CERTIFICATE OF INCORPORATION
PILOT THERAPEUTICS HOLDINGS, INC.
The name of the Corporation is Pilot Therapeutics Holdings, Inc.
The registered office of the Corporation in the State of Delaware is
located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, Delaware 19801. The name of its registered
agent at that address is The Corporation Trust Company.
The purpose of the Corporation is to engage, directly or indirectly, in
any lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law.
The aggregate number of shares of capital stock which the Corporation
shall have authority to issue is fifty million (50,000,000) shares of Common
Stock, par value ($.001) per share.
A. Voting Rights. The holders of each share of Common Stock shall
have the right to one vote, and shall be entitled to notice of any stockholders'
meeting in accordance with the Bylaws of this Corporation, and shall be entitled
to vote upon such matters and in such manner as may be provided by law on all
matters submitted to a vote at any meeting of stockholders.
B. Dividend Rights. Subject to the rights of holders of all
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of any funds of the Corporation legally
available therefor, such dividends as may be declared from time to time by the
Board of Directors.
The number of Directors shall be as specified in or fixed in accordance
with the Bylaws of the Corporation but such number may be increased or decreased
from time to time in such manner as may be prescribed in the Bylaws. In the
absence of a Bylaw specifying the number of Directors, the number shall be seven
(7). Commencing with the 2002 annual meeting of stockholders (or at the
effective time of a written consent in lieu thereof), the Board of Directors
shall be divided into three classes, Class I, Class II, and Class III, as nearly
equal in number as
possible. The initial terms of such classes of Directors shall expire at the
annual meeting of stockholders to be held in the following years: Class I -
2003; Class II - 2004; and Class III - 2005. At each annual meeting of
stockholders after the 2002 annual meeting of stockholders, the successors to
the class of Directors whose term shall then expire shall be identified as being
of the same class of Directors they succeed and shall be elected to hold office
for a term expiring at the third succeeding annual meeting of stockholders. When
the number of Directors is changed, any newly-created directorships or any
decrease in directorships shall be so apportioned among the classes by the Board
of Directors as to make all classes as nearly equal in number as possible;
provided, however, that no decrease in the number of Directors shall shorten or
terminate the term of any incumbent Director.
In addition to the powers conferred upon the stockholders by the
Delaware General Corporation Law to adopt, amend or repeal the Bylaws, the Board
of Directors may adopt, amend or repeal the Bylaws of the Corporation.
A Director of the Corporation shall under no circumstances have any
personal liability to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director except for those specific breaches
and acts or omissions with respect to which the Delaware General Corporation Law
expressly provides that this provision shall not eliminate or limit such
personal liability of Directors. The modification or repeal of this Article VIII
shall not affect the restriction hereunder of a Director's personal liability
for any act or omission occurring prior to such modification or repeal.
The Corporation shall, to the fullest extent permitted by Section 145
of the Delaware General Corporation Law, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under 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 those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested Directors or otherwise, both as to action
in his official capacity while holding such office and to action while serving
at the request of the Corporation as a Director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, 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; provided, however, that the Corporation shall
indemnify any such indemnitee in connection with a proceeding initiated by such
indemnitee only if such proceeding was authorized by the Board of Directors of
the Corporation. In connection with the indemnification provided by Section 145
of the Delaware General Corporation Law and under any Bylaw, agreement, vote of
stockholders or disinterested Directors or otherwise, expenses incurred by a
Director or officer in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation in accordance with Section 145 of the Delaware
General Corporation Law or as authorized in the Bylaws of the Corporation.
The Corporation reserves the right to amend, alter, change or repeal
any provisions 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. This Certificate of
Incorporation may be amended by a resolution adopted by the Board of Directors
and, if required by the Delaware General Corporation Law, the approval of the
stockholders of the Corporation by the affirmative vote of a majority of the
votes entitled to be cast by each voting group entitled to vote on the matter;
provided, however, that any amendment or repeal of Article V of this Certificate
of Incorporation shall be approved by the affirmative vote of at least
two-thirds of the votes entitled to be cast by each voting group entitled to
vote on the matter.