1
EXHIBIT 3.1
CERTIFICATE AMENDING AND RESTATING
THE CERTIFICATE OF INCORPORATION
OF
BIO-PLEXUS, INC.
It is hereby certified that:
FIRST: The name of the Corporation is BIO-PLEXUS, INC.
SECOND: The Certificate of Incorporation of BIO-PLEXUS, INC. is restated
and superseded pursuant to Section 33-362(d) of the Connecticut General Statutes
by the following resolution:
RESOLVED, That the Certificate of Incorporation of the Corporation be, and
hereby is, amended and restated to read as follows:
ARTICLE I
NAME
The name of the Corporation is BIO-PLEXUS, INC.
ARTICLE II
PURPOSES
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be formed under the Stock Corporation Act of the
State of Connecticut, as the same may be amended from time to time.
ARTICLE III
CAPITALIZATION
The aggregate number of shares which the Corporation shall have authority
to issue is One Million Twenty Thousand (1,020,000), which are divided into
three classes: (i) One Hundred Fifty Thousand (150,000) shares of Preferred
Stock, without par value, (the "Preferred Stock"); (ii) Eight Hundred Fifty
Thousand (850,000) shares of Common Stock, without par value (the "Common
Stock"); and (iii) Twenty Thousand (20,000) shares of Class A Common Stock,
without par value (the "Class A Common Stock").
2
ARTICLE IV
RELATIVE RIGHTS AND PREFERENCES
The relative rights, preferences and limitations of the shares of Common
Stock, Class A Common Stock, and Preferred Stock (to the extent fixed by this
Certificate of Incorporation) are as follows:
A. Common Stock.
Each issued and outstanding share of Common Stock shall entitle the
holder thereof to one vote on any matter submitted to the
shareholders of the Corporation for action.
B. Class A Common Stock
1. Liquidation -- Holders of shares of Class A Common Stock shall
not be entitled to participate in any distribution of the net
assets of the Corporation upon a liquidation, dissolution or
winding up of the affairs of the Corporation, whether such
liquidation, dissolution or winding up is voluntary or
involuntary.
2. Voting Rights -- Each issued and outstanding share of Class A
Common Stock shall entitle the holder thereof to one hundred
(100) votes on any matter submitted to the shareholders of the
Corporation for action. If at any time the Corporation shall
pay a stock dividend or distribution on its Common Stock or
Preferred Stock, or split, subdivide, or combine the
outstanding shares of its Common Stock or Preferred Stock, the
number of votes which a share of Class A Common Stock shall
entitle the holder thereof to exercise shall be
proportionately adjusted as of the date after the record date
for such dividend, distribution, split, subdivision or
combination so as to maintain the relative voting power of the
Class A Common Stock which existed prior to the occurrence of
such event.
3. Dividends -- Holders of shares of Class A Common Stock shall
not be entitled to receive dividends on such shares.
4. Redemption -- On January 1, 2003 and at any time thereafter,
the Corporation may call for redemption, and redeem, all of
the issued and outstanding shares of Class A Common Stock at a
redemption price of One Dollar ($1.00) per share.
- 2 -
3
Notice of redemption shall be sent by first class mail,
postage pre-paid, to each holder of record of the shares of
Class A Common Stock not less than ten (10) nor more than
twenty (20) days prior to the date of redemption. In the event
that such notice is given, the Corporation shall be obligated
to redeem such shares on the date specified in the notice and
for the redemption price specified herein. All shares of Class
A Common Stock must be redeemed at one time. Upon redemption
and payment as provided herein, the holders of shares of Class
A Common Stock shall have no further right or interest in such
shares.
If on or before the redemption date, the funds necessary for
such redemption have been set aside by the Corporation and
deposited with a bank or trust company, in trust for the pro
rata benefit of the holders of the shares of Class A Common
Stock, then, notwithstanding that any certificates for shares
that have been called for redemption have not been
surrendered, the shares represented thereby shall no longer be
deemed outstanding from and after the redemption date, and all
rights of holders in such shares shall forthwith, after the
redemption date, cease and terminate except for the right to
receive the redemption funds to which they are entitled, but
without interest. Any interest accrued on funds deposited and
unclaimed, shall be paid to the Corporation from time to time.
In case the holders of shares of Class A Common Stock which
have been called for redemption have not, within six years
after the redemption date, claimed the amounts so deposited
for such redemption, any such bank or trust company shall,
upon demand, pay over to the Corporation such unclaimed
amounts and thereupon such bank or trust company shall be
relieved of all responsibility in respect thereof to such
holder and such holder shall look only to the Corporation for
payment thereof.
C. Preferred Stock.
1. Liquidation -- In the event of any liquidation, dissolution,
or winding up of the affairs of the Corporation, whether
voluntary or involuntary, each issued and outstanding share of
Preferred Stock shall entitle the holder of record thereof to
payment at the rate of $20.00 per share (subject to adjustment
as provided herein), or at a rate otherwise established by the
Board of
- 3 -
4
Directors of the Corporation, before any payment or
distribution of the net assets of the Corporation shall
be made to or set apart for the holders of record of the
issued and outstanding shares of Common Stock in respect
of said shares of Common Stock. The preferential amount
set forth herein shall be appropriately adjusted for
stock splits and stock dividends, stock combinations,
recapitalizations, and other changes to the capital
structure of the Corporation. After setting apart or
paying in full the preferential amounts aforesaid to the
respective holders of record of the issued and
outstanding shares of Preferred Stock, the remaining
net assets, if any, shall be distributed exclusively to
the holders of record of the issued and outstanding
shares of Common Stock, each issued and outstanding
share of Common stock entitling the holder of record
thereof to receive an equal proportion of said remaining
net assets. If the net assets of the Corporation shall
be insufficient to pay in full the preferential amounts
to which the holders of record of all the outstanding
shares of Preferred Stock are respectively entitled as
aforesaid, the entire net assets of the Corporation
shall be distributed ratably to the holders of all the
outstanding shares of Preferred Stock in proportion to
the full amounts to which they are respectively
entitled, and the holders of shares of Common Stock
shall in no event be entitled to participate in the
distribution of said net assets in respect of their
shares of Common Stock. Without excluding any other
proceeding which does not in fact effect a liquidation,
dissolution, or winding up of the Corporation, a merger
or consolidation of the Corporation into or with any
other corporation, a merger of any other corporation
into the Corporation, or a sale, lease, mortgage,
pledge, exchange, transfer or other disposition by the
Corporation of all or substantially all of its assets
shall not be deemed, for the purposes of this paragraph,
to be a liquidation, dissolution, or winding up of the
Corporation.
2. Voting Rights - Each issued and outstanding share of
Preferred Stock shall entitle the holder thereof to one
vote on any matter submitted to the shareholders of the
Corporation for action.
- 4 -
5
3. Conversion.
(a) Optional Conversion. Subject to the terms and conditions herein
contained, any or all of the shares of Preferred Stock shall be convertible at
any time and from time to time, at the option of each holder of record thereof,
into fully paid and nonassessable shares of Common Stock upon surrender to the
Corporation or its designee of the certificate or certificates representing the
shares of Preferred Stock to be converted, together with at least ten (10) days
prior written notice of the election to convert; and, upon receipt by the
Corporation or its designee of such surrendered certificate or certificates,
such holder shall be entitled to receive a certificate or certificates
representing the share(s) of Common Stock into which such share(s) of
Preferred Stock are convertible, and such holder shall be deemed to be a
holder of record of said shares of Common Stock as of the expiration of ten
(10) days from the time of said receipt by the Corporation or its designee.
(b) Mandatory Conversion. All of the shares of Preferred Stock shall
be automatically converted, immediately and without further action of the
holder, into fully paid and non-assessable shares of Common Stock, upon the
Board of Directors of the Corporation voting to authorize any of the following
actions:
(i) a merger or consolidation of the Corporation into, or
with, another corporation;
(ii) the sale of all or substantially all of the assets of
the Corporation;
(iii) the sale of shares of Common Stock or Preferred Stock
pursuant to a registered public offering; and
(iv) the amendment of this Certificate of Incorporation to
effect a financing for the Corporation.
Promptly upon written notice by the Corporation to the holder of record
of shares of Preferred Stock notifying such holder of the automatic
conversion of such shares, the holder thereof shall surrender to the
Corporation or its designee, the
-5-
6
certificate or certificates representing such shares and upon receipt by
the Corporation or its designee of such surrendered certificate or
certificates, such holder shall be entitled to receive a certificate or
certificates representing share(s) of Common Stock into which such
shares of Preferred Stock have been converted.
(c) Adjustment. The number of shares of Common Stock into which a
share of Preferred Stock may be converted shall be adjusted upon the
Corporation (1) declaring a dividend payable in shares of Common Stock; (2)
sub-dividing the outstanding shares of Common Stock; (3) combining the
outstanding shares of Common Stock; or (4) issuing any securities by
recapitalization or reclassification of the shares of Common Stock. The
conversion rate in effect immediately before the happening of that one of the
foregoing events which shall have happened shall be proportionately increased
or decreased, as the case may require. Such adjustment shall be effective
immediately after the opening of business on the day next following the record
date for determination of holders of Common Stock entitled to receive such
dividend or the day upon which each subdivision, combination or
reclassification shall become effective.
(d) Conversion Rate, Cancellation, Reservation of Shares. The basis
for conversion of shares of Preferred Stock to Shares of Common Stock shall be
one (1) share of Common Stock for each share of Preferred Stock which is
converted, subject to adjustment as provided above. Any shares of Preferred
Stock which have been converted shall be cancelled. Except as such requirement
may otherwise be dispensed with by law, the Board of Directors of the
Corporation shall at all times reserve a sufficient number of authorized but
unissued, shares of Common Stock, which shall be issued only in satisfaction
of the conversion rights and privileges aforesaid.
ARTICLE V
PREEMPTIVE RIGHTS
The shareholders shall have no preemptive rights, as such rights are
described in Section 33-343 of the Connecticut Stock Corporation Act, in any
shares, warrant, right, convertible security, or other security however
described, issued by the Corporation.
- 6 -
7
ARTICLE VI
PERSONAL LIABILITY
The personal liability of a director to the Corporation or its
shareholders for monetary damages for breach of duty as a director shall be
limited to an amount that is equal to the compensation received by the
director for serving the Corporation during the year of the violation if such
breach did not: (a) involve a knowing and culpable violation of law by the
director; (b) enable the director or an associate, as defined in subdivision
(3) Section 33-374d of the Connecticut General Statutes, to receive an improper
personal economic gain; (c) show a lack of good faith and a conscious disregard
for the duty of the director to the Corporation under circumstances in which
the director was aware that his conduct or omission created an unjustifiable
risk of serious injury to the Corporation; (d) constitute a sustained and
unexcused pattern of inattention that amounted to an abdication of the
director's duty to the Corporation; or (e) create liability under Section
33-321 of the Connecticut General Statutes.
ARTICLE VII
STATED CAPITAL
The minimum amount of stated capital with which the Corporation shall
commence business is One Thousand Dollars ($1,000.00).
THIRD: This Restated Certificate of Incorporation shall give effect to
the new amendments set forth herein and purports to restate all those
provisions now in effect not being amended by such new amendments.
FOURTH: This Restated Certificate of Incorporation was adopted by the
greatest vote which would have been required to amend any provision of the
Certificate of Incorporation as in effect before such vote and supersedes such
Certificate of Incorporation.
FIFTH: The manner of adopting the resolution was by the board of
directors and shareholders pursuant to Section 33-360 of the Connecticut
General Statutes. No shares are required to be voted as a class; the
shareholder's vote was as follows:
Vote Required For Adoption: 207,970
Vote Favoring Adoption: 305,513
We hereby declare, under the penalties of false statement, that the
statements made in the foregoing certificate are true.
-7-
8
Dated at Tolland, Connecticut, this 12th day of October, 1992.
/s/ Carl R. Sahi /s/ Susan B. Pellerin
- - --------------------------------- ------------------------------------
Carl R. Sahi, Susan B. Pellerin,
President Assistant Secretary
-8-
9
CERTIFICATE AMENDING THE
CERTIFICATE OF INCORPORATION
OF
BIO-PLEXUS, INC.
It is hereby certified that:
FIRST: The name of the Corporation is BIO-PLEXUS, INC.
SECOND: The Certificate of Incorporation of the Corporation is amended
pursuant to Connecticut General Statute Section 33-360 by the following
resolution:
RESOLVED, that the Certificate of Incorporation of Bio-Plexus, Inc. be,
and hereby is, amended as follows:
1. Article III Capitalization is amended to read as follows:
ARTICLE III
CAPITALIZATION
The aggregate number of shares which the Corporation shall have
authority to issue is Ten Million Twenty Thousand (10,020,000),
which are divided into two classes: (i) Ten Million (10,000,000)
shares of Common Stock, without par value (the "Common Stock");
and (ii) Twenty Thousand (20,000) shares of Class A Common
Stock, without par value (the "Class A Common Stock").
2. Article IV Relative Rights and Preferences, the introductory
language is amended to read as follows:
The relative rights, preferences and limitations of the
shares of Common Stock and Class A Common Stock are as follows:
3. Article IV, Section B.2, Class A Common Stock, Voting Rights is
amended to read as follows:
2. Voting Rights -- Each issued and outstanding share of
Class A Common Stock shall entitle the holder thereof to
one hundred (100) votes on any matter submitted to the
shareholders of the Corporation for action. If at any
time the Corporation shall pay a stock dividend or
distribution on its Common Stock or split, subdivide, or
combine the outstanding shares of its Common Stock, the
number of votes which a share of Class A Common Stock
shall entitle the holder thereof to exercise shall be
proportionately adjusted as of the date after the record
date for such dividend, distribution, split, subdivision
or
10
combination so as to maintain the relative voting power
of the Class A Common Stock which existed prior to the
occurrence of such event.
4. Article IV, Section B.4, Class A Common Stock, Redemption, the
first full paragraph is amended to read as follows:
4. Redemption -- The Corporation shall call for redemption
and redeem on January 1, 1998 all shares of Class A
Common Stock which remain outstanding on that date at a
redemption price of One Dollar ($1.00) per share. Notice
of redemption shall be sent by first class mail, postage
pre-paid, to each holder of record of the shares of
Class A Common Stock not less than ten (10) nor more
than twenty (20) days prior to the date of redemption.
Such notice shall direct such holder to surrender the
certificate representing the shares of Class A Common
Stock in exchange for payment of the redemption price.
Upon redemption and payment as provided herein, the
holders of shares of Class A Common Stock shall have no
further right or interest in such shares.
5. Article IV, Section C, Preferred Stock is deleted and
conforming changes made to the balance of the Certificate of
Incorporation reflecting the elimination of the class of
Preferred Stock.
THIRD: The foregoing resolutions were adopted pursuant to Connecticut
General Statute Section 33-360 by the Board of Directors and shareholders of
the Corporation.
FOURTH: The aggregate number of shares issued and outstanding is
492,178. The issued and outstanding shares are divided into: 472,178 shares of
Class Common Stock and 20,000 shares of Class A Common Stock. Holders of Class
Common Stock and Class A Common Stock have the right to vote separately as a
class. Each share is entitled to one vote in each class vote. Holders of Class A
Common Stock have 100 votes for each share of Class A Common Stock in each vote
of the shareholders voting as a single class. The shareholders vote on the
amendment was as follows:
* Common Shareholders
Vote required for adoption: 236,090
Vote favoring adoption: 308,649
* Class A Common Shareholders
Vote required for adoption: 10,001
Vote favoring adoption: 20,000
* All Shareholders
Vote required for adoption: 1,236,090
Vote favoring adoption: 2,308,649
11
FIFTH: The Corporation has as at least one hundred recordholders as
defined in subsection a of Section 33-311a of the Connecticut General Statutes.
We hereby declare under penalties of false statement that the
statements made in the foregoing Certificate are true.
Signed in Tolland, Connecticut, this 22nd day of October, 1993.
/s/ Carl R. Sahi /s/ Susan B. Pellerin
- - ------------------------------ ------------------------------
Carl R. Sahi Susan B. Pellerin
President Assistant Secretary
F I L E D
DATE OF CONNECTICUT
OCT 27, 1993
/s/ [illegible]
- - ---------------------------
SECRETARY OF THE STATE
A.M.
[illegible] Time 2 P.M.
- - ----------- ---
- 3 -
12
CERTIFICATE AMENDING OR RESTATING CERTIFICATE OF INCORPORATION
61-38 Rev. 9/90
Stock Corporation
STATE OF CONNECTICUT
SECRETARY OF THE STATE
30 TRINITY STREET
HARTFORD, CT 06106
- - -------------------------------------------------------------------------------
1. Name of Corporation (Please enter name within lines)
Bio-Plexus, Inc.
- - -------------------------------------------------------------------------------
2. The Certificate of Incorporation is: (Check one)
[X] A. Amended only, pursuant to Conn. Gen. Stat. Section 33-360.
[ ] B. Amended only, to cancel authorized shares (state number of shares
to be cancelled, the class, the series, if any, and the par value,
P.A. 90-107.)
[ ] C. Restated only, pursuant to Conn. Gen. Stat. Section 33-362(a).
[ ] D. Amended and restated, pursuant to Conn. Gen. Stat. Section
33-362(c).
[ ] E. Restated and superseded pursuant to Conn. Gen. Stat. Section
33-362(d).
Set forth here the resolution of amendment and/or restatement. Use an
8 1/2 X 11 attached sheet if more space is needed. Conn. Gen. Stat.
Section 1-9.
RESOLVED, that Article III, Capitalization of the Certificate of
Incorporation of the Company be, and hereby is, amended to increase from Ten
Million (10,000,000) to Twelve Million (12,000,000) the number of shares of
Common Stock, without par value, which the Company shall have authority to
issue.
(If 2A or 2B is checked, go to 5 & 6 to complete this certificate. If 2C or
2D is checked, complete 3A or 3B. If 2E is checked, complete 4.)
3. (Check one) N/A
[ ] A. This certificate purports merely to restate but not to change the
provisions of the original Certificate of Incorporation as supplemented
and amended to date, and there is no discrepancy between the provisions
of the original Certificate of Incorporation as supplemented and
amended to date, and the provisions of this Restated Certificate of
Incorporation. (If 3A is checked, go to 5 & 6 to complete this
certificate.).
[ ] B. This Restated Certificate of Incorporation shall give effect to
the amendment(s) and purports to restate all those provisions now in
effect not being amended by such new amendment(s). (If 3B is checked,
check 4, if true, and go to 5 & 6 to complete this Certificate.)
4. (Check, if true) N/A
[ ] This restated Certificate of Incorporation was adopted by the greatest
vote which would have been required to amend any provision of the
Certificate of Incorporation as in effect before such vote and
supersedes such Certificate of Incorporation.
13
The manner of adopting the resolution was as follows: (Check one A, or B, or C)
[X] A. By the board of directors and shareholders, pursuant to Conn.
Gen. Stat. Section 33-360. Vote of Shareholders: (Check (i) or
(ii), and check (iii) if applicable.)
(i) [ ] No shares are required to be voted as a class; the
shareholder's vote was as follows:
Vote Required for Adoption ______________________________
Vote Favoring Adoption __________________________________
(ii) [X] There are shares of more than one class entitled to
vote as a class. The designation of each class required for
adoption of the resolution and the vote of each class in favor
of adoption were as follows:
(Use an 8 1/2 x 11 attached sheet if more space is needed.
Conn. Gen. Stat. Sections 1-9.)
See Exhibit 1.
(iii) [X] Check here if the corporation has 100 or more
recordholders, as defined in Conn. Gen. Stat. Section
33-311a(a).
[ ] B. By the board of directors acting along, pursuant to Conn. Gen.
Stat. Sections 33-360)b)(2) or 33-362(a).
The number of affirmative votes required to adopt such
resolution is: _________________________
The number of directors' votes in favor of the resolution
was: _____________________________
We hereby declare, under the penalties of false statement, that the statements
made in the foregoing certificate are true:
(Print or Type) Signature (Print or Type) Signature
- - -------------------------------------------------------------------------------------------------------
Name of Pres. Name of Sec.
Carl R. Sahi /s/ Carl R. Sahi Nancy S. Lautenbach /s/ Nancy S. Lautenbach
- - -------------------------------------------------------------------------------------------------------
[ ] C. The corporation does not have any shareholders. The resolution
was adopted by vote of at least two-thirds of the incorporators
before the organization meeting of the corporation, and approved
in writing by all subscribers for shares of the corporation. If
there are no subscribers, state NONE below.
We (at least two-thirds of the incorporators) hereby declare, under the
penalties of false statement, that the statements made in the foregoing
certificate are true.
- - -------------------------------------------------------------------------------
Signed Incorporator Signed Incorporator Signed Incorporator
- - -------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------
Signed Subscriber Signed Subscriber Signed Subscriber
- - -------------------------------------------------------------------------------
(Use an 8 1/2 x 11 attached sheet if more space is needed.
Conn. Gen. Stat. Sections 1-9)
6. Dated at Vernon, CT this 30th day of July, 1996.
Rec, CC, GS: (Type or Print)
-----------------------------------------------
Pepe & Hazard Attn: A.C. Brown
Goodwin Square
Hartford, CT 06102-4302
Please provide filer's name and complete
address for mailing receipt.
14
Exhibit 1
A vote of holders of not less than a majority of the voting power of the issued
and outstanding shares of capital stock of the Corporation was required to
adopt the foregoing resolution. Each holder of shares of Common Stock was
entitled to one vote for each share and each holder of shares of Class A Common
Stock was entitled to five hundred votes for each share. 8,446,318 votes
represent a majority of the voting power of the issued and outstanding shares
of capital stock. 15,921,489 votes were cast to adopt the resolution.
The vote of holders of not less than a majority of the voting power of
the issued and outstanding shares of Common Stock was required to adopt the
foregoing resolution. Each holder of shares of Common Stock was entitled to one
vote for each share in such class vote. 3,446,318 votes represent a majority of
the voting power of the issued and outstanding shares of Common Stock.
5,921,489 votes were cast to adopt the resolution.
The vote of holders of not less than a majority of the voting power of
the issued and outstanding shares of Class A Common Stock was required to adopt
the foregoing resolution. Each holder of shares of Class A Common Stock was
entitled to one vote for each share in such class vote. 10,001 votes represent
a majority of the voting power of the issued and outstanding shares of Class A
Common Stock. 20,000 votes were cast to adopt the resolution.
Page 1 of 1
15
CERTIFICATE OF CORRECTION OF
CERTIFICATE OF AMENDMENT
OF
BIO-PLEXUS, INC.
1. This Certificate of Correction of Bio-Plexus, Inc. (the "Corporation")
corrects the Certificate of Amendment of the Corporation filed with and
recorded by the Secretary of the State of Connecticut on the 2nd day of
August, 1996, (the "Certificate").
2. On July 11, 1996, the Shareholders of the Corporation adopted two
resolutions amending the Corporation's Certificate of Incorporation.
One resolution increased the number of authorized shares of Common
Stock under Article II and the second resolution added a new Article
VIII.
3. The Certificate contained an incorrect statement by including the first
resolution and related vote but inadvertently failing to include the
second resolution and related vote. To correct the certificate, the
missing resolution and vote information for the omitted resolution are
set forth below:
RESOLVED, that the Certificate of Incorporation of the
Corporation be and hereby is amended by adding the following
new Article VIII:
ARTICLE VIII
COMMITTEES
The Board of Directors shall have the authority to create one
or more committees of the Board of Directors and to delegate
to such committees all or such portion of the power and
authority of the Board of Directors as the Board shall
determine, such determination being conclusively evidenced by
the passage of a resolution or resolutions of the Board
establishing one or more committees and delegating such power
and authority.
A vote of holders of not less than a majority of the voting power of
the issued and outstanding shares of capital stock of the Corporation was
required to adopt the foregoing resolution. Each holder of shares of Common
Stock was entitled to one vote for each share and each holder of shares of Class
A Common Stock was entitled to five hundred votes for each share. 8,446,318
votes represent a majority of the voting power of the issued and outstanding
shares of capital stock. 15,991,063 votes were cast to adopt the foregoing
resolution.
Dated this 27th day of June, 1997.
/s/ Ronald A. Haverl
-------------------------------------
Ronald A. Haverl
Chairman of the Board of Directors
16
CERTIFICATE OF AMENDMENT
OF
BIO-PLEXUS, INC.
1. The name of the corporation is Bio-Plexus, Inc. (the "Corporation")
2. The Certificate of Incorporation of the Corporation is amended as
follows:
FIRST: Article III, Capitalization, is amended and restated to read as
follows:
ARTICLE III
CAPITALIZATION
The aggregate number of shares which the Corporation shall
have authority to issue is Eighteen Million Twenty Thousand
(18,020,000), which are divided into three classes: (i) Three Million
(3,000,000) shares of Preferred Stock, without par value (the
"Preferred Stock"); (ii) Fifteen Million (15,000,000) shares of Common
Stock, without par (the "Common Stock"); and (iii) Twenty Thousand
(20,000) shares of Class A Common Stock, without par value (the "Class
A Common Stock").
SECOND: Article IV, Relative Rights and Preferences, the introductory
language is amended and restated to read as follows:
The relative rights, preferences and limitations of the shares
of Common Stock, Class A Common Stock, and Preferred Stock (to the
extent fixed by this Certificate of Incorporation) are as follows:
THIRD: Article IV, Section B.2, Class A Common Stock, Voting Rights, is
amended and restated to read as follows:
Each issued and outstanding share of Class A Common Stock
shall entitle the holder thereof to five hundred (500) votes on any
matter submitted to the shareholders of the Corporation for action. If
at any time the Corporation shall pay a stock dividend or distribution
on its Common Stock or Preferred Stock, or split, subdivide, or combine
the outstanding shares of its Common Stock or Preferred Stock, the
number of votes which a share of Class A Common Stock shall entitle the
holder thereof to exercise shall be proportionately adjusted as of the
date after the record date for such dividend, distribution, split,
subdivision or combination so as to maintain the relative voting power
of the Class A Common Stock which existed prior to the occurrence of
such event.
17
FOURTH: A new Section C, Preferred Stock, is added to Article IV. Such
Section shall read as follows:
The Board of Directors may establish one or more series of
Preferred Stock and shall determine the preferences, limitations and
relative rights of the class of Preferred Stock and any series of the
class.
3. The resolution was approved by the shareholders at the Corporation's
Annual Meeting on June 25, 1997. As of the record date (May 19, 1997)
the Corporation had two classes of capital stock: Common Stock and
Class A Common Stock. On the record date there were 7,809,427 shares of
Common Stock and 20,000 shares of Class A Common Stock issued and
outstanding and entitled to vote at the meeting. In the vote on the
amendment by the shareholders as a single voting group each share of
Common Stock was entitled to one vote and each share of Class A Common
Stock was entitled to five hundred (500) votes. Each class was also
entitled to vote separately as a class on the amendment. The number of
votes indisputably represented at the meeting were: (i) 7,288,342
Common Stock votes, voting separately as a class, and voting together
with the Class A Common; and (ii) 20,000 Class A Common votes, voting
separately as a class, and 10,000,000 Class A Common votes, voting
together with the Common Stock. Included in the 7,288,342 Common Stock
votes represented at the meeting were 2,828,387 broker non-votes. The
vote on the amendment was as follows:
Class A and Common voting together
For Against Abstain
--- ------- -------
14,032,178 387,692 40,085
Class A and Common voting as separate voting groups
Class A
For Against Abstain
--- ------- -------
20,000 --- ---
Common
For Against Abstain
--- ------- -------
4,032,178 387,692 40,085
-2-
18
The number of votes cast for the amendment by each class was
sufficient for approval by such class and the votes cast for
the amendment by all shareholders voting together as a single
group was sufficient for approval by all shareholders.
4. Dated this 27th day of June, 1997.
/s/ Ronald A. Haverl
------------------------------------
Ronald A. Haverl, Chairman of the
Board of Directors
-3-
19
CERTIFICATE OF AMENDMENT
OF
BIO-PLEXUS, INC.
FIRST The name of the corporation is Bio-Plexus, Inc. (the
"Corporation").
SECOND The Board of Directors adopted the following resolution on
July 24, 1997 amending the Certificate of Incorporation, in
part, to increase the number of shares designated as Series A
Preferred Stock and thereby decrease the number of shares
designated as Preferred Stock.
RESOLVED, that the Certificate of Incorporation of Bio-Plexus, Inc.
(the "Corporation") be and hereby is amended as follows to amend and restate the
preferences, limitations and relative rights of the Series A Preferred Stock:
1. Designation and Amount
There is hereby established a series of Preferred Stock which
is designated as the Series A Preferred Stock (the "Series A Preferred Stock").
The authorized number of shares of Series A Preferred Stock shall be 1,250,000
shares. The issuance price of the Series A Preferred Stock (the "Issuance
Price") shall be four dollars ($4.00) per share.
2. Dividends
a. General
The holders of the Series A Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors, out of
funds legally available therefor, cumulative cash dividends, at the rate of 5%
of the Issuance Price per annum per share from the date of issuance. Such
cumulative dividends shall be payable quarterly, in arrears, on the thirtieth
day of each October, January, April and July commencing October 30, 1997.
b. Dividends cumulative
Dividends on the Series A Preferred Stock shall
accrue and be cumulative from the date of issuance, whether or not there are
funds of the Corporation legally available for the payment of such dividends in
any dividend period.
c. Restrictions on Dividend Payments
So long as any shares of Series A Preferred Stock
shall be outstanding, no dividend shall be declared or paid or set apart for
payment on the Common Stock until all accrued and unpaid dividends on the Series
A Preferred Stock have been paid in full, or declared and
sufficient funds set aside for payment thereof.
20
3. Liquidation Preference
In the event of any liquidation, dissolution, or winding up of
the affairs of the Corporation, whether voluntary or involuntary, each issued
and outstanding share of Series A Preferred Stock shall entitle the holder of
record thereof to payment at a rate per share equal to the Issuance Price
(subject to adjustment as provided herein) plus accrued and unpaid dividends
thereon, before any payment or distribution of the net assets of the Corporation
shall be made to or set apart for the holders of record of the issued and
outstanding shares of Common Stock in respect of said shares of Common Stock.
The preferential amounts set forth herein shall be appropriately adjusted for
stock splits and stock dividends, stock combinations, recapitalization, and
other changes to the capital structure of the Corporation. After setting apart
or paying in full the preferential amounts aforesaid to the respective holders
of record of the issued and outstanding shares of Series A Preferred Stock, the
remaining net assets, if any, shall be distributed exclusively to the holders of
record of the issued and outstanding shares of Common Stock, each issued and
outstanding share of Common Stock entitling the holder of record thereof to
receive an equal proportion of said remaining net assets. If the net assets of
the Corporation shall be insufficient to pay in full the preferential amounts to
which the holders of record of all the outstanding shares of Series A Preferred
Stock are respectively entitled as aforesaid, the entire net assets of the
Corporation shall be distributed ratably to the holders of all the outstanding
shares of Series A Preferred Stock in proportion to the full amounts to which
they are respectively entitled, and the holders of shares of Common Stock shall
in no event be entitled to participate in the distribution of said net assets in
respect of their shares of Common Stock.
4. Voting Rights
Each issued and outstanding share of Series A Preferred Stock
shall entitle the holder thereof to one vote on any matter submitted to the
shareholders of the Corporation for action.
5. Conversion
a. General
Shares of Series A Preferred Stock may be converted,
at the option of the holder thereof, into fully paid and nonassessable shares of
Common Stock of the Corporation. The shares of Series A Preferred Stock will be
converted into shares of Common Stock at a price (the "Conversion Price") equal
to the greater of (i) two dollars and fifty cents ($2.50) per share (the
"Minimum Conversion Price"); and (ii) 85% of the Market Price of the shares of
Common Stock on the date notice of conversion is filed by the holder with the
Corporation. As used herein, the term "Market Price" shall mean the average
closing bid price of the Common Stock (as reported by Bloomberg, L.P.) over the
ten (10) consecutive trading days ending on the trading day prior to the date
that notice of conversion is filed by the holder with the Corporation. If the
closing bid price of the Common Stock is not reported by Bloomberg L.P., the
Market Price shall be determined in good faith by the Corporation's Board of
Directors. The number of shares of Common Stock to be issued for each share of
Series A Preferred Stock being converted shall be
-2-
21
an amount determined by dividing: (i) the Issuance Price plus the value of
accrued and unpaid dividends on such share of Series A Preferred Stock by (ii)
the Conversion Price.
b. Adjustments
i. The Issuance Price, Minimum Conversion Price
and the kind and amount of securities and
property for which the shares of Series A
Preferred Stock may be converted, shall be
subject to adjustment from time to time as
set forth herein. If, at any time after the
issuance of the Series A Preferred Stock,
the Corporation shall (A) declare or pay a
dividend or make a distribution to all
holders of the Common Stock in shares of
Common Stock, (B) subdivide its outstanding
shares of Common Stock into a greater number
of shares or (C) combine its outstanding
shares of Common Stock into a smaller number
of shares, then the Issuance Price and
Minimum Conversion Price, in effect
immediately prior to such action shall be
appropriately adjusted to reflect such
dividend, subdivision or stock combination.
Such adjustment shall be effective
immediately after the opening of business on
the day next following the record date for
determination of holders of Common Stock
entered to receive such dividend, or the day
upon which such subdivision, combination or
reclassification shall become effective. If
the adjustment occurs during the period that
the Conversion Price is being calculated,
appropriate adjustment shall also be made to
that value.
ii. No adjustment shall be made hereunder unless
such adjustment would result in an increase
or decrease of at least one percent (1%) of
the Issuance Price or Minimum Conversion
Price. Any change that would require an
adjustment but for this provision shall be
carried forward and taken into account in
determining whether a subsequent adjustment
should be made.
iii. If any event, shall occur during the period
that the Conversion Price is being
calculated which would cause an adjustment
to the Conversion Price and such event is
not otherwise addressed herein, the Board of
Directors shall in good faith adjust the
Conversion Price to reflect the occurrence
of such event.
iv. Upon any adjustment under this Section 5(b),
then and in each such case the Corporation
shall give written notice thereof, by first
class mail, postage prepaid, addressed to
each holder of Series A Preferred Stock, at
the address of such holder as shown on the
books of the Corporation, which notice shall
state the adjustments being made and shall
state in reasonable detail the method of
calculation and the facts upon which the
calculation is based.
-3-
22
c. Reorganization, Reclassification, Consolidation, Merger or
Sale
If any capital reorganization or reclassification of
the capital stock of the Corporation, or any consolidation or merger of the
Corporation with another corporation, or the sale of all or substantially all of
its assets to another corporation shall be effected in such a way (including,
without limitation, by way of consolidation or merger) that holders of Common
Stock shall be entitled to receive stock, securities or assets with respect to
or in exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provisions
shall be made whereby each holder of a share or shares of Series A Preferred
Stock shall thereafter have the right to receive, upon the basis and upon the
terms and conditions specified herein and in lieu of the shares of Common Stock
of the Corporation immediately theretofore receivable upon the conversion of
such shares, such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for a number of outstanding shares of
such Common Stock equal to the number of shares of Common Stock into which such
shares of Series A Preferred Stock, were convertible immediately before such
reorganization, reclassification, consolidation, merger or sale, and in any such
case appropriate provision shall be made with respect to the rights and
interests of such holder to the end that the provisions hereof shall thereafter
be applicable, as nearly as practicable, in relation to any shares of stock,
securities or assets thereafter deliverable upon the exercise of such conversion
rights. The Corporation will not effect any consolidation or merger unless prior
to the consummation thereof the successor corporation (if other than the
Corporation) resulting from such consolidation or merger shall assume by written
instrument, executed and mailed or delivered to each holder of shares of Series
A Preferred Stock at the last address of such holder appearing on the books of
the Corporation, the obligation to deliver to such holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to receive.
d. Notices
If, at any time while shares of Series A Preferred
Stock are outstanding, the Corporation shall (i) declare a dividend (or any
other distribution) on its Common Stock, other than in cash, or (ii) reclassify
its Common Stock (other than through a subdivision or combination thereof or a
change in par value) or become a party to any consolidation or merger or sale or
transfer of all or substantially all of the assets of the Corporation, for which
approval of the holders of its capital stock is required, then the Corporation
shall cause to be mailed to registered holders of Series A Preferred Stock, at
their last addresses as they shall appear on the books of the Corporation, at
least thirty (30) days prior to the applicable record date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend or distribution, or, if a record is not to be
taken, the date as of which holders of Common Stock of record who shall be
entitled to such dividend or distribution are to be determined, or (y) the date
on which any such reclassification, consolidation, merger, sale or transfer is
expected to become effective, and the date as of which it is expected that
holders of record of Common Stock shall be entitled to exchange their Common
Stock for securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, sale or transfer. Failure to give or
receive the notice required by this Paragraph (d) or any defect therein shall
not affect the legality or validity of any
-4-
23
such dividend, distribution, reclassification, consolidation, merger, sale,
transfer or other action.
e. Exercise of Conversion Rights
The holder of any shares of Series A Preferred Stock
may exercise such holder's option to convert such shares into shares of Common
Stock only by surrendering for such purpose to the Corporation the certificates
representing the shares to be converted, accompanied or preceded by written
notice (which may be transmitted by telecopier) that such holder elects to
convert such shares in accordance with the provisions of this Section 5. Said
notice shall also state the name or names (with addresses) in which the
certificate or certificates for shares of Common Stock which shall be issuable
on such conversion shall be issued. Each certificate or certificates surrendered
for conversion shall, unless the shares issuable on conversion are to be issued
in the same name as that in which such certificate or certificates are
registered, be accompanied by instruments of transfer, in form satisfactory to
the Corporation, duly executed by the holder or his duly authorized attorney.
Each conversion shall be deemed to have been effected on the date on which such
notice shall have been received by the Corporation, provided that the
certificates to which such notice relates are received by the Corporation no
later than the tenth business day following the date of receipt of such notice,
and the person or persons in whose name or names any certificate or certificates
for shares of Common Stock shall be issuable upon such conversion shall be
deemed to have become on said date the holder or holders of record of the shares
represented thereby notwithstanding that the transfer books of the Corporation
may then be closed or that certificates representing such shares of Common Stock
shall not then be actually delivered to such person. Within ten business days
after receipt of the certificates representing the shares to be converted and
the notice of conversion, the Corporation shall issue and deliver to the person
or person entitled to receive the same a certificate or certificates
representing the number of shares of Common Stock issuable upon such conversion.
f. Fractional Shares
No fractional shares of Common Stock shall be issued
in connection with the conversion of shares of Series A Preferred Stock into
Common Stock. Instead of any factional share of Common Stock which would
otherwise be issuable on conversion, the Corporation shall pay a cash adjustment
with respect to such fractional share computed on the basis of the then current
Market Price.
g. Stock to be Reserved
The Corporation will at all times reserve and keep
available out of its authorized Common Stock or its treasury shares, solely for
the purpose of issuance upon the conversion of the shares of Series A Preferred
Stock , such number of shares of Common Stock as shall then be issuable upon the
conversion of all outstanding shares of Series A Preferred Stock. The
Corporation covenants that all shares of Common Stock which shall be so issued
shall be duly and validly issued and fully paid and nonassessable and free from
all taxes, liens and charges with respect to the issue thereof.
-5-
24
h. No Reissuance of Shares
Shares of Series A Preferred Stock which are
converted into shares of Common Stock as provided herein shall not be reissued.
i. Issue Tax
The issuance of certificates for shares of Common
Stock upon conversion of shares of Series A Preferred Stock shall be made
without charge to the holders thereof for any issuance tax in respect thereof,
provided that the Corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the holder of the shares of Series A
Preferred Stock, which are being converted.
j. Closing of Books
The Corporation will at no time close its transfer
books against the transfer of any shares of Series A Preferred Stock or of any
shares of Common Stock issued or issuable upon the conversion of any shares of
Series A Preferred Stock in any manner which interferes with the timely
conversion of the Series A Preferred Stock.
THIRD The amendment was adopted by the Board of Directors without
shareholder action. No shareholder vote was required for
adoption.
FOURTH Dated this 25th day of July, 1997.
/s/ Ronald A. Haverl
-----------------------------------
Ronald A. Haverl, Chairman of the
Board of Directors
-6-
25
Exhibit 3.1
CERTIFICATE OF AMENDMENT
STOCK CORPORATION
OFFICE OF THE SECRETARY OF THE STATE
30 Trinity Street/P.O. Box 150470/Hartford, CT 06115-0470/new/1-97
- - -------------------------------------------------------------------------------
Space for Office Use Only
===============================================================================
1. NAME OF CORPORATION:
BIO-PLEXUS, INC.
- - -------------------------------------------------------------------------------
2. THE CERTIFICATE OF INCORPORATION IS (check A.,B., or C.):
X A. AMENDED.
- - ----
B. AMENDED AND RESTATED.
- - ----
C. RESTATED.
- - ----
- - --------------------------------------------------------------------------------
3. TEXT OF EACH AMENDMENT/RESTATEMENT:
See attached.
(Please reference an 8 1/2 X 11 attachment if additional space is needed)
- - -------------------------------------------------------------------------------
26
- - -------------------------------------------------------------------------------
Space For Office Use Only
- - -------------------------------------------------------------------------------
VOTE INFORMATION (check A., B. or C.)
X A. The resolution was approved by shareholders as follows:
(set forth all voting information required by Conn. Gen. Stat. section 33-800
as amended in the space provided below)
The number of shares outstanding and eligible to vote was
12,154,851. The number of votes represented at the meeting were
9,825,585. The total number of votes cast were:
For 4,176,272
Against 823,910
The number of votes cast for the amendment was sufficient for
approval.
- - --------------------------------------------------------------------------------
B. The amendment was adopted by the board of directors without shareholder
- - --- action. No shareholder vote was required for adoption.
C. The amendment was adopted by the incorporators without shareholder
- - --- action. No shareholder vote was required for adoption.
- - --------------------------------------------------------------------------------
5. EXECUTION
- - --------------------------------------------------------------------------------
Dated this 7th day of August, 1998
- - --------------------------------------------------------------------------------
Richard L. Higgins President /s/ Richard L. Higgins
- - --------------------------------------------------------------------------------
Print or type name of signatory Capacity of signatory Signature
27
The Certificate of Incorporation of Bio-Plexus, Inc. is amended as follows:
1. Article III, Capitalization, is amended to increase the number of
authorized shares of Common Stock of the Corporation by three million
(3,000,000) shares from fifteen million (15,000,000) shares to eighteen
million (18,000,000) shares and to eliminate the Class A Common Stock.
Article III shall read as follows:
"ARTICLE III
CAPITALIZATION
The aggregate number of shares which the Corporation shall have authority
to issue is twenty-one million (21,000,000) shares, which are divided into
two classes: (i) three million (3,000,000) shares of Preferred Stock,
without par value (the "Preferred Stock"); and (ii) eighteen million
(18,000,000) shares of Common Stock, without par value (the "Common
Stock")."
2. Article IV, Relative Rights and Preferences is amended to eliminate the
reference to Class A Common Stock in the introduction. The introductory
language shall read as follows:
"The relative rights, preferences and limitations of the shares of Common
Stock and Preferred Stock (to the extent fixed by this Certificate of
Incorporation) are as follows:"
3. Article IV, Section B, Class A Common Stock is deleted in its entirety to
effect the elimination of the Class A Common Stock.
4. Article IV, Section C, Preferred Stock shall become Article IV, Section B,
Preferred Stock.
5. The Series A Preferred Stock and its associated relative rights,
preferences and limitations are eliminated.
6. In all other respects the Certificate Amending and Restating The
Certificate of Incorporation of Bio-Plexus, Inc., filed October 22, 1992,
as amended by Certificate Amending The Certificate of Incorporation of
Bio-Plexus, Inc., filed October 27, 1993, as amended by Certificate
Amending Certificate of Incorporation of Bio-Plexus, Inc., filed August 2,
1996, as amended by Certificate of Correction of Certificate of Amendment
of Bio-Plexus, Inc., filed June 30, 1997, as amended by Certificate of
Amendment of Bio-Plexus, Inc., filed June 30, 1997, as amended by
Certificate of Amendment of Bio-Plexus, Inc., filed June 30, 1997, as
amended by Certificate of Amendment of Bio-Plexus, Inc., filed July 30,
1997 is hereby ratified and confirmed.