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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF INTERLEUKIN GENETICS, INC.
a Delaware corporation
ARTICLE 1
The name of this corporation is Interleukin Genetics, Inc.
ARTICLE 2
A. The address of its registered offices in the State of Delaware is 9 East
Loockerman Street, in the City of Dover, County of Kent. The name of its
registered agent at such address is Capitol Services, Inc.
B. The name and mailing address of the incorporator is:
Tami Gerardi
Capitol Services, Inc.
9 East Loockerman Street
Dover, Delaware 19901
ARTICLE 3
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.
ARTICLE 4
The total number of shares of stock of all classes which the Corporation
has authority to issue is 55,000,000 shares, of which 50,000,000 shares shall be
common stock, with a par value of $.001 per share ("Common Stock"), and
5,000,000 shares shall be preferred stock, with a par value of $.001 per share
("Preferred Stock").
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the shares of each class of stock
are as follows:
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PREFERRED STOCK
Preferred Stock may be issued from time to time by the Board of Directors
as shares of one or more series. Subject to the provisions hereof and the
limitations prescribed by law, the Board of Directors is hereby vested with the
authority and is expressly authorized, prior to issuance, by adopting
resolutions providing for the issuance of, or providing for a change in the
number of, shares of any particular series and, if and to the extent from time
to time required by law, by filing a certificate pursuant to the General
Corporation Law of the State of Delaware (or other law hereafter in effect
relating to the same or substantially similar subject matter), to establish or
change the number of shares to be included in each such series and to fix the
designation and powers, preferences and rights and the qualifications and
limitations or restrictions thereof relating to the shares of each such series,
all to the maximum extent permitted by the General Corporation Law of the State
of Delaware as in effect on the date hereof or as hereafter amended. The vested
authority of the Board of Directors with respect to each series shall include,
but not be limited to, the determination of the following:
(a) the distinctive serial designation of such series and the number
of shares constituting such series (provided that the aggregate number of
shares constituting all series of Preferred Stock shall not exceed
5,000,000);
(b) the annual dividend rate, if any, on shares of such series and the
preferences, if any, over any other series (or of any other series over
such series) with respect to dividends, and whether dividends shall be
cumulative and, if so, from which date or dates;
(c) whether the shares of such series shall be redeemable and, if so,
the terms and conditions of such redemption, including the date or dates
upon and after which such shares 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;
(d) the obligation, if any, of the Corporation to purchase or redeem
shares of such series pursuant to a sinking fund or purchase fund and, if
so, the terms of such obligation;
(e) whether shares of such series shall be convertible into, or
exchangeable for, shares of stock of any other class or classes, any stock
of any series of the same class or any other class or classes or any
evidence of indebtedness and, if so, the terms and conditions of such
conversion or exchange, 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) whether the shares of such series shall have voting rights in
addition to the voting rights provided by law, and, if so, the terms of
such voting rights, including, without limitation, whether such shares
shall have the right to vote with the Common Stock on issues on an equal,
greater or lesser basis;
(g) the rights of the shares of such series in the event of a
voluntary or involuntary liquidation, dissolution, winding up or
distribution of assets of the Corporation;
(h) whether the shares of such series shall be entitled to the benefit
of conditions and restrictions upon (i) the creation of indebtedness of the
Corporation or any subsidiary, (ii) the issuance of any additional stock
(including additional shares of such series or of any other series) or
(iii) the payment of dividends or the making of other distributions on the
purchase, redemption or other acquisition by the Corporation or any
subsidiary of any outstanding stock of the Corporation; and
(i) any other relative rights, powers, preferences, qualifications,
limitations or restrictions thereof, including, but not limited to, any
that may be determined in connection with the adoption of any stockholder
rights plan after the date hereof, relating to any such series.
Except where otherwise set forth in the resolution or resolutions adopted
by the Board of Directors providing for the issuance of any series of Preferred
Stock, the number of shares comprising such series may be increased or decreased
(but not below the number of shares then outstanding) from time to time by like
action of the Board of Directors.
Shares of any series of Preferred Stock that have been redeemed (whether
through the operation of a sinking fund or otherwise) or purchased by the
Corporation, or which, if convertible or exchangeable, have been converted into,
or exchanged for, shares of stock of any other class or classes or any evidences
of indebtedness shall have the status of authorized and unissued shares of
Preferred Stock 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 a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of Preferred Stock, all subject to the
conditions or restrictions on issuance set forth in the resolution or
resolutions adopted by the Board of Directors providing for the issuance of any
series of Preferred Stock and to any filing required by law.
COMMON STOCK
Subject to all of the rights of the Preferred Stock, and except as may be
expressly provided with respect to the Preferred Stock herein, by law or by the
Board of Directors pursuant to this Article 4:
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(a) dividends may be declared and paid or set apart for payment upon
Common Stock out of any assets or funds of the Corporation legally
available for the payment of dividends and may be payable in cash, stock or
otherwise;
(b) the holders of Common Stock shall have the exclusive right to vote
for the election of directors (other than in the case of newly created
directorships and vacancies, which shall be filled solely by the remaining
directors as set forth in Article 6 hereof) and on all other matters
requiring stockholder action, each share being entitled to one vote; and
(c) upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the net assets of the Corporation shall be
distributed pro rata to the holders of Common Stock in accordance with
their respective rights and interests.
DENIAL OF PREEMPTIVE RIGHTS AND CUMULATIVE VOTING
No holder of any stock of the Corporation shall be entitled as such, as a
matter of right, to subscribe for or purchase any part of any new or additional
issue of stock of any class whatsoever of the Corporation, or of securities
convertible into stock of any class whatsoever, whether now or hereafter
authorized, or whether issued for cash or other consideration or by way of
dividend.
No holder of any stock of the Corporation shall have the right of
cumulative voting at any election of directors or upon any other matter.
ARTICLE 5
The Corporation is to have perpetual existence.
ARTICLE 6
All power of the Corporation shall be vested in and exercised by or under
the direction of the Board of Directors except as otherwise provided herein or
required by law.
For the management of the business and for the conduct of the affairs of
the Corporation, and in further creation, definition, limitation and regulation
of the power of the Corporation and of its directors and stockholders, it is
further provided:
Section 1. Elections of Directors. Elections of Directors need not be by
written ballot unless the Bylaws of the Corporation shall so provide.
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Section 2. Number, Election and Terms of Directors. Except as otherwise
fixed pursuant to the provisions of Article 4 hereof relating to the rights of
the holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation to elect additional directors under
specified circumstances, the number of directors of the Corporation shall be
fixed from time to time by or pursuant to the Bylaws; provided that such number
shall not be less than three nor more than twelve. The directors, other than
those who may be elected by the holders of any class or series of stock having
preference over the Common Stock as to dividends or upon liquidation, shall be
classified, with respect to the time for which they severally hold office, into
three classes, each as nearly equal in number as possible, as shall be provided
in the manner specified in the Bylaws, one class (Class I) to hold office
initially for a term expiring at the annual meeting of stockholders to be held
in 2001, another class (Class II) to hold office initially for a term expiring
at the annual meeting of stockholders to be held in 2002, and another class
(Class III) to hold office initially for a term expiring at the annual meeting
of stockholders to be held in 2003, with the members of each class to hold
office until their successors are elected and qualified or until their earlier
resignation or removal. At each annual meeting of the stockholders until their
earlier resignation or removal. At each annual meeting of the stockholders of
the Corporation, the successors to the class of directors whose term expires at
that meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders to be held in the third year following the year of their
election.
Section 3. Stockholder Nomination of Director Candidates. Advance notice of
nominations for the election of Directors, other than by the Board of Directors
or a Committee thereof, shall be given in the manner provided in the Bylaws.
Section 4. Newly Created Directorships and Vacancies. Except as otherwise
fixed pursuant to the provisions of Article 4 hereof relating to the rights of
the holders of any class or series of stock having a preference over Common
Stock as to dividends or upon liquidation to elect directors under specified
circumstances, newly created directorships resulting from any increase in the
number of directors and any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be filled
solely by the affirmative vote of not less than two-thirds of the remaining
directors then in office, even though less than a quorum of the Board of
Directors. Any director elected to fill a vacancy resulting from death,
resignation, disqualification, removal or other cause shall hold office for the
remainder of the full term of the class of directors in which the vacancy
occurred and until such director's successor shall have been elected and
qualified or until his or her earlier resignation or removal. Newly created
directorships shall be within such class of directors as shall be required to
maintain, as nearly as possible, an equal number of directors in each class. Any
director elected to fill a newly created directorship shall hold office for the
term of the class in which such directorship has been created and until such
director's successor shall have been elected and qualified or until his or her
earlier resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
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Section 5. Removal of Directors. Subject to the rights of any class or
series of stock having preference over Common Stock as to dividends or upon
liquidation to elect directors under specified circumstances, any director may
be removed from office only for cause. Except as may otherwise be provided by
law, cause for removal shall be construed to exist only if during a director's
term as a director of the Corporation: (a) the director whose removal is
proposed has been convicted of a felony by a court of competent jurisdiction and
such conviction is no longer subject to direct appeal; (b) such director has
been adjudicated by a court of competent jurisdiction to be liable for gross
negligence, recklessness or misconduct in the performance of his or her duty to
the Corporation in a manner of substantial importance to the Corporation and
such adjudication is no longer subject to direct appeal; or (c) such director
has been adjudicated by a court of competent jurisdiction to be mentally
incompetent, which mental incompetency directly affects his or her ability as a
director of the Corporation, and such adjudication is no longer subject to
direct appeal.
Section 6. Stockholder Action. Any action required or permitted to be taken
by the stockholders of the corporation must be effected at a duly called annual
or special meeting of such holders and may not be effected by any consent in
writing by such holders. Except as otherwise required by law and subject to the
rights of holders of any class or series of stock having a preference over
Common Stock as to dividends or upon liquidation, special meetings of
stockholders of the Corporation may be called only by the Chairman of the Board,
the Chief Executive Officer or the Board of Directors pursuant to a resolution
approved by a majority of the entire Board of Directors.
Section 7. Bylaw Amendments. The Board of Directors shall have the power to
make, alter, amend and repeal the Bylaws (except so far as the Bylaws adopted by
the stockholders shall otherwise provide). Any Bylaws made by the Board of
Directors under the powers conferred hereby may be altered, amended or repealed
by the directors or by the stockholders; provided, however, that the Bylaws
shall not be altered, amended or repealed and no provision inconsistent
therewith shall be adopted (i) by stockholder action without the affirmative
vote of the holders of at least 66 2/3% of the voting power of all the shares of
the Corporation entitled to vote generally in the election of directors, voting
together as a single class or (ii) by director action without the affirmative
vote of not less than two-thirds of the directors then in office.
Section 8. Liability of Directors.
A. No director of the Corporation shall be liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary
duty as a director; provided that this Article 6 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 that involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit.
B. If the General Corporation Law of the State of Delaware hereafter
is amended to authorize the further elimination or limitation of the
liability of directors of the
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Corporation, then the liability of a director of the Corporation shall be
limited to the fullest extent permitted by the General Corporation Law of
the State of Delaware, as so amended, and such limitation of liability
shall be in addition to, and not in lieu of, the limitation on the
liability of a director of the Corporation provided by the provisions of
this Section 8 of this Article 6.
C. Any amendment, repeal or modification of this Section 8 of this
Article 6 shall be prospective only and shall not adversely affect any
right or protection of a director of the Corporation existing at the time
of such amendment, repeal or modification.
D. The Corporation shall be obligated at all times to maintain the
effectiveness of Bylaw provisions providing for the mandatory
indemnification of the directors of the Corporation to the maximum extent
permitted by the General Corporation Law of the State of Delaware.
Section 9. Amendment, Repeal, etc. Notwithstanding anything contained in
this Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 66 2/3% of the voting power of all shares of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with, or repeal, this Article 6 or any provision hereof.
ARTICLE 7
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute and this Certificate of Incorporation, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
I, the undersigned, as incorporator and for the purpose of forming a
corporation pursuant to the General Corporation Law of Delaware, do make this
certificate, hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly have hereunto set my hand this
28th day of March 2000.
/s/ Tami Gerardi
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Tami Gerardi
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