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AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
CORMEDIX,
INC.
(Pursuant
to Sections 242 and 245 of the
General
Corporation Law of the State of Delaware)
CORMEDIX,
INC., a corporation organized and existing under and by virtue of the provisions
of the General Corporation Law of the State of Delaware (the “DGCL”),
DOES
HEREBY CERTIFY:
1. That
the name of this corporation is CorMedix, Inc., and that this corporation was
originally incorporated pursuant to the General Corporation Law on July 28, 2006
under the name Picton Holding Company, Inc.
2. That
the Board of Directors duly adopted resolutions proposing to amend and restate
the Certificate of Incorporation of this corporation, declaring said amendment
and restatement to be advisable and in the best interests of this corporation
and its stockholders, and authorizing the appropriate officers of this
corporation to solicit the consent of the stockholders therefor, which
resolution setting forth the proposed amendment and restatement is as
follows:
RESOLVED, that the Certificate
of Incorporation of this corporation be amended and restated in its entirety to
read as follows:
FIRST: The name of the
Corporation is “CorMedix, Inc.” (the “Corporation”).
SECOND: The address of the
registered office of the Corporation in the State of Delaware is 2711
Centerville Road, Suite 400, in the City of Wilmington, County of New Castle
19808. The name of the registered agent of the Corporation at such address is
Corporation Service Company.
THIRD: The purpose or purposes
of the Corporation shall be to engage in any lawful act or activity for which
corporations may be organized under the DGCL.
FOURTH: The total number of
shares of stock which this Corporation is authorized to issue is Fifty Million
(50,000,000) shares, consisting of the following three classes: (i) Thirty-Five
Million (35,000,000) shares of common stock, $0.001 par value per share (the
“Voting Common
Stock”), (ii) Five Million (5,000,000) shares of Non-Voting Subordinated
Class A Common Stock, $0.001 par value per share (the “Non-Voting Class A Common
Stock”), and (iii) Ten Million (10,000,000) shares of preferred stock,
$0.001 par value per share (the “Preferred Stock”).
The Voting Common Stock shall consist of one series comprised of 35,000,000
shares and is designated “Series A Common Stock.”
The
number of authorized shares of any class or classes of stock may be increased or
decreased (but not below the number of shares then outstanding) by the
affirmative vote of a majority in voting power of the outstanding capital stock
of the Corporation entitled to vote thereon irrespective of the provisions of
Section 242(b)(2) of the DGCL.
Except as
otherwise expressly provided herein, the shares of Non-Voting Class A Common
Stock shall have the same powers, preferences, rights, qualifications,
limitations and restrictions, on an as-converted basis, as the shares of Series
A Common Stock.
1. Liquidation.
(a) Upon
a Liquidation (as defined below), and subject to the rights, if any, of the
holders of any outstanding series of Preferred Stock or any class or series of
stock having a preference over or the right to participate with the Voting
Common Stock with respect to a Liquidation, after payment or provision for
payment of the debts and other liabilities of the Corporation, the holders of
the Voting Common Stock shall be entitled to receive, out of the remaining
assets of the Corporation available for distribution to its stockholders, an
aggregate amount (the “Preference Amount”)
equal to $20,000,000 before any distribution shall be made to the holders of
Non-Voting Class A Common Stock, or any other class or series of capital stock
of the Corporation that ranks junior to the Voting Common Stock. If upon any
Liquidation the assets of the Corporation available for distribution to its
stockholders shall be insufficient to pay the holders of Voting Common Stock the
full Preference Amount to which they shall be entitled, the holders of Voting
Common Stock shall share pro
rata in any
distribution of assets in accordance with their respective Preference
Amount.
(b) Upon
any Liquidation, after payment in full of the Preference Amount, the holders of
shares of Voting Common Stock and Non-Voting Class A Common Stock (participating
on an as converted basis as determined pursuant to Section 3 hereof) shall be
entitled to share pro rata in the
distribution of the remaining assets of the Corporation.
(c) “Liquidation” means
any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, other than any dissolution, liquidation or winding up in connection
with any reincorporation of the Corporation in another jurisdiction. For the
avoidance of doubt, (i) the sale of all or substantially all of the
Corporation’s assets, (ii) the sale or transfer of the outstanding shares of
capital stock of the Corporation, or (iii) the merger or consolidation of the
Corporation with another person or entity, in the case of a transaction
described in clauses (ii) and (iii) above, under circumstances which result in
the holders of a majority of the voting power of outstanding capital stock of
the Corporation, immediately prior to such transaction, owning less than a
majority of the voting power of the outstanding capital stock of the Corporation
or the surviving or resulting corporation or acquirer, as the case may be,
immediately following such transaction (any of the transactions described in
clauses (i) through (iii) above, a “Sale”) shall not be
deemed to be a Liquidation hereunder, but may, if such transaction otherwise
satisfies the criteria described in Section 3(a) below, constitute an Automatic
Conversion Event (as defined in Section 3(a) below). In the event of a Sale that
does not constitute an Automatic Conversion Event, the Corporation shall make
appropriate provision to ensure that the applicable terms of this Article FOURTH
survive any such transaction.
2. Voting Rights; Other
Rights.
The
holders of the Voting Common Stock shall be entitled to one vote for each share
of Voting Common Stock standing in such holder’s name on the transfer books of
the Corporation.
The
holders of Non-Voting Class A Common Stock, except as otherwise required under
Delaware law, shall not be entitled or permitted to vote on any matter required
or permitted to be voted upon by the stockholders of the
Corporation.
3. Automatic Conversion of
Non-Voting Class A Common Stock.
(a) Upon
the earliest to occur of the closing of an equity financing or series of related
equity financings by the Corporation resulting in aggregate gross cash proceeds
(before commissions or other expenses) to the Corporation of at least $5,000,000
(an “Automatic
Conversion Event”), each share of Non-Voting Class A Common Stock then
outstanding shall, by virtue of and simultaneously with the occurrence of such
Automatic Conversion Event, without any further action by the Corporation or its
stockholders, automatically convert into a number of fully paid and
nonassessable shares of Series A Common Stock equal to the Conversion Rate (as
defined below), as last adjusted and then in effect (the resulting number of
shares of Series A Common Stock, the “Conversion Shares”).
The “Conversion
Rate” shall initially be one as of the date hereof and shall be subject
to adjustment from time to time in accordance with Section 3(b)
below.
(b) The
Conversion Rate shall be subject to adjustment from time to time as
follows:
(i) If,
at any time after the filing date of this Amended and Restated Certificate of
Incorporation, the number of shares of Series A Common Stock outstanding is
increased by a stock dividend payable in shares of Series A Common Stock or by a
subdivision or stock split of shares of Series A Common Stock without a
comparable dividend, subdivision or stock split of the shares of Non-Voting
Class A Common Stock, then, following the record date for the determination of
holders of Series A Common Stock entitled to receive such stock dividend,
subdivision or stock split, the Conversion Rate shall be appropriately
increased, as necessary, so that the number of shares of Series A Common Stock
issuable on conversion of each share of Non-Voting Class A Common Stock shall be
increased in proportion to such increase in outstanding shares of Series A
Common Stock. The provisions of this clause shall similarly apply to successive
stock dividends, subdivisions or stock splits.
(ii) If,
at any time after the filing date of this Amended and Restated Certificate of
Incorporation, the number of shares of Series A Common Stock outstanding is
decreased by a combination or reverse stock split of the outstanding shares of
Series A Common Stock without a comparable combination or reverse stock split of
the shares of Non-Voting Class A Common Stock, then, following the record date
for such combination or reverse stock split, the Conversion Rate shall be
appropriately decreased, as necessary, so that the number of shares of Series A
Common Stock issuable on conversion of each share of the Non-Voting Class A
Common Stock shall be decreased in proportion to such decrease in outstanding
shares of Series A Common Stock. The provisions of this clause shall similarly
apply to successive combinations or reverse stock splits.
(iii) Except
in connection with a Liquidation, in the event of any capital reorganization of
the Corporation, any reclassification of the stock of the Corporation (other
than a change in par value or from no par value to par value or from par value
to no par
value or as a result of a stock dividend or subdivision, stock split,
combination or reverse stock split), or any consolidation or merger of the
Corporation, each share of Non-Voting Class A Common Stock shall after such
reorganization, reclassification, consolidation, or merger be convertible into
the kind and number of shares of stock or other securities or property of the
Corporation or of the corporation resulting from such consolidation or surviving
such merger to which the holder of the number of shares of Series A Common Stock
deliverable (immediately prior to the time of such reorganization,
reclassification, consolidation or merger) upon conversion of such share of
Non-Voting Class A Common Stock would have been entitled upon such
reorganization, reclassification, consolidation or merger. The provisions of
this clause shall similarly apply to successive reorganizations,
reclassifications, consolidations or mergers.
(iv) All
calculations under this paragraph shall be made to the nearest one hundredth
(1/100) of a cent or the nearest one tenth (1/10) of a share, as the case may
be.
(c) Procedures Applicable Upon
Conversion.
(i) As
promptly as practicable after the occurrence of an event requiring automatic
conversion and the delivery to the Corporation of the certificate or
certificates formerly representing Non-Voting Class A Common Stock (“Shares Subject to
Conversion”) which have been converted into shares of Series A Common
Stock, in each case duly endorsed or assigned in blank to the Corporation (if
required by it), the Corporation shall issue and deliver to or upon the written
order of each holder of Shares Subject to Conversion, to the place designated by
such holder, a certificate or certificates for that number of shares of Series A
Common Stock equal to the number of Conversion Shares. Notwithstanding the
foregoing, effective as of the occurrence of the event requiring conversion, the
persons entitled to receive the shares of Series A Common Stock issuable upon
conversion of the Shares Subject to Conversion shall be treated for all purposes
as the record holder or holders of such shares of Series A Common Stock as of
such time and the certificates formerly representing Shares Subject to
Conversion shall, without any further act of the Corporation or its
stockholders, be deemed for all purposes to represent the number of shares of
Series A Common Stock into which the Shares Subject to Conversion formerly
represented by such certificates have been converted.
(ii) No
fractional shares of Series A Common Stock shall be issued upon conversion of
Shares Subject to Conversion. Upon conversion, instead of any fractional shares
of Series A Common Stock which would otherwise be issuable upon conversion of
any Shares Subject to Conversion, the Corporation shall pay a cash adjustment in
respect of such fractional interest in an amount equal to the then fair market
value, as determined in good faith by the Board of Directors of the Corporation
(the “Board of
Directors”), of a share of Series A Common Stock multiplied by such
fractional interest. Fractional interests shall not be entitled to dividends,
and the holders of fractional interests shall not be entitled to any rights as
stockholders of the Corporation in respect of such fractional
interest.
(iii) The
Corporation shall reserve, and at all times from and after the filing date of
this Amended and Restated Certificate of Incorporation up to and including the
time of
an Automatic Conversion Event keep reserved, free from preemptive rights, out of
its authorized but unissued shares of Series A Common Stock, a sufficient number
of shares of Series A Common Stock to provide for the automatic conversion of
all outstanding shares of Non-Voting Class A Common Stock.
FIFTH: The Board of Directors
shall have the power to adopt, amend, alter or repeal the by-laws.
SIXTH: No director shall be
personally liable to the Corporation or its stockholders for monetary damages
for any breach of fiduciary duty by such director as a director to the fullest
extent of the law.
SEVENTH: Unless and except to
the extent that the bylaws of the Corporation shall so require, the election of
the directors of the Corporation need not be by written ballot.
EIGHTH: 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 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 EIGHTH.
* * * * *
3. That
the foregoing amendment and restatement was approved by the holders of the
requisite number of shares of this corporation in accordance with Section 228 of
the General Corporation Law.
4. That
this Amended and Restated Certificate of Incorporation, which restates and
integrates and further amends the provisions of this corporation’s Certificate
of Incorporation, has been duly adopted in accordance with Sections 242 and 245
of the General Corporation Law.
IN WITNESS WHEREOF, this
Amended and Restated Certificate of Incorporation has been executed by a duly
authorized officer of this corporation on this Fifth day of October,
2009.
| CORMEDIX, INC. | |||
|
|
By:
|
/s/ John Houghton | |
| John Houghton | |||
| President and Chief Executive Officer | |||