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Exhibit 3.1
ARTICLES OF INCORPORATION
of
INSMED, INC.
ARTICLE I
The name of the Corporation shall be Insmed, Inc.
ARTICLE II
The purpose for which the Corporation is formed is to transact any or all
lawful business, not required to be specifically stated in these Articles of
Incorporation, for which corporations may be incorporated under the Virginia
Stock Corporation Act, as amended from time to time, and any legislation
succeeding thereto (the "VSCA").
ARTICLE III
The aggregate number of shares that the Corporation shall have authority to
issue shall be 200,000,000 shares of Preferred Stock, par value $.01 per share
(hereinafter called "Preferred Stock"), and 500,000,000 shares of Common Stock,
par value $.01 per share (hereinafter called "Common Stock"). The following is
a description of each of such classes of stock, and a statement of the
preferences, limitations, voting rights and relative rights in respect of the
shares of each such class:
1. Authority to Fix Rights of Preferred Stock. The Board of Directors shall
have authority, by resolution or resolutions, at any time and from time to time
to divide and establish any or all of the unissued shares of Preferred Stock
not then allocated to any series of Preferred Stock into one or more series,
and, without limiting the generality of the foregoing, to fix and determine the
designation of each such series, the number of shares that shall constitute
such series and the following relative rights and preferences of the shares of
each series so established:
(a) The annual or other periodic dividend rate payable on shares of such
series, the time of payment thereof, whether such dividends shall be
cumulative or non-cumulative, and the date or dates from which any
cumulative dividends shall commence to accrue;
(b) the price or prices at which and the terms and conditions, if any, on
which shares of such series may be redeemed;
(c) the amounts payable upon shares of such series in the event of the
voluntary or involuntary dissolution, liquidation or winding-up of the
affairs of the Corporation;
(d) the sinking fund provisions, if any, for the redemption or purchase of
shares of such series;
(e) the extent of the voting powers, if any, of the shares of such series;
(f) the terms and conditions, if any, on which shares of such series may be
converted into shares of stock of the Corporation of any other class or
classes or into shares of any other series of the same or any other
class or classes;
(g) whether, and if so the extent to which, shares of such series may
participate with the Common Stock in any dividends in excess of the
preferential dividend fixed for shares of such series or in
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any distribution of the assets of the Corporation, upon a liquidation,
dissolution or winding-up thereof, in excess of the preferential amount
fixed for shares of such series; and
(h) any other preferences and relative, optional or other special rights,
and qualifications, limitations or restrictions of such preferences or
rights, of shares of such series not fixed and determined by law or in
this Article III.
2. Distinctive Designations of Series. Each series of Preferred Stock shall
be so designated as to distinguish the shares thereof from the shares of all
other series. Different series of Preferred Stock shall not be considered to
constitute different voting groups of shares for the purpose of voting by
voting groups except as required by the VSCA or as otherwise specified by the
Board of Directors with respect to any series at the time of the creation
thereof.
3. Restrictions on Certain Distributions. So long as any shares of Preferred
Stock are outstanding, the Corporation shall not declare and pay or set apart
for payment any dividends (other than dividends payable in Common Stock or
other stock of the Corporation ranking junior to the Preferred Stock as to
dividends) or make any other distribution on such junior stock if, at the time
of making such declaration, payment or distribution, the Corporation shall be
in default with respect to any dividend payable on, or any obligation to
redeem, any shares of Preferred Stock.
4. Redeemed or Reacquired Shares. Shares of any series of Preferred Stock
that have been redeemed or otherwise reacquired by the Corporation (whether
through the operation of a sinking fund, upon conversion or otherwise) shall
have the status of authorized and unissued shares of Preferred Stock and may be
redesignated and reissued as a part of such series (unless prohibited by the
articles of amendment creating such series) or of any other series of Preferred
Stock. Shares of Common Stock that have been reacquired by the Corporation
shall have the status of authorized and unissued shares of Common Stock and may
be reissued.
5. Voting Rights. Subject to the provisions of the VSCA or of the Bylaws of
the Corporation as from time to time in effect with respect to the closing of
the transfer books or the fixing of a record date for the determination of
shareholders entitled to vote, and except as otherwise provided by the VSCA or
in resolutions of the Board of Directors establishing any series of Preferred
Stock pursuant to the provisions of paragraph 1 of this Article III, the
holders of outstanding shares of Common Stock of the Corporation shall
exclusively possess voting power for the election of directors and for all
other purposes, with each holder of record of shares of Common Stock of the
Corporation being entitled to one vote for each share of such stock standing in
his name on the books of the Corporation.
6. No Preemptive Rights. No holder of shares of stock of any class of the
Corporation shall, as such holder, have any right to subscribe for or purchase
(a) any shares of stock of any class of the Corporation, or any warrants,
options or other instruments that shall confer upon the holder thereof the
right to subscribe for or purchase or receive from the Corporation any shares
of stock of any class, whether or not such shares of stock, warrants, options
or other instruments are issued for cash or services or property or by way of
dividend or otherwise, or (b) any other security of the Corporation that shall
be convertible into, or exchangeable for, any shares of stock of the
Corporation of any class or classes, or to which shall be attached or
appurtenant any warrant, option or other instrument that shall confer upon the
holder of such security the right to subscribe for or purchase or receive from
the Corporation any shares of its stock of any class or classes, whether or not
such securities are issued for cash or services or property or by way of
dividend or otherwise, other than such right, if any, as the Board of
Directors, in its sole discretion, may from time to time determine. If the
Board of Directors shall offer to the holders of shares of stock of any class
of the Corporation, or any of them, any such shares of stock, options,
warrants, instruments or other securities of the Corporation, such offer shall
not, in any way, constitute a waiver or release of the right of the Board of
Directors subsequently to dispose of other securities of the Corporation
without offering the same to said holders.
7. Control Share Acquisition Statute. The provisions of Article 14.1 of the
VSCA shall not apply to acquisitions of shares of any class of capital stock of
the Corporation.
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ARTICLE IV
1. The number of directors shall be as specified in the By-laws of the
Corporation but such number may be increased or decreased from time to time in
such manner as may be prescribed in the By-laws, provided that in no event
shall the number of directors exceed twelve. In the absence of a By-law
specifying the number of directors, the number shall be seven. Commencing with
the 2000 annual meeting of shareholders (or by unanimous written consent in
lieu thereof), the Board of Directors shall be divided into three classes,
Class I, Class II, and Class III, as nearly equal in number as possible. The
initial term of each class of directors shall expire at the annual meeting of
shareholders to be held in the following years: Class I--2001; Class II--2002;
and Class III--2003. At each annual meeting of shareholders after the 2000
annual meeting of shareholders, the successors to the class of directors whose
term shall then expire shall be identified as being of the same class of
directors they succeed and shall be elected to hold office for a term expiring
at the third succeeding annual meeting of shareholders. When the number of
directors is changed, any newly-created directorships or any decrease in
directorships shall be so apportioned among the classes by the Board of
Directors as to make all classes as nearly equal in number as possible;
provided, however, that no decrease in the number of directors shall shorten or
terminate the term of any incumbent director.
2. Subject to the rights of the holders of any Preferred Stock then
outstanding, directors may be removed only with cause and only by the
affirmative vote of at least 75 percent of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors ("Voting Stock"), voting together as a
single voting group.
3. Subject to the rights of the holders of any Preferred Stock then
outstanding and to any limitations set forth in the VSCA, newly-created
directorships resulting from any increase in the number of directors and any
vacancies in the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled solely (i) by the
Board of Directors or (ii) at an annual meeting of shareholders by the
shareholders entitled to vote on the election of directors. If the directors
remaining in office constitute fewer than a quorum of the Board, they may fill
the vacancy by the affirmative vote of a majority of the directors remaining in
office.
4. Notwithstanding any other provision of the Articles of Incorporation or
any provision of law that might otherwise permit a lesser vote, but in addition
to any affirmative vote of the holders of any particular voting group required
by the VSCA, the Articles of Incorporation or the terms of any Preferred Stock
outstanding, the affirmative vote of at least 75 percent of the voting power of
the then outstanding Voting Stock, voting together as a single voting group
shall be required to alter, amend, repeal or adopt any provision inconsistent
with any provision of this Article IV.
ARTICLE V
Except as expressly otherwise required in the Articles of Incorporation, an
amendment or restatement of the Articles of Incorporation requiring shareholder
approval shall be approved by a majority of the votes entitled to be cast by
each voting group that is entitled to vote on the matter, unless in submitting
any such amendment or restatement to the shareholders the Board of Directors
shall require a greater vote.
ARTICLE VI
1. Every person who is or was a director, officer or employee of the
Corporation, or who, at the request of the Corporation, serves or has served in
any such capacity with another corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise shall be indemnified by the
Corporation against any and all liability and reasonable expense that may be
incurred by him in connection with or resulting from any claim, action or
proceeding (whether brought in the right of the Corporation or any such other
corporation,
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entity, plan or otherwise), in which he may become involved, as a party or
otherwise, by reason of his being or having been a director, officer or
employee of the Corporation, or such other corporation, entity or plan while
serving at the request of the Corporation, whether or not he continues to be
such at the time such liability or expense is incurred, unless such person
engaged in willful misconduct or a knowing violation of the criminal law.
As used in this Article VI: (a) the terms "liability" and "expense" shall
include, but shall not be limited to, counsel fees and disbursements and
amounts of judgments, fines or penalties against, and amounts paid in
settlement by, a director, officer or employee; (b) the terms "director,"
"officer" and "employee," unless the context otherwise requires, include the
estate or personal representative of any such person; (c) a person is
considered to be serving an employee benefit plan as a director, officer or
employee of the plan at the Corporation's request if his duties to the
Corporation also impose duties on, or otherwise involve services by, him to the
plan or, in connection with the plan, to participants in or beneficiaries of
the plan; (d) the term "occurrence" means any act or failure to act, actual or
alleged, giving rise to a claim, action or proceeding; and (e) service as a
trustee or as a member of a management or similar committee of a partnership,
joint venture or limited liability company shall be considered service as a
director, officer or employee of the trust, partnership, joint venture or
limited liability company.
The termination of any claim, action or proceeding, civil or criminal, by
judgment, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that a director, officer or employee
did not meet the standards of conduct set forth in this paragraph 1. The burden
of proof shall be on the Corporation to establish, by a preponderance of the
evidence, that the relevant standards of conduct set forth in this paragraph 1
have not been met.
2. Any indemnification under paragraph 1 of this Article VI shall be made
unless (a) the Board, acting by a majority vote of those directors who were
directors at the time of the occurrence giving rise to the claim, action or
proceeding involved and who are not at the time parties to such claim, action
or proceeding (provided there are at least five such directors), finds that the
director, officer or employee has not met the relevant standards of conduct set
forth in such paragraph 1, or (b) if there are not at least five such
directors, the Corporation's principal Virginia legal counsel, as last
designated by the Board as such prior to the time of the occurrence giving rise
to the claim, action or proceeding involved, or in the event for any reason
such Virginia counsel is unwilling to so serve, then Virginia legal counsel
mutually acceptable to the Corporation and the person seeking indemnification,
deliver to the Corporation their written advice that, in their opinion, such
standards have not been met.
3. Expenses incurred with respect to any claim, action or proceeding of the
character described in paragraph 1 shall, except as otherwise set forth in this
paragraph 3, be advanced by the Corporation prior to the final disposition
thereof upon receipt of an undertaking by or on behalf of the recipient to
repay such amount if it is ultimately determined that he is not entitled to
indemnification under this Article VI. No security shall be required for such
undertaking and such undertaking shall be accepted without reference to the
recipient's final ability to make repayment. Notwithstanding the foregoing, the
Corporation may refrain from, or suspend, payment of expenses in advance if at
any time before delivery of the final finding described in paragraph 2, the
Board or Virginia legal counsel, as the case may be, acting in accordance with
the procedures set forth in paragraph 2, find by a preponderance of the
evidence then available that the officer, director or employee has not met the
relevant standards of conduct set forth in paragraph 1.
4. No amendment or repeal of this Article VI shall adversely affect or deny
to any director, officer or employee the rights of indemnification provided in
this Article VI with respect to any liability or expense arising out of a
claim, action or proceeding based in whole or substantial part on an occurrence
the inception of which takes place before or while this Article VI, as set
forth in these Articles of Incorporation, is in effect. The provisions of this
paragraph 4 shall apply to any such claim, action or proceeding whenever
commenced, including any such claim, action or proceeding commenced after any
amendment or repeal to this Article VI.
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5. The rights of indemnification provided in this Article VI shall be in
addition to any rights to which any such director, officer or employee may
otherwise be entitled by contract or as a matter of law.
6. In any proceeding brought by or in the right of the Corporation or
brought by or on behalf of shareholders of the Corporation, no director or
officer of the Corporation shall be liable to the Corporation or its
shareholders for monetary damages with respect to any transaction, occurrence
or course of conduct, whether prior or subsequent to the effective date of this
Article VI, except for liability resulting from such person's having engaged in
willful misconduct or a knowing violation of the criminal law or any federal or
state securities law.
ARTICLE VII
In furtherance of, and not in limitation of, the powers conferred by the
VSCA, the Board of Directors is expressly authorized and empowered to adopt,
amend or repeal the Bylaws of the Corporation; provided, however, that the
Bylaws adopted by the Board of Directors under the powers hereby conferred may
be altered, amended or repealed by the Board of Directors or by the
shareholders having voting power with respect thereto, provided further that,
in the case of any such action by shareholders, the affirmative vote of the
holders of at least 75 percent of the voting power of the then outstanding
Voting Stock, voting together as a single voting group, shall be required in
order for the shareholders to alter, amend or repeal any provision of the
Bylaws or to adopt any additional Bylaw. Notwithstanding any other provision of
the Articles of Incorporation or any provision of law that might otherwise
permit a lesser vote, but in addition to any affirmative vote of the holders of
any particular voting group required by the VSCA, the Articles of Incorporation
or the terms of any Preferred Stock outstanding, the affirmative vote of at
least 75 percent of the voting power of the then outstanding Voting Stock,
voting together as a single voting group, shall be required to alter, amend,
repeal or adopt any provision inconsistent with any of the provisions of this
Article VII.
ARTICLE VIII
The initial registered office shall be located at 951 E. Byrd Street,
Riverfront Plaza, East Tower, in the City of Richmond, Virginia, and the
initial registered agent shall be T. Justin Moore, III, who is a resident of
Virginia and a member of the Virginia State Bar, and whose business address is
the same as the address of the initial registered office.
/s/ T. Justin Moore, III
By: _________________________________
T. Justin Moore, III
Incorporator
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ARTICLES OF AMENDMENT
of the
ARTICLES OF INCORPORATION
of
INSMED, INC.
These Articles of Amendment are filed in accordance with Section 13.1-710
of the Virginia Stock Corporation Act:
A. The name of the corporation (which is hereinafter referred to as the
"Corporation") is Insmed, Inc.
B. The amendment to the Corporation's Articles of Incorporation adopted on
March 13, 2000 by written consent of the Corporation's sole shareholder is as
follows:
1. "ARTICLE I" of said Articles of Incorporation is deleted and is replaced
by the following to change the name of the Corporation to Insmed
Incorporated:
"ARTICLE I
The name of the Corporation shall be Insmed Incorporated."
. The amendment was adopted by the written consent of the Corporation's
sole shareholder.
Insmed, Inc.
/s/ Michael D. Baer
By: ______________________________
Michael D. Baer
Chief Financial Officer
Dated: March 13, 2000
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Articles of Amendment
to the
Articles of Incorporation, as amended,
of
INSMED INCORPORATED
I.
The name of the corporation is Insmed Incorporated (the "Company").
II.
Article III of the Company's Articles of Incorporation, as amended, shall be
amended by the addition of the following additional paragraph after the last
paragraph of that Article III:
8. Reverse Stock Split. Simultaneously with the effective date of this
amendment (the "Effective Time"), each four shares of the Company's Common
Stock, par value $.01 per share, issued and outstanding immediately prior to the
Effective Time (the "Old Common Stock") shall, automatically and without any
action on the part of the holder thereof, be reclassified as and changed,
pursuant to a reverse stock split (the "Reverse Split"), into one share of the
Company's outstanding Common Stock (the "New Common Stock"), subject to the
treatment of fractional share interests as described below. Each holder of a
certificate or certificates which immediately prior to the Effective Time
represented outstanding shares of Old Common Stock (the "Old Certificates,"
whether one or more) shall be entitled to receive upon surrender of such Old
Certificates to the Company's Transfer Agent for cancellation, a certificate or
certificates (the "New Certificates," whether one or more) representing the
number of whole shares of the New Common Stock into and for which the shares of
the Old Common Stock formerly represented by such Old Certificates so
surrendered, are reclassified under the terms hereof. From and after the
Effective Time, Old Certificates shall thereupon be deemed for all corporate
purposes to evidence ownership of New Common Stock in the appropriately reduced
whole number of shares. No certificates or scrip representing fractional share
interests in New Common Stock will be issued, and no such fractional share
interest will entitle the holder thereof to vote, or to any rights of a
shareholder of the Company. In lieu of any fraction of a share of New Common
Stock to which the holder would otherwise be entitled, the holder will receive a
cash payment in U.S. dollars equal to such fraction multiplied by four times the
average of the closing bid and ask price per share of Common Stock as quoted on
The Nasdaq SmallCap Market for the five trading days immediately preceding the
Effective Time. If more than one Old Certificate shall be surrendered at one
time for the account of the same shareholder, the number of full shares of New
Common Stock for which New Certificates shall be issued shall be computed on the
basis of the aggregate number of shares represented by the Old Certificates so
surrendered. In the event that the Company's Transfer Agent determines that a
holder of Old Certificates has not surrendered all his certificates for
exchange, the Transfer Agent shall carry forward any fractional share until all
certificates of that holder have been presented for exchange such that payment
for fractional shares to any one person shall not exceed the value of one share.
If any New Certificate is to be issued in a name other than that in which it was
issued, the Old Certificates so surrendered shall be properly endorsed and
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otherwise in proper form for transfer, and the stock transfer tax stamps to the
Old Certificates so surrendered shall be properly endorsed and otherwise in
proper form for transfer, and the person or persons requesting such exchange
shall affix any requisite stock transfer tax stamps to the Old Certificates
surrendered, or provide funds for their purchase, or establish to the
satisfaction of the Transfer Agent that such taxes are not payable. From and
after the Effective Time, the amount of capital shall be represented by the
shares of the New Common Stock into which and for which the shares of the Old
Common Stock are reclassified, until thereafter reduced or increased in
accordance with applicable law. All references elsewhere in the Articles of
Incorporation, as amended, to the "Common Stock" shall, after the Effective
Time, refer to the "New Common Stock".
III.
The amendment was proposed by the board of directors and submitted to
the shareholders of the Company in accordance with Chapter 9 of Title 13.1 of
the Code of Virginia. The designation, number of outstanding shares, and number
of votes entitled to be cast by each voting group entitled to vote separately on
the amendment are as follows:
Designation Number of Outstanding Shares Number of Votes
----------- ---------------------------- ---------------
Common 108,127,568 108,127,568
The total number of undisputed votes cast for the amendment by each
voting group was as follows:
Designation Number of Undisputed Votes for the Amendment
----------- --------------------------------------------
Common 93,583,881
The number of votes cast for the amendment by each voting group was
sufficient for approval by that voting group.
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IV.
Pursuant to Section 13.1-606 of the Virginia Stock Corporation Act, the
effective time and date of this Amendment to the Company's Articles of
Incorporation, as amended, shall be 11:59 p.m. on July 28, 2000.
INSMED INCORPORATED
Dated: July 28, 2000 By: /s/ Geoffrey Allan
------------------------------------------
Geoffrey Allan, Ph.D.
Chairman of the Board, President and Chief
Executive Officer
