Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
DEPUY, INC.
THE UNDERSIGNED, in order to form a corporation under and pursuant to the
provisions of the General Corporation Law of the State of Delaware, as set forth
in Title 8 of the Delaware Code (the "DGCL"), does hereby certify as follows:
FIRST: The name of the Corporation is DePuy, Inc. (hereinafter the
"Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent 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 a corporation may be organized under the DGCL.
FOURTH: A. The total number of shares of stock which the Corporation
shall have authority to issue is 140,000,000 shares, of which 130,000,000
shares, par value $.01 per share, shall be of a class designated "Common Stock"
and of which 10,000,000 shares, par value $1.00 per share, shall be designated
"Preferred Stock." Notwithstanding anything to the contrary herein set forth,
the Corporation shall not have the authority to issue and/or reserve more than
an aggregate of 115,000,000 shares of Common Stock (including, without
limitation, any shares
of Common Stock reserved or issued in respect of options, warrants or other
rights or in respect of any securities convertible into or exchangeable for
Common Stock) without the consent in writing of any person who, directly and/or
through any direct or indirect over fifty percent-owned subsidiary, owns over
fifty percent of the Company's outstanding Common Stock.
B. a. The Board of Directors of the Corporation is authorized, subject
to limitations prescribed by law and the provisions of this Article FOURTH, to
provide for the issuance from time to time in one or more series of any number
of shares of Preferred Stock, and, by filing a certificate pursuant to the DGCL,
to establish the number of shares to be included in each such series, and to fix
the designation, relative rights, preferences, qualifications and limitations of
the shares of each such series. The authority of the Board of Directors with
respect to each series shall include, but not be limited to, determination of
the following:
(1) The number of shares constituting that series and the distinctive
designation of that series;
(2) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and whether they
shall be payable in preference to, or in another relation to, the dividends
payable on any other class or classes or series of stock;
(3) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
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(4) Whether that series shall have conversion or exchange privileges,
and, if so, the terms and conditions of such conversion or exchange,
including provision for adjustment of the conversion or exchange rate in such
events as the Board of Directors shall determine;
(5) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the manner of
selecting shares for redemption if less than all shares are to be redeemed,
the date or dates upon or after which they shall be redeemable, and the
amount per share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(6) Whether that series shall be entitled to the benefit of a sinking
fund to be applied to the purchase or redemption of shares of that series,
and, if so, the terms and amounts of such sinking fund;
(7) The right of the shares of that series to the benefit of conditions
and restrictions upon the creation of indebtedness of the Corporation or any
subsidiary, upon the issue of any additional stock (including additional
shares of such series of any other series) and upon the payment of dividends
or the making of other distributions on, and the purchase, redemption or
other acquisition by the Corporation or any subsidiary of any outstanding
stock of the Corporation;
(8) The right of the shares of that series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation and
whether such rights shall be in preference to, or in another relation to, the
comparable rights of any other class or classes or series of stock; and
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(9) Any other relative, participating, optional or other special rights,
qualifications, limitations or restrictions of that series.
b. Shares of any series of Preferred Stock which have been
purchased, redeemed (whether through the operation of a sinking fund or
otherwise) or which have otherwise been authorized by the Corporation shall have
the status of authorized and unissued shares of Preferred Stock of the same
series and may be reissued as a part of the series of which they were originally
a part or may be reclassified and reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the Board of Directors or as
part of any other series of Preferred Stock, all subject to the conditions and
the restrictions on issuance set forth in the resolution or resolutions adopted
by the Board of Directors providing for the issue of any series of Preferred
Stock.
c. Subject to the provisions of any applicable law, or except as
otherwise provided by the resolution or resolutions providing for the issue of
any series of Preferred Stock, the holders of outstanding shares of Common Stock
shall exclusively possess voting power for the election of directors and for all
other purposes, each holder of record of shares of Common Stock being entitled
to one vote for each share of Common Stock standing in his name on the books of
the Corporation.
d. Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, after payment shall
have been made to
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the holders of Preferred Stock of the full amount of dividends to which they
shall be entitled pursuant to the resolution or resolutions providing for the
issue of any series of Preferred Stock, the holders of Common Stock shall be
entitled, to the exclusion of the holders of Preferred Stock of any and all
series, to receive such dividends as from time to time may be declared by the
Board of Directors.
e. Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, in the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment shall have been made to the holders of any series of
Preferred Stock of the full amounts to which they shall be entitled pursuant to
the resolution or resolutions providing for the issue of any series of Preferred
Stock, the holders of Common Stock shall be entitled, to the exclusion of the
holders of Preferred Stock of any and all series, to share, ratably according to
the number of shares of Common Stock held by them, in all remaining assets of
the Corporation available for distribution to its stockholders.
FIFTH: The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors consisting of not less than three
directors nor more than fifteen directors, the exact number of directors to be
determined from time to time by resolution adopted by the Board of Directors.
The directors shall be divided into three classes, designated Class I, Class II
and Class III. Each class shall consist, as nearly as may be possible, of one-
third of the total number of directors constituting the entire Board of
Directors. Upon the initial
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election of directors, directors of Class I shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of Class II
shall be elected for a term expiring at the second succeeding annual meeting and
directors of Class III shall be elected to hold office for a term expiring at
the third succeeding annual meeting. At each annual meeting of stockholders,
the successors to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting. If the number of directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional directors of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. A director shall hold office until the annual
meeting for the year in which his term expires and until his successor shall be
elected and shall qualify, subject however, to prior death, resignation,
retirement, disqualification or removal from office. In no case will a decrease
in the number of directors shorten the term of any incumbent director. Any
vacancy on the Board of Directors, howsoever resulting, may be filled by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director. Any director elected to fill a vacancy shall hold
office for a term that shall coincide with the term of the class to which such
director shall have been elected.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at all annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
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terms of this Certificate of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to Article FOURTH applicable thereto,
and such directors so elected shall not be divided into classes pursuant to this
Article FIFTH unless expressly provided by such terms.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend,
change, add to or repeal the By-laws of the Corporation. In addition to the
powers and authority hereinbefore or by statute 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 statutes 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.
SEVENTH: A. Subject to the rights of the holders of any class or series
of stock having a preference over the Common Stock as to dividends or upon
liquidation, special meetings of stockholders of the Corporation may be called
only by the Board of Directors, the Chairman of the Board or the President.
B. No proposal for a stockholder vote or nomination for election of a
director shall be submitted by a stockholder to the Corporation's stockholders
unless the stockholder submitting
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such proposal or making such nomination shall have filed with the Secretary of
the Corporation, not less than thirty (30) days prior to the date upon which
action is to be taken with regard to such proposal or nomination, a written
notice setting forth such proposal or such nomination and such other information
as the Bylaws may require. The presiding officer at any stockholders meeting
may determine that any such proposal or nomination was not made in accordance
with the procedure described in this Article SEVENTH paragraph B. or is
otherwise not in accordance with law, and if he should so determine, he shall so
declare at the meeting and such proposal or nomination shall be disregarded.
EIGHTH: Subject to the rights, if any, of the holders of shares of
Preferred Stock then outstanding, any or all of the directors of the Corporation
may be removed from office at any time, with or without cause, by the
affirmative vote of the holders of more than fifty percent (50%) of the
outstanding stock of the corporation then entitled to vote generally for the
election of directors, considered for purposes of this Article EIGHTH as one
class.
NINTH: (a) The Corporation shall indemnify to the full extent authorized
or permitted by the laws of the State of Delaware any 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 a director or officer of
the Corporation, or by reason of the fact that such director or officer is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, domestic or foreign, against
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expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, and shall advance expenses incurred by any such
officer or director in defending any such action, suit or proceeding to the full
extent authorized or permitted by the laws of the State of Delaware upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized by Section 145 of the Delaware
General Corporation Law. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers may be
entitled by law. No amendment to or repeal of this paragraph (a) of Article
NINTH shall apply to or have any effect on any right to indemnification provided
hereunder with respect to any acts or omissions occurring prior to such
amendment or repeal.
(b) No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such a director as a director. Notwithstanding the foregoing sentence,
a director shall be liable to the extent provided by applicable law (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
DGCL, or (iv) for any transaction from which such director derived an improper
personal benefit. No amendment to or repeal of this paragraph (b) of Article
NINTH shall adversely affect any right or protection of any director of the
Corporation existing at the time of such amendment or repeal
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for or with respect to any acts or omissions of such director occurring prior to
such amendment or repeal.
TENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in its Certificate of Incorporation, or any
amendment thereof, in the manner now or hereafter prescribed by the laws of the
State of Delaware or the Certificate of Incorporation, and all rights conferred
upon the stockholders of the Corporation are granted subject to this
reservation.
ELEVENTH: 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 the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of the DGCL, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the 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
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arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
TWELFTH: The name and mailing address of the sole incorporator are:
Jeffrey E. Cohen, Esq.
Coudert Brothers
1114 Avenue of the Americas
New York, New York 10036
I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the DGCL, do make this Certificate,
hereby declaring and certifying that this is my act and deed and the facts
herein stated are true, and accordingly have hereunto set my hand this 25th day
of July, 1996,
/s/ Jeffrey E. Cohen
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Jeffrey E. Cohen
Incorporator
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