Exhibit 3.09
ARTICLES OF INCORPORATION
OF
INNOVEX MERGER CORP.
The undersigned does hereby submit these Articles of Incorporation for
the purpose of forming a business corporation under and by virtue of the laws of
the State of North Carolina:
1. The name of the corporation is Innovex Merger Corp.
2. The corporation is authorized to issue two classes of capital
stock to be designated "Common Stock" and "Preferred Stock." The total number of
shares that the corporation is authorized to issue is 200,000 shares, of which
100,000 shares shall be Common Stock, par value $1.00 per share, and 100,000
shares shall be Preferred Stock, par value $25.00 per share.
2.1 Common Stock. The holders of Common Stock shall be
entitled to one vote per share and, subject to the rights and preferences of the
holders of the Preferred Stock and any other class or classes of stock senior to
or on a parity with the Common Stock, shall be entitled to dividends as, when
and if declared and paid to the holders of Common Stock, and upon liquidation,
dissolution or winding up of the corporation, to share ratably in the assets
available for distribution to the holders of Common Stock.
2.2 Preferred Stock. The authorized shares of Preferred
Stock shall have the rights, preferences, privileges and restrictions as set
forth below in this Article 2.
2.2.1 Dividends. The holders of the Preferred
Stock shall be entitled to receive dividends at the rate of $1.00 per share,
payable annually on December 31 of each year that preferred Stock is outstanding
out of funds legally available therefor. Such dividends shall be payable when,
as and if declared by the Board of Directors of the corporation and shall accrue
on each share of Preferred Stock from day to day from the date of issuance
whether or not earned or declared so that if such dividends with respect to any
previous dividend period have not been paid on, or declared and set apart for,
all shares of Preferred Stock then outstanding, the deficiency shall be fully
paid on, or declared and set apart for, such shares before any dividend shall be
paid on, or declared and set apart for, the Common Stock. No dividends (other
than those payable solely in Common Stock of the corporation) shall be paid on
any shares of Common Stock during any fiscal year of the corporation until
dividends on the Preferred Stock at the rate of $1.00 per share shall have bean
paid, or declared and set apart, during that fiscal year and any prior fiscal
year in which dividends have accumulated but remained unpaid. No rights shall
accrue to holders of the Preferred Stock by reason of the fact that dividends on
shares of Preferred
Stock are not declared in any prior year, nor shall the amount with respect to
any undeclared or unpaid dividend bear or accrue any interest.
2.2.2 Liquidation Preference.
(a) Rights on Liquidation. In the event
of any liquidation, dissolution or winding up of the corporation, in each case
whether voluntary or involuntary, the holders of shares of Preferred Stock then
outstanding shall be entitled to be paid, out of the assets of the corporation
available for distribution to its stockholders, whether from capital, surplus or
earnings, prior to and in preference of any distribution of any of the assets or
surplus funds of the corporation to the holders of Common Stock, an amount equal
to $25.00 per share of Preferred Stock (adjusted to reflect any and all stock
dividends, stock splits, combinations or recapitalizations), plus any and all
unpaid dividends thereon to the date fixed for distribution. After setting apart
or paying in full the preferential amounts due the holders of shares of
Preferred Stock, the remaining assets of the corporation available for
distribution to stockholders, if any, shall be distributed ratably among the
holders of shares of Common Stock. The merger or consolidation of the
corporation into or with another corporation in which the stockholders of the
corporation shall own less than 50% of the voting securities of the surviving
corporation, or the sale or other disposition of all or substantially all of the
assets of the corporation shall be deemed to be a liquidation, dissolution or
winding up of the corporation as those terms are used in this Section 2.2.2.
(b) Notice of Liquidation. In the event
of any liquidation, dissolution or winding up of the corporation, in each case
whether voluntary or involuntary, the corporation shall, within ten days after
the date the Board of Directors approves such action, or at least 20 days prior
to any stockholders' meeting called to approve such action, or within 20 days
after the commencement of any involuntary proceeding, whichever is earlier, give
each holder of one or more shares of Preferred Stock initial written notice of
the proposed action. Such initial written notice shall describe the material
terms and conditions of such proposed action, including the date on which the
proposed action is scheduled to occur or commence (the "Liquidation Date") and a
description of the stock, cash and property to be received by the holders of
shares of Preferred Stock upon consummation of the proposed action and the date
of delivery thereof. If any material change in the facts set forth in the
initial written notice shall occur, the corporation shall promptly give written
notice to each holder of one or more shares of Preferred Stock of such material
change and of any change in the Liquidation Date. The corporation shall not
consummate any liquidation, dissolution or winding up of the corporation, in
-2-
each case whether voluntary or involuntary, before the expiration of 30 days
after the mailing of the initial written notice or ten days after the mailing of
any subsequent written notice, whichever is later; provided that any such 30-day
or 10-day period may be shortened upon the written consent of the holders of all
of the outstanding shares of Preferred Stock.
(c) Valuation of Non-Cash Assets. In
the event any liquidation, dissolution or winding up of the corporation, in each
case whether voluntary or involuntary, involves the distribution of assets other
than cash, the amount of such distribution shall be deemed to be the fair market
value thereof at the time of such distribution, as determined in good faith by
the Board of Directors.
2.3 No Voting Rights. Except as may otherwise be required
by applicable law, the Preferred Stock shall have no voting rights.
3. The address of the initial registered office of the
corporation in the State of North Carolina is 4709 Creekstone Drive, Riverbirch
Building, Suite 300, Durham, Durham County, North Carolina 27703, and the name
of its initial registered agent at such address is Gregory D. Porter.
4. The name and address of the incorporator is William W. Nelson,
2500 First Union Capitol Center, Raleigh, Wake County, North Carolina 27601.
5. The number of directors constituting the initial board of
directors shall be one (1), and the name and address of the person who is to
serve as director until the first meeting of shareholders, or until his
successor is elected and qualified, is:
NAME ADDRESS
---- -------
Gregory D. Porter . 4709 Creekstone Drive
Riverbirch Building, Suite 300
Durham, North Carolina
27703
6. A director of the corporation shall not be personally liable
to the corporation or otherwise for monetary damages for breach of any duty as a
director, except for liability with respect to (i) acts or omissions that the
director at the time of such breach knew or believed were clearly in conflict
with the best interests of the corporation; fill any liability under N.C. Gen.
Stat. Section 55-8-33 for unlawful distributions; or (iii) any transaction from
which the director derived an improper personal benefit. If the North Carolina
Business Corporation Act is amended to authorize corporate action for further
eliminating or limiting 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 North Carolina Business Corporation Act, as so amended.
-3-
Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a director of the corporation
existing at the time of such repeal or modification.
7. The provisions of Article 9 and Article 9A of the North
Carolina Business Corporation Act, entitled "The North Carolina Shareholder
Protection Act" and "The North Carolina Control Share Acquisition Act,"
respectively, shall not be applicable to the corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of
November, 1996.
/s/ William W. Nelson
-----------------------------------
William W. Nelson, Incorporator
-4-