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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
ARTICLE I
The name of the Corporation is "OMP, Inc."
ARTICLE II
The address of the registered office of the Corporation in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at that address is the Corporation Trust Company.
ARTICLE III
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 the State of Delaware. The Corporation shall have all
powers granted by law and all powers granted under the General Corporation
Laws of the State of Delaware.
ARTICLE IV
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 One Hundred Ten Million (110,000,000) shares, par
value $0.001 per share. One Hundred Million (100,000,000) shares shall be
Common Stock, par value $0.001, and Ten Million (10,000,000) shares shall be
Preferred Stock, par value $0.00l 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, by
filing one or more certificates pursuant to the Delaware General Corporation
Law, to fix or alter from time to time the designations, powers, preferences
and rights of each such series of Preferred Stock and the qualifications,
limitations or restrictions thereof, including without limitation the
dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), redemption price or
prices, and the liquidation preferences of any wholly unissued series of
Preferred Stock, and to establish from time to time the number of shares
constituting any such series and the designation thereof, or any of them; and
to increase or decrease the number of shares of any series subsequent to the
issuance of shares 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
decreased in accordance with the foregoing sentence, the shares
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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.
C. COMMON STOCK.
1. DIVIDEND RIGHTS. Subject to the prior rights of holders of all
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of any assets of the Corporation
legally available therefor, such dividends as may be declared from time to
time by the Board of Directors.
2. LIQUIDATION RIGHTS. Upon the liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation shall be
distributed as provided in Section 2 of Division B of this Article IV hereof.
3. REDEMPTION. The Common Stock is not redeemable.
4. VOTING RIGHTS. The holder of each share of Common Stock shall
have the right to one vote, and shall be entitled to notice of any
shareholders' meeting in accordance with the bylaws of this Corporation, and
shall be entitled to vote upon such matters and in such manner as may be
provided by law.
ARTICLE V
For the management of the business and for the conduct of the affairs
of the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. MANAGEMENT OF BUSINESS. The management of the business and the
conduct of the affairs of the Corporation shall be vested in its Board of
Directors. The number of directors which shall constitute the whole Board of
Directors shall be fixed as provided in the Bylaws.
B. BOARD OF DIRECTORS. The directors are divided into three classes,
Class I, Class II and Class III. The initial term of office of the Class I,
Class II and Class III directors shall expire at the annual meeting of
stockholders in 2002, 2003, and 2004, respectively. The number of directors
are apportioned among the classes by the Board of Directors so as to maintain
the number of directors in each class as nearly equal as reasonably possible,
and any additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class. Beginning in 2002, at each
annual meeting of stockholders, successors to the class of directors whose
term expires at that annual meeting are elected for a three-year term. In no
case will a decrease in the number of directors shorten the term of any
incumbent director even though such decrease may result in an inequality of
the classes until the expiration of such term. A director shall hold office
until the
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annual meeting of the year in which his or her term expires and until his or
her successor are elected and shall qualify, subject, however, to prior
death, resignation, retirement or removal from office. Except as required by
law or the provisions of this Certificate of Incorporation, all vacancies on
the Board of Directors and newly created directorships are filled by the
Board of Directors. Any director elected to fill a vacancy not resulting from
an increase in the number of directors shall have the same remaining term as
that of his or her predecessor. Notwithstanding anything to the contrary
contained in this Certificate of Incorporation, the affirmative vote of the
holders of a majority of the voting power of the shares entitled to vote
generally in the election of directors are required to amend, alter or
repeal, or to adopt any provision inconsistent with, this Article V.
ARTICLE VI
The Corporation shall have perpetual existence.
ARTICLE VII
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
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 the Corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for the Corporation
under the provisions of Section 291 of the Delaware General Corporation Law
or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of Section 279
of the Delaware General Corporation Law, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of
the 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 the Corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of the Corporation as a
consequence of such 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
the Corporation, as the case may be, and also on the Corporation.
ARTICLE VIII
A. MONETARY DAMAGES. The liability of the directors for monetary
damages shall be eliminated to the fullest extent under applicable law.
B. INDEMNIFICATION. To the extent permitted by applicable law, the
Corporation is authorized to provide indemnification of (and advancement of
expenses to) such agents (and any other persons to which Delaware law permits
this Corporation to provide indemnification) through by-law provisions,
agreements with such agents or other persons, vote of stockholders or
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disinterested directors or otherwise, in excess of the indemnification and
advancement otherwise permitted by Section 145 of the Delaware General
Corporation Law, subject only to limits created by applicable Delaware law
(statutory or non-statutory) with respect to actions for breach of duty to
the Corporation, its stockholders and others.
C. REPEAL. Any repeal or modification of this Article VIII shall be
prospective and shall not affect the rights under this Article VIII in effect
at the time of the alleged occurrence of any act or omission to act giving
rise to liability or indemnification.
ARTICLE IX
The Corporation reserves the right to alter, amend or repeal any
provision contained in this Certificate of Incorporation in the manner now or
hereinafter provided by the laws of the State of Delaware and all rights
conferred upon stockholders herein are granted subject to this reservation.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of the _____ day of January 2001.
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