Attached files
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S-1/A - ATOSSA THERAPEUTICS, INC. | v201544_s1a.htm |
EX-3.4 - ATOSSA THERAPEUTICS, INC. | v201544_ex3-4.htm |
EX-23.1 - ATOSSA THERAPEUTICS, INC. | v201544_ex23-1.htm |
EX-10.16 - ATOSSA THERAPEUTICS, INC. | v201544_ex10-16.htm |
EX-10.18 - ATOSSA THERAPEUTICS, INC. | v201544_ex10-18.htm |
EX-10.19 - ATOSSA THERAPEUTICS, INC. | v201544_ex10-19.htm |
EX-10.17 - ATOSSA THERAPEUTICS, INC. | v201544_ex10-17.htm |
EXHIBIT
3.2
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
ATOSSA
GENETICS INC.
Atossa
Genetics 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 Atossa Genetics Inc. The date of the filing of its original
Certificate of Incorporation with the Secretary of State of the State of
Delaware was April 30, 2009.
2.
This Amended and Restated
Certificate of Incorporation (the “Certificate”) amends, restates and integrates
the provisions of the Amended and Restated Certificate of Incorporation that was
filed with the Secretary of State of the State of Delaware on September 29, 2010
(the “Amended and Restated 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 Amended
and Restated 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 Atossa Genetics Inc.
ARTICLE
II
The
address of the Company’s registered office in the State of Delaware is 2711
Centerville Road, Suite 400, in the City of Wilmington, County of New Castle.
The name of the registered agent at such address is Corporation Service
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 Eighty Five Million (85,000,000), of which (i) Seventy Five Million
(75,000,000) 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
2
(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 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
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
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 [names]; the initial Class II
Directors of the Corporation shall be [names]; and the initial Class III
Directors of the Corporation shall be [names]. 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, 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 Director’s 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.
4
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, 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 Director’s 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.
5
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 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]
6
THIS
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION is executed as of this ____
day of __________, 2010.
ATOSSA
GENETICS INC.
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Title:
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