Attached files
| file | filename |
|---|---|
| EX-10.3 - CONSULTING AGREEMENT - ENDRA Life Sciences Inc. | ndra_ex103.htm |
| EX-10.2 - AMENDED AND RESTATED EMPLOYMENT AGREEMENT - ENDRA Life Sciences Inc. | ndra_ex102.htm |
| EX-10.1 - AMENDED AND RESTATED EMPLOYMENT AGREEMENT - ENDRA Life Sciences Inc. | ndra_ex101.htm |
| EX-3.1 - CERTIFICATE OF AMENDMENT - ENDRA Life Sciences Inc. | ndra_ex31.htm |
| 8-K - CURRENT REPORT - ENDRA Life Sciences Inc. | ndra_8k.htm |
Exhibit 3.2
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ENDRA LIFE SCIENCES INC.
The
present name of the corporation is ENDRA LIFE SCIENCES INC. The
corporation was incorporated under the name “ENDRA
INC.” by the filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware
on July 18, 2007. This Fourth Amended and Restated Certificate of
Incorporation of the corporation, which restates and integrates and
also further amends the provisions of the corporation’s
Certificate of Incorporation, as previously amended, restated,
supplemented or otherwise modified (the “Existing Certificate
of Incorporation”), was duly adopted in accordance with the
provisions of Sections 242 and 245 of the General Corporation Law
of the State of Delaware and by the written consent of its
stockholders in accordance with Section 228 of the General
Corporation Law of the State of Delaware. The Existing Certificate
of Incorporation of the corporation is hereby amended, integrated
and restated to read in its entirety as follows:
FIRST:
The name of the corporation (the “Corporation”)
is:
ENDRA
Life Sciences Inc.
SECOND:
The address of the Corporation’s registered office in the
State of Delaware is 1209 Orange Street, Wilmington, County of New
Castle, Delaware 19801. The registered agent at such address is The
Corporation Trust Company.
THIRD:
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware
General Corporation Law (the “DGCL”).
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FOURTH:
The total number of shares of stock that the Corporation shall have
authority to issue shall be 60,000,000 shares, consisting of
50,000,000 shares of Common Stock, par value $0.0001 per share (the
“Common Stock”), and 10,000,000 shares of Preferred
Stock, par value $0.0001 per share (the “Preferred
Stock”). Subject to the rights of the holders of any series
of Preferred Stock then outstanding, the number of authorized
shares of the Common Stock or Preferred Stock may be increased or
decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority
in voting power of the stock of the Corporation entitled to vote
thereon, irrespective of the provisions of Section 242(b)(2) of the
DGCL, and no vote of the holders of any of the Common Stock or
Preferred Stock voting separately as a class shall be required
therefor.
A.
COMMON
STOCK
1. GENERAL. All
shares of Common Stock will be identical and will entitle the
holders thereof to the same rights, powers and preferences. The
rights, powers and preferences of the holders of the Common Stock
are subject to and qualified by the rights, powers and preferences
of holders of the Preferred Stock.
2. DIVIDENDS.
Dividends may be declared and paid on the Common Stock from funds
lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any
then outstanding Preferred Stock.
3. DISSOLUTION,
LIQUIDATION OR WINDING UP. In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation,
whether voluntary or involuntary, each issued and outstanding share
of Common Stock shall entitle the holder thereof to receive an
equal portion of the net assets of the Corporation available for
distribution to the holders of Common Stock, subject to any
preferential rights of any then outstanding Preferred
Stock.
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4. VOTING RIGHTS.
Except as otherwise required by law or this Fourth Amended and
Restated Certificate of Incorporation (“Certificate of
Incorporation”), each holder of Common Stock shall have one
vote in respect of each share of stock held of record by such
holder on the books of the Corporation for the election of
directors and on all matters submitted to a vote of stockholders of
the Corporation. Except as otherwise required by law or provided
herein, holders of Common Stock shall vote together with holders of
the Preferred Stock as a single class, subject to any special or
preferential voting rights of any then outstanding Preferred Stock.
There shall be no cumulative voting.
B.
PREFERRED
STOCK
The
Preferred Stock may be issued in one or more series at such time or
times and for such consideration or considerations as the Board of
Directors of the Corporation may determine. Each series shall be so
designated as to distinguish the shares thereof from the shares of
all other series and classes.
The
Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the undesignated Preferred Stock
in one or more series, each with such designations, preferences,
voting powers (or special, preferential or no voting powers),
relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof as shall be
stated in the resolution or resolutions adopted by the Board of
Directors to create such series, and a certificate of said
resolution or resolutions (a “Certificate of
Designation”) shall be filed in accordance with the DGCL. The
authority of the Board of Directors with respect to each such
series shall include, without limitation of the foregoing, the
right to provide that the shares of each such series may be: (i)
subject to redemption at such time or times and at such price or
prices; (ii) entitled to receive dividends (which may be cumulative
or non-cumulative) at such rates, on such conditions, and at such
times, and payable in preference to, or in such relation to, the
dividends payable on any other class or classes or any other
series; (iii) entitled to such rights upon the dissolution of, or
upon any distribution of the assets of, the Corporation; (iv)
convertible into, or exchangeable for, shares of any other class or
classes of stock, or of any other series of the same or any other
class or classes of stock of the Corporation at such price or
prices or at such rates of exchange and with such adjustments, if
any; (v) entitled to the benefit of such limitations, if any, on
the issuance of additional shares of such series or shares of any
other series of Preferred Stock; or (vi) entitled to such other
preferences, powers, qualifications and rights, all as the Board of
Directors may deem advisable and as are not inconsistent with law
and the provisions of this Certificate of
Incorporation.
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FIFTH:
1. NUMBER OF
DIRECTORS. The number of directors of the Corporation shall be
determined exclusively by resolution adopted by a majority of the
Whole Board. For purposes of this Certificate of Incorporation, the
term “Whole Board” means the total number of authorized
directors whether or not there exists any vacancies in previously
authorized directorships.
2. ELECTION OF
DIRECTORS. The directors shall be elected at the annual meeting of
stockholders by such stockholders as have the right to vote on such
election. Directors need not be stockholders of the Corporation.
Unless required by the Bylaws, the election of the Board of
Directors need not be by written ballot.
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3. VACANCIES. Any
vacancy in the Board of Directors, however occurring, including a
vacancy resulting from an enlargement of the Board of Directors,
may be filled only by vote of a majority of the directors then in
office, even if less than a quorum, or by a sole remaining
director.
SIXTH:
The following provisions are included for the management of the
business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its Board of Directors and
stockholders:
1. The business and
affairs of the Corporation shall be managed by or under the
direction of the Board of Directors of the
Corporation.
2. The Board of
Directors of the Corporation is expressly authorized to adopt,
amend or repeal the Bylaws of the Corporation. The stockholders
shall also have the power to adopt, amend or repeal the Bylaws of
the Corporation; PROVIDED, HOWEVER, that, in addition to any vote
of the holders of any class or series of stock of the Corporation
required by law or by this Certificate of Incorporation, the
amendment of the Bylaws by the Corporation’s stockholders
shall require the affirmative vote of the holders of at least
two-thirds (66 2/3%) of the voting power of all of the then
outstanding shares of the capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as
a single class.
3. The books of the
Corporation may be kept at such place within or without the State
of Delaware as the Bylaws of the Corporation may provide or as may
be designated from time to time by the Board of Directors of the
Corporation.
SEVENTH: Special
meetings of stockholders (i) may be called on the order of a
majority of the Whole Board, the Chairman of the Board, the Chief
Executive Officer or the President (in the absence of a chief
executive officer), and (ii) shall be called by the Secretary upon
written request of the holders of record of at least twenty percent
(20%) of the outstanding shares of common stock of the Corporation
at the time such request is validly submitted by the holders of
such requisite percentage of such outstanding shares, subject to
and in compliance with this Article SEVENTH and the bylaws of the
Corporation. Advance notice of stockholder nominations for the
election of directors of the Corporation and of business to be
brought by stockholders before any meeting of stockholders of the
Corporation shall be given in the manner provided in the Bylaws of
the Corporation. Business transacted at special meetings of
stockholders shall be confined to the purpose or purposes stated in
the notice of meeting.
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EIGHTH:
The Corporation shall indemnify (and advance expenses to) its
officers and directors to the full extent permitted by the DGCL, as
amended from time to time.
NINTH:
No 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, for any act or omission, except that
a director may be liable (i) for breach of the director’s
duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. If the DGCL is amended to
authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of the
directors shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended. The elimination and
limitation of liability provided herein shall continue after a
director has ceased to occupy such position as to acts or omissions
occurring during such director’s term or terms of office. Any
amendment, repeal or modification of this Article NINTH shall not
adversely affect any right of protection of a director of the
Corporation existing at the time of such repeal or
modification.
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TENTH:
Unless the Corporation consents in writing to the selection of an
alternative forum, the Court of Chancery in the State of Delaware
shall be the sole and exclusive forum for all “internal
corporate claims.” “Internal corporate claims”
means claims, including claims in the right of the Corporation, (i)
that are based upon a violation of a duty by a current or former
director or officer or stockholder in such capacity or (ii) as to
which Title 8 of the Delaware Code confers jurisdiction upon the
Court of Chancery, except for, as to each of (i) through (ii)
above, any claim as to which the Court of Chancery determines that
there is an indispensable party not subject to the jurisdiction of
the Court of Chancery (and the indispensable party does not consent
to the personal jurisdiction of the Court of Chancery within ten
days following such determination), which is vested in the
exclusive jurisdiction of a court or forum other than the Court of
Chancery, or for which the Court of Chancery does not have subject
matter jurisdiction. If any provision or provisions of this Article
TENTH shall be held to be invalid, illegal or unenforceable as
applied to any person or entity or circumstance for any reason
whatsoever, then, to the fullest extent permitted by law, the
validity, legality and enforceability of such provisions in any
other circumstance and of the remaining provisions of this Article
TENTH (including, without limitation, each portion of any sentence
of this Article TENTH containing any such provision held to be
invalid, illegal or unenforceable that is not itself held to be
invalid, illegal or unenforceable) and the application of such
provision to other persons or entities and circumstances shall not
in any way be affected or impaired thereby.
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ELEVENTH: The
Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in
the manner now or hereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject to this
reservation; provided, however, that, notwithstanding any other
provision of the Certificate of Incorporation or any provision of
law that might otherwise permit a lesser vote or no vote, but in
addition to any vote of the holders of any class or series of the
stock of the Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the voting power of
the outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single
class, shall be required to amend or repeal, or adopt any provision
of this Certificate of Incorporation inconsistent with Article
FIFTH, Article SIXTH, Article SEVENTH, Article NINTH, Article TENTH
or this Article ELEVENTH.
/s/ Francois
Michelon____________________
Name:
Francois Michelon
Chief
Executive Officer
DATED:
May 9, 2017
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