Attached files
| file | filename |
|---|---|
| EX-3.3 - Arno Therapeutics, Inc | v201326_ex3-3.htm |
| EX-4.5 - Arno Therapeutics, Inc | v201326_ex4-5.htm |
| EX-5.1 - Arno Therapeutics, Inc | v201326_ex5-1.htm |
| EX-4.3 - Arno Therapeutics, Inc | v201326_ex4-3.htm |
| EX-4.4 - Arno Therapeutics, Inc | v201326_ex4-4.htm |
| EX-23.1 - Arno Therapeutics, Inc | v201326_ex23-1.htm |
| EX-23.2 - Arno Therapeutics, Inc | v201326_ex23-2.htm |
| EX-10.11 - Arno Therapeutics, Inc | v201326_ex10-11.htm |
| EX-10.13 - Arno Therapeutics, Inc | v201326_ex10-13.htm |
| EX-10.14 - Arno Therapeutics, Inc | v201326_ex10-14.htm |
| S-1 - Arno Therapeutics, Inc | v201326_s1.htm |
Exhibit
3.1
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
of
ARNO THERAPEUTICS,
INC.
Arno Therapeutics, Inc., a corporation
organized and existing under the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: The
original Certificate of Incorporation of Arno Therapeutics, Inc., formerly known
as Laurier International, Inc., was filed with the Secretary of State of the
State of Delaware on March 8, 2000.
SECOND: The
following Amended and Restated Certificate of Incorporation was duly approved
and adopted by the corporation’s Board of Directors and its stockholders
pursuant to Sections 228, 242 and 245 of the General Corporation Law of
Delaware.
THIRD: The
text of the original Certificate of Incorporation is hereby amended and restated
in its entirety as follows:
“ARTICLE I
The name
of the corporation is Arno Therapeutics, Inc. (the “Corporation”).
ARTICLE
II
The address of the Corporation’s
registered office is 4406 Tennyson Rd., in the City of Wilmington, County of New
Castle, Delaware 19802; the name of its registered agent at such address is
Delaware Corporate Agents, Inc. The Corporation may from time to time, in the
manner provided by law, change the registered agent and the registered office
within the State of Delaware. The Corporation may also maintain offices for the
conduct of its business, either within or without the State of
Delaware.
ARTICLE
III
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation Law (the
“DGCL”).
ARTICLE
IV
The total number of shares of all
classes of stock that the Corporation shall have authority to issue is One
Hundred Fifteen Million (115,000,000) shares consisting of: Eighty Million
(80,000,000) shares of common stock, $0.0001 par value per share (“Common
Stock”); and Thirty-Five Million (35,000,000) shares of preferred stock, $0.0001
par value per share (“Preferred Stock”). The Preferred Stock may be
divided into, and may be issued from time to time in one or more series. The
Board is authorized from time to time to establish and designate any such series
of Preferred Stock, to fix and determine the variations in the relative rights,
preferences, privileges and restrictions as between and among such series and
any other class of capital stock of the Corporation and any series thereof, and
to fix or alter the number of shares comprising any such series and the
designation thereof. The authority of the Board from time to time with respect
to each such series shall include, but not be limited to, determination of the
following:
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(1) The
designation of the series;
(2) The
number of shares of the series and (except where otherwise provided in the
creation of the series) any subsequent increase or decrease
therein;
(3) The
dividends, if any, for shares of the series and the rates, conditions, times and
relative preferences thereof;
(4) The
redemption rights, if any, and price or prices for shares of the
series;
(5) The
terms and amounts of any sinking fund provided for the purchase or redemption of
the series;
(6) The
relative rights of shares of the series in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;
(7) Whether
the shares of the series shall be convertible into shares of any other class or
series of shares of the Corporation, and, if so, the specification of such other
class or series, the conversion prices or rate or rates, any adjustments
thereof, the date or dates as of which such shares shall be convertible and all
other terms and conditions upon which such conversion may be made;
(8) The
voting rights, if any, of the holders of such series; and
(9) Such
other designations, powers, preference and relative, participating, optional or
other special rights and qualifications, limitations or restrictions
thereof.
ARTICLE
V
Unless and except to the extent that
the By-laws of the Corporation (the “By-laws”) shall so require, the election of
directors of the Corporation need not be by written ballot.
ARTICLE
VI
To the fullest extent permitted under
the General Corporation Law, as amended from time to time, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director. If
the General Corporation Law or any other law of the State of Delaware is amended
after approval by the stockholders of this Article VI 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 General Corporation Law as so
amended. Any amendment, repeal or modification of the foregoing
provision shall not adversely affect any right or protection of a director of
the Corporation hereunder in respect of any act or omission occurring prior to
the time of such amendment, repeal or modification.
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ARTICLE
VII
The Corporation renounces any interest
or expectancy of the Corporation in, or in being offered an opportunity to
participate in, any Excluded Opportunity. An “Excluded Opportunity”
is any matter, transaction or interest that is presented to, or acquired,
created or developed by, or which otherwise comes into the possession of (i) any
director of the Corporation who is not an employee of the Corporation or any of
its subsidiaries, or (ii) any stockholder of the Corporation or any partner,
member, director, stockholder, employee or agent of any such holder, other than
someone who is an employee of the Corporation or any of its subsidiaries
(collectively, “Covered Persons”), unless such matter, transaction or interest
is presented to, or acquired, created or developed by, or otherwise comes into
the possession of, a Covered Person (A) expressly and solely in such Covered
Person’s capacity as a director of the Corporation or (B) through the use of the
Corporation’s assets or other resources, including its employees.
ARTICLE
VIII
A. The
Corporation shall, to the maximum extent permitted under the DGCL and except as
set forth below, indemnify and upon request advance expenses to each person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was, or has agreed to
become, a director or officer of the Corporation, or is or was serving, or has
agreed to serve, at the request of the Corporation, as a director, officer,
employee or trustee of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise, including any employee
benefit plan (all such persons being referred to hereafter as an “Indemnitee”),
or by reason of any action alleged to have been taken or omitted in such
capacity, against all expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. Notwithstanding anything to the contrary in this
Article, the Corporation shall not indemnify an Indemnitee seeking
indemnification in connection with any action, suit, proceeding, claim or
counterclaim, or part thereof, initiated by the Indemnitee unless the initiation
thereof was approved by the Board of Directors.
B. Any
indemnification under Paragraph A of this Article (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification is proper in the circumstances because
such person has either met the applicable standard of conduct set forth in this
Article and that the amount requested has been actually and reasonably incurred.
Such determination shall be made:
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(1) by
a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum; or
(2) by
a committee of such directors designated by a majority vote of such directors,
even though less than a quorum; or
(3) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion; or
(4) by
the holders of the Common Stock.
C. Notwithstanding
any other provisions of this Amended and Restated Certificate of Incorporation,
the By-Laws of the Corporation, or any agreement, vote of stockholders or
disinterested directors, or arrangement to the contrary, the Corporation may
advance payment of expenses incurred by an Indemnitee in advance of the final
disposition of any matter only to the extent such advance is not prohibited by
applicable law, and then only upon receipt of an undertaking by or on behalf of
the Indemnitee to repay all amounts so advanced in the event that it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
by the Corporation as authorized in this Article. Such undertaking may be
accepted without reference to the financial ability of the Indemnitee to make
such repayment.
D. No
amendment, termination or repeal of this Article or of the relevant provisions
of the DGCL or any other applicable laws shall affect or diminish in any way the
rights of any Indemnitee to indemnification under the provisions hereof with
respect to any action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal.
E. This
corporation may, to the extent authorized from time to time by its Board of
Directors, grant indemnification rights to other employees or agents of the
Corporation or other persons serving the Corporation and such rights may be
equivalent to, or greater or less than, those set forth in this
Article.
F. If
the Corporation is merged into or consolidated with another corporation and the
Corporation is not the surviving corporation, the surviving corporation shall
assume the obligations of the Corporation under this Article with respect to any
action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the date of such merger or
consolidation.
G. If
this Article or any portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each Indemnitee as to any expenses, including attorneys’ fees,
judgments, fines and amounts paid in settlement in connection with any action,
suit, proceeding or investigation, whether civil, criminal or administrative,
including an action by or in the right of the Corporation, to the fullest extent
permitted by any applicable portion of this Article that shall not have been
invalidated and to the fullest extent permitted by applicable
law.
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H. Indemnification
and advancement of expenses, as authorized by the preceding provisions of this
Article, shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in an official capacity and as to action in another capacity while
holding such office. The indemnification and advancement of expenses provided by
or granted pursuant to this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be an
authorized representative and shall inure to the benefit of the heirs, executors
and administrators of such a person.
I. The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, trustee, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, officer,
trustee, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against the person and
incurred by the person in any such capacity, or arising out of his or her status
as such, whether or not the Corporation would have the power or the obligation
to indemnify such person against such liability under the provisions of this
Article.
J. To
the extent an Indemnitee has certain rights to indemnification, advancement of
expenses or insurance provided by one or more third parties and certain of their
affiliates (collectively, the “Fund Indemnitors”), then the
Corporation:
(1) shall
be the indemnitor of first resort (i.e., its obligations to an Indemnitee are
primary and any obligation of the Fund Indemnitors to advance expenses or to
provide indemnification for the same expenses or liabilities incurred by
Indemnitee is secondary);
(2) shall
be required to advance the full amount of expenses incurred by an Indemnitee and
shall be liable for the full amount of all expenses, judgments, penalties, fines
and amounts paid in settlement to the extent legally permitted and as required
by the terms of this Amended and Restated Certificate of Incorporation or the
By-laws of the Corporation (or any other agreement between the Corporation and
the Indemnitee), without regard to any rights the Indemnitee may have against
the Fund Indemnitors;
(3) irrevocably
waives, relinquishes and releases the Fund Indemnitors from any and all claims
against the Fund Indemnitors for contribution, subrogation or any other recovery
of any kind in respect thereof; and
(4) that
no advancement or payment by the Fund Indemnitors on behalf of an Indemnitee
with respect to any claim for which such Indemnitee has sought indemnification
from the Corporation shall affect the foregoing clauses (1) through (3) and the
Fund Indemnitors shall have a right of contribution and/or be subrogated to the
extent of such advancement or payment to all of the rights of recovery of an
Indemnitee against the Corporation.
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ARTICLE
IX
In furtherance and not in limitation of
the powers conferred by the laws of the State of Delaware, the Board is
expressly authorized to make, alter and repeal the By-laws, subject to the power
of the stockholders of the Corporation to alter or repeal any By-law whether
adopted by them or otherwise.
ARTICLE
X
The number of authorized shares of
Common Stock may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of shares of
stock of the Corporation representing a majority of the votes represented by all
outstanding shares of stock of the Corporation entitled to vote, irrespective of
the provisions of Section 242(b)(2) of the DGCL.
ARTICLE
XI
The Corporation reserves the right at
any time, and from time to time, to amend, alter, change or repeal any provision
contained in this Amended and Restated Certificate of Incorporation, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed by
applicable law; and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and
pursuant to this Amended and Restated Certificate of Incorporation in its
present form or as hereafter amended are granted subject to the rights reserved
in this article.”
Signature
page follows.
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IN WITNESS WHEREOF, the Corporation has
caused this Amended and Restated Certificate of Incorporation to be executed in
its corporate name on this 11th day of August, 2010.
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ARNO
THERAPEUTICS, INC.
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By:
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/s/ David M. Tanen
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David
M. Tanen
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Chief
Executive Officer
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