Attached files
| file | filename |
|---|---|
| S-1/A - ASSEMBLY BIOSCIENCES, INC. | v201772_s1a.htm |
| EX-5.1 - ASSEMBLY BIOSCIENCES, INC. | v201772_ex5-1.htm |
| EX-1.1 - ASSEMBLY BIOSCIENCES, INC. | v201772_ex1-1.htm |
| EX-4.13 - ASSEMBLY BIOSCIENCES, INC. | v201772_ex4-13.htm |
| EX-23.1 - ASSEMBLY BIOSCIENCES, INC. | v201772_ex23-1.htm |
| EX-10.1 - ASSEMBLY BIOSCIENCES, INC. | v201772_ex10-1.htm |
| EX-10.12 - ASSEMBLY BIOSCIENCES, INC. | v201772_ex10-12.htm |
Exhibit
3.1
THIRD
AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
VENTRUS
BIOSCIENCES, INC.
(Pursuant
to Sections 242 and 245 of the General Corporation Law of the State of
Delaware)
Ventrus
Biosciences, Inc., a corporation organized and existing under and by virtue of
the provisions of the General Corporation Law of the State of Delaware,
certifies that:
A. The
name of the corporation is Ventrus Biosciences, Inc. (the
“Corporation”).
B. The
Corporation’s original Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on October 7, 2005, under the name South
Island Biosciences, Inc., an Amended and Restated Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware on October 24,
2005, and a second Amended and Restated Certificate of Incorporation, which
included a provision to change the Corporation’s name to Ventrus Biosciences,
Inc., was filed with the Secretary of State of the State of Delaware on April 5,
2007 (the “Second Amended and Restated Certificate of
Incorporation”).
C. This
Third Amended and Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the State
of Delaware, and hereby amends and restates in its entirety the Second Amended
and Restated Certificate of Incorporation as follows.
ARTICLE
I
The name
of the corporation is “Ventrus Biosciences, Inc. (the
“Corporation”).
ARTICLE
II
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.
ARTICLE
III
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
IV
Effective upon filing of this Third
Amended and Restated Certificate of Incorporation, with the Secretary of State
of the State of Delaware (the “Effective Time”), each 12.4 shares of the
Corporation’s Common Stock, par value $0.001 per share, issued and outstanding
(the “Old Common Stock”), will be automatically reclassified as and converted
into one share of Common Stock, par value $0.001 per share (the “New Common
Stock”) of the Corporation. No fractional shares of New Common Stock
of the Corporation will be issued. As soon as practicable following
the Effective Time, the Corporation will notify its shareholders of record as of
the Effective Time to transmit outstanding share certificates to the
Corporation’s exchange agent and registrar (“Exchange Agent”) and the
Corporation will cause the Exchange Agent to issue new certificates or book
entries representing one share of common stock for every 12.4 shares transmitted
and held of record as of the Effective Time; and in settlement of fractional
interests that might arise as a result of such combination as of the Effective
Time, cause the Exchange Agent to disburse to such holders a cash payment in an
amount equal to the product obtained by multiplying (i) the fair market value of
the Corporation’s Common Stock on the day of the Effective Time as determined by
the Board of Directors in its sole discretion by (ii) the number of shares of
the Corporation’s Common Stock held by a holder that would otherwise have been
exchanged for a fractional share interest, as determined by the
Board.
The total
number of shares that the Corporation shall have authority to issue, after
taking into account the reverse stock split, is 55,000,000 (fifty-five million),
consisting of (i) 50,000,000 (fifty million) shares of common stock,
$.001 par value per share, and (ii)5,000,000 (five million) shares of preferred
stock, $.001 par value per share.
The board
of directors is authorized to issue the preferred stock, subject to limitations
prescribed by law and the provisions of this Certificate of Incorporation, as
shares of preferred stock in series, and is authorized, by filing a certificate
of designation pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the shares
of each such series and qualifications, limitations or restrictions
thereof. The authority of the board of directors with respect to each
series shall include, but not be limited to, determination of the
following:
(i)
the
number of shares constituting that series and the distinctive designation of
that series;
(ii)
the
dividend rate on the shares of that series, whether dividends shall be
cumulative, and, if so, from which date or dates, and the relative rights of
priority, if any, of payment of dividends on shares of that
series;
(iii)
whether
that series shall have voting rights, in addition to the voting rights provided
by law, and, if so, the terms of such rights;
(iv)
whether
that series shall have conversion privileges, and, if so, the terms and
conditions of such conversion, including provisions for adjustment of the
conversion rate in such events as the board of directors shall
determine;
(v)
whether
or not the shares of that series shall be redeemable, and, if so, the terms and
conditions of such redemption, including the dates or dates upon or after which
they shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and at different
redemption dates;
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(vi)
whether
that series shall have a sinking fund for the redemption or purchase of shares
of that series, and, if so, the terms and amounts of such sinking
fund;
(vii)
the
rights of the shares of that series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, and the relative
rights of priority, if any, of payment of shares of that series;
and
(viii)
any
other rights, preferences and limitations of that series.
The board
of directors, within the limits and restrictions stated in any resolution or
resolutions of the board of directors originally fixing the number of shares
constituting any series, may 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.
ARTICLE
V
Unless and except that the bylaws of
the Corporation shall so require, the election of directors of the Corporation
need not be by written ballot.
ARTICLE
VI
Effective upon the registration of any
class of the Corporation’s stock under the Securities Act of 1934, as amended,
any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of the
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
ARTICLE
VII
Special meetings of the stockholders
may be called, at any time for any purpose or purposes, by the board of
directors, or by such person or persons duly designated by the board of
directors whose powers and authority, as expressly provided in a resolution of
the board of directors, include the power to call such meetings, but such
special meetings may not be called by any other person or persons.
ARTICLE
VIII
Any director may resign at any time
upon notice given in writing or electronic transmission to the
Corporation. When one or more directors so resigns and the
resignation is effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in this paragraph in the filling of other
vacancies.
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Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
elected by all of the stockholders having the right to vote as a single class
may be filled by a majority of the directors then in office, although less than
a quorum, or by a sole remaining director.
Whenever the holders of any class or
classes of stock or series thereof are entitled to elect one or more directors
by the provisions of this Certificate of Incorporation, vacancies and newly
created directorships of such class or classes or series may be filled by a
majority of the directors elected by such class or classes or series thereof
then in office, or by a sole remaining director so elected.
ARTICLE
IX
To the fullest extent permitted by the
Delaware General Corporation Law as the same exists or as may hereafter be
amended, no present or former 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. Neither any amendment nor repeal of
this Article, nor the adoption of any provision of this Certificate of
Incorporation inconsistent with this Article, shall eliminate or reduce the
effect of this Article in respect of any matter occurring, or any cause of
action, suit or claim that, but for this Article, would accrue or arise, prior
to such amendment, repeal or adoption of an inconsistent provision.
ARTICLE
X
The Corporation shall have the power to
indemnify any person who was or is a party or is threatened to be made a party
to, or testifies in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative in nature,
by reason of the fact such person is or was a director, officer or employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise, against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding to the full extent permitted by law, and the
Corporation may adopt bylaws or enter into agreements with any such person for
the purpose of providing for such indemnification.
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 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 Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the rights reserved in this article.
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ARTICLE
XII
In furtherance and not in limitation of
the powers conferred by the laws of the State of Delaware, the board of
directors of the Corporation is expressly authorized to make, alter and repeal
the bylaws of the Corporation, subject to the power of the stockholders of the
Corporation to alter or repeal any bylaw whether adopted by them or
otherwise.
IN WITNESS WHEREOF, the
undersigned has signed this Amended and Restated Certificate of Incorporation
this 10th day of
November 2010.
|
|
By:
|
/s/ Russell H. Ellison, M.D. | |
| Russell H. Ellison, M.D. | |||
|
Chief
Executive Officer
|
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