<PAGE> 1
EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMERICAN MEDICAL SYSTEMS HOLDINGS, INC.
* * * * * * * * *
AMERICAN MEDICAL SYSTEMS HOLDINGS, INC., a Delaware corporation, hereby
certifies as follows:
The Certificate of Incorporation of AMERICAN MEDICAL SYSTEMS HOLDINGS,
INC. (the "Corporation") was filed in the office of the Secretary of State of
the State of Delaware on __________, 2000, and is hereby amended and restated
pursuant to Section 242 and Section 245 of the Delaware General Corporation Law
and all amendments to the Certificate of Incorporation reflected herein have
been duly proposed by the Board of Directors of the Corporation and duly adopted
by the stockholders of the Corporation in accordance with the provisions of such
Sections.
This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of the
Corporation currently on file with the Secretary of State of the State of
Delaware. The text of the Certificate of Incorporation is hereby amended in its
entirety to read as herein set forth:
ARTICLE I.
The name of the corporation is:
American Medical Systems Holdings, Inc. (the "Corporation").
ARTICLE II.
The address of its registered office in the State of Delaware is 1209
Orange Street in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
ARTICLE III.
The nature of the business or purposes to be conducted or promoted by
the Corporation 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.
ARTICLE IV.
The total authorized capital stock of the Corporation shall be One
Hundred Million shares consisting of (i) Seventy-Five Million (75,000,000)
shares of Common Stock, $.01 par value per share ("Voting Common Stock"); (ii)
Twenty Million (20,000,000) shares of Non-Voting Common Stock, $.01 par value
per share ("Non-Voting Common Stock," and together with the
<PAGE> 2
Voting Common Stock, "Common Stock"); and (iii) Five Million (5,000,000) shares
of Preferred Stock, $.01 par value per share ("Preferred Stock").
(a) Common Stock.
(i) Ranking. Except with respect to voting rights and the conversion rights
of the Non-Voting Common Stock, the Voting Common Stock and the Non-Voting
Common Stock shall in all respects have the same powers, rights and
qualifications (including, relative, participating, optional and other special
rights, dividend rights and rights on liquidation, dissolution or winding up)
and shall rank pari passu with each other.
(ii) Dividends. Subject to the preferences and other rights of the
Preferred Stock, if any, the holders of Common Stock shall be entitled to
receive dividends when and as declared by the Board of Directors out of funds
legally available therefor. Holders of shares of Voting Common Stock and
Non-Voting Common Stock shall be entitled to share equally, share for share, in
such dividends, except that if dividends are declared which are payable in
shares of Voting Common Stock or Non-Voting Common Stock, dividends shall be
declared which are payable at the same rate in both classes of stock and the
dividends payable in shares of Voting Common Stock shall be payable to the
holders of that class of stock and the dividends payable in shares of Non-Voting
Common Stock shall be payable to the holders of that class of stock.
(iii) Liquidation. In the event of any liquidation, dissolution or winding
up of the affairs of the Corporation, voluntary or involuntary, after payment or
provision for payment to the holders of the Corporation's Preferred Stock of the
amounts to which they may be entitled as set out above, the remaining assets of
the Corporation available to stockholders shall be distributed equally per share
to the holders of Common Stock irrespective of class.
(iv) Voting
(A) Voting Common Stock. Except as otherwise provided herein or by
law, each holder of Voting Common Stock shall be entitled to one vote in
respect of each share of Voting Common Stock held of record on all matters
submitted to a vote of stockholders.
(B) Non-Voting Common Stock.
(1) Except as required by law or by paragraph (a)(iv)(B)(3) below,
the holders of Non-Voting Common Stock shall not be entitled to vote
on any matters to be voted on by the stockholders of the Corporation.
(2) Notwithstanding paragraph (a)(iv)(B)(1) above the holders of
the Non-Voting Common Stock shall be entitled to the same notice of
meetings of stockholders as the holders of the Voting Common Stock.
(3) The Corporation shall not (y) amend, alter or repeal
paragraphs (a)(ii) or (a)(iii) if such amendment, alteration or repeal
would
2
<PAGE> 3
cause the Voting Common Stock to obtain a liquidation preference or right
or a dividend preference or right more favorable than that of the
Non-Voting Common Stock or (z) amend, alter or repeal paragraphs (a)(i) or
(a)(v), in either case without the approval of the holders of at least a
majority of the then outstanding aggregate number of shares of Non-Voting
Common Stock (with each share of Non-Voting Common Stock entitled to one
vote), given in writing or by vote at a meeting, with the Non-Voting Common
Stock consenting or voting (as the case may be) together as a single class.
(v) Conversion of Non-Voting Common Stock.
(A) Upon the occurrence (or the expected occurrence as described in
paragraph (a)(v)(D) below) of any Conversion Event (as defined in paragraph
(a)(v)(B) below), each holder of Non-Voting Common Stock shall, at such holder's
option, be entitled to convert into an equal number of fully paid and
nonassessable shares of Voting Common Stock any or all of the shares of such
holder's Non-Voting Common Stock being (or expected to be) distributed, disposed
of or sold in connection with such Conversion Event subject to the condition
that the holder thereof delivers to the Corporation, together with the notice of
election and the applicable stock certificates, a certificate of such holder to
the effect that (x) such holder is a person other than Warburg, Pincus Equity
Partners, L.P. ("WPEP") or any affiliate (as defined in Rule 12b-2 promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
any successor rule) of WPEP, or (y) if such holder is WPEP, upon such conversion
and giving effect thereto, such holder and all affiliates of such holder will
collectively own beneficially of record no more than fifty percent (50%) of the
then outstanding shares of Voting Common Stock (it being understood that the
provisions of this clause (y) shall apply in the case of a contemporaneous
conversion and distribution by WPEP to its partners where the shares so
converted are registered in the names of such partners). The Corporation or its
transfer agent shall rely on any such certificate as accurately setting forth
the facts therein stated, unless the Corporation has actual knowledge of the
falseness of any such statements of fact.
(B) For purposes of this paragraph (a)(v), a "Conversion Event" shall mean
(w) any sale in connection with any public offering or public sale of securities
of the Corporation (including a public offering registered under the Securities
Act and a public sale pursuant to Rule 144 of the Securities and Exchange
Commission thereunder or any similar rule then in force), (x) any sale
(including by way of merger, consolidation or other similar transaction) of
securities of the Corporation to a person or group of persons (within the
meaning of the Exchange Act) if, after such sale, such person or group of
persons, in the aggregate, would own or control securities which possess in the
aggregate the ordinary voting power to elect a majority of the Corporation's
directors (provided that such sale has been approved by the Board of Directors
or a committee thereof), (y) any sale (including by way of merger, consolidation
or other similar
3
<PAGE> 4
transaction) of securities of the Corporation to a person or group of
persons (within the meaning of the Exchange Act) if, after such sale, such
person or group of persons in the aggregate would own or control securities
of the Corporation (excluding any shares of Non-Voting Common Stock being
converted and disposed of in connection with such Conversion Event) which
possess, in the aggregate, the ordinary voting power to elect a majority of
the Corporation's directors, and (z) any sale of securities of the
Corporation to a person or group of persons (within the meaning of the
Exchange Act) if, after such sale, such person or group of persons would
not, in the aggregate, own, control or have the right to acquire more than
two percent (2%) of the outstanding securities of any class of voting
securities of the Corporation. For purposes of this paragraph 3(e)(ii), a
"person" shall include any natural person and any corporation, partnership,
joint venture, trust, unincorporated organization and any other entity or
organization.
(C) Each holder of Non-Voting Common Stock shall be entitled to convert
shares of Non-Voting Common Stock which are to be distributed, disposed of or
sold in connection with any Conversion Event if such holder reasonably believes
that such Conversion Event will be consummated. The Corporation will not retire
the shares of Non-Voting Common Stock so converted before the tenth day
following such Conversion Event and will reserve such shares until such tenth
day for reissuance in compliance with the next sentence. If any shares of
Non-Voting Common Stock are converted into shares of Voting Common Stock in
connection with a Conversion Event and such shares of Voting Common Stock are
not actually distributed, disposed of or sold pursuant to such Conversion Event,
such shares of Voting Common Stock shall be promptly converted back into the
same number of shares of Non-Voting Common Stock.
(D) In order to exercise the conversion privilege in this paragraph (a)(v),
a holder of Non-Voting Common Stock shall surrender to the Corporation at its
principal offices, or to any transfer agent for the Corporation, a certificate
or certificates for Non-Voting Common Stock to be converted together with (y) a
certificate of such holder stating such holder's reasonable belief that such
holder is entitled to convert pursuant to the terms hereof (which certificate
shall be conclusive and shall obligate the Corporation to effect such conversion
in a timely manner) (a "Conversion Eligibility Certificate") and (z) a written
notice to the Corporation that such holder has elected to convert such shares,
or, if less than all shares represented by such certificate are to be converted,
the portion of the shares represented thereby to be converted. Such notice shall
also state the name or names (with addresses) in which the certificates for
shares of Voting Common Stock issuable upon such conversion shall be issued,
subject to any restrictions on transfer relating to shares of Non-Voting Common
Stock or shares of Voting Common Stock issuable upon conversion thereof. If so
required by the Corporation, certificates surrendered for conversion shall be
endorsed or accompanied by written instrument or instruments of transfer, in
form satisfactory to the Corporation, duly authorized in writing. Non-Voting
Common Stock shall be deemed converted for all purposes including without
limitation the taking of a record date for a meeting of the stockholders of the
Corporation, upon receipt by
4
<PAGE> 5
the Corporation or its transfer agent of such certificates evidencing
such shares accompanied by a Conversion Eligibility Certificate and
such notice of election to convert.
(E) If any certificate evidencing Non-Voting Common Stock
surrendered to the Corporation for conversion evidences shares of
Non-Voting Common Stock in addition to the shares of Non-Voting Common
Stock being so converted, then following such conversion, the
Corporation shall cause to be executed and delivered to the holder
thereof, at the expense of the Corporation, a new certificate
evidencing the balance of the Non-Voting Common Stock that was not so
converted.
(F) The Corporation shall at all times reserve and keep available
out of its authorized but unissued Voting Common Stock the full number
of shares of such stock into which all authorized shares of Non-Voting
Common Stock are convertible solely for the purpose of effecting the
conversion of the shares of Non-Voting Common Stock; and if at any time
the number of authorized but unissued shares of Voting Common Stock
shall not be sufficient to effect the conversion of all then authorized
shares of Non-Voting Common Stock, the Corporation will take such
corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of Voting Common Stock, to
such number of shares as shall be sufficient for such purpose,
including without limitation, engaging in best efforts to obtain the
requisite stockholder approval of any necessary amendment to this
Certificate of Incorporation.
(vi) Reclassifications. The Corporation shall not effect any stock
split or division, reverse stock split, stock dividend, reclassification,
reorganization, combination, recapitalization or consolidation of either
class of Common Stock, unless the Corporation shall also contemporaneously
effect a stock split or division, reverse stock split, stock dividend,
reclassification, reorganization, combination or consolidation on the same
terms with respect to the other class of Common Stock; provided, that in
any such transaction, only holders of Voting Common Stock shall receive
shares of Voting Common Stock and only holders of Non-Voting Common Stock
shall receive shares of Non-Voting Common Stock.
(b) Preferred Stock. The Preferred Stock may be issued from time to time in
one or more series, each of which series shall have such distinctive designation
or title and such number of shares as shall be fixed by the Board of Directors
prior to the issuance of any shares thereof. Each such series of Preferred Stock
shall have such voting powers, full or limited, or no voting powers, and such
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions providing for the issue of such
series of Preferred Stock as may be adopted from time to time by the Board of
Directors prior to the issuance of any shares thereof pursuant to the authority
hereby expressly vested in it. The Board of Directors is further authorized to
increase or decrease (but not below the number of shares outstanding) the number
of shares of any series of Preferred Stock subsequent to the issuance of shares
of that series. In case the number of shares of any series shall be so
decreased, the shares constituting such decrease shall resume the
5
<PAGE> 6
status of which they had prior to the adoption of the resolution originally
fixing the number of shares of such series. Except as provided in the resolution
or resolutions of the Board of Directors creating any series of Preferred Stock,
the shares of Common Stock shall have the exclusive right to vote for the
election and removal of directors and for all other purposes. Each holder of
Common Stock shall be entitled to one vote for each share held.
ARTICLE V.
In furtherance and not in limitation of the powers conferred by
statute, the By-Laws of the Corporation may be made, altered, amended or
repealed by the stockholders or by a majority of the entire Board of Directors.
ARTICLE VI.
Whenever a compromise or arrangement is proposed between this
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 consequence of such compromise or
arrangement, the said compromise or arrangement, the said compromise or
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 stockholders or class of stockholders of this
Corporation, as the case may be, and also on this Corporation.
ARTICLE VII.
Elections of directors need not be by written ballot.
ARTICLE VIII.
(a) The Corporation shall indemnify to the fullest extent authorized
or permitted under and in accordance with the laws of the State of Delaware (as
now or hereafter in effect) any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that he or she 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, trustee, employee or agent of or in any other capacity with
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she
6
<PAGE> 7
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
(b) Expenses incurred in defending a civil or criminal action, suit or
proceeding shall (in the case of any action, suit or proceeding against a
director of the Corporation) or may (in the case of any action, suit or
proceeding against an officer, trustee, employee or agent) be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors upon receipt of an
undertaking by or on behalf of the indemnified person to repay such amount if it
shall ultimately be determined that he or she is not entitled to be indemnified
by the Corporation as authorized in this Article.
(c) The indemnification and other rights set forth in this Article
shall not be exclusive of any provisions with respect thereto in the By-Laws or
any other contract or agreement between the Corporation and any officer,
director, employee or agent of the Corporation.
(d) Neither the amendment nor repeal of paragraph (a), (b) or (c), nor
the adoption of any provision of this Amended and Restated Certificate of
Incorporation inconsistent with paragraph (a), (b) or (c), shall eliminate or
reduce the effect of paragraphs (a), (b) and (c), in respect of any matter
occurring before such amendment, repeal or adoption of an inconsistent provision
or in respect of any cause of action, suit or claim relating to any such matter
which would have given rise to a right of indemnification or right to receive
expenses pursuant to paragraph (a), (b) or (c), if such provision had not been
so amended or repealed or if a provision inconsistent therewith had not been so
adopted.
(e) No director 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 (a) shall be liable
under Section 174 of the General Corporation Law of the State of Delaware or any
amendment thereto or successor provision thereto, or (b) shall be liable by
reason that, in addition to any and all other requirements for liability, he or
she:
(i) shall have breached his or her duty of loyalty to the
Corporation or its stockholders;
(ii) shall not have acted in good faith or, in failing to act,
shall not have acted in good faith;
(iii) shall have acted in a 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
(iv) shall have derived an improper personal benefit.
If the General Corporation Law of the State of Delaware is amended
after the date of this Amended and Restated Certificate of Incorporation 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 General
Corporation Law of the State of Delaware, as so amended.
7
<PAGE> 8
ARTICLE IX
The number of directors which shall constitute the entire Board of
Directors shall not be less than one (1) nor more than nine (9), which number
shall be determined from time to time by the Board of Directors. The Directors
shall be divided into three (3) classes, as nearly equal in number as possible.
The term of office of the first class shall expire at the 2001 annual meeting of
the stockholders of the Corporation; the term of office of the second class
shall expire at the 2002 annual meeting of the stockholders of the Corporation;
and the term of office of the third class shall expire at the 2003 annual
meeting of the stockholders of the Corporation. At each annual meeting of the
stockholders after such classification, the number of directors equal to the
number of the class whose term expires on the day of such meeting shall be
elected for a term of three (3) years. Directors shall hold office until
expiration of the terms for which they were elected and qualified; provided,
however, that a director may be removed from office as a director at any time by
the stockholders, but only for cause, and only by the affirmative vote of a
majority of the outstanding voting power entitled to elect such director. If the
office of any director becomes vacant by reason of death, resignation,
retirement, disqualification, removal from office, increase in the number of
directors or otherwise, a majority of the remaining directors, although less
than a quorum, at a meeting called for that purpose, may choose a successor,
who, unless removed for cause as set forth above, shall hold office until the
expiration of the term of the class for which appointed or until a successor
shall be elected and qualified. This Article IX may not be altered, amended or
repealed, in whole or in part, unless authorized by the affirmative vote of the
holders of not less than two-thirds of the outstanding voting power entitled to
vote.
ARTICLE X.
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 herein are granted subject to this
reservation.
IN WITNESS WHEREOF, said Corporation has caused this Certificate to be
signed by its President and Chief Executive Officer, and attested by its
Secretary this ___ day of ________, 2000.
AMERICAN MEDICAL SYSTEMS HOLDINGS,
INC.
By:__________________________________________
Name: Douglas W. Kohrs
Title: President and Chief Executive
Officer
8
