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CERTIFICATE OF INCORPORATION
OF
BIO-TECHNOLOGY GENERAL CORP.

 

     The undersigned, for the purposes of organizing a corporation pursuant to the provisions of the General Corporation Law of the State of Delaware, does make and file this Certificate of Incorporation and does hereby certify as follows:

     FIRST: The name of the corporation is BIO-TECHNOLOGY GENERAL CORP. (hereinafter referred to as the “Corporation”).

     SECOND: The address of the Corporation’s registered office in Delaware is 100 West Tenth Street, City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

     THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

     FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is One Thousand (1,000) shares of Common Stock, and the par value of each of such shares shall be One Cent ($ .01) per share.

     FIFTH: The name and mailing address of the incorporator is:

 

 

 

 

 

 

 

Name

 

Mailing Address

 

 

Randy F. Rock

 

c/o Reavis & McGrath

 

 

 

 

345 Park Avenue

 

 

 

 

New York, New York 10154

     SIXTH: In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the Corporation is expressly authorized to make alter or repeal the by-laws of the Corporation.

     SEVENTH: 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 application of trustees in dissolution or of any receiver or receivers appointed for the 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 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 a 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 the Corporation.

 


 

     IN WITNESS WHEREOF, I, the undersigned, being the incorporator hereinbefore named, hereby declare and certify that the facts herein stated are true, and accordingly have hereunto set my hand this 26th day of June, 1980.

(L.S.)

 

 

 

 

 

/s/ Randy F. Rock

 

 

 

 

 

 

 

 

Randy F. Rock

 

 

CERTIFICATE OF AMENDMENT

TO THE

CERTIFICATE OF INCORPORATION

OF

BIO-TECHNOLOGY GENERAL CORP.

     BIO-TECHNOLOGY GENERAL CORP., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY:

     FIRST: The Board of Directors of the Corporation, by unanimous written consent, has duly adopted the amendment to the Corporation’s Certificate of Incorporation set forth below.

     SECOND: Said Amendment amends Article Fourth of Corporation’s the Corporation’s Certificate of Incorporation to read in its entirety as follows:

“FOURTH: (1) The total number of shares of stock which the Corporation is authorized to issue is Nine Million (9,000,000) shares, each with par value of One Cent ($ .01), and Five Million (5,000,000) shares thereof shall be Common Stock and Four Million (4,000,000) shares thereof shall be Preferred Stock.

          (2) The shares of Preferred Stock shall have such designations, voting powers, preferences, and relative, participating, optional, or special rights, and the qualifications, limitations, or restrictions thereon as shall be fixed by resolution of the Board of Directors.”

THIRD: The Corporation has not received any payment for any of its stock.

FOURTH: The aforesaid amendment was duly adopted in accordance with the applicable provisions of Section 241 of the General Corporation Law of the State of Delaware.

     IN WITNESS WHEREOF, Bio-Technology General Corp. has caused this certificate to be signed by its President and its corporate seal to be hereunto affixed and attested by its Secretary, this 21st day of November, 1980.

 

 

 

 

 

 

 

BIO-TECHNOLOGY GENERAL CORP.

 

 

 

 

 

[ SEAL ]

 

By:

 

/s/ Frederick R. Adler

 

 

 

 

 

 

 

 

 

President

 

 

 

 

 

ATTEST:

 

 

 

 

/s/ A.C. Paterson
Secretary

 

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BIO-TECHNOLOGY GENERAL CORP.

     BIO-TECHNOLOGY GENERAL CORP., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY:

     FIRST: The Board of Directors of the Corporation, by unanimous written consent, has duly adopted the amendment to the Corporation’s Certificate of Incorporation set forth below.

     SECOND: Said Amendment amends Article Fourth of the Corporation’s Certificate of Incorporation to read in its entirety as follows:

FOURTH: (1) The total number of shares of stock which the Corporation is authorized to issue is Nine Million (9,000,000) shares, each with par value of One Cent ($.01), and Five Million (5,000,000) shares thereof shall be Common Stock and Four Million (4,000,000) shares thereof shall be Preferred Stock.

     (2) The shares of Preferred Stock shall have such designations, voting powers, preferences, and relative, participating, optional, or special rights, and the qualifications, limitations, or restrictions thereon as shall be fixed by resolution of the Board of Directors.

  

     (3) Holders of the Corporation’s 5 year, 9% Convertible Subordinated Notes in the aggregate principal amount of One Million Nine Hundred Ninety Eight Thousand, Two Hundred and Sixty Six Dollars ($1,998,266) on the record date, for any action of stockholders established pursuant to applicable law shall have voting rights identical to those held by the holders of shares of Common Stock of the Corporation and shall vote as a class with the holders of such shares. Each such holder shall have one vote for each $5.00 principal amount of such indebtedness held by such holder on such date on any matter on which stockholders are entitled to vote, provided that in the event of a stock dividend, stock split, any other stock combination or any stock subdivision involving shares of stock, then, and in any such event, a proportionate increase or decrease in such principal amount of indebtedness shall be deemed effected for purposes of said voting rights. Such holder shall be entitled to receive all notices from the Corporation as fully as though such holder were a stockholder of the Corporation. There shall be no fraction of a vote for less than $5.00 of such indebtedness.

     THIRD: That thereafter, pursuant to resolution of its Board of Directors, the stockholders of the Corporation voted by consent in lieu of its annual meeting, in favor of the amendment.

     FOURTH: The aforesaid amendment was duly adopted in accordance with the applicable provisions of Section 242 of the General Corporation Law of the State of Delaware.

     IN WITNESS WHEREOF, Bio-Technology General Corp. has caused this Certificate to be signed by its President

-2- 

and its corporate seal to be hereunder affixed and attested by its secretary, this 15th day of June, 1983.

 

 

 

 

 

 

BIO-TECHNOLOGY GENERAL CORP.,
 

 

 

By:  

/s/ Richard P. Lyman  

 

 

 

President 

 

 

 

 

 

 

ATTEST:

/s/ Carl E. Kaplan

 

Secretary

 

 

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BIO-TECHNOLOGY GENERAL CORP.

     BIO-TECHNOLOGY GENERAL CORP., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY:

     FIRST: That the Board of Directors of the Corporation, acting by written consent without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, adopted resolutions amending Paragraph FOURTH of the Certificate of Incorporation to read in its entirety as follows:

     FOURTH: (1) The total number of shares of stock which the Corporation is authorized to issue is Twenty-Four Million (24,000,000) shares, each with par value of One Cent ($.01), and Twenty Million (20,000,000) shares thereof shall be Common Stock and Four Million (4,000,000) shares thereof shall be Preferred Stock.

     (2) The shares of Preferred Stock shall have such designations, voting powers, preferences, and relative, participating, optional, or special rights, and the qualifications, limitations, or restrictions thereon as shall be fixed by resolution of the Board of Directors.

  

     SECOND: That thereafter, pursuant to resolution of its Board of Directorsthe annual meeting of stockholders of said Corporation was duly called and held, at which meeting the necessary number of stockholders as required by statute voted in favor of the amendment.

     THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

     IN WITNESS WHEREOF, Bio-Technology General Corp. has caused this Certificate to be signed by its President and attested by its Secretary and has caused its corporate seal to be affixed hereto this 10th day of June, 1986.

 

 

 

 

 

 

BIO-TECHNOLOGY GENERAL CORP.
 

 

 

By:  

/s/ Sim Fass  

 

 

 

President  

 

 

 

 

 

 

/s/ Carl E. Kaplan

 

Secretary

 

 

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BIO-TECHNOLOGY GENERAL CORP.

     BIO-TECHNOLOGY GENERAL CORP., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”),

DOES HEREBY CERTIFY:

     FIRST: That the Board of Directors of the Corporation, at a meeting duly convened and held, adopted a resolution amending the Certificate of Incorporation of the Corporation to add a Paragraph EIGHT to read in its entirety as follows:

     EIGHTH: No director of the Corporation shall be personally liable to the Corporation or any of 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 Delaware General Corporation Law, as the same exists or hereafter may be amended, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law hereafter is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended Delaware General Corporation Law. Any repeal or modification of

 

 

this paragraph by the stockholders of the Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such repeal or modification.

     SECOND: That thereafter, pursuant to resolution of the Board of Directors, the annual meeting of stockholders of the Corporation was duly called and held, at which meeting the necessary number of stockholders as required by statute voted in favor of the amendment.

     THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

     IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by its President and attested by its Secretary and has caused its corporate seal to be affixed hereto this 13th day of May, 1987.

 

 

 

 

 

 

BIO-TECHNOLOGY GENERAL CORP.
 

 

 

By:  

/s/ Sim Fass  

 

 

 

President  

 

 

 

 

 

 

[SEAL]

Attest:

/s/ Carl E. Kaplan

 

Secretary

 

 


CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
BIO-TECHNOLOGY GENERAL CORP.

     BIO-TECHNOLOGY GENERAL CORP., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY:

     FIRST: The Board of Directors of the Corporation, at a meeting duly held, adopted resolutions amending Paragraph FOURTH of the Certificate of Incorporation to read in its entirety as follows:

     FOURTH: (1) The total number of shares of stock which the Corporation is authorized to issue is Sixty Four Million (64,000,000) shares, each with par value of One Cent ($.01), and Sixty Million (60,000,000) shares thereof shall be Common Stock and Four Million (4,000,000) shares thereof shall be Preferred Stock.

     (2) The shares of Preferred Stock shall have such designations, voting powers, preferences, and relative, participating, optional, or special rights, and the qualifications, limitations, or restrictions thereon as shall be fixed by resolution of the Board of Directors.

     SECOND: That thereafter, pursuant to the resolution of its Board of Directors, the annual meeting of stockholders was duly called and held, at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.

     THIRD: The aforesaid amendment was duly adopted in

 


 

accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

     IN WITNESS WHEREOF, Bio-Technology General Corp. has caused this Certificate to be signed by its President and attested by its secretary and its corporate seal to be affixed hereto, this 24th day of May1990.

 

 

 

 

 

 

BIO-TECHNOLOGY GENERAL CORP. 
 

 

 

By:  

/s/ SIM FASS  

 

 

 

President  

 

 

 

 

 

 

[SEAL]

ATTEST:

/s/ Carl E. Kaplan

 

Secretary

 

 


CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
BIO-TECHNOLOGY GENERAL CORP.

     BIO-TECHNOLOGY GENERAL CORP., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY;

     FIRST: That at a meeting of the Board of Directors of BIOTECHNOLOGY GENERAL CORP., resolutions were duly adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and declaring that such amendment be put forth at the annual meeting of the stockholders of said corporation for consideration, thereof. The proposed amendment is as follows:

     The Certificate of Incorporation of the Company is to be amended by replacing the present Article Fourth with a new Article Fourth to read in its entirety as follows:

     FOURTH: (1) The total number of shares of stock which the Corporation is authorised to issue is One Hundred Fifty Four Million (154,000,000) shares, each with par value of One Cent (.01) and One Hundred Fifty Million (150,000,000) shares thereof shall be Common Stock and Four Million (4,000,000) shares thereof shall be Preferred Stock.

     (2) The shares of Preferred Stock shall have such designations, voting powers, preferences, and relative, participating, optional, or special rights, and the qualifications, limitations, or restrictions thereon as shall be fixed by resolution of the Board of Directors.

     SECOND: That thereafter, pursuant to resolution of its Board of Directors, a meeting of the stockholders of said corporation was duly called and held, upon written notice to all stockholders, at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.

 


 

     THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

     IN WITNESS WHEREOF, said BIO-TECHNOLOGY GENERAL CORP., has caused this Certificate to be signed by Sim Fass, its President and Chief Executive Officer, and attested by Roy L. Goldman, its Secretary, this 6th day of June 1994.

 

 

 

 

 

 

BIO-TECHNOLOGY GENERAL CORP.
 

 

 

/s/ SIM FASS  

 

 

Sim Fass

 

 

President and Chief Executive Officer 

 

 

Attest:

/s/ ROY L. GOLDMAN

 

Roy L. Goldman,
Secretary

 

 

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BIO-TECHNOLOGY GENERAL CORP.

     Bio-Technology General Corp., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, (the “Corporation”), DOES HEREBY CERTIFY:

     FIRST: Articles FIRST and SECOND of the Certificate of Incorporation of the Corporation is hereby amended and replaced in its entirety with the following:

     “FIRST: The name of the corporation is Savient Pharmaceuticals, Inc. (hereinafter referred to as the “Corporation”).

     SECOND: The address of the Corporation’s registered office in Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.”

     SECOND: The Certificate of Amendment of the Certificate of Incorporation herein certified was duly adopted in accordance with the applicable provisions of Section 242 of the General Corporation Law of the State of Delaware.

     THIRD: The Certificate of Amendment herein certified was duly adopted at the annual meeting of the stockholders of the Corporation duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as required by statute voted in favor of the amendment to the Corporation’s Certificate of Incorporation.

     IN WITNESS WHEREOF, the undersigned has caused this Certificate of Amendment of Certificate of Incorporation to be signed, under penalties of perjury, and the facts stated herein are true and correct.

Dated:  June 23, 2003

 

 

 

 

 

 

 

SAVIENT PHARMACEUTICALS, INC.

 

 

 

 

 

 

 

By: /s/ Robert M. Shaw

 

 

 

 

 

Name:

 

Robert M. Shaw

 

 

Title:

 

Executive Vice President and

 

 

 

 

Chief Administrative Officer

Attest:

/s/ Rhonda De Stefano
Rhonda De Stefano, Esq.

 

 

CERTIFICATE OF DESIGNATIONS

OF

SERIES A JUNIOR PARTICIPATING PREFERRED STOCK

OF

SAVIENT PHARMACEUTICALS, INC.

 

 

Savient Pharmaceuticals, Inc., a corporation organized and existing under the laws of the State of Delaware (hereinafter called the “Corporation”), hereby certifies that the following resolution was adopted by the Board of Directors of the Corporation at a meeting duly called and held on August 6, 2012:

RESOLVED: That pursuant to the authority granted to and vested in the Board of Directors of the Corporation (hereinafter called the “Board”) in accordance with the provisions of the Certificate of Incorporation, as amended, the Board hereby creates a series of Preferred Stock, $0.01 par value per share (the “Preferred Stock”), of the Corporation and hereby states the designation and number of shares, and fixes the relative rights, preferences and limitations thereof as follows:

Series A Junior Participating Preferred Stock:

Section 1. Designation and Amount. The shares of such series shall be designated as “Series A Junior Participating Preferred Stock” (the “Series A Preferred Stock”) and the number of shares constituting the Series A Preferred Stock shall be One Hundred Fifty Thousand (150,000). Such number of shares may be increased or decreased by resolution of the Board prior to issuance; 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.

Section 2. Dividends and Distributions.

(A) Subject to the rights of the holders of any shares of any series of Preferred Stock (or any similar stock) ranking prior and superior to the Series A Preferred Stock with respect to dividends, the holders of shares of Series A Preferred Stock, in preference to the holders of Common Stock, $0.01 par value per share (the “Common Stock”), of the Corporation, and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board out of funds of the Corporation legally available for the payment of dividends, quarterly dividends payable in cash on the last day of each fiscal quarter of the Corporation in each year (each such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A


Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $10 or (b) subject to the provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Preferred Stock (but only to the extent that such dividends do not result in an event of default under any of the Corporation’s then outstanding indebtedness). In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision, 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 under clause (b) of the preceding sentence 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. In the event the Corporation shall at any time declare or pay any dividend on the Series A Preferred Stock payable in shares of Series A Preferred Stock, or effect a subdivision, combination or consolidation of the outstanding shares of Series A Preferred Stock (by reclassification or otherwise than by payment of a dividend in shares of Series A Preferred Stock) into a greater or lesser number of shares of Series A Preferred 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 under clause (b) of the first sentence of this Section 2(A) shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Series A Preferred Stock that were outstanding immediately prior to such event and the denominator of which is the number of shares of Series A Preferred Stock outstanding immediately after such event.

(B) The Corporation shall declare a dividend or distribution on the Series A Preferred Stock as provided in paragraph (A) of this Section immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock) and the Corporation shall pay such dividend or distribution on the Series A Preferred Stock before the dividend or distribution declared on the Common Stock is paid or set apart; provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $10 per share on the Series A Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date (but only to the extent that such dividends do not result in an event of default under any of the Corporation’s then outstanding indebtedness).

(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment


Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board may fix a record date for the determination of holders of shares of Series A Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than sixty (60) days prior to the date fixed for the payment thereof.

Section 3. Voting Rights. The holders of shares of Series A Preferred Stock shall have the following voting rights:

(A) Subject to the provision for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision, 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 number of votes per share to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number 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. In the event the Corporation shall at any time declare or pay any dividend on the Series A Preferred Stock payable in shares of Series A Preferred Stock, or effect a subdivision, combination or consolidation of the outstanding shares of Series A Preferred Stock (by reclassification or otherwise than by payment of a dividend in shares of Series A Preferred Stock) into a greater or lesser number of shares of Series A Preferred Stock, then in each such case the number of votes per share 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 Series A Preferred Stock that were outstanding immediately prior to such event and the denominator of which is the number of shares of Series A Preferred Stock outstanding immediately after such event.

(B) Except as otherwise provided herein, in the Certificate of Incorporation or 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 stockholders of the Corporation.

(C) (i) If at any time dividends on any Series A Preferred Stock shall be in arrears in an amount equal to six quarterly dividends thereon, the holders of the Series A Preferred Stock, voting as a separate series from all other series of Preferred Stock and classes of capital stock, shall be entitled to elect two members of the Board in addition to any Directors elected by any other series, class or classes of securities and the authorized number of Directors will automatically be increased by two. Promptly thereafter, the Board of the Corporation shall, as


soon as may be practicable, call a special meeting of holders of Series A Preferred Stock for the purpose of electing such members of the Board. Such special meeting shall in any event be held within forty-five (45) days of the occurrence of such arrearage.

(ii) During any period when the holders of Series A Preferred Stock, voting as a separate series, shall be entitled and shall have exercised their right to elect two Directors, then, and during such time as such right continues, (a) the then authorized number of Directors shall be increased by two, and the holders of Series A Preferred Stock, voting as a separate series, shall be entitled to elect the additional Directors so provided for, and (b) each such additional Director shall not be a member of any existing class of the Board, but shall serve until the next annual meeting of stockholders for the election of Directors, or until his successor shall be elected and shall qualify, or until his right to hold such office terminates pursuant to the provisions of this Section 3(C).

(iii) A Director elected pursuant to the terms hereof may be removed with or without cause by the holders of Series A Preferred Stock entitled to vote in an election of such Director.

(iv) If, during any interval between annual meetings of stockholders for the election of Directors and while the holders of Series A Preferred Stock shall be entitled to elect two Directors, there is no such Director in office by reason of resignation, death or removal, then, promptly thereafter, the Board shall call a special meeting of the holders of Series A Preferred Stock for the purpose of filling such vacancy and such vacancy shall be filled at such special meeting. Such special meeting shall in any event be held within forty-five (45) days of the occurrence of such vacancy.

(v) At such time as the arrearage is fully cured, and all dividends accumulated and unpaid on any shares of Series A Preferred Stock outstanding are paid, and, in addition thereto, at least one regular dividend has been paid subsequent to curing such arrearage, the term of office of any Director elected pursuant to this Section 3(C), or his successor, shall automatically terminate, and the authorized number of Directors shall automatically decrease by two, the rights of the holders of the shares of the Series A Preferred Stock to vote as provided in this Section 3(C) shall cease, subject to renewal from time to time upon the same terms and conditions, and the holders of shares of the Series A Preferred Stock shall have only the limited voting rights elsewhere herein set forth.

(D) Except as set forth herein, or as otherwise provided by law, holders of Series A Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.

Section 4. Certain Restrictions.

(A) Whenever quarterly dividends or other dividends or distributions payable on the Series A Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid in full, the Corporation shall not:


(i) declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock;

(ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except dividends paid ratably on the Series A Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;

(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Preferred Stock; or

(iv) redeem or purchase or otherwise acquire for consideration any shares of Series A Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board) to all holders of such shares upon such terms as the Board, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.

(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner.

Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Certificate of Incorporation, or in any other Certificate of Designations creating a series of Preferred Stock or any similar stock or as otherwise required by law.

Section 6. Liquidation, Dissolution or Winding Up.

(A) Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made (1) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock shall have received $1,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, provided that the holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the


provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to the holders of shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on the Series A Preferred Stock and all such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up.

(B) Neither the consolidation, merger or other business combination of the Corporation with or into any other corporation nor the sale, lease, exchange or conveyance of all or any part of the property, assets or business of the Corporation shall be deemed to be a liquidation, dissolution or winding up of the Corporation for purposes of this Section 6.

(C) In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision, 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 aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of paragraph (A) of this Section 6 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. In the event the Corporation shall at any time declare or pay any dividend on the Series A Preferred Stock payable in shares of Series A Preferred Stock, or effect a subdivision, combination or consolidation of the outstanding shares of Series A Preferred Stock (by reclassification or otherwise than by payment of a dividend in shares of Series A Preferred Stock) into a greater or lesser number of shares of Series A Preferred Stock, then in each such case the aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of paragraph (A) of this Section 6 shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Series A Preferred Stock that were outstanding immediately prior to such event and the denominator of which is the number of shares of Series A Preferred Stock outstanding immediately after such event.

Section 7. Consolidation, Merger, etc. Notwithstanding anything to the contrary contained herein, in case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series A Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision, 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 set forth in the preceding sentence with respect to the exchange or change of shares of Series A Preferred Stock 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. In the event the Corporation shall at any time declare or pay any dividend on the Series A Preferred Stock payable in shares of Series A Preferred Stock, or effect a subdivision, combination or consolidation of the outstanding shares of Series A Preferred Stock (by reclassification or otherwise than by payment of a dividend in shares of Series A Preferred Stock) into a greater or lesser number of shares of Series A Preferred Stock, then in each such case the amount set forth in the first sentence of this Section 7 with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Series A Preferred Stock that were outstanding immediately prior to such event and the denominator of which is the number of shares of Series A Preferred Stock outstanding immediately after such event.

Section 8. No Redemption. The shares of Series A Preferred Stock shall not be redeemable.

Section 9. Rank. The Series A Preferred Stock shall rank, with respect to the payment of dividends and the distribution of assets, junior to all series of any other class of the Preferred Stock issued either before or after the issuance of the Series A Preferred Stock, unless the terms of any such series shall provide otherwise.

Section 10. Amendment. At such time as any shares of Series A Preferred Stock are outstanding, the Certificate of Incorporation, as amended, of the Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Series A Preferred Stock, voting together as a single class.

Section 11. Fractional Shares. Series A Preferred Stock may be issued in fractions of a share which shall entitle the holder, in proportion to such holder’s fractional shares, to exercise voting rights, receive dividends, participate in distributions and have the benefit of all other rights of holders of Series A Preferred Stock.

IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of the Corporation by its Senior Vice President and General Counsel this 6th day of August, 2012.

 

SAVIENT PHARMACEUTICALS, INC.

By:

 

/s/ Philip Yachmetz

Name:

 

Philip Yachmetz

Title:

 

Senior Vice President and General Counsel

 

[As Filed: 08-07-2012]