Exhibit 3.02

 

RESTATED CERTIFICATE OF INCORPORATION
OF
CYGNUS, INC.

The undersigned, John C Hodgman and Barbara G. McClung, hereby certify that:

 

1.             They are the duly elected and acting President and Secretary, respectively, of Cygnus, Inc., a Delaware Corporation.

 

2.             The original Certificate of Incorporation of CYGNUS THERAPEUTIC SYSTEMS, INC. was filed with the Secretary of State of Delaware on March 15, 1994.  The corporate name was changed to CYGNUS, INC. in the Agreement and Plan of Merger filed with the Secretary of State of Delaware on September 11, 1995.

 

3.             The Certificate of Incorporation of CYGNUS, INC. shall be amended and restated to read in full as follows:

 

ARTICLE I.

 

The name of the corporation is CYGNUS, INC. (the “Corporation”).

 

ARTICLE II.

 

The address of the Corporation’s registered office in the State of Delaware is 2711 Centerville Road, City of Wilmington, County of New Castle and the name of its registered agent at such address is The Prentice-Hall Corporation System, Inc.

 

ARTICLE III.

 

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.

 

ARTICLE IV.

 

The Corporation is authorized to issue two classes of shares to be designated respectively Common Stock and Preferred Stock.  The total number of shares of all classes of stock which the Corporation has authority to issue is

 

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One Hundred Million (100,000,000) shares, consisting of Ninety-five Million (95,000,000) shares of Common Stock, each having a par value of one-tenth of one cent ($.001) (the “Common Stock”) and Five Million (5,000,000) shares of Preferred Stock, each having a par value of one tenth of one cent ($.001) (the “Preferred Stock”).

 

As to the Preferred Stock of the Corporation, the Board of Directors shall have the power to issue any additional shares of Preferred Stock from time to time in one or more series.  The Board of Directors is hereby authorized to fix or alter from time to time the voting powers and such designations, preferences and relative, participating, optional or other special rights of the shares of each such series and the qualifications, limitations or restrictions of any wholly unissued series of Preferred Stock, and to establish from time to time the number of shares constituting any such series, or any of them.

 

The Board of Directors is further authorized to increase or decrease (but not below the number of shares of any such series then outstanding) the number of shares of any series, the number of which was fixed by it, subsequent to the issue of shares of such series then outstanding, subject to the limitations and restrictions stated in the resolution of the Board of Directors originally fixing the number of shares of such series.  If the number of shares of any series is so decreased, then the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.

 

ARTICLE V.

The Corporation is to have perpetual existence.

 

ARTICLE VI.

The election of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.

 

ARTICLE VII.

The number of directors which constitute the whole Board of Directors of the Corporation shall be designated in the Bylaws of the Corporation.  Subject to the rights of the holders of any series of Preferred Stock, no director shall be removed without cause.  Subject to any limitations imposed by law, the Board of Directors or any individual director may be removed from office at any time with cause by the affirmative vote of the holders of a majority of the voting power of all the then-outstanding shares of voting stock of the Corporation entitled to vote at an election of directors.

 

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ARTICLE VIII.

In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter, amend or repeal the Bylaws of the Corporation.  Subject to Article 8 of the Bylaws, the Bylaws may also be altered or amended or new Bylaws adopted by the affirmative vote of least two-thirds (2/3) of the combined voting power of all the then-outstanding shares of the Corporation entitled to vote.

 

ARTICLE IX.

To the fullest extent permitted by the Delaware General Corporation Law as the same exists or as may hereafter be amended, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.

 

Neither any amendment nor repeal of this Article, nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article, shall eliminate or reduce the effect of this Article in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.

 

ARTICLE X.

Each director shall serve until his or her successor is duly elected and qualified or until his or her death, resignation or removal.  No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.  No stockholder will be permitted to cumulate votes at any election of directors.

 

Subject to the rights of the holders of any series of Preferred Stock, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes, and any newly created directorships resulting from any increase in the number of directors, shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders, except as otherwise provided by law, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors, and not by the stockholders.  Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor shall have been elected and qualified.

 

ARTICLE XI.

Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide.  The books of the Corporation may be kept (subject to any provision contained in the statutes) outside of the State of

 

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Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.

 

ARTICLE XII.

No action shall be taken by the stockholders of the Corporation except at an annual or special meeting of stockholders called in accordance with the Bylaws and no action shall be taken by the stockholders by written consent in lieu of a meeting.

 

ARTICLE XIII.

Notwithstanding any other provisions of this Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of the capital stock required by law or this Certificate of Incorporation, the affirmative vote of the holders of at least two-thirds (2/3) of the combined voting power of all of the then-outstanding shares of the Corporation entitled to vote shall be required to alter, amend or repeal Articles VI, VII, VIII, IX, X, XI, XII, XIII or any provision thereof.

 

ARTICLE XIV.

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, except as provided in Article XIII, and all rights conferred upon stockholders herein are granted subject to this reservation.

* * *

The foregoing Restated Certificate of Incorporation has been duly adopted by this Corporation’s Board of Directors and stockholders in accordance with the applicable provisions of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware.

 

Executed at Redwood City, California on February 12, 2002.

 

 

/s/ John C Hodgman

 

 

John C Hodgman

 

 

President

 

 

 

 

 

/s/ Barbara G. McClung

 

 

Barbara G. McClung

 

 

Secretary

 

 

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