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Everspin Technologies Inc – IPO: ‘S-1’ on 9/9/16 – ‘EX-3.4’

On:  Friday, 9/9/16, at 4:21pm ET   ·   Private-to-Public:  Document/Exhibit  –  Release Delayed   ·   Accession #:  1193125-16-706479   ·   File #:  333-213569

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 9/09/16  Everspin Technologies Inc         S-1¶                  34:11M                                    Donnelley … Solutions/FA

Initial Public Offering (IPO):  Registration Statement (General Form)   —   Form S-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-1         Registration Statement (General Form)               HTML   1.33M 
34: CORRESP   ¶ Comment-Response or Other Letter to the SEC         HTML     16K 
 2: EX-1.1      Underwriting Agreement                              HTML    160K 
 3: EX-3.1      Articles of Incorporation/Organization or By-Laws   HTML     97K 
 4: EX-3.2      Articles of Incorporation/Organization or By-Laws   HTML     14K 
 5: EX-3.3      Articles of Incorporation/Organization or By-Laws   HTML     14K 
 6: EX-3.4      Articles of Incorporation/Organization or By-Laws   HTML     30K 
 7: EX-3.5      Articles of Incorporation/Organization or By-Laws   HTML    146K 
 8: EX-3.6      Articles of Incorporation/Organization or By-Laws   HTML    120K 
 9: EX-4.1      Instrument Defining the Rights of Security Holders  HTML     30K 
10: EX-4.2      Instrument Defining the Rights of Security Holders  HTML    173K 
11: EX-10.1     Material Contract                                   HTML     89K 
20: EX-10.10    Material Contract                                   HTML    167K 
21: EX-10.11    Material Contract                                   HTML     18K 
22: EX-10.12    Material Contract                                   HTML     18K 
23: EX-10.13    Material Contract                                   HTML     43K 
24: EX-10.14    Material Contract                                   HTML     43K 
25: EX-10.15    Material Contract                                   HTML     43K 
26: EX-10.16    Material Contract                                   HTML    112K 
27: EX-10.17    Material Contract                                   HTML    256K 
28: EX-10.18    Material Contract                                   HTML    194K 
29: EX-10.19    Material Contract                                   HTML     25K 
12: EX-10.2     Material Contract                                   HTML    162K 
30: EX-10.20    Material Contract                                   HTML     85K 
31: EX-10.21    Material Contract                                   HTML     65K 
32: EX-10.22    Material Contract                                   HTML    101K 
13: EX-10.3     Material Contract                                   HTML    174K 
14: EX-10.4     Material Contract                                   HTML     62K 
15: EX-10.5     Material Contract                                   HTML   1.19M 
16: EX-10.6     Material Contract                                   HTML     24K 
17: EX-10.7     Material Contract                                   HTML     51K 
18: EX-10.8     Material Contract                                   HTML    138K 
19: EX-10.9     Material Contract                                   HTML     35K 
33: EX-23.1     Consent of Experts or Counsel                       HTML     10K 


‘EX-3.4’   —   Articles of Incorporation/Organization or By-Laws


This Exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]



  EX-3.4  

Exhibit 3.4

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

EVERSPIN TECHNOLOGIES, INC.

Phillip LoPresti hereby certifies that:

ONE: The name of this company is Everspin Technologies, Inc. and the date of filing the original Certificate of Incorporation of this company with the Secretary of State of the State of Delaware was May 16, 2008 under the name Everspin Technologies, Inc.

TWO: He is the duly elected and acting Chief Executive Officer of Everspin Technologies, Inc. a Delaware corporation.

THREE: The Amended and Restated Certificate of Incorporation of this company is hereby amended and restated in its entirety to read as follows:

I.

The name of this corporation is Everspin Technologies, Inc., (the “Company”).

II.

The address of the registered office of the Company in the State of Delaware is 160 Greentree Drive, Suite 101, City of Dover, County of Kent, Zip Code 19904 and the name of the registered agent of this Company is National Registered Agents, Inc.

III.

The purpose of the Company is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law (“DGCL”).

IV.

A. The Company is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and Preferred Stock.” The total number of shares which the Company is authorized to issue is 105,000,000 shares. 100,000,000 shares shall be Common Stock, each having a par value of $0.0001. 5,000,000 shares shall be Preferred Stock, each having a par value of $0.0001.

B. The Preferred Stock may be issued from time to time in one or more series. The Board of Directors of the Company is hereby expressly authorized to provide for the issue of all or any of the shares of the Preferred Stock in one or more series, and to fix the number of shares and to determine or alter for each such series, such voting powers, full or limited, or no voting powers, and such designation, preferences, and relative, participating, optional, or other rights and such qualifications, limitations, or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such shares and as may be permitted by the DGCL. The Board of Directors is also expressly authorized to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be decreased in accordance with the foregoing sentence, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series.

 

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C. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the outstanding shares of stock of the Company entitled to vote thereon, without a separate vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the terms of any Certificate of Designation filed with respect to any series of Preferred Stock.

V.

For the management of the business and for the conduct of the affairs of the Company, and in further definition, limitation and regulation of the powers of the Company, of its directors and of its stockholders or any class thereof, as the case may be, it is further provided that:

A. BOARD OF DIRECTORS

1. Generally. The management of the business and the conduct of the affairs of the Company shall be vested in its Board of Directors. The number of directors which shall constitute the Board of Directors shall be fixed exclusively by resolutions adopted by a majority of the authorized number of directors constituting the Board of Directors.

2. Election.

a. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, directors shall be elected at each annual meeting of stockholders for a term of one year. Each director shall serve until his successor is duly elected and qualified or until his earlier death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

b. No stockholder entitled to vote at an election for directors may cumulate votes to which such stockholder is entitled unless required by applicable law at the time of such election. During such time or times that applicable law requires cumulative voting, every stockholder entitled to vote at an election for directors may cumulate such stockholder’s votes and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which such stockholder’s shares are otherwise entitled, or distribute the stockholder’s votes on the same principle among as many candidates as such stockholder thinks fit. No stockholder, however, shall be entitled to so cumulate such stockholder’s votes unless (i) the names of such candidate or candidates have been placed in nomination prior to the voting and (ii) the stockholder has given notice at the meeting, prior to the voting, of such stockholder’s intention to cumulate such stockholder’s votes. If any stockholder has given proper notice to cumulate votes, all stockholders may cumulate their votes for any candidates who have been properly placed in nomination. Under cumulative voting, the candidates receiving the highest number of votes, up to the number of directors to be elected, are elected.

c. The directors of the Company need not be elected by written ballot unless the Bylaws so provide.

3. Removal of Directors. Subject to any limitations imposed by applicable law, the Board of Directors or any individual director may be removed from office at any time (a) with cause by the affirmative vote of the holders of a majority of the voting power of all the then-outstanding shares

 

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of capital stock of the corporation, entitled to vote generally at an election of directors or (b) without cause by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of all the then-outstanding shares of the capital stock of the corporation entitled to vote generally at an election of directors.

4. Vacancies. Subject to any limitations imposed by applicable law and subject to the rights of the holders of any series of Preferred Stock, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors, shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders and except as otherwise provided by applicable law, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors, and not by the stockholders. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor shall have been elected and qualified.

B. STOCKHOLDER ACTIONS.

No action shall be taken by the stockholders of the Company except at an annual or special meeting of stockholders called in accordance with the Bylaws, and no action shall be taken by the stockholders by written consent or electronic transmission. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Company shall be given in the manner provided in the Bylaws of the Company.

C. BYLAWS.

The Board of Directors is expressly empowered to adopt, amend or repeal the Bylaws of the Company. Any adoption, amendment or repeal of the Bylaws of the Company by the Board of Directors shall require the approval of a majority of the authorized number of directors. The stockholders shall also have power to adopt, amend or repeal the Bylaws of the Company; provided, however, that, in addition to any vote of the holders of any class or series of stock of the Company required by law or by this Amended and Restated Certificate of Incorporation, such action by stockholders shall require the affirmative vote of the holders of at least 66 2/3% of the voting power of all of the then-outstanding shares of the capital stock of the Company entitled to vote generally in the election of directors, voting together as a single class.

VI.

A. The liability of the directors of the Company for monetary damages shall be eliminated to the fullest extent under applicable law.

B. To the fullest extent permitted by applicable law, the Company is authorized to provide indemnification of (and advancement of expenses to) directors, officers, employees and other agents of the Company (and any other persons to which applicable law permits the Company to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise in excess of the indemnification and advancement otherwise permitted by such applicable law. If applicable law is amended after approval by the stockholders of this Article VI to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director to the Company shall be eliminated or limited to the fullest extent permitted by applicable law as so amended.

 

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C. Any repeal or modification of this Article VI shall only be prospective and shall not affect the rights or protections or increase the liability of any director under this Article VI in effect at the time of the alleged occurrence of any action or omission to act giving rise to liability or indemnification.

D. The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company; (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company’s stockholders; (iii) any action asserting a claim against the Company arising pursuant to any provision of the DGCL, the Amended and Restated Certificate of Incorporation or the Bylaws of the Company; or (iv) any action asserting a claim against the Company governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Company shall be deemed to have notice of and to have consented to the provisions of this Section VI.D.

VII.

A. The Company reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, except as provided in paragraph B. of this Article VIII, and all rights conferred upon the stockholders herein are granted subject to this reservation.

B. Notwithstanding any other provisions of this Amended and Restated Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the Company required by law or by this Amended and Restated Certificate of Incorporation or any certificate of designation filed with respect to a series of Preferred Stock, the affirmative vote of the holders of at least 66 2/3% of the voting power of all of the then-outstanding shares of capital stock of the Company entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend or repeal Articles V, VI, and VII.

* * * *

FOUR: This Amended and Restated Certificate of Incorporation has been duly approved by the Board of Directors of this Company.

FIVE: This Amended and Restated Certificate of Incorporation was approved by the holders of the requisite number of shares of this Company in accordance with Section 228 of the DGCL. This Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Sections 242 and 245 of the DGCL by the stockholders of this Company.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, Everspin Technologies, Inc. has caused this Amended and Restated Certificate of Incorporation to be signed by its Chief Executive Officer this [    ] day of [            ], 2016.

 

 

Phillip LoPresti
Chief Executive Officer

 

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘S-1’ Filing    Date    Other Filings
Filed on:9/9/16DRS,  DRS/A
5/16/08
 List all Filings 


13 Subsequent Filings that Reference this Filing

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 2/29/24  Everspin Technologies Inc.        10-K       12/31/23   80:8.7M                                   Toppan Merrill Bridge/FA
 2/29/24  Everspin Technologies Inc.        S-8         2/29/24    4:105K                                   Toppan Merrill/FA
 3/02/23  Everspin Technologies Inc.        10-K       12/31/22   79:8.8M                                   Toppan Merrill Bridge/FA
 3/02/23  Everspin Technologies Inc.        S-8         3/02/23    4:92K                                    Toppan Merrill/FA
 3/09/22  Everspin Technologies Inc.        10-K       12/31/21   78:8.9M                                   Toppan Merrill Bridge/FA
 3/09/22  Everspin Technologies Inc.        S-8         3/09/22    4:90K                                    Toppan Merrill/FA
 8/13/21  Everspin Technologies Inc.        S-8         8/13/21    3:124K                                   Toppan Merrill Bridge/FA
 3/04/21  Everspin Technologies Inc.        10-K       12/31/20   84:9M                                     Toppan Merrill Bridge/FA
 3/04/21  Everspin Technologies Inc.        S-8         3/04/21    3:87K                                    Toppan Merrill/FA
11/06/20  Everspin Technologies Inc.        S-3        11/05/20    7:1.5M                                   Toppan Merrill/FA
 8/06/20  Everspin Technologies Inc.        10-Q        6/30/20   67:7.1M                                   Toppan Merrill Bridge/FA
10/03/16  SEC                               UPLOAD9/23/17    1:41K  Everspin Technologies Inc.
 9/22/16  SEC                               UPLOAD9/23/17    1:159K Everspin Technologies Inc.
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Filing Submission 0001193125-16-706479   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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