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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INVERNESS MEDICAL INNOVATIONS, INC.
Inverness Medical Innovations, Inc., a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), hereby
certifies as follows:
1. The name of the Corporation is Inverness Medical Innovations,
Inc. The date of the filing of its original Certificate of Incorporation with
the Secretary of State of the State of Delaware was May 11, 2001 (the "Original
Certificate"). The name under which the Corporation filed the Original
Certificate was New IMT Corporation.
2. This Amended and Restated Certificate of Incorporation (the
"Certificate") amends, restates and integrates the provisions of the Original
Certificate, as amended, and was duly adopted in accordance with the provisions
of Sections 242 and 245 of the Delaware General Corporation Law (the "DGCL").
3. The text of the Original Certificate, as amended, is hereby
amended and restated in its entirety to provide as herein set forth in full.
ARTICLE I
The name of the Corporation is Inverness Medical Innovations, Inc.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is c/o The Corporation Trust Company, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
The total number of shares of capital stock which the Corporation shall
have authority to issue is Fifty-Five Million (55,000,000) shares, of which
(i) Fifty Million (50,000,000) shares shall be a class designated as common
stock, par value $0.001 per share (the "Common Stock"),
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and (ii) Five Million (5,000,000) shares shall be a class designated as
preferred stock, par value $0.001 per share (the "Preferred Stock").
The number of authorized shares of the class of Preferred Stock may
from time to time be increased or decreased (but not below the number of shares
outstanding) by the affirmative vote of the holders of a majority of the
outstanding shares of Common Stock entitled to vote, without a vote of the
holders of the Preferred Stock (except as otherwise provided in any certificate
of designations of any series of Preferred Stock).
The powers, preferences and rights of, and the qualifications,
limitations and restrictions upon, each class or series of stock shall be
determined in accordance with, or as set forth below in, this Article IV.
A. COMMON STOCK
Subject to all the rights, powers and preferences of the Preferred
Stock and except as provided by law or in this Article IV (or in any certificate
of designations of any series of Preferred Stock):
(a) the holders of the Common Stock shall have the
exclusive right to vote for the election of directors of the Corporation (the
"Directors") and on all other matters requiring stockholder action, each
outstanding share entitling the holder thereof to one vote on each matter
properly submitted to the stockholders of the Corporation for their vote;
provided, however, that, except as otherwise required by law, holders of Common
Stock, as such, shall not be entitled to vote on any amendment to this
Certificate (or on any amendment to a certificate of designations of any series
of Preferred Stock) that alters or changes the powers, preferences, rights or
other terms of one or more outstanding series of Preferred Stock if the holders
of such affected series are entitled to vote, either separately or together with
the holders of one or more other such series, on such amendment pursuant to this
Certificate (or pursuant to a certificate of designations of any series of
Preferred Stock) or pursuant to the DGCL;
(b) dividends may be declared and paid or set apart for
payment upon the Common Stock out of any assets or funds of the Corporation
legally available for the payment of dividends, but only when and as declared by
the Board or any authorized committee thereof; and
(c) upon the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the net assets of the Corporation
shall, subject to the rights of the holders of any Preferred Stock then
outstanding, be distributed pro rata to the holders of the Common Stock.
B. PREFERRED STOCK
The Board of Directors or any authorized committee thereof is expressly
authorized, to the fullest extent permitted by law, to provide for the issuance
of the shares of Preferred Stock in one or more series of such stock, and by
filing a certificate pursuant to applicable law of the State of Delaware, to
establish or change from time to time the number of shares of each such series,
and to fix the designations, powers, including voting powers, full or limited,
or no voting powers, preferences and the relative, participating, optional or
other special rights of the shares of each series and any qualifications,
limitations and restrictions thereof.
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ARTICLE V
STOCKHOLDER ACTION
1. Action without Meeting. Except as otherwise provided herein,
any action required or permitted to be taken by the stockholders of the
Corporation at any annual or special meeting of stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders and
may not be taken or effected by a written consent of stockholders in lieu
thereof.
2. Special Meetings. Except as otherwise required by statute and
subject to the rights, if any, of the holders of any series of Preferred Stock,
special meetings of the stockholders of the Corporation may be called only by
the Board of Directors acting pursuant to a resolution approved by the
affirmative vote of a majority of the Directors then in office. Only those
matters set forth in the notice of the special meeting may be considered or
acted upon at a special meeting of stockholders of the Corporation.
ARTICLE VI
DIRECTORS
1. General. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors except as otherwise
provided herein or required by law.
2. Election of Directors. Election of Directors need not be by
written ballot unless the By-laws of the Corporation (the "By-laws") shall so
provide.
3. Number of Directors; Term of Office. The number of Directors
of the Corporation shall be fixed solely and exclusively by resolution duly
adopted from time to time by the Board of Directors. The Directors, other than
those who may be elected by the holders of any series of Preferred Stock, shall
be classified, with respect to the term for which they severally hold office,
into three classes, as nearly equal in number as reasonably possible. The
initial Class I Directors of the Corporation shall be Ernest A. Carabillo, Jr.
and John F. Levy; the initial Class II Directors of the Corporation shall be
Carol R. Goldberg, Alfred M. Zeien and Ron Zwanziger; and the initial Class
III Directors of the Corporation shall be Robert P. Khederian, David Scott and
Peter Townsend. The initial Class I Directors shall serve for a term expiring
at the annual meeting of stockholders to be held in 2002, the initial Class II
Directors shall serve for a term expiring at the annual meeting of stockholders
to be held in 2003, and the initial Class III Directors shall serve for a term
expiring at the annual meeting of stockholders to be held in 2004. At each
annual meeting of stockholders, Directors elected to succeed those Directors
whose terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election. Notwithstanding
the foregoing, the Directors elected to each class shall hold office until their
successors are duly elected and qualified or until their earlier resignation or
removal.
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Notwithstanding the foregoing, whenever, pursuant to the provisions of
Article IV of this Certificate, the holders of any one or more series of
Preferred Stock shall have the right, voting separately as a series or together
with holders of other such series, to elect Directors at an 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 terms of this
Certificate and any certificate of designations applicable thereto.
4. Vacancies. Subject to the rights, if any, of the holders of
any series of Preferred Stock to elect Directors and to fill vacancies in the
Board of Directors relating thereto, any and all vacancies in the Board of
Directors, however occurring, including, without limitation, by reason of an
increase in size of the Board of Directors, or the death, resignation,
disqualification or removal of a Director, shall be filled solely and
exclusively by the affirmative vote of a majority of the remaining Directors
then in office, even if less than a quorum of the Board of Directors, and not by
the stockholders. Any Director appointed in accordance with the preceding
sentence shall hold office for the remainder of the full term of the class of
Directors in which the new directorship was created or the vacancy occurred and
until such Director's successor shall have been duly elected and qualified or
until his or her earlier resignation or removal. Subject to the rights, if any,
of the holders of any series of Preferred Stock to elect Directors, when the
number of Directors is increased or decreased, the Board of Directors shall,
subject to Article VI.3 hereof, determine the class or classes to which the
increased or decreased number of Directors shall be apportioned; provided,
however, that no decrease in the number of Directors shall shorten the term of
any incumbent Director. In the event of a vacancy in the Board of Directors, the
remaining Directors, except as otherwise provided by law, shall exercise the
powers of the full Board of Directors until the vacancy is filled.
5. Removal. Subject to the rights, if any, of any series of
Preferred Stock to elect Directors and to remove any Director whom the holders
of any such stock have the right to elect, any Director (including persons
elected by Directors to fill vacancies in the Board of Directors) may be removed
from office (i) only with cause and (ii) only by the affirmative vote of the
holders of 75% or more of the shares then entitled to vote at an election of
Directors. At least forty-five (45) days prior to any meeting of stockholders at
which it is proposed that any Director be removed from office, written notice of
such proposed removal and the alleged grounds therefor shall be sent to the
Director whose removal will be considered at the meeting.
ARTICLE VII
LIMITATION OF LIABILITY
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, except for liability (a) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the DGCL or (d) for any transaction
from which the Director derived an improper personal benefit. If the DGCL is
amended after the effective date of this Certificate to authorize corporate
action further eliminating or limiting 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 DGCL, as so amended.
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Any repeal or modification of this Article VII by either of (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL, shall not
adversely affect any right or protection existing at the time of such repeal or
modification with respect to any acts or omissions occurring before such repeal
or modification of a person serving as a Director at the time of such repeal or
modification.
ARTICLE VIII
AMENDMENT OF BY-LAWS
1. Amendment by Directors. Except as otherwise provided by law,
the By-laws of the Corporation may be amended or repealed by the Board of
Directors by the affirmative vote of a majority of the Directors then in office.
2. Amendment by Stockholders. The By-laws of the Corporation may
be amended or repealed at any annual meeting of stockholders, or special meeting
of stockholders called for such purpose as provided in the By-laws, by the
affirmative vote of at least 75% of the outstanding shares entitled to vote on
such amendment or repeal, voting together as a single class; provided, however,
that if the Board of Directors recommends that stockholders approve such
amendment or repeal at such meeting of stockholders, such amendment or repeal
shall only require the affirmative vote of the majority of the outstanding
shares entitled to vote on such amendment or repeal, voting together as a single
class.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend or repeal this Certificate
in the manner now or hereafter prescribed by statute and this Certificate, and
all rights conferred upon stockholders herein are granted subject to this
reservation. Whenever any vote of the holders of voting stock is required to
amend or repeal any provision of this Certificate, and in addition to any other
vote of holders of voting stock that is required by this Certificate or by law,
such amendment or repeal shall require the affirmative vote of the majority of
the outstanding shares entitled to vote on such amendment or repeal, and the
affirmative vote of the majority of the outstanding shares of each class or
series entitled to vote thereon as a class or series, as the case may be, at a
duly constituted meeting of stockholders called expressly for such purpose;
provided, however, that the affirmative vote of not less than 75% of the
outstanding shares entitled to vote on such amendment or repeal, and the
affirmative vote of not less than 75% of the outstanding shares of each class or
series entitled to vote thereon as a class or series, as the case may be, shall
be required to amend or repeal any provision of Article V, Article VI, Article
VII, Article VIII or Article IX of this Certificate.
[End of Text]
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THIS AMENDED AND RESTATED CERTIFICATE OF INCORPORATION is executed as
of this ____ day of __________, ____.
INVERNESS MEDICAL INNOVATIONS, INC.
By:
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Ron Zwanziger
President
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