AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CARDIOBIOMEDICAL CORPORATION
(Under Sections 242 and 245 of the
Delaware General Corporation Law)
CardioBioMedical Corporation (the "Corporation"), a corporation organized
and existing under the Delaware General Corporation Law (the "DGCL"), does, by
James F. Mongiardo, its Chief Executive Officer and Secretary, under its
corporate seal, hereby certify that:
1. The Corporation's original Certificate of Incorporation was filed with
the Secretary of State of the State of Delaware on May 27, 2003 under its
original name, Cardio Bio Medical Inc. A Certificate of Amendment of Certificate
of Incorporation (the "Certificate of Amendment") was filed with the Secretary
of State of the State of Delaware on July 15, 2003 to change the name of the
Corporation from Cardio Bio Medical Inc. to its current name.
2. This Amended and Restated Certificate of Incorporation amends and
restates the original Certificate of Incorporation, as previously amended by the
Certificate of Amendment, by deleting from such Certificate of Incorporation, as
previously amended, all of the provisions thereof and substituting in lieu of
such provisions the text of the Amended and Restated Certificate of
Incorporation set forth in Section 6 hereof.
3. Pursuant to Sections 141, 242 and 245 of the DGCL, by written consent
in lieu of a Meeting of the Board of Directors of the Corporation dated December
1, 2003, the Sole Director of the Corporation deemed it advisable and in the
best interest of the Corporation to amend and restate the Certificate of
Incorporation of the Corporation, as previously amended, in its entirety as set
forth in this Amended and Restated Certificate of Incorporation, and directed
that this Amended and Restated Certificate of Incorporation be submitted for
consideration and action thereon by the sole stockholder of the Corporation.
4. Pursuant to Sections 228, 242 and 245 of the DGCL, by written consent
in lieu of a Meeting of the Stockholders of the Corporation dated December 1,
2003, the Sole Stockholder of the Corporation voted in favor of, approved and
adopted this Amended and Restated Certificate of Incorporation, including the
text set forth in Section 6 hereof.
5. The text of the Amended and Restated Certificate of Incorporation set
forth in Section 6 hereof was duly adopted by the Sole Director and by the Sole
Stockholder of the Corporation in accordance with the provisions of Sections
141, 228, 242 and 245 of the General Corporation Law of the State of Delaware.
6. The text of the Certificate of Incorporation of the Corporation, as
previously amended, is hereby amended and restated by this Amended and Restated
Certificate of Incorporation, to read in full as follows:
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CARDIOBIOMEDICAL CORPORATION
ARTICLE I: The name of the corporation is CardioBioMedical Corporation
(the "Corporation").
ARTICLE II: The address of the registered office of the Corporation 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.
ARTICLE III: The purposes of the Corporation are to engage in, promote,
conduct and carry on any lawful acts or activities for which corporations may be
organized under the General Corporation Law of the State of Delaware (the
"DGCL").
ARTICLE IV: The total number of shares of stock which the Corporation
shall have authority to issue is 105,000,000 shares, comprised of 100,000,000
shares of common stock with $.01 par value per share (the "Common Stock") and
5,000,000 shares of preferred stock with $.01 par value per share (the
"Preferred Stock").
A description of the respective classes of capital stock and a statement
of the designations, preferences, voting powers (or no voting powers), relative,
participating, optional or other special rights and privileges and the
qualifications, limitations and restrictions of the Preferred Stock and Common
Stock are as follows:
A. Common Stock
Except as required by law, all shares of Common Stock shall be identical
in all respects and shall entitle the holders thereof to the same rights and
privileges, subject to the same qualifications, limitations and restrictions.
Except as required by law, the holders of shares of Common Stock shall be
entitled to one vote per share of Common Stock on all matters on which
stockholders of the Corporation have the right to vote.
B. Preferred Stock
The Preferred Stock may be issued in one or more series at such time or
times and for such consideration or considerations as the Board of Directors may
determine. Each series shall be so designated as to distinguish the shares
thereof from the shares of all other series and classes.
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The Board of Directors is expressly authorized, subject to the limitations
prescribed by law and the provisions of this Certificate of Incorporation, to
provide for the issuance of all or any shares of the Preferred Stock in one or
more series, each with such designations, preferences, voting powers (or no
voting powers), relative, participating, optional or other special rights and
privileges and such qualifications, limitations or restrictions thereof as shall
be stated in the resolution or resolutions adopted by the Board of Directors to
create such series, and a certificate of said resolution or resolutions shall be
filed in accordance with the DGCL. The authority of the Board of Directors with
respect to each such series shall include, without limitation, the right to
provide that the shares of each such series may be: (i) subject to redemption at
such time or times and at such price or prices; (ii) entitled to receive
dividends (which may be cumulative or non-cumulative) at such rates, on such
conditions, and at such times, and payable in preference to, or in such relation
to, the dividends payable on any other class or classes or any other series;
(iii) entitled to such rights upon the dissolution of, or upon any distribution
of the assets of, the Corporation; (iv) convertible into, or exchangeable for,
shares of any other class or classes of stock, or of any other series of the
same or any other class or classes of stock of the Corporation at such price or
prices or at such rates of exchange and with such adjustments, if any; (v)
entitled to the benefit of such limitations, if any, on the issuance of
additional shares of such series or shares of any other series of Preferred
Stock; or (vi) entitled to such other preferences, powers, qualifications,
rights and privileges, all as the Board of Directors may deem advisable and as
are not inconsistent with law and the provisions of this Certificate of
Incorporation. Except as otherwise expressly provided herein or in any preferred
stock designation, any series of Preferred Stock may be designated, fixed and
determined as provided herein by the Board of Directors without approval of the
holders of Common Stock or the holders of Preferred Stock, or any series
thereof, and any such new series may have powers, preferences and rights,
including, without limitation, voting rights, dividend rights, liquidation
rights, redemption rights and conversion rights, senior to, junior to or pari
passu with the rights of the Common Stock, or any future class or series of
Preferred Stock or Common Stock.
C. General.
All preferences, voting powers, relative, participating, optional or other
special rights and privileges, and qualifications, limitations, or restrictions
of the Common Stock, are expressly made subject to and qualified by those that
may be fixed with respect to any shares of the Preferred Stock. No holder of
shares of the Corporation of any class, now or hereafter authorized, shall have
any preferential or preemptive rights to subscribe for, purchase or receive any
additional, unissued or treasury shares of capital stock or other securities of
the Corporation, including any any options or warrants for such shares or
securities or any securities convertible into or exchangeable for such shares or
securities, which may at any time or from time to time be issued, sold or
offered for sale by the Corporation.
ARTICLE V: The Corporation is to have perpetual existence.
ARTICLE VI: Elections of directors need not be by written ballot unless
otherwise provided in the Bylaws of the Corporation.
ARTICLE VII: The number of directors of the Corporation shall be such
number as from time to time shall be fixed by, or in the manner provided in, the
Bylaws of the Corporation. None of the directors need be a stockholder or a
resident of the State of Delaware.
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ARTICLE VIII: No director shall be personally liable to the Corporation or
any of its stockholders for any monetary damages for any breach of fiduciary
duty by such director as a director. Notwithstanding the foregoing sentence, a
director shall be liable to the extent provided by applicable law (i) for breach
of the director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL or (iv)
for any transaction from which the director derived an improper personal
benefit. All references in this paragraph to a director shall also be deemed to
refer to any other person who, pursuant to a provision of the certificate of
incorporation and in accordance with subsection (a) of ss. 141 of the DGCL,
exercises or performs any of the powers or duties otherwise conferred or imposed
upon the board of directors by the DGCL. No amendment to or repeal of this
Article EIGHTH shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment. If the DGCL is
amended after approval by the stockholders of this Article EIGHTH to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the DGCL as so amended.
ARTICLE IX: In furtherance and not in limitation of the rights, powers,
privileges and discretionary authority granted or conferred by the DGCL or other
statutes or laws of the State of Delaware, the Board of Directors is expressly
authorized:
A. To make, amend, alter or repeal the Bylaws of the Corporation;
B. To authorize and cause to be executed mortgages and liens upon
the real and personal property of the Corporation;
C. To set apart out of any funds of the Corporation available for
dividends, a reserve or reserves for any proper purpose and to reduce any
such reserve in the manner in which it was created; and
D. To adopt from time to time Bylaw provisions with respect to
indemnification of directors, officers, employees, agents and other
persons as it shall deem expedient and in the best interests of the
Corporation and to the extent permitted by law.
ARTICLE X: 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.
ARTICLE XI: The Corporation reserves the right to amend, alter, change or
repeal any provisions herein contained, in the manner now or hereafter
prescribed by statute, and all rights, powers, privileges and discretionary
authority granted or conferred herein upon stockholders or directors are granted
subject to this reservation.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation, which amends and restates the provisions of the
Certificate of Incorporation of the Corporation (as previously amended), and
which has been duly adopted in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware, to be signed and executed by
its Chief Executive Officer and Secretary, who declares, affirms, acknowledges
and certifies, under the penalties of perjury, that this is his free act and
deed and that the facts stated herein are true, and caused its corporate seal to
be hereunto affixed, this 2nd day of December, 2003.
/s/ James F. Mongiardo
-------------------------------------
James F. Mongiardo
Chief Executive Officer and Secretary
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