Exhibit 3.1
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CONTROL DELIVERY SYSTEMS, INC.
Control Delivery Systems, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), does hereby submit this
Amended and Restated Certificate of Incorporation, duly adopted pursuant to
Sections 242 and 245 of the General Corporation Law of the State of Delaware,
for the purpose of amending and restating the Certificate of Incorporation of
this corporation, which was originally filed with the Secretary of State of the
State of Delaware on December 22, 1992 under the name Control Delivery Systems,
Inc. The text of the Amended and Restated Certificate of Incorporation is
hereby restated and amended to read in its entirety as follows:
ARTICLE I
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The name of this corporation is Control Delivery Systems, Inc.
ARTICLE II
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The registered office of this corporation in the State of Delaware is
located at 2711 Centerville Road, Suite 400, in the City of Wilmington, County
of New Castle, Delaware 19808. The name of its registered agent at such address
is Corporation Service Company.
ARTICLE III
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The purpose of this 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 (the "DGCL").
ARTICLE IV
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The total number of shares of all classes of stock which this corporation
shall have authority to issue is 120,000,000 shares, consisting of (i)
100,000,000 shares of Common Stock, $.01 par value per share ("Common Stock"),
and (ii) 20,000,000 shares of Preferred Stock, $.01 par value per share
("Preferred Stock").
The following is a statement of the designations and the powers, privileges
and rights, and the qualifications, limitations or restrictions thereof in
respect of each class of capital stock of this corporation.
1. Common Stock.
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A. General. The voting, dividend and liquidation rights of the holders
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of the Common Stock are subject to and qualified by the rights of the
holders of the Preferred Stock of any series as may be designated by
the Board of Directors upon issuance of any such Preferred Stock. The
holders of the Common Stock shall have no preemptive rights to
subscribe for any shares of any class of stock of this corporation
whether now or hereafter authorized.
B. Voting. Each share of Common Stock shall be entitled to one vote.
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There shall be no cumulative voting.
C. Number. The number of authorized shares of Common Stock may be
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increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote, irrespective of the
provisions of Section 242(b)(2) of the DGCL.
D. Dividends. Dividends may be declared and paid on the Common Stock
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from funds lawfully available therefor as and when determined by the
Board of Directors and subject to any preferential dividend rights of
any then outstanding Preferred Stock.
E. Liquidation. Upon the dissolution or liquidation of the Corporation,
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whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of the Corporation available for
distribution to its stockholders, subject to any preferential rights
of any then outstanding Preferred Stock.
2. Preferred Stock.
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Preferred Stock may be issued from time to time in one or more series, each
of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided by law or this Certificate of
Incorporation. Different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purposes of voting by classes
unless expressly provided in the resolution or resolutions providing for the
issue of such series adopted by the Board of Directors as hereinafter provided.
Authority is hereby expressly granted to the Board of Directors from time
to time to issue the Preferred Stock in one or more series, and in connection
with the creation of any such series, by resolution or resolutions providing for
the issue of the shares thereof, to determine and fix such voting powers, full
or limited, or no voting powers, and such designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, including without limitation thereof, dividend rights,
conversion rights, redemption privileges and liquidation preferences, as shall
be stated and expressed in such resolutions, all to the full extent now or
hereafter permitted by the DGCL. Without limiting the
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generality of the foregoing, the resolutions providing for issuance of any
series of Preferred Stock may provide that such series shall be superior or rank
equally or be junior to the Preferred Stock of any other series to the extent
permitted by law and this Certificate of Incorporation. Except as otherwise
provided in this Certificate of Incorporation, no vote of the holders of the
Preferred Stock or Common Stock shall be a prerequisite to the designation or
issuance of any shares of any series of the Preferred Stock authorized by and
complying with the conditions of this Certificate of Incorporation, the right to
have such vote being expressly waived by all present and future holders of the
capital stock of the Corporation.
ARTICLE V
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This corporation shall have a perpetual existence.
ARTICLE VI
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In furtherance of and not in limitation of the powers conferred by statute,
the Board of Directors, acting by majority vote of the entire Board, is
expressly authorized to adopt, amend or repeal the By-Laws of this corporation,
subject to the right of the stockholders entitled to vote with respect thereto
to alter and repeal the By-Laws adopted or amended by the Board of Directors.
ARTICLE VII
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Except to the extent that the DGCL prohibits the elimination or limitation
of liability of directors for breaches of fiduciary duty, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for any breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability. No amendment to
or repeal of this provision shall apply to or have any effect on the liability
or alleged liability of any director of the Corporation or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
ARTICLE VIII
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1. Indemnification. The Corporation shall, to the maximum extent permitted
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under the DGCL and except as set forth below, indemnify and upon request advance
expenses to each person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other
enterprise, including any employee benefit plan (all such persons being referred
to hereafter as an "Indemnitee"), or by reason of any action alleged to have
been taken or omitted in such capacity, against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action, suit
or proceeding and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to
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believe his conduct was unlawful. Notwithstanding anything to the contrary in
this Article, the Corporation shall not indemnify an Indemnitee seeking
indemnification in connection with any action, suit, proceeding, claim or
counterclaim, or part thereof, initiated by the Indemnitee unless the initiation
thereof was approved by the Board of Directors of the Corporation.
2. Determination of Entitlement to Indemnification. Any indemnification under
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paragraph 1 of this Article (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification is proper in the circumstances because such person has either
met the applicable standard of conduct set forth in this Article and that the
amount requested has been actually and reasonably incurred. Such determination
shall be made:
A. by the board of directors of the Corporation by a majority vote of a
quorum consisting of directors who were not parties to such action,
suit or proceeding; or
B. if such a quorum is not obtainable, or even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion; or
C. by the holders of the Common Stock.
3. Advance of Expenses. Notwithstanding any other provisions, this Certificate
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of Incorporation, the By-Laws of the Corporation, or any agreement, vote of
stockholder or disinterested directors, or arrangement to the contrary, the
Corporation shall advance payment of expenses incurred by an Indemnitee in
advance of the final disposition of any matter only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced
in the event that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such undertaking may be accepted without reference to the financial ability of
the Indemnitee to make such repayment.
4. Subsequent Amendment. No amendment, termination or repeal of this Article
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or of the relevant provisions of the DGCL or any other applicable laws shall
affect or diminish in any way the rights of any Indemnitee to indemnification
under the provisions hereof with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the final adoption of such amendment, termination or repeal.
5. Other Rights. This corporation may, to the extent authorized from time to
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time by its Board of Directors, grant indemnification rights to other employees
or agents of the Corporation or other persons serving the Corporation and such
rights may be equivalent to, or greater or less than, those set forth in this
Article.
6. Merger or Consolidation. If this corporation is merged into or
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consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
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7. Savings Clause. If this Article or any portion hereof shall be invalidated
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on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Indemnitee as to any expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement in connection with any
action, suit, proceeding or investigation, whether civil, criminal or
administrative, including an action by or in the right of the Corporation, to
the fullest extent permitted by any applicable portion of this Article that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
8. Scope of Article. Indemnification and advancement of expenses, as
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authorized by the preceding provisions of this Article, shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office. The indemnification and advancement of expenses provided by or granted
pursuant to this Article shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be an authorized
representative and shall inure to the benefits of the heirs, executors and
administrators of such a person.
9. Insurance. The Corporation may purchase and maintain insurance on behalf of
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any person who is or was a director, officer, trustee, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against the person and incurred by the person in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would
have the power or the obligation to indemnify such person against such liability
under the provisions of this Article.
ARTICLE IX
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The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute and this Certificate of Incorporation, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
ARTICLE X
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This Article is inserted for the management of the business and for the
conduct of the affairs of the Corporation.
1. Number of Directors. The number of directors of the Corporation shall not
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be less than three. The exact number of directors within the limitations
specified in the preceding sentence shall be fixed from time to time by, or in
the manner provided in, the By-Laws of the Corporation.
2. Classes of Directors. The Board of Directors shall be and is divided into
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three classes: Class I, Class II and Class III. No one class shall have more
than one director more than any other class. If a fraction is contained in the
quotient arrived at by dividing the designated number of directors by three,
then, if such fraction is one-third, the extra director shall be a member of
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Class III, and if such fraction is two-thirds, one of the extra directors shall
be a member of Class III and one of the extra directors shall be a member of
Class II, unless otherwise provided from time to time by resolution adopted by
the Board of Directors.
3. Election of Directors. Elections of directors need not be by written
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ballot except as and to the extent provided in the By-Laws of the Corporation.
4. Terms of Office. Except as provided in Section 7 of this Article, each
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director shall serve for a term ending on the date of the third annual meeting
following the annual meeting at which such director was elected; provided,
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however, that each initial director in Class I shall serve for a term ending on
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the date of the annual meeting in 2002; each initial director in Class II shall
serve for a term ending on the date of the annual meeting in 2003; and each
initial director in Class III shall serve for a term ending on the date of the
annual meeting in 2004; and provided, further, that the term of each director
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shall be subject to the election and qualification of his successor and to his
earlier death, resignation or removal.
5. Allocation of Directors Among Classes in the Event of Increases or
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Decreases in the Number of Directors. In the event of any increase or
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decrease in the authorized number of directors, (i) each director then serving
as such shall nevertheless continue as a director of the class of which he is a
member and (ii) the newly created or eliminated directorships resulting from
such increase or decrease shall be apportioned by the Board of Directors among
the three classes of directors so as to ensure that no one class has more than
one director more than any other class. To the extent possible, consistent with
the foregoing rule, any newly created directorships shall be added to those
classes whose terms of office are to expire at the latest dates following such
allocation, and any newly eliminated directorships shall be subtracted from
those classes whose terms of offices are to expire at the earliest dates
following such allocation, unless otherwise provided from time to time by
resolution adopted by the Board of Directors.
6. Removal. The directors of the Corporation may be removed only for cause by
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the affirmative vote of the holders of at least seventy five percent (75%) of
the shares of the capital stock of the Corporation issued and outstanding and
entitled to vote generally in the election of directors cast at a meeting of the
stockholders called for that purpose.
7. Vacancies. Any vacancy in the Board of Directors, however occurring,
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including a vacancy resulting from an enlargement of the Board, shall be filled
only by vote of a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. A director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in office, and a
director chosen to fill a position resulting from an increase in the number of
directors shall hold office until the next election of the class for which such
director shall have been chosen, subject to the election and qualification of
his successor and to his earlier death, resignation or removal.
8. Stockholder Nominations and Introduction of Business, Etc. Advance notice
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of stockholder nominations for election of directors and other business to be
brought by stockholders before either an annual or special meeting of
stockholders shall be given in the manner provided by the By-Laws of this
corporation.
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9. Amendment to Article. Notwithstanding any other provisions of law, this
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Certificate of Incorporation or the By-Laws, each as amended, and
notwithstanding the fact that a lesser percentage may be specified by law, this
Certificate of Incorporation or the By-Laws of the Corporation, the affirmative
vote of least seventy five percent (75%) of the then outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors shall be required to amend or repeal, or to adopt any provisions
inconsistent with the purpose or intent of this Article X.
ARTICLE XI
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The books of this corporation may, subject to any stationary requirements,
be kept outside the State of Delaware as may be designated by the Board of
Directors or by the By-Laws of this corporation.
ARTICLE XII
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At any time during which a class of capital stock of this corporation is
registered under Section 12 of the Securities Exchange Act of 1934 or any
similar successor statute, stockholders of the Corporation may not take any
action by written consent in lieu of a meeting. Notwithstanding any other
provisions of law, this Certificate of Incorporation or the By-Laws, each as
amended, and notwithstanding the fact that a lesser percentage may be specified
by law, this Certificate of Incorporation or the By-Laws of the Corporation, the
affirmative vote of seventy five percent (75%) of the then outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors shall be required to amend or repeal or to adopt any provisions
inconsistent with the purpose or intent of this Article XII.
ARTICLE XIII
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Special meetings of stockholders may be called at any time only by the
Chairman of the Board of Directors, the Chief Executive Officer (or if there is
no Chief Executive Officer, the President) or the Board of Directors. Any
business transacted at any special meeting of stockholders shall be limited to
matters relating to the purpose or purposes stated in the notice of meeting.
Notwithstanding any other provisions of law, this Certificate of Incorporation
or the By-Laws, each as amended, and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or the By-
Laws of the Corporation, the affirmative vote of seventy five percent (75%) of
the then outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors shall be required to amend or repeal or
to adopt any provisions inconsistent with the purpose or intent of this Article
XIII.
In connection with any such evaluation, the Board of Directors is
authorized to conduct such investigations and to engage in such legal
proceedings as the Board of Directors may determine.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Incorporation to be signed by its
President this ____ day of ______________, 2001.
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CONTROL DELIVERY SYSTEMS, INC.
By:________________________________________
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