Attached files
| file | filename |
|---|---|
| EX-99.1 - PRESS RELEASE DATED FEBRUARY 19, 2021 - Cellular Biomedicine Group, Inc. | cbmg_ex99-1.htm |
| EX-3.2 - ARTICLES OF INCORPORATION / BYLAWS - Cellular Biomedicine Group, Inc. | cbmg_ex3-2.htm |
| 8-K - CURRENT REPORT - Cellular Biomedicine Group, Inc. | cbmg-20211231.htm |
Exhibit
3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CELLULAR BIOMEDICINE GROUP, INC.
ARTICLE ONE
The name of the corporation is Cellular
Biomedicine Group, Inc. (hereinafter called the
“Corporation”).
ARTICLE TWO
The
address of the Corporation’s registered office is at Suite
302, 4001 Kennett Pike, County of New Castle, Wilmington, DE 19807.
The name of its registered agent at such address is Maples
Fiduciary Services (Delaware) Inc.
ARTICLE THREE
The purpose of the Corporation 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 (the
“DGCL”).
ARTICLE FOUR
The
total number of shares which the Corporation shall have the
authority to issue is one thousand (1,000), all of which shall be
shares of common stock, with a par value of one cent ($0.01) per
share, and are to be of one class.
ARTICLE FIVE
The board of directors shall have the power to
adopt, amend or repeal by-laws of the Corporation (the
“By-laws”),
except as may be otherwise provided in
the By-laws.
ARTICLE SIX
The
Corporation expressly elects not to be governed by Section 203
of the DGCL.
ARTICLE SEVEN
Meetings
of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation
may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be
designated from time to time by the board of directors or in the
Bylaws of the Corporation.
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ARTICLE EIGHT
Unless
the Corporation consents in writing to the selection of an
alternative forum, the Court of Chancery of the State of Delaware
shall (or, if and only if the Court of Chancery of the State of
Delaware lacks subject matter jurisdiction, any state court located
within the State of Delaware or, if and only if all such state
courts lack subject matter jurisdiction, the federal district court
for the District of Delaware), to the fullest extent permitted by
applicable law, be the sole and exclusive forum for: (A) any
derivative action or proceeding brought on behalf of the
Corporation; (B) any action or proceeding (including any class
action) asserting a claim of breach of a fiduciary duty owed by any
director, officer, employee or agent of the Corporation to the
Corporation or the Corporation’s stockholders; (C) any
action or proceeding (including any class action) asserting a claim
against the Corporation or any director, officer, employee or agent
of the Corporation arising pursuant to any provision of the General
Corporation Law, this Certificate of Incorporation or the Bylaws of
the Corporation; (D) any action or proceeding (including any
class action) to interpret, apply, enforce or determine the
validity of this Certificate of Incorporation or the Bylaws of the
Corporation; or (E) any action asserting a claim against the
Corporation or any director, officer, employee or agent of the
Corporation governed by the internal affairs doctrine. Any person
or entity purchasing or otherwise acquiring any interest in any
security of the Corporation shall be deemed to have notice of and
consented to the provisions of this section.
ARTICLE NINE
Whenever
a compromise or arrangement is proposed between the Corporation and
its creditors or any class of them and/or between the Corporation
and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application
in a summary way of the Corporation or any creditor or stockholder
thereof or on the application of any receiver or receivers
appointed for the Corporation under the provisions of
Section 291 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of the DGCL,
order a meeting of the creditors or class of creditors, and/or the
stockholders or class of stockholders of the Corporation, as the
case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any
reorganization of the Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all the creditors
or class of creditors, and/or on all the stockholders, or class of
stockholders, of the Corporation, as the case may be, and also on
this Corporation.
ARTICLE TEN
No
director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty
by such director as a director. Notwithstanding the foregoing
sentence, a director shall be liable to the extent provided by
applicable law, (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 which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to
Section 174 of the DGCL or (iv) for any transaction from
which the director derived an improper personal benefit. If the
DGCL hereafter is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on
personal liability provided herein, shall be limited to the fullest
extent permitted by the amended DGCL. No amendment to or repeal of
this Article Eight shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation
for or with respect to any acts or omissions of such director
occurring prior to such amendment.
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ARTICLE ELEVEN
Section 1. Nature of
Indemnity. Each person who was
or is a party or is threatened to be made a party to or is involved
in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (each, a
“Proceeding”),
by reason of the fact that such person (or a person of whom such
person is the legal representative), is or was a director or
officer of the corporation or is or was
serving at the request of the corporation as a director, manager,
officer, employee, fiduciary or agent of another corporation or of
a partnership, limited liability company, joint venture, trust or
other enterprise, including service with respect to any employee
benefit plan (each, an “Indemnified
Person”), whether the
basis of such Proceeding is alleged action in an official capacity
as a director or officer of the corporation or in any other
capacity while serving at the request of the corporation as a
director, manager, officer, employee, fiduciary or agent of another
corporation or of a partnership, limited liability company, joint
venture, trust or other enterprise, including service with respect
to any employee benefit plan, shall be indemnified and held
harmless by the corporation to the fullest extent which it is
empowered to do so by the DGCL against all expense, judgments,
fines, amounts paid in settlement and other liability and loss
(including attorneys’ fees) actually and reasonably incurred
by such Indemnified Person in connection with such Proceeding and
such indemnification shall inure to the benefit of his or her
heirs, executors and administrators; provided, however,
that, except as provided in Section 2 of this Article Nine,
the corporation shall indemnify any Indemnified Person seeking
indemnification in connection with a Proceeding initiated by such
person only if such Proceeding was authorized by the board of
directors. The corporation may, by action of the board of
directors, provide indemnification to employees, fiduciaries and
agents of the corporation with the same scope and effect as the
foregoing indemnification of Indemnified
Parties.
Section 2. Procedure for
Indemnification of Indemnified Persons. Any indemnification of an Indemnified Person
under Section 1 of this Article Nine or advance of expenses
under Section 5 of this Article Nine shall be made promptly,
and in any event within 30 days, upon the written request of such
Indemnified Person. If a determination by the corporation that such
Indemnified Person is entitled to indemnification pursuant to this
Article Nine is required, and the corporation fails to respond
within 60 days to a written request for indemnity, then the
corporation shall be deemed to have approved the request. If the
corporation denies a written request for indemnification or
advancing of expenses, in whole or in part, or if payment in full
pursuant to such request is not made within 30 days, then the right
to indemnification or advances as granted by this Article Nine
shall be enforceable by such Indemnified Person in any court of
competent jurisdiction. Such person’s costs and expenses
incurred in connection with successfully establishing his or her
right to indemnification, in whole or in part, in any such action
shall also be indemnified by the corporation. It shall be a defense
to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any Proceeding in advance of its
final disposition where the required undertaking, if any, has been
tendered to the corporation) that the claimant has not met the
standards of conduct which make it permissible under the DGCL
corporation to indemnify the claimant for the amount claimed, but
the burden of such defense shall be on the corporation. Neither the
failure of the corporation (including the board of directors,
independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the DGCL, nor an actual determination by the corporation
(including the board of directors, independent legal counsel or the
corporation’s stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 3. Nonexclusivity of
Article Nine. The rights to
indemnification and the payment of expenses incurred in defending a
Proceeding in advance of its final disposition conferred in this
Article Nine shall not be exclusive of any other right which any
Indemnified Person may have or hereafter acquire under any statute,
provision of the certificate of
incorporation, by-law, 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 serving at the request of the corporation while
holding such office.
Section 4. Insurance.
The corporation may purchase and maintain insurance on its own
behalf and on behalf of fiduciary or agent of one or more of the
Indemnified Persons against any liability asserted against him or
her and incurred by him or her in the capacity as a director or
officer of the corporation or, at the request of the corporation,
as a director or officer of the corporation or, at the request of
the corporation, as a director, manager, officer, employee,
fiduciary or agent of another corporation or of a partnership,
limited liability company, joint venture, trust or other
enterprise, whether or not the corporation would have the power to
indemnify such person against such liability under this Article
Nine.
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Section 5. Expenses.
Expenses incurred by any Indemnified Person in defending a
Proceeding or enforcing such Indemnified Person’s rights to
indemnification or advancement of expenses under this Article Nine
shall be paid by the corporation in advance of such
Proceeding’s final disposition upon receipt of an undertaking
by or on behalf of such Indemnified Person to repay such amount if
it shall ultimately be determined that such Indemnified Person is
not entitled to be indemnified by the corporation. Such expenses
incurred by employees, fiduciaries and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems
appropriate.
Section 6. Employees, Fiduciaries
and Agents. Persons who are not
Indemnified Persons and who are or were employees or agents of the
corporation may be indemnified to the extent authorized at any time
or from time to time by the board of directors.
Section 7. Contract
Rights. The provisions of this
Article Nine shall be deemed to be a contract right between the
corporation and each Indemnified Person who serves in the capacity
as a director or officer of the corporation or, at the request of
the corporation, as a director, manager, officer, employee,
fiduciary or agent of another corporation or of a partnership,
limited liability company, joint venture, trust or other enterprise
at any time while this Article Nine and the relevant provisions of
the DGCL or other applicable law are in effect, and any repeal or
modification of this Article Nine or any such law shall not affect
any rights or obligations then existing with respect to any state
of facts or proceeding then existing.
Section 8. Merger or
Consolidation. For purposes of
this Article Nine, references to the “corporation”
shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and
authority to indemnify its directors, managers, officers,
employees, fiduciaries or agents, so that any person who is or was
a director, manager, officer, employee, fiduciary or agent of such
constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or
agent of another corporations, partnership, joint venture, trust or
other enterprise, shall stand in the same position under this
Article Nine with respect to the resulting or surviving corporation
as he or she would have with respect to such constituent
corporation if its separate existence had
continued.
ARTICLE TWELVE
The
Corporation reserves the right to amend or repeal any provisions
contained in this Certificate of Incorporation from time to time
and at any time in the manner now or hereafter prescribed by the
laws of the State of Delaware, and all rights conferred upon
stockholders and directors are granted subject to such
reservation.
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