[As filed with the Secretary of State of Delaware on 1/11/93]
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
BIO-VED, INC.
FIRST: The name of the corporation is BIO-VED, INC.
SECOND: The address of the Corporation's registered office in the State of
Delaware is 15 East North Street, City of Dover, County of Kent. The name of
its registered agent at such address is United Corporate Services, Inc.
THIRD: 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.
FOURTH:
I. The aggregate number of shares which the Corporation shall have
authority to issue is Three Hundred (300) shares, consisting of (i) One
Hundred (100) shares of Class A Common Stock, par value $.001 per share
("Class A Common Stock"), (ii) One Hundred (100) shares of Class B Common
Stock, par value $.001 per share ("Class B Common Stock"), and (iii) One
Hundred (100) shares of Preferred Stock, par value $.01 per share ("Preferred
Stock").
II. Except as otherwise provided in this Article FOURTH, the rights,
preferences and limitations of Class A Common Stock and Class B Common Stock
shall be identical in all respects:
(a) The dividend rights of the holders of shares of Class A
Common Stock and Class B Common Stock shall be identical, except that no
stock dividends on the Class A Common Stock may be paid in Class B Common
Stock and no stock dividends on the Class B Common Stock may be paid in Class
A Common Stock. Whenever a stock dividend is paid, the holder of a share of
any class of common stock shall be paid the same number of shares of common
stock of the class of such share as are paid to the holder of a share of
common stock of any other class in shares of common stock of such other
class. Whenever a combination or subdivision of the shares of any class is
made, the same combination or subdivision shall be made with respect to other
classes.
(b) Each holder of Class A Common Stock shall have one vote in
respect of each share of Class A Common Stock held by him and each holder of
Class B Common Stock shall have four votes in respect of each share of Class B
Common Stock held by him on all matters voted upon by the shareholders.
(c) (i) All outstanding shares of Class B Common Stock shall be
convertible at all times, at the election of the holder thereof, into an equal
number of fully paid
and nonassessable shares of Class A Common Stock by delivery of written notice
by the holder of such shares of Class B Common Stock to the Corporation or its
transfer agent of his election together with the certificate(s) representing the
shares to be converted. Thereupon, the Corporation or its transfer agent, as the
case may be, shall exchange such certificate(s) for a certificate or
certificates representing an equal number of shares of Class A Common Stock.
Shares of Class B Common Stock shall be deemed to have been converted
immediately prior to the close of business the day upon which the Corporation
or its transfer agent receives such shares for conversion. The person
entitled to receive the Class A Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder of such Class A Common
Stock at such time. Thereafter, the shares of Class B Common Stock so
converted shall be authorized and unissued shares of Class B Common Stock of
the Corporation.
(ii) Except as provided in subparagraph (iii) below, upon
the sale, assignment, transfer, conveyance, or other disposition, whether
voluntary, by operation of law or otherwise (a "Transfer," which, for the
purpose hereof, shall not include a pledge) of shares of Class B Common Stock,
other than a transfer to another holder of Class B Common Stock or to a private
charitable foundation as to which a holder of Class B Common Stock is the sole
voting member, the shares so transferred shall, by virtue of such Transfer,
automatically be converted into an equal number of fully paid and nonassessable
shares of Class A Common Stock. Thereafter, the shares of Class B Common Stock
so converted shall be authorized and unissued shares of Class B Common Stock of
the Corporation.
(iii) Upon the death of any holder of Class B Common Stock,
the shares of Class B Common Stock so held as of the date of death of the
deceased shareholder shall be automatically converted into an equal number of
fully paid and nonassessable shares of Class A Common Stock unless and to the
extent that any of such shares are purchased by another holder of Class B Common
Stock on or prior to 90 days from the date that a legal representative is duly
appointed by a court of competent jurisdiction or 120 days from such date if
within such 90 day period another holder of Class B Common Stock has exercised
any right to purchase shares of Class B Common Stock held by such legal
representative. If there should be only one holder of Class B Common Stock,
effective immediately upon his death, the shares of Class B Common Stock so held
as of the date of death shall be automatically converted into an equal number of
fully paid and nonassessable shares of Class A Common Stock. Thereafter, the
shares of Class B Common Stock so converted shall be authorized and unissued
shares of Class B Common Stock of the Corporation.
(iv) With respect to any shares of Class B Common Stock
converted into Class A Common Stock pursuant to paragraphs (i) and (iii) above,
until surrender as hereinafter
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provided, each outstanding certificate, which prior to such conversion
represented shares of Class B Common Stock, shall be deemed for all purposes to
evidence ownership of the number of shares of Class A Common Stock into which
the shares of Class B Common Stock shall have been converted. Upon surrender to
the Corporation, or its transfer agent, for cancellation of the certificate or
certificates representing such shares, the holder thereof shall be entitled to
receive a certificate or certificates representing the number of shares of
common stock to which such holder is entitled.
III. 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, from time to time, in one or more series of any number, the
issuance of shares of Preferred Stock, and, by filing a certificate pursuant to
the General Corporation Law of the State of Delaware, 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 each of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate on the shares of the 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;
(c) 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;
(d) 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;
(e) 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 such 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;
(f) Whether that series shall be entitled to the benefit of a
sinking fund to be applied to the purchase or
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redemption of shares of that series and, if so, the terms and amounts of such
sinking fund;
(g) The right of the shares of the 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 or 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;
(h) 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
(i) Any other relative, participating optional or other special,
rights, qualifications, limitations or restrictions of that series.
IV. Shares of any series of Preferred Stock which have
been redeemed (whether through the operation of a sinking fund or otherwise) or
which, if convertible or exchangeable, have been converted into or exchanged for
shares of stock of any other class or classes, 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 any other series of Preferred Stock or of a
new series of Preferred Stock to be created by resolution or resolutions of the
Board of Directors, all subject to the conditions and 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.
V. 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 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 issuance of any series of Preferred Stock, the holders of
Class A and Class B 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.
VI. 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 of winding up of the Corporation, whether voluntary or
involuntary, the holders of Class A and Class B Common Stock shall be entitled,
after
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payment shall have been made to the holders of Preferred Stock of the full
amount to which they shall be entitled pursuant to the resolution or resolutions
providing for the issuance of any series of Preferred Stock, to share, to the
exclusion of the holders of Preferred Stock of any and all series, in all
remaining assets of the Corporation available for distribution to its
stockholders ratably according to the number of shares of Class A and Class B
Common Stock held by them.
VII. The number of authorized shares of any class may be increased or
decreased by the affirmative vote of the holders of a majority of the stock of
the Corporation entitled to vote.
FIFTH: The name and mailing address of the sole incorporator are as follows:
Rachel Abarbanel
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, New York 10112
SIXTH: Meetings of stockholders may be held at such places,
within or without the State of Delaware, as may be fixed by the Board of
Directors pursuant to the authority granted in the by-laws. Special meetings of
stockholders may be called by the President or by the Board of Directors only.
Elections of directors need not be by ballot unless the by-laws of the
Corporation shall provide otherwise or a stockholder demands election by ballot
at the election and before the voting begins. The books of the Corporation may
be kept outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the by-laws of the
Corporation.
SEVENTH: The number of directors which shall constitute the entire Board of
Directors of the Corporation shall not be less than three, the exact number to
be fixed from time to time by the Board of Directors pursuant to a resolution
duly adopted by a majority of the entire Board.
EIGHTH: No directors of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that this Article EIGHTH shall not eliminate or
limit the liability of a director (i) for any breach of such director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions of
such director not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which such director derived an
improper personal benefit; nor shall this Article EIGHTH eliminate or limit the
liability of a director for any act or omission occurring prior to the date this
Article EIGHTH becomes effective.
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NINTH: The Corporation may lend money to, guarantee an obligation of, or
otherwise assist, any director, officer or other employee of the Corporation
when authorized by a majority of the Board, subject to Section 143 of the
Delaware General Corporation
Law.
TENTH: The Board of Directors is expressly authorized to adopt, amend and
repeal the by-laws of the Corporation.
ELEVENTH: The Corporation shall, to the fullest extent permitted by Section 145
of the Delaware General Corporation Law as the same may be amended or
supplemented, indemnify any and all persons whom it shall have power to
indemnify from and against any and all expenses, liabilities or other matters.
TWELFTH: 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 of any
receiver or receivers appointed for this Corporation under the provisions of
Section 291 of the Delaware General Corporation Law, 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 Delaware General
Corporation Law, order a meeting of the creditors or class of creditors and/or
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 this Corporation, as the
case may be, agree to any 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.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Incorporation and affirms the statements herein contained on this 8th day of
January 1993.
/S/ Rachel Abarbanel
------------------------------
Rachel Abarbanel, Incorporator
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[As filed with the Secretary of State of Delaware on 12/29/94]
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
BIO-VED, INC.
The undersigned, on behalf of BIO-VED, INC., a corporation organized
and existing under the laws of the State of Delaware (the "Corporation"), in
order to amend the Corporation's Certificate of Incorporation, hereby certifies
as follows:
1. The name of the Corporation is BIO-VED, INC.
2. The Corporation hereby amends its Certificate of Incorporation as
follows:
(a) The first paragraph of ARTICLE FOURTH of the Certificate of
Incorporation, relating to the authorized capital stock of the
Corporation, is hereby amended to read as follows:
"FOURTH: I. The aggregate number of shares which the
Corporation shall have authority to issue is Seven Hundred
(700) shares, consisting of (i) One Hundred (100) shares of
Class A Common Stock, par value $.001 per share ("Class A
Common Stock"), (ii) Five Hundred (500) shares of Class B
Common Stock, par value $.001 per share ("Class B Common
Stock"), and (iii) One Hundred (100) shares of Preferred
Stock, par value $.01 per share ("Preferred Stock")."
3. The amendment contained herein (i) was duly approved by written
consent of the stockholders of the Corporation in accordance with the provisions
of Section 228 of the General Corporation Law of the State of Delaware (the
"DGCL") and written notice has been given as provided in that Section and (ii)
was duly adopted in accordance with the provisions of Section 242 of the DGCL.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer
of the Corporation, has executed this Certificate of Amendment on behalf of the
Corporation and affirms the statements herein contained on the 29 day of
December, 1994.
BIO-VED, INC.
By: /s/ Barry Wald
---------------------
Barry Wald, President
[As filed with the Secretary of State of Delaware of 9/27/95]
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
BIO-VED, INC.
The undersigned, on behalf of BIO-VED, INC., a corporation organized
and existing under the laws of the State of Delaware (the "Corporation"), in
order to amend the Corporation's Certificate of Incorporation, hereby certifies
as follows:
1. The name of the Corporation is BIO-VED, INC.
2. The Corporation hereby amends its Certificate of Incorporation as
follows:
(a) ARTICLE FIRST of the Certificate of Incorporation, relating to
the name of the Corporation, is hereby amended to read as follows:
"FIRST: The name of the corporation is AyurCore, Inc."
3. The amendment contained herein (i) was duly approved by written
consent of the stockholders of the Corporation in accordance with the provisions
of Section 228 of the General Corporation Law of the State of Delaware (the
"DGCL") and written notice has been given as provided in that Section and (ii)
was duly adopted in accordance with the provisions of Section 242 of the DGCL.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer
of the Corporation, has executed this Certificate of Amendment on behalf of the
Corporation and affirms the statements herein contained on the 26 day of
September, 1995.
BIO-VED, INC.
By: /s/ Barry Wald
----------------------
Barry Wald, President
[As filed with the Secretary of State of Delaware on 11/18/97]
CERTIFICATE FOR
RENEWAL AND REVIVAL OF CHARTER
OF
AYURCORE, INC.
AyurCore, Inc. a corporation organized under the laws of Delaware, the
certificate of incorporation of which was filed in the office of the Secretary
of State on the 11th day of Janurary, 1993, and recorded in the office of the
Recorder of Deeds for Kent county, the charter of which was voided for
non-payment of taxes, now desires to procure a restoration, renewal and revival
of its charter, and hereby certifies as follows:
1. The name of the corporation is AyurCore, Inc.
2. Its registered office in the State of Delaware is located at United
Corporate Services, Inc., 15 East North Street, in the city of Dover, County of
Kent, State of Delaware 19901. The name of its registered agent at that address
is United Corporate Services, Inc.
3. The date when the restoration, renewal and revival of the charter of
this company is to commence is the 28th day of Februrary, 1997, same being prior
to the date of the expiration of the charter. This renewal and revival of the
charter of this corporation is to be perpetual.
4. This corporation was duly organized and carried on the business
authorized by its charter until the 1st day of March, 1997, at which time its
charter became inoperative and void for non-payment of taxes and this
certificate for renewal and revival is filed by authority of the duly elected
directors of the corporation in accordance with the laws of the State of
Delaware.
IN TESTIMONY WHEREOF, and in compliance with the provisions of Section 312
of the General Corporation Law of the State of Delaware, as amended, providing
for the renewal, extension and restoration of charters, Deepa Chitre, Chief
Executive Officer, the last authorized officer of AyurCore, Inc., has hereunto
set her hand to this certificate this 17th day of November, 1997.
By: /s/ Deepa Chitre
-------------------------------------
Deepa Chitre, Chief Executive Officer
[As filed with the Secretary of State of Delaware on 11/26/97]
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AYURCORE, INC.
AyurCore, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), hereby certifies
that the amendments set forth below to the Corporation's Certificate of
Incorporation were duly adopted in accordance with Section 242 of the General
Corporation Law of the State of Delaware, and notice of such adoption was given
in accordance with Section 228 thereof:
FIRST: Article FOURTH of the Corporation's Certificate of
Incorporation is hereby amended to read in its entirety as follows:
FOURTH:
I A. The total number of shares of capital stock which may be issued by the
Corporation is thirty million (30,000,000), divided into classes of which
twenty-five million (25,000,000) shall be Common Stock, par value $.001 per
share, and of which five million (5,000,000) shall be Preferred Stock, par value
$.001 per share.
Upon the effectiveness of the amendment to the Corporation's Certificate of
Incorporation containing this paragraph, each outstanding share of the
Corporation's Class A Common Stock, par value $.001 per share, if any, and Class
B Common Stock, par value $.001 per share, shall be and they hereby are ,
reclassified as and change into 18,333.486 shares of fully paid and
nonassessable Common Stock. Upon surrender to the Corporation of certificates
(duly endorsed in blank) representing shares of Common Stock to be converted,
certificates representing the appropriate number of shares of Common Stock (less
fractions thereof) shall be issued and delivered to the surrendering
stockholders. The Corporation shall pay in cash the fair value of fractions of
a share as of the time when those entitled to receive such fractions are
determined.
B. The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the shares of Common Stock of the
Corporation are as follows:
1. Dividends may be paid upon the Common Stock as and when declared by
the Board of Directors out of any funds legally available therefor.
2. Upon any liquidation, dissolution or winding up of the Corporation,
the holders of the Common Stock shall be entitled to receive any and all assets
of the Corporation remaining to be paid or distributed.
3. Except as otherwise provided by statute, by any express provision of
this Certificate or by any agreement to the contrary between the Corporation and
its stockholders, all rights to vote
and all voting power shall be exclusively vested in the Common Stock and the
holders thereof shall be entitled to one vote for each share of Common Stock for
the election of directors and upon all other matters.
4. The Corporation shall be entitled to treat the person in whose name
any share, right or option is registered as the owner thereof, for all purposes,
and shall not be bound to recognize any equitable or other claim to or interest
in such share, right or option on the part of any other person, whether or not
the Corporation shall have notice thereof, save as may be expressly provided by
the laws of the State of Delaware.
C. The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article FOURTH, to provide for the
issuance of the shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish from time
to time the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions thereof.
1. The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
a. The number of shares constituting that series and the distinctive
designation of that series;
b. The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that series;
c. 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;
d. Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision for adjustment
of the conversion rate in such events as the Board of Directors shall determine;
e. Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including 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;
f. Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
g. The rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the corporation, and
the relative rights of priority, if any, of
payment of shares of that series; and
h. Any other relative rights, preferences and limitations of that
series.
2. Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment before any dividends shall be paid or
declared and set apart for payment on the shares of Common Stock with respect to
the same dividend period.
3. If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the assets available for distribution to holders
of shares of Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series of Preferred
stock in accordance with the respective preferential amounts (including unpaid
cumulative dividends, if any) payable with respect thereto.
4. The Corporation shall be entitled to treat the person in whose name
any share, right or option is registered as the owner thereof, for all purposes,
and shall not be bound to recognize any equitable or other claim to or interest
in such share, right or option on the part of any other person, whether or not
the Corporation shall have notice thereof, save as may be expressly provided by
the laws of the State of Delaware.
IN WITNESS WHEREOF, AYURCORE, INC. has caused this certificate to be
signed and attested by its duly authorized officers, this 25th day of November,
1997.
AYURCORE, INC.
By: /s/ Deepa Chitre
-------------------------------------
Deepa Chitre, President and
Chief Executive Officer
ATTEST:
By: /s/ Irwin Rosenthal
--------------------------
Irwin Rosenthal, Secretary