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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ALIGN TECHNOLOGY, INC.
ZIA CHISHTI hereby certifies that:
ONE: The present name of this corporation is ALIGN TECHNOLOGY, INC. (the
"Corporation"), which is the name under which the Corporation was originally
incorporated; and the date of filing of the original Certificate of
Incorporation of the Corporation with the Secretary of State of the State of
Delaware is April 3, 1997.
TWO: He is the duly elected and acting Chief Executive Officer of the
Corporation.
THREE: The Amended and Restated Certificate of Incorporation of the
Corporation is hereby amended and restated to read in full as follows:
I.
NAME
The name of the corporation is Align Technology, Inc.
II.
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is:
9 East Loockerman Street
City of Dover
County of Kent
Delaware 19901
The name of the Corporation's registered agent at said address is National
Registered Agents, Inc.
III.
POWERS/TERM
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware. The Corporation is to have perpetual existence.
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IV.
CAPITAL STOCK
A. Classes of Stock. This 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 Two
Hundred Five Million (205,000,000) shares, Two Hundred Million (200,000,000)
shares of which shall be Common Stock (the "Common Stock") and Five Million
(5,000,000) shares of which shall be Preferred Stock (the "Preferred Stock").
The Common Stock shall have a par value of one-hundredth of one cent ($0.0001)
per share and the Preferred Stock shall have a par value of one-hundredth of one
cent ($0.0001) per share.
B. Preferred Stock. The Preferred Stock may be issued from time to time
in one or more series. The Board of Directors is hereby authorized to provide
for the issuance of shares of Preferred Stock in one or more series and, by
filing a certificate pursuant to the applicable law of the State of Delaware
(the "Preferred Stock Designation"), 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 and restrictions thereof. The authority of the
Board of Directors with respect to each series shall include, but not be limited
to, determination of the following:
(1) The designation of the series, which may be by distinguishing
number, letter or title.
(2) The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding).
(3) The amounts payable on, and the preferences, if any, of shares of
the series in respect of dividends, and whether such dividends, if any, shall be
cumulative or noncumulative.
(4) Dates at which dividends, if any, shall be payable.
(5) The redemption rights and price or prices, if any, for shares of
the series.
(6) The terms and amount of any sinking funds provided for the
purchase or redemption of shares of the series.
(7) The amounts payable on, and the preferences, if any, of shares of
the series in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation.
(8) Whether the shares of the series shall be convertible into or
exchangeable for shares of any other class or series, or any other security, of
the Corporation or any other corporation, and, if so, the specification of such
other class or series or such other security, the conversion or exchange price
or prices or rate or rates, any adjustments thereof, the date or dates
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at which such shares shall be convertible or exchangeable and all other terms
and conditions upon which such conversion or change may be made.
(9) Restrictions on the issuance of shares of the same series or of
any other class or series.
(10) The voting rights, if any, of the holders of shares of the
series.
C. Common Stock; Voting. The Common Stock shall be subject to the
express terms of the Preferred Stock and any series thereof. Except as may
otherwise be provided in this Certificate of Incorporation, in a Preferred Stock
Designation or by applicable law, the holders of shares of Common Stock shall be
entitled to one vote for each such share upon all questions presented to the
stockholders, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes, and holders of Preferred Stock
shall not be entitled to vote at or receive notice of any meeting of
stockholders.
The number of shares of authorized Common Stock may be increased or
decreased (but not below the number then outstanding) by the affirmative vote of
the holders of a majority in voting power of the outstanding shares of capital
stock of the Corporation entitled to vote thereon, voting together as a single
class notwithstanding the provisions of Section 242(b)(2) of the General
Corporation Law of the State of Delaware.
The Corporation shall be entitled to treat the person in whose name any
share of its stock 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 on the part of any other person whether or not the Corporation shall have
notice thereof, except as expressly provided by applicable law.
V.
DIRECTORS
The number of directors of the Corporation shall be determined by
resolution of the Board of Directors.
Elections of directors need not be by written ballot unless the Bylaws of
the Corporation shall so provide. Advance notice of stockholders nominations
for the election of directors and of any other business to be brought before any
meeting of the stockholders shall be given in the manner provided in the Bylaws
of this Corporation.
At each annual meeting of stockholders, directors of the Corporation shall
be elected to hold office until the expiration of the term for which they are
elected, or until their successors have been duly elected and qualified; except
that if any such election shall not be so held, such election shall take place
at a stockholder's meeting called and held in accordance with the General
Corporation Law of the State of Delaware.
Vacancies occurring on the Board of Directors for any reason may be filled
by vote of a majority of the remaining members of the Board of Directors, even
if less than a quorum, at any meeting of the Board of Directors. A person so
elected by the Board of Directors to fill a vacancy shall hold office for the
remainder of the full term of the director for which the vacancy
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was created or occurred and until such director's successor shall have been duly
elected and qualified. A director or the entire Board of Directors may be
removed from office at any time by the affirmative vote of at least sixty-six
and two-thirds percent (66 2/3%) of the outstanding shares of voting stock of
the Corporation entitled to vote at an election of directors, provided that such
removal is for cause.
VI.
STOCKHOLDER MEETINGS
Meetings of stockholders may be held within or without the State of
Delaware, as the bylaws may provide. Special meetings of stockholders for any
purpose may be called only by the Board of Directors. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
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 bylaws of the Corporation. The
stockholders of the Corporation may not take any action by written consent in
lieu of a meeting.
VII.
LIMITATION OF DIRECTORS' LIABILITY
A director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is not
permitted under the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended. Any amendment, modification or repeal of
the foregoing sentence shall not adversely affect any right or protection of a
director of the Corporation hereunder in respect of any act or omission
occurring prior to the time of such amendment, modification or repeal. If the
General Corporation Law of the State of Delaware is amended after approval by
the stockholders of this ARTICLE VII to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of the State of Delaware, as so amended.
VIII.
INDEMNIFICATION
A. Right to Indemnification. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person (a "Covered Person") who was or
is made or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), by reason of the fact that he is or was or has
agreed to become, or a person for whom he is the legal representative, is or was
or has agreed to become a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys' fees) reasonably incurred
by such Covered Person. Notwithstanding the preceding sentence, except as
otherwise provided in this Article VIII, the
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Corporation shall be required to indemnify a Covered Person in connection with a
proceeding (or part thereof) commenced by such Covered Person only if the
commencement of such proceeding (or part thereof) by the Covered Person was
authorized by the Board of Directors of the Corporation. The rights to
indemnification provided herein shall continue with respect to a Covered Person
notwithstanding that such Covered Person ceases to be a director, officer or
other employee or agent of the Corporation.
B. Prepayment of Expenses. The Corporation shall pay the expenses
(including attorneys' fees) incurred by a Covered Person in defending any
proceeding in advance of its final disposition, provided, however, that, to the
extent required by law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the Covered Person to repay all amounts advanced if it should be ultimately
determined that the Covered Person is not entitled to be indemnified under this
Article VIII or otherwise.
C. Claims. If a claim for indemnification or advancement of expenses
under this Article VIII is not paid in full within sixty (60) days after a
written claim therefor by the Covered Person has been received by the
Corporation, the Covered Person may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the Corporation shall
have the burden of proving that the Covered Person is not entitled to the
requested indemnification or advancement of expenses under applicable law.
D. Nonexclusivity of Rights. The rights conferred on any Covered Person
by this Article VIII shall not be exclusive of any other rights which such
Covered Person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, the bylaws, agreement, vote of stockholders or
disinterested directors or otherwise. The Corporation may, to the extent
authorized from time to time by its Board of Directors, grant indemnification
rights to other employees or agents of the Corporation or other persons serving
the Corporation and such rights may be equivalent to, or greater or less than,
those provided herein.
E. Other Sources. The Corporation's obligation, if any, to indemnify or
to advance expenses to any Covered Person who was or is serving at its request
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, enterprise or nonprofit entity shall be reduced by any
amount such Covered Person may collect as indemnification or advancement of
expenses from such other corporation, partnership, joint venture, trust,
enterprise or non-profit enterprise. The Corporation shall have the power to
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 a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against and incurred by such person in any such
capacity, or arising out of such person's status as such.
F. Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article VIII shall not adversely affect any right or
protection hereunder of any Covered Person in respect of any act or omission
occurring prior to the time of such repeal or modification.
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G. Other Indemnification and Prepayment of Expenses. This Article VIII
shall not limit the right to the Corporation to the extent and in the manner
permitted by law, to indemnify and to advance expenses to persons other than
Covered Persons when and as authorized by appropriate corporate action.
IX.
AMENDMENT OF BYLAWS
In furtherance of and not in limitation of powers conferred by statute, the
Board of Directors of the Corporation is expressly authorized to adopt, repeal,
alter, amend and rescind the bylaws of the Corporation by vote of a majority of
the Board of Directors. In addition, the bylaws may be amended by the
affirmative vote of holders of at least sixty-six and two-thirds percent (66
2/3%) of the outstanding shares of voting stock of the Corporation entitled to
vote at an election of directors.
X.
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute and this Amended and
Restated Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation. Notwithstanding
the foregoing, the provisions set forth in Articles V, VI, VII, VIII, IX and X
of this Amended and Restated Certificate of Incorporation may not be repealed or
amended in any respect without the affirmative vote of holders at least sixty-
six and two-thirds percent (66-2/3%) of the outstanding voting stock of the
Corporation entitled to vote at an election of directors.
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FOUR: That the foregoing Amended and Restated Certificate of Incorporation
of the Corporation has been duly adopted in accordance with Sections 242 and 245
of the General Corporation Law of the State of Delaware by the directors and
stockholders of the Corporation.
FIVE: That the foregoing Amended and Restated Certificate of Incorporation
of the Corporation was approved by the holders of the requisite number of shares
of the Corporation, and written notice was given, in accordance with Section 228
of the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
has been signed this __ day of December, 2000.
ALIGN TECHNOLOGY, INC.
By: ____________________________________
Zia Chishti, Chief Executive Officer
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