newcardio_8k-ex410.htm


    Exhibit 4.10

     

    
      NEWCARDIO,
INC.

      


      CERTIFICATE
OF DESIGNATION OF PREFERENCES,

      RIGHTS
AND LIMITATIONS

      OF

      SERIES
B CONVERTIBLE PREFERRED STOCK

      


      PURSUANT
TO SECTION 151 OF THE

      DELAWARE
GENERAL CORPORATION LAW

      


              The
undersigned, Richard D. Brounstein, does hereby certify that:

      


      1. He is
the Executive Vice President, CFO and Secretary of NewCardio, Inc., a Delaware
corporation (the “Corporation”).

      


      2. The
Corporation is authorized to issue 1,000,000 shares of preferred stock, of which
12,000 shares have been designated as Series A 10% Convertible Preferred Stock
(“Series
A
Preferred Stock”), and 8,200 shares of such Series A Preferred Stock have
been issued.

      


      3. The
following resolutions were duly adopted by the board of directors of the
Corporation (the “Board of
Directors”):

      


      WHEREAS,
the certificate of incorporation of the Corporation provides for a class of its
authorized stock known as preferred stock, comprised of 1,000,000 shares, $0.001
par value per share, issuable from time to time in one or more
series;

      


      WHEREAS,
the Board of Directors is authorized to fix the dividend rights, dividend rate,
voting rights, conversion rights, rights and terms of redemption and liquidation
preferences of any wholly unissued series of preferred stock and the number of
shares constituting any series and the designation thereof, of any of them;
and

      


      WHEREAS,
it is the desire of the Board of Directors, pursuant to its authority as
aforesaid, to fix the rights, preferences, restrictions and other matters
relating to a new series of the preferred stock, which shall consist of, except
as otherwise set forth in the Purchase Agreement, up to 18,000 shares of the
preferred stock which the Corporation has the authority to issue, to be
designated as “Series B Preferred Stock”, as follows:

      


      NOW,
THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for
the issuance of a series of preferred stock for cash or exchange of other
securities, rights or property and does hereby fix and determine the rights,
preferences, restrictions and other matters relating to such series of preferred
stock as follows:


      
        
           


        

        
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      TERMS
OF PREFERRED STOCK

      


      Section
1.      Definitions.
Capitalized terms used and not otherwise defined herein that are defined in the
Purchase Agreement shall have the meanings given such terms in the Purchase
Agreement. For the purposes hereof, the following terms shall have the following
meanings:

      


      “Bankruptcy
Event” means any of the following events: (a) the Corporation or any
Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation
S-X) thereof commences a case or other proceeding under any bankruptcy,
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction relating to the
Corporation or any Significant Subsidiary thereof; (b) there is commenced
against the Corporation or any Significant Subsidiary thereof any such case or
proceeding that is not dismissed within 60 days after commencement; (c) the
Corporation or any Significant Subsidiary thereof is adjudicated insolvent or
bankrupt or any order of relief or other order approving any such case or
proceeding is entered; (d) the Corporation or any Significant Subsidiary thereof
suffers any appointment of any custodian or the like for it or any substantial
part of its property that is not discharged or stayed within 60 calendar days
after such appointment; (e) the Corporation or any Significant Subsidiary
thereof makes a general assignment for the benefit of creditors; (f) the
Corporation or any Significant Subsidiary thereof calls a meeting of its
creditors with a view to arranging a composition, adjustment or restructuring of
its debts; or (g) the Corporation or any Significant Subsidiary thereof, by any
act or failure to act, expressly indicates its consent to, approval of or
acquiescence in any of the foregoing or takes any corporate or other action for
the purpose of effecting any of the foregoing.

      


      “Business
Day” means any day except Saturday, Sunday, any day which shall be a
federal legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by law or other
governmental action to close.

      


      “Buy-In”
shall have the meaning set forth in Section 6(e)(iii).

      


      “Commission”
means the Securities and Exchange Commission.

      


      “Common
Stock” means the Corporation’s common stock, par value $0.001 per share,
and stock of any other class of securities into which such securities may
hereafter be reclassified or changed into.

      


      “Common
Stock Equivalents” means any securities of the Corporation or the
Subsidiaries which would entitle the holder thereof to acquire at any time
Common Stock, including, without limitation, any debt, preferred stock, rights,
options, warrants or other instrument that is at any time convertible into or
exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.


      
        
           


        

        
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      “Conversion
Date” shall have the meaning set forth in Section 6(a).

      


      “Conversion
Ratio” shall have the meaning set forth in Section 6(b).

      


      “Conversion
Shares” means, collectively, the shares of Common Stock issuable upon
conversion of the shares of Preferred Stock in accordance with the terms
hereof.

      


      “Effective
Date” means the date that this Certificate of Designation is
effective.

      


      “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.

      


       “Fundamental
Transaction” shall have the meaning set forth in Section
7(e).

       

      “Holder”
shall have the meaning given such term in Section 2.

      


      “Liquidation”
shall have the meaning set forth in Section 5.

      


      “New York
Courts” shall have the meaning set forth in Section 12(d).

      


      “Notice of
Conversion” shall have the meaning set forth in Section
6(a).

      


      “Other
Securities” means the Common Stock and all other Common Stock Equivalents
or other securities of the Corporation.

      


      “Preferred
Stock” shall have the meaning set forth in Section 2.

      


      “Purchase
Agreement” means the Securities Purchase Agreement, dated as of December
27, 2007, and amended on December 1, 2008, to which the Corporation and the
original Holders are parties, as further amended, modified or supplemented from
time to time in accordance with its terms.

      


      “Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.

      


      “Share
Delivery Date” shall have the meaning set forth in Section
6(e).

      


      “Subsidiary”
shall have the meaning set forth in the Purchase Agreement.

      


      “Trading
Day” means a day on which the New York Stock Exchange is open for
business.

      



      
        
           


        

        
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      “Trading
Market” means the following markets or exchanges on which the Common
Stock is listed or quoted for trading on the date in question: the American
Stock Exchange, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq
Global Select Market, the New York Stock Exchange or the OTC Bulletin
Board.

      


      “Transaction
Documents” shall have the meaning set forth in the Purchase
Agreement.

      


      “Warrants” shall mean the
Series A Warrants of the Corporation.

      


      Section
2.       Designation, Amount and Par
Value. The series of preferred stock designated by this Certificate shall
be designated as the Corporation’s Series B Convertible Preferred Stock (the
“Preferred
Stock”) and the number of shares so designated shall be 18,000
(which shall not be subject to increase without the written consent of the
holders of at least 67% of the issued and outstanding Preferred Stock (each, a
“Holder”
and collectively, the “Holders”)).
Each share of Preferred Stock shall have a par value of $0.001 per
share.

      


      Section
3.     Dividends.  Holders
shall not be entitled to receive any dividends in respect of the Series B
Preferred Stock, unless and until specifically declared by the Board of
Directors of the Corporation to be payable to the Holders of the Series B
Preferred Stock.

      


      Section
4.      Voting Rights. Except
as otherwise provided herein or as otherwise required by law, the Preferred
Stock shall have no voting rights. However, as long as any shares of Preferred
Stock are outstanding, the Corporation shall not, without the affirmative vote
of the Holders of a majority of the then outstanding shares of the Preferred
Stock, (a) alter or change adversely the powers, preferences or rights given to
the Preferred Stock or alter or amend this Certificate of Designation, (b) amend
its certificate of incorporation or other charter documents in any manner that
adversely affects any rights of the Holders, (c) increase the number of
authorized shares of Preferred Stock, or (d) enter into any agreement with
respect to any of the foregoing.

      


      Section
5.     Liquidation. Except
as otherwise required by law, the Preferred Stock shall not have any preference
upon any liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary (a “Liquidation”)
but shall be treated pari passu with all other
preferred and common shares of the Corporation.

      


      Section
6.       Conversion.

      



      
        
           


        

        
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      a)           Conversions at Option of
Holder. Subject to the provisions of Section 11 hereof, each share of
Preferred Stock shall be convertible, at any time and from time to time from and
after the Effective Date, at the option of the Holder thereof, into 1000 shares
of Common Stock. Holders shall effect conversions by providing the Corporation
with the form of conversion notice attached hereto as Annex
A (a “Notice of
Conversion”). Each Notice of Conversion shall specify the number of
shares of Preferred Stock to be converted, the number of shares of Preferred
Stock owned prior to the conversion at issue, the number of shares of Preferred
Stock owned subsequent to the conversion at issue and the date on which such
conversion is to be effected, which date may not be prior to the date the
applicable Holder delivers by facsimile such Notice of Conversion to the
Corporation (such date, the “Conversion
Date”). If no Conversion Date is specified in a Notice of Conversion, the
Conversion Date shall be the date that such Notice of Conversion to the
Corporation is deemed delivered hereunder. The calculations and entries set
forth in the Notice of Conversion shall control in the absence of manifest or
mathematical error.  To effect conversions of shares of Preferred
Stock, a Holder shall not be required to surrender the certificate(s)
representing such shares of Preferred Stock to the Corporation unless all of the
shares of Preferred Stock represented thereby are so converted, in which case
such Holder shall deliver the certificate representing such shares of Preferred
Stock promptly following the Conversion Date at issue.  Shares of
Preferred Stock converted into Common Stock or redeemed in accordance with the
terms hereof shall be canceled and shall not be reissued.

      


      b)           Conversion
Ratio.  The conversion ratio for the Preferred Stock shall be
1000 shares of Common Stock for 1 share of Preferred Stock (the “Conversion
Ratio”).

      



      
        
           


        

        
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      c)           Beneficial
Ownership Limitation. The
Corporation shall not effect any conversion of the Preferred Stock, and a Holder
shall not have the right to convert any portion of the Preferred Stock, to the
extent that, after giving effect to the conversion set forth on the applicable
Notice of Conversion, such Holder (together with such Holder’s Affiliates, and
any other person or entity acting as a group together with such Holder or any of
such Holder’s Affiliates) would beneficially own in excess of the Beneficial
Ownership Limitation (as defined below).  For purposes of the foregoing
sentence, the number of shares of Common Stock beneficially owned by such Holder
and its Affiliates shall include the number of shares of Common Stock issuable
upon conversion of the Preferred Stock with respect to which such determination
is being made, but shall exclude the number of shares of Common Stock which are
issuable upon (A) conversion of the remaining, unconverted Preferred Stock
beneficially owned by such Holder or any of its Affiliates, and (B) exercise or
conversion of the unexercised or unconverted portion of any other securities of
the Corporation  subject to a limitation on conversion or exercise
analogous to the limitation contained herein (including the Warrants)
beneficially owned by such Holder or any of its Affiliates.  Except as set
forth in the preceding sentence, for purposes of this Section 6(c), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder.  To the
extent that the limitation contained in this Section 6(c) applies, the
determination of whether the Preferred Stock is convertible (in relation to
other securities owned by such Holder together with any Affiliates) and of how
many shares of Preferred Stock are convertible shall be in the sole discretion
of such Holder, and the submission of a Notice of Conversion shall be deemed to
be such Holder’s determination of whether the shares of Preferred Stock may be
converted (in relation to other securities owned by such Holder together with
any Affiliates) and how many shares of the Preferred Stock are convertible, in
each case subject to the Beneficial Ownership Limitation. To ensure compliance
with this restriction, each Holder will be deemed to represent to the
Corporation each time it delivers a Notice of Conversion that such Notice of
Conversion has not violated the restrictions set forth in this paragraph and the
Corporation shall have no obligation to verify or confirm the accuracy of such
determination.  In
addition, a determination as to any group status as contemplated above shall be
determined in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder.  For
purposes of this Section 6(c), in determining the number of outstanding shares
of Common Stock, a Holder may rely on the number of outstanding shares of Common
Stock as stated in the most recent of the following: (A) the Corporation’s most
recent periodic or annual filing with the Commission, as the case may be, (B) a
more recent public announcement by the Corporation or (C) a more recent notice
by the Corporation or the Corporation’s transfer agent setting forth the number
of shares of Common Stock outstanding.  Upon the written or oral request of
a Holder, the Corporation shall within two Trading Days confirm orally and in
writing to such Holder the number of shares of Common Stock then
outstanding.  In any case, the number of outstanding shares of Common Stock
shall be determined after giving effect to the conversion or exercise of
securities of the Corporation, including the Preferred Stock, by such Holder or
its Affiliates since the date as of which such number of outstanding shares of
Common Stock was reported. The “Beneficial
Ownership Limitation” shall be 4.99% of the number of shares of the
Common Stock outstanding immediately after giving effect to the issuance of
shares of Common Stock issuable upon conversion of Preferred Stock held by the
applicable Holder.  A Holder, upon not less than 61 days’ prior notice
to the Company, may increase or decrease the Beneficial Ownership Limitation
applicable to its Preferred Stock.  Any such increase or decrease will
not be effective until the 61st day after such notice is delivered to the
Company and shall only apply to such Holder and no other
Holder.    The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict conformity with
the terms of this Section 6(c) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership
Limitation herein contained or to make changes or supplements necessary or
desirable to properly give effect to such limitation. The
limitations contained in this paragraph shall apply to a successor holder of
Preferred Stock.

      


      d)           [RESERVED]

      


      e)           Mechanics of
Conversion

      


      i.           Delivery of Certificate Upon
Conversion. Not later than three Trading Days after each Conversion Date
(the “Share
Delivery Date”), the Corporation shall deliver, or cause to be delivered,
to the converting Holder a certificate or certificates which, on or after the
Effective Date, shall contain appropriate restrictive legends (including a
legend with regard to the Lock-Up Period) and trading restrictions (other than
those which may then be required by the Purchase Agreement) representing the
number of Conversion Shares being acquired upon the conversion of shares of
Preferred Stock,. On or after the Effective Date, the Corporation shall, upon
request of such Holder, use its best efforts to deliver any certificate or
certificates required to be delivered by the Corporation under this Section 6
electronically through the Depository Trust Company or another established
clearing corporation performing similar functions. If in the case of any Notice
of Conversion such certificate or certificates are not delivered to or as
directed by the applicable Holder by the third Trading Day after the Conversion
Date, the applicable Holder shall be entitled to elect to rescind such
Conversion Notice by written notice to the Corporation at any time on or before
its receipt of such certificate or certificates, in which event the Corporation
shall promptly return to such Holder any original Preferred Stock certificate
delivered to the Corporation and such Holder shall promptly return to the
Corporation any Common Stock certificates representing the shares of Preferred
Stock unsuccessfully tendered for conversion to the
Corporation.


      
        
           


        

        
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      ii.           Obligation Absolute; Partial
Liquidated Damages.  The Corporation’s obligation to issue and
deliver the Conversion Shares upon conversion of Preferred Stock in accordance
with the terms hereof are absolute and unconditional, irrespective of any action
or inaction by a Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any Person or any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by such Holder or any other
Person of any obligation to the Corporation or any violation or alleged
violation of law by such Holder or any other person, and irrespective of any
other circumstance which might otherwise limit such obligation of the
Corporation to such Holder in connection with the issuance of such Conversion
Shares; provided, however, that such
delivery shall not operate as a waiver by the Corporation of any such action
that the Corporation may have against such Holder.  In the event a
Holder shall elect to convert any or all of its Preferred Stock, the Corporation
may not refuse conversion based on any claim that such Holder or any one
associated or affiliated with such Holder has been engaged in any violation of
law, agreement or for any other reason, unless an injunction from a court, on
notice to Holder, restraining and/or enjoining conversion of all or part of the
Preferred Stock of such Holder shall have been sought and obtained, and the
Corporation posts a surety bond for the benefit of such Holder in the amount of
150% of the value of the Conversion Shares into which would be converted the
Preferred Stock which is subject to the injunction, which bond shall remain in
effect until the completion of arbitration/litigation of the underlying dispute
and the proceeds of which shall be payable to such Holder to the extent it
obtains judgment.  In the absence of such injunction, the Corporation
shall issue Conversion Shares and, if applicable, cash, upon a properly noticed
conversion. If the Corporation fails to deliver to a Holder such certificate or
certificates pursuant to Section 6(e)(i) on the fifth (5th)
Trading Day after the Share Delivery Date applicable to such conversion, the
Corporation shall pay to such Holder, in cash, as liquidated damages and not as
a penalty, for each share of Preferred Stock being converted, $50 per Trading
Day  for each Trading Day after such fifth (5th)
Trading Day after the Share Delivery Date until such certificates are delivered.
Nothing herein shall limit a Holder’s right to pursue actual damages for the
Corporation’s failure to deliver Conversion Shares within the period specified
herein and such Holder shall have the right to pursue all remedies available to
it hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief.  The Exercise of any
such rights shall not prohibit a Holder from seeking to enforce damages pursuant
to any other Section hereof or under applicable law.

      



      
        
           


        

        
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      iii.           Compensation for Buy-In on
Failure to Timely Deliver Certificates Upon Conversion. If the
Corporation fails to deliver to a Holder the applicable certificate or
certificates by the Share Delivery Date pursuant to Section 6(e)(i), and if
after such Share Delivery Date such Holder is required by its brokerage firm to
purchase (in an open market transaction or otherwise), or the Holder’s brokerage
firm purchases, shares of Common Stock to deliver in satisfaction of a sale by
such Holder of the Conversion Shares which such Holder was entitled to receive
upon the conversion relating to such Share Delivery Date (a “Buy-In”),
then the Corporation shall (A) pay in cash to such Holder (in addition to any
other remedies available to or elected by such Holder) the amount by which (x)
such Holder’s total purchase price (including any brokerage commissions) for the
shares of Common Stock so purchased exceeds (y) the product of (1) the aggregate
number of shares of Common Stock that such Holder was entitled to receive from
the conversion at issue multiplied by (2) the actual sale price at which the
sell order giving rise to such purchase obligation was executed (including any
brokerage commissions) and (B) at the option of such Holder, either reissue (if
surrendered) the shares of Preferred Stock equal to the number of shares of
Preferred Stock submitted for conversion or deliver to such Holder the number of
shares of Common Stock that would have been issued if the Corporation had timely
complied with its delivery requirements under Section 6(e)(i). For example, if a
Holder purchases shares of Common Stock having a total purchase price of $11,000
to cover a Buy-In with respect to an attempted conversion of shares of Preferred
Stock with respect to which the actual sale price (including any brokerage
commissions) giving rise to such purchase obligation was a total of $10,000
under clause (A) of the immediately preceding sentence, the Corporation shall be
required to pay such Holder $1,000. The Holder shall provide the Corporation
written notice indicating the amounts payable to such Holder in respect of the
Buy-In and, upon request of the Corporation, evidence of the amount of such
loss. Nothing herein shall limit a Holder’s right to pursue any other remedies
available to it hereunder, at law or in equity including, without limitation, a
decree of specific performance and/or injunctive relief with respect to the
Corporation’s failure to timely deliver certificates representing shares of
Common Stock upon conversion of the shares of Preferred Stock as required
pursuant to the terms hereof.

      



      
        
           


        

        
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      iv.           Reservation of Shares
Issuable Upon Conversion. The Corporation covenants that it will at all
times reserve and keep available out of its authorized and unissued shares of
Common Stock for the sole purpose of issuance upon conversion of the Preferred
Stock and payment of dividends on the Preferred Stock, each as herein provided,
free from preemptive rights or any other actual contingent purchase rights of
Persons other than the Holders of the Preferred Stock, not less than such
aggregate number of shares of the Common Stock as shall (subject to the terms
and conditions in the Purchase Agreement) be issuable (taking into account the
adjustments of Section 7) upon the conversion of all outstanding shares of
Preferred Stock.  The Corporation covenants that all shares of Common
Stock that shall be so issuable shall, upon issue, be duly authorized, validly
issued, fully paid and nonassessable.

      


      v.           Fractional Shares. No
fractional shares or scrip representing fractional shares shall be issued upon
the conversion of the Preferred Stock.   As to any fraction of a
share which a Holder would otherwise be entitled to purchase upon such
conversion, the Corporation shall at its election, either pay a cash adjustment
in respect of such final fraction in an amount equal to such fraction multiplied
by the Conversion Price or round up to the next whole share.

      


      vi.           Transfer
Taxes.  The issuance of certificates for shares of the Common
Stock on conversion of this Preferred Stock shall be made without charge to any
Holder for any documentary stamp or similar taxes that may be payable in respect
of the issue or delivery of such certificates, provided that the Corporation
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate upon
conversion in a name other than that of the Holders of such shares of Preferred
Stock and the Corporation shall not be required to issue or deliver such
certificates unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Corporation the amount of such tax or shall have
established to the satisfaction of the Corporation that such tax has been
paid.

      


      Section
7.      Certain
Adjustments.

      


      a)           Stock Dividends and Stock
Splits.  If the Corporation, at any time while this Preferred
Stock is outstanding: (A) pays a stock dividend or otherwise makes a
distribution or distributions payable in shares of Common Stock on shares of
Common Stock or any other Common Stock Equivalents (which, for avoidance of
doubt, shall not include any shares of Common Stock issued by the Corporation
upon conversion of, or payment of a dividend on, this Preferred Stock); (B)
subdivides outstanding shares of Common Stock into a larger number of shares;
(C) combines (including by way of a reverse stock split) outstanding shares of
Common Stock into a smaller number of shares; or (D) issues, in the event of a
reclassification of shares of the Common Stock, any shares of capital stock of
the Corporation, then the Conversion Price shall be multiplied by a fraction of
which the numerator shall be the number of shares of Common Stock (excluding any
treasury shares of the Corporation) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock, or
in the event that clause (D) of this Section 7(a) shall apply shares of
reclassified capital stock, outstanding immediately after such
event.  Any adjustment made pursuant to this Section 7(a) shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
combination or re-classification.

      



      
        
           


        

        
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      b)           [RESERVED]

      


      c)           [RESERVED]

      


      d)           [RESERVED]

      


      e)           Fundamental
Transaction. If, at any time while this Preferred Stock is outstanding,
(A) the Corporation effects any merger or consolidation of the Corporation with
or into another Person, (B) the Corporation effects any sale of all or
substantially all of its assets in one transaction or a series of related
transactions, (C) any tender offer or exchange offer (whether by the Corporation
or another Person) is completed pursuant to which holders of Common Stock are
permitted to tender or exchange their shares for other securities, cash or
property, or (D) the Corporation effects any reclassification of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or property
(in any such case, a “Fundamental
Transaction”), then, upon any subsequent conversion of this Preferred
Stock, the Holders shall have the right to receive, for each Conversion Share
that would have been issuable upon such conversion immediately prior to the
occurrence of such Fundamental Transaction, the same kind and amount of
securities, cash or property as it would have been entitled to receive upon the
occurrence of such Fundamental Transaction if it had been, immediately prior to
such Fundamental Transaction, the holder of one share of Common Stock (the
“Alternate
Consideration”).  For purposes of any such conversion, the
determination of the Conversion Ratio shall be appropriately adjusted to apply
to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Corporation shall adjust the Conversion Ratio in a
reasonable manner reflecting the relative value of any different components of
the Alternate Consideration.  If holders of Common Stock are given any
choice as to the securities, cash or property to be received in a Fundamental
Transaction, then the Holders shall be given the same choice as to the Alternate
Consideration it receives upon any conversion of this Preferred Stock following
such Fundamental Transaction.  To the extent necessary to effectuate
the foregoing provisions, any successor to the Corporation or surviving entity
in such Fundamental Transaction shall file a new Certificate of Designation with
the same terms and conditions and issue to the Holders new preferred stock
consistent with the foregoing provisions and evidencing the Holders’ right to
convert such preferred stock into Alternate Consideration. The terms of any
agreement pursuant to which a Fundamental Transaction is effected shall include
terms requiring any such successor or surviving entity to comply with the
provisions of this Section 7(e) and insuring that this Preferred Stock (or any
such replacement security) will be similarly adjusted upon any subsequent
transaction analogous to a Fundamental Transaction.

      



      
        
           


        

        
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      f)           Calculations.  All
calculations under this Section 7 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be.  For purposes of this
Section 7, the number of shares of Common Stock deemed to be issued and
outstanding as of a given date shall be the sum of the number of shares of
Common Stock (excluding any treasury shares of the Corporation) issued and
outstanding.

      


      g)           Notice to the
Holders.

      


      i.           Adjustment to Conversion
Price.  Whenever the Conversion Ratio is adjusted pursuant to
any provision of this Section 7, the Corporation shall promptly deliver to each
Holder a notice setting forth the Conversion Ratio after such adjustment and
setting forth a brief statement of the facts requiring such
adjustment.

      


      ii.           Notice to Allow Conversion
by Holder.  If (A) the Corporation shall declare a dividend (or
any other distribution in whatever form) on the Common Stock, (B) the
Corporation shall declare a special nonrecurring cash dividend on or a
redemption of the Common Stock, (C) the Corporation shall authorize the granting
to all holders of the Common Stock of rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any rights, (D) the
approval of any stockholders of the Corporation shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to
which the Corporation is a party, any sale or transfer of all or substantially
all of the assets of the Corporation, of any compulsory share exchange whereby
the Common Stock is converted into other securities, cash or property or (E)
the Corporation shall authorize
the voluntary or involuntary dissolution, liquidation or winding up of the
affairs of the Corporation, then, in each case, the Corporation shall cause to
be filed at each office or agency maintained for the purpose of conversion of
this Preferred Stock, and shall cause to be delivered to each Holder at its last
address as it shall appear upon the stock books of the Corporation, at least 20 calendar
days prior to the applicable record or effective date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution, redemption, rights or warrants, or if a
record is not to be taken, the date as of which the holders of the Common Stock
of record to be entitled to such dividend, distributions, redemption, rights or
warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become
effective or close, and the date as of which it is expected that holders of the
Common Stock of record shall be entitled to exchange their shares of the Common
Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer or share exchange,
provided that the failure to deliver such notice or any defect therein or in the
delivery thereof shall not affect the validity of the corporate action required
to be specified in such notice.  The Holder is entitled to convert
this Preferred Stock (or any part hereof) during the 20-day period commencing on
the date of such notice through the effective date of the event triggering such
notice.

      



      
        
           


        

        
          11

          
            

          

        

        
           


        

      


      Section
8.     [RESERVED]

      


      Section
9.      [RESERVED]

      


      Section
10.     Negative
Covenants.  As long as any shares of Preferred Stock
are outstanding, unless the
holders of at least 67% of the then issued and outstanding shares of Preferred
Stock shall have otherwise given prior written consent, the Corporation
shall not, and shall not permit any of its
subsidiaries (whether or not a Subsidiary on the
Effective Date) to, directly or indirectly, amend this Certificate of
Designation.

      


      Section
11.      Miscellaneous.

      


      a)           Notices.  Any
and all notices or other communications or deliveries to be provided by the
Holders hereunder including, without limitation, any Notice of Conversion, shall
be in writing and delivered personally, by facsimile, or sent by a nationally
recognized overnight courier service, addressed to the Corporation, at the
address set forth above, facsimile number (775) 254-5118, Attention: Chief Financial Officer
or such other facsimile number or address as the Corporation may specify
for such purposes by notice to the Holders delivered in accordance with this
Section.  Any and all notices or other communications or deliveries to
be provided by the Corporation hereunder shall be in writing and delivered
personally, by facsimile, or sent by a nationally recognized overnight courier
service addressed to each Holder at the facsimile number or address of such
Holder appearing on the books of the Corporation, or if no such facsimile number
or address appears on the books of the Corporation, at the principal place of
business of the Holders.  Any notice or other communication or
deliveries hereunder shall be deemed given and effective on the earliest of (i)
the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number specified in this Section prior to 5:30 p.m.
(New York City time) on any date, (ii) the date immediately following the date
of transmission, if such notice or communication is delivered via facsimile at
the facsimile number specified in this Section between 5:30 p.m. and 11:59 p.m.
(New York City time) on any date, (iii) the second Business Day following the
date of mailing, if sent by nationally recognized overnight courier service, or
(iv) upon actual receipt by the party to whom such notice is required to be
given.

      


      b)           Absolute Obligation.
Except as expressly provided herein, no provision of this Certificate of
Designation shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay liquidated damages, accrued dividends and
accrued interest, as applicable, on the shares of Preferred Stock at the time,
place, and rate, and in the coin or currency, herein prescribed.

      



      
        
           


        

        
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      c)           Lost or Mutilated Preferred
Stock Certificate.  If a Holder’s Preferred Stock certificate
shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and
deliver, in exchange and substitution for and upon cancellation of a mutilated
certificate, or in lieu of or in substitution for a lost, stolen or destroyed
certificate, a new certificate for the shares of Preferred Stock so mutilated,
lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft
or destruction of such certificate, and of the ownership hereof reasonably
satisfactory to the Corporation.

      


      d)           Governing
Law.  All questions concerning the construction, validity,
enforcement and interpretation of this Certificate of Designation shall be
governed by and construed and enforced in accordance with the internal laws of
the State of Delaware, without regard to the principles of conflict of laws
thereof.  Each party agrees that all legal proceedings concerning the
interpretation, enforcement and defense of the transactions contemplated by any
of the Transaction Documents (whether brought against a party hereto or its
respective Affiliates, directors, officers, shareholders, employees or agents)
shall be commenced in the state and federal courts sitting in the City of New
York, Borough of Manhattan (the “New York
Courts”).  Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the New York Courts for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein (including with respect to the enforcement of any of
the Transaction Documents), and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of such New York Courts, or such New York Courts are
improper or inconvenient venue for such proceeding.  Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Certificate
of Designation and agrees that such service shall constitute good and sufficient
service of process and notice thereof.  Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner
permitted by applicable law. Each party hereto hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury
in any legal proceeding arising out of or relating to this Certificate of
Designation or the transactions contemplated hereby. If either party shall
commence an action or proceeding to enforce any provisions of this Certificate
of Designation, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys’ fees and other costs and
expenses incurred in the investigation, preparation and prosecution of such
action or proceeding.

      


      e)           Waiver.  Any
waiver by the Corporation or a Holder of a breach of any provision of this
Certificate of Designation shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Certificate of Designation or a waiver by any other Holders.  The
failure of the Corporation or a Holder to insist upon strict adherence to any
term of this Certificate of Designation on one or more occasions shall not be
considered a waiver or deprive that party (or any other Holder) of the right
thereafter to insist upon strict adherence to that term or any other term of
this Certificate of Designation.  Any waiver by the Corporation or a
Holder must be in writing.

      



      
        
           


        

        
          13

          
            

          

        

        
           


        

      


      f)           Severability.  If
any provision of this Certificate of Designation is invalid, illegal or
unenforceable, the balance of this Certificate of Designation shall remain in
effect, and if any provision is inapplicable to any Person or circumstance, it
shall nevertheless remain applicable to all other Persons and
circumstances.  If it shall be found that any interest or other amount
deemed interest due hereunder violates the applicable law governing usury, the
applicable rate of interest due hereunder shall automatically be lowered to
equal the maximum rate of interest permitted under applicable law.

      


      g)           Next Business
Day.  Whenever any payment or other obligation hereunder shall
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day.

      


      h)           Headings.  The
headings contained herein are for convenience only, do not constitute a part of
this Certificate of Designation and shall not be deemed to limit or affect any
of the provisions hereof.

      


      i)           Status of Converted
Preferred Stock.  If any shares of Preferred Stock shall be
converted or reacquired by the Corporation, such shares shall resume the status
of authorized but unissued shares of preferred stock and shall no longer be
designated as Series B Preferred Stock.

      


      


      *********************


      
        
           


        

        
          14

          
            

          

        

        
           


        

      


      


      RESOLVED,
FURTHER, that the Chairman, the president or any vice-president, and the
secretary or any assistant secretary, of the Corporation be and they hereby are
authorized and directed to prepare and file a Certificate of Designation of
Preferences, Rights and Limitations in accordance with the foregoing resolution
and the provisions of Delaware law.

      


              IN
WITNESS WHEREOF, the undersigned has executed this Certificate of Designation
this 1st day of December 2008 (the “Effective
Date”).

      


      
        	
                 

                s/s Richard D.
      Brounstein                     
      

                Name:
      Richard D. Brounstein

                Title:  Executive
      Vice President, CFO and Secretary

                 

                 

              	 
      


      

      



      
        
           


        

        
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      ANNEX
A

      


      NOTICE OF
CONVERSION

      


      (TO BE
EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF PREFERRED
STOCK)

      


      The
undersigned hereby elects to convert the number of shares of  Series B
Convertible Preferred Stock indicated below into shares of common stock, par
value $0.001 per share (the “Common Stock”), of
NewCardio, Inc., a Delaware corporation (the “Corporation”),
according to the conditions hereof, as of the date written below. If shares of
Common Stock are to be issued in the name of a Person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto and is delivering herewith such certificates and opinions as may be
required by the Corporation in accordance with the Purchase Agreement. No fee
will be charged to the Holders for any conversion, except for any such transfer
taxes.

      


      Conversion
calculations:

      


      
        	
                Date
      to Effect Conversion:
      _____________________________________________

                 

              
	
                Number
      of shares of Preferred Stock owned prior to Conversion:
      _______________

                 

              
	
                Number
      of shares of Preferred Stock to be Converted:
      ________________________

                 

              
	
                Number
      of shares of Common Stock to be Issued:
      ___________________________

                 

              
	
                Applicable
      Conversion Price:____________________________________________

                 

              
	
                Number
      of shares of Preferred Stock subsequent to Conversion:
      ________________

                 

              
	
                Address
      for Delivery: ______________________

                or

                DWAC
      Instructions:

                Broker
      no: _________

                Account
      no: ___________

              
	 
      	
                 

                [HOLDER]

                 

                By:___________________________________

                     Name:

                     Title:

              


      

      


      
16