EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
DYADIC INTERNATIONAL, INC.
Dyadic International, Inc. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "GCL"), hereby certifies as follows:
First: The name of the Corporation is Dyadic International, Inc. A
Certificate of Incorporation of the Corporation was originally filed by the
Corporation with the Secretary of State of Delaware on September 23, 2002 and an
Amended and Restated Certificate of Incorporation was filed with the Secretary
of State of Delaware on November 1, 2004. The Corporation was originally
incorporated under the name CCP Worldwide, Inc.
Second: This Restated Certificate of Incorporation restates and
integrates, but does not further amend, the provisions of the Certificate of
Incorporation of the Corporation as originally filed and heretofore amended or
supplemented, and there is no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation. This Restated
Certificate of Incorporation was duly adopted in accordance with the provisions
of Section 245 of the GCL, and was approved by unanimous written consent of the
directors of the Corporation without a vote of the stockholders.
Third: The text of the Certificate of Incorporation of the
Corporation is hereby restated and superseded to read in its entirety as
follows:
ARTICLE I
NAME OF CORPORATION
The name of this corporation (the "Corporation") is Dyadic
International, Inc.
ARTICLE II
REGISTERED OFFICE
The address, including street, number, city, and county, of the
registered office of the 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 at
such address is Corporation Service Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "GCL").
ARTICLE IV
AUTHORIZED STOCK
The total number of shares of all classes of stock which the
Corporation shall have authority to issue shall be one hundred five million
(105,000,000) shares, of which one hundred million (100,000,000) shares shall be
common stock, par value $0.001 per share (the "Common Stock"), and five million
(5,000,000) shares shall be preferred stock, par value $0.0001 per share (the
"Preferred Stock"). All of the shares of Common Stock shall be of one class.
The shares of Preferred Stock shall be undesignated Preferred Stock
and may be issued from time to time in one or more series pursuant to a
resolution or resolutions providing for such issuance and duly adopted by the
Board of Directors of the Corporation, authority to do so being hereby expressly
vested in the Corporation's Board of Directors. The Board of Directors is
further authorized to determine or alter the rights, preferences, privileges and
restrictions granted to or imposed upon any wholly unissued series of Preferred
Stock and to fix the number of shares of any series of Preferred Stock and the
designation of any such series of Preferred Stock. The Board of Directors of the
Corporation, within the limits and restrictions stated in any resolution or
resolutions of the Board of Directors originally fixing the number of shares
constituting any series, may increase or decrease (but not below the number of
shares in any such series when outstanding) the number of shares of any series
subsequent to the issuance of shares of that series.
The authority of the Board of Directors of the Corporation with
respect to each such class or series of Preferred Stock shall include, without
limitation of the foregoing, the right to determine and fix:
(a) the distinctive designation of such class or series
and the number of shares to constitute such class or series;
(b) the rate at which dividends on the shares of such
class or series shall be declared and paid or set aside for payment,
whether dividends at the rate so determined shall be cumulative or
accruing, and whether the shares of such class or series shall be
entitled to any participating or other dividends in addition to
dividends at the rate so determined, and if so, on what terms;
(c) the right or obligation, if any, of the Corporation to
redeem shares of the particular class or series of Preferred Stock
and, if redeemable, the price, terms and manner of such redemption;
(d) the special and relative rights and preferences, if
any, and the amount or amounts per share, which the shares of such
class or series of Preferred Stock shall be entitled to receive upon
any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation;
(e) the terms and conditions, if any, upon which shares of
such class or series shall be convertible into, or exchangeable for,
shares of capital stock of any other class or series, including the
price or prices or the rate or rates of conversion or exchange and
the terms of adjustment, if any;
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(f) the obligation, if any, of the Corporation to retire,
redeem or purchase shares of such class or series pursuant to a
sinking fund or fund of a similar nature or otherwise, and the terms
and conditions of such obligations;
(g) voting rights, if any, on the issuance of additional
shares of such class or series or any shares of any other class or
series of Preferred Stock;
(h) limitations, if any, on the issuance of additional
shares of such class or series or any shares of any other class or
series of Preferred Stock; and
(i) such other preferences, powers, qualifications,
special or relative rights and privileges thereof as the Board of
Directors of the Corporation, acting in accordance with this
Certificate of Incorporation, may deem advisable and are not
inconsistent with the law and the provisions of this Certificate of
Incorporation.
ARTICLE V
[OMITTED AS PERMITTED BY GCL]
ARTICLE VI
ELECTION OF DIRECTORS
A. The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors.
B. The election of directors of the Corporation need not be by
written ballot unless otherwise required by the Bylaws of the Corporation.
C. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the Board of
Directors shall be divided into three classes designated as Class I, Class II
and Class III, respectively. Promptly following the effectiveness of this
Section C, directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors. Each class shall
consist, as nearly as possible, of one-third of the total number of directors
constituting the entire Board of Directors. The term of office of the Class I
directors shall expire at the annual meeting of stockholders to be held in 2005,
and, at that meeting, Class I directors shall be elected for a full term of
three years. At the annual meeting of stockholders to be held in 2006, the term
of office of the Class II directors shall expire, and Class II directors shall
be elected for a full term of three years. At the annual meeting of stockholders
to be held in 2007, the term of office of the Class III directors shall expire,
and Class III directors shall be elected for a full term of three years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full
term of three years to succeed the directors of the class whose terms expire at
such annual meeting. If the number of directors is changed, an 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 director
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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 shall a decrease in the number of directors remove or
shorten the term of any incumbent director.
D. Notwithstanding the foregoing provisions of this section, each
director shall serve until his successor is duly elected and qualified or until
his death, resignation or removal.
E. No stockholder shall be entitled to cumulate votes in the election
of directors. Directors may only be removed for cause, as provided in Section
141(k)(1) of the GCL.
F. Subject to the rights of the holders of any series of Preferred
Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by the stockholders, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of
Directors, and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the director for which the vacancy was created or occurred and until such
director's successor shall have been elected and qualified.
G. If at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Delaware Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent (10%) of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in offices as aforesaid, which election shall be governed by Section 211 of the
GCL.
H. Notwithstanding the foregoing, whenever the holders of any one or
more series of Preferred Stock issued by the Corporation shall have the right,
voting separately by 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 the series of
Preferred Stock applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Article VI unless expressly provided by
such terms.
ARTICLE VII
BYLAWS
Subject to paragraph (h) of Section 11.01 of the Bylaws, the Bylaws
may be altered or amended or new Bylaws adopted by the affirmative vote 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 voting stock of the corporation entitled to
vote. The Board of Directors shall also have the power to adopt, amend, or
repeal Bylaws.
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ARTICLE VIII
NUMBER OF DIRECTORS
The number of directors that constitutes the entire Board of
Directors of the Corporation shall be fixed exclusively by one or more
resolutions adopted by the Board of Directors.
ARTICLE IX
MEETINGS OF STOCKHOLDERS
A. Meetings of stockholders of the Corporation may be held within or
without the State of Delaware, as the Bylaws of the Corporation may provide. The
books of the Corporation may be kept (subject to any provisions of applicable
statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors of the Corporation.
B. No action shall be taken by the stockholders of the Corporation
except at an annual or special meeting of stockholders called in accordance with
the Bylaws.
C. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws.
D. Special meetings of the stockholders of the Corporation may only
be called, for any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the Chief Executive Officer, or (iii) the Board of 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).
E. Notwithstanding 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 affirmative vote of the holders of any
particular class or series of the voting stock of the Corporation required by
law, this Certificate of Incorporation or the terms of any series of Preferred
Stock, 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 voting stock, voting together as a single class, shall be required to
approve any of the following actions if such action is not affirmatively
recommended by the Board of Directors:
(1) the merger or consolidation of the Corporation with
any other corporation or entity;
(2) the sale, conveyance or other disposition of all or
substantially all of the assets of the Corporation; or
(3) the conversion of the Corporation into another type of
corporation or entity.
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ARTICLE X
LIMITATION ON LIABILITY OF DIRECTORS;
INDEMNIFICATION OF DIRECTORS AND OFFICERS;
PERSONAL LIABILITY OF DIRECTORS
The Corporation shall indemnify each of the Corporation's directors
and officers in each and every situation where, under Section 145 of the GCL, as
amended from time to time ("Section 145"), the Corporation is permitted or
empowered to make such indemnification. The Corporation may, in the sole
discretion of the Board of Directors of the Corporation, indemnify any other
person who may be indemnified pursuant to Section 145 to the extent that the
Board of Directors deems advisable, as permitted by Section 145.
No director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided, however, that the foregoing shall not eliminate or limit the liability
of a director of the Corporation (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 Section 174 of the GCL, or (iv) for any transaction from which
the director derived an improper personal benefit. If the GCL is subsequently
amended to further eliminate or limit the liability of a director, then a
director of the Corporation, in addition to the circumstances in which a
director is not personally liable as set forth in the preceding sentence, shall
not be liable to the fullest extent permitted by the amended GCL. For purposes
of this Article X, "fiduciary duty as a director" shall include any fiduciary
duty arising out of service at the Corporation's request as a director of
another corporation, partnership, joint venture or other enterprise, and
"personal liability to the Corporation or its stockholders" shall include any
liability to such other corporation, partnership, joint venture, trust or other
enterprise and any liability to the Corporation in its capacity as a
securityholder, joint venturer, partner, beneficiary, creditor or investor of or
in any such other corporation, partnership, joint venture, trust or other
enterprise.
Neither any amendment nor repeal of this Article X nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article X shall eliminate or reduce the effect of this Article X in respect of
any matter occurring, or any cause of action, suit or claim that, but for this
Article X, would accrue or arise, prior to such amendment, repeal or adoption of
an inconsistent provision.
ARTICLE XI
COMPROMISE OR ARRANGEMENT
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 on the application of any receiver or receivers
appointed for this Corporation under Section 291 of the GCL or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under Section 279 of the GCL, 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
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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 consequence of such compromise or 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.
ARTICLE XII
AMENDMENT OF PROVISIONS OF
CERTIFICATE OF INCORPORATION
A. The corporation reserves the right at any time, and from time to
time, to amend, alter, change or repeal any provisions contained in this
Certificate of Incorporation, and other provisions authorized by the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by statute, except as provided in paragraph B. of this
Article XII, and all rights conferred upon stockholders herein are granted
subject to this reservation.
B. Notwithstanding 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 affirmative vote of the holders of any
particular class or series of the voting stock of the Corporation required by
law, this Certificate of Incorporation or the terms of any series of Preferred
Stock, 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 voting stock, voting together as a single class, shall be required to alter,
amend or repeal:
(1) Article VI, VII, VIII, IX or XII of this Certificate
of Incorporation, or
(2) any other Article of this Certificate of Incorporation
if such alteration, amendment or repeal is not affirmatively recommended by the
Board of Directors.
In Witness Whereof, the undersigned has caused this Restated
Certificate of Incorporation to be duly executed on behalf of the Corporation on
November 1, 2004.
DYADIC INTERNATIONAL, INC.
By: /s/ Mark A. Emalfarb
--------------------------------
Name: Mark A. Emalfarb
Title: President
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