Attached files
file | filename |
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S-1/A - FORM S-1 AMENDMENT 4 - Phio Pharmaceuticals Corp. | b88518a4sv1za.htm |
EX-3.2 - EX-3.2 - Phio Pharmaceuticals Corp. | b88518a4exv3w2.htm |
EX-2.3 - EX-2.3 - Phio Pharmaceuticals Corp. | b88518a4exv2w3.htm |
EX-23.1 - EX-23.1 - Phio Pharmaceuticals Corp. | b88518a4exv23w1.htm |
EX-10.4 - EX-10.4 - Phio Pharmaceuticals Corp. | b88518a4exv10w4.htm |
EX-10.3 - EX-10.3 - Phio Pharmaceuticals Corp. | b88518a4exv10w3.htm |
EX-10.16 - EX-10.16 - Phio Pharmaceuticals Corp. | b88518a4exv10w16.htm |
EX-10.12 - EX-10.12 - Phio Pharmaceuticals Corp. | b88518a4exv10w12.htm |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
RXI PHARMACEUTICALS CORPORATION
RXi Pharmaceuticals Corporation, a Delaware corporation (the Corporation), hereby
certifies that this Amended and Restated Certificate of Incorporation has been duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware (the
DGCL), and that:
A. The name of the Corporation is: RXi Pharmaceuticals Corporation.
B. The original Certificate of Incorporation of the Corporation was filed with the Secretary
of the State of Delaware on September 8, 2011, and amended on September 26, 2011 (as amended, the
Original Certificate of Incorporation).
C. This Amended and Restated Certificate of Incorporation amends and restates the Original
Certificate of Incorporation of the Corporation.
D. The board of the directors of the Corporation (the Board of Directors) and Galena
Biopharma, Inc., as sole stockholder of the Corporation, have duly adopted resolutions authorizing
the Corporation to effect up to 2 reverse stock splits of its then issued and outstanding shares at
a ratio ranging from 1-for-2 to 1-for-100.
E. The Certificate of Incorporation upon the filing of this Amended and Restated Certificate
of Incorporation, shall read as follows:
ARTICLE I NAME
The name of the corporation is RXi Pharmaceuticals Corporation (the Corporation).
ARTICLE II REGISTERED OFFICE AND AGENT
The address of the Corporations registered office in the State of Delaware is 2140 S. Dupont
Highway, Camden, Delaware 19934, County of Kent. The name of the Corporations registered agent at
such address is Paracorp Incorporated.
ARTICLE III PURPOSE
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 CAPITALIZATION
(a) Authorized Shares. The total number of shares of stock which the Corporation
shall have authority to issue is 1,510,000,000 shares, consisting of 1,500,000,000 shares of
Common Stock, par value $0.0001 per share (Common Stock) and 10,000,000 shares of
Preferred Stock, par value $0.0001 per share (Preferred Stock). Immediately upon the
filing of a certificate of amendment to this Amended and Restated Certificate of Corporation with
the Secretary of State of the State of Delaware, the Corporation may, within 18 months of the
filing of this Amended and Restated Certificate of Incorporation with the Secretary of State of the
State of Delaware, up to 2 times, combine into 1 share of such Common Stock a number of shares of
Common Stock then issued and outstanding, ranging from 2 to 100 (the Reverse Stock
Split). Upon surrender by a holder of a certificate or certificates for Common Stock
(including, for this purpose, a holder of shares of Common Stock issuable upon conversion of
Preferred Stock), duly endorsed, at the office of the Corporation (or, if lost, an acceptable
affidavit of loss is delivered to the Corporation), the Corporation shall, as soon as practicable
thereafter, issue and deliver to such holder, or to the nominee or assignee of such holder, a new
certificate or certificates for the number of shares of Common Stock that such holder shall be
entitled to following the Reverse Stock Split. No fractional shares shall be issued, and, in lieu
thereof, the Corporation shall pay cash equal to such fraction multiplied by the fair market value
of a share of Common Stock (pre-Reverse Stock Split). The Common Stock issued in any such exchange
(post-Reverse Stock Split) shall have the same rights, preferences and privileges as the Common
Stock (pre-Reverse Stock Split). Any such Reverse Stock Split, other stock split or similar
recapitalization shall be subject to the approval of the holders of ninety-five percent (95%) of
Preferred Stock then issued and outstanding.
(b) Preferred Stock. Shares of Preferred Stock may be issued in one or more series,
from time to time, with each such series to consist of such number of shares and to have such
voting powers relative to other classes of Preferred Stock, if any, or Common Stock, full or
limited, or no voting powers, and such designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or restrictions thereof, as
shall be stated in the resolution or resolutions providing for the issuance of such series adopted
by the Board of Directors, and the Board of Directors is hereby expressly vested with the
authority, to the full extent now or hereafter provided by applicable law, to adopt any such
resolution or resolutions.
(c) Voting. Each holder of Common Stock, as such, shall be entitled to one vote for
each share of Common Stock held of record by such holder on all matters on which stockholders
generally are entitled to vote; provided, that, except as otherwise required by law,
holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Amended
and Restated Certificate of Incorporation (including, but not limited to, any certificate of
designations relating to any series of Preferred Stock) that relates solely to the terms of one or
more outstanding series of Preferred Stock if the holders of such affected series are entitled,
either separately or together with the holders of one or more other such series, to vote thereon
pursuant to this Amended and Restated Certificate of Incorporation (including, but not limited to,
any certificate of designations relating to any series of Preferred Stock) or pursuant to the DGCL.
(d) No Class Vote On Changes In Authorized Number of Shares Of Preferred
Stock. Subject to the rights of the holders of any series of Preferred Stock pursuant to the
terms of this Amended and Restated Certificate of Incorporation, any certificate of designations or
any resolution or resolutions providing for the issuance of such series of stock adopted by the
Board of Directors, the number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of
the
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holders of a majority of the Common Stock irrespective of the provisions of Section 242(b)(2) of
the DGCL.
ARTICLE V BOARD OF DIRECTORS
Any election of directors by stockholders shall be determined by a plurality of the votes cast
by stockholders entitled to vote in the election. Vacancies and newly-created directorships shall
be filled exclusively pursuant to a resolution adopted by the Board of Directors. No decrease in
the number of directors constituting the Board of Directors shall shorten the term of any incumbent
director.
ARTICLE VI LIMITATION OF DIRECTOR LIABILITY
To the fullest extent that the DGCL or any other law of the State of Delaware (as they exist
on the date hereof or as they may hereafter be amended) permits the limitation or elimination of
the liability of directors, no director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director. No amendment to,
or modification or repeal of, this Article VI shall adversely affect any right or protection of a
director of the Corporation existing hereunder with respect to any act or omission occurring prior
to such amendment, modification or repeal.
ARTICLE VII MEETINGS OF STOCKHOLDERS
(a) No Action by Written Consent. Except as otherwise provided for or fixed by or
pursuant to the provisions of this Amended and Restated Certificate of Incorporation or any
resolution or resolutions of the Board of Directors providing for the issuance of Preferred Stock,
following the first public distribution of the Corporations shares of Common Stock pursuant to an
effective registration statement, any action required or permitted to be taken by the stockholders
of the Corporation may be effected only at a duly called annual or special meeting of stockholders
of the Corporation and may not be effected by any consent in writing by such stockholders.
(b) Special Meetings of Stockholders. Subject to the rights of the
holders of any series of Preferred Stock, and to the requirements of applicable law, special
meetings of stockholders of the Corporation may be called only by either (i) the Board of Directors
pursuant to a resolution adopted by a majority of the total number of directors which the
Corporation would have if there were no vacancies or (ii) any holder of five percent (5%) of the
shares then entitled to vote at an election of directors.
(c) Election of Directors by Written Ballot. Election of directors need not be by
written ballot.
ARTICLE VIII AMENDMENTS TO THE BYLAWS
In furtherance and not in limitation of the powers conferred by law, the Board of
Directors is expressly authorized to make, alter, amend or repeal the bylaws of the Corporation
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(as amended from time to time, the Bylaws) subject to the power of the stockholders of
the Corporation to alter, amend or repeal the Bylaws.
ARTICLE IX RENOUNCEMENT OF CORPORATE OPPORTUNITY
To the fullest extent permitted by the DGCL or any other law of the State of Delaware (as they
exist on the date hereof or as they may hereafter be amended), until the first anniversary of the
date that this Amended and Restated Certificate of Incorporation is filed with the Secretary of
State of the State of Delaware, the Corporation renounces any interest or expectancy of the
Corporation in, or in being offered an opportunity to participate in, business opportunities that
are from time to time presented to its directors or stockholders or the affiliates of the
foregoing, other than those directors, stockholders or affiliates who are employees of the
Corporation or its direct or indirect subsidiaries. No amendment or repeal of this Article IX
shall apply to or have any effect on the liability or alleged liability of any such director,
stockholder or affiliate of the Corporation for or with respect to any opportunities of which such
director, stockholder or affiliate becomes aware prior to such amendment or repeal.
ARTICLE X EXCLUSIVE JURISDICTION OF CERTAIN ACTIONS
The Court of Chancery of the State of Delaware shall, to the fullest extent permitted by
applicable law, be the sole and exclusive forum for (i) any derivative action or proceeding brought
on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed
by any director, officer or other employee of the Corporation to the Corporation or the
Corporations stockholders, (iii) any action asserting a claim against the Corporation arising
pursuant to any provision of the DGCL or the Corporations Amended and Restated Certificate of
Incorporation or Bylaws or (iv) any action asserting a claim against the Corporation governed by
the internal affairs doctrine, in each such case subject to said Court of Chancery having personal
jurisdiction over the indispensible parties named as defendants therein. Any person or entity
purchasing or otherwise acquiring any interest in the shares of capital stock of the Corporation
shall be deemed to have notice of and consented to the provisions of this Article X.
ARTICLE XI SEVERABILITY
If any provision or provisions of this Amended and Restated Certificate of Incorporation shall
be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason
whatsoever: (i) the validity, legality and enforceability of such provisions in any other
circumstance and of the remaining provisions of this Amended and Restated Certificate of
Incorporation (including, without limitation, each portion of any paragraph of this Amended and
Restated Certificate of Incorporation containing any such provision held to be invalid, illegal or
unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby and (ii) to the fullest extent possible, the provisions of this
Amended and Restated Certificate of Incorporation (including, without limitation, each such portion
of any paragraph of this Amended and Restated Certificate of Incorporation containing any such
provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the
Corporation to protect its directors, officers, employees and agents
from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent
permitted by law.
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IN WITNESS WHEREOF, the undersigned has caused this Amended and Restated Amended and Restated
Certificate of Incorporation to be executed by the officer below this
24th day of January, 2012.
RXI PHARMACEUTICALS CORPORATION |
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By: | /s/ Mark J. Ahn | |||
Name: | Mark J. Ahn | |||
Title: | President | |||
[Signature Page to Amended and Restated Certificate of Incorporation]