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EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GENAISSANCE PHARMACEUTICALS, INC.
I, Gualberto Ruano, President of Genaissance Pharmaceuticals, Inc.,
a corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, do hereby certify as follows:
A. The original Certificate of Incorporation of Genaissance
Pharmaceuticals, Inc. (the "Corporation") was filed in the Office of the
Secretary of State of the State of Delaware on February 24, 1992 under the
name "BIOS Laboratories, Inc." and was amended by: (i) Certificates of
Amendment on August 29, 1994; March 18, 1997; August 13, 1997; December 22,
1997; August 24, 1998; February 17, 2000; March 8, 2000; and March 10, 2000;
(ii) a Certificate of Designations on December 22, 1997, which was amended on
August 24, 1998, February 17, 2000 and March 10, 2000; (iii) a Certificate of
Designations on August 24, 1998 which was amended on February 17, 2000; (iv)
a Certificate of Designations on February 17, 2000 which was amended on March
8, 2000 and March 10, 2000; and (v) a Certificate of Designations on March
10, 2000.
B. In the manner prescribed by Sections 242 and 245 of the General
Corporation Law of the State of Delaware, this Amended and Restated
Certificate of Incorporation was duly adopted by the Board of Directors and
stockholders of the Company.
C. The text of the Certificate of Incorporation of the Company is
further amended and restated to read in full as follows:
FIRST: The name of the Corporation is Genaissance Pharmaceuticals,
Inc.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, in the City of Wilmington, New
Castle County, Delaware. The name of its registered agent at such address is
The Corporation Trust Company.
THIRD: 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 Delaware.
FOURTH: The Corporation shall be authorized to issue sixty-one
million (61,000,000) shares of capital stock, which shall be divided into
fifty-eight million (58,000,000) shares of Common Stock, par value $0.001 per
share (the "Common Stock"), two million (2,000,000) shares of non-voting
common stock, par value $0.001 per share (the "Non-Voting Common Stock") and
one million (1,000,000) shares of Preferred Stock, par value $0.001 per share
(the "Preferred Stock").
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The following is a statement of the designations, preferences,
voting powers, qualifications, special or relative rights and privileges in
respect of the authorized capital stock of the Corporation.
PREFERRED STOCK
The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article FOURTH, to provide by
resolution for the issuance of the shares of Preferred Stock in one or more
series, and by filing a certificate pursuant to the applicable law of the
State of Delaware, to establish from time to time the number of shares to be
included in each such series, and to fix the designations, powers,
preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each series shall
include, but shall not be limited to, determination of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate, if any, on the shares of that series, whether
dividends shall be cumulative, and if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of the
series;
(c) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion privileges, and, if
so, the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors
shall determine;
(e) Whether or not the shares of that series shall be redeemable,
and if so, the terms and conditions of such redemption, including the date or
dates upon or after which they 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;
(f) Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and if so, the terms and amount of such
sinking fund;
(g) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of
shares of that series;
(h) Any other relative rights, preferences and limitations of that
series.
COMMON STOCK AND NON-VOTING COMMON STOCK
The Common Stock and the Non-Voting Common Stock are subject to the
rights and preferences of the Preferred Stock as hereinbefore set forth or
authorized.
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The Common Stock and the Non-Voting Common Stock shall be identical
in all respects and shall have equal rights and privileges, except as
otherwise expressly provided herein. The relative powers, preferences,
rights, qualifications, limitation and restrictions of the shares of the
Common Stock and the Non-Voting Common Stock are as follows:
1. VOTING. Subject to the provisions of any applicable law or of the
by-laws of the Corporation, as from time to time amended, with respect to the
fixing of a record date for the determination of stockholders entitled to
vote, and except as otherwise provided herein or by law or by the resolution
or resolutions providing for the issue of any series of Preferred Stock, the
holders of outstanding shares of Common Stock shall have exclusive voting
rights for the election of directors and for all other purposes, each holder
of record of shares of Common Stock being entitled to one vote for each share
of Common Stock standing in his name on the books of the Corporation. Except
as provided under the Delaware General Corporation Law, the holders of the
Non-Voting Common Stock are not entitled to vote.
2. DIVIDENDS. Subject to the rights of any one or more series of
Preferred Stock, the holders of Common Stock and Non-Voting Common Stock
shall be entitled to receive such dividends from time to time as may be
declared by the Board of Directors out of any funds of the Corporation
legally available for the payment of such dividends.
3. LIQUIDATION. In the event of the liquidation, dissolution, or winding
up of the Corporation, whether voluntary or involuntary, after payment shall
have been made to the holders of the Preferred Stock of the full amount to
which they are entitled, the holders of Common Stock and Non-Voting Common
Stock shall be entitled to share ratably according to the number of shares of
Common Stock and Non-Voting Common Stock held by them in all remaining assets
of the Corporation available for distribution to its stockholders.
4. CONVERSION OF NON-VOTING COMMON STOCK.
(a) OPTIONAL CONVERSION. Subject to applicable banking regulations,
each share of Non-Voting Common Stock shall be convertible, at the option of
the holder thereof, at any time and from time to time, into shares of Common
Stock at the rate (subject to equitable adjustment as may be necessary to
account for stock splits, stock dividends or any reorganization, combination
of shares or similar capital adjustment) of one share of Common Stock for
each share of Non-Voting Common Stock by surrendering the certificate or
certificates for such shares of Non-Voting Common Stock, together with
written notice that such holder elects to convert all or any portion of the
shares of Non-Voting Common Stock represented by such certificate or
certificates and any other documents required by the transfer agent or the
Corporation, to the office of the transfer agent (which shall be the
principal office of the Corporation if it serves as its own transfer agent).
Such notice shall state the names of the nominees, if any, in which such
holder wishes the certificate or certificates for the shares of Common Stock
to be issued. The date of receipt of such certificates and notice by the
transfer agent (or by the Corporation if it serves as its own transfer agent)
shall be the conversion date. The Corporation shall, as soon as practicable
after such conversion date, issue and deliver at such office to such holder
of Non-Voting Common Stock, or to its nominees, a certificate or certificates
for the number of shares of Common Stock to which such holder shall be
entitled, together with cash in lieu of any fraction of a share.
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(b) RESERVING COMMON STOCK. The Corporation shall reserve and keep
available out of its authorized but unissued Common Stock such number of
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Non-Voting Common Stock.
ISSUANCE
Subject to the provisions of this Amended and Restated Certificate
of Incorporation and except as otherwise provided by law, the shares of stock
of the Corporation, regardless of class, may be issued for such consideration
and for such corporate purposes as the Board of Directors may from time to
time determine.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation:
1. The directors shall be divided into three classes, as nearly equal in
number as the then total number of directors constituting the entire Board
permits, with the term of office of one class expiring each year. The initial
Class I directors elected by the stockholders of the Corporation shall hold
office for a term expiring at the 2001 annual meeting of stockholders; the
initial Class II directors elected by the stockholders of the Corporation
shall hold office for a term expiring at the 2002 annual meeting of
stockholders; and the initial Class III directors elected by the stockholders
of the Corporation shall hold office for a term expiring at the 2003 annual
meeting of stockholders. At each such annual meeting of stockholders and at
each annual meeting thereafter, successors to the class of directors whose
term expires at that meeting shall be elected for a term expiring at the
third annual meeting following their election and until their successors
shall be elected and qualified, subject to prior death, resignation,
retirement or removal. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number
of directors in each class as nearly equal as possible, but in no event will
a decrease in the number of directors shorten the term of any incumbent
director. Notwithstanding the foregoing, and except as otherwise required by
law, whenever the holders of any one or more series of Preferred Stock shall
have the right, voting separately as a class, to elect one or more directors
of the Corporation, the election, terms of office and other features of such
directorships shall be governed by the terms of the vote establishing such
series, and such directors so elected shall not be divided into classes
pursuant to this Article FIFTH unless expressly provided by such terms. This
Section 1 of Article FIFTH may not be amended, revised or revoked, in whole
or in part, except by the affirmative vote of the holders of 80% of the
voting power of the shares of all classes of stock of the Corporation
entitled to vote for the election of directors, considered for the purposes
of this Article FIFTH as one class of stock.
2. Each director chosen to fill a vacancy in the Board of Directors
shall be elected to complete the term of office of the director who is being
succeeded. In the case of any election of a new director to fill a
directorship created by an enlargement of the Board, the Board shall in such
election assign the class of directors to which such additional director is
being elected, and each director so elected shall hold office for the same
term as the other members of the class to which the director is assigned.
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3. Except as otherwise determined by the Board of Directors in
establishing a series of Preferred Stock as to directors elected by holders
of such series, at any special meeting of the stockholders called at least in
part for the purpose, any director or directors may, by the affirmative vote
of the holders of at least a majority of the stock entitled to vote for the
election of directors, be removed from office for cause. The provisions of
this subsection shall be the exclusive method for the removal of directors.
This Section 3 of Article FIFTH may not be amended, revised or revoked, in
whole or in part, except by the affirmative vote of the holders of 80% of the
voting power of the shares of all classes of stock of the Corporation
entitled to vote for the election of directors, considered for the purposes
of this Article FIFTH as one class of stock.
4. Elections of directors need not be by ballot.
5. The Board of Directors of the Corporation is expressly authorized to
adopt, amend or repeal the by-laws of the Corporation.
6. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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 Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit. If the Delaware General Corporation Law is
amended after approval by the stockholders of this Article FIFTH to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended from time to time.
Any repeal or modification of this Section 6 of Article FIFTH shall
not increase the personal liability of any director of this Corporation for
any act or occurrence taking place before such repeal or modification, nor
otherwise adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
7. Meetings of stockholders may be held anywhere within or without the
State of Delaware. The books of the Corporation may be kept 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 by-laws of the Corporation.
SIXTH: No action required to be taken or that may be taken at any
annual or special meeting of stockholders of the Corporation may be taken by
written consent without a meeting, and the power of stockholders to consent
in writing, without a meeting, to the taking of any action is specifically
denied.
This Article SIXTH may not be amended, revised or revoked, in whole
or in part, except by the affirmative vote of the holders of 80% of the
voting power of the shares of all classes of stock of the Corporation
entitled to vote for the election of directors, considered for the purposes
of this Article SIXTH as one class of stock.
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SEVENTH: The Corporation reserves the right to amend, alter, change
or repeal any provisions 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 granted subject to this
reservation.
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IN WITNESS WHEREOF, the undersigned has duly executed this Amended
and Restated Certificate of Incorporation in the name and on behalf of
Genaissance Pharmaceuticals, Inc. on the _______ day of __________, 2000 and
the statements contained herein are affirmed as true under penalties of
perjury.
________________________________________
Gualberto Ruano
President and Chief Executive Officer
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