Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
BRUKER DALTONICS INC.
FIRST: The name of this corporation shall be:
Bruker Daltonics Inc.
SECOND: Its registered office in the State of Delaware is to be located
at 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801,
and its registered agent at such address is: THE CORPORATION TRUST COMPANY.
THIRD: The purpose or purposes of the corporation shall be:
To carry on any and all business and to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 105,000,000 shares, which shares shall be divided
into two classes consisting of: (i) 100,000,000 shares of Common Stock (with
$.01 par value per share) ("Common Stock") and (ii) 5,000,000 shares of
Preferred Stock (with $.01 par value per share) ("Blank Check Preferred Stock").
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the Common Stock and the
Preferred Stock shall be as follows:
A. COMMON STOCK
1. VOTING RIGHTS. Except as otherwise required by law or this
Certificate of Incorporation, each holder of Common Stock shall have one vote in
respect of each share of Common Stock held by him of record on the books of the
Corporation for the election of directors and on all matters submitted to a vote
of stockholders of the Corporation.
2. DIVIDENDS. The holders of shares of Common Stock shall be entitled
to receive, when and if declared by the Board of Directors, out of the assets of
the Corporation which are by law available therefor, dividends payable either in
cash, in property or in shares of capital stock, subject, however, to the
limitations contained in Part B below.
3. DISSOLUTION, LIQUIDATION OR WINDING UP. After distribution in full
of the preferential amount, if any, to be distributed to the holders of series
of the Blank Check Preferred Stock (in accordance with the relative preferences
among such series) in the event of involuntary liquidation, distribution,
dissolution or winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to receive all of the remaining assets of the Corporation,
tangible and intangible, or whatever kind available for distribution to
stockholders, ratably in proportion to the number of shares of Common Stock held
by them respectively.
B. BLANK CHECK PREFERRED STOCK
1. ISSUANCE. Shares of Blank Check Preferred Stock may be issued from
time to time in one or more series as designated by the Board of Directors, each
of said series to be distinctly designated. Shares of Blank Check Preferred
Stock may be issued when deemed by the Board of Directors to be necessary to
protect the Corporation from an actual, threatened or potential hostile or
undesired takeover or takeover attempt. All shares of any one series of the
Blank Check Preferred Stock shall be alike in every particular, except that
there may be different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers, if any, and the designations,
relative preferences, participating, optional or other special rights or
privileges of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other series
at any time outstanding.
2. AUTHORITY OF THE BOARD OF DIRECTORS. The Board of Directors is
authorized, subject to limitations prescribed by law and the provisions of this
Article FOURTH, to provide for the issuance of the shares of the Blank Check
Preferred Stock in 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 in the
resolution or resolutions providing for the issue of such stock adopted by the
Board of Directors of the Corporation the voting powers, if any, and the
designations, relative preferences, participating, optional or other special
rights or privileges, and the qualifications, limitations or restrictions of
such series, including, but without limiting the generality of the foregoing,
the following:
(a) The distinctive designation of, and the number of shares of the
Blank Check Preferred Stock which shall constitute such series. The
designation of a series of preferred stock need not include the
words "preferred" or "preference" and may be designated "special" or
other distinctive term. Unless otherwise provided in the resolution
issuing such series, the number of shares of any series of the Blank
Check Preferred Stock may be increased or decreased (but not below
the number of shares thereof then outstanding) by the Board of
Directors in the manner prescribed by law;
(b) The rate and times at which, and the terms and conditions upon
which, dividends, if any, on the Blank Check Preferred Stock of such
series shall be paid, the extent of the preference or relation, if
any, of such dividends to the dividends payable on any other class
or classes, or series of the same or other classes of stock and
whether such dividends shall be cumulative or non-cumulative and, if
cumulative, the date from which such dividends shall be cumulative;
(c) Whether the series shall be convertible into, or exchangeable
for, at the option of the holders of the Blank Check Preferred Stock
of such series or the Corporation or upon the happening of a
specified event, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the
Corporation, and the terms and conditions of such conversion or
exchange, including provisions for the adjustment of any such
conversion rate in such events as the Board of Directors shall
determine;
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(d) Whether or not the Blank Check Preferred Stock of such series
shall be subject to redemption at the option of the Corporation or
the holders of such series or upon the happening of a specified
event, and the redemption price or prices and the time or times at
which, and the terms and conditions upon which, the Blank Check
Preferred Stock of such series may be redeemed;
(e) The rights, if any, of the holders of the Blank Check Preferred
Stock of such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets, dissolution
or winding-up, of the Corporation;
(f) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Blank Check Preferred Stock of such
series; and
(g) Subject to subparagraph 5 of Paragraph C hereof, whether such
series of the Blank Check Preferred Stock shall have full, limited
or no voting powers including, without limiting the generality of
the foregoing, whether such series shall have the right, voting as a
series by itself or together with other series of the Blank Check
Preferred Stock or all series of the Blank Check Preferred Stock as
a class, to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any one or
more series of the Blank Check Preferred Stock or under such other
circumstances and on such conditions as the Board of Directors may
determine.
C. OTHER PROVISIONS.
1. No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series of
stock or of other securities of the Corporation shall have any preemptive right
to purchase or subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason of any increase
of the authorized capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other securities convertible
into or exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant to resolution of
the Board of Directors to such persons, firms, corporations or associations
(including such holders or others) and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole discretion.
2. The relative powers, preferences and rights of each series of the
Blank Check Preferred Stock in relation to the powers, preferences and rights of
each other series of the Blank Check Preferred Stock shall, in each case, be as
fixed from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in Paragraph B hereof. The
consent, by class or series vote or otherwise, of the holders of such of the
series of the Blank Check Preferred Stock as are from time to time outstanding
shall not be required for the issuance by the Board of Directors of any other
series of the Blank Check Preferred Stock whether or not the powers, preferences
and rights of such other series shall be fixed by the Board
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of Directors as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided, however, that the
Board of Directors may provide in the resolution or resolutions as to any series
of the Blank Check Preferred Stock adopted pursuant to Paragraph B hereof, the
conditions, if any, under which the consent of the holders of a majority (or
such greater proportion as shall be fixed therein) of the outstanding shares of
such series shall be required for the issuance of any or all other series of the
Blank Check Preferred Stock.
3. Subject to the provisions of subparagraph 2 of this Paragraph C,
shares of any series of the Blank Check Preferred Stock may be issued from time
to time as the Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of Directors.
4. Shares of authorized Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of Directors.
5. The number of authorized shares of Common Stock and of the Blank
Check Preferred Stock, without a class or series vote, may be increased or
decreased from time to time (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
FIFTH: The name and mailing address of the sole incorporator is as
follows:
NAME MAILING ADDRESS
Nancy A. Valente c/o Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
The names and mailing addresses of the persons who are to serve as the
Directors until the first annual meeting of the stockholders or until successors
are elected and qualified are as follows:
NAME MAILING ADDRESS
Frank H. Laukien 44 Manning Road
Billerica, MA 01821
Richard M. Stein 74 Kirkstall Road
Newtonville, MA 02460
Timothy J. Hansberry 97 Adams Street
Lexington, MA 02420
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Bernhard Wangler Kriegsstr. 133
76135 Karlsruhe, Germany
Dr. Dieter Koch Fahrenheitstrasse 4, D-28359
Bremen, Germany
Collin D'Silva 2032 Concourse Drive
San Jose, California 95131
William Linton 2800 Woods Hollow Road
Madison, Wisconsin 53711
The number of Directors shall be fixed from time to time exclusively by
the Board of Directors pursuant to a resolution adopted by the Board of
Directors. The Directors of the Corporation shall be divided into three classes:
Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the whole number of the Board of Directors. If the
Board of Directors is not evenly divisible by three, the Board of Directors
shall determine the number of Directors to be elected to each class. The initial
members of Class I shall hold office for a term to expire at the Annual Meeting
of the Stockholders to be held in 2001; the initial members of Class II shall
hold office for a term to expire at the Annual Meeting of the Stockholders to be
held in 2002, the initial members of Class III shall hold office for a term to
expire at the Annual Meeting of the Stockholders to be held in 2003, and in the
case of each class, until their respective successors are duly elected and
qualified. At each annual election held commencing with the annual election in
2001, the Directors elected to succeed those whose terms expire shall be
identified as being of the same class as the Directors they succeed and shall be
elected to hold office for a term to expire at the third Annual Meeting of the
Stockholders after their election, and until their respective successors are
duly elected and qualified. If the number of Directors changes, any increase or
decrease in Directors shall be apportioned among the classes so as to maintain
all classes as equal in number as possible, and any additional Director elected
to any class shall hold office for a term which shall coincide with the terms of
the other Directors in such class and until his successor is duly elected and
qualified.
SIXTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware:
A. The Board of Directors of the corporation is expressly
authorized to adopt, amend, or repeal the by-laws of the
Corporation.
B. Elections of Directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
C. The books of the Corporation may be kept at such place within
or without the State of Delaware as the by-laws of the
Corporation may provide or as may be designated from time to
time by the Board of Directors of the Corporation.
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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 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 this corporation, as the case may be,
and also on this corporation.
EIGHTH: The Corporation hereby elects in this original certificate of
incorporation not to be governed by Section 203 of the General Corporation Law
of Delaware.
NINTH: Except as stated in Article Tenth of this certificate of
incorporation, the corporation reserves the right to amend or repeal any
provision contained in this certificate of incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon a stockholder
herein are granted subject to this reservation.
TENTH: No director shall be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
notwithstanding any provision of law imposing such liability; provided, however,
that, to the extent required by applicable law, this provision shall not
eliminate 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 Delaware, or
(iv) for any transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director for or with respect
to any acts or omissions of such director occurring prior to such amendment or
repeal.
ELEVENTH: The Corporation is to have perpetual existence.
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IN WITNESS WHEREOF, the undersigned, being the incorporator
hereinbefore named, has executed, signed, and acknowledged this certificate of
incorporation this 4th day of February, 2000.
/s/ Nancy A. Valente
Nancy A. Valente
Sole Incorporator
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