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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
POZEN INC.
Pursuant to Sections 242 and 245
of the General Corporation Law of
the State of Delaware
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POZEN INC. (the "Corporation"), a corporation duly organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify as follows:
1. The name of the Corporation is POZEN INC.
2. The Corporation's original Certificate of Incorporation was filed with
the Secretary of State of the State of Delaware on September 25, 1996.
3. This Amended and Restated Certificate of Incorporation restates,
integrates and further amends the Certificate of Incorporation of the
Corporation, as amended, was duly adopted in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law of the State of Delaware,
and was approved by written consent of the holders of a majority of the issued
and outstanding capital stock of the Corporation in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware with prompt written notice thereof having been given to those
stockholders of the Corporation not signing such written consent pursuant to
Section 228 (d) of the General Corporation Law of the State of Delaware. The
resolution setting forth the Amended and Restated Certificate of Incorporation
is as follows:
"RESOLVED, that the Amended and Restated Certificate of Incorporation
of the Corporation, as heretofore amended, supplemented or restated, be
amended and restated in its entirety to read as follows:
* * * * * *
FIRST. The name of the Corporation is POZEN INC.
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SECOND. The address of the registered office of the Corporation in the
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State of Delaware is 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805 and the name of the registered agent is Corporation Service
Company.
THIRD. The purpose for which the Corporation is organized is to engage in
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any lawful act or activity for which corporations may be organized under
the General Corporation Law of the State of Delaware.
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FOURTH. The Corporation shall have the authority to issue 100,000,000
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shares of capital stock, of which 90,000,000 shares shall be Common Stock
having a par value of $0.001 per share ("Common Stock"), and of which
10,000,000 shares shall be Preferred Stock having a par value of $0.001 per
share ("Preferred Stock").
The following is a statement of the designations and the powers,
privileges and rights and the qualifications, limitations or restrictions
thereof in respect to each class of capital stock of the Corporation.
A. Common Stock.
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1. General. The voting, dividend and liquidation rights of the
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holders of the Common Stock are subject to and qualified by the rights of
the holders of the Preferred Stock or any series as may be designated by
the Board of Directors upon any issuance of the Preferred Stock or any
series.
2. Voting. The holders of the Common Stock are entitled to one vote
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for each share held. There shall be no cumulative voting.
The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares then outstanding) by the
affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote, irrespective of the provisions of Section
242(b)(2) of the General Corporation Law of the State of Delaware.
3. Dividends. Dividends may be declared and paid on the Common Stock
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from funds lawfully available therefor as and when determined by the Board
of Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the
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Corporation, whether voluntary or involuntary, holders of the Common Stock
will be entitled to receive all of the assets of the Corporation available
for distribution to its stockholders, subject to any preferential rights of
any then outstanding Preferred Stock.
B. Preferred Stock.
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Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated or expressed herein and in
the resolution or resolutions providing for the designation of such series
adopted by the Board of Directors of the Corporation as hereinafter
provided. Any shares of Preferred Stock which may be redeemed, purchased or
acquired by the Corporation may be reissued except as otherwise provided by
law or this Amended and Restated Certificate of Incorporation. Different
series of Preferred Stock shall not be construed to constitute different
classes of shares for the purposes of voting by classes unless expressly
provided.
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Authority is hereby expressly granted to the Board of Directors from
time to time to designate the Preferred Stock in one or more series, and in
connection with the designation of any such series, by resolution providing
for the issue of the shares thereof, to determine and fix such voting
powers, full or limited, or no voting powers, and such designations,
preferences and relative participating, optional or other special rights,
and qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, conversion rights, redemption
privileges and liquidation preferences, as shall be stated and expressed in
such resolutions, all to the full extent now or hereafter permitted by the
General Corporation Law of the State of Delaware. Without limiting the
generality of the foregoing, the resolutions providing for designation of
any series of Preferred Stock may provide that such series shall be
superior or rank equally or be junior to the Preferred Stock of any other
series to the extent permitted by law and this Amended and Restated
Certificate of Incorporation. Except as otherwise provided in this Amended
and Restated Certificate of Incorporation, no vote of the holders of the
Preferred Stock or Common Stock shall be a prerequisite to the designation
or issuance of any shares of any series of the Preferred Stock authorized
by and complying with the conditions of this Amended and Restated
Certificate of Incorporation, the right to have such vote being expressly
waived by all present and future holders of the capital stock of the
Corporation.
FIFTH. The Corporation shall have perpetual existence.
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SIXTH. In furtherance of and not in limitation of powers conferred by
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statute, it is further provided:
1. Election of directors need not be by written ballot.
2. The Board of Directors of the Corporation shall have the power to
adopt, amend or repeal the Bylaws of the Corporation.
SEVENTH. Whenever a compromise or arrangement is proposed between this
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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 of 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 of 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 Delaware Code 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 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 of
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
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stockholders or class of stockholders, of this Corporation, as the case may
be, and also on this Corporation.
EIGHTH. No Director of the Corporation shall have personal liability
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arising out of an action whether by or in the right of the Corporation or
otherwise for monetary damages for breach of fiduciary duty as a Director;
provided, however, that the foregoing shall not eliminate or limit the
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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 Section 174 of the General Corporation Law of
the State of Delaware or any successor provision; (iv) for any transaction
from which such Director derived an improper personal benefit; or (v) for
acts or omissions occurring prior to the date of the effectiveness of this
provision.
Furthermore, notwithstanding the foregoing provision, in the event
that the General Corporation Law of the State of Delaware is amended or
enacted to permit further elimination or limitation of the personal
liability of a Director, the personal liability for the Corporation's
Directors shall be limited or eliminated to the fullest extent permitted by
the applicable law.
This provision shall not affect any provision permitted under the
General Corporation Law of the State of Delaware, in the certificate of
incorporation, bylaws or contract or resolution of the Corporation
indemnifying or agreeing to indemnify a Director of the Corporation against
personal liability. Any repeal or modification of this provision shall not
adversely affect any limitation hereunder on the personal liability of a
Director of the Corporation with respect to acts or omissions occurring
prior to such repeal or modification.
NINTH. The Corporation shall, to the fullest extent permitted by Section
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145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any and
all of the expenses, liabilities or other matters referred to in or covered
by said section, and the indemnification provided for herein shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
Directors or otherwise, both as to action in his or her official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a Director, officer, employee,
or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person. The Corporation shall advance expenses for
the defense of any Director, officer, employee or agent prior to a final
disposition of a claim provided such party executes an undertaking to repay
advances from the Corporation if it is ultimately determined that such
party is not entitled to indemnification. Any repeal or modification of
this Article shall not adversely affect any right or protection existing
hereunder immediately prior to such repeal or modification.
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TENTH. The Corporation reserves the right to amend, alter, change or
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repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and
all rights conferred upon stockholders are herein granted subject to this
reservation.
ELEVENTH. This Article is inserted for the management of the business and
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for the conduct of the affairs of the Corporation.
1. Number of Directors. The number of Directors of the Corporation
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shall not be less than three (3) nor more than fifteen (15). The exact
number of Directors within the limitations specified in the preceding
sentence shall be fixed from time to time by, or in the manner provided in,
the Corporation's Bylaws.
2. Classes of Directors. The Board of Directors shall be and is
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divided into three classes: Class I, Class II and Class III. No one class
shall have more than one Director more than any other class. If a fraction
is contained in the quotient arrived at by dividing the designated number
of directors by three, then, if such fraction is one-third, the extra
Director shall be a member of Class I, and if such fraction is two-thirds,
one of the extra Directors shall be a member of Class I and one of the
extra Directors shall be a member of Class II, unless otherwise provided
from time to time by resolution adopted by the Board of Directors.
3. Terms of Office. Each Director shall serve for a term ending
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on the date of the third annual meeting following the annual meeting at
which such Director was elected; provided, that each initial Director in
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Class I shall serve for a term ending on the date of the annual meeting in
2001; each initial Director in Class II shall serve for a term ending on
the date of the annual meeting in 2002; and each initial Director in Class
III shall serve for a term ending on the date of the annual meeting in
2003; and provided further, that the term of each Director shall be subject
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to the election and qualification of his successor and to his earlier
death, resignation or removal.
4. Allocation of Directors Among Classes in the Event of Increases
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or Decreases in the Number of Directors. In the event of any increases or
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decreases in the authorized number of Directors, (i) each Director then
serving as such shall nevertheless continue as a Director of the class of
which he is a member, and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be apportioned
by the Board of Directors among the three classes of Directors so as to
ensure that no one class has more than one Director more than any other
class. To the extent possible, consistent with the foregoing rule, any
newly created directorships shall be added to those classes whose terms of
office are to expire at the latest dates following such allocation, and any
newly eliminated directorships shall be subtracted from those classes whose
terms of offices are to expire at the earliest dates following such
allocation, unless otherwise provided from time to time by resolution
adopted by the Board of Directors.
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5. Quorum; Action at Meeting. A majority of the Directors at any
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time in office shall constitute a quorum for the transaction of business.
In the event one or more of the Directors shall be disqualified to vote at
any meeting, then the required quorum shall be reduced by one for each
Director so disqualified, provided that in no case shall less than one-
third of the number of Directors fixed pursuant to Section 1 of this
Article constitute a quorum. If at any meeting of the Board of Directors
there shall be less than such a quorum, a majority of those present may
adjourn the meeting from time to time. Every act or decision done or made
by a majority of the Directors present shall be regarded as the act of the
Board of Directors unless a greater number is required by law, by the
Bylaws of the Corporation or by this Amended and Restated Certificate of
Incorporation.
6. Removal. A Director may be removed from office with cause by the
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affirmative vote of at least seventy-five percent (75%) of all eligible
votes present in person or by proxy at a meeting of stockholders at which a
quorum is present. If a Director is elected by a separate voting group,
only the members of that voting group may participate in the vote to remove
him. The entire Board of Directors may not be removed except pursuant to
the removal of individual Directors in accordance with the foregoing
provisions.
For purposes of this Section, "cause" is defined as personal
dishonesty, incompetence, mental or physical incapacity, breach of
fiduciary duty involving personal profit, a failure to perform stated
duties, or a violation of any law, rule or regulation (other than a traffic
violation or similar routine offense) (based on a conviction for such
offense or an opinion of counsel to the Corporation that such violation has
occurred).
7. Vacancies. Any vacancy in the Board of Directors, however
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occurring, including a vacancy resulting from an enlargement of the Board
of Directors, shall be filled only by a vote of a majority of the Directors
then in office, although less than a quorum, or by a sole remaining
Director. A Director elected to fill a vacancy shall be elected to hold
office until the next election of the class for which such Director shall
have been chosen, subject to the election and qualifications of his
successor and to his earlier death, resignation or removal.
8. Stockholder Nominations and Introduction of Business, Etc.
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Advance notice of stockholder nominations for election of Directors and
other business to be brought by stockholders before a meeting of
stockholders shall be given in the manner provided by the Bylaws of the
Corporation.
9. Amendments to Article. Notwithstanding any other provisions of
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law, this Amended and Restated Certificate of Incorporation or the Bylaws
of the Corporation, each as amended, and notwithstanding the fact that a
lesser percentage may be specified by law, the affirmative vote of the
holders of at least seventy-five percent (75%) of the shares of capital
stock of the Corporation issued and outstanding and entitled to vote shall
be required to amend or repeal, or to adopt any provision inconsistent
with, this Article
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Eleventh; provided, however, the provisions of this section 9 of Article
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Eleventh shall not apply, and the provisions of General Corporation Law of
the State of Delaware otherwise applicable shall apply, to an amendment or
repeal approved by the Board of Directors by resolution adopted by a two-
thirds vote of all disinterested Directors then in office.
TWELFTH. Stockholders of the Corporation may not take any action by
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written consent in lieu of a meeting. Notwithstanding any other provisions
of law, this Amended and Restated Certificate of Incorporation or the
Bylaws of the Corporation, each as amended, and notwithstanding the fact
that a lesser percentage may be specified by law, the affirmative vote of
the holders of at least seventy-five percent (75%) of the shares of capital
stock of the Corporation issued and outstanding and entitled to vote shall
be required to amend or repeal, or to adopt any provision inconsistent
with, this Article Twelfth; provided, however, the provisions of this
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Article Twelfth shall not apply, and the provisions of the General
Corporation Law of the State of Delaware otherwise applicable shall apply,
to an amendment or repeal approved by the Board of Directors by resolution
adopted by a two-thirds vote of all disinterested Directors then in office.
THIRTEENTH. Special meetings of the stockholders may be called at any time
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by the Chairman of the Board of Directors, the Chief Executive Officer (or
if there is no Chief Executive Officer, the President) or the Board of
Directors. Business transacted at any special meeting of stockholders
shall be limited to matters relating to the purpose or purposes stated in
the notice of meeting. Notwithstanding any other provision of law, this
Amended and Restated Certificate of Incorporation or the Bylaws of the
Corporation, each as amended, and notwithstanding the fact that a lesser
percentage may be specified by law, the affirmative vote of the holders of
at least seventy-five percent (75%) of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote shall be required
to amend or repeal, or to adopt any provision inconsistent with, this
Article Thirteenth; provided, however, the provisions of this Article
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Thirteenth shall not apply, and the provisions of the General Corporation
Law of the State of Delaware otherwise applicable shall apply, to an
amendment or repeal approved by the Board of Directors by resolution
adopted by a two-thirds vote of all disinterested Directors then in office.
FOURTEENTH. The Board of Directors, when considering a tender offer or
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merger or acquisition proposal, may take into account factors in addition
to potential short-term economic benefits to stockholders of the
Corporation, including without limitation (i) comparison of the proposed
consideration to be received by stockholders in relation to the then
current market price of the Corporation's capital stock, the estimated
current value of the Corporation in a freely negotiated transaction, and
the estimated future value of the Corporation as an independent entity, and
(ii) the impact of such a transaction on the employees, suppliers, and
customers of the Corporation and its effect in the communities in which the
Corporation operates.
FIFTEENTH This Amended and Restated Certificate of Corporation shall be
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effective _______________, 1999.
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IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
hereunto affixed and this certificate to be signed by John R. Plachetka, its
President, who hereby acknowledges under penalties of perjury that the facts
herein stated are true and that this certificate is his act and deed, and
attested by Fred D. Hutchison, its Secretary, this ______ day of _____________,
2000.
POZEN INC.
[CORPORATE SEAL]
By: ____________________________________
John R. Plachetka
President
ATTEST:
By: ____________________________________
Fred D. Hutchison
Secretary
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