RESTATED

 

                          CERTIFICATE OF INCORPORATION

 

                                       OF

 

                           ALTUS PHARMACEUTICALS INC.

 

                    (Pursuant to Sections 242 and 245 of the

                General Corporation Law of the State of Delaware)

 

     Altus Pharmaceuticals Inc. (the "Corporation"), a corporation organized and

existing under the laws of the State of Delaware, hereby certifies as follows:

 

     1. The name of the Corporation is Altus Pharmaceuticals Inc. The date of

filing of the Corporation's original Certificate of Incorporation with the

Secretary of State of the State of Delaware was August 20, 2001 under the name

Altus Biologics Inc.

 

     2. The text of the Corporation's Restated Certificate of Incorporation, as

amended, is hereby amended and restated to read in full as follows:

 

     FIRST: The name of the corporation (hereinafter called the "Corporation")

is

 

                           ALTUS PHARMACEUTICALS INC.

 

     SECOND: The name and address of the Corporation's registered agent in the

State of Delaware is The Corporation Trust Company, Corporation Trust Center,

1209 Orange Street, City of Wilmington, County of New Castle.

 

     THIRD: The purpose of the Corporation is to engage in any lawful act or

activity or carry on any business for which corporations may be organized under

the Delaware General Corporation Law or any successor statue.

 

     FOURTH:

 

     A. Designation and Number of Shares.

 

     The total number of shares of all classes of stock which the Corporation

shall have the authority to issue is 105,000,000 shares, consisting of

100,000,000 shares of common stock, par value $0.01 per share (the "Common

Stock") and 5,000,000 shares of Preferred Stock, par value $0.01 per share (the

"Preferred Stock"), of which 450,000 shares shall be designated as "Redeemable

Preferred Stock."

 

     The term "Restated Certificate of Incorporation" as used herein shall mean

the Restated Certificate of Incorporation of the Corporation as amended from

time to time. The number of

 

<PAGE>

 

authorized shares of Common Stock or 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 voting power of all of the

outstanding shares of capital stock then entitled to vote, voting together as a

single class, without a separate class vote of the holders of the Common Stock

or Preferred Stock, or of any series thereof, unless a vote of any such holders

is required pursuant to the terms of any Preferred Stock designation.

 

     B. Preferred Stock

 

     1. Shares of Preferred Stock may be issued in one or more series at such

time or times and for such consideration as the Board of Directors may

determine.

 

     2. Authority is hereby expressly granted to the Board of Directors to fix

from time to time, by resolution or resolutions providing for the establishment

and/or issuance of any series of Preferred Stock, the designation and number of

the shares of such series and the powers, preferences and rights of such series,

and the qualifications, limitations or restrictions thereof, to the fullest

extent such authority may be conferred upon the Board of Directors under the

Delaware General Corporation Law. Without limiting the generality of the

foregoing, the resolutions providing for issuance of any series of Preferred

Stock may provide that such series shall be superior or rank equally or be

junior to the Preferred Stock of any other series to the extent permitted by

law.

 

     C. Redeemable Preferred Stock

 

     1. Dividends. The holder of each share of Redeemable Preferred Stock shall

be entitled to receive, out of any funds legally available therefor, dividends

at the per annum rate of five percent (5%) of the purchase price of such shares

(the "Redeemable Preferred Dividends"). No dividend shall be declared, paid or

set aside for payment on any shares of Common Stock, other than a dividend in

order to effectuate a stock split or a shareholder rights plan, until accrued

but unpaid (whether or not declared) Redeemable Preferred Dividends shall have

been paid. The Redeemable Preferred Dividends shall accrue and be deemed to

accrue from day to day whether or not earned or declared, and shall be

cumulative. Other than the repurchase of shares of Common Stock of the

Corporation from service providers to or employees of the Corporation or any of

its subsidiaries pursuant to agreements under which the Corporation has the

option to repurchase such shares at cost upon the occurrence of certain events

such as the termination of employment, the Corporation shall not purchase or

acquire any other shares of capital stock of the Corporation unless all accrued

but unpaid (whether or not declared) Redeemable Preferred Dividends have been

paid. Any accumulation of dividends on the Redeemable Preferred Stock shall not

bear interest.

 

     2. Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations

and Asset Sales.

 

     (a) In the event of any voluntary or involuntary liquidation, dissolution

or winding up of the Corporation, the holders of shares of Redeemable Preferred

Stock then outstanding shall be entitled to be paid out of the assets of the

Corporation available for distribution to its

 

 

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stockholders, after and subject to the payment in full of all amounts required

to be distributed to holders of any other class or series of stock of the

Corporation ranking on liquidation prior to and in preference to the Redeemable

Preferred Stock, and before any payment to the holders of Common Stock, or any

other class or series of stock ranking on liquidation junior to the Redeemable

Preferred Stock by reason of their ownership thereof, an amount equal to $10.00

per share (subject to appropriate adjustment in the event of any stock dividend,

stock split, combination or other similar recapitalization affecting such

shares), plus any accrued but unpaid dividends (whether or not declared) on such

shares (the "Redeemable Preferred Liquidation Amount"). If upon any such

liquidation, dissolution or winding up of the Corporation the remaining assets

of the Corporation available for distribution to its stockholders shall be

insufficient to pay the holders of shares of Redeemable Preferred Stock and any

class or series of stock ranking on liquidation on a parity with the Redeemable

Preferred Stock the full amount to which they shall be entitled, the holders of

shares of Redeemable Preferred Stock and any class or series of stock ranking on

liquidation on a parity with the Redeemable Preferred Stock shall share ratably

in any distribution of the remaining assets and funds of the Corporation in

proportion to the respective amounts which would otherwise be payable in respect

of the shares held by them upon such distribution if all amounts payable on or

with respect to such shares were paid in full.

 

     (b) Deemed Liquidation Events.

 

     (i) The following events shall be deemed to be a liquidation of the

Corporation (a "Deemed Liquidation Event"):

 

          (A) a merger or consolidation in which

 

               (I) the Corporation is a constituent party, or

 

               (II) a subsidiary of the Corporation is a constituent party and

the Corporation issues shares of its capital stock pursuant to such merger or

consolidation, except any such merger or consolidation involving the Corporation

or a subsidiary in which the holders of the issued and outstanding shares of

capital stock of the Corporation immediately prior to such merger or

consolidation continue to hold immediately following such merger or

consolidation at least sixty percent (60%) of the voting power of the capital

stock of (1) the surviving or resulting corporation or (2) if the surviving or

resulting corporation is a wholly owned subsidiary of another corporation

immediately following such merger or consolidation, the parent corporation of

such surviving or resulting corporation; or

 

          (B) the sale of all or substantially all the assets of the Corporation

(except where such sale is to a wholly owned subsidiary of the Corporation).

 

     (ii) The Corporation shall not effect any merger or consolidation

constituting a Deemed Liquidation Event unless (A) the agreement or plan of

merger or consolidation provides that the consideration payable to the holders

of Redeemable Preferred Stock shall be allocated among the holders of Redeemable

Preferred Stock in accordance with Section C2(a) above or (B) the holders of at

least two-thirds of the then outstanding shares of Redeemable Preferred

 

 

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<PAGE>

 

Stock specifically consent in writing to the allocation of such consideration in

a manner different from that provided in Section C2(a) above.

 

     (iii) In the event of a sale of all or substantially all the assets of the

Corporation constituting a Deemed Liquidation Event, if the Corporation effects

a dissolution of the Corporation under the Delaware General Corporation Law (a

"Statutory Dissolution") within 30 days after such Deemed Liquidation Event,

then all assets available for distribution to the Corporation's stockholders

upon such Statutory Dissolution shall be distributed to the holders of capital

stock of the Corporation in accordance with Section C2(a) above. If the

Corporation does not effect a Statutory Dissolution within 30 days after a sale

of all or substantially all of the assets of the Corporation constituting a

Deemed Liquidation Event, then, if the holders of at least two-thirds of the

then outstanding shares of Redeemable Preferred Stock so request in a written

instrument delivered to the Corporation not later than 60 days after such Deemed

Liquidation Event, the Corporation shall use the consideration received by the

Corporation from such Deemed Liquidation Event (net of any liabilities

associated with the assets sold or technology licensed, as determined in good

faith by the Board of Directors), to the extent legally available therefor (the

"Net Proceeds"), to redeem, on the 90th day after such Deemed Liquidation Event,

all outstanding shares of Redeemable Preferred Stock at a price per share equal

to the Redeemable Preferred Liquidation Amount. In the event of a redemption

pursuant to the preceding sentence, if the Net Proceeds are not sufficient to

redeem all outstanding shares of Redeemable Preferred Stock, the Corporation

shall redeem a pro rata portion of each holder's shares of Redeemable Preferred

Stock. The provisions of Sections C5(b) and (c) below shall apply, with such

necessary changes in the details thereof as are necessitated by the context of

this Section, to the redemption of the Redeemable Preferred Stock pursuant to

this Section C2(b)(iii).

 

     (iv) The amount deemed paid or distributed to the holders of capital stock

of the Corporation upon any such Deemed Liquidation Event shall equal the cash

value of all property, rights or securities paid or distributed to such holders

by the Corporation or the acquiring person, firm or other entity. The cash value

of property, rights or other securities shall be determined in good faith by the

Board of Directors.

 

     3. Voting. Except as provided by law or in Section C7 hereof, the holders

of the Redeemable Preferred Stock shall have no voting rights with respect to

any matters to be voted on by the Corporation's stockholders.

 

     4. Conversion. The holders of the Redeemable Preferred Stock shall have no

conversion rights.

 

     5. Redemption of Redeemable Preferred Stock at Option of Holder.

 

     (a) On or after the 31st day of December, 2010, each holder of Redeemable

Preferred Stock shall have the right to require the Corporation to redeem all of

the shares of Redeemable Preferred Stock held by such holder on the date

redemption is requested, or such lesser number of shares of Redeemable Preferred

Stock as the holder may determine. Any holder desiring to exercise the

redemption right granted herein (a "Redeemable Preferred Requesting Holder")

shall provide written notice to the Corporation setting forth the number of

shares to be redeemed and designating the date, which shall not be less than 90

days following the date of receipt by the

 

 

                                        4

 

<PAGE>

 

Corporation of such notice, on which the redemption is to occur (the "Holders'

Redeemable Preferred Redemption Date"). To the extent permissible hereunder, on

the Holders' Redeemable Preferred Redemption Date and upon a holder's proper

surrender, in accordance with Section C5(b), of his, her or its certificates

representing shares to be redeemed, the redemption price shall be paid by the

Corporation in cash in an amount equal to $10.00 per share (subject to

appropriate adjustment for stock splits, stock dividends, combinations and other

similar recapitalizations affecting such shares) of Redeemable Preferred Stock,

plus an amount equal to all accrued but unpaid dividends (whether or not

declared) payable in accordance with Section C1 hereof on each share of

Redeemable Preferred Stock to be redeemed (the "Redeemable Preferred Redemption

Price").

 

     (b) On or prior to the Holders' Redeemable Preferred Redemption Date, the

Redeemable Preferred Requesting Holder shall surrender his, her or its

certificate or certificates representing the shares to be redeemed, in the

manner and at the place designated by the Corporation. If less than all shares

represented by such certificate or certificates are redeemed, the Corporation

shall issue a new certificate for the unredeemed shares. From and after the

Holders' Redeemable Preferred Redemption Date, unless there shall be a default

in payment of the Redeemable Preferred Redemption Price, all rights of each

holder with respect to shares of Redeemable Preferred Stock redeemed on the

Holders' Redeemable Preferred Redemption Date shall cease (except the right to

receive the Redeemable Preferred Redemption Price without interest upon

surrender of the certificate or certificates therefor), and such shares shall

not be deemed to be outstanding for any purpose whatsoever.

 

     (c) For the purpose of determining whether funds are legally available for

redemption of shares of Redeemable Preferred Stock as provided herein, the

Corporation shall in good faith value its assets in accordance with U.S.

generally accepted accounting principles and at the highest amount permissible

under applicable law. If on a Holders' Redeemable Preferred Redemption Date

funds of the Corporation legally available therefor are insufficient to redeem

all the shares of Redeemable Preferred Stock required to be redeemed on such

date, funds to the extent legally available therefor shall be used for such

purpose and the Corporation shall effect such redemption pro rata according to

the total number of shares of Redeemable Preferred Stock properly tendered for

redemption on such date.

 

     (d) The redemption requirements provided hereby shall be continuous, so

that if on the Holders' Redeemable Preferred Redemption Date such requirements

shall not be fully discharged, funds thereafter legally available shall be

applied therefor as permitted hereunder without further action by any holder of

Redeemable Preferred Stock until such requirements are fully discharged.

 

     6. Redemption of Redeemable Preferred Stock at Option of the Corporation.

 

     (a) At any time, the Corporation shall have the right to redeem all of the

shares of Redeemable Preferred Stock held by the holders of Redeemable Preferred

Stock on the date redemption is requested, or such lesser number of shares of

Redeemable Preferred Stock as the Corporation may determine. If the Corporation

desires to exercise its redemption right granted herein, it shall provide

written notice to the holders of Redeemable Preferred Stock setting forth the

number of shares to be redeemed and designating the date, which shall not be

less than 10

 

 

                                        5

 

<PAGE>

 

days following the date of delivery to the holders of such notice, on which the

redemption is to occur (the "Corporation's Redeemable Preferred Redemption

Date"). To the extent permissible hereunder, on the Corporation's Redeemable

Preferred Redemption Date and upon a holder's proper surrender, in accordance

with Section C6(b), of his, her or its certificates representing shares to be

redeemed, the Corporation shall pay the Redeemable Preferred Redemption Price on

each share of Redeemable Preferred Stock to be redeemed.

 

     (b) On or prior to the Corporation's Redeemable Preferred Redemption Date,

each holder of Redeemable Preferred Stock shall surrender his, her or its

certificate or certificates representing the shares to be redeemed, in the

manner and at the place designated by the Corporation. If less than all shares

represented by such certificate or certificates are redeemed, the Corporation

shall issue a new certificate for the unredeemed shares. From and after the

Corporation's Redeemable Preferred Redemption Date, unless there shall be a

default in payment of the Redeemable Preferred Redemption Price, all rights of

each holder with respect to shares of Redeemable Preferred Stock redeemed on the

Corporation's Redeemable Preferred Redemption Date shall cease (except the right

to receive the Redeemable Preferred Redemption Price without interest upon

surrender of the certificate or certificates therefor), and such shares shall

not be deemed to be outstanding for any purpose whatsoever.

 

     (c) For the purpose of determining whether funds are legally available for

redemption of shares of Redeemable Preferred Stock as provided herein, the

Corporation shall in good faith value its assets in accordance with U.S.

generally accepted accounting principles and at the highest amount permissible

under applicable law. If on a Corporation's Redeemable Preferred Redemption Date

funds of the Corporation legally available therefor are insufficient to redeem

all the shares of Redeemable Preferred Stock required to be redeemed on such

date, funds to the extent legally available therefor shall be used for such

purpose and the Corporation shall effect such redemption pro rata according to

the total number of shares of Redeemable Preferred Stock properly tendered for

redemption on such date.

 

     (d) The redemption requirements provided hereby shall be continuous, so

that if on the Corporation's Redeemable Preferred Redemption Date such

requirements shall not be fully discharged, funds thereafter legally available

shall be applied therefor as permitted hereunder without further action by any

holder of Redeemable Preferred Stock until such requirements are fully

discharged.

 

     7. Special Voting Rights. Without the approval by vote of the holders of at

least a majority of the then outstanding shares of Redeemable Preferred Stock,

voting separately as a single class (each share of Redeemable Preferred Stock to

be entitled to one vote in such instance), the Corporation will not:

 

     (a) amend this Section C7;

 

     (b) authorize or issue, or obligate the Corporation to authorize or issue

additional shares of Redeemable Preferred Stock; or

 

 

                                        6

 

<PAGE>

 

     (c) amend, alter or repeal the preferences, special rights or other powers

of the Redeemable Preferred Stock so as to affect adversely the powers,

preferences or special rights of the Redeemable Preferred Stock.

 

     D. Common Stock.

 

     The holders of the Common Stock are entitled to one vote for each share

held; provided, however, that, except as otherwise required by law, holders of

Common Stock shall not be entitled to vote on any amendment to this Restated

Certificate of Incorporation (including any certificate of designation relating

to 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 Restated Certificate of

Incorporation (including any certificate of designation relating to Preferred

Stock).

 

     FIFTH: The following provisions are inserted for the management of the

business and the conduct of the affairs of the Corporation, and for further

definition, limitation and regulation of the powers of the Corporation and of

its directors and stockholders:

 

     A. The business and affairs of the Corporation shall be managed by or under

the direction of the Board of Directors. In addition to the powers and authority

expressly conferred upon them by statute or by this Restated Certificate of

Incorporation or the Bylaws of the Corporation as in effect from time to time,

the directors are hereby empowered to exercise all such powers and do all such

acts and things as may be exercised or done by the Corporation.

 

     B. The directors of the Corporation need not be elected by written ballot

unless the Bylaws so provide.

 

     C. Any action required or permitted to be taken by the stockholders of the

Corporation may be effected only at a duly called annual or special meeting of

stockholders of the Corporation and not by written consent.

 

     D. Special meetings of the stockholders may only be called by the Board of

Directors acting pursuant to a resolution adopted by a majority of the Whole

Board. For the purposes of this Restated Certificate of Incorporation, the term

"Whole Board" shall mean the total number of authorized directors whether or not

there exist any vacancies in previously authorized directorships. Business

transacted at any special meeting of stockholders shall be limited to matters

relating to the purpose or purposes stated in the notice of meeting.

 

     SIXTH:

 

     A. Subject to the rights of the holders of shares of any series of

Preferred Stock then outstanding to elect additional directors under specified

circumstances, the number of directors shall be fixed from time to time

exclusively by the Board of Directors pursuant to a resolution adopted by a

majority of the Whole Board.

 

     B. Subject to the rights of the holders of shares of any series of

Preferred Stock then outstanding to elect additional directors under specified

circumstances, the Board of Directors of

 

 

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<PAGE>

 

the Corporation shall be divided into three classes, with the term of office of

the first class to expire at the first annual meeting of stockholders following

the initial classification of directors, the term of office of the second class

to expire at the second annual meeting of stockholders following the initial

classification of directors, and the term of office of the third class to expire

at the third annual meeting of stockholders following the initial classification

of directors. At each annual meeting of stockholders, directors elected to

succeed those directors whose terms expire, other than directors elected by the

holders of any series of Preferred Stock, shall be elected for a term of office

to expire at the third succeeding annual meeting of stockholders after their

election and until their successors are duly elected and qualified.

 

     C. Subject to the rights of the holders of any series of Preferred Stock

then outstanding, newly created directorships resulting from any increase in the

authorized number of directors or any vacancies in the Board of Directors

resulting from death, resignation, retirement, disqualification, removal from

office or other cause shall, unless otherwise required by law or by resolution

of the Board of Directors, be filled only by a majority vote of the directors

then in office even though less than a quorum, or by a sole remaining director,

and not by stockholders, and directors so chosen shall serve for a term expiring

at the annual meeting of stockholders at which the term of office of the class

to which they have been chosen expires or until such director's successor shall

have been duly elected and qualified, subject to their earlier death,

resignation or removal. No decrease in the authorized number of directors shall

shorten the term of any incumbent director.

 

     D. 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.

 

     E. Subject to the rights of the holders of any series of Preferred Stock

then outstanding, any director, or the entire Board of Directors, may be removed

from office at any time only for cause and only by the affirmative vote of the

holders of at least eighty percent (80%) of the voting power of all of the

outstanding shares of capital stock then entitled to vote at an election of the

directors, voting together as a single class.

 

     F. At any meeting of the Board of Directors, a majority the Whole Board

shall constitute a quorum for all purposes. At any meeting of the Board of

Directors duly held at which a quorum is present, all matters shall be

determined by the vote of a majority of the directors present, except as

otherwise provided herein or required by law. If at any meeting of the Board of

Directors there shall be less than a quorum, a majority of the directors present

may adjourn the meeting from time to time without further notice other than

announcement at the meeting, until a quorum shall be present.

 

     SEVENTH: The Board of Directors is expressly empowered to adopt, amend or

repeal Bylaws of the Corporation. Any adoption, amendment or repeal of the

Bylaws of the Corporation by the Board of Directors shall require the approval

of a majority of the Whole Board. The stockholders shall also have power to

adopt, amend or repeal the Bylaws of the Corporation; provided, 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 Restated Certificate of Incorporation, the

affirmative vote of the holders of at least eighty (80%) of the voting power of

all of the then

 

 

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<PAGE>

 

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 for the stockholders to adopt, amend or repeal any provision of the

Bylaws of the Corporation.

 

     EIGHTH:

 

     A. Each person who was or is made a party or is threatened to be made a

party to or is otherwise involved (including, without limitation, as a witness)

in any action, suit or proceeding, whether civil, criminal, administrative or

investigative, by reason of the fact that he is or was a director or an officer

of the Corporation or is or was serving at the request of the Corporation as a

director, officer, or trustee of another corporation, or of a partnership, joint

venture, trust or other enterprise, including service with respect to an

employee benefit plan (hereinafter an "Indemnitee"), whether the basis of such

proceeding is alleged action in an official capacity as a director, officer or

trustee or in any other capacity while serving as a director, officer or

trustee, shall be indemnified and held harmless by the Corporation to the

fullest extent authorized by the Delaware General Corporation Law, as the same

exists or may hereafter be amended (but, in the case of any such amendment, only

to the extent that such amendment permits the Corporation to provide broader

indemnification rights than such law permitted the Corporation to provide prior

to such amendment), against all expense, liability and loss (including

attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts

paid in settlement) reasonably incurred or suffered by such Indemnitee in

connection therewith; provided, however, that, except with respect to

proceedings to enforce rights to indemnification or as otherwise required by

law, the Corporation shall not be required to indemnify or advance expenses to

any such Indemnitee in connection with a proceeding (or part thereof) initiated

by such Indemnitee unless such proceeding (or part thereof) was authorized by

the Board of Directors of the Corporation.

 

     B. In addition to the right to indemnification conferred in Section A of

this Article EIGHTH, an indemnitee shall also have the right to be paid by the

Corporation the expenses (including attorney's fees) incurred in defending any

such proceeding in advance of its final disposition (hereinafter an "advancement

of expenses"); provided, however, that, if the Delaware General Corporation Law

requires, an advancement of expenses incurred by an indemnitee in his or her

capacity as a director or officer (and not in any other capacity in which

service was or is rendered by such indemnitee, including, without limitation,

service to an employee benefit plan) shall be made only upon delivery to the

Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of

such indemnitee, to repay all amounts so advanced if it shall ultimately be

determined by final judicial decision from which there is no further right to

appeal (hereinafter a "final adjudication") that such indemnitee is not entitled

to be indemnified for such expenses under this Section B or otherwise.

 

     C. The indemnification and advancement of expenses provided by, or granted

pursuant to, this Article EIGHTH shall not be deemed exclusive of any other

rights to which a person seeking indemnification or advancement of expenses may

be entitled under any Bylaw, agreement, vote of stockholders or disinterested

directors or otherwise, both as to action in such person's official capacity and

as to action in another capacity while holding such office.

 

     D. The Corporation shall have the power to purchase and maintain insurance

on behalf of any person who is or was a director, officer, employee or agent of

the Corporation, or is

 

 

                                        9

 

<PAGE>

 

or was serving at the request of the Corporation as a director, officer,

trustee, employee or agent of another corporation, or of a partnership, joint

venture, trust or other enterprise, against any liability asserted against such

person and incurred by such person in any such capacity, or arising out of such

person's status as such, whether or not the Corporation would have the power to

indemnify such person against such liability under this Article EIGHTH.

 

     E. The indemnification and advancement of expenses provided by, or granted

pursuant to, this Article EIGHTH shall continue as to a person who has ceased to

be a director, officer, employee or agent and shall inure to the benefit of the

heirs, executors and administrators of such person. No repeal or amendment of

this Article EIGHTH shall adversely affect any rights of any person pursuant to

this Article EIGHTH which existed at the time of such repeal or amendment with

respect to acts or omissions occurring prior to such repeal or amendment.

 

     NINTH: No director shall be personally liable to the Corporation or its

stockholders for any monetary damages for breaches of fiduciary duty as a

director; provided that this provision shall not eliminate or limit the

liability of a director, to the extent that such liability is imposed by

applicable law, (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 Delaware General Corporation Law; or (iv) for any transaction

from which the director derived an improper personal benefit. No amendment to or

repeal of this provision shall apply to or have any effect on the liability or

alleged liability of any director for or with respect to any acts or omissions

of such director occurring prior to such amendment or repeal. If the Delaware

General Corporation Law 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 or limited to the fullest

extent permitted by the Delaware General Corporation Law, as so amended. All

references in this Article NINTH to a director shall also be deemed to refer to

any such director acting in his or her capacity as a Continuing Director (as

defined in Article TWELFTH).

 

     TENTH: The Corporation reserves the right to amend or repeal any provision

contained in this Restated Certificate of Incorporation in the manner prescribed

by the Delaware General Corporation Law and all rights conferred upon

stockholders are granted subject to this reservation; provided that in addition

to the vote of the holders of any class or series of stock of the Corporation

required by law or by this Restated Certificate of Incorporation, the

affirmative vote of the holders of shares of voting stock of the Corporation

representing at least eighty (80%) 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 amend, alter or repeal, or adopt any provision inconsistent with,

(whether by merger, consolidation or otherwise) Articles FIFTH, SIXTH, SEVENTH,

EIGHTH, NINTH, this Article TENTH and Article TWELFTH of this Restated

Certificate of Incorporation.

 

     ELEVENTH: Whenever a compromise or arrangement is proposed between this

Corporation and its creditors or any class of them and/or between this

Corporation and its stockholders or any class of them, any court of equitable

jurisdiction within the State of Delaware may, on the application in a summary

way of this Corporation or of any creditor or stockholder thereof or on the

application of any receiver or receivers appointed for this Corporation under

the provisions of Section 291 of Title 8 of the Delaware Code or on the

 

 

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<PAGE>

 

application of trustees in dissolution or of any receiver or receivers appointed

for this Corporation under the provisions of Section 279 of Title 8 of the

Delaware Code, order a meeting of the creditors or class of creditors, and/or of

the stockholders or class of stockholders of this Corporation, as the case may

be, to be summoned in such manner as the said court directs. If a majority in

number representing three-fourths (3/4) in value of the creditors or class of

creditors, and/or of the stockholders or class of stockholders of this

Corporation, as the case may be, agree to any compromise or arrangement and to

any reorganization of this Corporation as consequence of such compromise or

arrangement, the said compromise or arrangement and the said reorganization

shall, if sanctioned by the court to which the said application has been made,

be binding on all the creditors or class of creditors, and/or on all the

stockholders or class of stockholders, of this Corporation, as the case may be,

and also on this Corporation.

 

     TWELFTH: The Board of Directors is expressly authorized to cause the

Corporation to issue rights pursuant to Section 157 of the Delaware General

Corporation Law and, in that connection, to enter into any agreements necessary

or convenient for such issuance, and to enter into other agreements necessary

and convenient to the conduct of the business of the Corporation. Any such

agreement may include provisions limiting, in certain circumstances, the ability

of the Board of Directors of the Corporation to redeem the securities issued

pursuant thereto or to take other action thereunder or in connection therewith

unless there is a specified number or percentage of Continuing Directors then in

office. Pursuant to Section 141(a) of the Delaware General Corporation Law, the

Continuing Directors shall have the power and authority to make all decisions

and determinations, and exercise or perform such other acts, that any such

agreement provides that such Continuing Directors shall make, exercise or

perform. For purposes of this Article TWELFTH and any such agreement, the term,

"Continuing Directors," shall mean (1) those directors who were members of the

Board of Directors of the Corporation at the time the Corporation entered into

such agreement and any director who subsequently becomes a member of the Board

of Directors, if such director's nomination for election to the Board of

Directors is recommended or approved by the majority vote of the Continuing

Directors then in office or (2) such members of the Board of Directors

designated in, or in the manner provided in, such agreement as Continuing

Directors.

 

 

                                       11

 

<PAGE>

 

     IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which

restates and integrates and further amends the provisions of the Certificate of

Incorporation of this Corporation, and which has been duly adopted in accordance

with Sections 228, 242 and 245 of the Delaware General Corporation Law, has been

executed by its duly authorized President and Chief Executive Officer this 31st

day of January, 2006.

 

                                        ALTUS PHARMACEUTICALS INC.

 

 

                                        By: /s/ Sheldon Berkle

                                            ------------------------------------

                                            Sheldon Berkle

                                            President and Chief Executive

                                            Officer

 

 

                                       12

[As Filed: 2007-03-12]