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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
VASO ACTIVE PHARMACEUTICALS, INC.
(PURSUANT TO SECTIONS 241 AND 245 OF THE GENERAL CORPORATION LAW OF THE STATE
OF DELAWARE)
Vaso Active Pharmaceuticals, Inc. (the "corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "Delaware General Corporation Law),
DOES HEREBY CERTIFY
First: That the name of the corporation is Vaso Active Pharmaceuticals,
Inc. and the date of its filing of its original Certificate of Incorporation was
January 13, 2003.
Second: That the corporation has not received any payment for any of its
stock.
Third: That the Board of Directors of the corporation duly adopted
resolutions proposing to amend and restate the Certificate of Incorporation of
the corporation.
Fourth: That the resolution setting forth the proposed amendment is as
follows:
NOW, THEREFORE, BE IT RESOLVED, the Certificate of Incorporation shall be
amended and restated in the form attached as Exhibit A hereto.
Fifth: That set forth below is the Amended and Restated Certificate of
Incorporation so approved:
1. The name of the corporation is Vaso Active Pharmaceuticals, Inc.
2. The address of its registered office in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted by the
corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is Twenty-Five Million (25,000,000) shares of capital
stock, consisting of:
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(a) 10,000,000 shares of Preferred Stock, par value $.0001 per share (the
"Preferred Stock");
(b) 10,000,000 shares of Class A Common Stock, par value $.0001 per
share (the "Class A Common Stock"); and
(c) 5,000,000 shares of Class B Common Stock, par value $.0001 per
share (the "Class B Common Stock" and together with the Class A Common
Stock, "Common Stock").
The designations , preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof, of the
Preferred Stock and the Common Stock shall be as follows:
A. PREFERRED STOCK
1. SERIES.
The Preferred Stock may be issued, from time to time, in one or more series,
with such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof, as shall be
stated and expressed in the resolution or resolutions providing for the issue of
such series adopted by the Board of Directors. The Board of Directors is
authorized to establish one or more series of the Preferred Stock by resolution
or resolutions and in such resolution or resolutions (a copy of which shall be
filed and recorded as required by law), is also expressly authorized to fix:
(i) the distinctive serial designations and the divisions of such
shares into series and the number of shares of a particular series, which
may be increased or decreased, but not below the number of shares thereof
then outstanding, by a certificate made, signed, filed and recorded as
required by law;
(ii) the annual dividend rate (or method of determining such rate) for
the particular series, the date or dates upon which such dividends shall be
payable, and the date or dates or method of determining the date or dates
shall be cumulative, if dividends on stock of the particular series shall
be cumulative;
(iii) the price or prices at which, the period or periods within which
and the terms and conditions upon which the shares of such series may be
redeemed, in whole or in part, at the option, if any, of the corporation;
(iv) the right, if any, of the holders of a particular series or the
corporation to convert such stock into other classes or series of stock or
to exchange such stock for shares of any other class of stock or series
thereof, and the terms and conditions, if any, including the price or
prices or the date or rates of conversion and the terms and conditions of
any
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adjustments thereof, of such conversion and the terms and conditions of any
adjustments thereof, of such conversion;
(v) the obligation, if any, of the corporation to purchase and retire
and redeem, in whole or in part, shares of a particular series as a sinking
fund or redemption or purchase account, the terms thereof and the
redemption price or prices per share for such series redeemed pursuant to
the sinking fund or redemption account;
(vi) the voting rights, if any, of the shares of such series in addition
to those required by law, including the number of votes per share and any
requirement for the approval by the holders of up to two thirds of all
Preferred Stock, or of the shares of one or more series, or of both, as a
condition to specified corporate action or amendments to the certificate of
incorporation;
(vii) the ranking of the shares of the series as compared with shares of
other series of the Preferred Stock in respect of the right to receive
payments out of the assets of the corporation upon voluntary or involuntary
liquidation, dissolution or winding up of the corporation; and
(viii) any other rights, obligations, or provisions which may be so
determined to the fullest extent permitted by Delaware law.
All shares of any one series of Preferred Stock shall be alike in every
particular and all series shall rank equally and be identical in all
respects in so far as they may vary with respect to the matters which the
Board of Directors is hereby expressly authorized to determine in the
resolution or resolutions providing for the issue of any series of the
Preferred Stock.
2. RANKING.
All shares of Preferred Stock shall rank senior to the Common Stock in respect
of the right to receive dividends and the right to receive payments out of the
assets of the corporation upon voluntary or involuntary liquidation, dissolution
or winding up of the corporation. The shares of any one series of Preferred
Stock shall be identical with each other in all respects except as to the dates
from and after which dividends thereon shall be cumulative. All shares of
Preferred Stock redeemed, purchased or otherwise acquired by the corporation
(including shares surrendered for conversion) shall be canceled and thereupon
restored to the status of authorized but unissued Preferred Stock undesignated
as to series.
B. COMMON STOCK
1. GENERAL VOTING RIGHTS AND POWERS.
Subject to the rights and preferences of the holders of the Preferred Stock and
any other class of stock ranking senior to the Common Stock, the holders of
shares of Class A Common Stock shall
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be entitled to ONE vote per share on all matters to be voted on by stockholders
and holders of shares of Class B Common Stock shall be entitled to THREE votes
per share on all matters to be voted on by stockholders. The holders of Class A
Common Stock and Class B Common Stock shall vote together as a single class on
all matters on which the stockholders may vote, except when class voting is
required by applicable law or when the holders of Class B Common Stock shall be
entitled to vote as a separate class in accordance with Section 2 of this
Part B.
2. SPECIAL VOTING POWER OF CLASS B COMMON STOCK.
In addition to the foregoing voting power and any rights provided by law, so
long as any Class B Common Stock shall be outstanding, the corporation shall
not, without first obtaining the affirmative vote or written consent of the
holders of not less than a majority of the voting power of then--outstanding
shares of Class B Common Stock, given in writing or by vote at a meeting,
consenting or voting (as the case may be) separately as a class; (i) amend or
appeal any provision of, or add any provision to, the corporation's Restated
Articles of Organization or By-Laws if such action would alter or change the
preferences, rights, privileges or powers of, or the restrictions provided for
the benefit of, the Class B Common Stock; (ii) authorize or issue any new or
existing class or classes or series of capital stock having any voting power
superior to or on a parity with any voting power of the Class B Common Stock, or
authorize or issue shares of stock of any class or any bonds, debentures, notes
or other obligations convertible into or exchangeable for, or having option
rights to purchase, any shares of the capital stock of the corporation having
any voting power superior to or on a parity with the voting power of the Class B
Common Stock; and (iii) reclassify any Class A Common Stock into shares having
any voting power superior to or on a parity with the voting power of the Class B
Common Stock.
3. NO PREEMPTIVE RIGHTS.
Subject to the provisions of Section 6 of this Part B in respect of Class B
Common Stock, no holder of Class A Common Stock or Class B Common Stock shall
have any rights, preemptive or other, to subscribe for or to acquire any capital
stock of the corporation solely by reason of the ownership or holding of any
such Class A Common Stock or Class B Common Stock.
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4. DIVIDENDS AND OTHER DISTRIBUTIONS.
Subject to the rights and preferences of the holders of the Preferred Stock and
any other class of stock ranking senior to the Common Stock, the holders of
Class A Common Stock and Class B Common Stock shall be entitled to dividends
when, as and if declared and paid to the holders of Class A Common Stock and
Class B Common Stock; provided that dividends must be paid on both the Class A
Common Stock and the Class B Common Stock at any time that dividends are paid on
either class. Any dividend so declared and payable in cash, capital stock of the
corporation (other than Class A Common Stock or Class B Common Stock) or other
property shall be paid equally, share for share, on the Class A Common Stock and
the Class B Common Stock. Dividends and distributions payable in shares of Class
A Common Stock may be paid only on shares of Class A Common Stock and, dividends
and distributions payable in shares of Class B Common Stock may be paid only on
shares of Class B Common Stock. If a dividend or distribution payable in Class A
Common Stock is made on the Class A Common Stock, the corporation shall also
make a simultaneous dividend or distribution on the Class B Common Stock. If a
dividend or distribution payable in Class B Common Stock is made on the Class B
Common Stock, the corporation shall also make a simultaneous dividend or
distribution on the Class A Common Stock. Pursuant to any such dividend or
distribution, each share of Class A Common Stock will receive a number of shares
of Class A Common Stock equal to the number of shares of Class B Common Stock
payable on each share of Class B Common Stock and each share of Class B Common
Stock will receive a number of Class B Common Stock equal to the number of
shares of Class A Common Stock payable on each share of Class A Common Stock.
5. LIQUIDATION RIGHTS.
In the event of the liquidation, dissolution or winding up of the corporation
and subject to the rights and preferences of the holders of the Preferred Stock
and any other class of stock ranking senior to or on a parity with the Common
Stock, the holders of the shares of Class A Common Stock and Class B Common
Stock shall be entitled to share ratably, share for share, in all assets
remaining after payment of all debts and other liabilities of the corporation
available for distribution.
6. CONVERSION OF CLASS B COMMON STOCK.
(i) Each share of Class B Common Stock may be converted, at the option of the
holder, at any time into one fully-paid and non-assessable share of Class A
Common Stock in the manner and subject to adjustment as set forth in
Subparagraph (ii) of this Section 6.
(ii) The Class B Common Stock shall be converted into Class A Common Stock in
the following manner:
(a) A holder of Class B Common Stock shall give written notice
to the corporation by mail of its desire to convert all or a portion of the
shares of Class B Common Stock owned by such holder. Such notice shall be
accompanied by certificates, duly endorsed for conversion, evidencing the number
of shares of Class B Common Stock such holder desires to
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convert. The corporation will, as soon as practicable thereafter, deliver to
such holder or to such holder's nominee or nominees, a certificate or
certificates for the appropriate number of shares of Class A Common Stock, a
certificate representing the balance, if any, of the shares of Class B Common
Stock tendered by the surrendered certificate or certificates but not converted
to Class A Common Stock.
(b) If, prior to the date on which all shares of Class B
Common Stock are converted, the corporation shall (1) pay a dividend in shares
of Class A Common Stock or make a distribution in shares of Class A Common
Stock, (2) subdivide its outstanding Class A Common Stock, (3) combine its
outstanding Class A Common Stock into a smaller number of shares of Class A
Common Stock or (4) issue by reclassification of its Class A Common Stock other
securities of the corporation, the right to convert shall thereupon be adjusted,
or, if necessary, amended, such that the number of shares of Class A Common
Stock receivable upon conversion of the shares of Class B Common Stock
immediately prior thereto shall be adjusted so that the holder shall be entitled
to receive, upon the conversion of such shares of Class B Common Stock, the kind
and number of shares of Class A Common Stock or other securities of the
corporation which it would have owned or would have been entitled to receive
after the happening of any of the events described above had the Class B Common
Stock been converted immediately prior to the happening of such event or any
record date with respect thereto. Any adjustment made pursuant to this
subparagraph (b) shall become effective immediately after the effective date of
such event and such adjustment shall be retroactive to the record date, if any,
for such event. Except as provided in this subparagraph (C), no adjustment with
respect to any ordinary dividends (made out of current earnings) on shares of
Class A Common Stock shall be made.
(c) If, prior to the date on which the shares of Class B Common
Stock are converted, the corporation shall (1) reorganize, reclassify or
otherwise change the number of outstanding shares of Class A Common Stock, (2)
consolidate with or merge with or into another "Person" (as defined in paragraph
(h) of this Section 6(ii)) resulting in a reclassification, conversion, exchange
or cancellation of outstanding shares of Class A Common Stock, (3) sell or
otherwise transfer all or substantially all of the assets of the corporation,
then a holder of Class B Common Stock shall thereafter have the right to convert
such shares of Class B Common Stock into the kind and amount of stock,
securities or assets, if any, such holder would have been entitled to receive
upon such reorganization, reclassification, consolidation, merger, sale or
transfer had such holder converted its shares of Class B Common Stock into Class
A Common Stock immediately prior to such transaction.
(d) If a holder of Class B Common Stock has delivered notice to
the corporation of its desire to convert all or a portion of its shares of Class
B Common Stock and certificates, duly endorsed for conversion in respect of such
shares, then all shares of Class B Common Stock so tendered to the corporation
shall be deemed to be no longer outstanding and, notwithstanding the failure of
the corporation to issue the Class A Common Stock, such holder shall be deemed,
for all purposes, to be a holder of the number of shares of Class A Common Stock
into which the shares of Class B Common Stock were converted and such holder is
entitled to receive pursuant to the terms of this Section F in each case as of
the close of business
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on the date on which such conversion notice is delivered.
(e) The corporation shall not, by amendment of its Restated
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed under this Section F by the corporation
but shall at all times in good faith assist in the carrying out of all the
provisions of this Section 6. The corporation shall at all times reserve and
keep available out of its authorized but unissued Class A Common Stock the full
number of shares of Class A Common Stock deliverable upon the conversion of all
the then outstanding shares of Class B Common Stock and shall take all such
action and obtain all such permits or orders as may be necessary to enable the
corporation to validly and legally issue fully paid and non-assessable shares of
Class A Common Stock upon the conversion of Class B Common Stock. The
corporation shall obtain prior to or concurrently with the first issuance of the
Class B Common Stock, and shall use its best efforts to maintain for as long as
any shares of Class B Common Stock shall be outstanding, the authorization for
the listing of shares of Class A Common Stock issuable upon conversion of the
Class B Common Stock on the Nasdaq Stock Market National Market and on any
national securities exchange on which the Class A Common Stock is listed for
trading, as applicable. The corporation shall pay any and all transfer, stamp
and other like taxes that may be payable in respect of the issuance or delivery
of shares of Class A Common Stock on conversion of the Class B Common Stock.
(f) Shares of Class B Common Stock which shall have been
converted, purchased or otherwise reacquired by the corporation shall be retired
and cancelled and shall no longer be available for issuance.
(g) In the event of a "Transfer Event" (as defined in paragraph
(h) of this Section 6(ii)) in respect of any share of Class B Common Stock, such
share shall be automatically converted into one share of Class A Common Stock as
at the time of the Transfer Event in the same manner and subject to the same
adjustments as set forth in paragraphs (a) through (f), inclusive, of this
Section 6(ii) as if written notice thereof had been given to the corporation
thereunder.
(h) For purposes of this Section 6, (1) a "Transfer Event" in
respect of a specific holder includes or shall be deemed to have occurred upon
(i) any sale, assignment, transfer, pledge or other disposition, including by
gift, devise, intestacy, operation of law or otherwise, of any of the shares of
the Class B Common Stock by such holder other than to BioChemics, Inc., a
Delaware corporation ("BioChemics"), or John Masiz ("Masiz") or to a "Controlled
Person" (as defined below) of either of them or such holder, (ii) the holder of
Class B Common Stock voluntarily files a petition under any bankruptcy or
insolvency law or a petition for the appointment of a receiver, or makes an
assignment for the benefit of creditors, (iii) the holder of Class B Common
Stock is subject involuntarily to such a petition or assignment or any creditor
or other Person obtains an attachment or other legal or equitable interest in
any shares of the Class B Common Stock of such holder, and such involuntary
petition, assignment or attachment is not discharged within 180 days after
creation, or (iv) if the
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holder of Class B Common Stock is required to transfer any such shares by reason
of a judgment, court order or decree from which no appeal may be taken or by
operation of law; (2) "Person" shall mean any present or future natural person
or any corporation, association, partnership, joint venture, limited liability,
joint stock or other company, business trust, trust, unincorporated association
or other entity of whatsoever nature; (3) a "Controlled Person" shall mean with
respect to BioChemics, Masiz or a specified holder any Person which is, directly
or indirectly, controlled by or under direct or indirect common control with
BioChemics, Masiz or such specified holder. For the purpose of this definition,
"Control" when used with respect to any Person means the sole or shared power to
vote, or to direct the voting of, and/or the sole or shared power to dispose of,
or to direct the disposition of, shares of Class B Common Stock, directly or
indirectly, through ownership, proxy, or any contract, arrangement,
understanding, relationship, or otherwise; and the term "controlled" shall have
meanings correlative to the foregoing.
(i) Determinations with respect to Transfer Events described in
subparagraph (h) of this Section 6(ii) shall be made by majority vote of the
entire Board of Directors of the corporation.
(j) Notwithstanding anything contained in this Amended and
Restated Certificate of Incorporation to the contrary, the affirmative vote of
the holders of at least two-thirds of the combined voting power of the
outstanding shares of Class A Common Stock and Class B Common Stock, voting
together as a single class, shall be required to amend this Part B, or to adopt
any provision inconsistent herewith.
7. INTENTIONALLY OMITTED:
8. The corporation is to have perpetual existence.
9. In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter or repeal the
bylaws of the corporation.
10. The number of directors of the corporation shall be such number, not less
than three, as shall be fixed from time to time by the Board of Directors
in the manner prescribed in the bylaws of the corporation. Elections of
directors need not be by written ballot unless the bylaws of the
corporation shall so provide. Advance notice of stockholder nominations for
the election of directors and of any other business to be brought before
any meeting of the stockholders shall be given in the manner provided in
the bylaws of the corporation.
11. At each annual meeting of stockholders, directors of the corporation shall
be elected to hold office until the expiration of the term for which they
are elected, or until their successors have been duly elected and
qualified; except that if any such election shall not be so held, such
election shall take place at a stockholders' meeting called and held in
accordance with the Delaware General Corporation Law.
12. Notwithstanding any other provisions of this Amended and Restated
Certificate of
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Incorporation or the bylaws of the corporation, any director may be
removed, at any time, with or without cause, upon the affirmative vote of
the holders of at least 75% of the outstanding shares of capital stock of
the corporation entitled to vote generally in the election of directors
(considered for that purpose), provided, however, that removal without
cause was first recommended to the stockholders by action of the Board of
Directors pursuant to resolutions duly adopted by 75% of the entire Board
of Directors then in office.
13. Meetings of stockholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State
of Delaware at such place or places as may be designated from time to time
by the board of directors or in the bylaws of the corporation.
14. Whenever a compromise or arrangement is proposed between the corporation
and its creditors or any class of them and/or between the corporation and
its stockholders or any class of them, any court of equitable jurisdiction
within the State of Delaware may, on the application in a summary way of
the corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the corporation
under the provisions of Section 291 of Title 8 of the Delaware Code or on
the application of trustees in dissolution or of any receiver or receivers
appointed for the corporation under the provisions of Section 279 of Title
8 of the Delaware Code, order a meeting of the creditors or class of
creditors and/or of the stockholders or class of stockholders of the
corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing at least three-fourths
(3/4) in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the corporation, as the case may
be, agree to any compromise or arrangement and to any reorganization of the
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned
by the court to which the said application has been made, be binding on all
the creditors or class of creditors, and/or on all of the stockholders or
class of stockholders, of the corporation, as the case may be, and also on
the corporation.
15. No director shall be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, provided that this provision shall not limit or eliminate the
liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or it stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of
Delaware, or (iv) for any transaction from which the director derived an
improper personal benefit. If there is any amendment or revocation of this
provision, the liability of any director for any action taken prior to the
amendment or revocation will not be affected thereby.
16. The corporation may, to the fullest extent permitted by applicable law
including without limitation, Section 145 of the General Corporation Law of
Delaware, as now or hereafter in effect, indemnify any and all persons whom
it shall have the power to indemnify under
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said section from and against any and all of the expenses, liabilities or
other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any
other rights to which a person indemnified may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to
action in another capacity while holding such office, and shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of
such a person. No amendment to or repeal of this provision shall preclude
the corporation from providing indemnity to any person on account of any
acts or omissions occurring prior to such amendment or repeal.
Sixth: That the foregoing amendments were duly adopted in accordance with
the provisions of Sections 241 and 245 of the Delaware General Corporation Law.
* * * * * * * * *
IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
has been signed by the President and Chief Executive Officer and the Secretary
of the Corporation this ___ day of July, 2003.
VASO ACTIVE PHARMACEUTICALS, INC.
A Delaware corporation
By:
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Name: John Masiz, President and Chief
Executive Officer
By:
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Name: John Masiz
Secretary
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