Attached files
file | filename |
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S-1/A - AMENDMENT NO.2 TO FORM S-1 - ArborGen Inc. | b82774a2sv1za.htm |
EX-3.2 - EX-3.2 - ArborGen Inc. | b82774a2exv3w2.htm |
EX-10.5 - EX-10.5 - ArborGen Inc. | b82774a2exv10w5.htm |
EX-10.2 - EX-10.2 - ArborGen Inc. | b82774a2exv10w2.htm |
EX-10.3 - EX-10.3 - ArborGen Inc. | b82774a2exv10w3.htm |
EX-10.4 - EX-10.4 - ArborGen Inc. | b82774a2exv10w4.htm |
EX-10.6 - EX-10.6 - ArborGen Inc. | b82774a2exv10w6.htm |
EX-10.8 - EX-10.8 - ArborGen Inc. | b82774a2exv10w8.htm |
EX-23.4 - EX-23.4 - ArborGen Inc. | b82774a2exv23w4.htm |
EX-10.7 - EX-10.7 - ArborGen Inc. | b82774a2exv10w7.htm |
EX-23.1 - EX-23.1 - ArborGen Inc. | b82774a2exv23w1.htm |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARBORGEN INC.
ArborGen Inc. a corporation organized and existing under the laws of the State of Delaware
(the Corporation), hereby certifies as follows:
1. The name of the Corporation is ArborGen Inc. The date of the effectiveness of its original
Certificate of Incorporation with the Secretary of State of the State of Delaware was June 1, 2010
(the Original Certificate).
2. This Amended and Restated Certificate of Incorporation (the Certificate) amends, restates
and integrates the provisions of the Original Certificate, and was duly adopted in accordance with
the provisions of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware
(the DGCL).
3. The text of the Original Certificate is hereby amended and restated in its entirety to
provide as herein set forth in full.
ARTICLE I
The name of the Corporation is ArborGen Inc.
ARTICLE II
The address of the Corporations registered office in the State of Delaware is c/o The
Corporation Trust Company, 1209 Orange Street in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
The total number of shares of capital stock which the Corporation shall have authority to
issue is Two Hundred Ten Million (210,000,000), of which (i) Two Hundred Million (200,000,000)
shares shall be a class designated as common stock, par value $0.001 per share
(the Common Stock), and (ii) Ten Million (10,000,000) shares shall be a class designated as
undesignated preferred stock, par value $0.001 per share (the Undesignated Preferred Stock).
Except as otherwise provided in any certificate of designations of any series of Undesignated
Preferred Stock, the number of authorized shares of the class of Common Stock or Undesignated
Preferred Stock may from time to time be increased or decreased (but not below the number of shares
of such class outstanding) by the affirmative vote of the holders of a majority in voting power of
the outstanding shares of capital stock of the Corporation irrespective of the provisions of
Section 242(b)(2) of the DGCL.
The powers, preferences and rights of, and the qualifications, limitations and restrictions
upon, each class or series of stock shall be determined in accordance with, or as set forth below
in, this Article IV.
A. COMMON STOCK
Subject to all the rights, powers and preferences of the Undesignated Preferred Stock and
except as provided by law or in this Certificate (or in any certificate of designations of any
series of Undesignated Preferred Stock):
(a) the holders of the Common Stock shall have the exclusive right to vote for the election of
directors of the Corporation (the Directors) and on all other matters requiring stockholder
action, each outstanding share entitling the holder thereof to one vote on each matter properly
submitted to the stockholders of the Corporation for their vote; provided, however,
that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled
to vote on any amendment to this Certificate (or on any amendment to a certificate of designations
of any series of Undesignated Preferred Stock) that alters or changes the powers, preferences,
rights or other terms of one or more outstanding series of Undesignated Preferred Stock if the
holders of such affected series of Undesignated Preferred Stock are entitled to vote, either
separately or together with the holders of one or more other such series, on such amendment
pursuant to this Certificate (or pursuant to a certificate of designations of any series of
Undesignated Preferred Stock) or pursuant to the DGCL;
(b) dividends may be declared and paid or set apart for payment upon the Common Stock out of
any assets or funds of the Corporation legally available for the payment of dividends, but only
when and as declared by the Board of Directors or any authorized committee thereof; and
(c) upon the voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the net assets of the Corporation shall be distributed pro rata to the holders of the
Common Stock.
B. UNDESIGNATED PREFERRED STOCK
The Board of Directors or any authorized committee thereof is expressly authorized, to the
fullest extent permitted by law, to provide by resolution or resolutions for, out
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of the unissued shares of Undesignated Preferred Stock, the issuance of the shares of
Undesignated Preferred Stock in one or more series of such stock, and by filing a certificate of
designations pursuant to applicable law of the State of Delaware, to establish or change from time
to time the number of shares of each such series, and to fix the designations, powers, including
voting powers, full or limited, or no voting powers, preferences and the relative, participating,
optional or other special rights of the shares of each series and any qualifications, limitations
and restrictions thereof.
ARTICLE V
STOCKHOLDER ACTION
STOCKHOLDER ACTION
1. Action without Meeting. Any action required or permitted to be taken by the
stockholders of the Corporation at any annual or special meeting of stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders and may not be taken or
effected by a written consent of stockholders in lieu thereof.
2. Special Meetings. Except as otherwise required by statute and subject to the
rights, if any, of the holders of any series of Undesignated Preferred Stock, special meetings of
the stockholders of the Corporation may be called only by the Board of Directors acting pursuant to
a resolution approved by the affirmative vote of a majority of the Directors then in office, and
special meetings of stockholders may not be called by any other person or persons. Only those
matters set forth in the notice of the special meeting may be considered or acted upon at a special
meeting of stockholders of the Corporation.
ARTICLE VI
DIRECTORS
1. General. The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors except as otherwise provided herein or required by law.
2. Election of Directors. Election of Directors need not be by written ballot unless
the By-laws of the Corporation (the By-laws) shall so provide.
3. Number of Directors; Term of Office. The number of Directors of the Corporation
shall be fixed solely and exclusively by resolution duly adopted from time to time by the Board of
Directors. The Directors, other than those who may be elected by the holders of any series of
Undesignated Preferred Stock, shall be classified, with respect to the term for which they
severally hold office, into three classes, as nearly equal in number as reasonably possible. The
initial Class I Directors of the Corporation shall be Bruce G. Burton, Ph.D., M. Eugene Hundley and
Kenneth R. Munson, Ph.D.; the initial Class II Directors of the Corporation shall be S. Luke
Moriarty, Mark T. Watkins, Sr. and David A. Liebetreu; and the initial Class III
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Directors of the Corporation shall be Barbara H. Wells, Ph.D. and Edward T. Shonsey. The
initial Class I Directors shall serve for a term expiring at the annual meeting of stockholders to
be held in 2011, the initial Class II Directors shall serve for a term expiring at the annual
meeting of stockholders to be held in 2012, and the initial Class III Directors shall serve for a
term expiring at the annual meeting of stockholders to be held in 2013. At each annual meeting of
stockholders, 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 after their
election. Notwithstanding the foregoing, the Directors elected to each class shall hold office
until their successors are duly elected and qualified or until their earlier resignation, death or
removal.
Notwithstanding the foregoing, whenever, pursuant to the provisions of Article IV of this
Certificate, the holders of any one or more series of Undesignated Preferred Stock shall have the
right, voting separately as a series or together with holders of other such series, to elect
Directors at an annual or special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the terms of this
Certificate and any certificate of designations applicable to such series.
4. Vacancies. Subject to the rights, if any, of the holders of any series of
Undesignated Preferred Stock to elect Directors and to fill vacancies in the Board of Directors
relating thereto, any and all vacancies in the Board of Directors, however occurring, including,
without limitation, by reason of an increase in the size of the Board of Directors, or the death,
resignation, retirement, disqualification or removal of a Director, shall be filled solely and
exclusively by the affirmative vote of a majority of the remaining Directors then in office, even
if less than a quorum of the Board of Directors, and not by the stockholders. Any Director
appointed in accordance with the preceding sentence shall hold office for the remainder of the full
term of the class of Directors in which the new directorship was created or the vacancy occurred
and until such Directors successor shall have been duly elected and qualified or until his or her
earlier resignation, death or removal. Subject to the rights, if any, of the holders of any series
of Undesignated Preferred Stock to elect Directors, when the number of Directors is increased or
decreased, the Board of Directors shall, subject to Article VI.3 hereof, determine the class or
classes to which the increased or decreased number of Directors shall be apportioned;
provided, however, that no decrease in the number of Directors shall shorten the
term of any incumbent Director. In the event of a vacancy in the Board of Directors, the remaining
Directors, except as otherwise provided by law, shall exercise the powers of the full Board of
Directors until the vacancy is filled.
5. Removal. Subject to the rights, if any, of any series of Undesignated Preferred
Stock to elect Directors and to remove any Director whom the holders of any such series have the
right to elect, any Director (including persons elected by Directors to fill vacancies in the Board
of Directors) may be removed from office (i) only with cause and (ii) only by the affirmative vote
of the holders of 75% or more of the outstanding shares of capital stock then entitled to vote at
an election of Directors. At least forty-five (45) days prior to any annual or special meeting of
stockholders at which it is proposed that any Director be removed from office,
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written notice of such proposed removal and the alleged grounds thereof shall be sent to the
Director whose removal will be considered at the meeting.
ARTICLE VII
LIMITATION OF LIABILITY
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
(a) for any breach of the Directors 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 law, (c) under Section 174 of the DGCL or (d) for any transaction from which the
Director derived an improper personal benefit. If the DGCL is amended after the effective date of
this Certificate 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 DGCL, as so amended.
Any amendment, repeal or modification of this Article VII by either of (i) the stockholders of
the Corporation or (ii) an amendment to the DGCL, shall not adversely affect any right or
protection existing at the time of such amendment, repeal or modification with respect to any acts
or omissions occurring before such amendment, repeal or modification of a person serving as a
Director at the time of such amendment, repeal or modification.
ARTICLE VIII
AMENDMENT OF BY-LAWS
1. Amendment by Directors. Except as otherwise provided by law, the By-laws of the
Corporation may be amended or repealed by the Board of Directors by the affirmative vote of a
majority of the Directors then in office.
2. Amendment by Stockholders. The By-laws of the Corporation may be amended or
repealed at any annual meeting of stockholders, or special meeting of stockholders called for such
purpose, by the affirmative vote of at least 75% of the outstanding shares of capital stock
entitled to vote on such amendment or repeal, voting together as a single class; provided,
however, that if the Board of Directors recommends that stockholders approve such amendment
or repeal at such meeting of stockholders, such amendment or repeal shall only require the
affirmative vote of the majority of the outstanding shares of capital stock entitled to vote on
such amendment or repeal, voting together as a single class.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend or repeal this Certificate in the manner now or
hereafter prescribed by statute and this Certificate, and all rights conferred upon stockholders
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herein are granted subject to this reservation. Whenever any vote of the holders of capital stock
of the Corporation is required to amend or repeal any provision of this Certificate, and in
addition to any other vote of holders of capital stock that is required by this Certificate or by
law, such amendment or repeal shall require the affirmative vote of the majority of the outstanding
shares of capital stock entitled to vote on such amendment or repeal, and the affirmative vote of
the majority of the outstanding shares of each class entitled to vote thereon as a class, at a duly
constituted meeting of stockholders called expressly for such purpose; provided,
however, that the affirmative vote of not less than 75% of the outstanding shares of
capital stock entitled to vote on such amendment or repeal, and the affirmative vote of not less
than 75% of the outstanding shares of each class entitled to vote thereon as a class, shall be
required to amend or repeal any provision of Article V, Article VI, Article VII, Article VIII or
Article IX of this Certificate.
[End of Text]
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THIS AMENDED AND RESTATED CERTIFICATE OF INCORPORATION is executed as of this ____ day of
__________, __.
ARBORGEN INC. |
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By: | ||||
Name: | Barbara H. Wells, Ph.D. | |||
Title: | President and Chief Executive Officer | |||