Attached files
Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF FORMATION
OF
OPEXA THERAPEUTICS, INC.
Pursuant to the
provisions of Section 3.053 of the Texas Business Organizations
Code, Opexa Therapeutics, Inc., a Texas corporation (the
“Corporation”), hereby adopts the following Certificate
of Amendment to its Restated Certificate of Formation (the
“Restated Certificate”).
ARTICLE I.
The
name of the Corporation is Opexa
Therapeutics, Inc. The file number issued to the Corporation
by the Secretary of State of the State of Texas is 118585600 and
the date of formation of the Corporation is March 15,
1991.
ARTICLE II.
The
Restated Certificate is hereby amended by replacing the last
paragraph at the end of Article IV in its entirety as
follows:
“Upon this
Certificate of Amendment to the Restated Certificate of Formation
becoming effective pursuant to the Texas Business Organizations
Code of the State of Texas (the “Effective Date”), each
share of Common Stock, par value $0.01 per share (the “Old
Common Stock”), issued and outstanding immediately prior to
the Effective Date, shall be, and hereby is, reclassified as and
changed into 0.096567 of a share of Common Stock, par value $0.01
per share (the “New Common Stock”). Each outstanding
stock certificate which immediately prior to the Effective Date
represented one or more shares of Old Common Stock shall
thereafter, automatically and without the necessity of surrendering
the same for exchange, represent the number of whole shares of New
Common Stock determined by multiplying the number of shares of Old
Common Stock represented by such certificate immediately prior to
the Effective Date by 0.096567 and rounding such number down to the
nearest whole integer, and shares of Old Common Stock held in
uncertificated form shall be treated in the same manner. The
Corporation shall not be required to issue or deliver any
fractional shares of New Common Stock. Each holder of such New
Common Stock shall be entitled to receive for such fractional
interest, and at the Effective Date any such fractional interest in
such shares of New Common Stock shall be converted into the right
to receive, an amount in cash, without interest, determined by
multiplying (i) such fractional share interest to which the
holder would otherwise be entitled by (ii) the closing price
of the Common Stock (on a post-reverse-split basis as adjusted for
the amendment effected hereby) on the trading day immediately prior
to the Effective Date on The NASDAQ Capital Market, or, if such
price is not available, the average of the last bid and asked
prices of the Common Stock on such day or other price determined by
the Board of Directors. Shares of Common Stock that were
outstanding prior to the Effective Date and that are not
outstanding after the Effective Date shall resume the status of
authorized but unissued shares of Common Stock.”
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ARTICLE III.
This
Certificate of Amendment to the Restated Certificate has been
approved in the manner required by the Texas Business Organizations
Code and by the governing documents of the
Corporation.
ARTICLE IV.
This
Certificate of Amendment shall become effective on September 19,
2017 at 3:01 p.m. Central Daylight Time.
The
undersigned signs this document subject to the penalties imposed by
law for the submission of a materially false or fraudulent
instrument and certifies under penalty of perjury that the
undersigned is authorized under the provisions of law governing the
entity to execute the filing instrument.
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Dated: September
19, 2017
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/s/
Neil K.
Warma
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Neil K.
Warma
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President and Chief
Executive Officer
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