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EXHIBIT 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VIROPHARMA INCORPORATED
FIRST: The corporate name of the corporation (hereinafter called the
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"Corporation") is ViroPharma Incorporated.
SECOND: The address of the registered office of the Corporation in the
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State of Delaware is located at 1013 Centre Road, Wilmington, Delaware 19805,
County of New Castle, and the name of the registered agent of this Corporation
in the State of Delaware at such address is The Prentice-Hall Corporation
System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful business
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or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware and, in general, to possess and
exercise all the powers and privileges granted by the General Corporation Law of
the State of Delaware or by any other law of Delaware or by the Certificate of
Incorporation, together with any powers incidental thereto, so far as such
powers and privileges are necessary or convenient to the conduct, promotion or
attainment of the business or purposes of the Corporation.
FOURTH: A. The Corporation is authorized to issue two (2) classes of
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capital stock, to be designated, respectively, Preferred Stock ("Preferred
Stock") and Common Stock ("Common Stock"). The total number of shares of capital
stock which the Corporation is authorized to issue is Thirty Two Million
(32,000,000). The total number of shares of Common Stock which the Corporation
shall have the authority to issue is Twenty Seven Million (27,000,000). The
total number of shares of Preferred Stock which the Corporation shall have the
authority to issue is Five Million (5,000,000). The Preferred Stock shall have a
par value of $.001 per share, and the Common Stock shall have a par value of
$.001 per share.
B. The Board of Directors of the Corporation is authorized,
subject to limitations prescribed by law and the provisions of this Article
FOURTH, to provide for the issuance of all or any 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 designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each
series shall include, but not be limited to, determination as to the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
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(b) The dividend rate on the shares of that series, if any,
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 that 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; and
(h) Any other relative rights, preferences and limitations of
that series.
Unless otherwise provided in the certificate for each such series, shares
of Preferred Stock of any series which shall be issued and thereafter acquired
by the Corporation through purchase, redemption, exchange, conversion or
otherwise shall return to the status of authorized but unissued Preferred Stock.
FIFTH: The Board of Directors of the Corporation shall consist of such
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number of directors as shall be fixed from time to time by resolution of the
Board of Directors. The Board of Directors shall be divided into three classes,
which shall be as nearly equal in number as possible. Directors of each class
shall serve for a term of three years and until their successors shall have been
elected and qualified. The three initial classes of directors shall be comprised
as follows:
(i) Class I shall be comprised of directors who shall serve
until the annual meeting of stockholders held in the first year following
the year in which the initial classes of directors were established and
until their successors shall have been elected and qualified.
(j) Class II shall be comprised of directors who shall serve
until the annual meeting of stockholders held in the second year following
the year in which the initial classes of directors were established and
until their successors shall have been elected and qualified.
(k) Class III shall be comprised of directors who shall serve
until the annual meeting of stockholders held in the third year following
the year in which the initial classes of directors were established and
until their successors shall have been elected and qualified.
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SIXTH: No director of the Corporation shall be personally liable to the
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Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, provided, however, that the foregoing clause shall
not apply to any 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 Title 8 of the General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit. Any repeal or modification of the
foregoing paragraph by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation existing at the
time of such repeal or modification.
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CERTIFICATE OF CORRECTION FILED TO
CORRECT A CERTAIN ERROR IN THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
VIROPHARMA INCORPORATED
(Pursuant to Section 103(f) of the General Corporation Law of the State of
Delaware)
ViroPharma Incorporated (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, does hereby
certify that:
1. A Second Amended and Restated Certificate of Incorporation (the
"Certificate") was filed by the Delaware Secretary of State on November 22,
1996, and said Certificate is an inaccurate record of the corporate action
therein referred to, in that it incorrectly stated the number of the Certificate
as the "Second" Amended and Restated Certificate of Incorporation of the
Corporation.
2. The Certificate is hereby corrected as follows:
a. The introductory heading of the Certificate is hereby corrected to
read in its entirety as follows:
"AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION OF VIROPHARMA INCORPORATED."
b. Article SECOND of the Certificate is hereby corrected to read in
its entirety as follows:
"SECOND: This Amended and Restated Certificate of Incorporation
restates, integrates and amends the Amended and Restated Certificate of
Incorporation of the Corporation filed with the Secretary of State of Delaware
on May 31, 1996, as amended on October 15, 1996."
c. Article FOURTH of the Certificate is hereby corrected to read in
its entirety as follows:
"FOURTH: This Amended and Restated Certificate of Incorporation was
duly adopted in accordance with the applicable provisions of Section 242 and 245
of the General Corporation Law of the State of Delaware."
d. The introductory heading to Appendix A attached to the Certificate
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is hereby corrected to read in its entirety as follows:
"AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION OF VIROPHARMA INCORPORATED"
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3. This Certificate of Correction is permitted by Section 103(f) of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, ViroPharma Incorporated, has caused this certificate to
be signed by an authorized officer this 25th day of May, 1999.
VIROPHARMA INCORPORATED
/s/ Thomas F. Doyle
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Thomas F. Doyle
Vice President and General Counsel
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CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
VIROPHARMA INCORPORATED
VIROPHARMA INCORPORATED, (the "Corporation"), a corporation organized and
existing under of the General Corporation Law of the State of Delaware, does
hereby certify:
FIRST: That the board of directors of the Corporation (the "Board of
Directors"), by unanimous written consent filed with the minutes of proceedings
of the Board of Directors, duly adopted a resolution declaring advisable the
amendment of the Amended and Restated Certificate of Incorporation of the
Corporation and submitted the same to the stockholders of the Corporation for
approval. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Amended and Restated Certificate of Incorporation of the
Corporation shall be amended by adding the following Article "SEVENTH"
thereto following the Article thereof numbered "SIXTH":
"SEVENTH: In furtherance of the powers conferred by the General Corporation
Law of the State of Delaware, the Board of Directors of the Corporation is
expressly authorized and empowered to make, alter, amend and repeal the
Bylaws of the Corporation, except as otherwise provided or permitted in the
Bylaws of the Corporation or under the General Corporation Law of the State
of Delaware."
SECOND: That the stockholders of the Corporation have duly approved the
aforesaid amendment in accordance with the provisions of (S)212 of the General
Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
provisions of (S)242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Viropharma Incorporated has caused this Certificate of
Amendment to be signed by an authorized officer this 18th day of May, 1999.
VIROPHARMA INCORPORATED
/s/ Thomas F. Doyle
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Thomas F. Doyle
Vice President and General Counsel
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AMENDED CERTIFICATE OF INCORPORATION
OF
VIROPHARMA INCORPORATED
Claude H. Nash and Thomas F. Doyle hereby certify that:
ONE: The original name of this corporation is ViroPharma Incorporated and
the date of filing the original Certificate of Incorporation of this corporation
with the Secretary of State of the State of Delaware was September 26, 1994.
TWO: They are the duly elected and acting President and Secretary,
respectively, of ViroPharma Incorporated, a Delaware corporation.
THREE: Paragraph A of Article Fourth of the Certificate of Incorporation
of this corporation is hereby amended to read in its entirety as follows:
"FOURTH: A. The Corporation is authorized to issue two (2) classes of
capital stock, to be designated, respectively, Preferred Stock ("Preferred
Stock") and Common Stock ("Common Stock"). The total number of shares of capital
stock which the Corporation is authorized to issue is One Hundred Five Million
(105,000,000). The total number of shares of Common Stock which the Corporation
shall have the authority to issue is One Hundred Million (100,000,000). The
total number of shares of Preferred Stock which the Corporation shall have the
authority to issue is Five Million (5,000,000). The Preferred Stock shall have a
par value of $.001 per share, and the Common Stock shall have a par value of
$.002 per share."
FOUR: This Amended Certificate of Incorporation has been duly approved by
the Board of Directors of this Corporation.
FIVE: This Amended Certificate of Incorporation has been duly adopted in
accordance with the provisions of Section 242 of the General Corporation Law of
the State of Delaware by the Board of Directors and the stockholders of the
Corporation. The total number of outstanding shares entitled to vote or act by
written consent was 17,502,930 shares consisting of 15,156,635 shares of Common
Stock and 2,300,000 shares of Series A Convertible Participating Preferred Stock
which were convertible into 2,346,295 shares of Common Stock. The shares of
Series A Convertible Participating Preferred Stock have the right to vote to one
vote for each share of Common Stock into which the Series A Convertible
Participating Preferred Stock is convertible into. A majority of the outstanding
shares of Common Stock and Series A Convertible Participating Preferred Stock
approved this Amended Certificate of Incorporation by vote at a duly called
meeting of the shareholders held on May 18, 2000 held in accordance with Section
211 of the General Corporation Law of the State of Delaware and written notice
of such was given by the Corporation in accordance with Section 222 of the
General Corporation Law of the State of Delaware.
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In Witness Whereof, ViroPharma Incorporated has caused this Amended
Certificate of Incorporation to be signed by its President and the Secretary in
Exton, Pennsylvania this 24th day of May 2000.
VIROPHARMA INCORPORATED
By: /s/ Claude H. Nash
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Name: Claude H. Nash
Title:President
Attest:
VIROPHARMA INCORPORATED
By: /s/ Thomas F. Doyle
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Name: Thomas F. Doyle
Title:Secretary
