EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BRUKER AXS INC.
------------------------------
Richard M. Stein hereby certifies that:
ONE: The name of the corporation is Bruker AXS Inc.
TWO: The date of filing the original Certificate of Incorporation of
this corporation with the Secretary of State of the State of Delaware was March
28, 2000.
THREE: The Corporation amended the Certificate of Incorporation by
filing with the Secretary of the State of Delaware An Amended and Restated
Certificate of Incorporation on January 16, 2001.
FOUR: He is the duly elected and acting Secretary of Bruker AXS Inc., a
Delaware corporation.
FIVE: This Second Amended and Restated Certificate of Incorporation
restates and further amends the Certificate of Incorporation of this corporation
by restating the text of the original Certificate of Incorporation to read as
follows:
FIRST: The name of this corporation shall be:
Bruker AXS Inc. (the "Corporation")
SECOND: Its registered office in the State of Delaware is to be located
at 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801,
and its registered agent at such address is: THE CORPORATION TRUST COMPANY.
THIRD: The purpose or purposes of the corporation shall be:
To carry on any and all business and to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 105,000,000 shares, which shares shall be divided
into two classes consisting of: (i) 100,000,000 shares of Common Stock (with
$.01 par value per share) ("Common Stock") and (ii) 5,000,000 shares of
Preferred Stock (with $.01 par value per share) ("Blank Check Preferred Stock").
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the Common Stock and the
Preferred Stock shall be as follows:
A. COMMON STOCK
1. VOTING RIGHTS. Except as otherwise required by law or this
Certificate of Incorporation, each holder of Common Stock shall have one vote in
respect of each share of Common Stock held by him of record on the books of the
Corporation for the election of directors and on all matters submitted to a vote
of stockholders of the Corporation.
2. DIVIDENDS. The holders of shares of Common Stock shall be entitled
to receive, when and if declared by the Board of Directors, out of the assets of
the Corporation which are by law available therefor, dividends payable either in
cash, in property or in shares of capital stock, subject, however, to the
limitations contained in Part B below.
3. DISSOLUTION, LIQUIDATION OR WINDING UP. After distribution in full
of the preferential amount, if any, to be distributed to the holders of series
of the Blank Check Preferred Stock (in accordance with the relative preferences
among such series) in the event of involuntary liquidation, distribution,
dissolution or winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to receive all of the remaining assets of the Corporation,
tangible and intangible, or whatever kind available for distribution to
stockholders, ratably in proportion to the number of shares of Common Stock held
by them respectively.
B. BLANK CHECK PREFERRED STOCK
1. ISSUANCE. Shares of Blank Check Preferred Stock may be issued from
time to time in one or more series as designated by the Board of Directors, each
of said series to be distinctly designated. Shares of Blank Check Preferred
Stock may be issued when deemed by the Board of Directors to be necessary to
protect the Corporation from an actual, threatened or potential hostile or
undesired takeover or takeover attempt. All shares of any one series of the
Blank Check Preferred Stock shall be alike in every particular, except that
there may be different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers, if any, and the designations,
relative preferences, participating, optional or other special rights or
privileges of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other series
at any time outstanding.
2. AUTHORITY OF THE BOARD OF DIRECTORS. The Board of Directors is
authorized, subject to limitations prescribed by law and the provisions of this
Article FOURTH, to provide for the issuance of the shares of the Blank Check
Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix in the
resolution or resolutions providing for the issue of such stock adopted by the
Board of Directors of the Corporation the voting powers, if any, and the
designations, relative preferences, participating, optional or other special
rights or privileges, and the qualifications, limitations or restrictions of
such series, including, but without limiting the generality of the foregoing,
the following:
(a) The distinctive designation of, and the number of shares
of the Blank Check Preferred Stock which shall constitute such
series. The designation of a
-2-
series of preferred stock need not include the words
"preferred" or "preference" and may be designated "special" or
other distinctive term. Unless otherwise provided in the
resolution issuing such series, the number of shares of any
series of the Blank Check Preferred Stock may be increased or
decreased (but not below the number of shares thereof then
outstanding) by the Board of Directors in the manner
prescribed by law;
(b) The rate and times at which, and the terms and conditions
upon which, dividends, if any, on the Blank Check Preferred
Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of
the same or other classes of stock and whether such dividends
shall be cumulative or non-cumulative and, if cumulative, the
date from which such dividends shall be cumulative;
(c) Whether the series shall be convertible into, or
exchangeable for, at the option of the holders of the Blank
Check Preferred Stock of such series or the Corporation or
upon the happening of a specified event, shares of any other
class or classes or any other series of the same or any other
class or classes of stock of the Corporation, and the terms
and conditions of such conversion or exchange, including
provisions for the adjustment of any such conversion rate in
such events as the Board of Directors shall determine;
(d) Whether or not the Blank Check Preferred Stock of such
series shall be subject to redemption at the option of the
Corporation or the holders of such series or upon the
happening of a specified event, and the redemption price or
prices and the time or times at which, and the terms and
conditions upon which, the Blank Check Preferred Stock of such
series may be redeemed;
(e) The rights, if any, of the holders of the Blank Check
Preferred Stock of such series upon the voluntary or
involuntary liquidation, merger, consolidation, distribution
or sale of assets, dissolution or winding-up, of the
Corporation;
(f) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Blank Check Preferred
Stock of such series; and
(g) Subject to subparagraph 5 of Paragraph C hereof, whether
such series of the Blank Check Preferred Stock shall have
full, limited or no voting powers including, without limiting
the generality of the foregoing, whether such series shall
have the right, voting as a series by itself or together with
other series of the Blank Check Preferred Stock or all series
of the Blank Check Preferred Stock as a class, to elect one or
more directors of the Corporation if there shall have been a
default in the payment of dividends on any one or more series
of the Blank Check Preferred Stock or under such other
circumstances and on such conditions as the Board of Directors
may determine.
-3-
C. OTHER PROVISIONS.
1. No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series of
stock or of other securities of the Corporation shall have any preemptive right
to purchase or subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason of any increase
of the authorized capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other securities convertible
into or exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant to resolution of
the Board of Directors to such persons, firms, corporations or associations
(including such holders or others) and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole discretion.
2. The relative powers, preferences and rights of each series of the
Blank Check Preferred Stock in relation to the powers, preferences and rights of
each other series of the Blank Check Preferred Stock shall, in each case, be as
fixed from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in Paragraph B hereof. The
consent, by class or series vote or otherwise, of the holders of such of the
series of the Blank Check Preferred Stock as are from time to time outstanding
shall not be required for the issuance by the Board of Directors of any other
series of the Blank Check Preferred Stock whether or not the powers, preferences
and rights of such other series shall be fixed by the Board of Directors as
senior to, or on a parity with, the powers, preferences and rights of such
outstanding series, or any of them; provided, however, that the Board of
Directors may provide in the resolution or resolutions as to any series of the
Blank Check Preferred Stock adopted pursuant to Paragraph B hereof, the
conditions, if any, under which the consent of the holders of a majority (or
such greater proportion as shall be fixed therein) of the outstanding shares of
such series shall be required for the issuance of any or all other series of the
Blank Check Preferred Stock.
3. Subject to the provisions of subparagraph 2 of this Paragraph C,
shares of any series of the Blank Check Preferred Stock may be issued from time
to time as the Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of Directors.
4. Shares of authorized Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of Directors.
5. The number of authorized shares of Common Stock and of the Blank
Check Preferred Stock, without a class or series vote, may be increased or
decreased from time to time (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
-4-
6. The number of Directors shall be fixed from time to time exclusively
by the Board of Directors pursuant to a resolution adopted by the Board of
Directors. The Directors of the Corporation shall be divided into three classes:
Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the whole number of the Board of Directors. If the
Board of Directors is not evenly divisible by three, the Board of Directors
shall determine the number of Directors to be elected to each class. The initial
members of Class I shall hold office for a term to expire at the Annual Meeting
of the Stockholders to be held in 2004; the initial members of Class II shall
hold office for a term to expire at the Annual Meeting of the Stockholders to be
held in 2002, the initial members of Class III shall hold office for a term to
expire at the Annual Meeting of the Stockholders to be held in 2003, and in the
case of each class, until their respective successors are duly elected and
qualified. At each annual election held commencing with the annual election in
2002, the Directors elected to succeed those whose terms expire shall be
identified as being of the same class as the Directors they succeed and shall be
elected to hold office for a term to expire at the third Annual Meeting of the
Stockholders after their election, and until their respective successors are
duly elected and qualified. If the number of Directors changes, any increase or
decrease in Directors shall be apportioned among the classes so as to maintain
all classes as equal in number as possible, and any additional Director elected
to any class shall hold office for a term which shall coincide with the terms of
the other Directors in such class and until his successor is duly elected and
qualified.
FIFTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware:
A. The Board of Directors of the corporation is expressly
authorized to adopt, amend, or repeal the by-laws of
the Corporation.
B. Elections of Directors need not be by written ballot
unless the by-laws of the corporation shall so
provide.
C. The books of the Corporation may be kept at such place
within or without the State of Delaware as the by-laws
of the Corporation may provide or as may be designated
from time to time by the Board of Directors of the
Corporation.
SIXTH: 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 of 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,
-5-
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.
SEVENTH: The Corporation hereby elects not to be governed by Section
203 of the General Corporation Law of Delaware.
EIGHTH: Except as stated in Article Ninth of this certificate of
incorporation, 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 statute, and all rights conferred upon a stockholder
herein are granted subject to this reservation.
NINTH: No director shall be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
notwithstanding any provision of law imposing such liability; provided, however,
that, to the extent required by applicable law, this provision shall not
eliminate the liability of a director (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 General Corporation Law of Delaware, or
(iv) for any transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director for or with respect
to any acts or omissions of such director occurring prior to such amendment or
repeal.
TENTH: The Corporation is to have perpetual existence.
SIX: This Second Amended and Restated Certificate of Incorporation has
been duly approved by the Board of Directors of the Corporation.
SEVEN: This Second Amended and Restated Certificate of Incorporation has
been duly adopted in accordance with the provisions of Sections 228, 242 and 245
of the General Corporation Law of the State of Delaware by the Board of
Directors and the stockholders of the Corporation.
-6-
IN WITNESS WHEREOF, BRUKER AXS INC. has caused this Second Amended and
Restated Certificate of Incorporation to be signed by its Secretary this __ day
of _____, 2001.
BRUKER AXS INC.
By:
---------------------------------
Richard M. Stein
Secretary
-7-