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EXHIBIT 3.1
FORM OF RESTATED
CERTIFICATE OF INCORPORATION
OF
DYAX CORP.
We, the undersigned, for the purpose of amending and restating the
Amended and Restated Certificate of Incorporation of Dyax Corp. (the
"Corporation") under the laws of the State of Delaware, hereby certify as
follows:
A. The Corporation was incorporated under the name Biotage, Inc.
pursuant to an original Certificate of Incorporation filed with the Secretary of
State of the State of Delaware on May 26, 1989.
B. The amendments to and the restatement of the Amended and Restated
Certificate of Incorporation of the Corporation herein certified have been
approved by the Board of Directors of the Corporation and duly adopted by the
stockholders of the Corporation in accordance with the provisions of Sections
228, 242 and 245 of the General Corporation Law of the State of Delaware. Prompt
written notice of the adoption of the amendments herein certified has been given
to those stockholders who have not consented in writing thereto, as provided in
Section 228 of the General Corporation Law of the State of Delaware.
C. The Amended and Restated Certificate of Incorporation of the
Corporation, as previously amended and restated, is hereby restated and further
amended to read as follows:
FIRST: The name of the Corporation is DYAX CORP.
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1013 Centre Road, City of Wilmington, County of Newcastle. The
name of its registered agent at such address is Corporation Service 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 the State of Delaware.
FOURTH: The Corporation shall be authorized to issue Fifty-One Million
(51,000,000) shares of capital stock, which shall be divided into Fifty Million
(50,000,000) shares of Common Stock, par value $0.01 per share, and One Million
(1,000,000) shares of Preferred Stock, par value $0.01 per share.
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.
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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
The Common Stock is subject to the rights and preferences of the
Preferred Stock as hereinbefore set forth or authorized.
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
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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.
Subject to the rights of any one or more series of Preferred Stock, the
holders of 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.
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 shall be entitled to share ratably
according to the number of shares of Common Stock held by them in all remaining
assets of the Corporation available for distribution to its stockholders.
ISSUANCE
Subject to the provisions of this 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. Any vote or votes authorizing liquidation of the Corporation or
proceedings for its dissolution may provide, subject to the rights of creditors
and the rights expressly provided for particular classes or series of stock, for
the distribution among the stockholders of the Corporation of the assets of the
Corporation as provided herein, wholly or in part or in kind, whether such
assets be in cash or other property, and may authorize the Board of Directors of
the Corporation to determine the valuation of the different assets of the
Corporation for the purpose of such liquidation and may divide or authorize the
Board of Directors to divide such assets or any part thereof among the
stockholders of the Corporation, in such manner that every stockholder will
receive a proportionate amount in value (determined as provided herein) of cash
or property of the Corporation upon such liquidation or dissolution even though
each stockholder may not receive a strictly proportionate part of each such
asset.
2. 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 1999 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 2000 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 2001 annual meeting of
stockholders. At each such annual meeting of stockholders and at each annual
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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.
3. 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.
4. 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.
5. Elections of directors need not be by ballot.
6. The Board of Directors of the Corporation is expressly authorized to
adopt, amend or repeal the by-laws of the Corporation.
7. The Corporation shall, to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as amended from time to time,
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, by reason of the fact that he
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, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal therefrom.
Indemnification shall include payment by the Corporation of expenses in
defending an action or proceeding in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by the person indemnified to
repay such payment if it is ultimately determined
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that such person is not entitled to indemnification under this Article, which
undertaking shall be accepted without reference to the financial ability of such
person to make such repayments.
The Corporation shall not indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person unless the initiation thereof was approved or ratified by the Board
of Directors of the Corporation.
The indemnification rights provided in this Article (i) shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any law, agreement or vote of stockholders or disinterested directors or
otherwise, and (ii) shall inure to the benefit of the heirs, executors and
administrators of such persons. 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 the
Corporation and such rights may be equivalent to, or greater or less than, those
set forth in this Article.
Any person seeking indemnification under this Article shall be deemed
to have met the standard of conduct required for such indemnification unless the
contrary shall be established.
Any amendment or repeal of the provisions of this Article shall not
adversely affect any right or protection of a director or officer of this
Corporation with respect to any act or omission of such director or officer
occurring before such amendment or repeal.
8. 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 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.
9. 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: 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
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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 the Corporation under
the provision 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 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 the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
SEVENTH: 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 Seventh may not be amended, revised or revoked, in whole
or in part, except by the affirmative vote of the holders of 66 2/3% 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 Seventh as
one class of stock.
EIGHTH: 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.
NINTH: 1. Except as set forth in Section 2 of this Article Ninth, the
affirmative vote of the holders of 66 2/3% 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 Ninth as one class, shall be required:
(a) for the adoption of any agreement for the merger or consolidation
of the Corporation or any Subsidiary (as hereinafter defined) with or
into any Other Corporation (as hereinafter defined);
(b) to authorize any sale, lease, exchange, mortgage, pledge or other
disposition of all or substantially all of the assets of the
Corporation or any Subsidiary to any Other Corporation;
(c) to authorize the issuance or transfer by the Corporation of any
Substantial Amount (as hereinafter defined) of securities of the
Corporation in exchange for the securities or assets of any Other
Corporation; or
(d) to engage in any other transaction the effect of which is to
combine the assets and business of the Corporation or any Subsidiary
with any Other Corporation.
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Such affirmative vote shall be in addition to the vote of the holders of the
stock of the Corporation otherwise required by law, elsewhere in this Restated
Certificate of Incorporation or any agreement or contract to which the
Corporation is a party.
2. The provisions of Section 1 of this Article Ninth shall not be
applicable to any transaction described therein if such transaction is approved
by a resolution of the Board of Directors of the Corporation, PROVIDED THAT the
directors voting in favor of such resolution include a majority of the
Independent Board Members (as defined below). In considering such transaction,
the Board of Directors shall give due consideration to all relevant factors,
including without limitation the social and economic effects on the employees,
customers, suppliers and other constituents of the Corporation and its
Subsidiaries and on the communities in which the Corporation and its
Subsidiaries operate or are located.
3. The Board of Directors of the Corporation shall have the power and
duty to determine for the purposes of this Article Ninth, on the basis of
information known to such Board, if and when any person, firm, corporation or
other entity, other than a Subsidiary of the Corporation, is an Other
Corporation (as defined below). In determining whether a person, firm,
corporation or other entity is an Other Corporation, such person, firm,
corporation or other entity shall be deemed to be the "Beneficial Owner" of
shares of stock of the Corporation entitled to vote in the election of directors
if he, she or it or any "affiliate" or "associate" of such person, firm,
corporation or other entity (as those terms are defined in Rule 12b-2
promulgated under the Securities Exchange Act of 1934, as amended from time to
time), directly or indirectly, controls the voting of such stock or has any
options, warrants, conversion or other rights to acquire such stock. Any such
determination, if made in good faith, shall be conclusive and binding for all
purposes under this Article Ninth, until the ownership interest of such person,
firm, corporation or other entity increases.
4. As used in this Article Ninth, the following terms shall have the
meanings indicated:
"Independent Board Members" shall be those persons then in
office (but not less than 1) who were duly elected and acting members of the
Board of Directors as of the last election of directors prior to the date on
which the Other Corporation involved in the proposed transaction first became an
Other Corporation, as determined by the Board of Directors in accordance with
Section 3 above.
"Other Corporation" means any person, firm, corporation or
other entity, other than a Subsidiary of the Corporation, which is the
Beneficial Owner of 5% or more of the shares of stock of the Corporation
entitled to vote in the election of directors, as determined in accordance with
Section 3 above.
"Subsidiary" means any corporation in which the Corporation
owns, directly or indirectly, more than 50% of the voting securities.
"Substantial Amount" means any securities of the Corporation
having a then fair market value of more than $500,000.
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5. The Corporation elects to be governed by Section 203 of the
Delaware General Corporation Law.
6. This Article Ninth may not be amended, revised or revoked, in whole
or in part, except by the affirmative vote of the holders of 66 2/3% 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 Ninth as one
class of stock.
Signed and attested this 18th day of August, 2000.
/s/ Henry E. Blair
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Henry E. Blair, President
Attest:
/s/ Nathaniel S. Gardiner
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Nathaniel S. Gardiner, Secretary
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