Exhibit 3(i)
RESTATED
CERTIFICATE OF INCORPORATION
OF
E-Z-EM, INC.
This Restated Certificate of Incorporation of E-Z-EM, Inc. (the "Company")
has been duly executed and is being filed by the Company to restate its
Certificate of Incorporation, which was originally filed on August 5, 1983, with
the Secretary of State of the State of Delaware (the "Certificate"). The
Restated Certificate of Incorporation, which was duly adopted in accordance with
the provisions of Section 245 of the General Corporation Law of the State of
Delaware, only restates and integrates and does not further amend the provisions
of the Company's Certificate as theretofore amended or supplemented, and there
is no discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
The Certificate is hereby restated in its entirety to read as follows:
1. NAME. The name of the corporation is E-Z-EM, Inc. (the "Company").
2. REGISTERED OFFICE AND AGENT. The address of the Company's registered
office in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
3. PURPOSE. The purposes for which the Company is formed are to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware and to possess and exercise all of the
powers and privileges granted by such law and any other law of Delaware.
4. AUTHORIZED CAPITAL. The total number of shares of all classes of capital
stock that the Company shall have authority to issue shall be 19,000,000,
consisting of 1,000,000 shares of preferred stock, $.10 per share ("Preferred
Stock"), and 18,000,000 shares of common stock, consisting of 12,000,000 shares
of Class A Common Stock, par value $0.10 per share ("Class A Common Stock"), and
6,000,000 shares of Class B Common Stock, par value $0.10 per share ("Class B
Common Stock" and, together with the Class A Common Stock, "Common Stock").
4.1. TERMS OF THE CLASS A COMMON STOCK AND CLASS B COMMON STOCK. The
powers, preferences and rights of the Class A Common Stock and the Class B
Common Stock, and the qualifications, limitations and restrictions thereof,
shall be in all respects identical except as otherwise required by law or
expressly provided in this Certificate of Incorporation, as amended.
4.1.1. VOTING. Except as otherwise provided by the Board of Directors
in fixing the voting rights as any series of Preferred Stock in accordance with
Section 4.2 of this Article 4 or as otherwise required by law or expressly
provided in this Certificate of
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Incorporation, voting power in the election of directors and for all other
purposes shall be vested exclusively in the holders of Class A Common Stock, and
each holder of Class A Common Stock shall be entitled to one vote for each share
of Class A Common Stock held. Notwithstanding anything to the contrary contained
in this Certificate of Incorporation, no action may be taken without the
affirmative vote of sixty-six percent (66%) of the outstanding shares of Class A
Common Stock with respect to any (i) amendment of this Certificate of
Incorporation, (ii) reduction of capital, (iii) merger or consolidation of the
Company with one or more other corporations, (iv) sale, conveyance, lease,
mortgage, pledge, or exchange of all or substantially all of the Company's
property or assets or (v) liquidation, dissolution, or winding up of the
Company. The Class B Common Stock shall have no voting rights on any matters
except as otherwise required by law or expressly provided in this Certificate of
Incorporation.
4.1.2. DIVIDENDS AND OTHER DISTRIBUTIONS. The record holders of Common
Stock shall be entitled to receive such dividends and other distributions in
cash, stock or property of the Company as may be declared thereon by the Board
of Directors out of funds legally available therefor. Each share of Class A
Common Stock and each share of Class B Common Stock shall have identical rights
with respect to dividends and distributions (including distributions in
connection with any recapitalization, and upon liquidation, dissolution or
winding up of the Company); provided that, in the case of cash dividends, the
payment per share of Class B Common Stock may be higher (but in no event lower)
than the payment per share of Class A Common Stock; and provided, further, that
dividends or other distributions payable on Common Stock in shares of Common
Stock shall be made to all holders of Common Stock and may be made only as
follows: (i) in shares of Class B Common Stock to the record holders of Class A
Common Stock and to the record holders of Class B Common Stock; or (ii) in
shares of Class A Common Stock to the record holders in Class A Common Stock and
in shares of Class B Common Stock to the record holders of Class B Common Stock.
4.1.3. CONVERTIBILITY. Except as described below, neither the Class A
Common Stock nor the Class B Common Stock shall be convertible into another
class of Common Stock or any other security of the Company.
(a) All outstanding shares of Class B Common Stock may be converted
into shares of Class A Common Stock on a share-for-share basis by resolution of
the Board of Directors if, as a result of the existence of the Class B Common
Stock, either the Class A Common Stock or the Class B Common Stock is, or both
are, excluded from quotation on the National Association of Securities Dealers,
Inc. Automated Quotation System National Market System (the "NASDAQ/NMS") or, if
such share are quoted on another national quotation system or listed on a
national securities exchange, from trading on the principal national quotation
system or principal national securities exchange on which such securities are
traded.
(b) All outstanding shares of Class B Common Stock shall be
immediately converted into shares of Class A Common Stock on a share-for-share
basis if at any time the number of outstanding shares of Class A Common Stock as
reflected on the stock transfer records of the
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Company falls below 10% of the aggregate number of outstanding shares of Common
Stock. For purposes of the immediately preceding sentence, any shares of Common
Stock repurchased or otherwise acquired by the Company and held as treasury
shares shall not be deemed "outstanding" from and after the date of acquisition.
(c) In the event of any conversion of the Class B Common Stock
pursuant to subsection (a) or (b) of this Section 4.1.3, certificates that
formerly represented outstanding shares of Class B Common Stock will thereafter
be deemed to represent a like number of shares of Class A Common Stock and all
shares of Common Stock authorized by this Certificate of Incorporation shall be
deemed to be shares of Class A Common Stock.
4.1.4. CLASS B PROTECTION. (a) If at any time after the effective time
of this amendment of Article 4 (the "Effective Time") either (i) any person or
group acquires (other than upon issuance or sale by the Company, by operation of
law, by will or the laws of descent and distribution, by gift, or by foreclosure
of a bona fide loan) beneficial ownership of shares of Class A Common Stock
constituting 10% or more of the then issued and outstanding shares of Class A
Common Stock or (ii) any group is formed whose members have acquired after the
Effective Time (other than upon issuance or sale by the Company, by operation of
law, by will or the laws of descent and distribution, by gift, or by foreclosure
of a bona fide loan) beneficial ownership of shares of Class A Common Stock
constituting 10% or more of the then issued and outstanding shares of Class A
Common Stock (any person or group making any such acquisition or any group so
formed being hereafter referred to in this Section 4.1.4 as a "Significant
Shareholder"), and such person or group does not at the time of such acquisition
beneficially own shares of Class B Common Stock acquired after the time at which
the Company shall have first made a distribution of one share of Class B Common
Stock for each share of Class A Common Stock (hereafter referred to in this
Section 4.1.4 as the "Distribution") constituting an equal or greater percentage
of the then issued and outstanding shares of Class B Common Stock, such
Significant Shareholder shall, within the 90-day period beginning the day after
becoming a Significant Shareholder, commence a public cash tender offer to
purchase additional shares of Class B Common Stock (a "Class B Protection
Transaction") in accordance with this Section 4.1.4.
(b) In a Class B Protection Transaction, the Significant Shareholder
shall offer to purchase for cash from the holders of the Class B Common Stock,
pursuant to a public tender offer that is in compliance with all applicable laws
and regulations, at the price determined pursuant to the formula set forth in
subsection (d) of this Section 4.1.4, that number of additional shares of Class
B Common Stock (the "Additional Shares") determined by (i) multiplying (x) the
percentage of issued and outstanding shares of Class A Common Stock that were
beneficially owned by such person or group on the date (the "Trigger Date") on
which such person or group became a Significant Shareholder and acquired by such
Significant Shareholder after the Effective Time by (y) the number of shares of
Class B Common Stock issued and outstanding on the Trigger Date and (ii)
subtracting from such product the number of shares of Class B Common Stock that
were beneficially owned by such Significant Shareholder on the Trigger Date and
acquired by such Significant Shareholder after the Distribution
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(including shares acquired on the Trigger Date at or prior to the time such
person or group became a Significant Shareholder). The Significant Shareholder
shall purchase all shares validly tendered in such Class B Protection
Transaction and not withdrawn; provided, however, that if the number of shares
of Class B Common Stock so tendered and not withdrawn exceeds the number of
shares required to be purchased pursuant to the formula set forth above in this
subsection (b), the number of shares of Class B Common Stock purchased from each
tendering holder shall be pro rata in proportion to the total number of shares
of Class B Common Stock so tendered and not withdrawn by all tendering holders.
(c) A Class B Protection Transaction shall also be effected by any
Significant Shareholder that acquires, or joins a group whose members (after
giving effect to such joining) have since the Effective Time acquired,
beneficial ownership of additional shares of Class A Common Stock (other than
upon issuance of sale by the Company, by operation of law, by will or the laws
of descent and distribution, by gift, or by foreclosure of a bona fide loan) if
(i) such additional acquisition or joining results in such Significant
Shareholder beneficially owning shares of Class A Common Stock acquired after
the Effective Time representing the next higher integral multiple of 5% (e.g.,
15%, 20%, 25%, etc.) of the total number of shares of Class A Common Stock
issued and outstanding on the date of such acquisition or joining (a "Subsequent
Trigger Date") and (ii) such Significant Shareholder (after giving effect to
such joining, if any) does not on such Subsequent Trigger Date beneficially own
shares of Class B Common Stock acquired after the Distribution constituting an
equal or greater percentage of the total number of shares of Class B Common
Stock issued and outstanding on such Subsequent Trigger Date. Such Significant
Shareholder shall be required to offer to purchase, through a public cash tender
offer that is in compliance with all applicable laws and regulations, that
number of Additional Shares determined by (i) multiplying (x) the percentage of
issued and outstanding shares of Class A Common Stock that were beneficially
owned by such Significant Shareholder on such Subsequent Trigger Date and
acquired by such Significant Shareholder after the Effective Time by (y) the
number of shares of Class B Common Stock issued and outstanding on such
Subsequent Trigger Date and (ii) subtracting from such product the number of
shares of Class B Common Stock that were beneficially owned by such Significant
Shareholder on such Subsequent Trigger Date and acquired by such Significant
Shareholder after the Distribution (including shares acquired on such Subsequent
Trigger Date at or prior to the time such Significant Shareholder acquired the
shares of Class A Common Stock resulting in ownership of the applicable higher
integral multiple of 5%). Such Significant Shareholder shall purchase all shares
validly tendered and not withdrawn, or a pro rata portion thereof as specified
in subsection (b) of this Section 4.1.4, at the price determined pursuant to the
formula set forth in subsection (d) of this Section 4.1.4, even if a previous
Class B Protection Transaction resulted in fewer shares of Class B Common Stock
being purchased than the previous tender offer included.
(d) The offer price for any shares of Class B Common Stock to be
purchased by a Significant Shareholder pursuant to a Class B Protection
Transaction shall be the greater of (i) the highest price per share paid by such
Significant Shareholder for any share of Class A Common Stock in the six-month
period ending on the applicable Trigger
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Date or Subsequent Trigger Date, as the case may be, and (ii) the highest bid
price of a share of Class A Common Stock or Class B Common Stock (whichever is
higher) on the NASDAQ/NMS (or such other quotation system or securities exchange
constituting the principal trading market for either class of Common Stock) on
such Trigger Date or Subsequent Trigger Date, as the case may be. In the event
that the Significant Shareholder has acquired shares of Class A Common Stock
during such six-month period for consideration other than cash, the value of
such consideration per share shall be as determined in good faith by the Board
of Directors.
(e) A Class B Protection Transaction shall be deemed to have been
effected by making the requisite public cash tender offer and purchasing (after
proration, if applicable) all shares that have been validly tendered into such
tender offer and not withdrawn, even if the number of shares purchased is less
than the number of shares included in such tender offer.
(f) If any Significant Shareholder fails either to make a public cash
tender offer as provided in by this Section 4.1.4 or to purchase (after
proration, if applicable), all shares validly tendered into such tender offer
and not withdrawn, such Significant Shareholder shall not be entitled to vote
any shares of Class A Common Stock beneficially owned by such Significant
Shareholder and acquired by such Significant Shareholder after the Effective
Time unless and until either (i) the provisions of this Section 4.1.4 are
complied with or (ii) all shares of Class A Common Stock whose acquisition after
the Effective Time resulted in the occurrence of a Trigger Date or Subsequent
Trigger Date are no longer beneficially owned by such Significant Shareholder.
To the extend that the voting power of any shares of Class A Common Stock is so
suspended, such shares shall not be included in the determination of aggregate
voting shares for any purpose under this Certificate of Incorporation or
applicable law.
(g) Neither a Trigger Date nor a Subsequent Trigger Date shall be
deemed to have occurred in the event of any increase in percentage ownership of
Class A Common Stock resulting solely from a change in the total amount of Class
A Common Stock outstanding; provided that any acquisition by any person or group
occurring after such change shall be subject to any Class B Protection
Transactions provisions that would otherwise apply pursuant to this Section
4.1.4.
(h) All calculations with respect to percentage ownership of issued
and outstanding shares of either class of Common Stock shall be based upon the
numbers of issued and outstanding shares reported by the company on the last
filed of the Company's: (i) most recent Annual Report on Form 10-K; (ii) most
recent Quarterly Report on Form 10-Q; or (iii) most recent Current Report on
Form 8-K, if any.
(i) In the event of an acquisition of Class A Common Stock by the
Company, acquired shares shall be considered issued and outstanding for purposes
of determining the Company's obligations under this Section 4.1.4.
(j) For purposes of this Section 4.1.4: (i) the meanings of the terms
"beneficially own" and "beneficial ownership" shall be determined pursuant to
Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or any successor
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provision; (ii) whether a "group" has been formed or exists shall be determined
in accordance with Rule 13d-5(b) promulgated under the Exchange Act, or any
successor provision; (iii) the term "person" shall mean any individual,
partnership, joint venture, corporation, trust, incorporated organization,
government or governmental department or agency, or any other individual or
entity that would be deemed a "person" under Section 13(d)(3) of the Exchange
Act, or any successor provision; and (iv) shares of Class A Common Stock that
were acquired by a person or group beneficially owning shares of common stock of
the Company immediately prior to the Effective Time solely by virtue of the
reclassification of such shares into shares of Class A Common Stock at the
Effective Time shall not constitute shares of Class A Common Stock acquired
after the Effective Time. Shares of Class B Common Stock that were acquired by a
person or group beneficially owning shares of Class A Common Stock on the record
date for the Distribution pursuant to the Distribution shall not constitute
shares of Class B Common Stock acquired after the Distribution.
4.1.5. MERGER AND CONSOLIDATION. In the event of a merger or
consolidation of the Company with or into another entity (whether or not the
Company is the surviving entity), the holders of Class B Common Stock shall be
entitled to receive the same amount and form of consideration per share as the
per-share consideration, if any, received by any holder of the Class A Common
Stock in such merger or consolidation.
4.1.6. SUBDIVISION OF SHARES. If the Company shall in any manner
split, subdivide or combine the outstanding shares of Class A Common Stock or
Class B Common Stock, the outstanding shares of the other such class of Common
Stock shall be proportionally split, subdivided or combined in the same manner
and on the same basis as the outstanding shares of the other class of Common
Stock have been split, subdivided or combined.
4.1.7. POWER TO SELL AND PURCHASE SHARES. The Board of Directors shall
have the power to cause the Company to issue and sell all or any part of any
class of stock herein or hereafter authorized to such persons, firms,
associations or corporations, and for such consideration, as the Board of
Directors shall from time to time, in its discretion, determine, whether or not
greater consideration could be received upon the issue or sale of the same
number of shares of another class, and as otherwise permitted by law. The Board
of Directors shall have the power to cause the Company to purchase, out of funds
legally available therefor, any class of stock herein or hereafter authorized
from such persons, firms, associations or corporations, and for such
consideration, as the Board of Directors shall from time to time, in its
discretion, determine, whether or not less consideration could be paid upon the
purchase of the same number of shares of another class, and as otherwise
permitted by law.
4.1.8. INCREASE OR DECREASE IN NUMBER OF SHARES. The number of
authorized shares of Class B Common Stock may be increased or decreased (but not
below the number of shares then outstanding) by the affirmative vote of
sixty-six percent (66%) of the outstanding shares of the Class A Common Stock.
4.2. PREFERRED STOCK. The Board of Directors shall have the power by
resolution to (i) provide for the issuance of shares of
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Preferred Stock in series, (ii) determine the number of shares in any such
series and (iii) fix the designations, preferences, qualifications, limitations,
restrictions, and special or relative rights to the Preferred Stock or any
series thereof.
5. TERM. The Company is to have perpetual existence.
6. BYLAWS. The bylaws of the Company may be altered, amended or repealed by
the vote of a majority of all the directors or by the vote of holders of a
majority of the outstanding stock entitled to vote.
7. LIMITATION OF LIABILITY. No director of the Company shall be liable to
the Company or 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 Company 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 26th day
of October, 1992.
E-Z-EM, Inc.
/s/ Daniel Martin
----------------------------------
Daniel Martin
President and Chief Operating
Officer
ATTEST:
/s/ W. Philip Van Kirk
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W. Philip Van Kirk
Secretary
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
E-Z-EM, INC.
Under Section 242 of the General Corporation Law
================================================================================
It is hereby certified that:
1. The name of the corporation is E-Z-EM, Inc. (the "Company").
2. The Restated Certificate of Incorporation of the Company (the "Restated
Certificate of Incorporation") is hereby amended in accordance with the
following resolution:
RESOLVED, that the First paragraph of Article 4 of the Restated
Certificate of Incorporation of the Company is hereby amended to read in
its entirety as follows:
"4. AUTHORIZED CAPITAL. The total number of shares of all classes of
capital stock that the Company shall have authority to issue shall be
17,000,000, consisting of 1,000,000 shares of preferred stock, $.10
par value per share ("Preferred Stock"), and 16,000,000 shares of
common stock, consisting of 6,000,000 shares of Class A Common Stock,
$.10 par value per share ("Class A Common Stock") and 10,000,000
shares of Class B Common Stock, $.10 par value per share ("Class B
Common Stock" and together with the Class A Common Stock, "Common
Stock")."
3. This Amendment of the Restated Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of Sections
228 and 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, we have hereunto set our hands this 11th day
of December, 1995. ----
E-Z-EM, Inc.
/s/ Dennis J. Curtin
----------------------------------
By: Dennis J. Curtin
Title: Vice President - Finance
ATTEST:
/s/ Terry S. Zisowitz
- -----------------------------------
By: Terry S. Zisowitz
Title: Vice President - Legal and
Regulatory Affairs
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CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION
OF
E-Z-EM, INC.
E-Z-EM, INC., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (the "Corporation") hereby
certifies that:
FIRST: The name of the Corporation is E-Z-EM, Inc.
SECOND: This Certificate of Amendment to the Certificate of Incorporation amends
the Certificate of Incorporation by replacing Section 4.1.1 in connection with
amending certain supermajority voting provisions.
THIRD: The Board of Directors of the Corporation, at a duly convened meeting of
the directors of the Corporation, duly adopted resolutions proposing and
declaring advisable the following amendment to the Amended and Restated
Certificate of Incorporation of the Corporation:
RESOLVED, that the Company's Board of Directors believes that it is in the
best interests of the Company to amend the second sentence of Section 4.1.1 to
read in its entirety as follows:
4.1.1 VOTING. Except as otherwise provided by the Board of Directors in
fixing the voting rights of any series of Preferred Stock in accordance
with Section 4.2 of this Article 4 or as otherwise required by law or
expressly provided in this Certificate of Incorporation, voting power in
the election of directors and for all other purposes shall be vested
exclusively in the holders of Class A Common Stock, and each holder of
Class A Common Stock shall be entitled to one vote for each share of Class
A Common Stock held. Notwithstanding anything to the contrary contained in
this Certificate of Incorporation and subject to applicable voting
requirements of the Delaware General Corporation Law, no action may be
taken without the affirmative vote or sixty-six percent (66%) of the shares
of the Class A Common Stock actually being voted in connection with any (i)
amendment of this Certificate of Incorporation, (ii) reduction of capital,
(iii) merger or consolidation of the Company with one or more other
corporations, (iv) sale, conveyance, lease, mortgage, pledge, or exchange
of all or substantially all of the Company's property or assets or (v)
liquidation, dissolution, or winding up of the Company. The Class B Common
Stock shall have no voting rights on any matters except as otherwise
required by law or expressly provided in this Certificate of Incorporation.
FOURTH: In accordance with the applicable provisions of Sections 141, 222 and
242 of the General Corporation Law of the State of Delaware, this Certificate of
Amendment of the Certificate of Incorporation was duly adopted and recommended
for stockholder approval at a meeting of the Board of Directors and was duly
approved and adopted by the required vote of the Corporation's shareholders at a
duly held meeting of shareholders held March 5, 1997.
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by
its President and Chief Executive Officer this 9th day of May, 1997.
/s/ Daniel R. Martin
----------------------------------
Daniel R. Martin
President and Chief Executive
Officer
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