Exhibit 3.1
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Delaware
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PAGE 1 | |
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The
first State
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I, JEFFREY W.
BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE
OF “VERMILLION, INC.”, FILED IN THIS OFFICE ON THE TWENTY-SECOND DAY OF
JANUARY, A.D. 2010, AT 1:59 O’CLOCK P.M.
A FILED COPY
OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY
RECORDER OF DEEDS.
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/s/ Jeffrey W Bullock | ||||
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3233204
8100
100063637 |
Jeffrey W Bullock, Secretary of
State
AUTHENTICATION: 7773522 DATE: 01-22-10 |
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You may verify this certificate online
at corp.delaware.gov/authver.shtml |
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State of Delaware
Secretary of State Division of Corporations Delivered 02:14 PM 01/22/2010 FILED 01:59 PM 01/22/2010 SRV 100063637 — 3233204 FILE |
FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
VERMILLION, INC.
Vermillion, Inc., a corporation organized and existing under the laws of the State
of Delaware (the “Corporation”), hereby certifies as follows:
A. The present name of the Corporation is Vermillion, Inc. The Corporation
was originally incorporated under the name Ciphergen Biosystems, Inc. The
Corporation’s original Certificate of Incorporation was filed with the Secretary of State
of the State of Delaware on May 23, 2000. The Corporation’s Amended and Restated
Certificate of Incorporation was filed with the Secretary of State of the State of
Delaware
on September 28, 2000. The Corporation’s Amendment to Amended and Restated
Certificate of Incorporation was filed with the Secretary of State of the State of
Delaware
on July 13, 2007. The Corporation’s Second Amended and Restated Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on August
21, 2007. The Corporation’s Third Amended and Restated Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware on February 29, 2008.
B. This Fourth Amended and Restated Certificate of Incorporation was
directed by an order of the United States Bankruptcy Court for the District of Delaware
in accordance with the applicable provisions of Section 303 of the General Corporation
Law.
C. Pursuant to Section 242 and 245 of the General Corporation Law of the
State of Delaware, this Fourth Amended and Restated Certificate of Incorporation
restates and amends the provisions of the Certificate of Incorporation of the
Corporation.
D. The text of the Third Amended and Restated Certificate of Incorporation
is amended and restated to read as set forth in
EXHIBIT A
attached hereto.
IN WITNESS WHEREOF, Vermillion, Inc. has caused this Fourth Amended and Restated
Certificate of Incorporation to be signed by Gail S. Page, a duly authorized officer of the
Corporation, on December 24, 2009.
| /s/ Gail S. Page | ||||
| Gail S. Page | ||||
| Executive Chair of the Board of the Directors | ||||
EXHIBIT A
ARTICLE I
The name of this corporation is Vermillion, Inc.
ARTICLE II
The address of the corporation’s registered office in the State of Delaware is 1209 Orange
Street, City of Wilmington, County of New Castle, Delaware 19801. 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 a
corporation may be organized under the General Corporation Law of Delaware.
ARTICLE IV
The corporation
is authorized to issue two classes of shares of stock to be designated,
respectively, Common Stock, $0.001 par value, and Preferred Stock, $0.001 par value. The total
number of shares that the corporation is authorized to issue is 155,000,000 shares. The number of
shares of Common Stock authorized is 150,000,000. The number of shares of Preferred Stock
authorized is 5,000,000.
Notwithstanding anything to the contrary, to the extent prohibited by Section 1123(a)(6) of
Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”), the corporation will not
issue non-voting equity securities; provided, however that the foregoing restriction will (a) have
no further force and effect beyond that required under Section 1123 of the Bankruptcy Code, (b)
only have such force and effect for so long as Section 1123 of the Bankruptcy Code is in effect and
applicable to the Company, and (c) in all events may be amended or eliminated in accordance with
applicable law as from time to time may be in effect.
Effective upon close of business on March 3, 2008 (the “Effective Time”), each ten (10) shares
of Common Stock of the Corporation then issued and outstanding automatically shall be combined into
one (1) share of fully paid and nonassessable Common Stock of the Corporation. There shall be no
fractional shares of Common Stock issued. Each holder of shares of Common Stock who would otherwise
be entitled to receive a fractional share shall be entitled to receive a cash payment in lieu
thereof equal to the fraction to which the stockholder would otherwise be entitled multiplied by
the average of the closing sale prices of the Common Stock (as adjusted to reflect the reverse
split of shares hereby) for the 20 trading days immediately prior to the Effective Time, as
reported in The Wall Street Journal. If such price or prices are not available, the
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fractional share payment will be based on the average of the last bid and ask prices of the
Common Stock for such days, in each case as officially reported on the Nasdaq Capital Market, or
such other price as determined by the board of Directors of the Corporation.
The Preferred Stock may be issued from time to time in one or more series pursuant to a
resolution or resolutions providing for such issue duly adopted by the board of directors
(authority to do so being hereby expressly vested in the board). The board of directors is further
authorized to determine or alter the rights, including voting rights, preferences, privileges and
restrictions granted to or imposed upon any wholly unissued series of Preferred Stock and to fix
the number of shares of any series of Preferred Stock and the designation of any such series of
Preferred Stock. The board of directors, within the limits and restrictions stated in any
resolution or resolutions of the board of directors originally fixing the number of shares
constituting any series, may increase or decrease (but not below the number of shares of any such
series then outstanding) the number of shares of any series subsequent to the issue of shares of
that series.
The authority of the board of directors with respect to each such class or series shall
include, without limitation of the foregoing, the right to determine and fix:
(a) the distinctive designation of such class or series and the number of shares
to constitute such class or series;
(b) the rate at which dividends on the shares of such class or series shall be
declared and paid, or set aside for payment, whether dividends at the rate so determined
shall be cumulative or accruing, and whether the shares of such class or series shall be
entitled to any participating or other dividends in addition to dividends at the rate so
determined, and if so, on what terms;
(c) the right or obligation, if any, of the corporation to redeem shares of the
particular class or series of Preferred Stock and, if redeemable, the price, terms and
manner of such redemption;
(d) the special and relative rights and preferences, if any, and the amount or
amounts per share that the shares of such class or series of Preferred Stock shall be
entitled to receive upon any voluntary or involuntary liquidation, dissolution or winding
up of the corporation;
(e) the terms and conditions, if any, upon which shares of such class or series
shall be convertible into, or exchangeable for, shares of capital stock of any other class or
series, including the price or prices or the rate or rates of conversion or exchange and the
terms of adjustment, if any;
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(f) the obligation, if any, of the corporation to retire, redeem or purchase shares of such class or series pursuant to a sinking fund or fund of a similar nature or
otherwise, and the terms and conditions of such obligation;
(g) voting rights, if any, on the issuance of additional shares of such class or
series or any shares of any other class or series of Preferred Stock;
(h) limitations, if any, on the issuance of additional shares of such class or series or
any shares of any other class or series of Preferred Stock; and
(i) such other preferences, powers, qualifications, special or relative rights,
including voting rights, and privileges thereof as the board of directors of the corporation,
acting in accordance with this Restated Certificate of Incorporation, may deem advisable and are
not inconsistent with law and the provisions of this Restated Certificate of Incorporation.
ARTICLE V
The corporation reserves the right to amend, alter, change, or repeal any provision contained
in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon the stockholders herein are granted subject to this right.
ARTICLE VI
The corporation is to have perpetual existence.
ARTICLE VII
1. LIMITATION OF LIABILITY. To the fullest extent permitted by the
General Corporation Law of the State of Delaware as the same exists or as may hereafter
be amended, 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.
2. INDEMNIFICATION. The corporation shall indemnify to the fullest
extent permitted by law any person made or threatened to be made a party to an action or
proceeding, whether criminal, civil, administrative or investigative, by reason of the fact
that such person or his or her testator or intestate is or was a director or officer of the
corporation, or any predecessor of the corporation, or serves or served at any other
enterprise as a director, officer or employee at the request of the corporation or any
predecessor to the corporation and may indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that such person or
his or her testator or intestate is or was an employee of the corporation, or any
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predecessor of the corporation, or serves or served at any other enterprise as a director, officer
or employee at the request of the corporation or any predecessor to the corporation.
3. AMENDMENTS. Neither any amendment nor repeal of this Article VII, nor the adoption
of any provision of the corporation’s Certificate of Incorporation inconsistent with this Article
VII, shall eliminate or reduce the effect of this Article VII, in respect of any matter occurring,
or any action or proceeding accruing or arising or that, but for this Article VII, would accrue or
arise, prior to such amendment, repeal, or adoption of an inconsistent provision.
ARTICLE VIII
In the event any shares of Preferred Stock shall be redeemed or converted pursuant to the
terms hereof, the shares so converted or redeemed shall not revert to the status of authorized but
unissued shares, but instead shall be canceled and shall not be re-issuable by the corporation.
ARTICLE IX
Holders of stock of any class or series of the corporation shall not be entitled to cumulate
their votes for the election of directors or any other matter submitted to a vote of the
stockholders, unless such cumulative voting is required pursuant to Sections 214 of the Delaware
General Corporation Law, in which event each such holder shall be entitled to as many votes as
shall equal the number of votes which (except for this provision as to cumulative voting) such
holder would be entitled to cast for the election of directors with respect to his shares of stock
multiplied by the number of directors to be elected by him, and the holder may cast all of such
votes for a single director or may distribute them among the number of directors to be voted for,
or for any two or more of them as such holder may see fit, so long as the name of the candidate for
director shall have been placed in nomination prior to the voting and the stockholder, or any other
holder of the same class or series of stock, has given notice at the meeting prior to the voting of
the intention to cumulate votes.
1. NUMBER OF DIRECTORS. The number of directors that constitutes the whole Board of
Directors of the corporation shall be designated in the Amended and Restated Bylaws of the
corporation. The directors shall be divided into three classes with the term of office of the first
class (Class I) to expire at the annual meeting of stockholders held in 2001; the term of office of
the second class (Class II) to expire at the annual meeting of stockholders held in 2002; the term
of office of the third class (Class III) to expire at the annual meeting of stockholders held in
2003; and thereafter for each such term to expire at each third succeeding annual meeting of
stockholders after such election.
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2. ELECTION OF DIRECTORS. Elections of directors need not be by written ballot
unless the Amended and Restated Bylaws of the corporation shall so provide.
ARTICLE X
In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors is expressly authorized to make, alter, amend or repeal the Amended and Restated Bylaws
of the corporation.
ARTICLE XI
No action shall be taken by the stockholders of the corporation except at an annual or special
meeting of the stockholders called in accordance with the Amended and Restated Bylaws, no special
meetings of the stockholders shall be called by stockholders without approval of the Board of
Directors, and no action, including the removal of directors without cause shall be taken by the
stockholders by written consent. The affirmative vote of sixty-six and two-thirds percent (66 2/3%)
of the then outstanding voting securities of the corporation, voting together as a single class,
shall be required for the amendment, repeal or modification of the provisions of Article IX,
Article X, Article XI or Article XII of this Amended and Restated Certificate of Incorporation or
Sections 2.3 (Special Meeting), 2.4 (Notice of Stockholders’ Meeting), 2.8 (Voting), or 3.2 (Number
of Directors) of the corporation’s Amended and Restated Bylaws.
ARTICLE XII
Meetings of stockholders may be held within or without the State of Delaware, as the Amended
and Restated Bylaws may provide. The books of the corporation may be kept (subject to any provision
contained in the statutes) outside of 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 Amended and Restated Bylaws of the
corporation.
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