificate or certificates surrendered for conversion. The date on which the holder satisfies all those requirements is the “Conversion Date.” As soon as practical following the Conversion Date, the Corporation shall deliver a certificate representing the number of full shares of Common Stock issuable upon the conversion, and a new certificate representing the unconverted portion, if any, of the Series A Preferred Stock represented by the certificate or certificates surrendered for conversion. The person in whose name the Common Stock certificate is registered shall be treated as the shareholder of record on and after the Conversion Date. The holder of record of a share of Series A Preferred Stock at the close

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Preferred Stock will be entitled to receive such dividends with respect to such share of Series A Preferred Stock on the corresponding dividend payment date, notwithstanding the conversion of such share after such record date and prior to such dividend payment date.

     (3) Each share of Series A Preferred Stock shall automatically and without further action by the Corporation or any other party convert into the number of shares of Common Stock as is determined by dividing $10.00 by the Conversion Price then in effect for such Series A Preferred Stock upon the occurrence of the following events: (i) the closing of a public offering covering the offer and sale of the Corporation’s common stock for the account of the Corporation at an aggregate offering price resulting in gross proceeds to the Corporation of not less than $3,000,000; (ii) the acceptance by the Nasdaq Stock Market, Inc., of the Corporation’s common stock for listing and trading on the Nasdaq SmallCap Market, the Nasdaq National Market or any national securities exchange and (iii) immediately prior to the sale of all or substantially all of the Corporation’s assets or a merger of the Corporation, so long as such sale or merger has been approved by a majority of the holders of the Corporation’s outstanding shares (voting together as a single voting group).

     (4) In case the Corporation shall pay or make a dividend or other distribution on any class of capital stock of the Corporation in Common Stock, the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for the determination of the holders entitled to such dividends and distributions. For the purposes of this paragraph, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation. The Corporation will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Corporation.

     In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be reduced, and conversely, in case the outstanding share of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following

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the day upon which such combination becomes effective shall be increased, in either case to equal the product of the Conversion Price in effect on such date and a fraction the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination, as the case may be, and the denominator of which shall be the number of shares of Common Stock outstanding immediately after such subdivision or combination, as the case may be. Such reduction or increase, as the case may be, shall become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.

     (5) No adjustment in the Conversion Price need be made until all cumulative adjustments amount to 1% or more of the Conversion Price as last adjusted. Any adjustments that are not made shall be carried forward and taken into account in any subsequent adjustment. Any adjustment to the Conversion Price carried forward and not theretofore made shall be made immediately prior to the conversion of any shares of Series A Preferred Stock pursuant hereto. No adjustment in the Conversion Price shall reduce the Conversion Price below the then par value of the Common Stock.

     (6) Whenever the Conversion Price is adjusted, the Corporation shall promptly mail to holders of the Series A Preferred Stock, first class, postage prepaid, a notice of the adjustment. The Corporation shall file with the transfer agent for the Series A Preferred Stock, if any, a certificate from the Corporation’s chief executive officer briefly stating the facts requiring the adjustment and the manner of computing it. In the event of any dispute thereon, the opinion of the Corporation’s independent public accountants, if accepted by the Board of Directors of the Corporation, shall be conclusive and binding on the holders of the Series A Preferred Stock absent manifest error.

     (7) The Corporation will not, by amendment of its Certificate of Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by this Corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Section 2 and in the taking of all such action as may be necessary or appropriate in order to protect the conversion rights of the holders of the Series A Preferred Stock against impairment.

     (8) No fractional shares shall be issued upon the conversion of any share or shares of the Series A Preferred Stock, and the number of shares of Common Stock to be issued shall be rounded to the nearest

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whole share. Whether or not fractional shares are issuable upon such conversion shall be determined on the basis of the total number of shares of Series A Preferred Stock the holder is at the time converting into Common Stock and the number of shares of Common Stock issuable upon such aggregate conversion.

     (9) Immediately following any such conversion, the rights of the holders of converted Series A Preferred Stock shall cease and the persons entitled to receive the Common Stock upon the conversion of the Series A Preferred Stock shall be treated for all purposes as having become the owners of such Common Stock.

     (d) Status of Converted Series A Preferred Stock. Any shares of Series A Preferred Stock which shall at any time have been converted pursuant to Section 2 shall, after such conversion, have the status of authorized but unissued shares of preferred stock, without designation as to series until such shares are once more designated as part of a particular series by the Board of Directors. After conversion of the Series A Preferred Stock, such shares shall not be reissued as shares of Series A Preferred Stock and the Company shall take such actions as are necessary to retire such stock and eliminate the authorization for the Series A Preferred Stock from the Certificate of Incorporation, which shall not require any further action of the stockholders.

     (e) Voting Rights. The holders of shares of Series A Preferred Stock shall have the following voting rights:

(1) Except as otherwise provided in the Certificate of Incorporation or required by law, each share of Series A Preferred Stock shall entitle the holder thereof to one vote for each share of Common Stock issuable upon conversion of the Series A Preferred Stock as of the record date for such vote (or action) or, if no record date is specified, as of the date of such vote (or action) on all matters upon which the holders of the Common Stock of the Corporation are entitled to vote.

(2) Except as otherwise provided herein and except as otherwise required by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of shareholders of the Corporation. The Series A Preferred Stock will be required to approve as a class, certain corporate actions, which require shareholder approval, including (i) any increase in authorized shares of any series of capital stock which are on par with or senior to the Series A Preferred Stock with respect to voting, liquidation or dividends, and (ii) any amendment to the Certificate of Incorporation or Bylaws of the Corporation which alters or changes the rights, preferences or privileges of the Series A Preferred Stock.

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     (f) Liquidation Preference. Upon any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, each holder of shares of Series A Preferred Stock will be entitled to payment out of the assets of the Corporation available for distribution of an amount equal to $10.00 per share of the Series A Preferred Stock held by such holder, plus an amount equal to any declared but unpaid dividends (the “Series A Liquidation Preference”), if any, to the date fixed for liquidation, dissolution or winding-up, before any distribution is made on any junior securities, including, without limitation, the Common Stock of the Corporation. After payment in full of the Series A Liquidation Preference, if any, to which holders of the Series A Preferred Stock are entitled, such holders will not be entitled to any further participation in any distribution of assets of the Corporation. If, upon any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, the amounts payable with respect to the Series A Preferred Stock and all other securities ranking pari passu with the Series A Preferred Stock and senior to the Common Stock (the “Parity Securities”) are not paid in full, the holders of the Series A Preferred Stock and the Parity Securities will share equally and ratably in any distribution of assets of the Corporation in proportion to the full liquidation preference, if any, to which each is entitled. However, neither the voluntary sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Corporation nor the consolidation or merger of the Corporation with or into one or more Persons will be deemed to be a voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, unless such sale, conveyance, exchange or transfer shall be in connection with a liquidation, dissolution or winding-up of the business of the Corporation.

     (g) No Redemption. The shares of Series A Preferred Stock will not be redeemable.

     (h) Rank. The Series A Preferred Stock shall rank pari passu with the shares of the Series B Preferred Stock of the Corporation (as described below) and senior to any other class of preferred stock that hereafter may be issued by the Corporation as to the payment of dividends and the distribution of assets, unless the terms of any such series or class shall provide otherwise.

     (i) Amendment. If any proposed amendment to the Certificate of Incorporation (including this Certificate of Amendment to the Certificate of Incorporation) would alter, change or repeal any of the preferences, powers or special rights given to the Series A Preferred Stock so as to affect the Series A Preferred Stock adversely, then the holders of the Series A Preferred Stock shall be entitled to vote separately as a class upon such amendment, and the affirmative vote of a majority or more of the outstanding shares of the Series A Preferred Stock, voting separately as a class, shall be necessary for the adoption thereof, in addition to such other vote as may be required by the Delaware General Corporation Act.

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Section 3. Series B Preferred Stock. The Corporation shall designate a series of Preferred Stock, to be designated as Series B Preferred Stock, with the following rights, privileges, and preferences:

     (a) Designation and Amount. The shares of such series shall be designated as Series B Preferred Stock (the “Series B Preferred Stock”) and the number of shares constituting Series B Preferred Stock shall be 11,500. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, however, that no decrease shall reduce the number of shares of Series B Preferred Stock to a number less than the number of shares then reserved for issuance upon the exercise of outstanding options, rights, or warrants or upon the conversion of any outstanding securities of the Corporation convertible into Series B Preferred Stock.

     (b) Dividends and Distributions

     (1) In the event that the Corporation declares, makes, or pays any dividends or other distributions upon the Common Stock (whether payable in cash, securities, rights or other property), the Corporation shall also declare and pay to the holders of the Series B Preferred Stock, at the same time that it declares and pays such dividends or other distributions to the holders of the Common Stock (and with the same record date), the dividends or distributions which would have been declared and paid with respect to the outstanding Series B Preferred Stock had all of the outstanding Series B Preferred Stock been converted immediately prior to the record date for such dividend or distribution, or if no record date is fixed, the date as of which the record holders of Common Stock entitled to such dividends or distributions are determined.

     (2) In the event that the Corporation shall at any time after the issue date declare and 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 a dividend 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 Series B Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.

     (c) Conversion Rights

     (1) A holder of shares of Series B Preferred Stock may convert such shares into Common Stock at any time, at the option of the holder

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thereof. A holder of shares of Series B Preferred Stock exercising his conversion rights shall receive 100 shares of Common Stock for each share of Series B Preferred Stock.

     (2) To convert Series B Preferred Stock, a holder must (i) surrender the certificate or certificates evidencing the shares of Series B Preferred Stock to be converted, duly endorsed in a form satisfactory to the Corporation, at the office of the Corporation or transfer agent for the Series B Preferred Stock; (ii) notify the Corporation at such office that he elects to convert the Series B Preferred Stock and the number of shares he wishes to convert; (iii) state in writing the name or names in which he wishes the certificate or certificates for shares of Common Stock to be issued; and (iv) pay any transfer or similar tax if required. In the event that a holder fails to notify the Corporation of the number of shares of Series B Preferred Stock which he wishes to convert, he shall be deemed to have elected to convert all shares represented by the certificate or certificates surrendered for conversion. As soon as practical following the Conversion Date, the Corporation shall deliver a certificate representing the number of full shares of Common Stock issuable upon the conversion, and a new certificate representing the unconverted portion, if any, of the Series B Preferred Stock represented by the certificate or certificates surrendered for conversion. The person in whose name the Common Stock certificate is registered shall be treated as the shareholder of record on and after the Conversion Date. The holder of record of a share of Series B Preferred Stock at the close of business on a record date with respect to the payment of dividends on the Series B Preferred Stock will be entitled to receive such dividends with respect to such share of Series B Preferred Stock on the corresponding dividend payment date, notwithstanding the conversion of such share after such record date and prior to such dividend payment date.

     (3) Each share of Series B Preferred Stock shall automatically and without further action by the Corporation or any other party convert into 100 shares of Common Stock upon the occurrence of the following events: (i) the closing of a public offering covering the offer and sale of the Corporation’s common stock for the account of the Corporation at an aggregate offering price resulting in gross proceeds to the Corporation of not less than $20,000,000; (ii) the acceptance by the Nasdaq Stock Market, Inc., or a national securities exchange, of the Corporation’s common stock for listing and trading on the Nasdaq SmallCap Market, the Nasdaq National Market or any national securities exchange and (iii) immediately prior to the sale of all or substantially all of the Corporation’s assets or a merger of the Corporation, so long as such sale or merger has been approved by a majority of the holders of the Corporation’s outstanding shares (voting together as a single voting group).

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     (4) In case the Corporation shall pay or make a dividend or other distribution on any class of capital stock of the Corporation in Common Stock, the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for the determination of the holders entitled to such dividends and distributions. For the purposes of this paragraph, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation. The Corporation will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Corporation.

     In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be reduced, and conversely, in case the outstanding share of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be increased, in either case to equal the product of the Conversion Price in effect on such date and a fraction the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or combination, as the case may be, and the denominator of which shall be the number of shares of Common Stock outstanding immediately after such subdivision or combination, as the case may be. Such reduction or increase, as the case may be, shall become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.

     (5) The Corporation will not, by amendment of its Certificate of Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by this Corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Section 3 and in the taking of all such action as may be necessary or appropriate in order to protect the conversion rights of the holders of the Series B Preferred Stock against impairment.

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     (6) Immediately following any such conversion, the rights of the holders of converted Series B Preferred Stock shall cease and the persons entitled to receive the Common Stock upon the conversion of the Series B Preferred Stock shall be treated for all purposes as having become the owners of such Common Stock.

     (d) Status of Converted Series B Preferred Stock. Any shares of Series B Preferred Stock which shall at any time have been converted pursuant to this Section 3 shall, after such conversion, have the status of authorized but unissued shares of preferred stock, without designation as to series until such shares are once more designated as part of a particular series by the Board of Directors. After conversion of the Series B Preferred Stock, such shares shall not be reissued as shares of Series B Preferred Stock and the Company shall take such actions as are necessary to retire such stock and eliminate the authorization for the Series B Preferred Stock from the Certificate of Incorporation, which shall not require any further action of the stockholders.

     (e) Voting Rights. The holders of shares of Series B Preferred Stock shall have the following voting rights:

     (1) Except as otherwise provided in the Certificate of Incorporation or required by law, each share of Series B Preferred Stock shall entitle the holder thereof to one vote for each share of Common Stock issuable upon conversion of the Series B Preferred Stock as of the record date for such vote (or action) or, if no record date is specified, as of the date of such vote (or action) on all matters upon which the holders of the Common Stock of the Corporation are entitled to vote.

     (2) Except as otherwise provided herein and except as otherwise required by law, the holders of shares of Series B Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of shareholders of the Corporation. The Series B Preferred Stock will be required to approve as a class, certain corporate actions, which require shareholder approval, including (i) any increase in authorized shares of any series of capital stock which are on par with or senior to the Series B Preferred Stock with respect to voting, liquidation or dividends, and (ii) any amendment to the Certificate of Incorporation or Bylaws of the Corporation which alters or changes the rights, preferences or privileges of the Series B Preferred Stock.

     (f) Liquidation Preference. Upon any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, each holder of shares of Series B Preferred Stock will be entitled to payment out of the assets of the

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Corporation available for distribution of an amount equal to $435.00 per share of the Series B Preferred Stock held by such holder, plus an amount equal to any declared but unpaid dividends (the “Series B Liquidation Preference”), if any, to the date fixed for liquidation, dissolution or winding-up, before any distribution is made on any junior securities, including, without limitation, the Common Stock of the Corporation. After payment in full of the Series B Liquidation Preference, if any, to which holders of the Series B Preferred Stock are entitled, such holders will not be entitled to any further participation in any distribution of assets of the Corporation. If, upon any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, the amounts payable with respect to the Series B Preferred Stock and all other securities ranking pari passu with the Series B Preferred Stock and senior to the Common Stock are not paid in full, the holders of the Series B Preferred Stock and the Parity Securities will share equally and ratably in any distribution of assets of the Corporation in proportion to the full liquidation preference, if any, to which each is entitled. However, neither the voluntary sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Corporation nor the consolidation or merger of the Corporation with or into one or more Persons will be deemed to be a voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, unless such sale, conveyance, exchange or transfer shall be in connection with a liquidation, dissolution or winding-up of the business of the Corporation.

     (g) No Redemption. The shares of Series B Preferred Stock will not be redeemable.

     (h) Rank. The Series B Preferred Stock shall rank pari pasu with the shares of the Series A Preferred Stock, par value $.01 per share, and senior to any other class of preferred stock that hereafter may be issued by the Corporation as to the payment of dividends and the distribution of assets, unless the terms of any such series or class shall provide otherwise.

     (i) Amendment. If any proposed amendment to the Certificate of Incorporation (including this Certificate of Amendment to the Certificate of Incorporation) would alter, change or repeal any of the preferences, powers or special rights given to the Series B Preferred Stock so as to affect the Series B Preferred Stock adversely, then the holders of the Series B Preferred Stock shall be entitled to vote separately as a class upon such amendment, and the affirmative vote of a majority or more of the outstanding shares of the Series B Preferred Stock, voting separately as a class, shall be necessary for the adoption thereof, in addition to such other vote as may be required by the Delaware General Corporation Act.

* * *

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     2. Except as provided for above, the Certificate of Incorporation of the Corporation shall remain unchanged and unamended.

     3. The Corporation has not received any payment for any of its capital stock.

     On July 21, 2006, the incorporator of the Corporation approved the changes that are being made to the Certificate of Incorporation prior to the organization of the Corporation, the appointment of a Board of Directors and the issuance of or payment for any capital stock.

     IN WITNESS WHEREOF, the undersigned, as incorporator of the Corporation, has executed this Certificate of Amendment on this 21st day of July, 2006.

 

 

 

 

 

 

CATALYST PHARMACEUTICAL PARTNERS, INC.
 

 

 

By:  

/s/ Philip B. Schwartz  

 

 

 

Philip B. Schwartz, Incorporator 

 

 

 

 

 

 

CERTIFICATE OF AMENDMENT

TO THE CERTIFICATE OF INCORPORATION

OF

CATALYST PHARMACEUTICAL PARTNERS, INC.

a Delaware Corporation

Pursuant to the Delaware General Corporation Law (the “DGCL”), the Certificate of Incorporation of CATALYST PHARMACEUTICAL PARTNERS, INC., a Delaware corporation, hereinafter referred to as the “Corporation,” is amended as follows:

 

 

1.

Article I of the Certificate of Incorporation of the Corporation is amended in its entirety to read as follows:

The name of the Corporation is Catalyst Pharmaceuticals, Inc. (the “Corporation”)

 

 

2.

The first paragraph of Article IV of the Certificate of Incorporation of the Corporation is amended in its entirety to read as follows:

The total number of shares of capital stock which the Corporation shall have the authority to issue is 155,000,000, of which (i) 150,000,000 shares shall be common stock, par value $0.001 per share (the “Common Stock”), and (ii) 5,000,000 shares shall be preferred stock, par value $0.001 per share (the “Preferred Stock”)

 

 

3.

Except as provided for above, the Certificate of Incorporation of the Corporation shall remain unchanged.

On February 19, 2015, the Board of Directors of the Corporation approved these changes that are being made to the Certificate of Incorporation and recommended such changes to the stockholders of the Corporation. These changes were approved by the stockholders of the Corporation at the Corporation’s Annual Meeting of Stockholders held on May 21, 2015.

This amendment shall become effective upon its filing with the Secretary of State of Delaware.

IN WITNESS WHEREOF, the undersigned officer of the Corporation has executed this Certificate of Amendment to Certificate of Incorporation of the Company this 21st day of May, 2015.

 

CATALYST PHARMACEUTICAL

PARTNERS, INC.

By:

/s/ Patrick J. McEnany

Patrick J. McEnany

Chairman, President and CEO

 

[As Filed: 05-22-2015]