Attached files
| file | filename |
|---|---|
| S-1 - S-1 - NORTH BAY RESOURCES INC | s102092010.htm |
| EX-10.0 - EXHIBIT 10.0 - NORTH BAY RESOURCES INC | ex1002092010.htm |
| EX-3.2 - EXHIBIT 3.2 - NORTH BAY RESOURCES INC | ex322092010.htm |
| EX-3.3 - EXHIBIT 3.3 - NORTH BAY RESOURCES INC | ex332092010.htm |
| EX-10.1 - EXHIBIT 10.1 - NORTH BAY RESOURCES INC | ex1012092010.htm |
| EX-23.1 - EXHIBIT 23.1 - NORTH BAY RESOURCES INC | ex23102102010.htm |
| EX-14 - EXHIBIT 14 - NORTH BAY RESOURCES INC | ex1402092010.htm |
| EX-5.1 - EXHIBIT 5.1 - NORTH BAY RESOURCES INC | ex5102092010.htm |
| EX-10.2 - EXHIBIT 10.2 - NORTH BAY RESOURCES INC | ex1032092010.htm |
| EX-10.3 - EXHIBIT 10.3 - NORTH BAY RESOURCES INC | ex1042092010.htm |
FIRST
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ENTERAYON,
INC.
Pursuant
to Section 242 and 245 of the General Corporation Law of the state of
Delaware. The current name of the corporation is Enterayon, Inc.,
incorporated in the State of Delaware on June 18, 2004.
FIRST
The name
of the Corporation is Enterayon, Inc.
SECOND
The
address of the registered office of the Corporation in the State of Delaware and
the name of the registered agent at such address are as follows: The Company
Corporation, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808,
County of New Castle.
THIRD
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 Delaware (the “DGCL”).
FOURTH
Capitalization
The
aggregate number of shares that the Corporation shall have authority to issue is
Two Hundred and Sixty Million (260,000,000) shares of capital stock, of which
Two Hundred and Fifty Million (250,000,000) shares are Common Stock, $0.001 par
value per share (the “Common Stock”) and Ten Million (10,000,000) are Preferred
Stock, par value $0.001 per share (the “Preferred Stock”).
The
following is a statement of the designations and the powers, preferences and
rights, and the relative participating, optional or other special rights, and
the qualifications, limitations and restrictions of the shares of each
class:
1. Except
as any provision of law, any provision herein or elsewhere in the Certificate of
Incorporation may otherwise provide, each share of Common Stock of the
Corporation shall have the same rights, privileges, interest and attributes, and
shall be subject to the same limitations, as every other share of the
Corporation and shall entitle the holder of record of any such issued and
outstanding share to receive an equal proportion of any cash dividends which may
be declared, set apart or paid, an equal proportion of any distributions of the
authorized but unissued shares of the Corporation and/or its treasury shares, if
any, which may be made, an equal proportion of the distribution of any bonds or
property of the Corporation, including the shares or bonds of other
corporations, which may be made, and an equal proportion of any distributions of
the net assets of the Corporation (whether stated capital or surplus) which may
be made upon the liquidation, dissolution, or winding up of the affairs of the
Corporation, whether voluntary or involuntary; provided, that any distributions
of the authorized but unissued shares of the Corporation and/or its treasury
shares, if any, shall be made only in respect of shares of the same class, and,
provided further, that no statement herein contained shall be deemed to limit,
curtail, or divest the authority of the Board of Directors of the Corporation to
make any proper distributions, including distributions of authorized but
unissued shares, in relation to its treasury shares, if any. Each issued and
outstanding share of Common Stock shall entitle the holder of record thereof to
one vote per share.
2. Preferred
Stock may be issued from time to time in one or more series, each of such series
to have such designations, relative rights and limitations as may be fixed in
the resolution or resolutions providing for the issue of such series adopted by
the Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided herein or by law. Different series
of Preferred Stock shall not be construed to constitute different classes of
shares for the purposes of voting by classes unless expressly provided for in
the resolutions creating such series or required by applicable law.
Authority
is hereby expressly granted to the Board of Directors from time to time to issue
the Preferred Stock in one or more series, and in connection with the creation
of any such series, by resolution or resolutions providing for the issuance of
the shares thereof, to determine and fix such voting powers, full or limited, or
no voting powers, and such designations, preferences and relative participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof including, without limitation, dividend rights, conversion
rights, redemption privileges and liquidation preferences, as shall be stated
and expressed in such resolutions, all to the fullest extent now or hereafter
permitted by the General Corporation Law of the State of Delaware. Without
limiting the generality of the foregoing, the resolutions providing for issuance
of any series of Preferred Stock may provide that such series shall be superior
or rank equally or be junior to the Preferred Stock of any other series to the
extent permitted by law.
FIFTH
The name
and address of the incorporator is as follows: Brandon
Laramore, 2711 Centerville Road, Suite 400, Wilmington, Delaware
19808.
SIXTH
The
following provisions are inserted for the management of the business and for the
conduct of the affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the Corporation and its directors and
stockholders:
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(1)
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The
number of directors of the corporation shall be such as from time to time
shall be fixed by, or in the manner provided in the
by-laws. Election of directors need not be by ballot unless the
by-laws so provide.
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(2)
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The
Board of Directors shall have power without the assent or vote of the
Stockholders:
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(a)
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To
make, alter, amend, change, add to or repeal the By-Laws of the
Corporation; to fix and vary the amount to be reserved for any proper
purpose; to authorize and cause to be executed mortgages and liens upon
all or any part of the property of the Corporation; to determine the use
and disposition of any surplus or net profits; and to fix the times for
the declaration and payment of
dividends.
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(b)
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To
determine from time to time whether, and to what times and places, and
under what conditions the accounts and books of the Corporation (other
than the stock ledger) or any of them, shall be open to the inspection of
the stockholders.
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(3)
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The
directors in their discretion may submit any contract or act for approval
or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such
act or contract, and any contract or act that shall be approved or be
ratified by the vote of the holders of a majority of the stock of the
Corporation which is represented in person or by proxy at such meeting and
entitled to vote thereat (provided that a lawful quorum of stockholders be
there represented in person or by proxy) shall be as valid and as binding
upon the Corporation and upon all the stockholders as though it had been
approved or ratified by every stockholder of the Corporation, whether or
not the contract of act would otherwise be open to legal attack because of
directors’ interest, or for any other
reason.
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(4)
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In
addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation; subject, nevertheless, to the
provisions of the statutes of Delaware, the provisions of this
certificate, and to any by-laws from time to time made by the
stockholders; provided, however, that no by-laws so made shall invalidate
any prior act of the directors which would have been valid if such by-laws
had not been made.
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SEVENTH
A
director of this Corporation shall not be personally liable to the Corporation
or its stockholders for damages for any breach of duty in his/her capacity as a
director, provided that such provision shall not eliminate or limit the
liability of a director:
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(i)
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for
any breach of the director’s duty of loyalty to the Corporation or its
stockholders;
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(ii)
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for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of
law;
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(iii)
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under
Section 174 of the DGCL; or
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(iv)
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for
any transaction from which the director derived an improper personal
benefit.
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EIGHTH
The
Corporation shall, to the fullest extent permitted by the DGCL (including,
without limitation, Section 145 thereof), as the same may be amended and
supplemented from time to time, indemnify any and all persons whom it shall have
power to indemnify under the DGCL. The indemnification provided for
herein shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled whether as a matter of law, under any By-law of
the Corporation, by agreement, by vote of stockholders or disinterested
directors of the Corporation or otherwise.
NINTH
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 the
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 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 (3/4) 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 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.
IN WITNESS WHEREOF, we, the
undersigned, being the incorporator hereinabove named, for the purpose of
forming a corporation pursuant to the DGCL, do make and file this Certificate,
hereby declaring and certifying that the facts herein stated are true under
penalty of perjury, and accordingly have hereunto set our hand this 7th day
of February, 2007.
Enterayon,
Inc.
By: /s/
Perry
Leopold
Perry
Leopold
President