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EXHIBIT 3.1
ARTICLES OF
INCORPORATION
OF
PERNIX THERAPEUTICS HOLDINGS,
INC.
As in effect on March 10, 2010
ARTICLE I
NAME
The name of the corporation (which is hereinafter
called the “Corporation”) is:
Pernix Therapeutics Holdings,
Inc.
ARTICLE II
PURPOSES
(a) The purpose for which the Corporation is
formed is to engage in any lawful act or activity for which corporations may
be organized under the General Laws of the State of Maryland now or hereafter
in force.
(b) The foregoing enumerated purposes and
objects shall be in no way limited or restricted by reference to, or inference
from, the terms of any other clause of this or any other Article of these
Articles of Incorporation of the Corporation (this “Charter”), and each
shall be regarded as independent; and they are intended to be and shall be
construed as powers as well as purposes and objects of the Corporation and
shall be in addition to and not in limitation of the general powers of
corporations under the General Laws of the State of Maryland.
ARTICLE III
PRINCIPAL OFFICE IN MARYLAND
AND RESIDENT AGENT
The post office address of the principal office of
the Corporation in the State of Maryland is The Corporation Trust
Incorporated, 300 East Lombard Street, Baltimore, Maryland
21202. The name of the resident agent of the Corporation in the
State of Maryland is The Corporation Trust Incorporated, 300 East Lombard
Street, Baltimore, Maryland 21202. Said resident agent is a
resident of the State of Maryland.
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ARTICLE IV
SHARES OF CAPITAL STOCK
SECTION 1. Authorized Shares of Capital Stock.
(a) Authorized Shares. The total
number of shares of capital stock of all classes that the Corporation has
authority to issue is one hundred million (100,000,000) shares of capital
stock (par value one cent ($.01) per share), consisting of (i) ninety
million (90,000,000) shares of common stock, par value one cent ($.01) per
share (the “Common
Stock”), and (ii) ten million (10,000,000) shares of
preferred stock, par value one cent ($.01) per share (the “Preferred
Stock”). The Preferred Stock includes one million
(1,000,000) shares of Series B Junior Participating Stock, par value one
cent ($.01) per share (the “Series B”). The remainder of the Preferred
Stock may be issued in one or more classes as described in Section 3(b) of this
Article IV. The Common Stock and each class of the
Preferred Stock shall each constitute a separate class of capital stock of the
Corporation. The Board of Directors may classify and reclassify any
unissued shares of capital stock in accordance with Section 4 of this
Article IV.
(b) Terminology and Aggregate Par
Value. The Common Stock and Preferred Stock are collectively
referred to herein as the “Equity Shares”. The aggregate par value of all the
Corporation’s authorized Equity Shares having par value is
$1,000,000.
SECTION 2. Common Stock. Subject to the provisions of Section 3 of this
Article IV, the Common Stock shall have the following preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications and terms and conditions of redemption and such
other rights as may be afforded by law.
(a) Voting Rights. Except as may otherwise
be required by law, each holder of Common Stock shall have one vote in respect
of each share of Common Stock on all actions to be taken by the stockholders
of the Corporation, and, except as otherwise provided in Section 3 of this
Article IV or in respect of any class of stock, hereafter
classified or reclassified, the exclusive voting power for all purposes shall
be vested in the holders of the Common Stock.
(b) Dividend Rights. Subject to the
provisions of law, Section 3 of this Article IV and any preferences
of any class of stock hereafter classified or reclassified, dividends,
including dividends payable in shares of another class of the
Corporation’s stock, may be paid on the Common Stock of the Corporation
at such time and in such amounts as the Board of Directors may deem advisable
and the holders of the Common Stock shall share ratably in any such dividends,
in proportion to the number of shares of Common Stock held by them
respectively, on a share for share basis.
(c) Liquidation Rights. In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary
of involuntary, the holders of the Common Stock shall be entitled, after
payment or provision for payment of the debts and other liabilities of the
Corporation and the amount to which the holders of the Series B and the
holders of any class of capital stock hereafter classified or reclassified
having a preference on distributions in the liquidation, dissolution or
winding up on the Corporation are entitled, together with the holders of the
Series B and the holders of any other class of capital stock hereafter
classified or reclassified not having a preference on distributions in the
liquidation, dissolution or winding up of the Corporation, to share ratably in
the remaining net assets of the Corporation.
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(d) Stock Exchange
Transactions. Notwithstanding any provisions contained
herein to the contrary, nothing in this Charter shall preclude the settlement
of any transaction entered into through the facilities of the New York Stock
Exchange or the American Stock Exchange.
SECTION 3. Preferred
Shares.
(a) Series B Junior Participating Preferred
Stock. The Series B shall have the following preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications and terms and conditions of redemption and such
other rights as may be afforded by law.
(i) Dividends and Distributions.
(A) Subject to the prior and superior rights
of the holders of any shares of any series of Preferred Stock ranking prior
and superior to the shares of the Series B with respect to dividends, the
holders of shares of the Series B shall be entitled to receive, when, as
and if authorized and declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the 15th day
of January, April, July and October in each year, or the next following
business day, if such day is not a business day (each such date being referred
to herein as a “Quarterly Dividend Payment Date”), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of the Series B, in an amount per share (rounded to
the nearest cent) equal to the greater of (1) $1.00, or (2) subject
to the provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions
other than a dividend payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
the Series B. In the event the Corporation shall at any time
after September 6, 1999 (the “Rights Record Date”) (x) authorize and declare any
dividend on the Common Stock payable in shares of the Common Stock,
(y) subdivide the outstanding Common Stock, or (z) combine the
outstanding Common Stock into a smaller number of shares, then in each such
case the amount to which holders of shares of the Series B were entitled
immediately prior to such event under clause (2) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) The Corporation shall authorize and declare a
dividend or distribution on the Series B as provided in Section 3(a)(i)(A) of this
Article IV immediately after it authorizes and declares a dividend
or distribution on the Common Stock (other than a dividend payable in shares
of Common Stock); provided that, in the event no dividend or distribution
shall have been authorized and declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1.00 per share on the Series B
shall nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
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(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of the Series B from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares of the Series B,
unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of the Series B
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue
and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of the Series B in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
the Series B entitled to receive payment of a dividend or distribution
authorized and declared thereon, which record date shall be no more than 30
days prior to the date fixed for the payment thereof.
(ii) Voting Rights. The holders of
shares of the Series B shall have the following voting
rights:
(A) Subject to the provision for adjustment hereinafter
set forth, each share of the Series B shall entitle the holder thereof to
100 votes on all matters submitted to a vote of the holders of the Common
Stock. In the event the Corporation shall at any time after the
Rights Record Date (1) authorize and declare any dividend on Common Stock
payable in shares of Common Stock, (2) subdivide the outstanding Common
Stock, or (3) combine the outstanding Common Stock into a smaller number
of shares, then in each such case the number of votes per share to which
holders of shares of the Series B were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, the holders
of shares of the Series B and the holders of shares of Common Stock shall
vote together as one class on all matters submitted to a vote of holders of
the Common Stock.
(C) Default Period.
(1) If at any time dividends on any of the Series B
shall be in arrears in an amount equal to six (6) quarterly dividends thereon,
the occurrence of such contingency shall mark the beginning of a period
(herein called a “Default Period”) which shall extend until such time when
all accrued and unpaid dividends for all previous quarterly dividend periods
and for the current quarterly dividend period on all shares of the
Series B then outstanding shall have been authorized and declared and
paid or set apart for payment. During each Default Period, all
holders of Preferred Stock (including holders of the Series B) with
dividends in arrears in an amount equal to six (6) quarterly dividends
thereon, voting as a class, irrespective of series, shall have the right to
elect two (2) directors.
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(2) During any Default Period, such voting right of the
holders of the Series B may be exercised initially at a special meeting
called pursuant to Section 3(a)(ii)(C)(3) of this Article IV or at any
annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting right nor the right of the
holders of any other series of Preferred Stock, if any, to increase, in
certain cases, the authorized number of directors, be exercised unless the
holders of ten percent (10%) in number of shares of Preferred Stock
outstanding be present in person or by proxy. The absence of a
quorum of the holders of Common Stock shall not affect the exercise by the
holders of Preferred Stock of such voting right. At any meeting at
which the holders of Preferred Stock shall exercise such voting right
initially during an existing Default Period, they shall have the right, voting
as a class, to elect directors to fill such vacancies, if any, in the Board of
Directors as may then exist up to two (2) directors or, if such right is
exercised at an annual meeting, to elect two (2) directors. If the
number which may be so elected at any special meeting does not amount to the
required number, the holders of the Preferred Stock shall have the right to
make such increase in the number of directors as shall be necessary to permit
the election by them of the required number. After the holders of
the Preferred Stock shall have exercised their right to elect directors in any
Default Period and during the continuance of such period, the number of
directors shall not be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series B.
(3) Unless the holders of Preferred
Stock shall, during an existing Default Period, have previously exercised
their right to elect directors, the Board of Directors may order, or any
stockholder or stockholders owning in the aggregate not less than ten percent
(10%) of the total number of shares of Preferred Stock outstanding,
irrespective of series, may request, the calling of a special meeting of the
holders of Preferred Stock, which meeting shall thereupon be called by the
President, a Vice-President or the Secretary of the
Corporation. Notice of such meeting and of any annual meeting at
which holders of Preferred Stock are entitled to vote pursuant to this Section 3(a)(ii)(C)(3) shall be given to each holder of
record of Preferred Stock by mailing a copy of such notice to him at his last
address as the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 20 days and not later than
60 days after such order or request or in default of the calling of such
meeting within 60 days after such order or request, such meeting may be called
on similar notice by any stockholder or stockholders owning in the aggregate
not less than ten percent (10%) of the total number of shares of Preferred
Stock outstanding. Notwithstanding the provisions of this Section 3(a)(ii)(C)(3), no such special meeting shall
be called during the period within 60 days immediately preceding the date or
the first day of the period, as the case may be, fixed by the Bylaws of the
Corporation for the next annual meeting of the stockholders.
(4) In any Default Period, the holders of Common Stock,
and other classes of stock of the Corporation if applicable, shall continue to
be entitled to elect the whole number of directors until the holders of
Preferred Stock shall have exercised their right to elect two (2) directors
voting as a class, after the exercise of which right (x) the directors so
elected by the holders of Preferred Stock shall continue in office until their
successors shall have been elected by such holders or until the expiration of
the Default Period, whichever happens first, and (y) any vacancy in the
Board of Directors may (except as provided in Section 3(a)(ii)(C)(2) of this Article
IV) be filled by vote of a majority of the remaining directors
theretofore elected by the holders of the class of stock which elected the
director whose office shall have become vacant. References in this
Section 3(a)(ii)(C) to directors elected by the holders
of a particular class of stock shall include directors elected by such
directors to fill vacancies as provided in clause (y) of the foregoing
sentence.
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(5) Immediately upon the expiration of a Default Period,
(x) the right of the holders of Preferred Stock as a class to elect
directors shall cease, (y) the term of any directors elected by the
holders of Preferred Stock as a class shall terminate, and (z) the number
of directors shall be such number as may be provided for in this Charter or
Bylaws irrespective of any increase made pursuant to the provisions of Section 3(a)(ii)(C)(2) of this Article IV (such number
being subject, however, to change thereafter in any manner provided by law or
in this Charter or Bylaws). Any vacancies in the Board of Directors
effected by the provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining directors.
(D) Except as set forth herein, holders of the
Series B shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate
action.
(iii) Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B as provided in Section 3(a)(i) of
this Article IV are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not authorized or declared, on
shares of the Series B outstanding shall have been paid in full, the
Corporation shall not:
(1) authorize or declare or pay dividends on, make any
other distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the
Series B;
(2) authorize or declare or pay dividends on or make any
other distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series B, except dividends paid ratably on the Series B and all such
parity stock on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(3) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series B,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series B; or
(4) purchase or otherwise acquire for consideration any
shares of the Series B, or any shares of stock ranking on a parity with
the Series B, except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative rights and preferences
of the respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
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(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under Section 3(a)(iii)(A)
of this Article IV, purchase or otherwise acquire such shares at such
time and in such manner.
(iv) Reacquired Shares. Any shares of
the Series B purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be reissued
as part of a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
(v) Liquidation, Dissolution or Winding
Up.
(A) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no distribution shall be made to
the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B unless, prior
thereto, the holders of shares of the Series B shall have received an
amount equal to $100 per share of Series B, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not
authorized or declared, to the date of such payment (the “Series B Liquidation
Preference”). Following the payment of the full amount
of the Series B Liquidation Preference, no additional distributions shall
be made to the holders of shares of the Series B unless, prior thereto,
the holders of shares of Common Stock shall have received an amount per share
(the “Common
Adjustment”) equal to the quotient obtained by dividing
(1) the Series B Liquidation Preference by (2) 100 (as
appropriately adjusted as set forth in Section 3(a)(v)(C) of this Article IV to
reflect such events as stock splits, stock dividends and recapitalizations
with respect to the Common Stock) (such number in clause (2), the “Adjustment
Number”). Following the payment of the full amount of
the Series B Liquidation Preference and the Common Adjustment in respect
of all outstanding shares of the Series B and Common Stock, respectively,
holders of the Series B and holders of shares of Common Stock shall
receive their ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to l with respect to such
Preferred Stock and Common Stock, on a per share basis,
respectively. The merger or consolidation of the Corporation,
regardless of whether the Corporation is the surviving entity in such merger
or consolidation, shall not be deemed to be the liquidation, dissolution or
winding up of the Corporation.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series B Liquidation
Preference and the liquidation preferences of all other series of preferred
stock, if any, which rank on a parity with the Series B, then such
remaining assets shall be distributed ratably in the same proportion as the
respective amounts that would be payable on such Series B and any such
other parity stock if all amounts payable thereon were paid in
full. In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common
Stock.
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(C) In the event the Corporation shall at any time after
the Rights Record Date (1) declare any dividend on Common Stock payable
in shares of Common Stock, (2) subdivide the outstanding Common Stock, or
(3) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the Adjustment Number in effect immediately prior to
such event shall be adjusted by multiplying such Adjustment Number by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(vi) Consolidation, Merger, Etc. If
the Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property, then
in any such case the shares of the Series B shall at the same time be
similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 100 times the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Corporation shall
at any time after the Rights Record Date (1) declare any dividend on
Common Stock payable in shares of Common Stock, (2) subdivide the
outstanding Common Stock, or (3) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the amount set forth
in the preceding sentence with respect to the exchange or change of shares of
the Series B shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(vii) No Redemption. The shares of the
Series B shall not be redeemable.
(viii) Ranking.
(A) The Series B shall rank junior to all other
series of the Corporation's Preferred Stock as to the payment of dividends and
the distribution of assets, unless the terms of any such series shall provide
otherwise.
(B) The liquidation preference of the outstanding shares
of the Series B will not be added to the liabilities of the Corporation
for the purpose of determining whether under the Maryland General Corporation
Law a distribution may be made to stockholders of the Corporation whose
preferential rights upon dissolution of the Corporation are junior to those of
holders of the Series B.
(ix) Amendment. At any time when any
shares of the Series B are outstanding, this Charter shall not be amended
in any manner which would materially alter or change the powers, preferences
or special rights of the Series B so as to affect them adversely without
the affirmative vote of the holders of a majority or more of the outstanding
shares of the Series B, voting separately as a class; provided that none
of (A) the creation or issuance of (1) additional shares of the
Series B, or (2) shares of any class or series of Preferred Stock
ranking junior to or on parity with the Series B as to the payment of
dividends and the distribution of assets, (B) a merger or consolidation
in which the Corporation is the surviving entity and the Series B remains
outstanding with no material adverse change in its powers, preferences and
special rights, or (C) a merger or consolidation in which the Corporation
is not the surviving entity and the holders of the Series B receive in
exchange therefor a substantially identical security of the surviving entity,
shall be considered to materially adversely alter or change the powers,
preferences or special powers of the Series B.
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(x) Fractional Shares. The Series B may
be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of the Series B.
(xi) Certificate Legend. The Board of
Directors may authorize the issue of some or all of the shares (including
fractional shares) of the Series B without certificates. If
issued in certificated form, each share (including each fractional share) of
the Series B shall bear substantially the following legend in addition to
any legends required to comply with federal and state securities
laws:
THE CORPORATION IS AUTHORIZED TO ISSUE CAPITAL STOCK OF MORE
THAN ONE CLASS, CONSISTING OF COMMON STOCK AND ONE OR MORE CLASSES OF
PREFERRED STOCK. THE BOARD OF DIRECTORS IS AUTHORIZED TO DETERMINE
THE PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS OF ANY CLASS OF PREFERRED
STOCK BEFORE THE ISSUANCE OF SHARES OF SUCH CLASS OF PREFERRED
STOCK. THE CORPORATION WILL FURNISH, WITHOUT CHARGE, TO ANY
STOCKHOLDER MAKING A WRITTEN REQUEST THEREFORE, A COPY OF THE CORPORATION'S
CHARTER AND A WRITTEN STATEMENT OF THE DESIGNATIONS, RELATIVE RIGHTS,
PREFERENCES, CONVERSION OR OTHER RIGHTS, VOTING POWERS, RESTRICTIONS,
LIMITATIONS AS TO THE DIVIDENDS AND OTHER DISTRIBUTIONS, QUALIFICATIONS AND
TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS WHICH THE
CORPORATION HAS THE AUTHORITY TO ISSUE AND, IF THE CORPORATION IS AUTHORIZED
TO ISSUE ANY PREFERRED OR SPECIAL CLASS IN SERIES, (i) THE DIFFERENCES IN
THE RELATIVE RIGHTS AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE
EXTENT SET, AND (ii) THE AUTHORITY OF THE BOARD OF DIRECTORS TO SET SUCH
RIGHTS AND PREFERENCES OF SUBSEQUENT SERIES. REQUESTS FOR SUCH
WRITTEN STATEMENT MAY BE DIRECTED TO THE SECRETARY OF THE CORPORATION AT ITS
PRINCIPAL OFFICE.
(b) The Preferred Stock may be issued from time to time
in one or more classes. The Board of Directors is expressly
authorized, in the resolution or resolutions providing for the issuance of any
wholly unissued class of Preferred Stock, to fix, state and express the
powers, rights, designations, preferences, qualifications, limitations and
restrictions thereof, including without limitation (i) the rate of dividends
upon which and the times at which dividends on shares of such class shall be
payable and the preference, if any, which such dividends shall have relative
to dividends on shares of any other class or classes of stock of the
Corporation, (ii) whether such dividends shall be cumulative or noncumulative,
and if cumulative, the date or dates from which dividends on shares of such
class shall be cumulative, (iii) the voting rights, if any, to be provided for
shares of such class, (iv) the rights, if any, which the holders of shares of
such class shall have in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation, (v)
the rights, if any, which the holders of shares of such class shall have to
convert such shares into or exchange such shares for shares of stock of the
Corporation, and the terms and conditions, including price and rate of
exchange of such conversion or exchange, (vi) the redemption rights (including
sinking fund provisions), if any, for shares of such class, and (vii) such
other powers, rights, designations, preferences, qualifications, limitations
and restrictions as the Board of Directors may desire to so
fix. The Board of Directors is also expressly authorized to fix the
number of shares constituting such class and to increase or decrease the
number of shares of any class prior to the issuance of shares of that class
and to increase or decrease the number of shares of any class subsequent to
the issuance of shares of that class, but not to decrease such number below
the number of shares of such class then outstanding. In case the
number of shares of any class shall be so decreased, the shares constituting
such decrease shall resume the status which they had prior to the adoption of
the resolution originally fixing the number of shares of such
class.
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SECTION 4. Classification and Reclassification of Capital
Stock.
(a) Subject to the foregoing provisions of
this Article IV, the power of the Board of Directors to
classify and reclassify any of the unissued shares of capital stock shall
include, without limitation, subject to the provisions of this Charter,
authority to classify or reclassify any unissued shares of such stock into a
class or classes of preferred stock, preference stock, special stock or other
stock, by determining, fixing or altering one or more of the
following:
(i) The distinctive designation of such class
and the number of shares to constitute such class, provided that, unless
otherwise prohibited by the terms of such or any other class, the number of
shares of any class may be decreased by the Board of Directors in connection
with any classification or reclassification of unissued shares and the number
of shares of such class may be increased by the Board of Directors in
connection with any such classification or reclassification, and any shares of
any class which have been redeemed, purchased, otherwise acquired or converted
into Common Stock or any other class shall become part of the authorized
capital stock and be subject to classification and reclassification as
provided in this Section 4 of Article IV.
(ii) Whether or not and, if so, the rates,
amounts and times at which, and the conditions under which, dividends shall be
payable on shares of such class, whether any such dividends shall rank senior
or junior to or on a parity with the dividends payable on any other class of
stock, and the status of any such dividends as cumulative, cumulative to a
limited extent or non-cumulative and as participating or non-
participating.
(iii) Whether or not shares of such class shall
have voting rights, in addition to any voting rights provided by law and, if
so, the terms of such voting rights.
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(iv) Whether or not shares of such class
shall have conversion or exchange privileges and, if so, the terms and
conditions thereof, including provision for adjustment of the conversion or
exchange rate in such events or at such times as the Board of Directors shall
determine.
(v) Whether or not shares of such class
shall be subject to redemption and, if so, the terms and conditions of such
redemption, including the date 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;
and whether or not there shall be any sinking fund or purchase account in
respect thereof, and if so, the terms thereof.
(vi) The rights of the holders of shares
of such class upon the liquidation, dissolution or winding up of the affairs
of, or upon any distribution of the assets of, the Corporation, which rights
may vary depending upon whether such liquidation, dissolution or winding up is
voluntary or involuntary and, if voluntary, may vary at different dates, and
whether such rights shall rank senior or junior to or on a parity with such
rights of any other class of stock.
(vii) Whether or not there shall be any
limitations applicable, while shares of such class are outstanding, upon the
payment of dividends or making of distributions on, or the acquisition of, or
the use of moneys for purchase or redemption of, any stock of the Corporation,
or upon any other action of the Corporation, including action under this Section 4 of Article
IV, and, if so, the terms and conditions thereof.
(viii) Any other preferences, rights,
restrictions, including restrictions on transferability, and qualifications of
shares of such class, not inconsistent with law and this Charter of the
Corporation.
(b) For the purposes hereof and of any
articles supplementary to this Charter providing for the classification or
reclassification of any shares of capital stock or of any other Charter
document of the Corporation (unless otherwise provided in any such articles or
document), any class of stock of the Corporation shall be deemed to
rank:
(i) prior to another class either as to dividends or upon
liquidation, if the holders of such class shall be entitled to the receipt of
dividends or of amounts distributable on liquidation, dissolution or winding
up, as the case may be, in preference or priority to holders of such other
class;
(ii) on a parity with another class either as to dividends
or upon liquidation, whether or not the dividend rates, dividend payment dates
or redemption or liquidation price per share thereof be different from those
of such others, if the holders of such class of stock shall be entitled to
receipt of dividends or amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in proportion to their respective dividend
rates or redemption or liquidation prices, without preference or priority over
the holders of such other class; and
11
(iii) junior to another class either as to dividends or
upon liquidation, if the rights of the holders of such class shall be subject
or subordinate to the rights of the holders of such other class in respect of
the receipt of dividends or the amounts distributable upon liquidation,
dissolution or winding up, as the case may be.
SECTION 5. Settlement. Nothing in this Article IV
shall be interpreted to preclude the settlement of any transaction entered
into through the facilities of the New York Stock Exchange, the American Stock
Exchange, any other national securities exchange or The Nasdaq National Market
system, but the Equity Shares which are the subject of such transaction shall
continue to be subject to the terms of this Article IV subsequent to such
settlement.
SECTION 6. BOARD OF DIRECTORS’ AUTHORITY TO
EFFECT REVERSE STOCK SPLITS. . Notwithstanding any other provision of
these Articles of Incorporation, to the fullest extent permitted under
applicable law, the board of directors of the Corporation shall have the power
to effect, without stockholder action or approval, any reverse stock
split.
ARTICLE V
THE BOARD OF DIRECTORS
SECTION 1. Number and Qualification of Directors. The business and
affairs of the Corporation shall be managed by a Board of Directors which may
exercise all of the powers of the Corporation except those conferred on, or
reserved to, the stockholders hereunder, under the Bylaws or by
law. The current number of seats on the Board of Directors is seven
(7), which number may be increased or decreased pursuant to the Bylaws of the
Corporation but in no event shall be less than the minimum number required by
the general laws of the State of Maryland. A director need not be a
stockholder of the Corporation. The names of the directors who will
serve until the next annual meeting and until their successors are elected and
qualify are as follows:
W. Bradley Blair, II
Jan H. Loeb
Nauman S. Toor
Edward L. Wax
Michael C. Pearce
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SECTION 2. Removal of Directors.
Any director may be removed with or without cause by the affirmative
vote of stockholders holding not less than 66-2/3% of all votes entitled to be
cast for the election of directors, subject to any rights granted to any class
of Preferred Stock.
SECTION 3. Filling Vacancies.Except in the case of a vacancy
on the Board of Directors among the directors elected by a class of Equity
Shares other than Common Stock, any vacancy on the Board of Directors may be
filled by the affirmative vote of the remaining directors (except that a
vacancy which results from an increase in the number of directors may be
filled by a majority of the entire Board of Directors), and, in the case of a
vacancy resulting from the removal of a director, by the stockholders by the
vote of a majority of the votes entitled to be cast in the election of
directors, subject to any rights granted to any class of Preferred
Stock.
SECTION 4. No Cumulative Voting. Stockholders shall not
be entitled to cumulative voting rights with respect to the election of
directors.
SECTION 5. Reserved Powers of the Board of Directors. The
enumeration and definition of particular powers of the Board of Directors
included in the foregoing provisions of this Article V or the provisions of Article VI of
this Charter shall in no way be limited or restricted by reference to or
inference from the terms of any other clause of this or any other
Article of this Charter of the Corporation, or construed as or deemed by
inference or otherwise in any manner to exclude or limit any powers conferred
upon the Board of Directors under the General Laws of the State of Maryland
now or hereafter in force.
SECTION 6. Independent
Directors.
(a) Except during a period not to exceed sixty (60) days
following the death, resignation, incapacity or removal from office of a
Director prior to the expiration of the Director’s term of office, a
majority of the Directors shall be Independent Directors at all
times.
(b) An Independent Director shall be a person who is
not: (i) an officer or employee of the Corporation, or
(ii) an Affiliate of (w) any advisor to the Corporation under an
advisory agreement, (x) any lessee or management company operating any
property of the Corporation, (y) any subsidiary of the Corporation, or
(z) any partnership which is an Affiliate of the
Corporation.
(c) For purposes of this Section 6 of Article V, an
“Affiliate” of a person or entity shall mean (i) any
person that, directly or indirectly, controls or is controlled by or is under
common control with such person, (ii) any other person that owns,
beneficially, directly or indirectly, five percent (5%) or more of the
outstanding capital shares, shares or equity interests of such person, or
(iii) any officer, director, employee, partner or trustee of such person
or any person controlling, controlled by or under common control with such
person (excluding trustees and persons serving in similar capacities who are
not otherwise an Affiliate of such person).
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The term “person” means and includes individuals,
corporations, general and limited partnerships, stock companies or
associations, joint ventures, associations companies, trusts, banks, trust
companies, last trusts, business trusts or other entities and governments and
agencies and political subdivisions thereof. For the purposes of
this definition, “control” (including the correlative meanings of the terms
“controlled
by” and “under common control with”, as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such person,
through the ownership of voting securities, partnership interests or other
equity interests.
(d) Notwithstanding the foregoing
requirement that a majority of the directors be Independent Directors, no
action otherwise validly taken by the Board of Directors during a period in
which a majority of its members are not Independent Directors shall be
invalidated or otherwise affected by such circumstance, nor shall such
circumstance subject the directors taking any such action to a higher standard
of care or to liability other than that which would have applied to such
action had a majority of the members of the Board of Directors been
Independent Directors at the time such action was taken.
ARTICLE VI
PROVISIONS FOR DEFINING, LIMITING AND
REGULATING
CERTAIN POWERS OF THE CORPORATION AND OF
THE
STOCKHOLDERS AND DIRECTORS
The following provisions are hereby adopted for the
purpose of defining, limiting and regulating the powers of the Corporation and
of the directors and stockholders:
SECTION 1. Board Authorization of Share
Issuances. The Board of Directors is hereby empowered to
authorize the issuance from time to time of shares of any class of Equity
Shares, whether now or hereafter authorized, or securities convertible into
any class of Equity Shares, whether now or hereafter authorized, for such
consideration as may be deemed advisable by the Board of Directors and without
any action by the stockholders.
SECTION 2. No Preemptive
Rights. Except as provided by the Board of Directors in
authorizing the issuance of Preferred Stock pursuant to Section 3(b) of
Article IV, no holder of any stock or any other securities of the
Corporation, whether now or hereafter authorized, shall have any preemptive
right to subscribe to or purchase (a) any shares of capital stock of the
Corporation, (b) any warrants, rights or options to purchase any such
shares, or (c) any other securities of the Corporation or obligations
convertible into any shares of capital stock of the Corporation or such other
securities or into warrants, rights or options to purchase any such shares or
other securities.
SECTION 3. Powers of the Board of Directors .The
Board of Directors of the Corporation shall, consistent with applicable law,
have the power in its sole discretion to determine from time to time in
accordance with sound accounting practice or other reasonable valuation
methods what constitutes annual or other net profits, earnings, surplus or net
assets in excess of capital; to fix and vary from time to time the amount to
be reserved as working capital, or determine that retained earnings or surplus
shall remain in the hands of the Corporation; to set apart out of any funds of
the Corporation such reserve or reserves in such amount or amounts and for
such proper purpose or purposes as it shall determine and to abolish any such
reserve or any part thereof; to distribute and pay distributions or dividends
in stock, cash or other securities or property, out of surplus or any other
funds or amounts legally available therefor, at such times and to the
stockholders of record on such dates as it may, from time to time, determine;
and to determine whether and to what extent and at what times and places and
under what conditions and regulations the books, accounts and documents of the
Corporation, or any of them, shall be open to the inspection of stockholders,
except as otherwise provided by statute or by the Bylaws of the Corporation,
and, except as so provided, no stockholder shall have any right to inspect any
book, account or document of the Corporation unless authorized so to do by
resolution of the Board of Directors.
14
SECTION 4. Related Party Transactions. Without limiting any
other procedures available by law or otherwise to the Corporation, the Board
of Directors may authorize any agreement or transaction with any Person,
corporation, association, company, trust, partnership (limited or general) or
other organization, although one or more of the directors or officers of the
Corporation may be a party to any such agreement or an officer, director,
stockholder or member of such other party (an “Interested Officer/Director”), and no
such agreement or transaction shall be invalidated or rendered void or
voidable solely by reason of the existence of any such relationship if
(a) the existence is disclosed or known to the Board of Directors, and
the contract or transaction is authorized, approved or ratified by the
affirmative vote of a majority of the directors, excluding the Interested
Officers/Directors, (b) the existence is disclosed to the stockholders
entitled to vote, and the contract or transaction is authorized, approved or
ratified by a majority of the votes entitled to be cast by the stockholders,
other than the votes of the shares held of record by the Interested
Officers/Directors, or (c) the contract or transaction of fair and
reasonable to the Corporation. Any Interested Officer/Director of
the Corporation or the stock owned by them or by a corporation, association,
company, trust, partnership (limited or general) or other organization in
which an Interested Officer/Director may have an interest, may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
a committee of the Board of Directors or at a meeting of the stockholders, as
the case may be, at which the contract or transaction is authorized, approved
or ratified.
ARTICLE VII
INDEMNIFICATION
AND LIMITATION OF LIABILITY
SECTION 1. Indemnification.
(a) Indemnification of Agents. The
Corporation shall indemnify, in the manner and to the fullest extent permitted
by law, any person (or the estate of any person) who is or was a party to, or
is threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether or not by or in the right of the
Corporation, and whether civil, criminal, administrative, investigative or
otherwise, by reason of the fact that such person is or was a director or
officer of the Corporation, or such director or officer is or was serving at
the request of the Corporation as a director, officer, agent, trustee, partner
or employee of another corporation, partnership, joint venture, limited
liability company, trust, real estate investment trust, employee benefit plan
or other enterprise. To the fullest extent permitted by law, the
indemnification provided herein shall include expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement and
any such expenses shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding. The Corporation
shall indemnify other employees and agents to such extent as shall be
authorized by the Board of Directors or the Corporation’s Bylaws and be
permitted by law. Any repeal or modification of this Section 1(a)
by the stockholders of the Corporation shall be prospective only, and shall
not adversely affect any right to indemnification or advancement of expenses
hereunder existing at the time of such repeal or modification.
15
(b) Insurance. The
Corporation shall, to the fullest extent permitted by law, purchase and
maintain insurance on behalf of any such person against any liability which
may be asserted against such person.
(c) Indemnification Non-
Exclusive. The indemnification provided herein shall not be
deemed to limit the right of the Corporation to indemnify any other person for
any such expenses to the fullest extent permitted by law, nor shall it be
deemed exclusive of any other rights to which any person seeking
indemnification from the Corporation may be entitled under any agreement, vote
of stockholders or disinterested directors, or otherwise, both as to action in
such person’s official capacity and as to action in another capacity
while holding such office.
SECTION 2. Limitation of Liability. To the
fullest extent permitted by Maryland statutory or decisional law, as amended
or interpreted from time to time, no director or officer of this Corporation
shall be personally liable to the Corporation or its stockholders, or any of
them, for money damages. No amendment of this Charter or repeal of
any of its provisions shall limit or eliminate the benefits provided to
directors and officers under this provision with respect to any act or
omission which occurred prior to such amendment or repeal.
ARTICLE VIII
AMENDMENTS
SECTION 1. Right to Amend Charter. The
Corporation reserves the right from time to time to make any amendments to
this Charter which may now or hereafter be authorized by law, including any
amendments changing the terms or contract rights, as expressly set forth in
this Charter, of any of its outstanding stock by classification,
reclassification or otherwise.
SECTION 2. Amendment to the Charter of the Corporation. Notwithstanding any provision of law to the contrary,
except as otherwise specifically provided in Section 3 of this Article VIII,
the affirmative vote of a majority of all votes entitled to be cast by the
stockholders of the Corporation shall be sufficient, valid and effective,
after due authorization, approval or advice by the Board of Directors, to
approve and authorize any amendment to this Charter.
SECTION 3. Certain Amendments Requiring
Special Stockholder Vote.
(a) Notwithstanding any other provisions of this Charter
or Bylaws of the Corporation (and in addition to any other vote, approval,
authorization or advice, including that of the Board of Directors, that may be
required by law, this Charter or the Bylaws of the Corporation), the
affirmative vote of stockholders holding at least two-thirds (66-2/3%) of all
of the votes entitled to be cast thereon shall be required to amend, alter,
change, repeal or adopt any provisions inconsistent with the provisions of
this Section 2
of Article V (removal of directors), Section 4 of Article V (no
cumulative voting), Section 6 of Article V (Independent Directors),
Section 2 of
Article VI (preemptive rights), Article VII and Article VIII.
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(b) The Board of Directors shall take no action to amend
the provisions of Article IV until such time as (i) the Board of
Directors adopts a resolution recommending that the Corporation amend Article IV,
(ii) the Board of Directors presents the resolution at an annual or
special meeting of the stockholders, and (iii) such resolution is
approved by at least two-thirds (66-2/3%) of all of the votes entitled to be
cast on the matter.
ARTICLE IX
DURATION OF CORPORATION
The duration of the Corporation shall be
perpetual.
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Exhibit 3.1
PERNIX THERAPEUTICS HOLDINGS,
INC.
ARTICLES OF AMENDMENT
Pernix Therapeutics
Holdings, Inc., a Maryland corporation (the “Corporation”), hereby
certifies to the State Department of Assessments and Taxation (the
“Department”) of Maryland that:
FIRST: The charter of the Corporation as
currently in effect (the “Charter”) is hereby amended by deleting
therefrom in its entirety the first sentence of Section 1(a) of Article IV and
inserting in lieu thereof a new sentence to read as follows:
The total number of shares of capital stock of all
classes that the Corporation has authority to issue is One Hundred Fifty
Million (150,000,000) shares of capital stock (par value one cent ($.01) per
share), consisting of (i) One Hundred Forty Million (140,000,000) shares of
common stock, par value one cent ($.01) per share (the “Common Stock”), and
(ii) Ten Million (10,000,000) shares of preferred stock, par value one cent
($.01) per share (the “Preferred Stock”).
SECOND: The total number of shares of stock which
the Corporation had authority to issue immediately prior to the foregoing
amendment of the Charter was 100,000,000 shares of stock, consisting of
90,000,000 shares of Common Stock, $0.01 par value per share, and 10,000,000
shares of Preferred Stock, $0.01 par value per share, which includes 1,000,000
shares of Series B Junior Participating Stock. The aggregate par
value of all authorized shares of stock having par value was
$1,000,000.
THIRD: The total number of shares of stock which
the Corporation has authority to issue pursuant to the foregoing amendment of
the Charter is 150,000,000 shares of stock, consisting of 140,000,000 shares
of Common Stock, $0.01 par value per share, and 10,000,000 shares of Preferred
Stock, $0.01 par value per share, which includes 1,000,000 shares of Series B
Junior Participating Stock. The aggregate par value of all
authorized shares of stock having par value is $1,500,000.
FOURTH: The foregoing amendment of the Charter of
the Corporation has been advised by the Board and approved by the stockholders
of the Corporation.
FIFTH: The information required by Section 2-
607(b)(2)(i) of the Maryland General Corporation Law was not changed by these
Articles of Amendment.
SIXTH: These Articles of Amendment shall become
effective upon filing with the Department.
SEVENTH: The undersigned acknowledges these
Articles of Amendment to be the corporate act of the Corporation and as to all
matters or facts required to be verified under oath, the undersigned
acknowledges that, to the best of his knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties of perjury.
[The remainder of this page has been left blank
intentionally.]
IN WITNESS WHEREOF, Pernix Therapeutics Holdings, Inc., has
caused these Articles of Amendment to be signed in its name and on its behalf
by its President and attested to by its Secretary on this 22nd day of July,
2015.
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PERNIX THERAPEUTICS HOLDINGS,
INC.
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By:
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/s/ Douglas L. Drysdale
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Name: Douglas L. Drysdale
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Title: President
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ATTEST:
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By:
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/s/ Barry J. Siegel
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Name: Barry J. Siegel
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Title: Secretary
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Exhibit 3.1
PERNIX THERAPEUTICS HOLDINGS, INC.
ARTICLES OF AMENDMENT
EFFECTING 1-for-10 REVERSE STOCK SPLIT
PERNIX THERAPEUTICS HOLDINGS, INC., a Maryland corporation having its principal office in Baltimore City, Maryland (the "Corporation"), hereby certifies to the Maryland State Department of Assessments and Taxation that:
FIRST: The charter of the Corporation is hereby amended by changing and reclassifying each of the shares of Common Stock (par value $0.01 per share) of the Corporation, which is issued and outstanding at the close of business on the effective date of this amendment, into one-tenth of a share of Common Stock (par value $0.01 per share) and by transferring from the common stock account to the additional paid-In capital account $0.01 with respect to each share which will no longer remain outstanding after this change and reclassification, such change, reclassification and combination to be made as a 1-for-10 reverse stock split.
SECOND: The directors of the Corporation, at a meeting duly noticed and held, adopted and approved the foregoing amendment by the vote required under Maryland law and the charter and bylaws of the Corporation. Pursuant to Section 2-309(e) of the Corporations and Associations Article of the Annotated Code of Maryland, stockholder approval of this charter amendment is not required.
THIRD: The Corporation has a class of equity securities registered under the Securities Exchange Act of 1934, as amended.
FOURTH: These Articles of Amendment and the reverse stock split effected hereby shall become effective at 4:01 pm on October 13, 2016.
FIFTH: The undersigned Chief Executive Officer acknowledges these Articles of Amendment to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned Chief Executive Officer acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and this statement is made under the penalties of perjury.
IN WITNESS WHEREOF, Pernix Therapeutics Holdings, Inc. has caused these presents to be signed in its name and on its behalf by its Chief Executive Officer this 13th day of October, 2016.
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ATTEST: |
PERNIX THERAPEUTICS HOLDINGS, INC. By /s/ John A. Sedor
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