Exhibit 3.1
FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TRIMERIS, INC.
Pursuant to Sections 242 and 245
of the General Corporation Law of
the State of Delaware
TRIMERIS, INC. (the "Corporation"), a corporation duly organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify as follows:
1. The name of the Corporation is TRIMERIS, INC.
2. The Corporation's original Certificate of Incorporation was filed
with the Secretary of State of the State of Delaware under the
name SL-1 Pharmaceuticals, Inc. on January 7, 1993.
3. The Certificate of Incorporation of the Corporation is hereby
amended by striking out the first paragraph of Article Fourth
thereof and substituting in lieu thereof that new Article Fourth
which is set forth in the Fourth Amended and Restated Certificate
of Incorporation.
4. This Fourth Restated Certificate of Incorporation was duly
adopted in accordance with the provisions of Sections 242 and 245
of the General Corporation Law of the State of Delaware, and was
approved by the holders of a majority of the issued and
outstanding capital stock of the Corporation in accordance with
the provisions of Sections 211 and 212 of the General Corporation
Law of the State of Delaware.
5. The effective time of the Fourth Amended and Restated Certificate
of Incorporation shall be 9:00 a.m. on June 23, 2000.
6. The Certificate of Incorporation of the Corporation, as amended
and restated herein, shall at the effective time of this Fourth
Amended and Restated Certificate of Incorporation read as
follows:
"RESOLVED, that the Third Restated Certificate of
Incorporation of the Corporation, as heretofore amended, supplemented
or restated, be amended and restated in its entirety to read as
follows:
* * * * * *
FIRST. The name of the Corporation is TRIMERIS, INC.
SECOND. The address of the registered office of the
Corporation in the State of Delaware is 1013 Centre Road, Wilmington,
New Castle County,
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Delaware 19805 and the name of the registered agent is Corporation
Service Company.
THIRD. The purpose for which the Corporation is organized 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 have the authority to issue
70,000,000 shares of capital stock, of which 60,000,000 shares shall be
Common Stock having a par value of $0.001 per share ("Common Stock"),
and of which 10,000,000 shares shall be Preferred Stock having a par
value of $0.001 per share ("Preferred Stock").
The following is a statement of the designations and the
powers, privileges and rights and the qualifications, limitations or
restrictions thereof in respect to each class of capital stock of the
Corporation.
A. Common Stock.
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 the Preferred Stock or any series as may
be designated by the Board of Directors upon any
issuance of the Preferred Stock or any series.
2. Voting. The holders of the Common
Stock are entitled to one vote for each share held.
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 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 the State of Delaware.
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.
4. Liquidation. Upon the dissolution or
liquidation of the Corporation, whether voluntary or
involuntary, holders of the Common Stock will be
entitled to receive all of the assets of the
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Corporation available for distribution to its
stockholders, subject to any preferential rights of
any then outstanding Preferred Stock.
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 designation 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 or this Fourth
Restated Certificate of Incorporation. 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 designate the Preferred Stock
in one or more series, and in connection with the designation
of any such series, by resolution 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
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 the State of
Delaware. Without limiting the generality of the foregoing,
the resolutions providing for designation 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 and this Fourth
Restated Certificate of Incorporation. Except as otherwise
provided in this Fourth Restated 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 Fourth 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.
FIFTH. The Corporation shall have perpetual existence.
SIXTH. In furtherance of and not in limitation of powers
conferred by statute, it is further provided:
1. Election of directors need not be by written ballot.
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2. The Board of Directors of the Corporation shall have
the power to adopt, amend or repeal the Bylaws of the
Corporation.
SEVENTH. 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 a consequence of such compromise of 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.
EIGHTH. No Director of the Corporation shall have personal
liability arising out of an action whether by or in the right of the
Corporation or otherwise for monetary damages for breach of fiduciary
duty as a Director; provided, however, that the foregoing shall not
eliminate or limit the liability of a Director (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 of the
General Corporation Law of the State of Delaware or any successor
provision; (iv) for any transaction from which such Director derived an
improper personal benefit; or (v) for acts or omissions occurring prior
to the date of the effectiveness of this provision.
Furthermore, notwithstanding the foregoing provision, in the
event that the General Corporation Law of the State of Delaware is
amended or enacted to permit further elimination or limitation of the
personal liability of a Director, the personal liability for the
Corporation's Directors shall be limited or eliminated to the fullest
extent permitted by the applicable law.
This provision shall not affect any provision permitted under
the General Corporation Law of the State of Delaware, in the certificate
of incorporation, bylaws or contract or resolution of the Corporation
indemnifying or agreeing to indemnify a Director of the Corporation
against personal liability. Any repeal or
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modification of this provision shall not adversely affect any limitation
hereunder on the personal liability of a Director of the Corporation
with respect to acts or omissions occurring prior to such repeal or
modification.
NINTH. The Corporation shall, to the fullest extent
permitted by Section 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and
all persons whom it shall have power to indemnify under said section
from and against any and all of the expenses, liabilities or other
matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any Bylaw,
agreement, vote of stockholders or disinterested Directors or otherwise,
both as to action in his or her official capacity and as to action in
another capacity while holding such office, and shall continue as to a
person who has ceased to be a Director, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators
of such a person. The Corporation shall advance expenses for the defense
of any Director, officer, employee or agent prior to a final disposition
of a claim provided such party executes an undertaking to repay advances
from the Corporation if it is ultimately determined that such party is
not entitled to indemnification. Any repeal or modification of this
Article shall not adversely affect any right or protection existing
hereunder immediately prior to such repeal or modification.
TENTH. The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Fourth Restated
Certificate of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon stockholders are herein
granted subject to this reservation.
ELEVENTH. This Article is inserted for the management of the
business and for the conduct of the affairs of the Corporation.
1. Number of Directors. The number of Directors of
the Corporation shall not be less than three. The exact number of Directors
within the limitations specified in the preceding sentence shall be fixed from
time to time by, or in the manner provided in, the Corporation's Bylaws.
2. Classes of Directors. The Board of Directors
shall be and is divided into three classes: Class I, Class II and Class III. No
one class shall have more than one Director more than any other class. If a
fraction is contained in the quotient arrived at by dividing the designated
number of directors by three, then, if such fraction is one-third, the extra
Director shall be a member of Class I, and if such fraction is two-thirds, one
of the extra Directors shall be a member of Class I and one of the extra
Directors shall be a member of Class II, unless otherwise provided from time to
time by resolution adopted by the Board of Directors.
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3. Terms of Office. Each Director shall serve for a
term ending on the date of the third annual meeting following the annual meeting
at which such Director was elected; provided, that each initial Director in
Class I shall serve for a term ending on the date of the annual meeting in 1998;
each initial Director in Class II shall serve for a term ending on the date of
the annual meeting in 1999; and each initial Director in Class III shall serve
for a term ending on the date of the annual meeting in 2000; and provided
further, that the term of each Director shall be subject to the election and
qualification of his successor and to his earlier death, resignation or removal.
4. Allocation of Directors Among Classes in the Event of
Increases or Decreases in the Number of Directors. In the event of any
increases or decreases 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, and (ii) the newly created or eliminated directorships
resulting from such increase or decrease shall 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 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 any newly eliminated directorships shall be
subtracted from those classes whose terms of offices are to expire at the
earliest dates following such allocation, unless otherwise provided from time to
time by resolution adopted by the Board of Directors.
5. Quorum; Action at Meeting. A majority of the
Directors at any time in office shall constitute a quorum for the transaction of
business. In the event one or more of the Directors shall be disqualified to
vote at any meeting, then the required quorum shall be reduced by one for each
Director so disqualified, provided that in no case shall less than one-third of
the number of Directors fixed pursuant to Section 1 of this Article constitute a
quorum. If at any meeting of the Board of Directors there shall be less than
such a quorum, a majority of those present may adjourn the meeting from time to
time. Every act or decision done or made by a majority of the Directors present
shall be regarded as the act of the Board of Directors unless a greater number
is required by law, by the Bylaws of the Corporation or by this Certificate of
Incorporation.
6. Removal. A Director may be removed from office with
cause by the affirmative vote of at least seventy-five percent (75%) of all
eligible votes present in person or by proxy at a meeting of stockholders at
which a quorum is present. A Director may be removed from office without cause
by the affirmative vote of seventy-five percent (75%) of all eligible votes
present in person or by proxy at a meeting of stockholders at which a quorum is
present, provided that removal without cause is recommended to the stockholders
by the Board of Directors pursuant to a vote of not less than seventy-five
percent (75%) of the Directors then in office. If a Director is elected by a
separate voting group, only the members of that voting group may participate in
the vote to remove him. The entire Board of Directors may not be removed except
pursuant to the removal of individual Directors in accordance with the foregoing
provisions.
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For purposes of this Section, "cause" is defined as personal
dishonesty, incompetence, mental or physical incapacity, breach of fiduciary
duty involving personal profit, a failure to perform stated duties, or a
violation of any law, rule or regulation (other than a traffic violation or
similar routine offense) (based on a conviction for such offense or an opinion
of counsel to the Corporation that such violation has occurred).
7. Vacancies. Any vacancy in the Board of
Directors, however occurring, including a vacancy resulting from an enlargement
of the Board of Directors, shall be filled only by a vote of a majority of the
Directors then in office, although less than a quorum, or by a sole remaining
Director. A Director elected to fill a vacancy shall be elected to hold office
until the next election of the class for which such Director shall have been
chosen, subject to the election and qualifications of his successor and to his
earlier death, resignation or removal.
8. Stockholder Nominations and Introduction of Business,
Etc. Advance notice of stockholder nominations for election of Directors and
other business to be brought by stockholders before a meeting of stockholders
shall be given in the manner provided by the Bylaws of the Corporation.
9. Amendments to Article. Notwithstanding any other
provisions of law, this Fourth Restated Certificate of Incorporation or the
Bylaws of the Corporation , each as amended, and notwithstanding the fact that a
lesser percentage may be specified by law, the affirmative vote of the holders
of at least seventy-five percent (75%) of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote shall be required to
amend or repeal, or to adopt any provision inconsistent with, this Article;
provided, however, the provisions of this section shall not apply, and the
provisions of Delaware law otherwise applicable shall apply, to an amendment or
repeal approved by the Board of Directors by resolution adopted by a two-third
vote of all disinterested Directors then in office.
TWELFTH. Stockholders of the Corporation may not take
any action by written consent in lieu of a meeting. Notwithstanding any other
provisions of law, the this Fourth Restated Certificate of Incorporation or the
Bylaws of the Corporation, each as amended, and notwithstanding the fact that a
lesser percentage may be specified by law, the affirmative vote of the holders
of at least seventy-five percent (75%) of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote shall be required to
amend or repeal, or to adopt any provision inconsistent with, this Article;
provided, however, the provisions of this section shall not apply, and the
provisions of Delaware law otherwise applicable shall apply, to an amendment or
repeal approved by the Board of Directors by resolution adopted by a two-third
vote of all disinterested Directors then in office.
THIRTEENTH. Special meetings of the stockholders may be
called at any time by only the Chairman of the Board of Directors, the Chief
Executive Officer (or if there is no Chief Executive Officer, the President) or
the Board of Directors. Business transacted at any special meeting of
stockholders shall be limited to matters
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relating to the purpose or purposes stated in the notice of meeting.
Notwithstanding any other provision of law, this Fourth Restated Certificate of
Incorporation or the Bylaws of the Corporation, each as amended, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least seventy-five percent (75%) of the
shares of capital stock of the Corporation issued and outstanding and entitled
to vote shall be required to amend or repeal, or to adopt any provision
inconsistent with, this Article; provided, however, the provisions of this
section shall not apply, and the provisions of Delaware law otherwise applicable
shall apply, to an amendment or repeal approved by the Board of Directors by
resolution adopted by a two-third vote of all disinterested Directors then in
office.
FOURTEENTH. The Board of Directors, when considering a
tender offer or merger or acquisition proposal, may take into account factors in
addition to potential short-term economic benefits to stockholders of the
Corporation, including without limitation (i) comparison of the proposed
consideration to be received by stockholders in relation to the then current
market price of the Corporation's capital stock, the estimated current value of
the Corporation in a freely negotiated transaction, and the estimated future
value of the Corporation as an independent entity, and (ii) the impact of such a
transaction on the employees, suppliers, and customers of the Corporation and
its effect in the communities in which the Corporation operates.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
hereunto affixed and this certificate to be signed by Dani P. Bolognesi, its
Chief Executive Officer, who hereby acknowledges under penalties of perjury that
the facts herein stated are true and that this certificate is his act and deed,
and attested by Timothy J. Creech, its Secretary, this 22nd day of June, 2000.
TRIMERIS, INC.
[CORPORATE SEAL]
By: /s/ Dani P. Bolognesi
----------------------------
Dani P. Bolognesi
Chief Executive Officer
ATTEST:
By: /s/ Timothy J. Creech
---------------------------------
Timothy J. Creech
Secretary
