**Exhibit 3.1**

 

**AMENDED AND RESTATED**

**CERTIFICATE OF INCORPORATION**

**OF**

**CARDIMA, INC.**

A Delaware corporation 

(Pursuant to Sections 242 and 245 

of theDelaware General Corporation Law) 

 

CARDIMA, INC., a corporationorganized and existing under and by virtue of the General Corporation Law of the State of Delaware, hereby certifies as follows: 

 

FIRST: That the name of the corporation is Cardima, Inc. and that the corporation was originally incorporated on November 12, 1992 pursuant to the GeneralCorporation Law. 

 

SECOND: The Amended and Restated Certificateof Incorporation of this corporation shall be restated to read in full as follows: 

 

**“ARTICLE I**

 

Thename of this corporation is Cardima, Inc. 

 

**ARTICLE II**

 

The address of the registered office of this corporationin the State of Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, Delaware 19805. The name of its registered agent at such address is Corporation Service Company. 

 

**ARTICLE III**

 

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 organizedunder the General Corporation Law of Delaware. 

 

**ARTICLE IV**

 

This corporation is authorized to issue two classes ofstock to be designated common stock (“Common Stock”) and preferred stock (“Preferred Stock”). The total number of shares which the Corporation is authorized to issue is Thirty Million (30,000,000) shares. The number of shares ofCommon Stock authorized to be issued is Twenty-Five Million (25,000,000), par value $0.001 per share, and the number of shares of Preferred Stock authorized to be issued is Five Million (5,000,000), par value $0.001 per share. 

 

The Preferred Stock may be issued from time to time in one or more series,without further stockholder approval. The Board of Directors is hereby authorized, in the resolution or resolutions adopted by the Board of Directors providing for the issuance of any wholly unissued series of Preferred Stock, within the limitationsand restrictions stated in this Amended and Restated Certificate of Incorporation, to fix or alter the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), the 

 

redemption price or prices, and the liquidation preferences of any wholly unissued series of Preferred Stock, and the number of shares constituting any suchseries and the designation thereof, or any of them, and to increase or decrease the number of shares of any series subsequent to the issue of shares of that series, but not below the number of shares of such series then outstanding. In case thenumber of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series. 

 

**ARTICLE V**

 

Except as otherwise provided in this Amended and Restated Certificate of Incorporation, in furtherance and not in limitationof the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend, and rescind any or all of the Bylaws of this corporation. 

 

**ARTICLE VI**

 

The number of directors of this corporation shall be fixed from time to time by a bylaw or amendment thereof duly adopted by the Board of Directors or bythe stockholders. 

 

**ARTICLE VII**

 

Elections of directors need not be by written ballot unless the Bylaws ofthis corporation shall so provide. 

 

**ARTICLE VIII**

 

Meetings of stockholders may be held within or without theState of Delaware, as the Bylaws may provide. The books of this 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 ofDirectors or in the Bylaws of this corporation. 

 

**ARTICLE IX**

 

A director of this corporation shall, to the full extentpermitted by the Delaware General Corporation Law as it now exists or as it may hereafter be amended, not be liable to this corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Neither any amendment norrepeal of this Article, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation inconsistent with this Article, shall eliminate or reduce the effect of this Article in respect of any matter occurring, or any causeof action, suit or claim that, but for this Article, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. 

 

**ARTICLE X**

 

No action required to be taken or that may be taken at any annual or special meeting of the stockholders of this corporation may be taken without ameeting, and the power of 

 

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stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. 

 

**ARTICLE XI**

 

To the fullest extent permitted by applicable law, this corporation isauthorized to provide indemnification of (and advancement of expenses to) its agents (and any other persons to which Delaware law permits this corporation to provide indemnification) through Bylaw provisions, agreements with such agents or otherpersons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the Delaware General Corporation Law, subject only to limits created by applicable Delawarelaw (statutory or non-statutory), with respect to actions for breach of duty to this corporation, its stockholders, and others. 

 

Any repeal or modification of any of the foregoing provisions of this Article shall not adversely affect any right or protection of a director, officer,agent or other person existing at the time of, or increase the liability of any director of this corporation with respect to any acts or omissions of such director, officer, agent or other person occurring prior to such repeal or modification.

 

**ARTICLE XII**

 

This corporation reserves the right to amend, alter, change or repeal anyprovision contained in this Amended and Restated 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.” 

 

* * * 

 

 

THIRD: That thereafter said amendment andrestatement was duly adopted in accordance with the provisions of Section 242 and Section 245 of the Delaware General Corporation Law by obtaining a majority vote of each of the Common Stock and Preferred Stock, in favor of said amendment andrestatement in the manner set forth in Section 228**** of the Delaware General Corporation Law. 

 

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IN WITNESS WHEREOF, CARDIMA, INC. has caused this Amended and Restated Certificate of Incorporation to besigned by its President and attested to by its Secretary this 11th day of June, 1997. 

 

 
CARDIMA, INC.
/s/ Phillip C. Radlick

Phillip C. Radlick, Ph.D.

President and Chief Executive Officer

 

ATTEST 

 

 

/s/ Joshua Green

Joshua L. Green, Secretary

 

CERTIFICATE OF AMENDMENT OF

 

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF

 

CARDIMA, INC.

 

Cardima, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows: 

 

FIRST: The name of the Corporation is Cardima, Inc. 

 

SECOND: The date of filing of its original Certificate of Incorporation withthe Secretary of State of Delaware was November 12, 1992. 

 

THIRD: At a meeting of the Board of Directors of Cardima, Inc., resolutions were duly adopted providing that: 

 

(i) Article IV of the Certificate of Incorporation of Cardima, Inc., as amended, shall be hereby amended and restated to read as follows: 

 

“ARTICLE IV 

 

“This corporation is authorized to issue two classes of stock to be designated common stock(“Common Stock”) and preferred (“Preferred Stock”). The total number of shares which the Corporation is authorized to issue is Fifty Five Million (55,000,000) shares. The number of shares of Common Stock authorized to be issuedis Fifty Million (50,000,000), par value $0.001 per share, and the number of shares of Preferred Stock authorized to be issued is Five Million (5,000,000), par value $0.001 per share. 

 

The Preferred Stock may be issued from time to time in one or more series, without further stockholderapproval. The Board of Directors is hereby authorized, in the resolution or resolutions adopted by the Board of Directors providing for the issuance of any wholly unissued series of Preferred Stock, within the limitations and restrictions stated inthis Amended and Restated Certificate of Incorporation, to fix or alter the dividend rights, dividend rate conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), the redemption price or prices, and theliquidation preferences of any wholly unissued series of Preferred Stock, and the number of shares constituting any such series and the designation thereof, or any of them, and to increase or decrease the number of shares of any series subsequent tothe issue of shares of that series, but not below the number or shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status that they hadprior to the adoption of the resolution originally fixing the number of shares of such series.” 

 

FOURTH: That thereafter, pursuant to resolution of its Board of Directors, a meeting of the stockholders of said corporation was duly called and held,upon notice in accordance with 

 

Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessarynumber of shares as required by statute were voted in favor of the amendment. 

 

FIFTH: This Certificate of Amendment of Certificate of Incorporation was duly adopted at said annual meeting of the stockholders in accordance with the provisions of section 242 of the General Corporation Law of theState of Delaware. 

 

IN WITNESS WHEREOF, said Cardima, Inc. hascaused this certificate to be signed by its President and Chief Executive Officer, Phillip C. Radlick, Ph.D. this 16th day of June, 2000. 

 
By: 
/S/    PHILLIP C.RADLICK        
  
Phillip C. Radlick
  
President and Chief Executive Officer

CERTIFICATE OF AMENDMENT OF

 

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF

 

CARDIMA, INC.

 

Cardima, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows: 

 

FIRST: The name of the Corporation is Cardima, Inc 

 

SECOND: The date of filing of its original Certificate of Incorporation withthe Secretary of State of Delaware was November 12, 1992. 

 

THIRD: At a meeting of the Board of Directors of Cardima, Inc., resolutions were duly adopted providing that: 

 

(i) Article IV of the Certificate of Incorporation of Cardima, Inc., as amended, shall be hereby amended and restated to read as follows: 

 

“ARTICLE IV 

 

“This corporation is authorized to issue two classes of stock to be designated common stock(“Common Stock”) and preferred (“Preferred Stock”). The total number of shares which the Corporation is authorized to issue is Eighty Million (80,000,000) shares. The number of shares of Common Stock authorized to be issued isSeventy Five Million (75,000,000), par value $0.001 per share, and the number of shares of Preferred Stock authorized to be issued is Five Million (5,000,000), par value $0.001 per share. 

 

The Preferred Stock may be issued from time to time in one or more series, without further stockholderapproval. The Board of Directors is hereby authorized, in the resolution or resolutions adopted by the Board of Directors providing for the issuance of any wholly unissued series of Preferred Stock, within the limitations and restrictions stated inthis Amended and Restated Certificate of Incorporation, to fix or alter the dividend rights, dividend rate conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), the redemption price or prices, and theliquidation preferences of any wholly unissued series of Preferred Stock, and the number of shares constituting any such series and the designation thereof, or any of them, and to increase or decrease the number of shares of any series subsequent tothe issue of shares of that series, but not below the number or shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status that they hadprior to the adoption of the resolution originally fixing the number of shares of such series.” 

 

FOURTH: That thereafter, pursuant to resolution of its Board of Directors, a meeting of the stockholders of said corporation was duly called and held,upon notice in accordance with 

Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares asrequired by statute were voted in favor of the amendment. 

 

FIFTH: This Certificate of Amendment of Certificate of Incorporation was duly adopted at said annual meeting of the stockholders in accordance with the provisions of section 242 of the General Corporation Law of the State of Delaware.

 

IN WITNESS WHEREOF, said Cardima, Inc. has caused thiscertificate to be signed by its Chief Executive Officer, Gabriel B. Vegh this 19th day of June, 2001. 

 

By   /S/    Gabriel B. Vegh

       Gabriel B. Vegh

       Chief Executive Officer

 

**CERTIFICATEOF DESIGNATION,**

 

**RIGHTSAND PREFERENCESOF**

 

**SERIES APARTICIPATING PREFERRED STOCKOF**

 

**CARDIMA, INC.**

 

We, Gabriel B. Vegh, Chief Executive Officer, and Ronald E. Bourquin, Secretary, of Cardima, Inc., a corporation organized and existing under the GeneralCorporation Law of the State of Delaware (the “Corporation”), DO HEREBY CERTIFY: 

 

That pursuant to the authority conferred upon the Board of Directors by the Certificate of Incorporation of this Corporation, the Board of Directors effective on May 17, 2002 adopted the following resolution creatinga series of Seven Hundred Fifty Thousand (750,000) shares of Preferred Stock designated as Series A Participating Preferred Stock: 

 

RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation in accordance with the provisions of its Certificate ofIncorporation, a series of Preferred Stock of the Corporation be and it hereby is created, and that the designation and amount thereof and the powers, preferences and relative, participating, optional and other special rights of the shares of suchseries, and the qualifications, limitations or restrictions thereof are as follows: 

 

1. Designation and Amount. The shares of such series shall be designated as “Series A Participating Preferred Stock,” $0.001 par value per share, and the number of shares constituting such seriesshall be Seven Hundred Fifty Thousand (750,000). Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series A Participating Preferred Stock to anumber less than that of the number of shares then outstanding plus the number of shares issuable upon the exercise of outstanding rights, options or warrants or upon conversion of outstanding securities issued by the Corporation. 

 

2. Dividends and Distributions. 

 

(A) Subject to the prior and superior rights of the holders of any shares ofany series of Preferred Stock ranking prior and superior to the shares of Series A Participating Preferred Stock with respect to dividends, the holders of shares of Series A Participating Preferred Stock in preference to the holders of shares ofCommon Stock, par value $0.001 per share (the “Common Stock”), of the Corporation and any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose,quarterly dividends payable in cash on the first day of March, June, September and December in each year (each such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend PaymentDate after the first issuance of a share or fraction of a share of Series A Participating Preferred Stock in an amount per share (rounded to the nearest cent) equal to the greater of (a) $50.00, or (b) subject to the provision for adjustmenthereinafter set forth, one hundred (100) times the aggregate per share amount of all cash dividends, and one 

 

hundred (100) times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in sharesof Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock, since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first QuarterlyDividend Payment Date, since the first issuance of any share or fraction of a share of Series A Participating Preferred Stock. In the event the Corporation shall at any time after the close of business on May 20, 2002 (the “Rights DeclarationDate”) (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii) combine the outstanding Common Stock into a smaller number of shares, by reclassification or otherwise, thenin each such case the amount to which holders of shares of Series A Participating Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction thenumerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 

 

(B) The Corporation shall declare a dividend or distribution on the Series AParticipating Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend ordistribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $50.00 per share on the Series A Participating PreferredStock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. 

 

(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of SeriesA Participating Preferred Stock unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, orunless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Participating Preferred Stock entitled to receive a quarterly dividend and before such QuarterlyDividend Payment Date in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series AParticipating Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board ofDirectors may fix a record date for the determination of holders of shares of Series A Participating Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than thirty (30) daysprior to the date fixed for the payment thereof. 

 

3. VotingRights. The holders of shares of Series A Participating Preferred Stock shall have the following voting rights: 

 

(A) Subject to the provision for adjustment hereinafter set forth, each share of Series AParticipating Preferred Stock shall entitle the holder thereof to one hundred (100) votes on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at any time after the Rights Declaration Date (i)declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock into a greater number of shares or (iii) combine the outstanding Common Stock into a smaller number of shares, by reclassification orotherwise, then in each such case the number of votes per share to which holders of shares of Series A Participating Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction thenumerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock outstanding immediately prior to such event. 

 

(B) Except as otherwise provided herein or by law, theholders of shares of Series A Participating Preferred Stock and the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation. 

 

(C) (i) If at any time dividends on any Series AParticipating Preferred Stock shall be in arrears in an amount equal to six quarterly dividends thereon, the occurrence of such contingency shall mark the beginning of a period (herein called a “default period”) which shall extend untilsuch time when all accrued and unpaid dividends for all previous quarterly dividend periods and for the current quarterly dividend period on all shares of Series A Participating Preferred Stock then outstanding shall have been declared and paid orset apart for payment. During each default period, all holders of Preferred Stock (including holders of the Series A Participating Preferred Stock) with dividends in arrears in an amount equal to six quarterly dividends thereon, voting as a class,irrespective of series, shall have the right to elect two directors. 

 

(ii) During any default period, such voting right of the holders of Series A Participating Preferred Stock may be exercised initially at a special meeting called pursuant to subparagraph (iii) of this Section 3(C) orat any annual meeting of stockholders, and thereafter at annual meetings of stockholders, provided that neither such voting right nor the right of the holders of any other series of Preferred Stock, if any, to increase, in certain cases, theauthorized number of directors shall be exercised unless the holders of ten percent (10%) in number of shares of Preferred Stock outstanding shall be present in person or by proxy. The absence of a quorum of the holders of Common Stock shall notaffect the exercise by the holders of Preferred Stock of such voting right. At any meeting at which the holders of Preferred Stock shall exercise such voting right initially during an existing default period, they shall have the right, voting as aclass, to elect directors to fill such vacancies, if any, in the Board of Directors as may then exist up to two directors or, if such right is exercised at an annual meeting, to elect two directors. If the number which may be so elected at anyspecial meeting does not 

 

amount to the required number, the holders of the Preferred Stock shall have the right to make such increase in the number of directors as shall be necessaryto permit the election by them of the required number. After the holders of the Preferred Stock shall have exercised their right to elect directors in any default period and during the continuance of such period, the number of directors shall not beincreased or decreased except by vote of the holders of Preferred Stock as herein provided or pursuant to the rights of any equity securities ranking senior to or pari passu with the Series A Participating Preferred Stock. 

 

(iii) Unless the holders of Preferred Stock, during anexisting default period, shall have previously exercised their right to elect directors, the Board of Directors may order, or any stockholder or stockholders owning in the aggregate not less than ten percent (10%) of the total number of shares ofPreferred Stock outstanding, irrespective of series, may request, the calling of a special meeting of the holders of Preferred Stock, which meeting shall thereupon be called by the President, a Vice President or the Secretary of the Corporation.Notice of such meeting and of any annual meeting at which holders of Preferred Stock are entitled to vote pursuant to this paragraph (C)(iii) shall be given to each holder of record of Preferred Stock by mailing a copy of such notice to such holderat such holder’s last address as the same appears on the books of the Corporation. Such meeting shall be called for a time not earlier than ten (10) days and not later than sixty (60) days after such order or request or in default of thecalling of such meeting within sixty (60) days after such order or request, such meeting may be called on similar notice by any stockholder or stockholders owning in the aggregate not less than ten percent (10%) of the total number of shares ofPreferred Stock outstanding. Notwithstanding the provisions of this paragraph (C)(iii), no such special meeting shall be called during the period within sixty (60) days immediately preceding the date fixed for the next annual meeting of thestockholders. 

 

(iv) In any default period, theholders of Common Stock, and other classes of stock of the Corporation, if applicable, shall continue to be entitled to elect the whole number of directors until the holders of Preferred Stock shall have exercised their right to elect two directorsvoting as a class, after the exercise of which right (x) the directors so elected by the holders of Preferred Stock shall continue in office until their successors shall have been elected by such holders or until the expiration of the defaultperiod, and (y) any vacancy in the Board of Directors may (except as provided in paragraph (C)(ii) of this Section 3) be filled by vote of a majority of the remaining directors theretofore elected by the holders of the class of stock which electedthe director whose office shall have become vacant. References in this paragraph (C) to directors elected by the holders of a particular class of stock shall include directors elected by such directors to fill vacancies as provided in clause (y) ofthe foregoing sentence. 

 

(v) Immediately uponthe expiration of a default period, (x) the right of the holders of Preferred Stock as a class to elect directors shall cease, (y) the term of any directors elected by the holders of Preferred Stock as a class shall 

 

terminate, and (z) the number of directors shall be such number as may be provided for in, or pursuant to, the Certificate of Incorporation or Bylawsirrespective of any increase made pursuant to the provisions of paragraph (C)(ii) of this Section 3 (such number being subject, however, to change thereafter in any manner provided by law or in the Certificate of Incorporation or Bylaws). Anyvacancies in the Board of Directors effected by the provisions of clauses (y) and (z) in the preceding sentence may be filled by a majority of the remaining directors, even though less than a quorum. 

 

(D) Except as set forth herein, holders of Series AParticipating Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action. 

 

4. Certain Restrictions. 

 

(A) Whenever quarterly dividends or other dividends or distributions payableon the Series A Participating Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Participating Preferred Stock outstandingshall have been paid in full, the Corporation shall not 

 

(i) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to theSeries A Participating Preferred Stock; 

 

(ii)declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Participating Preferred Stock except dividends paidratably on the Series A Participating Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; 

 

(iii) redeem or purchase or otherwise acquire forconsideration shares of any stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Participating Preferred Stock provided that the Corporation may at any time redeem, purchase or otherwiseacquire shares of any such parity stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Participating Preferred Stock; or 

 

(iv) purchase or otherwise acquire for consideration anyshares of Series A Participating Preferred Stock or any shares of stock ranking on a parity with the Series A Participating Preferred Stock except in accordance with a purchase offer made in writing or by publication (as determined by the Board ofDirectors) to all holders of such shares upon such terms as the Board of Directors, 

 

after consideration of the respective annual dividend rates and other relative rights and preferences ofthe respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. 

 

(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of theCorporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. 

 

5. Reacquired Shares. Any shares of Series A Participating Preferred Stock purchased or otherwise acquired by the Corporation in any mannerwhatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stockto be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein. 

 

6. Liquidation, Dissolution or Winding Up. 

 

(A) Upon any liquidation (voluntary or otherwise), dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares ofstock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Participating Preferred Stock unless, prior thereto, the holders of shares of Series A Participating Preferred Stock shall have received pershare, the greater of one hundred (100) times $1.00 or one hundred (100) times the payment made per share of Common Stock, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of suchpayment (the “Series A Liquidation Preference”). Following the payment of the full amount of the Series A Liquidation Preference, no additional distributions shall be made to the holders of shares of Series A Participating Preferred Stockunless, prior thereto, the holders of shares of Common Stock shall have received an amount per share (the “Common Adjustment”) equal to the quotient obtained by dividing (i) the Series A Liquidation Preference by (ii) one hundred (100) (asappropriately adjusted as set forth in subparagraph (C) below to reflect such events as stock splits, stock dividends and recapitalization with respect to the Common Stock) (such number in clause (ii), the “Adjustment Number”). Followingthe payment of the full amount of the Series A Liquidation Preference and the Common Adjustment in respect of all outstanding shares of Series A Participating Preferred Stock and Common Stock, respectively, holders of Series A ParticipatingPreferred Stock and holders of shares of Common Stock shall receive their ratable and proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number to one with respect to such Preferred Stock and Common Stock,on a per share basis, respectively. 

 

(B) In the event there arenot sufficient assets available to permit payment in full of the Series A Liquidation Preference and the liquidation preferences of all other series of Preferred Stock, if any, which rank on a parity with the Series A Participating Preferred Stock,then such remaining assets shall be distributed ratably to the holders of such parity shares in proportion to their respective liquidation preferences. In the event there are not sufficient assets available to permit payment in full of the CommonAdjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock. 

 

(C) In the event the Corporation shall at any time after the Rights Declaration Date (i) declare anydividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii) combine the outstanding Common Stock into a smaller number of shares, by reclassification or otherwise, then in each such case theAdjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and thedenominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 

 

7. Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which theshares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series A Participating Preferred Stock shall at the same time be similarly exchanged or changedin an amount per share (subject to the provision for adjustment hereinafter set forth) equal to one hundred (100) times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which orfor which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstandingCommon Stock or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Participating PreferredStock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that areoutstanding immediately prior to such event. 

 

8.Redemption. The shares of Series A Participating Preferred Stock shall not be redeemable. 

 

9. Ranking. The Series A Participating Preferred Stock shall rank junior to all other series of the Corporation’s Preferred Stock as to thepayment of dividends and the distribution of assets, unless the terms of any such series shall provide otherwise. 

 

10. Amendment. The Certificate of Incorporation and the Bylaws of the Corporation shall not be further amended in any manner which would materiallyalter or change the powers, preferences or special rights of the Series A Participating Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least 66 2/3% of the outstanding shares of Series A Participating Preferred Stock voting separately as a class. 

 

11. Fractional Shares. Series A Participating Preferred Stock may beissued in fractions of a share which shall entitle the holder, in proportion to such holder’s fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holdersof Series A Participating Preferred Stock. 

 

IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm the foregoing as trueunder the penalties of perjury this 20th day of May, 2002. 

 

 

 

/S/ Gabriel Vegh

Gabriel B. Vegh

Chief Executive Officer

 

 

 

 

Attest:

 

 

 

/S/ Ronald Bourquin

Ronald E. Bourquin

Secretary

 

 

CERTIFICATE OF AMENDMENT OF

 

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF

 

CARDIMA, INC. 

 

Cardima, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows: 

 

FIRST: The name of the Corporation is Cardima, Inc 

 

SECOND: The date of filing of its original Certificate of Incorporation withthe Secretary of State of Delaware was November 12, 1992. 

 

THIRD: At a meeting of the Board of Directors of Cardima, Inc., resolutions were duly adopted providing that: 

 

(i) The first paragraph of Article IV of the Certificate of Incorporation of Cardima, Inc., as amended, shall be hereby amended and restated to read asfollows: 

 

“ARTICLE IV 

 

“This corporation is authorized to issue two classes ofstock to be designated common stock (“Common Stock”) and preferred (“Preferred Stock”). The total number of shares which the Corporation is authorized to issue is One Hundred Five Million (105,000,000) shares. The number ofshares of Common Stock authorized to be issued is One Hundred Million (100,000,000), par value $0.001 per share, and the number of shares of Preferred Stock authorized to be issued is Five Million (5,000,000), par value $0.001 per share.”

 

FOURTH: That thereafter, pursuant to resolution of its Boardof Directors, a meeting of the stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as requiredby statute were voted in favor of the amendment. 

 

FIFTH: ThisCertificate of Amendment of Certificate of Incorporation was duly adopted at said annual meeting of the stockholders in accordance with the provisions of section 242 of the General Corporation Law of the State of Delaware. 

 

IN WITNESS WHEREOF, said Cardima, Inc. has caused this certificate to be signed by its Chief ExecutiveOfficer, Gabriel B. Vegh this 10th day of October, 2002. 

 

By   /S/  Gabriel Vegh

Gabriel B. Vegh

Chief ExecutiveOfficer

 

 

CERTIFICATE OF AMENDMENT OF

 

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF

 

CARDIMA, INC.

 

Cardima, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows: 

 

FIRST: The name of the Corporation is Cardima, Inc. 

 

SECOND: The date of filing of its original Certificate of Incorporation withthe Secretary of State of Delaware was November 12, 1992. 

 

THIRD: At a meeting of the Board of Directors of Cardima, Inc., resolutions were duly adopted providing that: 

 

(i) The first paragraph of Article IV of the Certificate of Incorporation of Cardima, Inc., as amended, shall be hereby amended and restated to read asfollows: 

 

ARTICLE IV 

 

“This corporation is authorized to issue two classes ofstock to be designated common stock (“Common Stock”) and preferred (“Preferred Stock”). The total number of shares which the Corporation is authorized to issue is One Hundred Thirty Million (130,000,000) shares. The number ofshares of Common Stock authorized to be issued is One Hundred Twenty Five Million (125,000,000), par value $0.001 per share, and the number of shares of Preferred Stock authorized to be issued is Five Million (5,000,000), par value $0.001 pershare.” 

 

FOURTH: That thereafter, pursuant to resolutionof its Board of Directors, a meeting of the stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number ofshares as required by statute were voted in favor of the amendment. 

 

FIFTH: This Certificate of Amendment of Certificate of Incorporation was duly adopted at said annual meeting of the stockholders in accordance with the provisions of section 242 of the General Corporation Law of the State of Delaware.

 

IN WITNESS WHEREOF, said Cardima, Inc. has caused this certificate to be signed by its Chief ExecutiveOfficer, Gabriel B. Vegh this 20th day of June 2003. 

 

By   /S/  Gabriel Vegh

Gabriel B. Vegh

Chief ExecutiveOfficer