SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 30, 2012
Organovo Holdings, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 333-169928 | 27-1488943 | ||
| (State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
710 Wellingham Drive
Durham, NC 27713
(Address of principal executive offices, including zip code)
(919) 656-8646
(Registrant’s telephone number, including area code)
Copy to:
Adam S. Gottbetter, Esq.
Gottbetter & Partners, LLP
488 Madison Avenue, 12th Floor
New York, NY 10022
Phone: (212) 400-6900
Facsimile: (212) 400-6901
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 3.02 – Unregistered Sales of Equity Securities
The information contained in Item 8.01 below regarding the issuance of Organovo Delaware Common Stock (as defined below) is incorporated herein by reference. The issuance of the shares of Organovo Delaware Common Stock pursuant to the Plan of Merger (as defined below) was exempt from registration under the Securities Act of 1933, as amended, as not involving an offer, offer to sell, offer for sale or sale of securities within the meaning of Section 2(3) thereof and Rule 145(a)(2) thereunder.
Item 3.03 – Material Modifications to Rights of Security Holders
The Merger (as defined below) will not materially modify the rights of the registrant’s shareholders. However, Delaware corporate law will now be applicable in the determination of the rights of shareholders of the registrant. The constituent instrument defining the rights of holders of the registrant’s capital stock will now be the Certificate of Incorporation of Organovo Delaware (as defined below), which is filed as an exhibit to this report. The information contained in Item 8.01 below is incorporated herein by reference.
Item 5.03 – Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
The Certificate of Incorporation of Organovo Delaware and the Certificate of Merger are filed as exhibits to this report. The information contained in Item 8.01 below regarding the authorized capital stock of Organovo Delaware is incorporated herein by reference.
Item 5.07 – Submission of Matters to a Vote of Security Holders
On January 30, 2012, the Board of Directors of Organovo Holdings, Inc., a Nevada corporation (“Organovo Nevada”), approved Organovo Nevada’s entry into an Agreement and Plan of Merger (the “Plan of Merger”) with Organovo Holdings, Inc., a Delaware corporation (“Organovo Delaware”). On January 30, 2012, the Plan of Merger was duly approved by the written consent of stockholders holding of record 55,283,749 shares of common stock, par value $0.0001 per share (“Organovo Nevada Common Stock”), of Organovo Nevada, or approximately 76.7% of the issued and outstanding shares of Organovo Nevada Common Stock (as adjusted to reflect the 10.59135-for-1 forward stock split of the Organovo Nevada Common Stock in the form of a dividend, effective January 31, 2012). The information contained in Item 8.01 below is incorporated herein by reference.
Item 8.01 – Other Events
On January 30, 2012, Organovo Nevada, a Nevada corporation, merged with and into Organovo Delaware, a Delaware corporation, with Organovo Delaware as the surviving corporation (the “Merger”), pursuant to the Plan of Merger. A Certificate of Merger was filed with the Secretary of State of the State of Delaware on January 30, 2012, and Articles of Merger were filed with the Secretary of State of the State of Nevada on January 30, 2012, to effectuate the Merger.
The purpose of the Merger was to re-domicile Organovo Nevada from Nevada to Delaware.
Organovo Delaware was incorporated on January 27, 2012, for the sole purpose of effecting the Merger. Organovo Delaware has an authorized share capital of 150,000,000 shares of common stock, par value $0.001 per share (“Organovo Delaware Common Stock”), and 25,000,000 shares of “blank check” preferred stock, par value $0.001 per share. Prior to the Merger, Organovo Delaware had one share of its Organovo Delaware Common Stock outstanding, held by Organovo Nevada, and therefore was a wholly-owned subsidiary of Organovo Nevada. Prior to the Merger, Organovo Delaware had no assets, liabilities or business.
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Pursuant to the Plan of Merger, (i) each share of Organovo Nevada Common Stock is automatically converted into one share of Organovo Delaware Common Stock, (ii) the directors of Organovo Nevada immediately preceding the Merger become the directors of Organovo Delaware on and after the effectiveness of the Merger, and (iii) the officers of Organovo Nevada immediately preceding the Merger become the officers of Organovo Delaware on and after the effectiveness of the Merger.
At and after the effectiveness of the Merger, all of the outstanding certificates which immediately prior thereto represented shares of Organovo Nevada Common Stock (other than dissenting shares), or options, warrants, purchase rights, units or other securities of Organovo Nevada are deemed for all purposes to evidence ownership of and to represent the shares of Organovo Delaware Common Stock, or options, warrants, purchase rights, units or other securities of Organovo Delaware, as the case may be, into which the shares of Organovo Nevada Common Stock, or options, warrants, purchase rights, units or other securities of Organovo Nevada represented by such certificates have been converted in the Merger and are so registered on the books and records of the surviving corporation or its transfer agent. The registered owner of any such outstanding certificate, until such certificate is surrendered for transfer or otherwise accounted for to the surviving corporation or its transfer agent, is entitled to exercise any voting and other rights with respect to, and to receive any dividends and other distributions upon, the shares of Organovo Delaware Common Stock or options, warrants, purchase rights, units or other securities of Organovo Delaware, as the case may be, evidenced by such outstanding certificate. No fractional shares will be issued; in lieu of any fractional shares to which a holder would otherwise be entitled Organovo Delaware will round such fraction up to the next whole integer.
The outstanding one (1) share of Organovo Delaware Common Stock owned by Organovo Nevada prior to the Merger was reacquired by Organovo Delaware and retired.
Organovo Delaware, as the successor registrant, will continue to file reports under Section 15(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
The effects of the Merger were as follows:
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1.
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Organovo Nevada was re-domiciled (reincorporated) in Delaware. That is, Organovo Delaware, as successor to Organovo Nevada as a result of the Merger, is a Delaware corporation.
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2.
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The authorized capital stock of Organovo Nevada was increased to 150,000,000 shares of Organovo Delaware Common Stock and 25,000,000 shares of “blank check” preferred stock, from 100,000,000 shares of Organovo Nevada Common Stock and 10,000,000 shares of “blank check” preferred stock. That is, by operation of the Merger, the authorized capital stock of Organovo Delaware became the combined entity’s authorized capital stock.
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3.
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The outstanding capital stock of the surviving corporation, Organovo Delaware, is 72,047,679 shares of Organovo Delaware Common Stock (as adjusted to reflect the 10.59135-for-1 forward stock split of the Organova Nevada Common Stock in the form of a dividend, effective January 31, 2012) and no shares of preferred stock.
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The Merger does not result in any change in the business, management, location of principal executive offices, assets, liabilities, net worth, accounting practices or control of the registrant.
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Item 9.01 – Financial Statements and Exhibits.
(d) Exhibits
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Exhibit Number
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Description
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2.1†
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*
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Articles of Merger as filed with the Nevada Secretary of State effective December 28, 2011
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2.2
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*
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Agreement and Plan of Merger, dated as of January 30, 2012, between Organovo Holdings, Inc., a Nevada corporation, and Organovo Holdings, Inc., a Delaware corporation
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2.3
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*
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Certificate of Merger as filed with the Delaware Secretary of State effective January 30, 2012
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2.4
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*
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Articles of Merger as filed with the Nevada Secretary of State effective January 30, 2012
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3.1
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*
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Certificate of Incorporation of Organovo Holdings, Inc., a Delaware corporation, as filed with the Delaware Secretary of State effective January 27, 2012
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3.2
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*
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Bylaws of Organovo Holdings, Inc., a Delaware corporation
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*
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Filed herewith
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†
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This exhibit replaces Exhibit 2.1 of the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 4, 2012.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Organovo Holdings, Inc.
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Dated: February 3, 2012
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By:
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/s/ Deborah Lovig | |
| Name: | Deborah Lovig | ||
| Title: | President | ||
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Exhibit 2.1
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ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4299
(775) 684-5708
Website: www.nvsos.gov
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Filed in the office of
/s/ Ross Miller
ROSS MILLER
Secretary of State
State of Nevada
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Document Number
20110911816-20
Filling Date and Time
12/28/2011 1:05 PM
Entity Number
E0640072009-4
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Articles of Merger
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(PURSUANT TO NRS 92A.200)
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Page 1
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| USE BLACK INK ONLY - DO NOT HIGHLIGHT | ABOVE SPACE IS FOR OFFICE USE ONLY |
Articles of Merger
(Pursuant to NRS Chapter 92A- excluding 92A.200(4b))
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1)
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Name and jurisdiction of organization of each constituent entity (NRS 92A.200):
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o
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If there are more than four merging entities, check box and attach an 8 1/2" x 11" blank sheet containing the required information for each additional entity from article one.
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Organovo Holdings, Inc.
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| Name of merging entity |
| Nevada | Corporation | |
| Jurisdiction | Entity type * | |
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Name of merging entity
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| Jurisdiction | Entity type * | |
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Name of merging entity
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| Jurisdiction | Entity type * | |
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Name of merging entity
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| Jurisdiction | Entity type * | |
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and,
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Real Estate Restoration and Rental, Inc.
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Name of surviving entity
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Nevada
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Corporation | |
| Jurisdiction | Entity type * | |
* Corporation, non-profit corporation, limited partnership, limited-liability company or business trust.
Filing Fee: $350.00
| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 1
Revised: 9-20-10
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ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4299
(775) 684-5708
Website: www.nvsos.gov
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Articles of Merger
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| (PURSUANT TO NRS 92A.200) | |
| Page 2 |
| USE BLACK INK ONLY - DO NOT HIGHLIGHT |
ABOVE SPACE IS FOR OFFICE USE ONLY
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| 2) |
Forwarding address where copies of process may be sent by the Secretary of State of Nevada (if a foreign entity is the survivor in the merger - NRS 92A.190):
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Attn:
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c/o:
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| 3) | Choose one: |
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The undersigned declares that a plan of merger has been adopted by each constituent entity (NRS 92A.200).
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| x | The undersigned declares that a plan of merger has been adopted by the parent domestic entity (NRS 92A.180). |
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Owner's approval (NRS 92A.200) (options a, b or c must be used, as applicable, for each entity):
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If there are more than four merging entities, check box and attach an 8 1/2" x 11" blank sheet containing the required information for each additional entity from the appropriate section of article four.
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| (a) | Owner's approval was not required from |
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Organovo Holdings, Inc.
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Name of merging entity, if applicable
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Name of merging entity, if applicable
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Name of merging entity, if applicable
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Name of merging entity, if applicable
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and, or;
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Real Estate Restoration and Rental, Inc.
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Name of surviving entity, if applicable
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| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 2
Revised: 9-20-10
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ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4299
(775) 684-5708
Website: www.nvsos.gov
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Articles of Merger
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| (PURSUANT TO NRS 92A.200) | |
| Page 3 |
| USE BLACK INK ONLY - DO NOT HIGHLIGHT |
ABOVE SPACE IS FOR OFFICE USE ONLY
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| (b) |
The plan was approved by the required consent of the owners of *:
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Name of merging entity, if applicable
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Name of merging entity, if applicable
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Name of merging entity, if applicable
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Name of merging entity, if applicable
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and, or;
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Name of surviving entity, if applicable
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* Unless otherwise provided in the certificate of trust or governing instrument of a business trust, a merger must be approved by all the trustees and beneficial owners of each business trust that is a constituent entity in the merger.
| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 3
Revised: 9-20-10
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ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4299
(775) 684-5708
Website: www.nvsos.gov
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Articles of Merger
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| (PURSUANT TO NRS 92A.200) | |
| Page 4 |
| USE BLACK INK ONLY - DO NOT HIGHLIGHT |
ABOVE SPACE IS FOR OFFICE USE ONLY
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(c)
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Approval of plan of merger for Nevada non-profit corporation (NRS 92A.160):
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The plan of merger has been approved by the directors of the corporation and by each public officer or other person whose approval of the plan of merger is required by the articles of incorporation of the domestic corporation.
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Name of merging entity, if applicable
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Name of merging entity, if applicable
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Name of merging entity, if applicable
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Name of merging entity, if applicable
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and, or;
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Name of surviving entity, if applicable
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| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 4
Revised: 9-20-10
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ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4299
(775) 684-5708
Website: www.nvsos.gov
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Articles of Merger
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(PURSUANT TO NRS 92A.200)
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Page 5
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| USE BLACK INK ONLY - DO NOT HIGHLIGHT | ABOVE SPACE IS FOR OFFICE USE ONLY |
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5)
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Amendments, if any, to the articles or certificate of the surviving entity. Provide article numbers, if available. (NRS 92A.200)*:
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Article One of the Articles of Incorporation of Real Estate Restoration and Rental, Inc. is hereby amended to change the name of the Corporation to Organovo Holdings, Inc.
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6)
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Location of Plan of Merger (check a or b):
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o
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(a) The entire plan of merger is attached;
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or,
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x
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(b) The entire plan of merger is on file at the registered office of the surviving corporation, limited-liability company or business trust, or at the records office address if a limited partnership, or other place of business of the surviving entity (NRS 92A.200).
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Effective date (optional)**:
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* Amended and restated articles may be attached as an exhibit or integrated into the articles of merger. Please entitle them "Restated" or "Amended and Restated," accordingly. The form to accompany restated articles prescribed by the secretary of state must accompany the amended and/or restated articles. Pursuant to NRS 92A.180 (merger of subsidiary into parent - Nevada parent owning 90% or more of subsidiary), the articles of merger may not contain amendments to the constituent documents of the surviving entity except that the name of the surviving entity may be changed.
** A merger takes effect upon filing the articles of merger or upon a later date as specified in the articles, which must not be more than 90 days after the articles are filed (NRS 92A.240).
| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 5
Revised: 9-20-10
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ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4299
(775) 684-5708
Website: www.nvsos.gov
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Articles of Merger
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| (PURSUANT TO NRS 92A.200) | |
| Page 6 |
| USE BLACK INK ONLY - DO NOT HIGHLIGHT |
ABOVE SPACE IS FOR OFFICE USE ONLY
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8)
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Signatures - Must be signed by: An officer of each Nevada corporation; All general partners of each Nevada limited partnership; All general partners of each Nevada limited-liability limited partnership; A manager of each Nevada limited-liability company with managers or one member if there are no managers; A trustee of each Nevada business trust (NRS 92A.230)* | |
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If there are more than four merging entities, check box and attach an 8 1/2" x 11" blank sheet containing the required information for each additional entity from article eight.
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Organovo Holdings, Inc.
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| Name of merging entity, if applicable | ||
X |
President and Chief Executive Officer | December 28, 2011 | |||
| Signature | Title |
Date
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| Name of merging entity, if applicable | |||||
| Signature | Title |
Date
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| Name of merging entity, if applicable | |||||
| Signature | Title |
Date
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| Name of merging entity, if applicable | |||||
| Signature | Title |
Date
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Real Estate Restoration and Rental, Inc.
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| Name of surviving entity, if applicable | |||||
| X |
President and Chief Executive Officer | December 28, 2011 | |||
| Signature | Title |
Date
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* The articles of merger must be signed by each foreign constituent entity in the manner provided by the law governing it (NRS 92A.230). Additional signature blocks may be added to this page or as an attachment, as needed.
IMPORTANT: Failure to include any of the above information and submit with the proper fees may cause this filing to be rejected.
| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 6
Revised: 9-20-10
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Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (hereinafter called this “Agreement”), dated as of January 30, 2012, is entered into between Organovo Holdings, Inc., a Nevada corporation (“Organovo Nevada”), and Organovo Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of Organovo Nevada (“Organovo Delaware”).
RECITALS
WHEREAS, the Board of Directors of each of Organovo Nevada and Organovo Delaware deems it advisable, upon the terms and subject to the conditions herein stated, that Organovo Nevada be merged with and into Organovo Delaware, with Organovo Delaware being the surviving entity (the “Reincorporation Merger”); and
WHEREAS, Organovo Nevada will submit this Agreement for approval by the holders of shares of common stock, par value $0.0001 per share, of Organovo Nevada (“Organovo Nevada Common Stock”);
NOW, THEREFORE, in consideration of the premises and of the agreements of the parties hereto contained herein, the parties hereto agree as follows:
ARTICLE I
THE REINCORPORATION MERGER; EFFECTIVE TIME
1.1 The Reincorporation Merger. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time (as defined in Section 1.2), Organovo Nevada shall be merged with and into Organovo Delaware whereupon the separate existence of Organovo Nevada shall cease. Organovo Delaware shall be the surviving corporation (sometimes hereinafter referred to as the “Surviving Corporation”) in the Reincorporation Merger and shall continue to be governed by the laws of the State of Delaware. The Reincorporation Merger shall have the effects specified in Section 253 of the Delaware General Corporation Law (the “DGCL”) and Title 7, Chapter 92A of the Nevada Revised Statutes (the “NRS”), and the Surviving Corporation shall succeed, without other transfer, to all of the assets and property (whether real, personal or mixed), rights, privileges, franchises, immunities and powers of Organovo Nevada, and shall assume and be subject to all of the duties, liabilities, obligations and restrictions of every kind and description of Organovo Nevada, including, without limitation, all outstanding indebtedness of Organovo Nevada.
1.2 Effective Time. Provided that the condition set forth in Section 5.1 has been fulfilled or waived in accordance with this Agreement and that this Agreement has not been terminated or abandoned pursuant to Section 6.1, on the date of the closing of the Reincorporation Merger, Organovo Nevada and Organovo Delaware shall cause Articles of Merger to be executed and filed with the Secretary of State of Nevada (the “Nevada Articles of Merger”), and a Certificate of Merger to be executed and filed with the Secretary of State of Delaware (the “Delaware Certificate of Merger”). The Reincorporation Merger shall become effective upon the date and time specified in the Nevada Articles of Merger and the Delaware Certificate of Merger (the “Effective Time”).
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1.3 Further Assurances. From time to time, as and when required by the Surviving Corporation or by its successors and assigns, there shall be executed and delivered on behalf of Organovo Nevada such deeds and other instruments, and there shall be taken or caused to be taken by it such further and other action, as shall be appropriate or necessary in order to vest or perfect in or to confer of record or otherwise in the Surviving Corporation the title to and possession of all the interests, assets, rights, privileges, immunities, powers, franchises and authority of Organovo Nevada, and otherwise to carry out the purposes and intent of this Agreement, and the officers and directors of the Surviving Corporation are fully authorized in the name and on behalf of Organovo Nevada or otherwise to take any and all such actions and to execute and deliver any and all such deeds and other instruments.
ARTICLE II
CHARTER AND BYLAWS OF THE SURVIVING CORPORATION
2.1 The Certificate of Incorporation. The Certificate of Incorporation of Organovo Delaware in effect at the Effective Time shall be the Certificate of Incorporation of the Surviving Corporation, unless and until amended in accordance with the provisions provided therein or applicable law.
2.2 The Bylaws. The Bylaws of Organovo Delaware in effect at the Effective Time shall be the Bylaws of the Surviving Corporation, unless and until amended in accordance with the provisions provided therein or applicable law.
ARTICLE III
OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION
3.1 Officers. The officers of Organovo Nevada at the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation, until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal.
3.2 Directors. The directors and the members of the various committees of the Board of Directors of Organovo Nevada at the Effective Time shall, from and after the Effective Time, be the directors and members of such committees of the Surviving Corporation, until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal.
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ARTICLE IV
EFFECT OF MERGER ON CAPITAL STOCK
4.1 Effect of Merger on Capital Stock. At the Effective Time, as a result of the Reincorporation Merger and without any action on the part of Organovo Nevada, Organovo Delaware or the shareholders of Organovo Nevada:
(a) Each share of Organovo Nevada Common Stock (other than shares (“Dissenting Shares”) that are owned by shareholders exercising dissenters’ rights pursuant to the NRS (“Dissenting Shareholders”)), issued and outstanding immediately prior to the Effective Time shall be changed and converted automatically (without the surrender of stock certificates or any other action) into one fully-paid and non-assessable share of common stock, par value $0.001, of Organovo Delaware (“Organovo Delaware Common Stock”), with the same rights, powers and privileges as the shares so converted and all shares of Organovo Nevada Common Stock shall be cancelled and retired and shall cease to exist. No fractional shares of Organovo Delaware Common Stock shall be issued in the Reincorporation Merger. If the conversion would result in any fractional share, the Surviving Corporation shall, in lieu of issuing such fractional share, issue a whole share of Organovo Delaware Common Stock.
(b) Each option, warrant, purchase right, unit or other security of Organovo Nevada issued and outstanding immediately prior to the Effective Time shall be (i) converted into and shall be an identical security of Organovo Delaware, and (ii) in the case of securities to acquire Organovo Nevada Common Stock, converted into the right to acquire the same number of shares of Organovo Delaware Common Stock as the number of shares of Organovo Nevada Common Stock that were acquirable pursuant to such option, warrant, purchase right, unit or other security.
(c) At the Effective Time, the previously outstanding one (1) share of Organovo Delaware Common Stock registered in the name of Organovo Nevada shall be reacquired by Organovo Delaware and retired and shall resume the status of authorized and unissued Organovo Delaware Common Stock; no shares of Organovo Delaware Common Stock or other securities of Organovo Delaware shall be issued in respect thereof.
4.2 Certificates. At and after the Effective Time, all of the outstanding certificates which immediately prior thereto represented shares of Organovo Nevada Common Stock (other than Dissenting Shares), or options, warrants, purchase rights, units or other securities of Organovo Nevada shall be deemed for all purposes to evidence ownership of and to represent the shares of Organovo Delaware Common Stock, or options, warrants, purchase rights, units or other securities of Organovo Delaware, as the case may be, into which the shares of Organovo Nevada Common Stock, or options, warrants, purchase rights, units or other securities of Organovo Nevada represented by such certificates have been converted as herein provided and shall be so registered on the books and records of the Surviving Corporation or its transfer agent. The registered owner of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or otherwise accounted for to the Surviving Corporation or its transfer agent, have and be entitled to exercise any voting and other rights with respect to, and to receive any dividends and other distributions upon, the shares of Organovo Delaware Common Stock or options, warrants, purchase rights, units or other securities of Organovo Delaware, as the case may be, evidenced by such outstanding certificate, as above provided.
4.3 Dissenters’ Rights. No Dissenting Shareholder shall be entitled to shares of Organovo Delaware Common Stock under this Article IV unless and until the holder thereof shall have failed to perfect or shall have effectively withdrawn or lost such holder’s right to dissent from the Reincorporation Merger under the NRS, and any Dissenting Shareholder shall be entitled to receive only the payment provided by the NRS with respect to Dissenting Shares owned by such Dissenting Shareholder. If any person or entity who otherwise would be deemed a Dissenting Shareholder shall have failed to properly perfect or shall have effectively withdrawn or lost the right to dissent with respect to any shares which would be Dissenting Shares but for that failure to perfect or withdrawal or loss of the right to dissent, such Dissenting Shares shall thereupon be treated as though such Dissenting Shares had been converted into shares of Organovo Delaware Common Stock pursuant to Section 4.1 hereof.
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ARTICLE V
CONDITION
5.1 Condition to Each Party’s Obligation to Effect the Reincorporation Merger. The respective obligation of each party hereto to effect the Reincorporation Merger is subject to receipt prior to the Effective Time of the requisite approval of this Agreement and the transactions contemplated hereby by the holders of Organovo Nevada Common Stock pursuant to the Articles of Incorporation of Organovo Nevada and the NRS.
ARTICLE VI
TERMINATION
6.1 Termination. This Agreement may be terminated, and the Reincorporation Merger may be abandoned, at any time prior to the Effective Time, whether before or after approval of this Agreement by the shareholders of Organovo Nevada, if the Board of Directors of Organovo Nevada determines for any reason, in its sole judgment and discretion, that the consummation of the Reincorporation Merger would be inadvisable or not in the best interests of Organovo Nevada and its shareholders. In the event of the termination and abandonment of this Agreement, this Agreement shall become null and void and have no effect, without any liability on the part of either Organovo Nevada or Organovo Delaware, or any of their respective shareholders, directors or officers.
ARTICLE VII
MISCELLANEOUS AND GENERAL
7.1 Modification or Amendment. Subject to the provisions of applicable law, at any time prior to the Effective Time, the parties hereto may modify or amend this Agreement; provided, however, that an amendment made subsequent to the approval of this Agreement by the shareholders of Organovo Nevada shall not (i) alter or change the amount or kind of shares and/or rights to be received in exchange for or on conversion of all or any of the shares or any class or series thereof of such corporation, (ii) alter or change any provision of the Certificate of Incorporation of the Surviving Corporation to be effected by the Reincorporation Merger, or (iii) alter or change any of the terms or conditions of this Agreement it such alteration or change would adversely affect the holders of any class or series of capital stock of any of the parties hereto.
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7.2 Governing Law. This Agreement shall be deemed to be made in and in all respects shall be interpreted, construed and governed by and in accordance with the laws of the State of Delaware without regard to the conflict of law principles thereof.
7.3 Entire Agreement. This Agreement constitutes the entire agreement and supercedes all other prior agreements, understandings, representations and warranties both written and oral, among the parties, with respect to the subject matter hereof.
7.4 No Third Party Beneficiaries. This Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
7.5 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or any circumstance, is determined by any court or other authority of competent jurisdiction to be invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
7.6 Headings. The headings therein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.
7.7 Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.
[SIGNATURE PAGE FOLLOWS]
5
IN WITNESS WHEREOF, this Agreement and Plan of Merger has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.
|
ORGANOVO HOLDINGS, INC.,
|
|||
|
a Nevada corporation
|
|||
|
By:
|
/s/ Deborah Lovig | ||
| Name: | Deborah Lovig | ||
| Title: | President | ||
|
ORGANOVO HOLDINGS, INC.,
|
|||
|
a Delaware corporation
|
|||
|
By:
|
/s/ Deborah Lovig | ||
| Name: | Deborah Lovig | ||
| Title: | President | ||
6
Exhibit 2.3
|
Delaware
|
PAGE 1
|
The First State
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER, WHICH MERGES:
"ORGANOVO HOLDINGS, INC.", A NEVADA CORPORATION, WITH AND INTO "ORGANOVO HOLDINGS, INC." UNDER THE NAME OF "ORGANOVO HOLDINGS, INC.", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE THIRTIETH DAY OF JANUARY, A.D. 2012, AT 5:31 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.
|
5101595 8100M
120102073
|
 |
 |
|
You may verify this certificate online at corp.delaware.gov/authver.shtml
|
||
1
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 05:31 PM 01/30/2012
FILED 05:31 PM 01/30/2012
SRV 120102073 - 5101595 FILE
|
CERTIFICATE OF MERGER
OF
ORGANOVO HOLDINGS, INC.
a Nevada corporation
INTO
ORGANOVO HOLDINGS, INC.
a Delaware corporation
Pursuant to Title 8, Section 252 of the Delaware General Corporation Law, the undersigned corporation executed the following Certificate of Merger:
FIRST: The name of the surviving corporation is Organovo Holdings, Inc., a Delaware corporation, and the name of the corporation being merged into this surviving corporation is Organovo Holdings, Inc., a Nevada corporation.
SECOND: The agreement of merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations pursuant to Title 8 Section 252 of the General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation is Organovo Holdings, Inc., a Delaware corporation.
FOURTH: The Certificate of Incorporation of the surviving corporation shall be its Certificate of Incorporation.
FIFTH: The authorized stock and par value of the non-Delaware corporation is 100,000,000 shares of common stock, par value $0.0001 per share, and 10,000,000 blank check shares of preferred stock, par value $0.0001 per share.
SIXTH: The merger is to become effective on January 30, 2012.
SEVENTH: The agreement of merger is on file at the principal office of the survivor: c/o Organovo Holdings, Inc. at 710 Wellingham Drive, Durham, NC 27713.
EIGHTH: A copy of the agreement of merger will be furnished by the surviving corporation on request, without cost, to any stockholder of the constituent corporations.
2
IN WITNESS WHEREOF, said surviving corporation has caused this certificate to be signed by an authorized officer, the 30 day of January, 2012.
|
ORGANOVO HOLDINGS, INC.
|
|||
|
By:
|
|
||
|
Name:
|
Deborah Lovig | ||
| Title : | President | ||
3
Exhibit 2.4
| |
ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775) 684-5708
Website: www.nvsos.gov
|
Filed in the office of
/s/ Ross Miller
ROSS MILLER
Secretary of State
State of Nevada
|
Document Number
20120068530-07
Filling Date and Time
01/30/2012 2:20 PM
Entity Number
E0640072009-4
|
|
Articles of Merger
|
|
|
(PURSUANT TO NRS 92A.200)
|
|
|
Page 1
|
| USE BLACK INK ONLY - DO NOT HIGHLIGHT | ABOVE SPACE IS FOR OFFICE USE ONLY |
Articles of Merger
(Pursuant to NRS Chapter 92A)
|
1)
|
Name and jurisdiction of organization of each constituent entity (NRS 92A.200):
|
|
o
|
If there are more than four merging entities, check box and attach an 8 1/2" x 11" blank sheet containing the required information for each additional entity from article one.
|
|
Organovo Holdings, Inc.
|
| Name of merging entity |
| Nevada | Corporation | |
| Jurisdiction | Entity type * | |
|
Name of merging entity
|
||
| Jurisdiction | Entity type * | |
|
Name of merging entity
|
||
| Jurisdiction | Entity type * | |
|
Name of merging entity
|
||
| Jurisdiction | Entity type * | |
|
and,
|
||
|
Organovo Holdings, Inc.
|
||
|
Name of surviving entity
|
||
| Delaware | Corporation | |
| Jurisdiction | Entity type * | |
* Corporation, non-profit corporation, limited partnership, limited-liability company or business trust.
Filing Fee: $350.00
| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 1
Revised: 8-31-11
|
|
|
ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775) 684-5708
Website: www.nvsos.gov
|
|
Articles of Merger
|
|
| (PURSUANT TO NRS 92A.200) | |
| Page 2 |
| USE BLACK INK ONLY - DO NOT HIGHLIGHT |
ABOVE SPACE IS FOR OFFICE USE ONLY
|
| 2) |
Forwarding address where copies of process may be sent by the Secretary of State of Nevada (if a foreign entity is the survivor in the merger - NRS 92A.190):
|
|
Attn:
|
Deborah Lovig | |
|
c/o:
|
Organovo Holdings, Inc.
710 Wellingham Drive, Durham, NC 27713
|
|
| 3) | Choose one: |
| x |
The undersigned declares that a plan of merger has been adopted by each constituent entity (NRS 92A.200).
|
| o | The undersigned declares that a plan of merger has been adopted by the parent domestic entity (NRS 92A.180). |
| 4) |
Owner's approval (NRS 92A.200) (options a, b or c must be used, as applicable, for each entity):
|
| o |
If there are more than four merging entities, check box and attach an 8 1/2" x 11" blank sheet containing the required information for each additional entity from the appropriate section of article four.
|
| (a) | Owner's approval was not required from |
|
Name of merging entity, if applicable
|
|
|
Name of merging entity, if applicable
|
|
|
Name of merging entity, if applicable
|
|
|
Name of merging entity, if applicable
|
|
|
and, or;
|
|
|
Name of surviving entity, if applicable
|
| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 2
Revised: 8-31-11
|
|
|
ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775) 684-5708
Website: www.nvsos.gov
|
|
Articles of Merger
|
|
| (PURSUANT TO NRS 92A.200) | |
| Page 3 |
| USE BLACK INK ONLY - DO NOT HIGHLIGHT |
ABOVE SPACE IS FOR OFFICE USE ONLY
|
| (b) |
The plan was approved by the required consent of the owners of *:
|
|
Organovo Holdings, Inc.
|
|
|
Name of merging entity, if applicable
|
|
|
Name of merging entity, if applicable
|
|
|
Name of merging entity, if applicable
|
|
|
Name of merging entity, if applicable
|
|
|
and, or;
|
|
|
Organovo Holdings, Inc.
|
|
|
Name of surviving entity, if applicable
|
* Unless otherwise provided in the certificate of trust or governing instrument of a business trust, a merger must be approved by all the trustees and beneficial owners of each business trust that is a constituent entity in the merger.
| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 3
Revised: 8-31-11
|
|
|
ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775) 684-5708
Website: www.nvsos.gov
|
|
Articles of Merger
|
|
| (PURSUANT TO NRS 92A.200) | |
| Page 4 |
| USE BLACK INK ONLY - DO NOT HIGHLIGHT |
ABOVE SPACE IS FOR OFFICE USE ONLY
|
|
(c)
|
Approval of plan of merger for Nevada non-profit corporation (NRS 92A.160):
|
|
The plan of merger has been approved by the directors of the corporation and by each public officer or other person whose approval of the plan of merger is required by the articles of incorporation of the domestic corporation.
|
|
|
Name of merging entity, if applicable
|
|
|
Name of merging entity, if applicable
|
|
|
Name of merging entity, if applicable
|
|
|
Name of merging entity, if applicable
|
|
|
and, or;
|
|
|
Name of surviving entity, if applicable
|
| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 4
Revised: 8-31-11
|
|
|
ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775) 684-5708
Website: www.nvsos.gov
|
|
Articles of Merger
|
|
|
(PURSUANT TO NRS 92A.200)
|
|
|
Page 5
|
| USE BLACK INK ONLY - DO NOT HIGHLIGHT | ABOVE SPACE IS FOR OFFICE USE ONLY |
|
5)
|
Amendments, if any, to the articles or certificate of the surviving entity. Providearticle numbers, if available. (NRS 92A.200)*:
|
|
|
|
6)
|
Location of Plan of Merger (check a or b):
|
|
o
|
(a) The entire plan of merger is attached;
|
|
or,
|
|
x
|
(b) The entire plan of merger is on file at the registered office of the surviving corporation, limited-liability company or business trust, or at the records office address if a limited partnership, or other place of business of the surviving entity (NRS 92A.200).
|
| 7) |
Effective date and time of filing: (optional) (must not be later than 90 days after the certificate is filed)
|
|
| Date | Time |
* Amended and restated articles may be attached as an exhibit or integrated into the articles of merger. Please entitle them "Restated" or "Amended and Restated," accordingly. The form to accompany restated articles prescribed by the secretary of state must accompany the amended and/or restated articles. Pursuant to NRS 92A.180 (merger of subsidiary into parent - Nevada parent owning 90% or more of subsidiary), the articles of merger may not contain amendments to the constituent documents of the surviving entity except that the name of the surviving entity may be changed.
| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 5
Revised: 8-31-11
|
|
|
ROSS MILLER
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775) 684-5708
Website: www.nvsos.gov
|
|
Articles of Merger
|
|
| (PURSUANT TO NRS 92A.200) | |
| Page 6 |
| USE BLACK INK ONLY - DO NOT HIGHLIGHT |
ABOVE SPACE IS FOR OFFICE USE ONLY
|
|
8)
|
Signatures - Must be signed by: An officer of each Nevada corporation; All general partners of each Nevada limited partnership; All general partners of each Nevada limited-liability limited partnership; A manager of each Nevada limited-liability company with managers or one member if there are no managers; A trustee of each Nevada business trust (NRS 92A.230)* | |
| o |
If there are more than four merging entities, check box and attach an 8 1/2" x 11" blank sheet containing the required information for each additional entity from article eight.
|
|
|
Organovo Holdings, Inc.
|
||
| Name of merging entity, if applicable | ||
| X |
President | 1/30/12 | |||
| Signature | Title |
Date
|
|||
| Name of merging entity, if applicable | |||||
| X | |||||
| Signature | Title |
Date
|
|||
| Name of merging entity, if applicable | |||||
| X | |||||
| Signature | Title |
Date
|
|||
| Name of merging entity, if applicable | |||||
| X | |||||
| Signature | Title |
Date
|
|||
| and, | |||||
|
Organovo Holdings, Inc.
|
|||||
| Name of surviving entity, if applicable | |||||
| X |
President | 1/30/12 | |||
| Signature | Title |
Date
|
|||
* The articles of merger must be signed by each foreign constituent entity in the manner provided by the law governing it (NRS 92A.230). Additional signature blocks may be added to this page or as an attachment, as needed.
IMPORTANT: Failure to include any of the above information and submit with the proper fees may cause this filing to be rejected.
| This form must be accompanied by appropriate fees. | Nevada Secretary of State 92A Merger Page 6
Revised: 8-31-11
|
Exhibit 3.1
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 02:06 PM 01/27/2012
FILED 02:02 PM 01/27/2012
SRV 120094943 - 5101595 FILE
|
ORGANOVO HOLDINGS, INC.
CERTIFICATE OF INCORPORATION
The undersigned, for the purpose of forming a corporation pursuant to Section 102 of the General Corporation Law of Delaware (the "DGCL"), does hereby certify the following:
ARTICLE I
The name of the corporation is Organovo Holdings, Inc.
ARTICLE II
The address of the corporation's registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.
ARTICLE IV
The total number of shares of stock that the corporation shall have authority to issue is 175,000,000, consisting of the following:
150,000,000 shares of Common Stock, par value $0.001 per share. Each share of Common Stock shall entitle the holder thereof to one (1) vote on each matter submitted to a vote at a meeting of stockholders.
25,000,000 shares of Preferred Stock, par value $0.001 per share, which may be issued from time to time in one or more series pursuant to a resolution or resolutions providing for such issue duly adopted by the Board of Directors (authority to do so being hereby expressly vested in the Board of Directors). The Board of Directors is further authorized, subject to limitations prescribed by law, to fix by resolution or resolutions the designations, powers, preferences and rights, and the qualifications, limitations or restrictions thereof, of any wholly unissued series of Preferred Stock, including without limitation authority to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences of any such series, and the number of shares constituting any such series and the designation thereof, or any of the foregoing.
The Board of Directors is further authorized to increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares of any such series then outstanding) the number of shares of any series, the number of which was fixed by it, subsequent to the issuance of shares of such series then outstanding, subject to the powers, preferences and rights, and the qualifications, limitations and restrictions thereof stated in the Certificate of Incorporation or the resolution of the Board of Directors originally fixing the number of shares of such series. If the number of shares of any series is so decreased, then 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 series.
-1-
ARTICLE V
The number of directors that constitutes the entire Board of Directors of the corporation shall be fixed by, or in the manner provided in, the Bylaws of the corporation. At each annual meeting of stockholders, directors of the corporation shall be elected to hold office until the expiration of the term for which they are elected and until their successors have been duly elected and qualified or until their earlier resignation or removal; except that if any such election shall not be so held, such election shall take place at a stockholders' meeting called and held in accordance with the DGCL.
Effective upon the filing of this Certificate of Incorporation (the "Effective Date"), the directors of the corporation shall be divided into three classes as nearly equal in size as is practicable, hereby designated Class I, Class II and Class III. The Board of Directors may assign members of the Board of Directors already in office to such classes at the time such classification becomes effective. The term of office of the initial Class I directors shall expire at the first regularly-scheduled annual meeting of the stockholders following the Effective Date, the term of office of the initial Class II directors shall expire at the second annual meeting of the stockholders following the Effective Date and the term of office of the initial Class III directors shall expire at the third annual meeting of the stockholders following the Effective Date. At each annual meeting of stockholders, commencing with the first regularly-scheduled annual meeting of stockholders following the Effective Date, each of the successors elected to replace the directors of a Class whose term shall have expired at such annual meeting shall be elected to hold office until the third annual meeting next succeeding his or her election and until his or her respective successor shall have been duly elected and qualified.
Notwithstanding the foregoing provisions of this Article, each director shall serve until his or her successor is duly elected and qualified or until his or her death, resignation, or removal. If the number of directors is hereafter changed, any newly created directorships or decrease in directorships shall be so apportioned among the classes as to make all classes as nearly equal in number as is practicable, provided that no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
Any director may be removed from office by the stockholders of the corporation only for cause. Vacancies occurring on the Board of Directors for any reason and newly created directorships resulting from an increase in the authorized number of directors may be filled only by vote of a majority of the remaining members of the Board of Directors, although less than a quorum, or by a sole remaining director, at any meeting of the Board of Directors. A person so elected by the Board of Directors to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen and until his or her successor shall be duly elected and qualified.
-2-
ARTICLE VI
In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the corporation is expressly authorized to adopt, amend or repeal the Bylaws of the corporation.
ARTICLE VII
Elections of directors need not be by written ballot unless the Bylaws of the corporation shall so provide.
ARTICLE VIII
No action shall be taken by the stockholders of the corporation except at an annual or special meeting of the stockholders called in accordance with the Bylaws, and no action shall be taken by the stockholders by written consent; provided that stockholders may take action by written consent if the action to be effected by written consent and the taking of such action by written consent is approved in advance by resolution of the Board of Directors.
ARTICLE IX
To the fullest extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, 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. If the DGCL is amended 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.
Neither any amendment nor repeal of this Article, nor the adoption of any provision of this corporation's Certificate of Incorporation inconsistent with this Article, shall eliminate or reduce the effect of this Article in respect of any matter occurring, or any cause of action, suit or proceeding accruing or arising or that, but for this Article, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
ARTICLE X
Subject to any provisions in the Bylaws of the corporation related to indemnification of directors or officers of the corporation, the corporation shall indemnify, to the fullest extent permitted by the DGCL or any other applicable laws, any director or officer of the corporation who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a "Proceeding") by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.
-3-
The corporation shall have the power to indemnify, to the fullest extent permitted by the DGCL or any other applicable laws, as it presently exists or may hereafter be amended from time to time, any employee or agent of the corporation who was or is a party or is threatened to be made a party to any Proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.
A right to indemnification or to advancement of expenses arising under a provision of this Certificate of Incorporation or a bylaw of the corporation shall not be eliminated or impaired by an amendment to this Certificate of Incorporation or the Bylaws of the corporation after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
ARTICLE XI
Except as provided in ARTICLE IX and ARTICLE X above, 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.
-4-
IN WITNESS WHEREOF, Organovo Holdings, Inc. has caused this Certificate of Incorporation to be signed by the Incorporator on this 27th day of January, 2012.
|
|
/s/ Eleanor Osmanoff
|
||
|
Eleanor Osmanoff, Incorporator
|
|||
|
488 Madison Avenue
|
|||
| 12th Floor | |||
|
New York, NY 10022
|
-5-
Exhibit 3.2
BYLAWS OF
ORGANOVO HOLDINGS, INC.
TABLE OF CONTENTS
|
Page
|
||
|
ARTICLE I - CORPORATE OFFICES
|
1
|
|
|
1.1
|
REGISTERED OFFICE
|
1 |
|
1.2
|
OTHER OFFICES
|
1 |
|
ARTICLE II - MEETINGS OF STOCKHOLDERS
|
1 | |
|
2.1
|
PLACE OF MEETINGS
|
1 |
|
2.2
|
ANNUAL MEETING
|
1 |
|
2.3
|
SPECIAL MEETING
|
1 |
|
2.4
|
ADVANCE NOTICE PROCEDURES
|
2 |
|
2.5
|
NOTICE OF STOCKHOLDERS’ MEETINGS
|
5 |
|
2.6
|
QUORUM
|
6 |
|
2.7
|
ADJOURNED MEETING; NOTICE
|
6 |
|
2.8
|
CONDUCT OF BUSINESS
|
6 |
|
2.9
|
VOTING
|
6 |
|
2.10
|
STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
|
7 |
|
2.11
|
RECORD DATES
|
7 |
|
2.12
|
PROXIES
|
8 |
|
2.13
|
LIST OF STOCKHOLDERS ENTITLED TO VOTE
|
8 |
|
2.14
|
INSPECTORS OF ELECTION
|
8 |
|
ARTICLE III - DIRECTORS
|
9 | |
|
3.1
|
POWERS
|
9 |
|
3.2
|
NUMBER OF DIRECTORS
|
9 |
|
3.3
|
ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
|
9 |
|
3.4
|
RESIGNATION AND VACANCIES
|
9 |
|
3.5
|
PLACE OF MEETINGS; MEETINGS BY TELEPHONE
|
10 |
|
3.6
|
REGULAR MEETINGS
|
10 |
|
3.7
|
SPECIAL MEETINGS; NOTICE
|
10 |
|
3.8
|
QUORUM; VOTING
|
11 |
|
3.9
|
BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
|
11 |
|
3.1
|
FEES AND COMPENSATION OF DIRECTORS
|
12 |
|
3.11
|
REMOVAL OF DIRECTORS
|
12 |
|
ARTICLE IV - COMMITTEES
|
12 | |
|
4.1
|
COMMITTEES OF DIRECTORS
|
12 |
|
4.2
|
COMMITTEE MINUTES
|
12 |
|
4.3
|
MEETINGS AND ACTION OF COMMITTEES
|
12 |
|
4.4
|
SUBCOMMITTEES
|
13 |
|
ARTICLE V - OFFICERS
|
13 | |
|
5.1
|
OFFICERS
|
13 |
|
5.2
|
APPOINTMENT OF OFFICERS
|
13 |
|
5.3
|
SUBORDINATE OFFICERS
|
13 |
|
5.4
|
REMOVAL AND RESIGNATION OF OFFICERS
|
14 |
|
5.5
|
VACANCIES IN OFFICES
|
14 |
|
5.6
|
REPRESENTATION OF SHARES OF OTHER CORPORATIONS
|
14 |
i
TABLE OF CONTENTS
(continued)
|
|
||
|
5.7
|
AUTHORITY AND DUTIES OF OFFICERS
|
14 |
|
ARTICLE VI - STOCK
|
14 | |
|
6.1
|
STOCK CERTIFICATES; PARTLY PAID SHARES
|
14 |
|
6.2
|
SPECIAL DESIGNATION ON CERTIFICATES
|
15 |
|
6.3
|
LOST CERTIFICATES
|
15 |
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6.4
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DIVIDENDS
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15 |
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6.5
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TRANSFER OF STOCK
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16 |
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6.6
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STOCK TRANSFER AGREEMENTS
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16 |
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6.7
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REGISTERED STOCKHOLDERS
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16 |
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ARTICLE VII - MANNER OF GIVING NOTICE AND WAIVER
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16 | |
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7.1
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NOTICE OF STOCKHOLDERS’ MEETINGS
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16 |
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7.2
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NOTICE BY ELECTRONIC TRANSMISSION
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16 |
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7.3
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NOTICE TO STOCKHOLDERS SHARING AN ADDRESS
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17 |
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7.4
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NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL
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18 |
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7.5
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WAIVER OF NOTICE
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18 |
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ARTICLE VIII - INDEMNIFICATION
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18 | |
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8.1
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INDEMNIFICATION OF DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS
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18 |
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8.2
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INDEMNIFICATION OF DIRECTORS AND OFFICERS IN ACTIONS BY OR IN THE RIGHT OF THE CORPORATION
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19 |
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8.3
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SUCCESSFUL DEFENSE
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19 |
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8.4
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INDEMNIFICATION OF OTHERS
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19 |
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8.5
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ADVANCED PAYMENT OF EXPENSES
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19 |
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8.6
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LIMITATION ON INDEMNIFICATION
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20 |
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8.7
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DETERMINATION; CLAIM
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20 |
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8.8
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NON-EXCLUSIVITY OF RIGHTS
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21 |
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8.9
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INSURANCE
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21 |
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8.1
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SURVIVAL
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21 |
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8.11
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EFFECT OF REPEAL OR MODIFICATION
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21 |
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8.12
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CERTAIN DEFINITIONS
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21 |
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ARTICLE IX - GENERAL MATTERS
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22 | |
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9.1
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EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
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22 |
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9.2
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FISCAL YEAR
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22 |
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9.3
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SEAL
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22 |
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9.4
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CONSTRUCTION; DEFINITIONS
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22 |
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ARTICLE X - AMENDMENTS
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22 | |
ii
BYLAWS OF ORGANOVO HOLDINGS, INC.
| ARTICLE I - CORPORATE OFFICES |
1.1 REGISTERED OFFICE
The registered office of Organovo Holdings, Inc. shall be fixed in the corporation’s certificate of incorporation, as the same may be amended from time to time.
1.2 OTHER OFFICES
The corporation’s board of directors may at any time establish other offices at any place or places where the corporation is qualified to do business.
| ARTICLE II - MEETINGS OF STOCKHOLDERS |
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place, within or outside the State of Delaware, designated by the board of directors. The board of directors may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of the Delaware General Corporation Law (the “DGCL”). In the absence of any such designation or determination, stockholders’ meetings shall be held at the corporation’s principal executive office.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each year. The board of directors shall designate the date and time of the annual meeting. In the absence of such designation the annual meeting of stockholders shall be held on the second Tuesday of May of each year at 10:00 a.m. However, if such day falls on a legal holiday, then the meeting shall be held at the same time and place on the next succeeding business day. At the annual meeting, directors shall be elected and any other proper business may be transacted.
2.3 SPECIAL MEETING
(i) A special meeting of the stockholders, other than those required by statute, may be called at any time by the board of directors, chairperson of the board of directors, chief executive officer or president (in the absence of a chief executive officer), but a special meeting may not be called by any other person or persons. The board of directors may cancel, postpone or reschedule any previously scheduled special meeting at any time, before or after the notice for such meeting has been sent to the stockholders.
(ii) The notice of a special meeting shall include the purpose for which the meeting is called. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting by or at the direction of the board of directors, chairperson of the board of directors, chief executive officer or president (in the absence of a chief executive officer). Nothing contained in this Section 2.3(ii) shall be construed as limiting, fixing or affecting the time when a meeting of stockholders called by action of the board of directors may be held.
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2.4 ADVANCE NOTICE PROCEDURES
(i) Advance Notice of Stockholder Business. At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be brought: (A) pursuant to the corporation’s proxy materials with respect to such meeting, (B) by or at the direction of the board of directors, or (C) by a stockholder of the corporation who (1) is a stockholder of record at the time of the giving of the notice required by this Section 2.4(i), on the record date for the determination of stockholders entitled to notice of the annual meeting and on the record date for the determination of stockholders entitled to vote at the annual meeting and (2) has timely complied in proper written form with the notice procedures set forth in this Section 2.4(i). In addition, for business to be properly brought before an annual meeting by a stockholder, such business must be a proper matter for stockholder action pursuant to these bylaws and applicable law. For the avoidance of doubt, clause (C) above shall be the exclusive means for a stockholder to bring business before an annual meeting of stockholders.
(a) To comply with clause (C) of Section 2.4(i) above, a stockholder’s notice must set forth all information required under this Section 2.4(i) and must be timely received by the secretary of the corporation. To be timely, a stockholder’s notice must be received by the secretary at the principal executive offices of the corporation not later than the 45th day nor earlier than the 75th day before the one-year anniversary of the date on which the corporation first mailed its proxy materials or a notice of availability of proxy materials (whichever is earlier) for the preceding year’s annual meeting; provided, however, that in the event that no annual meeting was held in the previous year or if the date of the annual meeting is advanced by more than 30 days prior to or delayed by more than 60 days after the one-year anniversary of the date of the previous year’s annual meeting, then, for notice by the stockholder to be timely, it must be so received by the secretary not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of (i) the 90th day prior to such annual meeting, or (ii) the tenth day following the day on which Public Announcement (as defined below) of the date of such annual meeting is first made. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described in this Section 2.4(i)(a). “Public Announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or any successor thereto (the “1934 Act”).
(b) To be in proper written form, a stockholder’s notice to the secretary must set forth as to each matter of business the stockholder intends to bring before the annual meeting: (1) a brief description of the business intended to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (2) the name and address, as they appear on the corporation’s books, of the stockholder proposing such business and any Stockholder Associated Person (as defined below), (3) the class and number of shares of the corporation that are held of record or are beneficially owned by the stockholder or any Stockholder Associated Person and any derivative positions held or beneficially held by the stockholder or any Stockholder Associated Person, (4) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of such stockholder or any Stockholder Associated Person with respect to any securities of the corporation, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such stockholder or any Stockholder Associated Person with respect to any securities of the corporation, (5) any material interest of the stockholder or a Stockholder Associated Person in such business, and (6) a statement whether either such stockholder or any Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares required under applicable law to carry the proposal (such information provided and statements made as required by clauses (1) through (6), a “Business Solicitation Statement”). In addition, to be in proper written form, a stockholder’s notice to the secretary must be supplemented not later than ten days following the record date for the determination of stockholders entitled to notice of the meeting, and ten days following the record date for the determination of stockholders entitled to vote at the meeting (if that record date is different than the record date for the determination of stockholders entitled to notice of the meeting), to disclose the information contained in clauses (3) and (4) above as of the applicable record date. For purposes of this Section 2.4, a “Stockholder Associated Person” of any stockholder shall mean (i) any person controlling, directly or indirectly, or acting in concert with, such stockholder, (ii) any beneficial owner of shares of stock of the corporation owned of record or beneficially by such stockholder and on whose behalf the proposal or nomination, as the case may be, is being made, or (iii) any person controlling, controlled by or under common control with such person referred to in the preceding clauses (i) and (ii).
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(c) Without exception, no business shall be conducted at any annual meeting except in accordance with the provisions set forth in this Section 2.4(i) and, if applicable, Section 2.4(ii) hereof. In addition, business proposed to be brought by a stockholder may not be brought before the annual meeting if such stockholder or a Stockholder Associated Person, as applicable, takes action contrary to the representations made in the Business Solicitation Statement applicable to such business or if the Business Solicitation Statement applicable to such business contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading. The chairperson of the annual meeting shall, if the facts warrant, determine and declare at the annual meeting that business was not properly brought before the annual meeting and in accordance with the provisions of this Section 2.4(i), and, if the chairperson should so determine, he or she shall so declare at the annual meeting that any such business not properly brought before the annual meeting shall not be conducted.
(ii) Advance Notice of Director Nominations at Annual Meetings. Notwithstanding anything in these bylaws to the contrary, only persons who are nominated in accordance with the procedures set forth in this Section 2.4(ii) shall be eligible for election or re-election as directors at an annual meeting of stockholders. Nominations of persons for election to the board of directors of the corporation shall be made at an annual meeting of stockholders only (A) by or at the direction of the board of directors or (B) by a stockholder of the corporation who (1) was a stockholder of record at the time of the giving of the notice required by this Section 2.4(ii), on the record date for the determination of stockholders entitled to notice of the annual meeting and on the record date for the determination of stockholders entitled to vote at the annual meeting and (2) has complied with the notice procedures set forth in this Section 2.4(ii). In addition to any other applicable requirements, for a nomination to be made by a stockholder, the stockholder must have given timely notice thereof in proper written form to the secretary of the corporation.
(a) To comply with clause (B) of Section 2.4(ii) above, a nomination to be made by a stockholder must set forth all information required under this Section 2.4(ii) and must be received by the secretary of the corporation at the principal executive offices of the corporation at the time set forth in, and in accordance with, the final three sentences of Section 2.4(i)(a) above.
(b) To be in proper written form, such stockholder’s notice to the secretary must set forth:
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(1) as to each person (a “nominee”) whom the stockholder proposes to nominate for election or re-election as a director: (A) the name, age, business address and residence address of the nominee, (B) the principal occupation or employment of the nominee, (C) the class and number of shares of the corporation that are held of record or are beneficially owned by the nominee and any derivative positions held or beneficially held by the nominee, (D) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of the nominee with respect to any securities of the corporation, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit of share price changes for, or to increase or decrease the voting power of the nominee, (E) a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nominations are to be made by the stockholder, (F) a written statement executed by the nominee acknowledging that as a director of the corporation, the nominee will owe a fiduciary duty under Delaware law with respect to the corporation and its stockholders, and (G) any other information relating to the nominee that would be required to be disclosed about such nominee if proxies were being solicited for the election of the nominee as a director, or that is otherwise required, in each case pursuant to Regulation 14A under the 1934 Act (including without limitation the nominee’s written consent to being named in the proxy statement, if any, as a nominee and to serving as a director if elected); and
(2) as to such stockholder giving notice, (A) the information required to be provided pursuant to clauses (2) through (5) of Section 2.4(i)(b) above, and the supplement referenced in the second sentence of Section 2.4(i)(b) above (except that the references to “business” in such clauses shall instead refer to nominations of directors for purposes of this paragraph), and (B) a statement whether either such stockholder or Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of a number of the corporation’s voting shares reasonably believed by such stockholder or Stockholder Associated Person to be necessary to elect such nominee(s) (such information provided and statements made as required by clauses (A) and (B) above, a “Nominee Solicitation Statement”).
(c) At the request of the board of directors, any person nominated by a stockholder for election as a director must furnish to the secretary of the corporation (1) that information required to be set forth in the stockholder’s notice of nomination of such person as a director as of a date subsequent to the date on which the notice of such person’s nomination was given and (2) such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as an independent director of the corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee; in the absence of the furnishing of such information if requested, such stockholder’s nomination shall not be considered in proper form pursuant to this Section 2.4(ii).
(d) Without exception, no person shall be eligible for election or re-election as a director of the corporation at an annual meeting of stockholders unless nominated in accordance with the provisions set forth in this Section 2.4(ii). In addition, a nominee shall not be eligible for election or re-election if a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the representations made in the Nominee Solicitation Statement applicable to such nominee or if the Nominee Solicitation Statement applicable to such nominee contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading. The chairperson of the annual meeting shall, if the facts warrant, determine and declare at the annual meeting that a nomination was not made in accordance with the provisions prescribed by these bylaws, and if the chairperson should so determine, he or she shall so declare at the annual meeting, and the defective nomination shall be disregarded.
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(iii) Advance Notice of Director Nominations for Special Meetings.
(a) For a special meeting of stockholders at which directors are to be elected pursuant to Section 2.3 hereof, nominations of persons for election to the board of directors shall be made only (1) by or at the direction of the board of directors or (2) by any stockholder of the corporation who (A) is a stockholder of record at the time of the giving of the notice required by this Section 2.4(iii), on the record date for the determination of stockholders entitled to notice of the special meeting and on the record date for the determination of stockholders entitled to vote at the special meeting and (B) delivers a timely written notice of the nomination to the secretary of the corporation that includes the information set forth in Sections 2.4(ii)(b) and (ii)(c) above. To be timely, such notice must be received by the secretary at the principal executive offices of the corporation not later than the close of business on the later of the 90th day prior to such special meeting or the tenth day following the day on which Public Announcement is first made of the date of the special meeting and of the nominees proposed by the board of directors to be elected at such meeting. A person shall not be eligible for election or re-election as a director at a special meeting unless the person is nominated (i) by or at the direction of the board of directors or (ii) by a stockholder in accordance with the notice procedures set forth in this Section 2.4(iii). In addition, a nominee shall not be eligible for election or re-election if a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the representations made in the Nominee Solicitation Statement applicable to such nominee or if the Nominee Solicitation Statement applicable to such nominee contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading.
(b) The chairperson of the special meeting shall, if the facts warrant, determine and declare at the meeting that a nomination or business was not made in accordance with the procedures prescribed by these bylaws, and if the chairperson should so determine, he or she shall so declare at the meeting, and the defective nomination or business shall be disregarded.
(iv) Other Requirements and Rights. In addition to the foregoing provisions of this Section 2.4, a stockholder must also comply with all applicable requirements of state law and of the 1934 Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.4, including, with respect to business such stockholder intends to bring before the annual meeting that involves a proposal that such stockholder requests to be included in the corporation’s proxy statement, the requirements of Rule 14a-8 (or any successor provision) under the 1934 Act. Nothing in this Section 2.4 shall be deemed to affect any right of the corporation to omit a proposal from the corporation’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under the 1934 Act.
2.5 NOTICE OF STOCKHOLDERS’ MEETINGS
Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Except as otherwise provided in the DGCL, the certificate of incorporation or these bylaws, the written notice of any meeting of stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting.
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2.6 QUORUM
The holders of a majority of the stock issued and outstanding and entitled to vote, present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders. Where a separate vote by a class or series or classes or series is required, a majority of the outstanding shares of such class or series or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter, except as otherwise provided by law, the certificate of incorporation or these bylaws.
If, however, such quorum is not present or represented at any meeting of the stockholders, then either (i) the chairperson of the meeting, or (ii) the stockholders entitled to vote at the meeting, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed.
2.7 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the board of directors shall fix a new record date for notice of such adjourned meeting in accordance with Section 213(a) of the DGCL and Section 2.11 of these bylaws, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.
2.8 CONDUCT OF BUSINESS
The chairperson of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of business.
2.9 VOTING
The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 2.11 of these bylaws, subject to Section 217 (relating to voting rights of fiduciaries, pledgors and joint owners of stock) and Section 218 (relating to voting trusts and other voting agreements) of the DGCL.
Except as may be otherwise provided in the certificate of incorporation or these bylaws, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder.
Except as otherwise required by law, the certificate of incorporation or the bylaws, (i) shareholder action (except for bylaw amendments, which will require a majority of shares entitled to vote, and election of directors) will be based on the affirmative vote of a majority of the votes cast and (ii) broker non-votes and abstentions will be considered for purposes of establishing a quorum but will not be considered as votes cast for or against a proposal or director nominee.
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Except as otherwise required by law, the certificate of incorporation or these bylaws, directors shall be elected by a plurality of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Where a separate vote by a class or series or classes or series is required, in all matters other than the election of directors, the affirmative vote of the majority of shares of such class or series or classes or series present in person or represented by proxy at the meeting shall be the act of such class or series or classes or series, except as otherwise provided by law, the certificate of incorporation or these bylaws.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Subject to the rights of the holders of any series of preferred stock, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders; provided, however, that stockholders may take action by written consent if the action to be effected by written consent and the taking of such action by written consent is approved in advance by resolution of the Board.
2.11 RECORD DATES
In order that the corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the board of directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the board of directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination.
If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the provisions of Section 213 of the DGCL and this Section 2.11 at the adjourned meeting.
In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
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2.12 PROXIES
Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL.
A written proxy may be in the form of a telegram, cablegram, or other means of electronic transmission which sets forth or is submitted with information from which it can be determined that the telegram, cablegram, or other means of electronic transmission was authorized by the person.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of the corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting; provided, however, if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. The corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the corporation’s principal place of business. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Such list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
2.14 INSPECTORS OF ELECTION
Before any meeting of stockholders, the board of directors shall appoint an inspector or inspectors of election to act at the meeting or its adjournment. The number of inspectors shall be either one (1) or three (3). If any person appointed as inspector fails to appear or fails or refuses to act, then the chairperson of the meeting may, and upon the request of any stockholder or a stockholder's proxy shall, appoint a person to fill that vacancy.
Such inspectors shall:
(i) determine the number of shares outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and effect of proxies;
(ii) receive votes, ballots or consents;
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(iii) hear and determine all challenges and questions in any way arising in connection with the right to vote;
(iv) count and tabulate all votes or consents;
(v) determine when the polls shall close;
(vi) determine the result; and
(vii) do any other acts that may be proper to conduct the election or vote with fairness to all stockholders.
The inspectors of election shall perform their duties impartially, in good faith, to the best of their ability and as expeditiously as is practical. If there are three (3) inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein.
| ARTICLE III -DIRECTORS |
3.1 POWERS
The business and affairs of the corporation shall be managed by or under the direction of the board of directors, except as may be otherwise provided in the DGCL or the certificate of incorporation.
3.2 NUMBER OF DIRECTORS
The board of directors shall consist of one or more members, each of whom shall be a natural person. Unless the certificate of incorporation fixes the number of directors, the number of directors shall be determined from time to time by resolution of the board of directors. No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these bylaws, each director, including a director elected to fill a vacancy, shall hold office until the expiration of the term for which elected and until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal. Directors need not be stockholders unless so required by the certificate of incorporation or these bylaws. The certificate of incorporation or these bylaws may prescribe other qualifications for directors.
If so provided in the certificate of incorporation, the directors of the corporation shall be divided into three classes.
3.4 RESIGNATION AND VACANCIES
Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation. A resignation is effective when the resignation is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. A resignation which is conditioned upon the director failing to receive a specified vote for reelection as a director may provide that it is irrevocable. Unless otherwise provided in the certificate of incorporation or these bylaws, when one or more directors resign from the board of directors, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective.
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Unless otherwise provided in the certificate of incorporation or these bylaws, vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. If the directors are divided into classes, a person so elected by the directors then in office to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen and until his or her successor shall have been duly elected and qualified.
If at any time, by reason of death or resignation or other cause, the corporation should have no directors in office, then any officer or any stockholder or an executor, administrator, trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person or estate of a stockholder, may call a special meeting of stockholders in accordance with the provisions of the certificate of incorporation or these bylaws, or may apply to the Court of Chancery for a decree summarily ordering an election as provided in Section 211 of the DGCL.
If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority of the whole board of directors (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least 10% of the voting stock at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office as aforesaid, which election shall be governed by the provisions of Section 211 of the DGCL as far as applicable.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The board of directors may hold meetings, both regular and special, either within or outside the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
3.6 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board of directors.
3.7 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors for any purpose or purposes may be called at any time by the chairperson of the board of directors, the chief executive officer, the president, the secretary or a majority of the authorized number of directors.
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Notice of the time and place of special meetings shall be:
(i) delivered personally by hand, by courier or by telephone;
(ii) sent by United States first-class mail, postage prepaid;
(iii) sent by facsimile; or
(iv) sent by electronic mail,
directed to each director at that director’s address, telephone number, facsimile number or electronic mail address, as the case may be, as shown on the corporation’s records.
If the notice is (i) delivered personally by hand, by courier or by telephone, (ii) sent by facsimile or (iii) sent by electronic mail, it shall be delivered or sent at least 24 hours before the time of the holding of the meeting. If the notice is sent by United States mail, it shall be deposited in the United States mail at least four days before the time of the holding of the meeting. Any oral notice may be communicated to the director. The notice need not specify the place of the meeting (if the meeting is to be held at the corporation’s principal executive office) nor the purpose of the meeting.
3.8 QUORUM; VOTING
At all meetings of the board of directors, a majority of the total authorized number of directors shall constitute a quorum for the transaction of business. If a quorum is not present at any meeting of the board of directors, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting.
The vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as may be otherwise specifically provided by statute, the certificate of incorporation or these bylaws.
If the certificate of incorporation provides that one or more directors shall have more or less than one vote per director on any matter, every reference in these bylaws to a majority or other proportion of the directors shall refer to a majority or other proportion of the votes of the directors.
3.9 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board of directors or committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board of directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
3.10 FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the certificate of incorporation or these bylaws, the board of directors shall have the authority to fix the compensation of directors.
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3.11 REMOVAL OF DIRECTORS
Any director may be removed from office by the stockholders of the corporation only for cause.
No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such director’s term of office.
| ARTICLE IV -COMMITTEES |
4.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution passed by a majority of the authorized number of directors, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors or in these bylaws, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the corporation.
4.2 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of:
(i) Section 3.5 (place of meetings and meetings by telephone);
(ii) Section 3.6 (regular meetings);
(iii) Section 3.7 (special meetings and notice);
(iv) Section 3.8 (quorum; voting);
(v) Section 7.5 (waiver of notice); and
(vi) Section 3.9 (action without a meeting)
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with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the board of directors and its members. However:
(i) the time of regular meetings of committees may be determined either by resolution of the board of directors or by resolution of the committee;
(ii) special meetings of committees may also be called by resolution of the board of directors; and
(iii) notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The board of directors may adopt rules for the governance of any committee not inconsistent with the provisions of these bylaws.
Any provision in the certificate of incorporation providing that one or more directors shall have more or less than one vote per director on any matter shall apply to voting in any committee or subcommittee, unless otherwise provided in the certificate of incorporation or these bylaws.
4.4 SUBCOMMITTEES
Unless otherwise provided in the certificate of incorporation, these bylaws or the resolutions of the board of directors designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.
| ARTICLE V - OFFICERS |
5.1 OFFICERS
The officers of the corporation shall be a president and a secretary. The corporation may also have, at the discretion of the board of directors, a chairperson of the board of directors, a vice chairperson of the board of directors, a chief executive officer, a chief financial officer or treasurer, one or more vice presidents, one or more assistant vice presidents, one or more assistant treasurers, one or more assistant secretaries, and any such other officers as may be appointed in accordance with the provisions of these bylaws. Any number of offices may be held by the same person.
5.2 APPOINTMENT OF OFFICERS
The board of directors shall appoint the officers of the corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws, subject to the rights, if any, of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or empower the chief executive officer or, in the absence of a chief executive officer, the president, to appoint, such other officers and agents as the business of the corporation may require. Each of such officers and agents shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the board of directors may from time to time determine.
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5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by an affirmative vote of the majority of the board of directors at any regular or special meeting of the board of directors or, except in the case of an officer chosen by the board of directors, by any officer upon whom such power of removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice to the corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice. Unless otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.
5.5 VACANCIES IN OFFICES
Any vacancy occurring in any office of the corporation shall be filled by the board of directors or as provided in Section 5.3 hereof.
5.6 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairperson of the board of directors, the president, any vice president, the treasurer, the secretary or assistant secretary of this corporation, or any other person authorized by the board of directors or the president or a vice president, is authorized to vote, represent, and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.
5.7 AUTHORITY AND DUTIES OF OFFICERS
All officers of the corporation shall respectively have such authority and perform such duties in the management of the business of the corporation as may be designated from time to time by the board of directors or the stockholders and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the board of directors.
| ARTICLE VI - STOCK |
6.1 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of the corporation shall be represented by certificates, provided that the board of directors may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Every holder of stock represented by certificates shall be entitled to have a certificate signed by, or in the name of the corporation by the chairperson of the board of directors or vice-chairperson of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. The corporation shall not have power to issue a certificate in bearer form.
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The corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly-paid shares, or upon the books and records of the corporation in the case of uncertificated partly-paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully-paid shares, the corporation shall declare a dividend upon partly-paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.
6.2 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate that the corporation shall issue to represent such class or series of stock; provided, however, that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to this Section 6.2 or Sections 156, 202(a) or 218(a) of the DGCL or with respect to this Section 6.2 a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated stock and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.
6.3 LOST CERTIFICATES
Except as provided in this Section 6.3, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the corporation and cancelled at the same time. The corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
6.4 DIVIDENDS
The board of directors, subject to any restrictions contained in the certificate of incorporation or applicable law, may declare and pay dividends upon the shares of the corporation’s capital stock. Dividends may be paid in cash, in property, or in shares of the corporation’s capital stock, subject to the provisions of the certificate of incorporation.
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The board of directors may set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the corporation, and meeting contingencies.
6.5 TRANSFER OF STOCK
Transfers of record of shares of stock of the corporation shall be made only upon its books by the holders thereof, in person or by an attorney duly authorized, and, if such stock is certificated, upon the surrender of a certificate or certificates for a like number of shares, properly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer.
6.6 STOCK TRANSFER AGREEMENTS
The corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the corporation to restrict the transfer of shares of stock of the corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.
6.7 REGISTERED STOCKHOLDERS
The corporation:
(i) shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner;
(ii) shall be entitled to hold liable for calls and assessments the person registered on its books as the owner of shares; and
(iii) shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
| ARTICLE VII - MANNER OF GIVING NOTICE AND WAIVER |
7.1 NOTICE OF STOCKHOLDERS’ MEETINGS
Notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the corporation’s records. An affidavit of the secretary or an assistant secretary of the corporation or of the transfer agent or other agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
7.2 NOTICE BY ELECTRONIC TRANSMISSION
Without limiting the manner by which notice otherwise may be given effectively to stockholders pursuant to the DGCL, the certificate of incorporation or these bylaws, any notice to stockholders given by the corporation under any provision of the DGCL, the certificate of incorporation or these bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if:
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(i) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent; and
(ii) such inability becomes known to the secretary or an assistant secretary of the corporation or to the transfer agent, or other person responsible for the giving of notice.
However, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
Any notice given pursuant to the preceding paragraph shall be deemed given:
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(i)
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if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;
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(ii)
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if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice;
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(iii)
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if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and
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(iv)
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if by any other form of electronic transmission, when directed to the stockholder.
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An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the corporation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
An “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
Notice by a form of electronic transmission shall not apply to Section 164, 296, 311, 312 or 324 of the DGCL.
7.3 NOTICE TO STOCKHOLDERS SHARING AN ADDRESS
Except as otherwise prohibited under the DGCL, without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the corporation under the provisions of the DGCL, the certificate of incorporation or these bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any stockholder who fails to object in writing to the corporation, within 60 days of having been given written notice by the corporation of its intention to send the single notice, shall be deemed to have consented to receiving such single written notice.
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7.4 NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL
Whenever notice is required to be given, under the DGCL, the certificate of incorporation or these bylaws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the corporation is such as to require the filing of a certificate under the DGCL, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.
7.5 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the DGCL, the certificate of incorporation or these bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the certificate of incorporation or these bylaws.
| ARTICLE VIII - INDEMNIFICATION |
8.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS
Subject to the other provisions of this Article VIII, the corporation shall indemnify, to the fullest extent permitted by the DGCL or any other applicable laws, as now or hereinafter in effect, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director or officer of the corporation, or is or was a director or officer of the corporation serving at 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 attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding if such person acted in good faith and in a manner such 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 no reasonable cause to believe such person’s conduct was unlawful. The termination of any 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 such 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 such person’s conduct was unlawful.
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8.2 INDEMNIFICATION OF DIRECTORS AND OFFICERS IN ACTIONS BY OR IN THE RIGHT OF THE CORPORATION
Subject to the other provisions of this Article VIII, the corporation shall indemnify, to the fullest extent permitted by the DGCL or any other applicable laws, as now or hereinafter in effect, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the corporation, or is or was a director or officer of the corporation serving at 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 attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
8.3 SUCCESSFUL DEFENSE
To the extent that a present or former director or officer of the corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described in Section 8.1 or 8.2 hereof, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
8.4 INDEMNIFICATION OF OTHERS
Subject to the other provisions of this Article VIII, the corporation shall have power to indemnify its employees and agents to the fullest extent not prohibited by the DGCL or any other applicable laws. The board of directors shall have the power to delegate to such person or persons the determination of whether employees or agents shall be indemnified.
8.5 ADVANCED PAYMENT OF EXPENSES
Expenses (including attorneys’ fees) incurred by an officer or director of the corporation in defending any Proceeding shall be paid by the corporation in advance of the final disposition of such Proceeding upon receipt of a written request therefor (together with documentation reasonably evidencing such expenses) and an undertaking by or on behalf of the person to repay such amounts if it shall ultimately be determined that the person is not entitled to be indemnified under this Article VIII or the DGCL. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents of the corporation or by persons serving at the request of the corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the corporation deems appropriate. The right to advancement of expenses shall not apply to any claim for which indemnity is excluded pursuant to these bylaws, but shall apply to any Proceeding referenced in Section 8.6(ii) or 8.6(iii) hereof prior to a determination that the person is not entitled to be indemnified by the corporation.
Notwithstanding the foregoing, unless otherwise determined pursuant to Section 8.8 hereof, no advance shall be made by the corporation to an officer of the corporation (except by reason of the fact that such officer is or was a director of the corporation, in which event this paragraph shall not apply) in any Proceeding if a determination is reasonably and promptly made (i) by a majority vote of the directors who are not parties to such Proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, that facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation.
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8.6 LIMITATION ON INDEMNIFICATION
Subject to the requirements in Section 8.3 hereof and the DGCL, the corporation shall not be obligated to indemnify any person pursuant to this Article VIII in connection with any Proceeding (or any part of any Proceeding):
(i) for which payment has actually been made to or on behalf of such person under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid;
(ii) for an accounting or disgorgement of profits pursuant to Section 16(b) of the 1934 Act, or similar provisions of federal, state or local statutory law or common law, if such person is held liable therefor (including pursuant to any settlement arrangements);
(iii) for any reimbursement of the corporation by such person of any bonus or other incentive-based or equity-based compensation or of any profits realized by such person from the sale of securities of the corporation, as required in each case under the 1934 Act (including any such reimbursements that arise from an accounting restatement of the corporation pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the corporation of profits arising from the purchase and sale by such person of securities in violation of Section 306 of the Sarbanes-Oxley Act), if such person is held liable therefor (including pursuant to any settlement arrangements);
(iv) initiated by such person, including any Proceeding (or any part of any Proceeding) initiated by such person against the corporation or its directors, officers, employees, agents or other indemnitees, unless (a) the board of directors authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation, (b) the corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the corporation under applicable law, (c) otherwise required to be made under Section 8.7 hereof or (d) otherwise required by applicable law; or
(v) if prohibited by applicable law.
8.7 DETERMINATION; CLAIM
If a claim for indemnification or advancement of expenses under this Article VIII is not paid in full within 90 days after receipt by the corporation of the written request therefor, the claimant shall be entitled to an adjudication by a court of competent jurisdiction of his or her entitlement to such indemnification or advancement of expenses. The corporation shall indemnify such person against any and all expenses that are incurred by such person in connection with any action for indemnification or advancement of expenses from the corporation under this Article VIII, to the extent such person is successful in such action, and to the extent not prohibited by law. In any such suit, the corporation shall, to the fullest extent not prohibited by law, have the burden of proving that the claimant is not entitled to the requested indemnification or advancement of expenses.
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8.8 NON-EXCLUSIVITY OF RIGHTS
The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the certificate of incorporation or any statute, bylaw, 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. The corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advancement of expenses, to the fullest extent not prohibited by the DGCL or other applicable law.
8.9 INSURANCE
The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under the provisions of the DGCL.
8.10 SURVIVAL
The rights to indemnification and advancement of expenses conferred by this Article VIII shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
8.11 EFFECT OF REPEAL OR MODIFICATION
A right to indemnification or to advancement of expenses arising under a provision of the certificate of incorporation or a bylaw shall not be eliminated or impaired by an amendment to the certificate of incorporation or these bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
8.12 CERTAIN DEFINITIONS
For purposes of this Article VIII, 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, officers, employees or agents, so that any person who is or was a director, officer, employee 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 corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this Article VIII.
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| ARTICLE IX - GENERAL MATTERS |
9.1 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
Except as otherwise provided by law, the certificate of incorporation or these bylaws, the board of directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute any document or instrument in the name of and on behalf of the corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified by the board of directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.
9.2 FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the board of directors and may be changed by the board of directors.
9.3 SEAL
The corporation may adopt a corporate seal, which shall be adopted and which may be altered by the board of directors. The corporation may use the corporate seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
9.4 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the DGCL shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both a corporation and a natural person.
| ARTICLE X - AMENDMENTS |
These bylaws may be adopted, amended or repealed by the stockholders entitled to vote. However, the corporation may, in its certificate of incorporation, confer the power to adopt, amend or repeal bylaws upon the directors. The fact that such power has been so conferred upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal bylaws.
A bylaw amendment adopted by stockholders which specifies the votes that shall be necessary for the election of directors shall not be further amended or repealed by the board of directors.
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ORGANOVO HOLDINGS, INC.
CERTIFICATE OF BYLAWS
The undersigned hereby certifies that he or she is the duly elected, qualified, and acting Secretary or Assistant Secretary of Organovo Holdings, Inc., a Delaware corporation and that the foregoing bylaws, comprising twenty-two (22) pages, were adopted and ratified by the corporation’s board of directors on January 27, 2012.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand this 27th day of January, 2012.
| /s/ Deborah Lovig | ||
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Deborah Lovig
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| Secretary |
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