CERTIFICATE OF INCORPORATION
OF
EMPYREAN BIOSCIENCE, INC.
FIRST: The name of the Corporation is Empyrean Bioscience, Inc.
SECOND: The address of its registered office in the State of Delaware is
No. 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.
THIRD: The nature of the business or purposes to be conducted or promoted
is: To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The number of shares for all classes of stock which the Corporation
is authorized to have outstanding is One Hundred Million (100,000,000), Ninety
Million (90,000,000) of which shall be designated as Common Shares, having a
$.0001 par value, and Ten Million (10,000,000) of which shall be designated as
Preferred Stock.
FIFTH: Unless otherwise specified in this Certificate of Incorporation, no
holder of shares of stock of the Corporation shall have any preemptive right or
other right to receive any securities of the Corporation.
SIXTH: The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of the Article FOURTH, to provide for the
issuance of the shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish from time
to time the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each series shall include, but
not be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares
of that series;
(c) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting
rights;
(d) Whether that series shall have conversion privileges, and, if so, the
terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of
Directors shall determine;
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(e) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the date or
date upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(f) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of
such sinking fund;
(g) The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the corporation,
and the relative rights of priority, if any, of payment of shares of
that series;
(h) Any other relative rights, preferences and limitations of that series.
Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment before any dividends shall be paid or
declared and set apart for payment on the common shares with respect to the same
dividend period.
If upon any voluntary or involuntary liquidation, dissolution or winding up
of the corporation, the assets available for distribution to holders of shares
of Preferred Stock of all series shall be insufficient to pay such holders the
full preferential amount to which they are entitled, then such assets shall be
distributed ratably among the shares of all series of Preferred Stock in
accordance with the respective preferential amounts (including unpaid cumulative
dividends, if any) payable with respect thereto.
SEVENTH: The name of the Incorporator is ACFB Incorporated. The mailing
address is 2300 BP Tower, 200 Public Square, Cleveland, Ohio 44114.
EIGHTH: The Corporation is to have perpetual existence.
NINTH: Except as otherwise fixed by or pursuant to the provisions of
Article VI hereof relating to the rights of the holders of any class or series
of stock having a preference over the Common Stock as to dividends or upon
liquidation, the number of the directors of the Corporation shall be fixed from
time to time by this Certificate of Incorporation or pursuant to the Bylaws of
the Corporation. The Directors on the Board of Directors shall be classified
with respect to the time for which they shall severally hold office by dividing
them into three classes. The number of directors of the Corporation shall not be
less than one (1) nor more than fifteen (15). The initial Board of Directors
shall consist of six (6) members. If the total number of directors is evenly
divisible by three, then each class shall have one-third of the total number of
directors. If the total number of directors is not evenly divisible by three,
the Board of Directors shall by resolution determine the number of directors in
each class, which shall be, as nearly as possible, the same for each class. All
directors of the Corporation shall hold office until their resignation or
removal or until their successors are duly elected and qualified. The directors
of the first class shall hold office until the first annual meeting of the
stockholders to be held after the date upon which such director was elected and
until their successors are duly elected and qualified; the directors of the
second class shall hold office until the second annual meeting of the
stockholders to be held after such date and until their successors are duly
elected and qualified; and the directors of the third class shall hold office
until the third annual meeting of stockholders to be held after such date and
until their successors are duly elected and qualified. At each annual meeting of
stockholders following the first annual meeting, the successors to the class of
directors whose terms shall expire in that year shall be elected, and said
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successors shall hold office until the third following annual meeting of
stockholders and until the election and qualification of their respective
successors. If successors to the class of directors whose term shall expire at
the annual meeting of stockholders are not elected at such meeting or if such
meeting is not held, directors may be elected at a special meeting of
stockholders as successors to that class of directors.
Advance notice of nominations for the election of directors shall be given
in the manner and to the extent provided in the Bylaws of the Corporation.
Except as otherwise provided for or fixed by or pursuant to the provisions
of Article VI hereof relating to the rights of the holders of any class or
series of stock having preference over the Common Stock as to dividends or upon
liquidation, newly created directorships resulting from any increase in the
number of directors may be filled by the Board of Directors and any vacancies of
the Board of Directors resulting from death, resignation, removal or other cause
shall only be filled by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors, or by a sole remaining director, and in accordance with the Bylaws of
the Corporation. Any director elected in accordance with the preceding sentence
of this paragraph shall hold office for the remainder of the full term of the
director and until such director's successor shall have been elected and
qualified.
Any director or the entire Board of Directors may be removed only for cause
and only by the vote of the holders of a majority of the securities of the
Corporation then entitled to vote at an election of directors. For purposes of
this Certificate of Incorporation, "cause" shall mean gross neglect or willful
misconduct in the performance of the duties as a director.
TENTH: 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.
To authorize and cause to be executed mortgages and liens upon the
real property of the Corporation.
To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any
such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the directors of the
Corporation.
When and as authorized by the stockholders in accordance with this
Certificate of Incorporation and applicable statutes, to sell, lease or
exchange all or substantially all of the property and assets of the
Corporation, including its goodwill and its corporate franchises, upon such
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terms and conditions and for such consideration (which may consist, in
whole or in part, of money or property, including shares of stock in,
and/or other securities of, any other corporation or corporations) as the
Corporation's Board of Directors shall deem appropriate and in the best
interests of the Corporation.
ELEVENTH: 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. Elections of directors
need not be by written ballot unless the bylaws of the Corporation shall so
provide.
TWELFTH : Nominations of persons for election to the Board of Directors may
be made at an annual meeting of stockholders or special meeting of stockholders
called by the Board of Directors for the purpose of electing directors (i) by or
at the direction of the Board of Directors or (ii) by an stockholder of the
Corporation entitled to vote for the election of directors at such meeting who
complies with the notice of procedures set forth in this Article XII. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed or received at the principal executive offices of the Corporation not
less than 60 days nor more than 90 days prior to the scheduled date of the
meeting, regardless of any postponement, deferral or adjournment of that meeting
to a later date; provided, however, that if less than 70 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 delivered or received not
later than the close of business of the 10th day following the earlier or (i)
the date on which such notice of the date of the meeting was mailed or (ii) the
day on which such public disclosure was made.
A stockholder's notice to the Secretary shall set forth (i) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director (a) the name, age, business address and residence address of such
person, (b) the principal occupation or employment of such person, (c) the class
and number of shares of the Corporation that are beneficially owned by such
person on the date of such stockholder's notice and (d) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, or any
successor statute thereto (including, without limitation, such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (ii) as to the stockholder giving notice (a) the name and
address, as such information appears on the Corporation's books, of such
stockholder and any other stockholders known by such stockholder to be
supporting such nominee(s), (b) the class and number of shares of the
Corporation that are beneficially owned by such stockholder and each other
stockholder known by such stockholder to be supporting such nominee(s) on the
date of such stockholder notice, (c) 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; and (iii) a description of all
arrangements or understandings between the stockholder and each nominee and
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder.
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Subject to the rights, if any, of the holders of any series of Preferred
Stock then outstanding, no person shall be eligible for election as a director
of the Corporation unless nominated in accordance with the procedures set forth
in this Article XII. The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this Article XII and if he should
so determine, he shall so declare to the meeting and the defective nomination
shall be disregarded.
THIRTEENTH: At the annual meeting of stockholders, only such business shall
be conducted, and only such proposals shall be acted upon, as shall have been
properly brought before the annual meeting of stockholders (i) by or at the
direction of the Board of Directors or (ii) by a stockholder of the Corporation
who complies with the procedures set forth in this Article XIII. For business or
a proposal to be properly brought before an annual meeting of stockholders by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. 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 60 days nor more than 90 days prior to the scheduled
date of the annual meeting, regardless of any postponement, deferral or
adjournment of that meeting to a later date; provided, however, that if less
than 70 days' notice or prior public disclosure of the date of the annual
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so delivered or mailed and received not later than the close of business
on the 10th day following the earlier of (i) the day on which such notice of the
date of the meeting was mailed or (ii) the day on which such public disclosure
was made.
A stockholder's notice to the Secretary shall set forth as to each matter
the stockholder proposes to bring before an annual meeting of stockholders (i) a
description, in 500 words or less, of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and address, as such information appears on the
Corporation's books, of the stockholder proposing such business and any other
stockholder known by such stockholder to be supporting such proposal, (iii) the
class and number of shares of the Corporation that are beneficially owned by
such stockholder and each other stockholder known by such stockholder to be
supporting such proposal on the date of such stockholder's notice, (iv) a
description, in 500 words or less, of any interest of the stockholder in such
proposal and (v) a representation that the stockholder is a holder of record of
stock of the Corporation and intends to appear in person or by proxy at the
meeting to present the proposal specified in the notice.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that the business was not properly brought before the
meeting in accordance with the procedures prescribed by this Article XIII, and
if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing, nothing in this Article XIII shall be interpreted
or construed to require the inclusion of information about any such proposal in
any proxy statement distributed by, at the direction of, or on behalf of, the
Board of Directors.
FOURTEENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
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FIFTEENTH: No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (1) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) under Section 174 of the Delaware General Corporation Law, or (4) for
any transaction from which the director derived an improper personal benefit. If
the Delaware General Corporation Law hereafter is amended to authorize the
further elimination or limitation of the liability of directors, then the
liability of a director of the Corporation, in addition to the limitations on
personal liability provided herein, shall be limited to the fullest extent
permitted by the amended Delaware General Corporation Law. Any repeal or
modification of this Article shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director of the Corporation
existing at the time of such repeal or modification.
SIXTEENTH: A. Each person who was or is made a party to or is threatened to
be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she, or a person of whom he or she is the legal
representative, 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, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other 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, 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 said 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 or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
subsection B of this Article, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Article or otherwise. The
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Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
B. If a claim under subsection A of this Article is not paid in full by the
Corporation within thirty (30) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. 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 action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
C. The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of this Certificate of
Incorporation, bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
D. 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 such 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 Delaware General Corporation Law.
E. As used in this Article, references to "the Corporation" shall include,
in addition to the resulting or surviving corporation, any constituent
corporation absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees and agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, or other enterprise, shall stand in the same position under the
provisions of this Article with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
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F. If this Article or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each director, officer, employee and agent of the Corporation as to
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including a grand jury proceeding and
an action by the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated or by any other
applicable law.
THE UNDERSIGNED, being the Incorporator hereinabove named, for the purpose
of forming a corporation pursuant to the General Corporation Law of the State of
Delaware, does make this certificate, hereby declaring and certifying that this
is its act and deed and the facts herein stated are true, and accordingly has
hereunto set its hand this _____ day of July, 2000.
ACFB INCORPORATED
Incorporator
By:
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Jill Silver, Assistant Secretary
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