EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CEPTOR RESEARCH AND DEVELOPMENT COMPANY
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CEPTOR RESEARCH AND DEVELOPMENT COMPANY, a corporation organized
and existing under the laws of the State of Delaware (the "Corporation"), hereby
certifies as follows:
1. The name of the Corporation is CepTor Research and Development
Company.
2. The date of the filing of the Corporation's original Certificate
of Incorporation with the Secretary of State was August 11,
1986.
3. This Amended and Restated Certificate of Incorporation has been
duly adopted by the Board of Directors with approval by the
Corporation's stockholders in accordance with Sections 228, 242
and 245 of the Delaware General Corporation Law and the Board of
Directors, with the stockholders' approval, has resolved that
the Certificate of Incorporation of the Corporation be deleted
and replaced in its entirety with this Amended and Restated
Certificate of Incorporation.
4. The text of the Corporation's Amended and Restated Certificate
of Incorporation is set forth in full on EXHIBIT A annexed
hereto.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be executed on this 27th day of
January, 2005.
CEPTOR CORPORATION
By: /s/ William Pursley
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Name: William Pursley
Title: Chairman and Chief Executive
Officer
EXHIBIT A
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FIRST: The name of this Corporation is CepTor Corporation.
SECOND: The address, including street, number, city and county, of
the registered office of the Corporation in the State of Delaware is 615 South
DuPont Highway, Dover, Delaware 19901, County of Kent; and the name of the
registered agent of the Corporation in the State of Delaware at such address is
National Corporate Research, Ltd.
THIRD: The nature of the business and of the purposes to be conducted
and promoted by the Corporation are to conduct any lawful business, to promote
any lawful purpose, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: A. CLASSES AND NUMBERS OF SHARES. The total number of shares
of stock which the Corporation shall have authority to issue is one-hundred
twenty million (120,000,000). The Classes and aggregate number of shares of each
class which the Corporation shall have authority to issue are as follows:
1. One hundred million (100,000,000) shares of Common Stock, par
value $0.0001 per share (the "Common Stock"); and
2. Twenty million (20,000,000) shares of Preferred Stock, par value
$0.0001 per share (the "Preferred Stock"); and
B. BLANK CHECK POWERS. The Corporation may issue any class of the
Preferred Stock in any series. The Board of Directors shall have authority to
establish and designate series, and to fix the number of shares included in each
such series and the variations in the relative rights, preferences and
limitations as between series, provided that, if the stated dividends and
amounts payable on liquidation are not paid in full, the shares of all series of
the same class shall share ratably in the payment of dividends including
accumulations, if any, in accordance with the sums which would be payable on
such shares if all dividends were declared and paid in full, and in any
distribution of assets other than by way of dividends in accordance with the
sums which would be payable on such distribution if all sums payable were
discharged in full. Shares of each such series when issued shall be designated
to distinguish the shares of each series from shares of all other series.
C. SERIES A CONVERTIBLE PREFERRED STOCK.
1. DESIGNATION. One Thousand (1,000) shares of preferred stock of
the Corporation shall constitute a class of preferred stock designated as
"Series A Convertible Preferred Stock" (the "Series A Preferred Stock").
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2. DIVIDENDS.
(a) The holders of shares of Series A Preferred Stock shall be
entitled to receive dividends when and if declared by the Board of Directors.
(b) If at any time a dividend or distribution of assets is
declared and paid on the (i) the Corporation's Common Stock, or (ii) any other
class or series of the Corporation's capital stock whether currently outstanding
or hereafter created (the "Capital Stock"), the Corporation shall, at the same
time, declare and pay to each holder of Series A Preferred Stock, pari passu
with the holders of the Common Stock or the Capital Stock, as applicable, a
dividend equal to the dividend that would have been payable to such holder if
the shares of Series A Preferred Stock held by such holder had been converted to
Common Stock pursuant to Section 5 hereof immediately prior to the record date
for such dividend or distribution (or the date of such dividend or distribution
if no record date is fixed).
3. RIGHTS ON LIQUIDATION, MERGER, SALE, ETC. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation (a "Liquidation"), the assets of the Corporation available for
distribution to its shareholders, whether from capital, surplus or earnings,
shall be distributed in the following order of priority:
(a) The holders of Series A Preferred Stock shall be entitled
to receive, prior and in preference to any distribution to the holders of Common
Stock or any other class of stock ranking junior to the Series A Preferred
Stock, for each share of Series A Preferred Stock held by such holders, an
amount equal to $25,000.00 per share (the "Purchase Price").
(b) After distribution of the amounts set forth in Article
Fourth, Section C.3(a)(i) hereof, the remaining assets of the Corporation
available for distribution, if any, to the shareholders of the Corporation shall
be distributed to the holders of the Common Stock.
4. VOTING RIGHTS. So long as any shares of Series A Preferred Stock
remain outstanding, the holders of shares of Series A Preferred Stock shall be
entitled to vote on all matters on which holders of Common Stock shall be
entitled to vote, casting such number of votes in respect of such shares of
Series A Preferred Stock as shall equal the largest whole number of shares of
Common Stock into which such shares of Series A Preferred Stock are then
convertible pursuant to Section 5 hereof, and voting together as one class with,
and in the same manner and with the same effect as, such holders of Common
Stock.
5. CONVERSION OF SERIES A PREFERRED STOCK.
(a) The holders of Series A Preferred Stock shall have the
right, at such holders' option, at any time, to convert each share of Series A
Preferred Stock into such whole number of shares of Common Stock as is equal to
the number of fully paid and non-assessable shares of Common Stock which results
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from multiplying the number of shares of Series A Preferred Stock to be
converted by the quotient of the Purchase Price divided by the Conversion Price
(as hereinafter defined) per share for the Series A Preferred Stock in effect at
the time of conversion. The initial Conversion Price per share of the Series A
Preferred Stock shall be $2.50, subject to adjustment as provided herein (the
"Conversion Price").
(b) Before any holder of Series A Preferred Stock shall be
entitled to convert the same into shares of Common Stock pursuant to Article
Fourth, Section C.5(a) hereof, the holder or holders of such Series A Preferred
Stock shall surrender the certificate or certificates therefor, duly endorsed,
at the office of the Corporation or of any transfer agent for the Series A
Preferred Stock, and shall give written notice to the Corporation at its
principal corporate office of the election to convert the same (in case of
conversion pursuant to Article Fourth, Section C.5(a) hereof) and the name or
names in which the certificate or certificates for shares of Common Stock are to
be issued. The Corporation shall, as soon as practicable thereafter, issue and
deliver at such office to such holder or holders of Series A Preferred Stock, or
to the nominee or nominees thereof, a certificate or certificates for the number
of shares of Common Stock to which such holder or holders shall be entitled as
aforesaid. Conversion under this Section 5 shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
shares of Series A Preferred Stock to be converted, and the Person or Persons
(as defined herein) entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of such date.
(c) The Conversion Price of the Series A Preferred Stock shall
be subject to adjustment from time to time as follows:
(i) In the event the Corporation should at any time or
from time to time after the date on which the shares of Series
A Preferred Stock are first issued (the "Series A Issuance
Date") fix a record date for the effectuation of a split or
subdivision of the outstanding shares of Common Stock or the
determination of holders of Common Stock entitled to receive a
dividend or other distribution payable in additional shares of
Common Stock or Common Stock equivalents without payment of
any consideration by such holder for the additional shares of
Common Stock or the Common Stock equivalents (including the
additional shares of Common Stock issuable upon conversion or
exercise thereof), then, as of such record date (or the date
of such dividend distribution, split or subdivision if no
record date is fixed), the Conversion Price of the Series A
Preferred Stock shall be appropriately decreased so that the
number of shares of Common Stock issuable upon conversion of
each share of such Series A Preferred Stock shall be increased
in proportion to such increase in the aggregate of shares of
Common Stock outstanding and issuable with respect to such
Common Stock equivalents.
(ii) If the number of shares of Common Stock outstanding
at any time after the Series A Issuance Date is decreased by a
combination of the outstanding shares of Common Stock, then,
following the record date of such combination, the Conversion
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Price for the Series A Preferred Stock shall be appropriately
increased so that the number of shares of Common Stock
issuable on conversion of each share of each series shall be
decreased in proportion to such decrease in outstanding
shares.
(d) If at any time or from time to time there shall be a
recapitalization of the Common Stock (other than a subdivision, combination or
merger or sale of assets transaction provided for elsewhere in this Section 5),
provision shall be made so that the holders of the Series A Preferred Stock
shall thereafter be entitled to receive upon conversion of the Series A
Preferred Stock the number of shares of stock or other securities or property of
the Corporation or otherwise, to which a holder of Common Stock deliverable upon
conversion would have been entitled on such recapitalization. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section 5 with respect to the rights of the holders of the Series A
Preferred Stock after the recapitalization to the end that the provisions of
this Section 5 (including adjustment of the Conversion Price for the Series A
Preferred Stock then in effect and the number of shares issuable upon conversion
of the Series A Preferred Stock) shall be applicable after that event as nearly
equivalent as may be practicable.
(e) The Corporation shall 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 the Corporation, but
will at all times in good faith assist in the carrying out of all the provisions
of this Section 5 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.
(f) If the Corporation should effect any capital reorganization
or reclassification of its capital stock or cause to occur a Disposition Event
(as defined herein) while any shares of Series A Preferred Stock are outstanding
in such a manner that holders of shares of Common Stock shall be entitled to
receive stock, securities or assets with respect to or in exchange for Common
Stock, then, as a condition of such reorganization, reclassification or
Disposition Event, lawful and adequate provision shall be made whereby each
holder of Series A Preferred Stock shall thereafter have the right to receive
upon the basis and upon the terms and conditions specified herein and in lieu of
the shares of Common Stock immediately theretofore receivable upon conversion of
Series A Preferred Stock, such shares of stock, securities or assets as may be
issued or payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such Common Stock
immediately theretofore so receivable had such reorganization, reclassification
or Disposition Event not taken place, and in such case appropriate provision
shall be made with respect to the rights and interests of the holders of Series
A Preferred Stock to the end that the provisions hereof (including, without
limitation, provisions for adjustment of the Conversion Price of the Series A
Preferred Stock and of the number of shares of Common Stock issuable upon
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conversion thereof) shall thereafter be applicable, as nearly as may be
possible, in relation to any shares of stock, securities or assets thereafter
deliverable upon the conversion of such shares of Series A Preferred Stock.
Prior to or simultaneously with the consummation of a Disposition Event the
survivor or successor corporation (if other than the Corporation) resulting from
such Disposition Event shall assume by written instrument executed and mailed or
delivered to each holder of Series A Preferred Stock, the obligation to deliver
to such holders of Series A Preferred Stock such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such holder of Series A
Preferred Stock may be entitled to receive, and containing the express
assumption of such successor corporation of the due and punctual performance and
observance of every provision of this Certificate of Incorporation to be
performed and observed by the Corporation and of all liabilities and obligations
of the Corporation hereunder with respect to the Series A Preferred Stock.
(g) (i) 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
whole share. In lieu of any fractional shares to which the holder would
otherwise be entitled, the Corporation shall make a cash payment equal to the
"fair market value" of the Common Stock as of two business days prior to payment
multiplied by such fraction. For the purposes of this Section 5(g)(i), "fair
market value" shall mean on any day (A) if shares of the Common Stock are listed
or admitted for trading on a national securities exchange, the reported last
sales price or, if no such reported sale occurs on such day, the average of the
closing bid and asked prices on such day, in each case on the principal national
securities exchange on which the Common Shares are listed or admitted to
trading, (B) if shares of Common Stock are not listed or admitted to trading on
any national securities exchange, the average of the closing bid and asked
prices in the over-the-counter market on such day as reported by Nasdaq or any
comparable system or, if not so reported, as reported by any New York Stock
Exchange member firm selected by the Corporation for such purpose or (C) if no
such quotations are available on such day, the fair market value of one share of
Common Stock on such day as determined in good faith by the Board of Directors.
(ii) Upon the occurrence of each adjustment of the
Conversion Price of Series A Preferred Stock pursuant to this
Article Fourth, Section C.5, the Corporation, at its expense,
shall promptly compute such adjustment in accordance with the
terms hereof and prepare and furnish to each holder of Series
A Preferred Stock a statement, signed by its President and
Chief Financial Officer, setting forth such adjustment and
showing in detail the facts upon which such adjustment is
based. The Corporation shall, upon the written request at any
time of any holder of Series A Preferred Stock, furnish or
cause to be furnished to such holder a like certificate
setting forth (A) such adjustment, (B) the Conversion Price
for such Series A Preferred Stock at the time in effect and
(C) the number of shares of Common Stock and the amount, if
any, of other property which at the time would be received
upon the conversion of a share of such Series A Preferred
Stock.
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(h) In the event of any taking by the Corporation of a record
of the holders of any class of securities for the purpose of determining the
holders thereof who are entitled to receive any dividend (other than a cash
dividend) or other distribution, any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right, the Corporation shall mail to each
holder of Series A Preferred Stock, at least 20 days prior to the date specified
therein, a notice specifying the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and the amount and
character of such dividend, distribution or right.
(i) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock, solely for
the purpose of effecting the conversion of the shares of the Series A Preferred
Stock, such number of its shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of the Series A
Preferred Stock; and if at any time the number of authorized but unissued shares
of Common Stock shall not be sufficient to effect the conversion of all then
outstanding shares of the Series A Preferred Stock, in addition to such other
remedies as shall be available to the holder of such Series A Preferred Stock,
the Corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purposes,
including, without limitation, engaging in best efforts to obtain the requisite
shareholder approval of any necessary amendment to these provisions. The
Corporation shall pay all documentary, stamp or other transactional taxes
attributable to the issuance or delivery of shares of capital stock of the
Corporation upon conversion of any shares of Series A Preferred Stock; provided,
however, that the Corporation shall not be required to pay any taxes which may
be payable in respect of any transfer involved in the issuance or delivery of
any certificate for such shares in a name other than that of the holder of the
shares of Series A Preferred Stock in respect of which such shares are being
issued. All shares of Common Stock which may be issued in connection with the
conversion provisions set forth herein will, upon issuance by the Corporation,
be validly issued, fully paid and nonassessable and free from all taxes, liens
or charges with respect thereto.
(j) Any notice required by the provisions of this Article
Fourth, Section C.5 to be given to the holders of shares of Series A Preferred
Stock shall be deemed given if deposited in the United States mail, postage
prepaid, and addressed to each holder of record at his address appearing on the
stock books of the Corporation.
(k) In the event any shares of Series A Preferred Stock shall
be converted pursuant to Article Fourth, Section C.5 hereof, the shares so
converted shall be cancelled. The Certificate of Incorporation of the
Corporation may be appropriately amended from time to time to effect the
corresponding reduction in the Corporation's authorized capital stock.
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(l) For purposes of this Article Fourth, Section C:
(i) "Disposition Event" shall mean (A) the direct or
indirect sale, lease, exchange or other transfer of all or
substantially all of the assets or authorized but unissued
capital stock of the Corporation to any other Person or
Persons or (B) the merger or consolidation of the Corporation
with and into another corporation or corporations in which the
shareholders of the Corporation immediately prior to such
merger or consolidation do not own more than 50% of the voting
control of the surviving corporation.
(ii) "Person" shall mean an individual, partnership,
corporation, limited liability company, business trust, joint
stock company, trust, unincorporated association, joint
venture, governmental authority or other entity of whatever
nature, including, as appropriate, the Corporation or any
subsidiary thereof.
FIFTH: 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 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 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 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 this Corporation.
SIXTH: The original By-Laws of the Corporation shall be adopted by
the incorporator. Thereafter, the power to make, alter, or repeal the By-Laws,
and to adopt any new By-Law, shall be vested in the Board of Directors.
SEVENTH: To the fullest extent that the General Corporation Law of
the State of Delaware, as it exists on the date hereof or as it may hereafter be
amended, permits the limitation or elimination of the liability of directors, no
director of this Corporation shall be personally liable to this Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Notwithstanding the foregoing, a director shall be liable to the
extent provided by applicable law: (1) for any breach of the directors' duty of
loyalty to the Corporation or its stockholders; (2) for acts or omissions not in
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good faith or which involve intentional misconduct or a knowing violation of
law; (3) under section 174 of the General Corporation Law of the State of
Delaware; or (4) for any transaction from which the director derived any
improper personal benefit. Neither the amendment or repeal of this Article, nor
the adoption of any provision of this Certificate of Incorporation inconsistent
with this Article, shall adversely affect any right or protection of a director
of the Corporation existing at the time of such amendment or repeal.
EIGHTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
section. The Corporation shall advance expenses to the fullest extent permitted
by said section. Such right to indemnification and advancement of expenses 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 a person. The indemnification and advancement of expenses provided for
herein shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors or otherwise.
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