Exhibit 3.2
RESTATED
CERTIFICATE OF INCORPORATION
OF
GALAGEN INC.
GalaGen Inc. (the "Corporation") was incorporated under that name by
the filing of its original Certificate of Incorporation with the Secretary of
State of the State of Delaware on March 17, 1992. This Restated Certificate of
Incorporation of the Corporation, which restates and integrates and does not
further amend the provisions of the Company's Restated Certificate of
Incorporation as heretofore amended and supplemented, there being no discrepancy
between those provisions and the provisions of this Restated Certificate of
Incorporation (provided, however, that this Restated Certificate of
Incorporation omits such provisions contained in amendments to the Certificate
of Incorporation as were necessary to effect a change and cancellation of
stock), be and hereby is approved and adopted in accordance with the provisions
of Sections 242 and 245 of the General Corporation Law of the State of Delaware.
FIRST: The name of the Corporation shall be GalaGen Inc.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801, located in New Castle County. The registered agent
of the Corporation at that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 55,000,000 shares,
consisting of 15,000,000 shares of Preferred Stock, par value $.01 per share,
and 40,000,000 shares of Common Stock, par value $.01 per share.
The designations and the voting powers, preferences and relative,
participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the Preferred Stock and
the Common Stock which are fixed by this Certificate of Incorporation and the
express grant of authority to the Board of Directors to fix by resolution or
resolutions the designations and the voting powers, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the Preferred Stock which are not fixed
by this Certificate of Incorporation are as follows and as elsewhere set forth
in Articles Fifth and Sixth:
1. The Preferred Stock may be issued at any time or from time to
time in any amount, provided not more than 5,000,000 shares thereof shall be
outstanding at any one time, as Preferred Stock of one or more series, as
hereinafter provided. Each share of any one series of Preferred Stock shall be
identical in all respects except as to the date from which dividends thereon may
be cumulative, each series of Preferred Stock shall be distinctly designated by
letter or descriptive words, and all series of Preferred Stock shall rank
equally and be identical in all respects except as permitted by the provisions
of Section 2 of this Article Fourth. Shares of Preferred Stock shall be issued
only as fully paid and nonassessable shares.
2. Authority is hereby expressly granted to and vested in the Board
of Directors at any time or from time to time, without action by or approval of
the stockholders, to issue the Preferred Stock as Preferred Stock of one or more
series, to fix by resolution or resolutions providing for the issuance of shares
of any series the designations and the voting powers, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of such series so far as not inconsistent
with the provisions of this Article Fourth applicable to all series of Preferred
Stock, and to the full extent now or hereafter permitted by the laws of the
State of Delaware, including the following:
(A) the distinctive designation of such series and the number of
shares which shall constitute such series, which number may be
increased (except where otherwise provided by the Board of Directors
in creating such series) or decreased (but not below the number of
shares thereof then outstanding) from time to time by action of the
Board of Directors;
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(B) the rate or rates of dividends payable on shares of such series,
whether dividends shall be cumulative and, if so, the date or dates from
which dividends shall be cumulative on the shares of such series, the
preferences, restrictions, limitations and conditions upon the payment of
dividends, and the dates on which dividends, if declared, shall be payable;
(C) whether shares of such series shall be redeemable and, if so,
the terms and provisions of such redemption, including the date or
dates upon or after which they shall be redeemable, the amount per
share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates, and the manner
of selecting shares for redemption;
(D) the rights of the shares of such series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, and the relative rights of priority, if
any, of payment of shares of such series;
(E) whether shares of such series shall have a purchase,
retirement or sinking fund for the purchase, retirement or redemption
of shares of such series and, if so, the terms and provisions thereof;
(F) whether shares of such series shall have conversion
privileges and, if so, the terms and provisions thereof, including
provisions for adjustment of the conversion rate in such events as the
Board of Directors shall determine;
(G) whether shares of such series shall have voting rights, in
addition to voting rights provided by law, and, if so, the terms and
provisions thereof; and
(H) any other preferences and relative, participating, optional
or other special rights and the qualifications, limitations or
restrictions thereof.
3. The holders of the Preferred Stock of each series shall be
entitled to receive such dividends, when and as declared by the Board of
Directors, out of funds legally available
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therefor, as they may be entitled to in accordance with the resolution or
resolutions adopted by the Board of Directors providing for the issuance of such
series, payable on such dates as may be fixed in such resolution or resolutions.
So long as there shall be outstanding any shares of Preferred Stock of any
series entitled to cumulative dividends pursuant to the resolution or
resolutions providing for the issuance of such series, no dividend, whether in
cash or property, shall be paid or declared, nor shall any distribution be made,
on the Common Stock, nor shall any shares of Common Stock be purchased, redeemed
or otherwise acquired for value by the Corporation, if at the time of making
such payment, declaration, distribution, purchase, redemption or acquisition the
Corporation shall be in default with respect to any dividend payable on, or
obligation to maintain a purchase, retirement or sinking fund with respect to or
to redeem, shares of Preferred Stock of any series. Unless otherwise provided
by the Board of Directors pursuant to Section 2 of this Article Fourth, the
foregoing provisions of this Section 3 shall not, however, apply to a dividend
payable in Common Stock or to the acquisition of shares of Common Stock in
exchange for, or through application of the proceeds of the sale of, shares of
Common Stock. Subject to the foregoing and to any further limitations
prescribed in accordance with the provisions of Section 2 of this
Article Fourth, the Board of Directors may declare, out of funds legally
available therefor, dividends upon the then outstanding shares of Common Stock,
and shares of Preferred Stock of any series shall not be entitled to participate
therein.
4. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of the Preferred Stock
of each series shall be entitled to receive, out of the assets of the
Corporation available for distribution to its stockholders, before any
distribution of assets shall be made to the holders of the Common Stock, the
amount per share provided by the Board of Directors pursuant to Section 2 of
this Article Fourth, which may include an amount equal to any cumulative
dividends thereon to the date of final distribution to the holders of the
Preferred Stock; and the holders of the Common Stock shall be entitled, to the
exclusion of the holders of the Preferred Stock of all series, to participate
ratably in all the assets of the Corporation then remaining in accordance with
their respective rights and preferences. If upon any liquidation, dissolution
or winding up of the Corporation the assets available for distribution shall be
insufficient to pay the holders of all outstanding shares of Preferred Stock the
full
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amounts to which they respectively shall be entitled, unless otherwise provided
by the Board of Directors pursuant to Section 2 of this Article Fourth, the
holders of shares of Preferred Stock of all series shall participate ratably in
any distribution of assets according to the respective amount which would be
payable in respect of the shares of Preferred Stock held by them upon such
distribution if all amounts payable in respect of the Preferred Stock of all
series were paid in full. Unless otherwise provided by the Board of Directors
pursuant to Section 2 of this Article Fourth, neither a statutory merger nor
consolidation of the Corporation into or with any other corporation, nor a
statutory merger or consolidation of any other corporation into or with the
Corporation, nor a sale, transfer, exchange or lease of all or any part of the
assets of the Corporation, shall be deemed to be a liquidation, dissolution or
winding up of the Corporation within the meaning of this Section 4.
5. The Corporation, at the option of the Board of Directors, may
redeem the whole or any part of the Preferred Stock of any series at the price
or prices and on the terms and conditions provided in the resolution or
resolutions of the Board of Directors providing for the issuance of such series.
6. Anything herein or in any resolution or resolutions of the Board
of Directors providing for the issuance of any series of Preferred Stock to the
contrary notwithstanding, the rights of holders of all classes and series of
capital stock of the Corporation in respect of dividends and purchase,
retirement or sinking funds, if any, shall at all times be subject to the power
of the Board of Directors from time to time to set aside such reserves and to
make such other provisions, if any, as the Board of Directors shall deem to be
necessary or advisable for working capital, for expansion of the Corporation's
business (including the acquisition of real and personal property for that
purpose) and for any other purpose of the Corporation.
7. Except as otherwise provided by law or by this Certificate of
Incorporation or by the resolution or resolutions of the Board of Directors
providing for the issuance of any series of Preferred Stock, the holders of the
Preferred Stock shall not be entitled to vote and shall not be entitled to
receive notice of any meeting of stockholders at which they are not entitled to
vote. Except as otherwise provided by law or by this Certificate of
Incorporation or by the resolution or resolutions of the Board of Directors
providing for the issuance of any series of Preferred
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Stock, the vote of the holders of all or any portion of any class or series of
capital stock, as a class or series, shall not be required for any action to be
taken or authorized by the stockholders of the Corporation, including any
amendment of this Certificate of Incorporation. Except as otherwise provided by
law, each holder of shares of Common Stock shall be entitled to one vote for
each share of Common Stock held by such holder.
8. Except as otherwise provided by law or the resolution or
resolutions of the Board of Directors providing for the issuance of any series
of Preferred Stock or by the instrument governing the security, obligation,
warrant, option or right, no holder of shares of any class or series of capital
stock of the Corporation or of any security or obligation convertible into, or
of any warrant, option or right to subscribe for, purchase or otherwise acquire,
shares of any class or series of capital stock of the Corporation, whether now
or hereafter authorized, shall, as such holder, have any preemptive right to
subscribe for, purchase or otherwise acquire shares of any class or series of
capital stock of the Corporation or any security or obligation convertible into,
or any warrant, option or right to subscribe for, purchase or otherwise acquire,
shares of any class or series of capital stock of the Corporation, whether now
or hereafter authorized.
9. Authority is hereby expressly granted to and vested in the Board
of Directors at any time and from time to time, without action by or approval of
the stockholders, to declare, create and issue, with respect to shares of any
class or series of capital stock of the Corporation, dividends or distributions
in, or options or rights to acquire, shares of any class or series of capital
stock of the Corporation, or other securities, and to fix by resolution or
resolutions providing for the declaration, creation and issuance of any such
dividend, distribution, option or right the terms, provisions, rights,
qualifications, limitations or restrictions thereof so far as not inconsistent
with the provisions of this Article Fourth, and to the full extent now or
hereafter permitted by the laws of the State of Delaware, including
(a) provisions for the adjustment thereof upon an acquisition of shares,
reorganization, merger, consolidation, sale of assets, business combination or
other event, and (b) provisions that prevent the holder of a specified
percentage of outstanding shares of any class or series of capital stock of the
Corporation, including transferees of such holder, from exercising rights
thereunder.
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FIFTH: The following provisions shall govern the management of the
business and the conduct of the affairs of the Corporation and shall define,
limit and regulate the rights and powers of the Corporation and the Board of
Directors and stockholders:
1. The business and affairs of the Corporation shall be managed by
or under the direction of a Board of Directors.
2. The Board of Directors shall consist of the number of directors
provided for in the By-Laws but shall at no time consist of less than three
directors.
3. Whenever the holders of any one or more series of Preferred Stock
issued by the Corporation shall have the right, voting separately, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other provisions relating to such directorships
shall be governed by the provisions of this Certificate of Incorporation
applicable thereto, including the resolution or resolutions adopted by the Board
of Directors pursuant to Section 2 of Article Fourth.
4. Elections of directors need not be by written ballot unless the
By-Laws of the Corporation so provide.
5. A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty by the director as a director; provided, however, that this Section 5 shall
not eliminate or limit the liability of a director to the extent provided by
applicable law (a) for any breach of the duty of loyalty of the director to the
Corporation or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) for any
unlawful action under Section 174 of the General Corporation Law of the State of
Delaware, or (d) for any transaction from which the director derived an improper
personal benefit. No amendment to or repeal of this Section 5 shall apply to or
have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of the director
occurring prior to such amendment or repeal. If the laws of the State of
Delaware are hereafter changed to permit further elimination or limitation of
the liability of directors, then the
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liability of each director of the Corporation shall thereupon be eliminated or
limited to the fullest extent then permitted by law.
6. The Board of Directors shall have concurrent power with the
stockholders to adopt, alter, amend or repeal the By-Laws of the Corporation.
The Board of Directors may so adopt or change the By-Laws upon the affirmative
vote of the number of directors which shall constitute, under the provisions of
the By-Laws, the action of the Board of Directors. The stockholders may not so
adopt or change the By-Laws except upon the affirmative vote of at least 75% of
the votes entitled to be cast by the holders of all outstanding shares of stock
entitled to vote, voting together as a single class.
7. When considering a merger, consolidation, sale of assets,
business combination or other transaction, the Board of Directors and any
committee thereof, the directors and the officers of the Corporation may, in
considering the best interests of the Corporation and its stockholders, consider
the interests of and the effects of such transaction upon the employees,
customers and suppliers of the Corporation and its subsidiaries and upon
communities in which the Corporation and its subsidiaries are located or do
business.
8. The Board of Directors may from time to time determine whether,
to what extent, at what times and places and under what conditions and
regulations the accounts, books and records of the Corporation, or any of them,
shall be open to the inspection of the stockholders, and no stockholder shall
have any right to inspect any account, book or document of the Corporation
except as and to the extent expressly provided by law or expressly authorized by
resolution of the Board of Directors.
9. In addition to the powers and authority herein or by law
expressly conferred upon them, 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, subject, nevertheless, to the provisions of the laws of the
State of Delaware, this Certificate of Incorporation and any By-Laws adopted by
the stockholders; provided, however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors which would have
been valid if such By-Laws had not been adopted.
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10. Any action to be taken by the stockholders of the Corporation at
any annual or special meeting of the stockholders, or any action which may be
taken at any annual or special meeting of the stockholders, may be taken by the
stockholders without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by all of the stockholders of the Corporation entitled to vote thereon.
The procedures for calling, and persons entitled to call, a special meeting of
the stockholders shall be specified in the By-Laws.
SIXTH: Subject to the provisions of this Certificate of
Incorporation, the Corporation reserves the right to alter, amend or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by law, and all rights of stockholders or others hereunder
are subject to such reservation. Notwithstanding any other provisions of this
Certificate of Incorporation or the By-Laws of the Corporation (and
notwithstanding that a lesser percentage or separate class or series vote may be
specified by law or by this Certificate of Incorporation or by the By-Laws of
the Corporation, or otherwise), the affirmative vote of the holders of at least
75% of the votes entitled to be cast by the holders of all outstanding shares of
capital stock entitled to vote on all matters submitted to stockholders of the
Corporation generally, voting together as a single class, shall be required to
alter, amend or repeal, or adopt any provisions inconsistent with, Sections 5,
6, 7, 8, 9 and 10 of Article Fifth or this Article Sixth.
SEVENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
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 the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of the General Corporation Law of the State of
Delaware or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of Section 279 of
the General Corporation Law of the State of Delaware, order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the 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
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creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any 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 creditors or class of creditors, and/or on all the
stockholders or class of stockholders of the Corporation, as the case may be,
and also on the Corporation.
IN WITNESS WHEREOF, GALAGEN INC. has caused this Restated Certificate
of Incorporation to be signed by Robert A. Hoerr, its authorized officer, this
9th day of August, 1996.
GALAGEN INC.
By: /S/ ROBERT A. HOERR
---------------------------------
Robert A. Hoerr, President and
Chief Executive Officer
ATTEST:
By: /S/ GREGG A. WALDON
--------------------------------
Gregg A. Waldon, Secretary
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