Registration No. 333-_______
As filed with the United States Securities
and Exchange Commission on June 22, 2015
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
__________________
CAPSTONE
THERAPEUTICS CORP.
(Exact name of registrant as specified in
its charter)
| Delaware |
86-0585310 |
|
(State or other jurisdiction of
incorporation or organization)
|
(I.R.S. Employer
Identification No.)
|
|
1275 W. Washington Street, Suite
104,
Tempe, Arizona
(Address of
Principal Executive Offices) |
85281
(Zip Code) |
__________________
CAPSTONE
THERAPEUTICS CORP.
2015
EQUITY Incentive COMPENSATION plan
(Full title of the
plan)
___________________
|
JOHN
M. HOLLIMAN, III
Executive Chairman
Capstone Therapeutics Corp.
1275 W. Washington Street, Suite
104
Tempe, Arizona 85281 |
Copy to:
STEVEN
P. EMERICK
Quarles & Brady LLP
One Renaissance Square
Two North Central Avenue
Phoenix, Arizona 85004 |
|
(Name and address of agent for service)
(602) 286-5520 |
(Telephone number, including area code,
of agent for service)
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
(Check one):
| Large accelerated filer [_] |
|
Accelerated filer [_] |
| |
|
|
| Non-accelerated filer [_] |
|
Smaller reporting company [X] |
| (Do not check if a smaller reporting company) |
|
|
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered |
Amount
to be Registered (2) (3) |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
Common Stock,
$0.0005 par value per share (1) (3) |
1,000,000 shares |
$
.225 (4) |
$225,000 (4) |
$26.15 (4) |
| (1) | | The securities to be registered include options to acquire Common Stock. |
| (2) | | This Registration Statement covers the 1,000,000 shares available for grant under
the Capstone Therapeutics Corp. 2015 Equity Incentive Plan (the “2015 Plan”) authorized by stockholders at the 2015
Annual Meeting of Stockholders. This Registration Statement shall also cover any additional shares of Common Stock which become
issuable under the 2015 Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected
without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of
the Registrant’s Common Stock. |
| (3) | | Pursuant to the Tax Benefit Preservation Plan (“Benefit Plan”), dated
as of June 24, 2014, between the Company and Computershare Inc., each share of common stock has an attached right that entitles
the registered holder to purchase from the Company one one-hundredth of a share of Series A Preferred Stock, par value $0.0005
per share (the “Preferred Shares”), of the Company at an exercise price of $5.00 per one-hundredth of a Preferred
Share, subject to adjustment, on the terms set forth in the Benefit Plan. At June 19, 2015, the rights are not exercisable and
trade only with shares of the Company’s common stock. |
| (4) | | Pursuant to Rule
457(h), estimated solely for the purpose of computing the registration fee, based upon $.225 as the average of the high and low sales
prices of the Registrant’s Common Stock on the OTCQB on June 19, 2015, for the 1,000,000 shares issuable under the 2015
Plan. |
PART I
Information specified in Part I of
Form S-8 (Items 1 and 2) will be sent or given to 2015 Plan participants as specified by Rule 428(b)(1) under the Securities Act
of 1933, as amended.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents
filed with the Commission by Capstone Therapeutics Corp. (the “Registrant”) (Commission File No. 000-21214) pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, are incorporated herein by reference:
| (a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014,
filed with the Commission on March 16, 2015; |
| (b) | The Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2014; |
| (c) | The Registrant’s Current Report on Form 8-K dated March 26, 2015; and |
| (d) | The description of the Registrant’s Common Stock in the Third Amendment to its Registration
Statement on Form 8-A/A filed with the Commission on June 9, 2011, and any amendment or report updating that description. |
All documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing
of such documents.
Any statement contained
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part hereof.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and
Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Company is incorporated under the laws
of the State of Delaware. Section 102(b)(7) of the Delaware General Corporation Law (“DGCL”) allows a corporation
to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty
of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment
of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The
Company’s amended and restated certificate of incorporation provides for this limitation of liability.
Section 145 of the DGCL (“Section
145”) provides that a Delaware corporation may indemnify any person who was, is or is threatened to be made, party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee
or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent
of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s
best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct
was illegal. A Delaware corporation may indemnify any persons who are, were or are threatened to be made, party to any threatened,
pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director,
officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided
such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best
interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent
is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense
of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually
and reasonably incurred.
Section 145 further authorizes a corporation
to 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 or enterprise,
against any liability asserted against him and incurred by him in any such capacity, or arising out of his or her status as such,
whether or not the corporation would otherwise have the power to indemnify him under Section 145.
The Registrant’s
directors and officers are also covered by insurance policies indemnifying them (subject to certain limits and exclusions) against
certain liabilities, including certain liabilities arising under the Securities Act of 1933, as amended, which might be incurred
by them in such capacities and against which they cannot be indemnified by the Registrant.
The indemnification
rights set forth above are not exclusive of any other right which an indemnified person may have or hereafter acquire under any
statute, the Company’s certificate of incorporation or bylaws, agreement, vote of stockholders or disinterested directors
or otherwise.
Item 7. Exemption from Registration
Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index following the Signatures
page in this Registration Statement, which Exhibit Index is incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned
Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such information in the Registration Statement; |
Provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
. . .
(b) The undersigned
Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the
Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
. . .
(h) Reference is
made to the indemnification provisions described in Item 6 of this Registration Statement.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
* * *
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Tempe, state of Arizona, on June 22, 2015.
Capstone Therapeutics Corp.
(Registrant)
By: /s/ John M. Holliman, III
John M. Holliman, III
Executive Chairman
__________________
POWER OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John M. Holliman, III
and Les M. Taeger as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution,
for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and any other regulatory authority, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
____________________
Pursuant to the requirements of
the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date
indicated.*
| Name |
Capacity |
|
/s/ John M. Holliman, III
John M. Holliman, III
|
Executive Chairman, and Director (principal executive officer)
|
|
/s/ Les M. Taeger
Les M. Taeger
|
Senior Vice President and Chief Financial Officer (principal
financial and accounting officer)
|
|
/s/ Eric W. Fangmann
Eric W. Fangmann
|
Director
|
|
/s/ Fredric J. Feldman
Elwood D. Howse, Jr.
|
Director
|
|
/s/ Elwood D. Howse, Jr.
Elwood D. Howse, Jr. |
Director
|
*Each of these signatures is affixed
as of June 22, 2015.
Capstone Therapeutics Corp.
(the “Registrant”)
(Commission File No. 000-21214)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
| Exhibit Number |
|
Description |
|
Incorporated Herein by Reference
To |
|
Filed
Herewith |
| |
|
|
|
|
|
|
| 4.1 |
|
Second Amended and Restated Certificate of Incorporation. |
|
Appendix B to Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on May 8, 2015. |
|
|
| |
|
|
|
|
|
|
| 4.2 |
|
Bylaws of the Registrant. |
|
|
|
X |
| |
|
|
|
|
|
|
| 4.3 |
|
Capstone Therapeutics Corp. 2015 Equity Incentive Compensation Plan |
|
Appendix A to Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on May 8, 2015. |
|
|
| |
|
|
|
|
|
|
| 5 |
|
Opinion of Quarles & Brady LLP |
|
|
|
X |
| |
|
|
|
|
|
|
| 23.1 |
|
Consent of Moss Adams LLP |
|
|
|
X |
| |
|
|
|
|
|
|
| 23.2 |
|
Consent of Quarles & Brady LLP |
|
|
|
Contained in Opinion filed as Exhibit 5 |
| |
|
|
|
|
|
|
| 24 |
|
Powers of Attorney |
|
|
|
Contained in Signatures page to this Registration Statement |
E-1
Exhibit 4.2
BYLAWS OF
ORTHOLOGIC CORP.
(As adopted January 22, 1993)
ARTICLE
I
OFFICES
SECTION
1. Registered Office.
The registered office
of the Corporation in the State of Delaware shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION
2. Other Offices.
The Corporation also
may have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE
II
STOCKHOLDERS
SECTION
1. Stockholder Meetings.
(a)
Time and Place of Meetings. Meetings of the stockholders shall be held at such times and places, either within
or without the State of Delaware, as may from time to time be fixed by the Board of Directors and stated in the notices or waivers
of notice of such meetings.
(b)
Annual Meeting. The annual meeting of the stockholders shall be held during the third week of the month of
May in each year as designated by the Board of Directors, or at such other date as may be designated by the Board of Directors,
for the election of directors and the transaction of such other business properly brought before such annual meeting of the stockholders
and within the powers of the stockholders.
(c)
Meetings. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called
at any time only by the President, or the Board of Directors pursuant to a resolution approved by a majority of the whole Board
of Directors, or at the request in writing of shareholders owning at least 35% of the capital stock issued and outstanding and
entitled to vote. Business transacted at any special meeting of the stockholders shall be limited to the purposes stated in the
notice of such meeting.
(d)
Notice of Meetings. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws,
written notice of each meeting of the stockholders shall be given not less than ten days nor more than sixty days before the date
of such meeting to each stockholder entitled to vote thereat, directed to such stockholder's address as it appears upon the books
of the Corporation, such notice to specify the place, date, hour and purpose or purposes of such meeting. If mailed, such notice
shall be deemed to be given when deposited in the United States mail, postage prepaid, addressed to the stockholder at his address
as it appears on the stock ledger of the Corporation. When a meeting of the stockholders is adjourned to another time and/or place,
notice need not be given of such adjourned meeting if the time and place thereof are announced at the meeting of the stockholders
at which the adjournment is taken, unless the adjournment is for more than thirty days or unless after the adjournment a new record
date is fixed for such adjourned meeting, in which event a notice of such adjourned meeting shall be given to each stockholder
of record entitled to vote thereat. Notice of the time, place and purpose of any meeting of the stockholders may be waived in writing
either before or after such meeting and will be waived by any stockholder by such stockholder's attendance thereat in person or
by proxy. Any stockholder so waiving notice of such a meeting shall be bound by the proceedings of any such meeting in all respects
as if due notice thereof had been given.
(e)
Quorum. Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, the holders
of not less than a majority of the shares entitled to vote at any meeting of the stockholders, present in person or by proxy, shall
constitute a quorum and the affirmative vote of the majority of such quorum shall be deemed the act of the stockholders. If a quorum
shall fail to attend any meeting of the stockholders, the presiding officer of such meeting may adjourn such meeting from time
to time to another place, date or time, without notice other than announcement at such 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 of the stockholders as originally noticed. The foregoing notwithstanding, if a notice of any adjourned special meeting
of the stockholders is sent to all stockholders entitled to vote thereat which states that such adjourned special meeting will
be held with those present in person or by proxy constituting a quorum, then, except as otherwise required by law, those present
at such adjourned special meeting of the stockholders shall constitute a quorum and all matters shall be determined by a majority
of the votes cast at such special meeting.
SECTION
2. Determination of Stockholders Entitled to Notice
and to Vote.
To determine the stockholders
entitled to notice of any meeting of the stockholders or to vote thereat, the Board of Directors may fix in advance a record date
as provided in Article VII, Section 1 of these Bylaws, or if no record date is fixed by the Board of Directors, a record date shall
be determined as provided by law.
SECTION
3. Voting.
(a)
Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, each stockholder present in
person or by proxy at a meeting of the stockholders shall be entitled to one vote for each full share of stock registered in the
name of such stockholder at the time fixed by the Board of Directors or by law at the record date of the determination of stockholders
entitled to vote at such meeting.
(b)
Every stockholder entitled to vote at a meeting of the stockholders may do so either (i) in person or (ii) by one
or more agents authorized by a written proxy executed by the person or such stockholder's duly authorized agent, whether by manual
signature, typewriting, telegraphic transmission or otherwise as permitted by law. No proxy shall be voted on after three years
from its date, unless the proxy provides for a longer period.
(c)
Voting may be by voice or by ballot as the presiding officer of the meeting of the stockholders shall determine.
On a vote by ballot, each ballot shall be signed by the stockholder voting, or by such stockholder's proxy, and shall state the
number of shares voted.
(d)
In advance of or at any meeting of the stockholders, the Chairman of the Board or President may appoint one or more
persons as inspectors of election (the "Inspectors") to act at such meeting. Such Inspectors shall take charge of the
ballots at such meeting. After the balloting on any question, the Inspectors shall count the ballots cast and make a written report
to the secretary of such meeting of the results. Subject to the direction of the chairman of the meeting, the duties of such Inspectors
may further include without limitation: determining the number of shares outstanding and the voting power of each; the shares represented
at the meeting; the existence of a quorum; the authenticity, validity, and effect of proxies; receiving votes, ballots, or consents;
hearing and determining all challenges and questions in any way arising in connection with the right to vote; counting and tabulating
all votes of consents and determining when the polls shall close; determining the result; and doing such acts as may be proper
to conduct the election or vote with fairness to all stockholders. An Inspector need not be a stockholder of the Corporation and
any officer of the Corporation may be an Inspector on any question other than a vote for or against such officer's election to
any position with the Corporation or on any other questions in which such officer may be directly interested. If there are three
or more Inspectors, the determination, report or certificate of a majority of such Inspectors shall be effective as if unanimously
made by all Inspectors.
SECTION
4. List of Stockholders.
The officer who has
charge of the stock ledger of the Corporation shall prepare and make available, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, showing the address of and the number
of shares registered in the name of each such stockholder. Such list shall be open to the examination of any stockholder, for any
purpose germane to such meeting, either at a place within the city where such meeting is to be held and which place shall be specified
in the notice of such meeting, or, if not so specified, at the place where such meeting is to be held. The list also shall be produced
and kept at the time and place of the meeting of the stockholders during the whole time thereof, and may be inspected by any stockholder
who is present.
SECTION
5. Action by Consent of Stockholders.
Any action required
or permitted to be taken by the stockholders must be effected at a duly called annual or special meeting of such stockholders and
may not be effected by any consent in writing by such stockholders.
SECTION
6. Conduct of Meetings.
The chairman of the
meeting shall have full and complete authority to determine the agenda, to set the procedures and order the conduct of meetings,
all as deemed appropriate by such person in his sole discretion with due regard to the orderly conduct of business.
SECTION
7. Notice of Agenda Matters.
If a stockholder wishes
to present to the Chairman of the Board or the President an item for consideration as an agenda item for a meeting of stockholders,
he must give timely notice to the Secretary of the Corporation and give a brief description of the business desired to be brought
before the meeting. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive
offices of the Corporation, not less than sixty days nor more than ninety days prior to the meeting; provided, however, that in
the event that less than seventy days' notice or prior public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the close of business on the fifteenth day following
the date on which such notice of the date of the meeting was mailed or such public disclosure was made and provided further that
any other time period necessary to comply with federal proxy solicitation rules or other regulations shall be deemed to be timely.
ARTICLE
III
BOARD OF DIRECTORS
SECTION
1. General Powers.
Unless otherwise restricted
by law, the Certificate of Incorporation or these Bylaws as to action which shall be authorized or approved by the stockholders,
and subject to the duties of directors as prescribed by these Bylaws, all corporate powers shall be exercised by or under the authority
of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors.
SECTION
2. Election of Directors.
(a)
Number, Qualification and Term of Office. The authorized number of directors of the Corporation shall be fixed
from time to time by the Board of Directors, but shall not be less than three nor more than nine. The number of directors shall
be six upon the initial effective date of these Bylaws, and the exact number of directors thereafter shall be determined from time
to time by a resolution duly adopted by a majority of the whole Board of Directors. Directors need not be stockholders.
(b)
Resignation. Any director may resign from the Board of Directors at any time by giving written notice to the
Secretary of the Corporation. Any such resignation shall take effect at the time specified therein, or if the time when such resignation
shall become effective shall not be so specified, then such resignation shall take effect immediately upon its .receipt by the
Secretary; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
(c)
Nomination of Directors. Candidates for director of the Corporation shall be nominated only either by:
(i)
the Board of Directors or a committee appointed by the Board of Directors, or
(ii)
nomination at any stockholders' meeting by or on behalf of any stockholder entitled to vote thereat; provided, that
written notice of such stockholder's intent to make such nomination or nominations shall have been given, either by personal delivery
or by United States certified mail, postage prepaid, to the Secretary of the Corporation not later than (l) with respect to an
election to be held at an annual meeting of the stockholders, twenty days in advance of such annual meeting, and (2) with respect
to an election to be held at a special meeting of the stockholders for the election of directors, the close of business on the
fifteenth day following the date on which notice of such special meeting is first given to the stockholders entitled to vote thereat.
Each such notice by a stockholder shall set forth: (l) the name and address of the (A) stockholder who intends to make the nomination
and (B) person or persons to be nominated; (2) a representation that the stockholder is a holder of record of stock of the Corporation
entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (3) 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 nomination or nominations are to be made by the stockholder; (4)
such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy or information
statement filed with the Securities and Exchange Commission pursuant to the proxy rules promulgated under the Securities Exchange
Act of 1934, as amended, or any successor statute thereto, had the nominee been nominated, or intended to be nominated, by the
Board of Directors; and (5) the manually signed consent of each nominee to serve as a director of the Corporation if so elected.
The presiding officer of the meeting of the stockholders may refuse to acknowledge the nominee of any person not made in compliance
with the foregoing procedure.
(d)
Preferred Stock Provisions. Notwithstanding the foregoing, whenever the holders of any one or more classes
or series of stock issued by the Corporation having a preference over the Common Stock as to dividends or upon liquidation shall
have the right, voting separately by class or series, to elect directors at an annual or special meeting of the stockholders, the
election, term of office, filling of vacancies, nomination, terms of removal and other features of such directorships shall be
governed by the terms of Article Five of the Certificate of Incorporation and the resolution or resolutions establishing such class
or series adopted pursuant thereto.
SECTION
3. Meetings of the Board of Directors.
(a)
Regular Meetings. Regular meetings of the Board of Directors shall be held without call at the following times:
(i) at such times as the Board of Directors shall from time to time by resolution determine; and
(ii) one-half hour prior to any special meeting of the stockholders and immediately following the adjournment of any annual
or special meeting of the stockholders.
Notice of all such
regular meetings hereby is dispensed with.
(b)
Special Meetings. Special meetings of the Board of Directors may be called by the Chairman, the President,
or the Board of Directors pursuant to a resolution approved by a majority of the whole Board of Directors. Notice of the time and
place of special meetings of the Board of Directors shall be given by the Secretary or an Assistant Secretary of the Corporation,
or by any other officer authorized by the Board of Directors. Such notice shall be given to each director personally or by mail,
messenger, telephone or telegraph at such director's business or residence address. Notice by mail shall be deposited in the United
States mail, postage prepaid, not later than the fifth day prior to the date fixed for such special meeting. Notice by telephone
or telegraph shall be sent, and notice given personally or by messenger shall be delivered, at least twenty-four hours prior to
the time set for such special meeting. Notice of a special meeting of the Board of Directors need not contain a statement of the
purpose of such special meeting.
(c)
Adjourned Meetings. A majority of directors present at any regular or special meeting of the Board of Directors
or any committee thereof, whether or not constituting a quorum, may adjourn any meeting from time to time until a quorum is present
or otherwise. Notice of the time and place of holding any adjourned meeting shall not be required if the time and place are fixed
at the meeting adjourned.
(d)
Place of Meetings. Unless a resolution of the Board of Directors or the written consent of all members of
the Board of Directors given either before or after the meeting and filed with the Secretary of the Corporation designates a different
place within or without the State of Delaware, meetings of the Board of Directors, both regular and special, shall be held at the
Corporation's principal executive offices.
(e)
Participation by Telephone. Members of the Board of Directors or any committee may participate in any meeting
of the Board of Directors or committee through the use of conference telephone or similar communications equipment, so long as
all members participating in such meeting can hear one another, and such participation shall constitute presence in person at such
meeting.
(f)
Quorum. At all meetings of the Board of Directors or any committee thereof, a majority of the total number
of directors of the entire then authorized Board of Directors or such committee shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any such meeting at which there is a quorum shall be the act of
the Board of Directors or any committee, except as may be otherwise specifically provided by law, the Certificate of Incorporation
or these Bylaws. A meeting of the Board of Directors or any committee at which a quorum initially is present may continue to transact
business notwithstanding the withdrawal of directors so long as any action is approved by at least a majority of the required quorum
for such meeting.
(g)
Waiver of Notice. The transactions of any meeting of the Board of Directors or any committee, however called
and noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum
be present and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, or a
consent to hold such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of the meeting.
SECTION
5. Action Without Meeting.
Any action required
or permitted to be taken by the Board of Directors at any meeting or at any meeting of a committee may be taken without a meeting
if all members of the Board of Directors or such committee consent in writing and the writing or writings are filed with the minutes
of the proceedings of the Board of Directors or such committee.
SECTION
6. Compensation of Directors.
Unless otherwise restricted
by law, the Certificate of Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the compensation
of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may
be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees
of the Board of Directors may be allowed like compensation for attending committee meetings.
SECTION
7. Committees of the Board.
(a)
Committees. The Board of Directors may, by resolution adopted by a majority of the Board of Directors, designate
one or more committees of the Board of Directors, each committee to consist of one or more directors. Each such committee, to the
extent permitted by law, the Certificate of Incorporation and these Bylaws, shall have and may exercise such of the powers of the
Board of Directors in the management and affairs of the Corporation as may be prescribed by the resolutions creating such committee.
Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the
Board of Directors. 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 he or they 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. The Board of Directors shall have the power, at any time for any reason, to change the members of any such committee, to
fill vacancies, and to discontinue any such committee.
(b)
Minutes of Meetings. Each committee shall keep regular minutes of its meetings and report the same to the
Board of Directors when required.
(c)
Audit Committee. The Board of Directors shall appoint an Audit Committee consisting of at least two directors,
none of whom shall be employees of the Corporation. The Audit Committee shall review the financial affairs and procedures of the
Corporation from time to time with management and meet with the auditors of the Corporation to review the financial statements
and procedures.
(d)
Executive Committee. There may be an executive committee consisting of at least three members of the Board
of Directors elected by the whole Board. Members of the executive committee shall serve at the pleasure of the Board of Directors
and each member of the executive committee may be removed with or without cause at any time by the Board of Directors. Vacancies
shall be filled by the Board of Directors. The executive committee may exercise the powers of the Board of Directors and the management
of the business and affairs of the corporation, but shall not possess any authority prohibited to it by law.
SECTION
8. Interested Directors.
In addition to the
statutory and corporate common law of Delaware, no contract or transaction between the Corporation and one or more of its directors
or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one
or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors
or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose
if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be
less than a quorum; or (ii) the material facts as to his or their relationship or interest and as to the contract or transaction
are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved
in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE
IV
OFFICERS
SECTION
1. Officers.
(a)
Number. The officers of the Corporation shall be chosen by the Board of Directors and may include a Chairman
of the Board of Directors (who must be a director as chosen by the Board of Directors) and shall include a President, a Vice President,
a Secretary and a Treasurer. The Board of Directors also may appoint one or more Assistant Secretaries or Assistant Treasurers
and such other officers and agents with such powers and duties as it shall deem necessary. Any Vice President may be given such
specific designation as may be determined from time to time by the Board of Directors. Any number of offices may be held by the
same person, unless otherwise required by law, the Certificate of Incorporation or these Bylaws. The Board of Directors may delegate
to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.
(b)
Election and Term of Office. The officers shall be elected annually by the Board of Directors at its regular
meeting following the annual meeting of the stockholders and each officer shall hold office until the next annual election of officers
and until such officer's successor is elected and qualified, or until such officer's death, resignation or removal. Any officer
may be removed at any time, with or without cause, by a vote of the majority of the whole Board of Directors. Any vacancy occurring
in any office may be filled by the Board of Directors.
(c)
Salaries. The salaries of all officers of the Corporation shall be fixed by the Board of Directors or a committee
thereof from time to time.
SECTION
2. Chairman of the Board of Directors.
The Chairman of the
Board of Directors, if there be a Chairman, shall preside at all meetings of the stockholders and the Board of Directors and shall
have such other power and authority as may from time to time be assigned by the Board of Directors.
SECTION
3. President.
The President shall
be the chief executive officer of the Corporation, shall preside at all meetings of the stockholders and the Board of Directors
(if a Chairman of the Board has not been elected), and shall see that all orders and resolutions of the Board of Directors are
carried into effect. Subject to the provisions of these Bylaws and to the direction of the Board of Directors, the President shall
have the general and active management of the business of the Corporation, may execute all contracts and any mortgages, conveyances
or other legal instruments in the name of and on behalf of the Corporation, but this provision shall not prohibit the delegation
of such powers by the Board of Directors to some other officer, agent or attorney-in-fact of the Corporation.
SECTION
4. Vice Presidents.
In the absence or disability
of the President, the Vice Presidents in order of their rank as fixed by the Board of Directors, or if not ranked, the Vice President
designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers
of, and be subject to all the restrictions upon, the President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them, respectively, by the Board of Directors or these Bylaws.
SECTION
5. Secretary and Assistant Secretaries.
The Secretary shall
record or cause to be recorded, in books provided for the purpose, minutes of the meetings of the stockholders, the Board of Directors
and all committees of the Board of Directors; see that all notices are duly given in accordance with the provisions of these Bylaws
as required by law; be custodian of all corporate records (other than financial) and of the seal of the Corporation, and have authority
to affix the seal to all documents requiring it and attest to the same; give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors; and, in general, shall perform all duties incident to the office of
Secretary and such other duties as may, from time to time, be assigned to him by the Board of Directors or by the President. At
the request of the Secretary, or in the Secretary's absence or disability, any Assistant Secretary shall perform any of the duties
of the Secretary and, when so acting, shall have all the powers of, and be subject to all the restrictions upon, the Secretary.
SECTION
6. Treasurer and Assistant Treasurers.
The Treasurer shall
keep or cause to be kept the books of account of the Corporation and shall render statements of the financial affairs of the Corporation
in such form and as often as required by the Board of Directors or the President. The Treasurer, subject to the order of the Board
of Directors, shall have custody of all funds and securities of the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. He
shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements.
The Treasurer shall perform all other duties commonly incident to his office and shall perform such other duties and have such
other powers as the Board of Directors or the President shall designate from time to time. At the request of the Treasurer, or
in the Treasurer's absence or disability, any Assistant Treasurer may perform any of the duties of the Treasurer and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the Treasurer. Except where by law the signature of
the Treasurer is required, each of the Assistant Treasurers shall possess the same power as the Treasurer to sign all certificates,
contracts, obligations and other instruments of the Corporation.
ARTICLE
V
INDEMNIFICATION AND INSURANCE
Section
5.01 Right to Indemnification. Subject
to the terms and conditions of this Article V, each officer or director of the Corporation who was or is made a party or witness
or is threatened to be made a party or witness to or is otherwise involved in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans (hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action or inaction in an official capacity while serving as a director, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law ("DGCL"),
as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of
the indemnitee's heirs, executors and administrators; provided, however, that, except as provided in Section 5 hereof with respect
to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation. The right to indemnification conferred in this Section shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final disposition (hereinafter an "advancement of
expenses"); provided, however, that, if the DGCL requires, an advancement of expenses incurred by an indemnitee shall be made
only upon delivery to the Corporation of an undertaking in the form then required by the DGCL (if any), by or on behalf of such
indemnitee, with respect to the repayment of amounts so advanced (hereinafter an "undertaking").
Section
5.02 Right of Indemnitee to Bring Suit.
If a claim under Section 5.01 of this Article is not paid in full by the Corporation within sixty days after a written claim has
been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period
shall be twenty days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit or in a suit brought by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expenses of prosecuting
or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a
suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) any suit
by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking the Corporation shall be entitled
to recover such expenses upon a final adjudication that, the indemnitee has not met the applicable standard of conduct set forth
in the DGCL. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders)
to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard or conduct or, in the case
of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that
the indemnitee is not entitled to be indemnified or to such advancement of expenses under this Section or otherwise shall be on
the Corporation.
Section
5.03 Specific Limitations on Indemnification.
Notwithstanding anything in this Article to the contrary, the Corporation shall not be obligated to make any payment to any indemnitee
with respect to any proceeding (i) to the extent that payment is actually made to the indemnitee under any insurance policy, or
is made to indemnitee by the Corporation or an affiliate thereof otherwise than pursuant to this Article, (ii) for any expense,
liability or loss in connection with a proceeding settled without the Corporation's written consent, which consent, however, shall
not be unreasonably withheld, (iii) for an accounting of profits made from the purchase or sale by the indemnitee of securities
of the Corporation within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions
of any state statutory or common law, or (iv) where prohibited by applicable law.
Section
5.04 Contract. The provisions of this
Article shall be deemed to be a contract between the Corporation and each director and officer who serves in such capacity at any
time while such Section is in effect, and any repeal or modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter based
in whole or in part upon any such state of facts.
Section
5.05 Partial Indemnity. If the indemnitee
is entitled under any provision of this Article to indemnification by the Corporation for some or a portion of the expenses, liabilities
or losses incurred in connection with a proceeding but not, however, for all of the total amount thereof, the Corporation shall
nevertheless indemnify the indemnitee for the portion thereof to which the indemnitee is entitled. Moreover, notwithstanding any
other provision of this Article, to the extent that the indemnitee has been successful on the merits or otherwise in defense of
any or all claims relating in whole or in part to a proceeding or in defense of any issue or matter therein, including dismissal
without prejudice, the indemnitee shall be indemnified against all loss, expense and liability incurred in connection with the
portion of the proceeding with respect to which indemnitee was successful on the merits or otherwise.
Section
5.06 Non-Exclusivity of Rights. The
rights to indemnification and to the advancement of expenses conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the Certificate of Incorporation, bylaw, agreement, vote of stockholders
or disinterested directors or otherwise.
Section
5.07 Insurance. The Corporation may
maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Section
5.08 Indemnification of Employees and
Agents of the Corporation. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification and to the advancement of expenses, to any employee or agent of the Corporation to the fullest extent
of the provisions of this Article with respect to the indemnification and advancement of expenses of directors and officers of
the Corporation, or to such lesser extent as may be determined by the Board of Directors.
Section
5.09 Notice by Indemnitee and Defense
of Claim. The indemnitee shall promptly notify the Corporation in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any matter, whether civil, criminal, administrative or investigative,
but the omission so to notify the Corporation will not relieve it from any liability which it may have to the indemnitee if such
omission does not prejudice the Corporation's rights. If such omission does prejudice the Corporation's rights, the Corporation
will be relieved from liability only to the extent of such prejudice; nor will such omission relieve the Corporation from any liability
which is may have to the indemnitee otherwise than under this Article VII. With respect to any proceedings as to which the indemnitee
notifies the Corporation of the commencement thereof:
(a)
The Corporation will be entitled to participate therein at its own expense; and
(b)
The Corporation will be entitled to assume the defense thereof, with counsel reasonably satisfactory to the indemnitee;
provided, however, that the Corporation shall not be entitled to assume the defense of any proceeding (and this Section 5.09 shall
be inapplicable to such proceeding) if the indemnitee shall have reasonably concluded that there may be a conflict of interest
between the Corporation and the indemnitee with respect to such proceeding. After notice from the Corporation to the indemnitee
of its election to assume the defense thereof, the Corporation will not be liable to the indemnitee under this Article V for any
expenses subsequently incurred by the indemnitee in connection with the defense thereof, other than reasonable costs of investigation
or as otherwise provided below. The indemnitee shall have the right to employ its own counsel in such proceeding but the fees and
expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense
of the indemnitee unless:
(i)
The employment of counsel by the indemnitee has been authorized by the Corporation in writing; or
(ii)
The Corporation shall not have employed counsel to assume the defense in such proceeding or shall not have assumed
such defense and be acting in connection therewith with reasonable diligence;
in each of which
cases the fees and expenses of such counsel shall be at the expense of the Corporation.
(c)
The Corporation shall not settle any proceeding in any manner which would impose any penalty or limitation on the
indemnitee without the indemnitee's written consent; provided, however, that the indemnitee will not unreasonably withhold his
consent to any proposed settlement.
ARTICLE
VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION
1. Certificates for Shares.
Unless otherwise provided
by a resolution of the Board of Directors, the shares of the Corporation shall be represented by a certificate. The certificates
of stock of the Corporation shall be numbered and shall be entered in the books of the Corporation as they are issued. They shall
exhibit the holder's name and number of shares and shall be signed by or in the name of the Corporation by (a) the Chairman of
the Board of Directors, the President or any Vice President and (b) the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary. Any or all of the signatures on a certificate may be facsimile. In case any officer of the Corporation, transfer
agent or registrar who has signed, or whose facsimile signature has been placed upon such certificate, shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, such certificate may nevertheless be issued by the
Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issuance.
SECTION
2. Classes of Stock.
(a)
If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class,
the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series
thereof and the qualification, limitations, or restrictions of such preferences 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, that,
except as otherwise provided in Section 202 of the General Corporation Law of the State of Delaware, 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 or rights.
(b)
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 applicable law (including Sections 151, 156, 202(a), or 218(a) of the General Corporation Law of the State of Delaware) or 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 or rights.
SECTION
3. Transfer.
Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence
of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer
instructions from the registered owner of uncertificated shares, such uncertificated shares shall be cancelled, issuance of new
equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall
be recorded upon the books of the Corporation.
SECTION
4. Record Owner.
The Corporation shall
be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof, and, accordingly, shall
not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person, whether or
not it shall have express or other notice thereof, save as expressly provided by the laws of the State of Delaware.
SECTION
5. Lost Certificates.
The Board of Directors
may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact
by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate
or certificates or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as the Board of Directors shall require and to give the Corporation a bond in such sum as it may direct
as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
ARTICLE
VII
MISCELLANEOUS
SECTION
1. Record Date.
(a)
In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the
stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights or 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, in advance, a record date, which shall not be more than sixty nor less than ten
days prior to the date of such meeting nor more than sixty days prior to any other action. If not fixed by the Board of Directors,
the record date shall be determined as provided by law.
(b)
A determination of stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall
apply to any adjournments of the meeting, unless the Board of Directors fixes a new record date for the adjourned meeting.
(c)
Holders of stock on the record date are entitled to notice and to vote or to receive the dividend, distribution or
allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of the shares on the books of the
Corporation after the record date, except as otherwise provided by agreement or by law, the Certificate of Incorporation or these
Bylaws.
SECTION
2. Execution of Instruments.
The Board of Directors
may, in its discretion, determine the method and designate the signatory officer or officers, or other persons, to execute any
corporate instrument or document or to sign the corporate name without limitation, except where otherwise provided by law, the
Certificate of Incorporation or these Bylaws. Such designation may be general or confined to specific instances.
SECTION
3. Voting of Securities Owned by the Corporation.
All stock and other
securities of other corporations held by the Corporation shall be voted, and all proxies with respect thereto shall be executed,
by the person so authorized by resolution of the Board of Directors, or, in the absence of such authorization, by the President.
SECTION
4. Corporate Seal.
The Corporation shall
have a corporate seal in such form as shall be prescribed and adopted by the Board of Directors.
SECTION
5. Construction and Definitions.
Unless the context
requires otherwise, the general provisions, rules of construction and definitions in the General Corporation Law of the State of
Delaware and the Certificate of Incorporation shall govern the construction of these Bylaws.
SECTION
6. Amendments.
These Bylaws may be
altered, amended or repealed as set forth in the Certificate of Incorporation.
18
Exhibit 5
Quarles & Brady LLP
One Renaissance Square
Two North Central Avenue
Phoenix, Arizona 85004
Phone:
(602) 229-5200
Fax:
(602) 229-5690
www.quarles.com
June
22, 2015
Capstone Therapeutics Corp.
1275 West Washington Street, Suite 104
Tempe, AZ 85281
| Re: | | Capstone Therapeutics Corp. 2015 Equity Incentive Compensation Plan |
Ladies and Gentlemen:
We are providing this opinion in connection
with the registration statement on Form S-8 (the “Registration Statement”) being filed by Capstone Therapeutics Corp.
(the “Company”) with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities
Act of 1933, as amended (the “Securities Act”), with respect to the proposed issuance of up to 1,000,000 shares of
the Company’s common stock, $0.0005 par value per share (the “Shares”), which may be issued pursuant to the Company’s
2015 Equity Incentive Compensation Plan (the “2015 Plan”).
We have examined: (i) the Registration
Statement; (ii) the Company’s Second Amended and Restated Certificate of Incorporation and Bylaws, each as amended to
date and as filed as exhibits to the Company’s filings with the Commission; (iii) the 2015 Plan; (iv) the corporate
proceedings relating to adoption of the 2015 Plan and the issuance of the Shares pursuant to the 2015 Plan; and (v) such other
documents and records and matters of law as we have deemed necessary in order to render this opinion. In rendering this opinion,
we have relied as to certain factual matters on certificates of officers of the Company and of state officials.
On the basis of the foregoing, we advise
you that, in our opinion:
| 1. | The Company is a corporation in active status under the laws of the State of Delaware. |
| 2. | The Shares to be issued or sold from time to time pursuant to the 2015 Plan, which are original
issuance or treasury shares, including shares bought on the open market or otherwise for purposes of the 2015 Plan, when issued
as and for the consideration contemplated by the Registration Statement and the 2015 Plan, will be validly issued, fully paid and
non-assessable by the Company. |
We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement. In giving our consent, we do not admit that we are “experts” within
the meaning of Section 11 of the Securities Act, or that we come within the category of persons whose consent is required by Section
7 of the Securities Act.
Very truly yours,
/s/ Quarles & Brady LLP
QUARLES & BRADY LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We consent to the incorporation by reference
in this Registration Statement on Form S-8 pertaining to the Capstone Therapeutics Corp. 2015 Equity Incentive Plan of our report
dated March 16, 2015 (which includes an explanatory paragraph regarding the Company’s going concern uncertainty) , relating
to the consolidated financial statements appearing in the Annual Report on Form 10-K of Capstone Therapeutics, Corp. for the year
ended December 31, 2014, filed with the Securities and Exchange Commission.
/s/Moss Adams, LLP
Scottsdale, Arizona
June 22, 2015
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