SEC Filings

S-1/A
AVEXIS, INC. filed this Form S-1/A on 02/09/2016
Entire Document
 

 

(f)                                   Procedural Requirements for Mandatory Conversion.  All holders of record of shares of Class D Common Stock, Class C Common Stock or Class B Common Stock to be converted pursuant to this Section 4 (the “Converted Shares”) shall be sent written notice of the effective time for automatic conversion of all such Converted Shares pursuant to Section 4(a).  Such notice need not be sent in advance of the occurrence of the effective time of such automatic conversion.  Upon receipt of such notice, each holder of Converted Shares shall surrender his, her or its certificate or certificates for all such shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation at the place designated in such notice.  If so required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its attorney duly authorized in writing.  All rights with respect to the Converted Shares converted pursuant to this Section 4, including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate at such effective time (notwithstanding the failure of the holder or holders thereof to surrender the certificates at or prior to such time), except only the rights of the holders thereof, upon surrender of their certificate or certificates (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Section 4(f).  As soon as practicable after such effective time and the surrender of the certificate or certificates (or lost certificate affidavit and agreement) for Converted Shares, the Corporation shall issue and deliver to each holder, or to his, her or its nominee(s), a certificate or certificates for the number of whole shares of Common Stock issuable on such conversion in accordance with the provisions hereof, together with (i) cash as provided in Section 4(b) in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and (ii) cash representing any declared but unpaid dividends on such Converted Shares.

 

(g)                                  Procedural Requirements for Voluntary Conversion. In order for a holder of Class D Common Stock, Class C Common Stock or Class B Common Stock to voluntarily convert shares of Class D Common Stock, Class C Common Stock or Class B Common Stock into shares of Common Stock, such holder shall surrender the certificate or certificates for such shares of Class D Common Stock, Class C Common Stock or Class B Common Stock (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate), at the office of the transfer agent for the Class D Common Stock, Class C Common Stock or Class B Common Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent), together with written notice that such holder elects to convert all or any number of the shares of the Class D Common Stock, Class C Common Stock or Class B Common Stock represented by such certificate or certificates.  Such notice shall state such holder’s name or the names of the nominees in which such holder wishes the certificate or certificates for shares of Common Stock to be issued.  If required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or his, her or its attorney duly authorized in writing.  The close of business on the date of receipt by the transfer agent (or by the Corporation if the Corporation serves as its own transfer agent) of such certificates (or lost certificate affidavit and agreement) and notice shall be the time of conversion unless a later date is requested by such holder or an earlier date is agreed to by the Corporation and such holder (the close of business on such date, as determined in accordance with this sentence, is referred to as the “Conversion Time”), and the shares of Common Stock issuable upon conversion of the shares

 

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represented by such certificate shall be deemed to be outstanding of record as of the Conversion Time.  The Corporation shall, as soon as practicable after the Conversion Time, issue and deliver to such holder of Class D Common Stock, holder of Class C Common Stock, holder of Class B Common Stock or to his, her or its nominee(s), a certificate or certificates for the number of full shares of Common Stock issuable upon such conversion in accordance with the provisions hereof, a certificate for the number (if any) of the shares of Class D Common Stock, Class C Common Stock or Class B Common Stock represented by the surrendered certificate that were not converted into Common Stock, and (i) cash as provided in Section 4(b) in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and (ii) cash representing any declared but unpaid dividends on such converted shares. All shares of Class D Common Stock, Class C Common Stock or Class B Common Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate at the Conversion Time, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor, plus any cash as provided in the immediately preceding sentence.

 

FIFTH:  The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation and for defining and regulating the powers of the Corporation and its directors and stockholders and are in furtherance and not in limitation of the powers conferred upon the Corporation by statute:

 

A.                                    Subject to any additional vote required by the Certificate of Incorporation, the number of directors of the Corporation shall be determined in the manner set forth in the Bylaws of the Corporation.

 

B.                                    All of the power of the Corporation, insofar as it may be lawfully vested by this Certificate of Incorporation in the Board of Directors, is hereby conferred upon the Board of Directors of the Corporation except as expressly limited by this Certificate of Incorporation.

 

C.                                    The election of directors need not be by written ballot.

 

D.                                    Subject to any additional vote required by the Certificate of Incorporation, the Board of Directors shall have the power and authority to adopt, amend or repeal Bylaws of the Corporation, subject only to such limitation, if any, as may be from time to time imposed by law or by the Bylaws of the Corporation.

 

E.                                     Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of the Corporation may provide.  The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.

 

SIXTH:  No director of the Corporation shall be personally liable to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability; provided, however, that to the extent required from time to time by applicable law, this Article Sixth shall not eliminate or limit the liability of a director, to the extent such liability is provided by applicable law, (A) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (B) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (C) under Section 174 of Title 8 of the Delaware Code, or (D) for any transaction from which the director derived an improper personal benefit.  No amendment to or repeal of this Article Sixth shall apply to or have any effect on the liability or alleged

 

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