EXHIBIT 3.1
CERTIFICATE OF AMENDMENT OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
INTRABIOTICS PHARMACEUTICALS, INC.
IntraBiotics Pharmaceuticals, Inc., 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 name of the Corporation is IntraBiotics Pharmaceuticals,
Inc.
SECOND: The Certificate of Incorporation of the Corporation was
originally filed with the Secretary of State of the State of Delaware on January
19, 1994.
THIRD: The Board of Directors of the Corporation, acting in accordance
with the provisions of Sections 141 and 242 of the General Corporation Law of
the State of Delaware, adopted resolutions amending its Amended and Restated
Certificate of Incorporation as follows:
The first paragraph of Article IV shall be amended and restated to read
in its entirety as follows:
"IV.
A. This corporation is authorized to issue two classes of
stock to be designated, respectively, "Common Stock" and "Preferred
Stock." The total number of shares which the corporation is authorized
to issue is Seventy-Five Million (75,000,000) shares. Seventy Million
(70,000,000) shares shall be Common Stock, each having a par value of
one-tenth of one cent ($.001). Five Million (5,000,000) shares shall be
Preferred Stock, each having a par value of one-tenth of one cent
($.001)."
FOURTH: Thereafter, pursuant to a resolution of the Board of Directors,
this Certificate of Amendment was submitted to the stockholders of the
Corporation for approval, and was duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, IntraBiotics Pharmaceuticals, Inc. has caused this
Certificate of Amendment to be signed by its President, Chief Operating Officer
and Director on this 7th day of June, 2002.
INTRABIOTICS PHARMACEUTICALS, INC.
By: /s/ Ernest Mario
____________________________________
Ernest Mario
Chairman and Chief Executive Officer
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
INTRABIOTICS PHARMACEUTICALS, INC.
The undersigned, Kenneth J. Kelley, hereby certifies that:
ONE: He is the duly elected and acting President, of said corporation, which was
originally incorporated in Delaware on January 19, 1994.
TWO: The Amended and Restated Certificate of Incorporation of said corporation
shall be amended and restated to read in full as follows:
"
I.
The name of this corporation is IntraBiotics Pharmaceuticals, Inc.
II.
The address of the registered office of the corporation in the State of
Delaware is Corporation Trust Company, 1209 Orange Street, City of Wilmington,
County of New Castle, and the name of the registered agent of the corporation in
the State of Delaware at such address is the Corporation Trust Company.
III.
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
IV.
A. This corporation is authorized to issue two classes of stock
to be designated, respectively, "Common Stock" and "Preferred
Stock." The total number of shares which the corporation is
authorized to issue is Fifty-Five Million (55,000,000) shares.
Fifty Million (50,000,000) shares shall be Common Stock, each
having a par value of one-tenth of one cent ($.001). Five
Million (5,000,000) shares shall be Preferred Stock, each
having a par value of one-tenth of one cent ($.001).
B. The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized, by
filing a certificate (a "Preferred Stock Designation")
pursuant to the Delaware General Corporation Law ("DGCL"), to
fix or alter from time to time the designation, powers,
preferences and 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; and to increase or decrease the number of shares
of any series subsequent to the issuance of
2.
shares of that series, but not below the number of shares of
such series then outstanding. In case the number of shares of
any series shall be decreased in accordance with the foregoing
sentence, the shares constituting such decrease shall resume
the status that they had prior to the adoption of the
resolution originally fixing the number of shares of such
series.
V.
For the management of the business and for the conduct of the affairs of the
corporation, and in further definition, limitation and regulation of the powers
of the corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. BOARD OF DIRECTORS.
1. POWERS; NUMBER OF DIRECTORS. The management of the
business and the conduct of the affairs of the
corporation shall be vested in its Board of
Directors. The number of directors which shall
constitute the whole Board of Directors shall be
fixed exclusively by one or more resolutions adopted
by the Board of Directors.
2. ELECTION OF DIRECTORS. Subject to the rights of the
holders of any series of Preferred Stock to elect
additional directors under specified circumstances,
following the closing of the initial public offering
pursuant to an effective registration statement under
the Securities Act of 1933, as amended (the "1933
Act"), covering the offer and sale of Common Stock to
the public (the "Initial Public Offering"), the
directors shall be divided into three classes
designated as Class I, Class II and Class III,
respectively. Directors shall be assigned to each
class in accordance with a resolution or resolutions
adopted by the Board of Directors. At the first
annual meeting of stockholders following the closing
of the Initial Public Offering, the term of office of
the Class I directors shall expire and Class I
directors shall be elected for a full term of three
years. At the second annual meeting of stockholders
following the closing of the Initial Public Offering,
the term of office of the Class II directors shall
expire and Class II directors shall be elected for a
full term of three years. At the third annual meeting
of stockholders following the closing of the Initial
Public Offering, the term of office of the Class III
directors shall expire and Class III directors shall
be elected for a full term of three years. At each
succeeding annual meeting of stockholders, directors
shall be elected for a full term of three years to
succeed the directors of the class whose terms expire
at such annual meeting.
Notwithstanding the foregoing provisions of this section, each director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
3.
3. REMOVAL OF DIRECTORS
a. Neither the Board of Directors nor any
individual director may be removed without cause.
b. Subject to any limitation imposed by law,
any individual director or directors may be removed with cause by the holders of
a majority of the voting power of the corporation entitled to vote at an
election of directors.
4. VACANCIES
a. 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.
b. If at the time of filling any vacancy or any
newly created directorship, the directors
then in office shall constitute less than a
majority of the whole board (as constituted
immediately prior to any such increase), the
Delaware Court of Chancery may, upon
application of any stockholder or
stockholders holding at least ten percent
(10%) of the total number of the shares at
the time outstanding having the right to
vote for such directors, summarily order an
election to be held to fill any such
vacancies or newly created directorships, or
to replace the directors chosen by the
directors then in offices as aforesaid,
which election shall be governed by Section
211 of the DGCL.
B.
1. Subject to paragraph (h) of Section 43 of the Bylaws,
the Bylaws may be altered or amended or new Bylaws
adopted by the affirmative vote of at least sixty-six
and two-thirds percent (66-2/3%) of the voting power
of all of the then-outstanding shares of the voting
stock of the corporation entitled to vote. The Board
of Directors shall also have the power to adopt,
amend, or repeal Bylaws.
4.
2. The directors of the corporation need not be elected
by written ballot unless the Bylaws so provide.
3. 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.
4. Advance notice of stockholder nominations for the
election of directors and of business to be brought
by stockholders before any meeting of the
stockholders of the corporation shall be given in the
manner provided in the Bylaws of the corporation.
VI.
A. The liability of the directors for monetary damages shall be
eliminated to the fullest extent under applicable law.
B. Any repeal or modification of this Article VI shall be
prospective and shall not affect the rights under this Article
VI in effect at the time of the alleged occurrence of any act
or omission to act giving rise to liability or
indemnification.
VII.
A. 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 paragraph B of this Article
VII, and all rights conferred upon the stockholders herein are
granted subject to this reservation.
B. 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 any particular class or
series of the Voting Stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, the
affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of the voting stock, voting together
as a single class, shall be required to alter, amend or repeal
Articles V, VI, and VII."
* * *
THREE: This Amended and Restated Certificate of Incorporation was duly adopted
in accordance with the provisions of Section 242 and Section 245 of the General
Corporation Law of the State of Delaware, and was approved by the Board of
Directors of the Corporation and stockholders holding the requisite number of
shares required by statute, given in accordance with and pursuant to Section 141
and 228 of the General Corporation Law of the State of Delaware with written
notice given to those stockholders who did not consent as provided in said
Section 228.
5.
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been subscribed this 31 day of March, 2000 by the undersigned
who affirms that the statements made herein are true and correct.
INTRABIOTICS PHARMACEUTICALS, INC.
By: /s/ Kenneth J. Kelley
_______________________________________
Kenneth J. Kelley
President and Chief Executive Officer
6.