Exhibit
3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
NEOPROBE
CORPORATION
(as
corrected February 18, 1994 and as amended June 27, 1994,
July 25,
1995, June 3, 1996, March 17, 1999, May 9, 2000, June 13, 2003, July 29, 2004,
June 22, 2005 and November 20, 2006)
ARTICLE
ONE
The
name
of the corporation is Neoprobe Corporation.
ARTICLE
TWO
The
address of the corporation's registered office in the State of Delaware is
the
Corporation Trust Center, 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
THREE
The
nature of the business or purposes to be conducted or promoted 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.
(Article
Four was amended to increase the total number of authorized shares from
22,000,000 to 55,000,000, the total number of shares of Common Stock from
20,000,000 to 50,000,000 and the total number of shares of Preferred Stock
from
2,000,000 to 5,000,000 by a resolution duly adopted by the Board of Directors
on
March 3, 1994 and duly adopted by the stockholders on May 26, 1994. It
was again amended to increase the number of authorized shares to 80,000,000,
consisting of 75,000,000 shares of Common Stock and 5,000,000 shares of
Preferred Stock, by resolution duly adopted by the Board of Directors on April
15, 2003, and duly adopted by the stockholders on June 12, 2003. It was further
amended to increase the number of authorized shares to 105,000,000, consisting
of 100,000,000 shares of Common Stock and 5,000,000 shares of Preferred Stock,
by resolution duly adopted by the Board of Directors on April 16, 2004, and
duly
adopted by the stockholders on July 27, 2004. Article Four was again amended
to
increase the number of authorized shares to 155,000,000, consisting of
150,000,000 shares of Common Stock and 5,000,000 shares of Preferred Stock,
by
resolution duly adopted by the Board of Directors on March 15, 2005, and duly
adopted by the Stockholders on June 13, 2005).
ARTICLE
FOUR
4.1 Authorized
Shares. The
total number of shares of capital stock which the Corporation has authority
to
issue is 155,000,000 shares, consisting of:
(a) 150,000,000
shares of Common Stock, par value $.001 per share (the "Common
Stock");
(b) 5,000,000
shares of Preferred Stock, par value $.001 per share (the "Preferred
Stock").
4.2 Common
Stock.
(a) Subject
to such voting rights of any other class or series of securities as may be
granted from time to time pursuant to this certificate of incorporation, any
amendment thereto, or the provisions of the laws of the State of Delaware
governing corporations, voting rights shall be vested exclusively in the holders
of Common Stock. Each holder of Common Stock shall have one vote in respect
of
each share of such stock held.
(b) Subject
to the rights of any other class or series of stock, the holders of shares
of
Common Stock shall be entitled to receive, when and as declared by the board
of
directors, out of the assets of the Corporation legally available therefor,
such
dividends as may be declared from time to time by the board of
directors.
(c) Subject
to such rights of any other class or series of securities as may be granted
from
time to time, the holders of shares of Common Stock shall be entitled to receive
all the assets of the Corporation available for distribution to shareholders
in
the event of the voluntary or involuntary liquidation, dissolution, or winding
up of the Corporation, ratably, in proportion to the number of shares of Common
Stock held by them. Neither the merger or consolidation of the Corporation
into
or with any other corporation, nor the merger or consolidation of any other
corporation into or with the Corporation, nor the sale, lease, exchange or
other
disposition (for cash, shares of stock, securities, or other consideration)
of
all or substantially all the assets of the Corporation, shall be deemed to
be a
dissolution, liquidation, or winding up, voluntary or involuntary, of the
Corporation.
4.3 Preferred
Stock. Shares
of Preferred Stock may be issued from time to time in one or more series. The
board of directors of the Corporation is hereby authorized to determine and
alter all rights, preferences, and privileges and qualifications, limitations,
and restrictions thereof (including, without limitation, voting rights and
the
limitation and exclusion thereof) granted to or imposed upon any wholly unissued
series of Preferred Stock and the number of shares constituting any such series
and the designation thereof, and to increase or decrease (but not below the
number of shares of such series then outstanding) the number of shares of any
series subsequent to the issue of shares of that series then outstanding. In
case the number of shares of any series is so decreased, the shares constituting
such reduction shall resume the status which such shares had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
ARTICLE
FIVE
The
business and affairs of the Corporation shall be managed by or under the
direction of the board of directors, and the directors need not be elected
by
ballot unless required by the by-laws of the Corporation. In furtherance and
not
in limitation of the powers conferred by statute, the board of directors of
the
Corporation is expressly authorized to adopt, amend, or repeal the by-laws
of
the Corporation.
ARTICLE
SIX
Action
shall be taken by the stockholders of the Corporation only at annual or special
meetings of stockholders, and stockholders may not act by written consent.
Special meetings of the Corporation may be called only as provided in the
by-laws.
ARTICLE
SEVEN
Meetings
of the stockholders may be held within or without the State of Delaware, as
the
by-laws of the Corporation may provide. The books of the Corporation may be
kept
outside 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 by-laws of the Corporation.
The
board of directors shall from time to time decide whether and to what extent
and
at what times and under what conditions and requirements the accounts and books
of the Corporation, or any of them, except the stock book, shall be open to
the
inspection of the stockholders, and no stockholder shall have any right to
inspect any books or documents of the Corporation except as conferred by the
laws of the State of Delaware or as authorized by the board of
directors.
(Article
Eight was amended in its entirety by a resolution duly adopted by the Board
of
Directors on January 18, 1996 and duly adopted by the stockholders at the Annual
Meeting of Stockholders held on May 30, 1996).
ARTICLE
EIGHT
Notwithstanding
any other provision set forth in the Certificate of Incorporation of the
Corporation or its By-laws, the board of directors shall be divided into three
classes; the term of office of those of the first class to expire at the annual
meeting next ensuing; of the second class one year thereafter; of the third
class two years thereafter; and at each annual election held after the initial
classification of the board of directors and election of directors to such
classes, directors shall be chosen for a full term of three years, as the case
may be, to succeed those whose terms expire. The total number of directors
constituting the full board of directors and the number of directors in each
class shall be fixed by, or in the manner provided in the by-laws, but the
total
number of directors shall not exceed seventeen (17) nor shall the number of
directors in any class exceed six (6). Subject to the foregoing, the classes
of
directors need not have the same number of members. No reduction in the total
number of directors or in the number of directors in any class shall be
effective to remove any director or to reduce the term of any director. If
the
board of directors increases the number of directors in a class, it may fill
the
vacancy created thereby for the full remaining term of a director in that class
even though such term may extend beyond the next annual election. The board
of
directors may fill any vacancy occurring for any other reason for the full
remaining term of the director whose death, resignation or removal caused the
vacancy, even though such term may extend beyond the next annual
election.
ARTICLE
NINE
(a) The
Corporation shall, to the fullest extent permitted by the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended,
indemnify all persons whom it may indemnify pursuant hereto.
(b) To
the fullest extent permitted by the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended, a director of this
Corporation shall not be personally liable for the Corporation or its
Stockholders for monetary damages for breach of fiduciary duty as a director.
The modification or repeal of this Article Nine shall not affect the restriction
hereunder of a director's personal liability for any breach, act, or omission
occurring prior to such modification or repeal.
ARTICLE
TEN
The
Corporation is to have perpetual existence.
*
*
*
(A
Certificate of Correction was filed to correct a failure to set forth in the
Restated Certificate of Incorporation filed with the Secretary of State of
Delaware on November 9, 1992, the following resolutions duly adopted by the
Board and duly approved by the stockholders):
WHEREAS,
the Board of Directors of the Corporation deems it to be advisable and in the
best interests of the Corporation that the Corporation effectuates a reverse
split of its common stock, par value $0.001 per share (the "Common Stock"),
to
cause the total number of issued and outstanding shares of Common Stock to
be
5,162,762 prior to a contemplated public offering of the securities of the
Corporation; it is therefore:
RESOLVED,
that, subject to approval by the Corporation's stockholders, there is hereby
declared a one-for-two reverse split of the issued and outstanding shares of
Common Stock, effective immediately prior to the effective time of the
contemplated public offering (the "Conversion Time"), pursuant to which each
issued and outstanding share of Common Stock shall automatically be converted
into one-half of the one share of Common Stock, and each stockholder of record
at the Conversion Time shall receive one or more certificates representing
the
number of fully-paid and nonassessable shares of Common Stock equal to the
number of shares held after the Conversion Time as a result of the foregoing
reverse split;
RESOLVED,
FURTHER, that the shares of Common Stock that cease to be outstanding as a
result of the reverse stock split shall be authorized but unissued
shares;
RESOLVED,
FURTHER, that fractions of a share existing after the reverse stock split shall
not be issued to the stockholders, and that such fractions shall be paid in
cash
at their pro
rata
fair
value, which the Board of Directors hereby determines, after due consideration,
to be $6.00 per share as of the Conversion Time;
RESOLVED,
FURTHER, that appropriate adjustment shall be made to the applicable conversion
or other ratios of the Corporation's outstanding warrants, options or other
convertible securities to take account of the change in the outstanding Common
Stock resulting from the reverse stock split; and
RESOLVED,
FURTHER, that the Conversion Time for the one-for-two reverse split of the
issued and outstanding shares of Common Stock as authorized on July 22,
1992, and approved by the Corporation's stockholders, shall be at the close
of
business on Monday, November 9, 1992.
*
*
*
(The
Board of Directors provided for a series of Preferred Stock on July 18,
1995 by the addition to the Certificate of Incorporation of paragraphs
which were incorporated in a Certificate of Designations, Preferences and Rights
of Series A Junior Participating Preferred Stock filed on July 25, 1995 on
November 20, 2006, the Corporation filed a Certificate of Elimination to
eliminate from the Corporation's Restated Certificate of Incorporation all
reference to the Series A Junior Participating Preferred
Stock.)