Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PASITHEA THERAPEUTICS CORP.
The undersigned, as Chief Executive Officer of Pasithea Therapeutics Corp., a Delaware corporation (the “Company”) organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “General Corporation Law”), does hereby certify that:
1. The name of the Company is Pasithea Therapeutics Corp. The Company was incorporated on May 19, 2020.
2. This Amended and Restated Certificate of Incorporation restates, integrates and amends the certificate of incorporation of the Company, as amended, on file with the Secretary of State of the State of Delaware immediately preceding the filing hereof, was duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law, and was approved by written consent of the stockholders of the Company given in accordance with the provisions of Section 228 of the General Corporation Law.
3. The certificate of incorporation of the Company is hereby amended and restated in its entirety as follows:
[CONTINUED ON NEXT PAGE]
Page 1 of 9
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PASITHEA THERAPEUTICS CORP.
(a Delaware corporation)
ARTICLE I
NAME
The name of this corporation is Pasithea Therapeutics Corp. (hereinafter called the “Company”).
ARTICLE II
REGISTERED OFFICE AND AGENT
The Registered Office of the Company in the State of Delaware is located at 8 The Green STE A, in the City of Dover, County of Kent County, Zip Code 19901. The name of the Registered Agent at such address upon whom process against the Company may be served is A Registered Agent, Inc.
ARTICLE Ill
PURPOSE AND POWERS
The purpose of the Company is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “General Corporation Law”).
ARTICLE IV
CAPITAL STOCK
| A. | Classes of Stock. The total number of shares of all classes of capital stock that the Company is authorized to issue is 500,000,000 shares. The authorized capital stock is divided into: (i) 495,000,000 shares of common stock having a par value of $0.0001 per share (hereinafter, the “Common Stock”) and (ii) 5,000,000 shares of preferred stock having a par value of $0.0001 per share (hereinafter, the “Preferred Stock”). |
Page 2 of 9
Upon the filing and effectiveness of this Amended and Restated Certificate of Incorporation (the “Effective Time”), and without any further action on the part of the Company, any stockholder, or any other person, (i) each one (1) share of the Company’s common stock, par value $0.0001 per share, issued and outstanding, or held as treasury shares, immediately prior to the Effective Time (the “Old Common Stock”), shall be automatically reclassified, combined and converted into one twentieth (1/20) of a validly issued, fully paid and non-assessable share of Common Stock, and (ii) each one (1) share of the Company’s preferred stock, par value $0.0001 per share, issued and outstanding, or held as treasury shares, immediately prior to the Effective Time (the “Old Preferred Stock”), shall be automatically reclassified, combined and converted into one twentieth (1/20) of a validly issued, fully paid and non-assessable share of Preferred Stock (the “Reverse Stock Split”). Any stock certificate that, immediately prior to the Effective Time, represented shares of the Old Common Stock or Old Preferred Stock will, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent the number of shares of the Common Stock or Preferred Stock, as applicable, equaling the product obtained by multiplying the number of shares of Old Common Stock or Old Preferred Stock, as applicable, represented by such certificate immediately prior to the Effective Time by one twentieth (1/20).
No fractional shares shall be issued in connection with the Reverse Stock Split. Stockholders who otherwise would be entitled to receive fractional shares of Common Stock or Preferred Stock shall be entitled to receive cash (without interest or deduction) in lieu of such fractional share interests, in an amount determined by the Board of Directors of the Company to be the fair value of such fractions of a share as of the Effective Time.
| B. | Common Stock. All shares of Common Stock of the Company shall be of one and the same class, shall be identical in all respects and shall have equal rights, powers and privileges. |
| 1. | Except as otherwise provided for by resolution or resolutions of the Board of Directors pursuant to this Article IV with respect to the issuance of any series of Preferred Stock or by the General Corporation Law, the holders of outstanding shares of Common Stock shall have the exclusive right to vote on all matters requiring stockholder action. On each matter on which holders of Common Stock are entitled to vote, each outstanding share of such Common Stock will be entitled to one vote. |
| 2. | Subject to the rights of holders of any series of outstanding Preferred Stock and the terms of such Preferred Stock, holders of shares of Common Stock shall have equal rights of participation in the dividends and other distributions in cash, stock or property of the Company when, as and if declared thereon by the Board of Directors from time to time out of assets or funds of the Company legally available therefor and shall have equal rights to receive the assets and funds of the Company available for distribution to stockholders in the event of any liquidation, dissolution or winding up of the affairs of the Company, whether voluntary or involuntary. |
Page 3 of 9
| C. | Preferred Stock |
| 1. | Shares of Preferred Stock of the Company may be issued from time to time in one or more series, the shares of each series to have such voting powers, full or limited, if any, and such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as are stated and expressed herein or in the resolution or resolutions providing for the issue of such series, adopted by the Board of Directors as hereinafter provided. |
| 2. | Authority is hereby expressly granted to the Board of Directors of the Company, subject to the provisions of this Article IV and to the limitations prescribed by the General Corporation Law, to authorize by resolution or resolutions from time to time the issuance of one or more series of Preferred Stock out of the authorized but unissued shares of Preferred Stock and with respect to each such series to fix, by filing a certificate of designation pursuant to the General Corporation Law setting forth such resolution or resolutions and providing for the issuance of such series, the voting powers, full or limited, if any, of the shares of such series and the designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof. The authority of the Board of Directors with respect to each series shall include, but not be limited to, the determination or fixing of the following: |
| i. | the designation of such series; |
| ii. | the number of shares of such series, which number the Board of Directors may thereafter (except where otherwise provided in the certificate of designation for such series) increase or decrease (but not below the number of shares of such series then outstanding); |
| iii. | the dividend rate, if any, payable to holders of shares of such series, any conditions and dates upon which such dividends shall be payable, the relation which such dividends shall bear to the dividends payable on any other class or classes of stock or any other series of any class of stock of the Company, and whether such dividends shall be cumulative or non-cumulative; |
| iv. | whether the shares of such series shall be subject to redemption by the Company, in whole or in part, at the option of the Company or of the holder thereof, and, if made subject to such redemption, the times, prices, form of payment and other terms and conditions of such redemption; |
| v. | the terms and amount of any sinking fund provided for the purchase or redemption of the shares of such series; |
Page 4 of 9
| vi. | whether or not the shares of such series shall be convertible into or exchangeable for shares of any other class or classes of any stock or any other series of any class of stock of the Company or any other security, and, if provision is made for conversion or exchange, the times, prices, rates, adjustments, and other terms and conditions of such conversion or exchanges; |
| vii. | the extent, if any, to which the holders of shares of such series shall be entitled to vote generally, with respect to the election of directors, upon specified events or otherwise; |
| viii. | the restrictions, if any, on the issue or reissue of any additional Preferred Stock; and |
| ix. | the rights and preferences of the holders of the shares of such series upon any voluntary or involuntary liquidation or dissolution of, or upon the distribution of assets of, the Company. |
| 3. | Without limiting the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be superior to, rank equally with or be junior to any other series of Preferred Stock to the extent permitted by law and the terms of any other series of Preferred Stock. |
ARTICLE V
BOARD OF DIRECTORS
| A. | Power of the Board of Directors. The business and affairs of the Company shall be managed by or under the direction of the Board of Directors. In furtherance, and not in limitation, of the powers conferred by the laws of the State of Delaware, the Board of Directors shall be expressly authorized to: |
| 1. | determine the rights, powers, duties, rules and procedures that affect the power of the Board of Directors to manage and direct the business and affairs of the Company; |
| 2. | establish one or more committees of the Board of Directors, by the affirmative vote of a majority of the entire Board of Directors, to which may be delegated any or all of the powers and duties of the Board of Directors to the fullest extent permitted by law; and |
| 3. | exercise all such powers and do all such acts as may be exercised by the Company, subject to the provisions of the laws of the State of Delaware, this Certificate of Incorporation, and the Bylaws of the Company (as the same may be amended and/or restated from time to time, the “Bylaws”). |
Page 5 of 9
| B. | Number of Directors. The number of directors constituting the entire Board of Directors shall be fixed from time to time exclusively by a vote of a majority of the entire Board of Directors in the manner provided in the Bylaws. As used in this Certificate of Incorporation, the term “entire Board of Directors” means the total authorized number of directors that the Company would have if there were no vacancies. |
| C. | Vacancies. Except as otherwise required by law and subject to the rights of the holders of any class or series of Preferred Stock to elect directors, any vacancies on the Board of Directors for any reason, including from the death, resignation, disqualification or removal of any director, and any newly created directorships resulting by reason of any increase in the number of directors shall be filled exclusively by the Board of Directors, acting by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum, or by a sole remaining director, and shall not be filled by stockholders. Any directors elected to fill a vacancy shall hold office until the next annual meeting of stockholders or until their successors are duly elected and qualified. |
| D. | Removal of Directors. Except as otherwise required by law and subject to the rights of the holders of any class or series of Preferred Stock, any director, or the entire Board of Directors, may be removed from office at any time, with or without cause only by the affirmative vote of the holders of a majority of the voting power of all of the shares of capital stock of the Company then entitled to vote generally in the election of directors, voting as a single class. |
| E. | Appointment of Directors. Elections of directors need not be by written ballot unless the Bylaws of the Company shall so provide. There shall be no cumulative voting in the election of directors. |
ARTICLE VI
LIMITATION OF LIABILITY AND INDEMNIFICATION
| A. | Limitation of Liability of Directors. A Director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a Director to the fullest extent permitted by the General Corporation Law as the same now exists or hereafter may be amended. No repeal or modification of this Article VI shall apply or have any adverse effect on any right or protection of, or any limitation of the liability of, any person entitled to any right or protection under this Article VI existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. |
Page 6 of 9
| B. | Indemnification. Directors, officers, employees and agents of the Company may be indemnified by the Company to the fullest extent as is permitted by the laws of the State of Delaware as it presently exists or may hereafter be amended and as the Bylaws may from time to time provide. |
ARTICLE VII
STOCKHOLDER ACTION
Subject to the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, any action required to be taken at any annual or special meeting of stockholders of the Company or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing setting forth the action so taken, shall have been signed by the holder or holders having not less than the minimum number of votes that would be necessary to take the action that is the subject of the consent at a meeting, in which each owner or holder entitled to vote on the action is present and votes. Delivery made to the Company’s registered office shall be by hand or by certified or registered mail, return receipt requested.
Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of the Company may provide. The books of the Company may be kept at such place within or without the State of Delaware as the Bylaws of the Company may provide or as may be designated from time to time by the Board of Directors of the Company.
ARTICLE VIII
AMENDMENT OF BYLAWS
| A. | Amendment by the Board of Directors. In furtherance, and not in limitation, of the powers conferred upon it by law, the Board of Directors is expressly authorized and empowered to amend, alter, change, adopt or repeal the Bylaws of the Company: provided, however, that no Bylaws hereafter adopted shall invalidate any prior act of the directors that would have been valid if such Bylaws had not been adopted. |
| B. | Amendment by Stockholders. In addition to any requirements of the General Corporation Law (and notwithstanding the fact that a lesser percentage may be specified by the General Corporation Law), unless otherwise specified in the Bylaws, the affirmative vote of the holders of a majority of the voting power of all the shares of capital stock of the Company then entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders of the Company to amend, alter, change or repeal or to adopt any provision of the Bylaws of the Company. |
Page 7 of 9
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Company hereby reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and any other provisions authorized by the General Corporation Law may be added or inserted, in the manner now or hereafter prescribed by the General Corporation Law, and all rights, preferences and privileges of whatsoever nature conferred on stockholders, directors or any other persons whomsoever therein granted are subject to this reservation.
Page 8 of 9
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by its duly authorized officer on this 8th day of April 2021.
| By: | /s/ Dr. Tiago Reis Marques | |
| Name: | Dr. Tiago Reis Marques | |
| Title: | Chief Executive Officer |
Page 9 of 9