Exhibit 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INNOTECH, INC.
Pursuant To Sections 242 And 245 Of
Delaware General Corporation Law
Innotech, Inc., a Delaware corporation (the "Corporation"), does
hereby certify as follows:
(a) the name of the corporation is Innotech, Inc;
(b) the Certificate of Incorporation of the Corporation was originally
filed with the Secretary of State, Dover, Delaware, on the 5th day of November
1992;
(c) this Second Amended and Restated Certificate of Incorporation has
been duly adopted in accordance with the provisions of Sections 242 and 245 of
the General Corporation Law of the State of Delaware (the "GCL"), the Board of
Directors and the stockholders of the Corporation having duly adopted this
Second Amended and Restated Certificate of Incorporation;
(d) the Certificate of Incorporation of the Corporation is hereby
amended and restated to read in its entirety as follows:
FIRST: The name of the Corporation is Innotech, Inc. (the
-----
"Corporation").
SECOND: The address of the Corporation's registered office in the
------
State of Delaware is Corporation Trust Center, 1209 Orange Street in the
City of Wilmington, County of New Castle, Delaware 19801. The name of its
registered agent at such address is The Corporation Trust Company.
2
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 Delaware (the "GCL").
FOURTH: The total number of shares of capital stock that the
------
Corporation shall have authority to issue is 75,000,000, shares of which
70,000,000 shares of the par value of $.001 per share shall be designated
Common Stock ("Common Stock"), and 5,000,000 shares of the par value of
$.001 per share shall be designated Preferred Stock ("Preferred Stock").
A. Preferred Stock. The Board of Directors is authorized, subject to
---------------
limitations prescribed by law and the terms of this Certificate, to provide
for the issuance of shares of Preferred Stock in one or more series, to
establish the number of shares to be included in each such series, and to
fix the designations, powers, preferences and rights of the shares of each
such series and any qualifications, limitations or restrictions thereof.
B. Common Stock.
------------
(a) Dividends. Subject to the preferential rights, if any, of
---------
the Preferred Stock, the holders of shares of Common Stock shall be
entitled to receive, when and if declared by the Board of Directors,
out of the assets of the Corporation which are by law available
therefor, dividends payable either in cash, in property, or in shares
of Common Stock.
(b) Voting Rights. At every annual or special meeting of
-------------
stockholders of the Corporation, every holder of Common Stock shall be
entitled to one vote, in person or by proxy, for each share of Common
Stock outstanding in his name on the books of the Corporation.
(c) Liquidation. In the event of any liquidation, after payment
-----------
or provision for payment of the debts and other liabilities of the
Corporation and of the preferential amounts, if any, to which the
holders of Preferred Stock shall be entitled, the holders of all
outstanding shares of Common Stock shall be entitled to share ratably
in the remaining net assets of the Corporation.
FIFTH: The Board of Directors is expressly authorized to adopt,
-----
amend, or repeal the By-Laws of
3
the Corporation. By-Laws shall not be made, repealed, altered, amended or
rescinded by the stockholders of the Corporation except by the vote of the
holders of not less than 66 2/3 percent of the outstanding shares of stock
of the Corporation entitled to vote upon the election of Directors.
SIXTH: Elections of directors need not be by written ballot unless
-----
the By-Laws of the Corporation shall otherwise provide.
SEVENTH: A director of the Corporation shall not be personally
-------
liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director; provided, however, that the
-------- -------
foregoing shall not eliminate or limit the liability of a director (1) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 174
of the GCL, or (4) for any transaction from which the director derived an
improper personal benefit. If the General Corporation Law of Delaware is
hereafter amended to permit further elimination or limitation of the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted
by the GCL as so amended. Any repeal or modification of this Article
SEVENTH by the stockholders of the Corporation or otherwise shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
EIGHTH: Whenever a compromise or arrangement is proposed between this
------
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application
in a summary way of this Corporation or of any creditor or stockholder
thereof or on the application of any receiver or receivers appointed for
this Corporation under the provisions of Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolutions or of any
receiver or receivers appointed for this Corporation under the provisions
of Section 279 of Title 8 of the Delaware Code order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number
representing three-
4
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may
be, agree to any compromise or arrangement and to any reorganization of
this Corporation as a consequence of such compromise or arrangement, the
said compromise or arrangement and the said reorganization shall, if
sanctioned by the court to which said application has been made, be binding
on all the creditors or class of creditors, and/or on all the stockholders
or class of stockholders, of this Corporation, as the case may be, and also
on this Corporation.
NINTH: No action shall be taken by the stockholders of this
-----
Corporation except at an annual or special meeting of Stockholders.
TENTH: Special meetings of the stockholders of this Corporation may
-----
be called only by the Chairman of the Board or the Board of Directors of
the Corporation pursuant to a resolution adopted by a majority of the
members of the Board of Directors, and special meetings may not be called
by any other person or persons.
ELEVENTH: The Board of Directors shall be divided, with respect to
--------
the time for which they severally hold office into three classes, as nearly
equal in number as possible, with the term in office of the first class to
expire at the first annual meeting of stockholders after the filing of this
Second Amended and Restated Certificate of Incorporation (the "Effective
Date"), the term in office of the second class to expire at the second
annual meeting of stockholders after the Effective Date and the term in
office of the third class to expire at the third annual meeting of
stockholders after the Effective Date. At each annual meeting of
stockholders, commencing with the first annual meeting after the Effective
Date, (i) directors elected to succeed those directors' whose terms then
expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders, with each director to hold
office until his or her successor shall have been duly elected and
qualified and (ii) if authorized by a resolution of the Board of Directors,
directors may be elected to fill any vacancy on the Board of Directors,
regardless of how such vacancy shall have been created.
TWELFTH: 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 all rights
5
conferred upon the stockholders herein are granted subject to this
reservation.
Notwithstanding the foregoing, the provisions set forth in Articles
FIFTH, NINTH, TENTH, ELEVENTH and this Article TWELFTH may not be repealed
or amended in any respect unless such repeal or amendment is approved by
the affirmative vote of the holders of not less than 66 2/3 percent of the
outstanding shares of the stock of the Corporation entitled to vote upon
the election of Directors.
IN WITNESS WHEREOF, Innotech, Inc. has caused this Certificate to be
signed and attested to by its duly authorized officers as of the 20th day of
March, 1996.
INNOTECH, INC.
By: /s/ Steven A. Bennington
-----------------------------------
Steven A. Bennington
Vice President
ATTEST:
By: /s/ Ronald D. Blum
-------------------------
Ronald D. Blum
Secretary