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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
BIOTRANSPLANT INCORPORATED
(ORIGINALLY BIO-TRANSPLANT, INC. AND BIOTRANSPLANT, INC.)
(INCORPORATED MARCH 20, 1990)
PURSUANT TO SECTION 242 AND 245
OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
BIOTRANSPLANT INCORPORATED (the "Corporation"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware (the "General Corporation Law"), hereby certifies as follows:
FIRST: The name of the Corporation is BioTransplant Incorporated. A
Certificate of Incorporation of the Corporation originally was filed by the
Corporation with the Secretary of State of Delaware on March 20, 1990. A
Restated Certificate of Incorporation was filed on October 4, 1991 and was
amended on December 12, 1991 and December 20, 1991. A Second Amended and
Restated Certificate of Incorporation was filed on May 15, 1992. A Third Amended
and Restated Certificate of Incorporation was filed on October 29, 1993. A
Fourth Amended and Restated Certificate of Incorporation was filed on March 3,
1994. A Fifth Amended and Restated Certificate of Incorporation was filed on
August 24, 1994 and was amended on August 18, 1995. A Sixth Amended and Restated
Certificate of Incorporation was filed on October 31, 1995 and was amended on
January 23 and May 6, 1996.
SECOND: This Restated Certificate of Incorporation which restates and
integrates and further amends the Certificate of Incorporation of the
Corporation, as amended, was duly adopted in accordance with the provisions of
Section 242 and 245 of the General Corporation Law, and was approved by written
consent of the stockholders of the Corporation given in accordance with the
provisions of Section 228 of the General Corporation Law (prompt notice of such
action having been given to those stockholders who did not consent in writing).
THIRD: The text of the Certificate of Incorporation, as amended, is
hereby restated and amended to read in its entirety as follows:
ARTICLE I
NAME
The name of the corporation is BioTransplant Incorporated.
ARTICLE II
PURPOSE
The Corporation is organized to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
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ARTICLE III
CAPITAL STOCK
(a) AUTHORIZATION. The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 27,000,000 shares,
consisting of 25,000,000 shares of Common Stock, $.0l par value per share
("Common Stock"), and 2,000,000 shares of Preferred Stock, $.0l par value per
share ("Preferred Stock").
PART A. COMMON STOCK
A.1 GENERAL. The voting, dividend and liquidation rights of the holders
of the Common Stock are subject to and qualified by the rights of the holders of
Preferred Stock of any Series as may be designated by the Board of Directors
upon any issuance of the Preferred Stock of any Series.
A.2 VOTING. The holders of the Common Stock are entitled to one vote
for each share held at all meetings of stockholders (and written actions in lieu
of meetings). There shall be no cumulative voting.
The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, irrespective of the provisions of Section 242(b)(2) of the
General Corporation Law of Delaware.
A.3 DIVIDENDS. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
A.4 LIQUIDATION. Upon the dissolution or liquidation of the
Corporation, whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of the Corporation available for distribution to
its stockholders, subject to any preferential rights of any then outstanding
Preferred Stock.
PART B. PREFERRED STOCK
Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided by law. Different series of
Preferred Stock shall not be construed to constitute different classes of shares
for the purposes of voting by classes unless expressly provided.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more series, and in
connection with the creation of any such series, by resolution or resolutions
providing for the issue of the shares thereof, to determine and fix such voting
powers, full or limited, or no voting powers, and such designations, preferences
and relative participating, optional or other special rights, and
qualifications, limitations or
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restrictions thereof, including without limitation thereof, dividend rights,
conversion rights, redemption privileges and liquidation preferences, as shall
be stated and expressed in such resolutions, all to the full extent now or
hereafter permitted by the General Corporation Law of Delaware. Without limiting
the generality of the foregoing, the resolutions providing for issuance of any
series of Preferred Stock may provide that such series shall be superior or rank
equally or be junior to the Preferred Stock of any other series to the extent
permitted by law. Except as otherwise provided in this Certificate of
Incorporation, no vote of the holders of the Preferred Stock or Common Stock
shall be a prerequisite to the designation or issuance of any shares of any
series of the Preferred Stock authorized by and complying with the conditions of
this Certificate of Incorporation, the right to have such vote being expressly
waived by all present and future holders of the capital stock of the
Corporation.
ARTICLE IV
REGISTERED AGENT
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801. The name of the registered agent of the Corporation at such address is
The Corporation Trust Company.
ARTICLE V
BY-LAWS
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized to
adopt, amend or repeal the By-laws of the Corporation.
ARTICLE VI
PERPETUAL EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE VII
AMENDMENTS AND REPEAL
Except as otherwise specifically provided in this Restated Certificate
of Incorporation, the Corporation reserves the right at any time, and from time
to time, to amend, alter, change or repeal any provision contained in this
Restated Certificate of Incorporation, and other provisions authorized by the
laws of the State of Delaware at the time in force may be added or inserted, in
the manner now or hereafter prescribed by law; and all rights, preferences and
privileges of whatsoever nature conferred upon stockholders, directors or any
other persons whomsoever by and pursuant to this Restated Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the rights reserved in this Article VII.
ARTICLE VIII
COMPROMISES AND ARRANGEMENTS
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
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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 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 Section 279 of the Delaware General
Corporation Law, order a meeting of the creditors or class or 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 such 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, then such
compromise or arrangement and such reorganization shall, if sanctioned by the
court to which such application has been made, be binding on all the creditors
or class of creditors, and/ or on all of the stockholders or class of
stockholders of the Corporation, as the case may be, and also on the
Corporation.
ARTICLE IX
LIMITATION OF LIABILITY
No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of his or her fiduciary duty as
director; PROVIDED, HOWEVER, that nothing contained in this Article shall
eliminate or limit the liability of a director:
(a) for any breach of the director's duty of loyalty to the Corporation
or its stockholders;
(b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law;
(c) under Section 174 of the General Corporation Law of the State of
Delaware; or
(d) for any transaction from which the director derived improper
personal benefit.
No amendment to or repeal of this Article IX shall apply to or have any
effect on the liability or alleged liability of any director of the Corporation
for or with respect to any acts or omissions of such director occurring prior to
such amendment or repeal.
ARTICLE X
INDEMNIFICATION
A. ACTIONS, SUITS AND PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE
CORPORATION. The Corporation shall indemnify each 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 (other than an action by or in the right of the Corporation), by
reason of the fact that such person is or was, or has agreed to become, a
director or officer of the Corporation, or is or was serving, or has agreed to
serve, at the request of the Corporation, as a director, officer or trustee of,
or in a similar capacity with, another corporation, partnership, joint venture,
trust or other enterprise (including any employee benefit plan) (all such
persons being referred to hereafter as an "Indemnitee"), or by reason of any
action alleged to have been taken
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or omitted in such capacity, against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person or on such person's behalf in connection with such action, suit
or proceeding and any appeal therefrom, if such person acted in good faith and
in a manner such person 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 such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of NOLO CONTENDERE or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person 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 reasonable cause to believe that such
person's conduct was unlawful. Not-withstanding anything to the contrary in this
Article, except as set forth in paragraph (G) below, the Corporation shall not
indemnify an Indemnitee seeking indemnification in connection with a proceeding
(or part thereof) initiated by the Indemnitee unless the initiation thereof was
approved by the Board of Directors of the Corporation.
B. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any Indemnitee who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was, or has agreed to become, a
director or officer of the Corporation, or is or was serving, or has agreed to
serve, at the request of the Corporation, as a director, officer or trustee of,
or in a similar capacity with, another corporation, partnership, joint venture,
trust or other enterprise (including any employee benefit plan), or by reason of
any action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) and amounts paid in settlement actually and
reasonably incurred by such person or on such person's behalf in connection with
such action, suit or proceeding and any appeal therefrom, if such person acted
in good faith and in a manner such person reasonably believed to be in, or not
opposed to, the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses (including attorneys' fees) which the Court of
Chancery of Delaware or such other court shall deem proper.
C. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. Notwithstanding
the other provisions of this Article, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in paragraphs (A) and (B) of this Article, or in defense
of any claim, issue or matter therein, or on appeal from any such action, suit
or proceeding, the Indemnitee shall be indemnified against all expenses
(including attorneys' fees) actually and reasonably incurred by such person or
on such person's behalf in connection therewith. Without limiting the foregoing,
if any action, suit or proceeding is disposed of, on the merits or otherwise
(including a disposition without prejudice), without (i) the disposition being
adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was liable
to the Corporation, (iii) a plea of guilty or NOLO CONTENDERE by the Indemnitee,
(iv) an adjudication that the Indemnitee did not act in good faith and in a
manner reasonably believed to
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be in or not, opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe such person's conduct was unlawful, the Indemnitee
shall be considered for the purposes hereof to have been wholly successful with
respect thereto.
D. NOTIFICATION AND DEFENSE OF CLAIM. As a condition precedent to the
right to be indemnified, the Indemnitee must notify the Corporation in writing
as soon as practicable of any action, suit, proceeding or investigation
involving the Indemnitee for which indemnity will or could be sought. With
respect to any action, suit, proceeding or investigation of which the
Corporation is so notified, the Corporation will be entitled to participate
therein at its own expense and/or to assume the defense thereof at its own
expense, with legal counsel reasonably acceptable to the Indemnitee. After
notice from the Corporation to the Indemnitee of its election so to assume such
defense, the Corporation shall not be liable to the Indemnitee for any legal or
other expenses subsequently incurred by the Indemnitee in connection with such
claim, other than as provided below in this paragraph (D). The Indemnitee shall
have the right to employ the Indemnitee's own counsel in connection with such
claim, but the fees and expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof shall be at the expense of
the Indemnitee unless (i) the employment of counsel by the Indemnitee has been
authorized by the Corporation, (ii) counsel to the Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position on any
significant issue between the Corporation and the Indemnitee in the conduct of
the defense of such action or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action, in each of which cases
the fees and expenses of counsel for the Indemnitee shall be at the expense of
the Corporation, except as otherwise expressly provided by this Article. The
Corporation shall not be entitled, without the consent of the Indemnitee, to
assume the defense of any claim brought by or in the right of the Corporation or
as to which counsel for the Indemnitee shall have reasonably made the conclusion
provided for in clause (ii) above.
E. ADVANCE OF EXPENSES. Subject to the provisions of paragraph (F)
below, in the event that the Corporation does not assume the defense pursuant to
paragraph (D) of this Article of any action, suit, proceeding or investigation
of which the Corporation receives notice under this Article, any expenses
(including attorneys' fees) incurred by an Indemnitee in defending a civil or
criminal action, suit, proceeding or investigation or any appeal therefrom shall
be paid by the Corporation in advance of the final disposition of such matter,
PROVIDED, HOWEVER, that the payment of such expenses incurred by an Indemnitee
in advance of the final disposition of such matter shall be made only upon
receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts
so advanced in the event that it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Corporation as authorized in
this Article. Such undertaking may be accepted without reference to the
financial ability of such person to make such repayment.
F. PROCEDURE FOR INDEMNIFICATION. In order to obtain indemnification or
advancement of expenses pursuant to paragraphs (A), (B), (C) or (E) of this
Article, the Indemnitee shall submit to the Corporation a written request,
including in such request such documentation and information as is reasonably
available to the Indemnitee and is reasonably necessary to determine whether and
to what extent the Indemnitee is entitled to indemnification or advancement of
expenses. Any such indemnification or advancement of expenses shall be
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made promptly, and in any event within 60 days after receipt by the Corporation
of the written request of the Indemnitee, unless with respect to requests under
paragraphs (A), (B) or (E) the Corporation determines within such 60-day period
that the Indemnitee did not meet the applicable standard of conduct set forth in
paragraphs (A) or (B), as the case may be. Such determination shall be made in
each instance by (i) a majority vote of a quorum of the directors of the
Corporation consisting of persons who are not at that time parties to the
action, suit or proceeding in question ("disinterested directors"), (ii) if no
such quorum is obtainable, a majority vote of a committee of two or more
disinterested directors, (iii) a majority vote of a quorum of the outstanding
shares of stock of all classes entitled to vote for directors, voting as a
single class, which quorum shall consist of stockholders who are not at that
time parties to the action, suit or proceeding in question, (iv) independent
legal counsel (who may be regular legal counsel to the Corporation), or (v) a
court of competent jurisdiction.
G. REMEDIES. The right to indemnification or advances as granted by
this Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within the 60-day period referred to above in
paragraph (F). Unless otherwise required by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of expenses under
this Article shall be on the Corporation. Neither the failure of the Corporation
to have made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the Indemnitee has met
the applicable standard of conduct, nor an actual determination by the
Corporation pursuant to paragraph (F) that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of conduct.
The Indemnitee's expenses (including attorneys' fees) incurred in connection
with successfully establishing the Indemnitee's right to indemnification, in
whole or in part, in any such proceeding shall also be indemnified by the
Corporation.
H. SUBSEQUENT AMENDMENT. No amendment, termination or repeal of this
Article or of the relevant provisions of the General Corporation Law of Delaware
or any other applicable laws shall affect or diminish in any way the rights of
any Indemnitee to indemnification under the provisions hereof with respect to
any action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
I. OTHER RIGHTS. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or vote of stockholders
or disinterested directors or otherwise, both as to action in such Indemnitee's
official capacity and as to action in any other capacity while holding office
for the Corporation, and shall continue as to an Indemnitee who has ceased to be
a director or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of the Indemnitee. Nothing contained in this
Article shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set forth in this
Article. In addition, the Corporation may, to the extent authorized from time to
time by its Board of Directors, grant indemnification rights to other employees
or agents of the Corporation or other persons serving
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the Corporation and such rights may be equivalent to, or greater or less than,
those set forth in this Article.
J. PARTIAL INDEMNIFICATION. If an Indemnitee is entitled under any
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by such Indemnitee or on
such Indemnitee's behalf in connection with any action, suit, proceeding or
investigation and any appeal therefrom but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify the Indemnitee for the
portion of such expenses (including attorneys' fees), judgments, fines or
amounts paid in settlement to which the Indemnitee is entitled.
K. INSURANCE. The Corporation may purchase and maintain insurance, at
its expense, to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan) against any expense,
liability or loss incurred by the Indemnitee in any such capacity, or arising
out of the Indemnitee's status as such, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of Delaware.
L. MERGER OR CONSOLIDATION. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
M. SAVINGS CLAUSE. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
N. DEFINITIONS. Terms used herein and defined in Section 145(h) and
Section 145(i) of the General Corporation Law of Delaware shall have the
respective meanings assigned to such terms in such Section 145(h) and Section
145(i).
O. SUBSEQUENT LEGISLATION. If the General Corporation Law of Delaware
is amended after adoption of this Article to expand further the indemnification
permitted to Indemnitees, then the Corporation shall indemnify such persons to
the fullest extent permitted by the General Corporation Law of Delaware, as so
amended.
ARTICLE XI
SPECIAL MEETINGS
A special meeting of the stockholders for any purpose may be called by
the Board, the Chairman of the Board, if any, the President, the Secretary or
the recordholders of at least 20%
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of the shares of stock of the Corporation issued and outstanding entitled to
vote at such meeting, to be held at such place, date and hour as shall be
designated in the notice or waiver of notice thereof.
ARTICLE XII
ANTI-TAKEOVER STATUTE
Section 203 of the General Corporation Law of Delaware, as it may be
amended from time to time, shall apply to the Corporation.
IN WITNESS WHEREOF, the undersigned has caused this Restated
Certificate of Incorporation to be duly executed on its behalf as of May 13,
1996.
BIOTRANSPLANT INCORPORATED
By: /s/ Elliot Lebowitz
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Elliot Lebowitz
President and Chief Executive
Officer
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
BIOTRANSPLANT INCORPORATED
BioTransplant Incorporated, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, at a Meeting
duly called and held on February 15, 2000, as filed with the minutes of the
Board of Directors, duly adopted a resolution pursuant to Section 242 of the
General Corporation Law of the State of Delaware ("Delaware Law") proposing and
declaring advisable the following amendment to the Restated Certificate of
Incorporation, as amended, of the Corporation:
RESOLVED: That the first paragraph of Article THIRD of the Restated
Certificate of Incorporation, as amended, be amended to
read in its entirety as follows:
(a) Authorization. The total number of shares of all
classes of stock which the Corporation shall have the
authority to issue is 52,000,000 shares consisting of
50,000,000 shares of Common Stock, $0.01 par value per
share ("Common Stock"), and 2,000,000 shares of Preferred
Stock, $0.01 par value per share ("Preferred Stock").
SECOND: That the foregoing amendment to the Corporation's Restated
Certificate of Incorporation, was adopted by the holders of a majority of the
outstanding shares of Common Stock at the Corporation's Annual Meeting of
Stockholders held on June 7, 2000 pursuant to notice duly given.
IN WITNESS WHEREOF, BioTransplant Incorporated has caused this
Certificate to be signed by Elliot Lebowitz, its President and Chief Executive
Officer this 7th day of June, 2000.
BIOTRANSPLANT INCORPORATED
By: /s/ Elliot Lebowitz
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Elliot Lebowitz
Its: PRESIDENT AND CHIEF EXECUTIVE
OFFICER
