RESTATED
CERTIFICATE OF INCORPORATION
OF
OCCULOGIX,
INC.
OccuLogix,
Inc., a corporation organized and existing under the laws of the State of
Delaware (the "Corporation"), hereby certifies as follows:
FIRST:
The name of the Corporation is OccuLogix, Inc. The Corporation was originally
incorporated under the name Vascular Sciences Corporation in the State of
Delaware on June 5, 2002. An Amended and Restated Certificate of Incorporation
of the Corporation was filed in the office of the Delaware Secretary of State on
July 16, 2002. An Amended and Restated Certificate of Incorporation of the
Corporation was filed in the office of the Delaware Secretary of State on July
25, 2002. A Certificate of Amendment to the Certificate of Incorporation was
filed in the office of the Delaware Secretary of State on August 29, 2003. On
July 28, 2004, the Corporation changed its name by filing a Certificate of
Amendment in the office of the Delaware Secretary of State. An Amended and
Restated Certificate of Incorporation of the Corporation was filed in the office
of the Delaware Secretary of State on December 8, 2004. A Certificate of
Amendment to the Certificate of Incorporation was filed in the office of the
Delaware Secretary of State on October 1, 2008.
A
Certificate of Amendment to
the Certificate of Incorporation was filed in the office of the Delaware
Secretary of State on October 7, 2008.
SECOND:
This Restated Certificate of Incorporation was adopted by the Board of Directors
of the Corporation in the manner prescribed by Section 245 of the Delaware
General Corporation Law, and is as follows:
ARTICLE
I
The name
of this corporation is OccuLogix, Inc. (hereinafter sometimes referred to as the
"Corporation").
ARTICLE
II
The
address of the Corporation's registered office in the State of Delaware is
160 Greentree Drive,
Suite 101, Dover, Delaware, 19904, County of Kent. The name of its registered
agent at such address is National Registered Agents, Inc.
ARTICLE
III
The
purpose of the Corporation is to engage in any lawful act or activity for which
a corporation may be organized under the Delaware General Corporation Law (the
"DGCL").
ARTICLE
IV
The
Corporation is authorized to issue two classes of stock to be designated,
respectively, "Common Stock" and "Preferred Stock." The total number of shares
of all classes of capital stock which the Corporation shall have authority to
issue is fifty million (50,000,000), of which forty million (40,000,000) shares,
par value $0.001 per share, shall be common stock (the "Common Stock") and ten
million (10,000,000) shares, par value $0.001 per share, shall be preferred
stock (the "Preferred Stock").
A.
COMMON
STOCK.
1.
Divide
nd Rights. The
holders of shares of Common Stock may be entitled to receive as, if and when
declared by the Board of Directors, out of the assets of the Corporation legally
available therefor, such dividends as may be declared from time to time by the
Board of Directors.
2.
Liquidation
. Upon the
voluntary or involuntary liquidation, sale, merger, consolidation, dissolution
or winding up of the Corporation, holders of shares of Common Stock will be
entitled to receive all assets of the Corporation available for distribution to
its stockholders, subject to any preferential rights of any then outstanding
Preferred Stock.
3.
Redemption
. The
Common Stock is not redeemable.
4.
Voting Rights
. Except
as otherwise required by law or this Restated Certificate of Incorporation, each
holder of Common Stock shall have the right to one vote in respect of each share
of Common Stock held, and shall be entitled to notice of any stockholders
meeting in accordance with the By-Laws of the Corporation, and shall be entitled
to vote upon such matters and in such manner as may be provided by law. There
shall be no cumulative voting.
5.
Issuance. Additional shares of authorized Common Stock
will be issued, as determined by the Board of Directors from time to time,
without approval of holders of the Common Stock, except as may be required by
applicable law or the rules of any stock exchange or automated quotation system
on which the Corporation's securities may be listed or traded.
B.
PREFERRED
STOCK.
1.
ISSUANCE. Shares of Preferred Stock
may be issued from time to time in one or more series as may from time to time
be determined by the Board of Directors, each of said series to be distinctly
designated. All shares of any one series of the Preferred Stock shall be alike
in every particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative. The voting
powers, if any, and the designations, relative preferences, participating,
optional or other special rights or privileges of each such series, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding.
2.
AUTHORITY OF THE BOARD OF DIRECTORS. The Board of
Directors is authorized, subject to limitations prescribed by law and the
provisions of this Article FOURTH, to provide for the issuance of the shares of
the Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix in the
resolution or resolutions providing for the issue of such stock adopted by the
Board of Directors of the Corporation the voting powers, if any, and the
designations, relative preferences, participating, optional or other special
rights or privileges, and the qualifications, limitations or restrictions of
such series, including, but without limiting the generality of the foregoing,
the following:
(a) The
distinctive designation of, and the number of shares of the Preferred Stock
which shall constitute such series. The designation of a series of preferred
stock need not include the words "preferred" or "preference" and may be
designated "special" or other distinctive term. Unless otherwise provided in the
resolution issuing such series, the number of shares of any series of the
Preferred Stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the Board of Directors in the manner
prescribed by law;
(b) The
rate and times at which, and the terms and conditions upon which, dividends, if
any, on the Preferred Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to the dividends payable on
any other class or classes, or series of the same or other classes of stock and
whether such dividends shall be cumulative or non-cumulative and, if cumulative,
the date from which such dividends shall be cumulative;
(c) Whether
the series shall be convertible into, or exchangeable for, at the option of the
holders of the Preferred Stock of such series or the Corporation or upon the
happening of a specified event, shares of any other class or classes or any
other series of the same or any other class or classes of stock of the
Corporation, and the terms and conditions of such conversion or exchange,
including provisions for the adjustment of any such conversion rate in such
events as the Board of Directors shall determine;
(d) Whether
or not the Preferred Stock of such series shall be subject to redemption at the
option of the Corporation or the holders of such series or upon the happening of
a specified event, and the redemption price or prices and the time or times at
which, and the terms and conditions upon which, the Preferred Stock of such
series may be redeemed;
(e) The
rights, if any, of the holders of the Preferred Stock of such series upon the
voluntary or involuntary liquidation, merger, consolidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation;
(f) The
terms of the sinking fund or redemption or purchase account, if any, to be
provided for the Preferred Stock of such series; and
(g) Subject
to subparagraph 5 of Paragraph C hereof, whether such series of the Preferred
Stock shall have full, limited or no voting powers including, without limiting
the generality of the foregoing, whether such series shall have the right,
voting as a series by itself or together with other series of the Preferred
Stock or all series of the Preferred Stock as a class, to elect one or more
directors of the Corporation if there shall have been a default in the payment
of dividends on any one or more series of the Preferred Stock or under such
other circumstances and on such conditions as the Board of Directors may
determine.
C.
OTHER
PROVISIONS.
1. No
holder of any of the shares of any class or series of stock or of other
securities of the Corporation shall have any preemptive right to purchase or
subscribe for any unissued stock of any class or series or any additional shares
of any class or series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds, certificates
of indebtedness, debentures or other securities convertible into or exchangeable
for stock of the Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued stock, additional
authorized issue of shares of any class or series of stock or securities
convertible into or exchangeable for stock, or carrying any right to purchase
stock, may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations (including such
holders or others) and upon such terms as may be deemed advisable by the Board
of Directors in the exercise of its sole discretion.
2.
The
relative
powers, preferences and rights of each series of the Preferred Stock in relation
to the powers, preferences and rights of each other series of the Preferred
Stock shall, in each case, be as fixed from time to time by the Board of
Directors in the resolution or resolutions adopted pursuant to authority granted
in Paragraph B hereof. The consent, by class or series vote or otherwise, of the
holders of such of the series of the Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the Board of Directors of
any other series of the Preferred Stock whether or not the powers, preferences
and rights of such other series shall be fixed by the Board of Directors as
senior to, or on a parity with, the powers, preferences and rights of such
outstanding series, or any of them; provided, however, that the Board of
Directors may provide in the resolution or resolutions as to any series of the
Preferred Stock adopted pursuant to Paragraph B hereof, the conditions, if any,
under which the consent of the holders of a majority (or such greater proportion
as shall be fixed therein) of the outstanding shares of such series shall be
required for the issuance of any or all other series of the Preferred
Stock.
3.
Subject to the provisions of subparagraph 2 of this Paragraph C, shares of
any series of the Preferred Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
4. Shares
of authorized Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
5. The
number of authorized shares of Common Stock and of the Preferred Stock, without
a class or series vote, may be increased or decreased from time to time (but not
below the number of shares thereof then outstanding) by the affirmative vote of
the holders of a majority of the stock of the Corporation entitled to vote
thereon.
ARTICLE
V
Unless
and except to the extent that the By-Laws of the Corporation shall so require,
the election of Board of Directors of the Corporation need not be by written
ballot.
ARTICLE
VI
The
affirmative vote of the holders of at least a majority of the voting power of
all shares of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class, shall be required in order for the
stockholders to make, adopt, amend, alter, repeal and rescind any provisions of
the Restated Certificate of Incorporation.
ARTICLE
VII
The Board
of Directors of the Corporation is expressly authorized to make, adopt, amend,
alter, repeal, and rescind the By-Laws of the Corporation. Notwithstanding
anything contained in this Restated Certificate of Incorporation to the
contrary, the affirmative vote of the holders of at least a majority of the
voting power of all shares of the Corporation entitled to vote generally in the
election of Directors, voting together as a single class, shall be required in
order for the stockholders to make, adopt, amend, alter, repeal and rescind any
provisions of the By- Laws which is to the same effect as Article
VII.
ARTICLE
VIII
The
Corporation shall have the power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit of proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that the person, is or was a director, officer, employee or
agent of the Corporation, or is or was serving a the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the Corporation, and with respect to
any criminal action or proceeding has no reasonable cause to believe the
person's conduct wasunlawful. The termination of any action, suit, or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful
The right
to indemnification conferred in the Article VIII shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided ,
however, that, if the DGCL requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article VIII or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
If a
claim under the preceding paragraph of this Article VIII is not paid in full by
the Corporation within thirty (30) calendar days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim, and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. 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 is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the DGCL for the Corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel or 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 its
Board of Directors, independent legal counsel or 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.
The right
to indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this Article VIII
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Restated Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the
DGCL.
The Board
of Directors may take such action as it deems necessary to carry out the
indemnification provisions herein, including adopting procedures for determining
and enforcing indemnification rights and purchasing insurance policies. The
Board of Directors may also adopt By- Laws, resolutions or contracts
implementing indemnification arrangements as may be permitted by law. Neither
the amendment or repeal of these indemnification provisions, nor the adoption of
any provision of this Restated Certificate of Incorporation inconsistent with
these indemnification provisions, shall eliminate or reduce any rights to
indemnification relating to the indemnities status or activities prior to such
amendment, repeal or adoption.
A
director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any 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) 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 after
approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the DGCL as so amended. Any repeal or modification
of the foregoing provisions by the stockholders of the Corporation or the
adoption of any provision which is inconsistent with this provision, shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
ARTICLE
IX
Any
action required or permitted to be taken at any annual or special meeting of
stockholders of the Corporation, may be taken without a meeting, without prior
written notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in Delaware, its principal place of business,
or an office or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded.
Meetings
of stockholders may be held within or without the State of Delaware, as the
By-Laws may provide. Special meetings of the stockholders may be called by the
Chairman of the Board of Directors or by a majority of the Board of Directors or
holders of at least two-thirds of our outstanding voting stock.
ARTICLE
X
The
Corporation elects not to be governed by Section 203 of the DGCL.
ARTICLE
XI
The books
of the Corporation may be kept (subject to any provision contained in the
statutes) outside of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-Laws of the
Corporation.
IN
WITNESS WHEREOF, OccuLogix, Inc., has caused this Restated Certificate of
Incorporation to be signed as of October 7, 2008.
|
|
OCCULOGIX
INC.
|
|
|
|
|
|
|
|
|
By:
/s/ Eric Donsky
|
|
|
Name:
Eric Donsky
|
|
|
Title:
Chief Executive Officer
|
