EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
SOMANTA PHARMACEUTICALS, INC.
The undersigned, a natural person (the "Sole Incorporator") for the
purpose of organizing a corporation to conduct the business and promote the
purposes hereinafter stated, under the provisions and subject to the
requirements of the laws of the State of Delaware hereby certifies that:
ARTICLE I
The name of this corporation is Somanta Pharmaceuticals, Inc. (the
"Corporation").
ARTICLE II
The address of the registered office of this Corporation in the State
of Delaware is 2711 Centerville Road, Suite 400, City of Wilmington 19808,
County of New Castle, and the name of the registered agent of the Corporation in
the State of Delaware is Corporation Service 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 Delaware General
Corporation Law ("DGCL").
ARTICLE IV
(A) Classes of Stock. The Corporation is authorized to issue two
classes of stock to be designated, respectively, "Common Stock" and "Preferred
Stock." The total number of shares which the Corporation is authorized to issue
is One Hundred Twenty Million (120,000,000) shares, each with a par value of
$0.001 per share. One Hundred Million (100,000,000) shares shall be Common Stock
and Twenty Million (20,000,000) shares shall be Preferred Stock.
(B) Rights, Preferences and Restrictions of Preferred Stock. The
Preferred Stock authorized by this Certificate of Incorporation may be issued in
one or more series. The Board of Directors of the Corporation (the "Board of
Directors") is authorized to determine, alter or eliminate any or all of the
rights, preferences, privileges and restrictions granted to or imposed upon any
series of Preferred Stock, and to fix, alter, or reduce the number of shares
comprising any such series (but not below the number of such shares then
outstanding) and the designation thereof, or any of them, and to provide for
rights and terms of redemption or conversion of the shares of any such series in
accordance with the DGCL.
(C) Rights, Preferences and Restrictions of Common Stock. The
rights, preferences, privileges, and restrictions granted to and imposed on the
Common Stock are as set forth below in this Article IV(C).
1. Dividend Rights. Subject to the prior rights of
holders of all classes of stock at the time outstanding having prior rights as
to dividends, the holders of the Common Stock shall be entitled to receive, when
and as declared by the Board of Directors, out of any assets of the Corporation
legally available therefor, such dividends as may be declared from time to time
by the Board of Directors.
2. Redemption. The Common Stock is not redeemable.
3. Voting Rights. Each holder of Common Stock shall have
the right to one vote per share of Common Stock.
ARTICLE V
(A) Amendment of Bylaws. The Board of Directors is expressly
empowered to adopt, amend or repeal the Bylaws. Any adoption, amendment or
repeal of the Bylaws by the Board of Directors shall require the approval of a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is present to the Board of
Directors). The stockholders shall also have power to adopt, amend or repeal the
Bylaws. Any adoption, amendment or repeal of bylaws by the stockholders shall
require, in addition to any vote of the holders of any class or series of stock
of the Corporation required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least sixty-six and two-thirds percent (66
2/3%) of the voting power of all of the then outstanding shares of the capital
stock of the Corporation entitled to vote generally in election of directors,
voting together as a single class.
(B) Special Meetings. Subject to applicable law, Special Meetings
of stockholders of the Corporation may be called only by the Board or Directors
pursuant to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board of
Directors for adoption), and shall be held at such place, on such date, and at
such time as the Board of Directors shall fix.
ARTICLE VI
The number of directors constituting the entire Board of Directors
shall be as set forth in or determined pursuant to the Bylaws of the
Corporation. Subject to the rights of the holders of any series of Preferred
Stock then outstanding and applicable law, newly created directorships resulting
from any increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation or other cause (other than
removal from office by a vote of the stockholders) may be filled only by a
majority vote of the directors then in office, though less than a quorum, and
directors so chosen shall hold office for a term expiring at the next annual
meeting of stockholders at which the term of office of the class to which they
have been elected expires, and until their respective successors are elected,
except in the case of the death, resignation, or removal of any director. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
ARTICLE VII
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 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 if the Delaware Code 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 Title 8 of the
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Delaware Code, order a meeting of 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 a manner as such 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 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, such
compromise or arrangement and such reorganization shall, if sanctioned by the
Court to which such 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.
ARTICLE VIII
(A) Indemnification. To the fullest extent permitted by law, the
Corporation shall indemnify 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 or she is or was a director, officer, employee or agent of
the Corporation, or 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, against expenses (including attorneys'
fees), liability, loss, judgment, fines and amounts paid in settlement actually
and reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in manner reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceedings, had no reasonable cause to believe his or
her conduct was unlawful. The termination of any action, upon a plea of nolo
contendere or equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect of any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
(B) Undertaking. Such indemnity shall inure to the benefit of the
heirs, executors and administrators of any such person so indemnified pursuant
to this Article. The right to indemnification under this Article shall be a
contract right and shall include, with respect to directors and officers, the
right to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its disposition; provided however, that, if the DGCL
requires, the payment of such expenses incurred by a director or officer in
advance of the final disposition of a proceeding shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article or otherwise. The Corporation may, by action of its Board of
Directors, pay such expenses incurred by employees and agents of the Corporation
upon such terms as the Board of Directors deems appropriate. Such
indemnification and advancement of expenses shall be in addition to any other
rights to which those seeking indemnification and advancement of expenses may be
entitled under any law, Bylaw, agreement, vote of stockholders, or otherwise.
(C) Insurance. The Corporation may, to the fullest extent
permitted by applicable law, at any time without further stockholder approval,
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify such person against such
liability under applicable law.
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(D) Prospective Repeal or Amendment. Any repeal or amendment of
this Article by the stockholders of the Corporation or by changes in applicable
law shall, to the extent permitted by applicable law, be prospective only, and
shall not adversely affect any right to indemnification or advancement of
expenses of a director or officer of the Corporation existing at the time of
such repeal or amendment. In addition to the foregoing, the right to
indemnification and advancement of expenses shall be to the fullest extent
permitted by the DGCL or any other applicable law and all amendments to such
laws as hereafter enacted from time to time.
ARTICLE IX
No director of the Corporation shall have any personal liability to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that this provision eliminating
such personal liability of a director shall not eliminate or limit the liability
of a director (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) under
ss.174 of the DGCL, or (iv) for any transaction from which the director derived
an improper personal benefit. If the DGCL is amended 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.
ARTICLE X
All of the powers of this Corporation, insofar as the same may be
lawfully vested by this Certificate of Incorporation in the Board of Directors,
are hereby conferred upon the Board of Directors of this Corporation.
ARTICLE XI
The election of directors need not be by written ballot.
ARTICLE XII
The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner prescribed by the
laws of the State of Delaware and all rights conferred upon stockholders are
granted subject to this reservation; provided, however, that, not withstanding
any other provisions of this Certificate of Incorporation or any provision of
law which might otherwise permit a lesser vote or no vote, but in addition to
any vote of the holders of any class or series of the stock of this Corporation
required by law or by this Certificate of Incorporation, the affirmative vote of
the holders of at least 66 2/3% of the voting power of all of the then
outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to amend or repeal this Article XII, Article V, Article VI, Article
VIII or Article IX.
ARTICLE XIII
The name and address of the Sole Incorporator is as follows:
Adam Lenain
402 West Broadway, Suite 2300
San Diego, CA 92101
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In Witness Whereof, this Certificate has been subscribed this 27th day
of September, 2005 by the undersigned who affirms that the statements made
herein are true and correct.
/s/ ADAM LENAIN
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Adam Lenain
Sole Incorporator
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