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Exhibit 3.1(a)
RESTATED
CERTIFICATE OF INCORPORATION
OF
MYRIAD GENETICS, INC.
Adopted in accordance with the
provisions of Sections 242 and 245
of the Delaware General Corporation Law
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The Certificate of Incorporation of Myriad Genetics, Inc. (the
"Corporation"), as originally filed with the Secretary of State of the State of
Delaware on November 6, 1992, as amended by the filing with the Secretary of
State of the State of Delaware of Certificates of Stock Designation on November
12, 1992, December 23, 1992, February 3, 1995, February 16, 1995, April 25, 1995
and August 31, 1995, respectively, and as further amended by the filing with the
Secretary of State of Delaware of Certificates of Amendment filed on June 15,
1994, January 9, 1995, June 29, 1995 and October 11, 1995, respectively, is
hereby amended and restated as set forth below pursuant to a resolution adopted
by the Board of Directors of the Corporation acting at a meeting held in
accordance with the provisions of the General Corporation Law of the State of
Delaware and Article III of the By-laws of the Corporation, and pursuant to a
resolution adopted by holders of at least a majority of the outstanding shares
of Common Stock and Preferred Stock, voting together as a class, holders of at
least a majority of the outstanding shares of Common Stock of the Corporation,
voting as a separate class and holders of the requisite percentage of the
outstanding shares of Series A Convertible Preferred Stock, voting as a separate
class.
THE UNDERSIGNED does hereby certify as follows:
FIRST: The name of the Corporation (hereinafter referred to as the
"Corporation") is
MYRIAD GENETICS, INC.
SECOND: 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 its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the laws of the General
Corporation Law of the State of Delaware.
FOURTH: A. Designation and Number of Shares.
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The total number of shares of capital stock of all classes which the
Corporation is authorized to issue is 20,000,000, of which shares 15,000,000 of
the par value of $.01 each shall be
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designated "Common Stock", and 5,000,000 of the par value of $.01 each shall be
a class designated "Preferred Stock".
The relative powers, designations, preferences, rights, and qualifications,
limitations and restrictions and other matters relating to such Common Stock and
the Preferred Stock are as set forth below in this Article FOURTH.
B. Preferred Stock
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(1) Shares of Preferred Stock may be issued in one or more series at
such time or times and for such consideration as the Board of Directors may
determine. All shares of any one series shall be of equal rank and identical in
all respects.
(2) Authority is hereby expressly granted to the Board of Directors
to fix from time to time, by resolution or resolutions providing for the
establishment and/or issuance of any series of Preferred Stock, the designation
of such series and the powers, preferences and rights of the shares of such
series, and the qualifications, limitations or restrictions thereof, including,
without limitation, the following:
(a) The distinctive designation and number of shares comprising
such series, which number may (except where otherwise provided by the Board of
Directors in creating such series) be increased or decreased (but not below the
number of shares then outstanding) from time to time by action of the Board of
Directors;
(b) The rate of dividends, if any, on the shares of that series,
whether dividends shall be non-cumulative, cumulative to the extent earned or
cumulative (and, if cumulative, from which date or dates), whether dividends
shall be payable in cash, property or rights, or in shares of the Corporation's
capital stock, and the relative rights of priority, if any, of payment of
dividends on shares of that series over shares of any other series or class;
(c) Whether 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) or the property or rights, including securities of
any other corporation, payable in case of redemption;
(d) Whether the series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so, the terms and
amounts payable into such sinking fund;
(e) The rights to which the holders of the shares of that series
shall be entitled 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 in any such event;
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(f) Whether the shares of that series shall be convertible into or
exchangeable for shares of stock of any other class or any other series and, if
so, the terms and conditions of such conversion or exchange, including the rate
or rates of conversion or exchange, the date or dates upon or after which they
shall be convertible or exchangeable, the duration for which they shall be
convertible or exchangeable, the event or events upon or after which they shall
be convertible or exchangeable or at whose option they shall be convertible or
exchangeable, and the method (if any) of adjusting the rates of conversion or
exchange in the event of a stock split, stock dividend, combination of shares or
similar event;
(g) Whether the issuance of any additional shares of such series, or
of any shares of any other series, shall be subject to restrictions as to
issuance, or as to the powers, preferences or rights of any such other series;
(h) Whether or not the shares of that series shall have voting
rights, the extent of such voting rights on specified matters or on all matters,
the number of votes to which the holder of shares of such series shall be
entitled in respect of each share of such series, whether such series shall vote
generally with the Common Stock on all matters or (either generally or upon the
occurrence of specified circumstances) shall vote separately as a class or with
other series of Preferred Stock; and
(i) Any other preferences, privileges and powers and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions of such series, as the Board of Directors may deem advisable and
as shall not be inconsistent with the provisions of this Certificate of
Incorporation and to the full extent now or hereafter permitted by the laws of
the State of Delaware.
C. Common Stock.
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1. General. The voting, dividend and liquidation and other rights of
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the holders of the Common Stock are subject to and qualified by the rights of
the holders of Preferred Stock, if any.
2. Voting. The holders of the Common Stock are entitled to one vote
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for each share held. There shall be no cumulative voting.
3. Dividends. Dividends may be declared and paid on the Common Stock
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from funds lawfully available therefor if, as and when determined by the Board
of Directors, subject to any provision of this Restated Certificate of
Incorporation, as amended from time to time, and subject to the relative rights
and preferences of any shares of Preferred Stock authorized and issued
hereunder.
4. Liquidation. Upon the dissolution or liquidation of the
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Corporation, whether
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voluntary or involuntary, holders of Common Stock will be entitled to receive
all assets of the Corporation available for distribution to its stockholders,
subject, however, to the liquidation rights of the holders of Preferred Stock
authorized and issued hereunder.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by statute or by this Restated
Certificate of Incorporation or the By-Laws of the Corporation as in effect from
time to time, the directors are hereby empowered to exercise all such powers and
do all such acts and things as may be exercised or done by the Corporation.
B. The directors of the Corporation need not be elected by written ballot
unless the By-Laws so provide.
C. Any action required or permitted to be taken by the stockholders of the
Corporation may be effected only at a duly called annual or special meeting of
stockholders of the Corporation.
SIXTH: A. Subject to the rights of the holders of any series of Preferred
Stock then outstanding to elect additional directors under specified
circumstances, the number of directors shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the Board.
B. On or prior to the date on which the Corporation first provides notice
of an annual meeting of the stockholders (or a special meeting in lieu thereof)
in 1996, the Board of Directors of the Corporation shall divide the directors
nominated for election at such meeting into three classes, as nearly equal in
number as reasonably possible, with the term of office of the first class to
expire at the 1997 annual meeting of stockholders or any special meeting in lieu
thereof, the term of office of the second class to expire at the 1998 annual
meeting of stockholders or any special meeting in lieu thereof, and the term of
office of the third class to expire at the 1999 annual meeting of stockholders
or any special meeting in lieu thereof. At each annual meeting of stockholders
or special meeting in lieu thereof following such initial classification,
directors elected to succeed those directors whose terms expire shall be elected
for a term of office to expire at the third succeeding annual meeting of
stockholders or special meeting in lieu thereof after their election and until
their successors are duly elected and qualified.
C. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause may be filled only by a majority vote of the directors
then in office even though less than a quorum, or by a sole remaining director.
In the
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event of any increase or decrease in the authorized number of directors, (i)
each director then serving as such shall nevertheless continue as a director of
the class of which he is a member until the expiration of his current term or
his prior death, retirement, removal or resignation and (ii) the newly created
or eliminated directorships resulting from such increase or decrease shall if
reasonably possible be apportioned by the Board of Directors among the three
classes of directors so as to ensure that no one class has more than one
director more than any other class. To the extent reasonably possible,
consistent with the foregoing rule, any newly created directorships shall be
added to those classes whose terms of office are to expire at the latest dates
following such allocation and newly eliminated directorships shall be subtracted
from those classes whose terms of office are to expire at the earliest dates
following such allocation, unless otherwise provided for from time to time by
resolution adopted by a majority of the directors then in office, although less
than a quorum. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may exercise the
powers of the full Board of Directors until the vacancy is filled.
D. Advance notice of stockholder nominations for the election of directors
and of business to be brought by stockholders before any meeting of the
stockholders of the Corporation shall be given in the manner provided in the By-
Laws of the Corporation.
E. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, any director, or the entire Board of Directors, may be removed
from office at any time only for cause. A director may be removed for cause only
after a reasonable notice and opportunity to be heard before the body proposing
to remove him.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or
repeal By-Laws of the Corporation. Any adoption, amendment or repeal of the By-
Laws of the Corporation by the Board of Directors shall require the approval of
a majority of the Board. The stockholders shall also have power to adopt, amend
or repeal the By-Laws of the Corporation; provided, however, that , in addition
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to any vote of the holders of any class or series of stock of the Corporation
required by law or by this Restated Certificate of Incorporation, the
affirmative vote of the holders of at least seventy percent (70%) of the voting
power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required for the stockholders to adopt,
amend or repeal any provision of the By-Laws of the Corporation.
EIGHTH: 1. To the fullest extent permitted by the Delaware General
Corporation Law as the same now exists or may hereafter be amended, the
Corporation shall indemnify, and advance expenses to, its directors, officers
and members of its Scientific Advisory Board and any person who is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, or of a partnership, joint venture, trust or other
enterprise, if such person was or is made a party to or is threatened to be made
a party to or is otherwise involved (including, without limitation, as a
witness) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director or officer of the
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Corporation or a member of the Corporation's Scientific Advisory Board or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, or of a partnership, joint venture, trust or
other enterprise, including service with respect to an employee benefit plan;
provided, however, that except with respect to proceedings to enforce rights to
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indemnification or as is otherwise required by law, the By-Laws of the
Corporation may provide that the Corporation shall not be required to indemnify,
and advance expenses to, any director, officer or other person in connection
with a proceeding (or part thereof) initiated by such director, officer or other
person, unless such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The Corporation, by action of its Board of
Directors, may provide indemnification or advance expenses to employees and
other agents of the Corporation or other persons only on such terms and
conditions and to the extent determined by the Board of Directors in its sole
and absolute discretion.
2. The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article EIGHTH shall not be deemed exclusive of any other
rights to which a person seeking indemnification or advancement of expenses may
be entitled under any By-Law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
3. The Corporation shall have the power to purchase and maintain insurance
on behalf of any person who 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, employee or agent of another corporation, or of a
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under this Article EIGHTH.
4. The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article EIGHTH shall, unless otherwise specified when
authorized or ratified, continue as to a person who has ceased to be a director,
officer or member of the Corporation's Scientific Advisory Board and shall inure
to the benefit of the heirs, executors and administrators of such director,
officer or member of the Corporation's Scientific Advisory Board. The
indemnification and rights to advancement of expenses that may have been
provided to an employee or agent of the Corporation by action of the Board of
Directors, pursuant to the last sentence of Paragraph 1 of this Article EIGHTH,
shall, unless otherwise specified when authorized or ratified, continue as to a
person who has ceased to be an employee or agent of the Corporation and shall
inure to the benefit of the heirs, executors and administrators of such person,
after the time such person has ceased to be an employee or agent of the
Corporation, only on such terms and conditions and to the extent determined by
the Board of Directors in its sole discretion. No repeal or amendment of this
Article EIGHTH shall adversely affect any rights of any person pursuant to this
Article EIGHTH which existed at the time of such repeal or amendment with
respect to acts or omissions occurring prior to such repeal or amendment.
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NINTH: No director shall be personally liable to the Corporation or its
stockholders for any monetary damages for breaches of fiduciary duty as a
director, notwithstanding any provision of law imposing such liability; provided
that this provision shall not eliminate or limit the liability of a director, to
the extent that such liability is imposed by applicable law, (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 which involve intentional misconduct
or a knowing violation of law; (iii) under Section 174 or successor provisions
of the General Corporation Law of the State of Delaware; or (iv) for any
transaction from which the director derived an improper personal benefit. This
provision shall not eliminate or limit the liability of a director for any act
or omission if such elimination or limitation is prohibited by the General
Corporation Law of the State of Delaware. No amendment to or repeal of this
provision shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal. If the Delaware General
Corporation Law is amended 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.
TENTH: The Corporation reserves the right to amend or repeal any provision
contained in this Restated Certificate of Incorporation in the manner prescribed
by the laws of the State of Delaware and all rights conferred upon stockholders
are granted subject to this reservation; provided, however, that in addition to
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the vote of the holders of any class or series of stock of the Corporation
required by law or by this Restated Certificate of Incorporation, the
affirmative vote of the holders of shares of voting stock of the Corporation
representing at least seventy percent (70%) of the voting power of all of the
then outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to (i) reduce or eliminate the number of authorized shares of Common
Stock or the number of authorized shares of Preferred Stock set forth in Article
FOURTH or (ii) amend or repeal, or adopt any provision inconsistent with,
Articles FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH and this Article TENTH of this
Restated Certificate of Incorporation.
ELEVENTH: 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 (3/4) 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,
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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 the stockholders or
class of stockholders, of this Corporation, as the case may be, and also on this
Corporation.
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its President this 12/th/ day of October, 1995.
MYRIAD GENETICS, INC.
By: /s/ PETER D. MELDRUM
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Peter D. Meldrum
President and Chief Executive
Officer
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