tenx_ex4-2






Exhibit 4.2










 



DESCRIPTION OF COMMON STOCK OF TENAX THERAPEUTICS,
INC.



REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF
1934

 


The
following description is a summary of information concerning the
common stock, par value $0.0001 per share (the “Common
Stock”), of Tenax Therapeutics, Inc. (“we,”
“our,” “us,” or the “Company”)
and does not purport to be complete. It is subject to and qualified
in its entirety by reference to our Certificate of Incorporation,
as amended (the “Certificate of Incorporation”) and our
Third Amended and Restated By-Laws (the “By-Laws”),
each of which is incorporated by reference as an exhibit to the
Annual Report on Form 10-K of which this Exhibit 4.2 is a part. The
description below also summarizes certain provisions of Delaware
law. We encourage you to read our Certificate of Incorporation, our
By-Laws and the applicable provisions of Delaware law for
additional information.

 



Authorized Common Stock

 


Our
Certificate of Incorporation authorizes the issuance of 400,000,000
shares of Common Stock. Our authorized but unissued shares of
Common Stock are available for issuance without further action by
our stockholders, unless such action is required by applicable law
or the rules of any securities exchange or automated quotation
system on which our securities may be listed or
traded.

 



Voting

 


Each
outstanding share of our Common Stock is entitled to one vote on
all matters submitted to a vote of stockholders. Cumulative voting
is not permitted.

 



Dividends

 


The
holders of outstanding shares of our Common Stock are entitled to
receive ratably any dividends declared by our board of directors
out of assets legally available for the payment of dividends, at
the times and in the amounts as our board of directors may from
time to time determine.

 



Rights and Preferences

 


Shares
of Common Stock are neither redeemable nor convertible. Holders of
Common Stock have no preemptive or subscription rights to purchase
any of our securities and no sinking fund provisions apply to our
Common Stock.

 



Liquidation

 


In
the event of our liquidation, dissolution or winding up, holders of
Common Stock are entitled to receive, pro rata, our assets which
are legally available for distribution, after payments of all debts
and other liabilities and subject to the preferential rights of any
holders of preferred stock then outstanding.

 



Preferred Stock

 


Our
board of directors has the authority, without further action by our
stockholders (unless such action is required by applicable law or
the rules of any securities exchange or automated quotation system
on which our securities may be listed or traded), to issue up to
10,000,000 shares of preferred stock in one or more series and to
fix the designations, powers, rights, preferences, qualifications,
limitations and restrictions thereof. These designations, powers,
rights and preferences could include voting rights, dividend
rights, dissolution rights, conversion rights, exchange rights,
redemption rights, liquidation preferences, and the number of
shares constituting any series or the designation of such series,
any or all of which may be greater than the rights of Common Stock.
The issuance of preferred stock could adversely affect the voting
power of holders of Common Stock and the likelihood that such
holders will receive dividend payments and payments upon
liquidation. In addition, the issuance of preferred stock could
have the effect of delaying, deferring or preventing a change in
our control or other corporate action.


 







 

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As
of the date of the filing of the Annual Report on Form 10-K of
which this Exhibit 4.2 is a part, we had 210 shares of Series A
Convertible Preferred Stock outstanding and 10,232 shares of Series
B Convertible Preferred Stock outstanding. The powers, preferences,
rights, qualifications, limitations and restrictions of our Series
A Convertible Preferred Stock and our Series B Convertible
Preferred Stock are set forth in their respective certificates of
designation, copies of which are filed or incorporated by reference
as exhibits to the Annual Report on Form 10-K of which this Exhibit
4.2 is a part. Other than our Series A Convertible Preferred Stock
and Series B Convertible Preferred Stock, no shares of our
preferred stock are currently outstanding.

 



Anti-Takeover Provisions

 


The
provisions of Delaware law, the Certificate of Incorporation and
the By-Laws could have the effect of delaying, deferring or
discouraging another person from acquiring control of us. These
provisions, which are summarized below, may have the effect of
discouraging takeover bids. They are also designed, in part, to
encourage persons seeking to acquire control of us to negotiate
first with our board of directors. We believe that the benefits of
increased protection of our potential ability to negotiate with an
unfriendly or unsolicited acquirer outweigh the disadvantages of
discouraging a proposal to acquire us because negotiation of these
proposals could result in an improvement of their
terms.

 



Delaware Law

 


We
must comply with Section 203 of the Delaware General Corporation
Law, an anti-takeover law. In general, Section 203 prohibits a
publicly held Delaware corporation from engaging in a
“business combination” with an “interested
stockholder” for a period of three years following the date
the person became an interested stockholder, unless the business
combination or the transaction in which the person became an
interested stockholder is approved in a prescribed manner or
certain other exceptions are met. Generally, a “business
combination” includes a merger, asset or stock sale, or other
transaction resulting in a financial benefit to an interested
stockholder. An “interested stockholder” includes a
person who, together with affiliates and associates, owns, or did
own within three years prior to the determination of interested
stockholder status, 15% or more of the corporation’s voting
stock. The existence of this provision generally will have an
anti-takeover effect for transactions not approved in advance by
the board of directors, including discouraging attempts that might
result in a premium over the market price for the shares of Common
Stock held by stockholders.

 



Certificate of Incorporation and By-Laws Provisions

 


Our
Certificate of Incorporation and By-Laws include a number of
provisions that could deter hostile takeovers or delay or prevent
changes in control of us. Certain of these provisions are
summarized in the following paragraphs.

 



Undesignated Preferred Stock.
The ability to authorize undesignated preferred stock makes it
possible for our board of directors to issue one or more series of
preferred stock with voting or other rights or preferences that
could impede the success of any attempt to change control of our
company. These and other provisions may have the effect of
deferring hostile takeovers or delaying changes in control or
management of our company.

 



Special Meeting of Stockholders and Advance Notice
Requirements. Our By-Laws
provide that a special meeting of stockholders may be called only
by a majority of our board of directors, our president, the
chairperson of our board of directors or such other person as our
board of directors may designate, in each case, for the purpose
specified in the notice of meeting. Our stockholders are not
permitted to propose business to be brought before a special
meeting of our stockholders. In addition, our By-laws establish
advance notice procedures with respect to stockholder proposals and
the nomination of candidates for election as directors, other than
nominations made by or at the direction of our board of directors
or a committee of the board of directors. These provisions may have
the effect of deterring unsolicited offers to acquire our company
or delaying stockholder actions, even if they are favored by the
holders of a majority of our outstanding voting
securities.


 







 

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No Cumulative Voting. Our
Certificate of Incorporation does not permit cumulative voting.
Without cumulative voting, a minority stockholder may not be able
to gain as many seats on our board of directors as the stockholder
would be able to gain if cumulative voting were permitted. The
absence of cumulative voting makes it more difficult for a minority
stockholder to gain a seat on our board of directors to influence
our board of directors’ decision regarding a
takeover.


 



Removal of Directors and Filling of Vacancies: Our By-Laws require the vote of stockholders
representing not less than two-thirds of our issued and outstanding
capital stock entitled to voting power in order to remove a
director from office, with or without cause. In addition, vacancies
on our board of directors (including vacancies created by the
removal of directors) may be filled by a majority of the remaining
directors, even if less than a quorum, or by a sole remaining
director, and each director so elected shall hold office until his
or her successor is elected at an annual or a special meeting of
our stockholders.


 



Listing on the Nasdaq Capital Market

 


Our
Common Stock is listed on the Nasdaq Capital Market under the
symbol “TENX.”


 



 




 

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