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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
LARGE SCALE BIOLOGY CORPORATION
The undersigned, Robert L. Erwin and John S. Rakitan hereby certify
that:
ONE: They are the duly elected, qualified and acting Chief Executive
Officer and Secretary, respectively, of Large Scale Biology Corporation, a
Delaware corporation.
TWO: The original Certificate of Incorporation of Large Scale Biology
Corporation was filed with the Secretary of State of Delaware on August 3, 2000.
THREE: The Amended and Restated Certificate of Incorporation is amended
and restated to read in its entirety as follows:
ARTICLE I
The name of this corporation is Large Scale Biology Corporation
(the "Corporation").
ARTICLE II
The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware 19801. The name of the Corporation's registered agent at such address
is the Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or
promoted 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
A. Classes of Stock. The Corporation is authorized to issue two
classes of stock to be designated, respectively, "Common Stock" and "Preferred
Stock." The total number of shares that the Corporation is authorized to issue
is Seventy Million (70,000,000). Sixty Million (60,000,000) shares shall be
Common Stock, par value $0.001 per share, and Ten Million (10,000,000) shares
shall be Preferred Stock, par value $0.001 per share.
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The Preferred Stock authorized by this Certificate of
Incorporation may be issued from time to time in one or more series, without
further Stockholder approval. The Board of Directors of the Corporation is
hereby authorized to fix or alter the rights, preferences, privileges and
restrictions granted to or imposed upon any series of Preferred Stock, and the
number of shares constituting any such series and the designation thereof, or of
any of them. The rights, privileges, preferences and restrictions of any such
additional series may be subordinated to, pari passu with (including, without
limitation, inclusion in provisions with respect to liquidation and acquisition
preferences, redemption and/or approval of matters by vote), or senior to any of
those of any present or future class or series of Preferred or Common Stock. The
Board of Directors is also authorized to increase or decrease the number of
shares of any series, prior or subsequent to the issue of that series, but not
below the number of shares of such series then outstanding. In case the number
of shares of any series shall be so decreased, the shares constituting such
decrease shall resume the status that they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
ARTICLE V
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind any or all of the Bylaws of the Corporation. 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.
ARTICLE VI
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 stockholder
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 the Corporation.
At each annual meeting of stockholders, directors of the
Corporation shall be elected to hold office and shall serve 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 stockholders' meeting called and held in
accordance with the GCL.
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
was created or occurred and until such director's successor shall have been duly
elected and qualified. A director may be removed from office by the affirmative
vote of the holders of
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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.
ARTICLE VII
Stockholders of the Corporation shall take action by meetings
held pursuant to this Amended and Restated Certificate of Incorporation and the
Bylaws and shall have no right to take any action by written consent without a
meeting. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. Special meetings of the stockholders, for
any purpose or purposes, may only be called by the Chief Executive Officer,
President, Chairman of the Board or a majority of the members of 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.
ARTICLE VIII
To the fullest extent permitted by applicable law, the
Corporation is authorized to provide indemnification of (and advancement of
expenses to) directors, officers, employees and agents (and any other persons to
which Delaware law permits the Corporation to provide indemnification) through
Bylaw provisions, agreements with such agents or other persons, vote of
stockholders or disinterested directors or otherwise, in excess of the
indemnification and advancement otherwise permitted by Section 145 of the GCL,
subject only to limits created by applicable Delaware law (statutory or
non-statutory), with respect to action for breach of duty to the Corporation,
its stockholders, and others.
No director of the Corporation shall be personally liable to the
Corporation or any stockholder for monetary damages for breach of fiduciary duty
as a director, except for any matter in respect of which such director shall be
liable under Section 174 of the GCL or any amendment thereto or shall be liable
by reason that, in addition to any and all other requirements for such
liability, such director (1) shall have breached the director's duty or loyalty
to the Corporation or its stockholders, (2) shall have acted in manner involving
intentional misconduct or a knowing violation of law or, in failing to act,
shall have acted in a manner involving intentional misconduct or a knowing
violation of law, or (3) shall have derived an improper personal benefit. If the
GCL is hereafter amended to authorize the further elimination or limitation of
the liability of a director, the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the GCL, as so
amended.
Each person who was or is made a party or is threatened to be
made a party to or is in any way involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), including any appeal therefrom, by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or a direct
or indirect subsidiary of the Corporation, or is or was serving at the request
of the Corporation as a director or officer of another entity or enterprise, or
was a director or officer of a foreign or domestic
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corporation which was predecessor corporation of the Corporation or of another
entity or enterprise at the request of such predecessor corporation, shall be
indemnified and held harmless by the Corporation, and the Corporation shall
advance all expenses incurred by any such person in defense of any such
proceeding prior to its final determination, to the fullest extent authorized by
the GCL. In any proceeding against the Corporation to enforce these rights, such
person shall be presumed to be entitled to indemnification and the Corporation
shall have the burden of proving that such person has not met the standards of
conduct for permissible indemnification set forth in the GCL. The rights to
indemnification and advancement of expenses conferred by this Article VIII shall
be presumed to have been relied upon by the directors and officers of the
Corporation in serving or continuing to serve the Corporation and shall be
enforceable as contract rights. Said rights shall not be exclusive of any other
rights to which those seeking indemnification may otherwise be entitled. The
Corporation may, upon written demand presented by a director or officer of the
Corporation or of a direct or indirect subsidiary of the Corporation, or by a
person serving at the request of the Corporation as a director or officer of
another entity or enterprise, enter into contracts to provide such persons with
specified rights to indemnification, which contracts may confer rights and
protections to the maximum extent permitted by the GCL, as amended and in effect
from time to time.
If a claim under this Article VIII is not paid in full by the
Corporation within sixty (60) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expenses of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce the right to be advanced expenses incurred in
defending any proceeding prior to its final disposition where the required
undertaking, if any, has been tendered to the Corporation ) that the claimant
has not met the standards of conduct which make it permissible under the GCL for
the Corporation to indemnify the claimant for the amount claimed, but the
claimant shall be presumed to be entitled to indemnification and the Corporation
shall have the burden of proving that the claimant has not met the standards of
conduct for permissible indemnification set forth in the GCL.
If the GCL is hereafter amended to permit the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment, the indemnification rights conferred by this
Article VIII shall be broadened to the fullest extent permitted by the GCL, as
so amended.
ARTICLE IX
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 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 and IX of this Amended and Restated Certificate of
Incorporation may not be
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repealed or amended in any respect without the affirmative vote of holders at
least 66-2/3% of the outstanding voting stock of the Corporation entitled to
vote at election of directors.
FOUR: The foregoing amendment and restatement has been duly
adopted in accordance with the provisions of Sections 242 and 245 of the GCL by
the directors and stockholders of the Corporation.
FIVE: The foregoing amendment and restatement was approved by
the holders of the requisite number of shares of the Corporation in accordance
with Section 228 of the GCL.
IN WITNESS WHEREOF, the undersigned have executed this
certificate on August ___, 2000.
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Robert L. Erwin
Chief Executive Officer, President
and Chairman of the Board
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John S. Rakitan
Secretary, General Counsel,
Senior Vice President
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