EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
ADEZA BIOMEDICAL CORPORATION
ADEZA BIOMEDICAL CORPORATION, a corporation, organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The original Certificate of Incorporation was filed with the
Secretary of State of Delaware on May 7, 1996.
2. An Amended and Restated Certificate of Incorporation was filed with
the Secretary of State of Delaware on September 18, 2000.
3. An Amended and Restated Certificate of Incorporation was filed with
the Secretary of State of Delaware on September 18, 2001.
4. The Amended and Restated Certificate of Incorporation in the form
attached hereto as Exhibit A has been duly adopted in accordance with the
provisions of Sections 242, 245 and 228 of the General Corporation Law of the
State of Delaware by the directors and stockholders of the Corporation, and
prompt written notice was duly given pursuant to Section 228 to those
stockholders who did not approve the Amended and Restated Certificate of
Incorporation by written consent.
5. The Amended and Restated Certificate of Incorporation so adopted
reads in full as set forth in Exhibit A attached hereto and is hereby
incorporated herein by this reference.
IN WITNESS WHEREOF, Adeza Biomedical Corporation has caused this
Certificate to be signed by its President and Chief Executive Officer this __
day of ______, 2004.
ADEZA BIOMEDICAL CORPORATION
By:
-------------------------------------
Emory V. Anderson, President and
Chief Executive Officer
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ADEZA BIOMEDICAL CORPORATION
FIRST
The name of the Corporation is Adeza Biomedical Corporation.
SECOND
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust Company.
THIRD
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the Delaware General Corporation
Law.
FOURTH
A. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 105,000,000, consisting of
100,000,000 shares of Common Stock, par value $0.001 per share (the "Common
Stock") and 5,000,000 shares of Preferred Stock, par value $0.001 per share (the
"Preferred Stock").
B. The board of directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of shares of Preferred Stock in
one or more series, and by filing a certificate pursuant to the applicable law
of the State of Delaware (such certificate being hereinafter referred to as a
"Preferred Stock Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the designation, powers,
preferences, and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. The number of authorized
shares of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to the terms of any Preferred Stock Designation.
C. Each outstanding share of Common Stock shall entitle the holder
thereof to one vote on each matter properly submitted to the stockholders of the
Corporation for their vote; provided, however, that, except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this Certificate of Incorporation (including any Certificate of
Designations relating to any series of Preferred Stock) that relates solely to
the terms of one or more outstanding series of Preferred Stock if the holders of
such affected series are entitled, either separately or together as a class with
the holders of one or more other such series, to vote thereon by law or pursuant
to this Certificate of Incorporation (including any Certificate of Designations
relating to any series of Preferred Stock).
FIFTH
The following provisions are inserted for the management of the business
and the conduct of the affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the Corporation and of its directors
and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the board of directors. In addition to the powers and
authority expressly conferred upon them by statute or by this Certificate of
Incorporation or the bylaws of the Corporation, the directors are hereby
empowered to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation.
B. The directors of the Corporation need not be elected by written
ballot unless the bylaws so provide.
C. Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
D. Special meetings of stockholders of the Corporation may be called
only by the Chairman of the Board or the President or by the board of directors
acting pursuant to a resolution adopted by a majority of the Whole Board. For
purposes of this Certificate of Incorporation, the term "Whole Board" shall mean
the total number of authorized directors whether or not there exist any
vacancies in previously authorized directorships.
E. In addition to the requirements of law and any other provisions
hereof (and notwithstanding the fact that approval by a lesser vote may be
permitted by law or any other provision thereof), the affirmative vote of the
holders of at least 66 2/3% of the voting power of the then-outstanding stock
shall be required to amend, alter, repeal or adopt any provision inconsistent
with this Sections C, D and E of this Article Fifth.
SIXTH
A. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the number of
directors shall be fixed from time to time exclusively by the board of directors
pursuant to a resolution adopted by a majority of the Whole Board. The
directors, other than those who may be elected by the holders of any series of
2
Preferred Stock under specified circumstances, shall be divided into three
classes, with the term of office of the first class to expire at the
Corporation's first annual meeting of stockholders following the first sale of
the Corporation's Common Stock pursuant to a firmly underwritten registered
public offering (the "IPO"), the term of office of the second class to expire at
the Corporation's second annual meeting of stockholders following the IPO and
the term of office of the third class to expire at the Corporation's third
annual meeting of stockholders following the IPO, and thereafter for each such
term to expire at each third succeeding annual meeting of stockholders after
such election and with each director to hold office until his or her successor
shall have been duly elected and qualified. At each annual meeting of
stockholders, directors elected to succeed those directors whose terms expire
shall be elected for a term of office to expire at the third succeeding annual
meeting of stockholders after their election, with each director to hold office
until his or her successor shall have been duly elected and qualified.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the board of directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall, unless otherwise required by law or by resolution
of the board of directors, be filled only by a majority vote of the directors
then in office, though less than a quorum (and not by stockholders), and
directors so chosen shall serve for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which they have been
chosen expires or until such director's successor shall have been duly elected
and qualified. No decrease in the authorized number of directors shall shorten
the term of any incumbent director.
C. 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.
D. In addition to the requirements of law and any other provisions
hereof (and notwithstanding the fact that approval by a lesser vote may be
permitted by law or any other provision thereof), the affirmative vote of the
holders of at least 66 2/3% of the voting power of the then-outstanding stock
shall be required to amend, alter, repeal or adopt any provision inconsistent
with this Article Sixth.
SEVENTH
The board of directors is expressly empowered to adopt, amend or repeal
the bylaws of the Corporation. Any adoption, amendment or repeal of the bylaws
of the Corporation by the board of directors shall require the approval of a
majority of the Whole Board. The stockholders shall also have power to adopt,
amend or repeal the bylaws of the Corporation; provided, however, that, in
addition to any vote of the holders of any class or series of stock of the
Corporation required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least 66 2/3% of the voting power of all
of the then-outstanding shares of the capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class, shall be required for the stockholders to adopt, amend or repeal any
provision of the bylaws of the Corporation. In addition to the requirements of
law and any other provisions hereof (and notwithstanding the fact that approval
by a lesser vote may be permitted by law or any other provision thereof), the
affirmative
3
vote of the holders of at least 66 2/3% of the voting power of the
then-outstanding stock shall be required to amend, alter, repeal or adopt any
provision inconsistent with this Article Seventh.
EIGHTH
A director of the Corporation shall not be personally liable to the
Corporation 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 Corporation 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. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
NINTH
The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner now or hereafter
prescribed by the laws of the State of Delaware and all rights conferred upon
stockholders are granted subject to this reservation.
4