Exhibit 3.1
CERTIFICATE OF INCORPORATIONOF
ANIKA THERAPEUTICS,INC.
ARTICLE I
Thename ofthis corporation isAnikaTherapeutics, Inc. (the “Corporation”).
ARTICLEII
Theaddressof theCorporation’s registered office inthe State ofDelaware is 251 Little Falls Drive, Wilmington, Countyof NewCastle, Delaware 19808. Thename ofits registered agent atsuch address isCorporation Service Company.
ARTICLEIII
Thepurposeofthe Corporationis toengage inany lawful act oractivity forwhichacorporationmay beorganized under theGeneral Corporation Lawof theStateofDelaware (the “General Corporation Law”).
ARTICLEIV
A. ClassesofStockandAuthorized Shares. The Corporationisauthorized toissue two classesofcapital stock to bedesignated, respectively, Common Stock, parvalue $0.01 pershare(“Common Stock”), andPreferredStock, parvalue $0.01per share (“Preferred Stock”). The total numberofshares ofcapital stock that the Corporation is authorized toissue is 91,250,000, ofwhich90,000,000shares shall beCommon Stock and1,250,000 shares shall bePreferred Stock.
B. Rights, Powers, Preferences andRestrictionsofPreferredStock. TheBoard ofDirectors ishereby expressly authorized, byresolution orresolutions thereof and the filing of acertificate pursuant tothe General Corporation Law (a“Preferred Stock Designation”), toprovide, outofthe unissued sharesofPreferred Stock, for one ormore series ofPreferred Stock and,with respect toeach such series, to fix the number ofshares constituting suchseries andthe designationofsuch series, thevoting powers, ifany, of theshares ofsuch series, and the preferences andrelative, participating, optional orother special rights, if any, and anyqualifications, limitationsorrestrictions thereof, ofthe shares ofsuchseries. Thenumber ofauthorized shares ofPreferred Stockmay beincreased ordecreased (but not below thenumber ofshares thereof thenoutstanding) by theaffirmative vote of theholders of amajority of thevoting power ofthe capital stock of theCorporation entitled tovote thereon, voting as asingle class, irrespective ofthe provisionsofSection 242(b)(2) of theGeneral CorporationLaw.
C. Rights ofCommonStock. Therelative powers, rights, qualifications, limitations andrestrictions granted toorimposed onthe shares ofCommon Stock areas follows:
1. General. Thevoting powers anddividend and liquidation rights andpreferences, if any, of theholdersof Common Stock aresubject to andqualified by therightsof theholders ofPreferred Stock of anyseries asmay bedesignated by theBoardofDirectors upon anyissuance ofPreferred Stockof anyseries.
2. VotingRights. Except as may beotherwise provided bythis CertificateofIncorporation, aPreferred Stock Designation or byapplicable law, theholdersof Common Stockshall beentitled to onevote foreach share upon eachmatter presented to thestockholders ofthe Corporation;provided that,except as otherwise required bylaw, holdersof Common Stock shallnotbeentitled to vote on anyamendment to thisCertificateofIncorporation or aPreferred StockDesignation that relates
solely totheterms ofoneormore outstanding seriesofPreferred Stock ifthe holders ofsuch affected series areentitled, either separately ortogether as aclass with the holdersof one ormore other such series, tovote thereon pursuant tothis CertificateofIncorporation, aPreferred Stock Designationor theGeneral CorporationLaw. Thenumber ofauthorized sharesof Common Stockmay beincreased ordecreased (but notbelow thenumber ofshares thereof thenoutstanding) by theaffirmative vote of theholders of amajority of thevoting powerof thecapital stock ofthe Corporation entitled to vote thereon, voting as asingle class,irrespective of theprovisions ofSection 242(b)(2) of theGeneral Corporation Law.
3. Dividends. Dividendsmay bedeclared and paid onCommon Stock fromfunds lawfully available therefor as andwhen determined by theBoardofDirectors and subject toany preferential dividendorother rights of any thenoutstanding Preferred Stock and to therequirements ofapplicable law.
4. Liquidation. Upon thedissolution orliquidation of theCorporation, whether voluntaryorinvoluntary, holders ofCommon Stock will beentitled to receive all assets of theCorporation available for distribution to its stockholders, subject toany preferentialorother rights of anythen outstanding PreferredStock.
ARTICLE V
A. Amendment ofBylaws byBoard.Infurtherance and not inlimitation ofthe powers conferred uponit by theGeneral CorporationLaw, andsubject to theterms of anyPreferred StockDesignation, the Board ofDirectors isexpressly authorized andempowered toadopt, amend orrepeal the Bylaws ofthe Corporation.
B. Amendment ofBylaws byStockholders.In addition to theamendment of theBylaws by theBoard ofDirectors pursuant toSection A ofthisArticle V,the stockholders oftheCorporation alsomayamend theBylaws pursuant to thisSection B ofthisArticle V;provided, however, that, inaddition to anyother vote required bythis CertificateofIncorporation, aPreferred Stock Designation or theBylawsof theCorporation, the stockholdersmay not adopt,amend, alter orrepealArticle I,II,VI orVIII orSection 7.6 of theBylaws, oradopt anyprovision inconsistent therewith, unless suchaction isapproved by theaffirmative vote of atleast seventy-five percentof theoutstanding voting power of thethen- outstanding sharesofcapital stock ofthe Corporation entitled to vote thereon.
ARTICLEVI
A. Authority ofBoard. The business andaffairs ofthe Corporation shallbemanaged by or underthe direction of theBoard ofDirectors.In addition tothe powers and authority expressly conferred bystatute or bythis Certificate ofIncorporationor theBylawsofthe Corporation, theBoard ofDirectors ishereby empowered toexercise all such powers and do allsuch actsand things asmay beexercised or done by theCorporation.
B. Board Size. Subject to therights of theholders of anyseries ofPreferred Stock toelect additional directors pursuant to anyPreferred Stock Designation, thetotal number ofauthorized directors constituting theBoard ofDirectors shall consistof notless than three members normore than nine members. The numberofdirectorsmay bedecreased atany time and fromtime totime by amajorityof thedirectors then inoffice, but only toeliminate vacancies existing byreason of thedeath, resignation, removal orexpiration ofthe term of oneormore directors.
C. Classified Board Structure. The directors, other than anywhomay be electedby theholdersof anyseriesofPreferred Stock pursuant to anyPreferred StockDesignation (“Preferred Stock Directors”), shall bedivided into three classes hereby designated ClassI, ClassII andClassIII, as nearlyequalin number aspossible. No one class shall have more than onedirector more than any otherclass. The Board ofDirectorsmayassign members ofthe Board ofDirectors already inofficeto suchclasses at thetime suchclassification becomes effective. Thetermofoffice ofthe initial Class Idirectors shall expire atthe first annual meeting ofthe stockholders following the effectiveness ofthis CertificateofIncorporation (the“Effective Time”), the term ofofficeof theinitial ClassII directorsshall expire at the secondannualmeetingof thestockholders following the Effective Time, and thetermofoffice of theinitial ClassIIIdirectors shall expire atthe third annual meeting of thestockholders following theEffective Time.At eachannual meeting ofstockholders, commencing with thefirst annual meeting ofstockholders following theEffective Time, eachofthe successors elected toreplace the directors of a Classwhose term shall have expired at such annual meeting shall beelected tohold office until thethird annual meeting next succeeding his or herelection and until his orher respective successor shall have been duly elected and qualifiedoruntil his orher earlier death, resignation,orremoval.In case of any increaseordecrease, fromtimetotime, inthenumberofdirectors (other than any Preferred Stock Directors), thenumberofdirectors ineach class shall beapportioned asnearly equalas possible sothatno oneclasshasmore than onedirector more thananyother class.
D. Removal; Vacancies. Any director (other than any Preferred Stock Director) may beremoved fromoffice by thestockholdersofthe Corporation only forcause by theaffirmativevote of theholdersof atleast seventy-five percent of theoutstanding voting power ofthe stockholders entitled tovote thereon. Vacancies occurring onthe Board ofDirectors for any reasonand newly created directorships resulting from anincrease in theauthorized number ofdirectors may be filledexclusively pursuant to aresolution adopted by theBoard ofDirectors and not bythe stockholders. Aperson elected to fill avacancy ornewly created directorship shall hold office until thenext election ofthe class for which suchdirector shallhave beenchosen anduntil hisor hersuccessor shallbe dulyelected andqualified.
E. Quorum; Vote Required for Action. At all meetings ofthe Board ofDirectors, the directors entitled tocast amajority of thevotesof the hetotalnumber ofauthorized directors, whetheror notthere exist anyvacancies, inpreviously authorized directorships shall constitute aquorum forthe transaction ofbusiness.In theevent one ormore ofthe directors shall bedisqualified tovote atany meeting, thenthe required quorum shall bereduced by one foreach suchdirector sodisqualified;provided, however, that in no caseshall less thanone-third of thetotal number ofdirectors constitute aquorum.In theabsence of a quorum at any suchmeeting, amajority of thedirectorspresent may adjournthe meeting fromtime totime without further notice other than announcement at themeeting, until aquorum shallbepresent. Except incases inwhich this CertificateofIncorporation, the Bylaws ofthe Corporationorapplicable lawotherwise provides, amajority ofthe votes entitled to becast by thedirectors present at ameeting at which aquorum ispresent shall be theact ofthe Board ofDirectors.
ARTICLE VII
No stockholder will bepermitted tocumulate votes in anyelection ofdirectors. The electionofdirectors need notbe bywritten ballot unless theBylaws ofthe Corporation shall soprovide.
ARTICLEVIII
A. Special Meetings. Special meetings of thestockholdersmay becalled only bythe President ofthe Corporation or theChairman ofthe Board ofDirectors of theCorporation. Business transacted at anyspecial meeting ofstockholders shallbelimited to thepurposes stated in thenotice.
B. No Stockholder Action byWritten Consent. Subject to therightsofthe holders of anyseriesofPreferred Stock, any actionrequiredorpermitted tobetaken by thestockholders of theCorporation must beeffected at aduly called annual orspecial meeting ofthe stockholdersofthe Corporation andmay not beeffected by anyconsent inwriting (or byelectronic communication) bysuch stockholders.
ARTICLEIX
A. TheCorporation shall indemnify (andadvance expenses to) its officers anddirectors tothefullextent permitted by theGeneralCorporation Law, as amended fromtime totime.
B. Tothe fullest extent permitted bylaw, nodirectorofthe Corporation shall bepersonally liable to theCorporation orits stockholders formonetary damages for anybreachoffiduciary duty as adirector, notwithstanding anyprovisionof lawimposing suchliability.
C. No amendment toorrepeal ofthis provision, northe adoptionofany provision of theCertificate ofIncorporation inconsistent with thisArticle IX, shall apply toorhave any effect on(1) the liabilityoralleged liability ofany director of theCorporation or the (2)indemnification and advancement rightsof anydirectororofficer, ineach case, fororwith respect to anyacts oromissionsofsuch directoror officeroccurring prior to suchamendment orrepeal.Ifthe General CorporationLaw isamended topermit further elimination orlimitation ofthe personal liability ofdirectors or topermit greater indemnification oradvancement rights ofdirectors andofficers, then the directors and officersofthe Corporation shall beprotected fromliability (whether through exculpation, indemnificationor advancementrights) tothefullest extent permitted bythe General Corporation Lawas soamended.
ARTICLE X
TheCorporation reserves theright toamend, alter, change orrepeal anyprovision contained inthis CertificateofIncorporation, in themanner now orhereafter prescribed bystatute, andall rights conferred uponstockholders herein are granted subject tothis reservation. Notwithstanding any otherprovisionofthis CertificateofIncorporation orapplicable law and inaddition toany affirmative vote of theholdersof anyparticular class ofcapital stock of theCorporation required byapplicable law or by aPreferred Stock Designation orthis Certificate ofIncorporation, theaffirmative vote of theholders of atleastseventy-fivepercent ofthe voting power ofthe shares of thethen outstanding voting stock of theCorporation entitled tovote thereon, voting together as asingle class, shall berequired toamend alter orrepealArticles V,VI,VIII orIX, orthisArticle X, ofthis Certificate ofIncorporation.
ARTICLE XII
Thename andmailing addressofthe incorporator are as follows:
| | Name: | Joseph G. Darling | |
| | Mailing Address: | 32 Wiggins Avenue | |
| | | Bedford, Massachusetts01730 | |
| | | | |
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IN WITNESS WHEREOF, this Certificate ofIncorporation hasbeen signed onbehalfofthe Corporation by the soleincorporator as of June 6, 2018and shall become effective asof5:00pm, Easterndaylight saving time, on June 6,2018.
| | /s/ Joseph G. Darling | |
| | Sole Incorporator | |
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