U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 10-K/A
Amendment No. 1
 
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
 
For the fiscal year ended December 31, 2010
Commission file number 0-12183
 
BOVIE MEDICAL CORPORATION
 
 (Exact name of registrant as specified in its charter)


Delaware No.
 
11-2644611
(State or other jurisdiction
 
(IRS Employer Identification No.)
of incorporation or organization)
   

734 Walt Whitman Rd., Melville, New York 11747
(Address of principal executive offices)
 
(631) 421-5452
(Issuer's telephone number)

Title of each Class
 
Name of each Exchange on which registered
Common Stock, $.001 Par Value
 
NYSE Amex Market


Securities registered under Section 12(g) of the Exchange Act
None

Indicate by check mark if the Company is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes: o     No x

Indicate by check mark if the Company is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
Yes:  o     No x

Indicate by check mark whether the registrant (I) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act of 1934 during the past 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes:  x     No o

Indicate by check mark whether the registrant submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (para 232.405 of this chapter) during the preceding 12 months ( or for such shorter period that the registrant was required to submit and post such files).
Yes:  x     No o

Indicate by checkmark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a small reporting company.  See definition of “large accelerated filer”, “accelerated filer” and “small reporting company” in Rule 12b-2 of the Exchange Act (Check one):

Large accelerated filer o                                            Accelerated filer o      Non-accelerated filer o    Small reporting company x

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
Yes o                       No x

 
 

 
The aggregate market value of the voting stock held by non-affiliates computed by reference to the price at which the stock was sold, or the average bid and asked prices of such stock, as of June 30, 2010, the registrant’s most recently completed second fiscal quarter, was approximately $52,700,000.

The number of shares of the registrant's $.001 par value common stock outstanding on the NYSE Amex exchange as of March 1, 2011 was 17,711,115

Company Symbol-BVX
Company SIC (Standard Industrial Code)-3841

DOCUMENTS INCORPORATED BY REFERENCE

Parts I, II and III and portions of Part IV of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2010 filed on March 31, 2010.

 
 

 


Explanatory Note

This Amendment No. 1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2010, filed with the Securities and Exchange Commission on March 31, 2011 (the “Original Filing”), is filed solely to include Exhibits 3.1, 3.2 and 14.1, which were unintentionally omitted from Part IV, Item 15(a)(3) of the Original Filing. No other changes have been made to the Original Filing and this amendment does not reflect events that have occurred subsequent to the Original Filing date.

This Form 10-K/A includes new certifications from the Company's Chief Executive Officer and Chief Financial Officer in Exhibits 31.1, 31.2, 32.1 and 32.2.


Table of Contents

Part IV
     
Item 15
 
Exhibits Index
1


 
 

 

PART IV

ITEM 15.  Exhibits and Financial Statement Schedules

Exhibit
Number
 
 
Exhibit
 
3.1
 
Articles of Incorporation of the Registrant (filed herewith)
3.2
 
Bylaws of the Registrant (filed herewith)
4.1
 
Specimen Common Stock Certificate (Incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-3 filed November 24, 2004)
10.1
 
2001 Statutory and Non-Statutory Stock Option Plan (Incorporated by reference to Registrant’s Registration Statement on Form S-8 filed July 16, 2001)
10.2
 
2003 Key Services Stock Option Plan (Incorporated by reference to Registrant’s Registration Statement on Form S-8 filed May 12, 2006)
10.3
 
Original Equipment Manufacturer Agreement between Arthrex, Inc. and Bovie Medical Corp. dated as of June, 2002*
10.4**
 
Distribution Agreement between Bovie Medical Corporation and Boston Scientific dated October 6, 2006 amended and as re-filed, inclusive of Exhibit A*
10.5**
 
First Amendment to Distribution Agreement between Boston Scientific Corporation and Bovie Medical Corporation August 23, 2007, as re-filed*
10.6**
 
Termination Purchase and License Agreement between Boston Scientific Corporation and Bovie Medical Corporation dated April 29, 2008 as amended and re-filed, inclusive of Exhibit A*
10.7**
 
First Amendment to Manufacturing and Development Agreement dated August 24, 2007 between Bovie Medical Corporation and Arthrex, Inc.*
10.8
 
First Amendment to OEM Agreement between Arthrex, Inc. and Bovie Medical Corp. dated as of July, 2007*
10.9
 
Employment Agreement effective January 1, 1998 between Bovie Medical Corporation and Andrew Makrides (Incorporated by reference to Registrant’s report on Form 10KSB/A filed July 15, 2005)
10.10
 
Amended Employment Agreement dated as of January 6, 2004 by and between Bovie Medical Corporation and Andrew Makrides (Incorporated by reference to Registrant’s report on Form 10KSB/A filed August 25, 2005)
10.11
 
Amended Employment Agreement dated January 15, 2006 between Bovie Medical Corporation and Andrew Makrides*
10.12
 
Employment Agreement effective January 1, 1998 between Bovie Medical Corporation and J. Robert Saron (Incorporated by reference to Registrant’s report on Form 10KSB/A filed July 15, 2005)
10.13
 
Amended Employment Agreement dated as of January 6, 2004 by and between Bovie Medical Corporation and J. Robert Saron (Incorporated by reference to Registrant’s report on Form 10KSB/A filed August 25, 2005)
10.14
 
Amended Employment Agreement dated January 15, 2006 between J. Robert Saron and Bovie Medical Corporation*
10.15
 
Employment Agreement effective January 1, 1998 between Bovie Medical Corporation and Moshe Citronowicz (Incorporated by reference to Registrant’s report on Form 10KSB/A filed July 15, 2005)
10.16
 
Amended Employment Agreement dated as of January 6, 2004 by and between Bovie Medical Corporation and Moshe Citronowicz (Incorporated by reference to Registrant’s report on Form 10KSB/A filed August 25, 2005)
10.17
 
Amended Employment Agreement dated January 15, 2006 between Moshe Citronowicz and Bovie Medical Corporation*
10.18
 
Employment Agreement dated June 18, 2007 between Bovie Medical Corporation and Gary Pickett*
10.19
 
Employment Agreement dated as of March 2, 2010 between Bovie Medical Corporation and Leonard Keen (Incorporated by reference to the Registrant’s report on Form 8-K filed on March 8, 2010)

 
1

 


10.20
 
Modification Agreement by and between Bovie Medical Corporation and RBC Bank (USA) dated December 2, 2009 (Incorporated by reference to the Registrant’s report on Form 8-K filed on March 15, 2010)
10.21
 
Loan Agreement between Pinellas County Industrial Development Authority and Bovie Medical Corporation dated as of November 1, 2008 (Incorporated by reference to the Registrant’s report on Form 8-K/A filed May 12, 2009)
10.22
 
Memorandum of Agreement between Pinellas County Industrial Development Authority & Bovie Medical Corporation dated November 13, 2008 (Incorporated by reference to the Registrant’s report on Form 8-K/A filed May 12, 2009)
10.23
 
Letter of Credit Agreement between Bovie Medical Corporation and RBC Bank (USA) dated as of November 13, 2008 (Incorporated by reference to the Registrant’s report on Form 8-K/A filed May 12, 2009)
10.24
 
Securities Purchase Agreement, dated April 18, 2010, by and among Bovie Medical Corporation and the investors listed on the Schedule of Buyers attached thereto (Incorporated by reference to the Registrant’s report on Form 8-K filed April 20, 2010)
10.25
 
Form of Registration Rights Agreement by and among Bovie Medical Corporation and the investors listed on the signature pages thereto (Incorporated by reference to the Registrant’s report on Form 8-K filed April 20, 2010)
10.26
 
Form of Warrant issued to the Buyers under the Securities Purchase Agreement (Incorporated by reference to the Registrant’s report on Form 8-K filed April 20, 2010)
10.27
 
Form of Warrant issued to Rodman & Renshaw, LLC and Gilford Securities Inc. (Incorporated by reference to the Registrant’s report on Form 8-K filed April 20, 2010)
14.1
 
Bovie Medical Corporation Code of Ethics (Incorporated by reference to Registrants filed herewith)
21.1
 
Subsidiaries of Bovie Medical Corporation (filed herewith)
31.1
 
Certification pursuant to Section 302 of Sarbanes-Oxley Act of 2002, filed herewith
31.2
 
Certification pursuant to Section 302 of Sarbanes-Oxley Act of 2002, filed herewith
32.1
 
Certification pursuant to Section 906 of Sarbanes-Oxley Act of 2002, filed herewith
32.2
 
Certification pursuant to Section 906 of Sarbanes-Oxley Act of 2002, filed herewith

*Incorporated by reference to the Registrant’s report on Form 10-K/A filed November 30, 2009.
**Subject to a confidential treatment application made by the Company.

 
2

 

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, in Melville, New York on March 31, 2011.

 
Bovie Medical Corporation
 
     
 
By: /s/ ANDREW MAKRIDES 
 
 
Andrew Makrides
 
 
Chief Executive Officer
 
 
Chairman of the Board
 
     

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

         
Name
 
Title
 
Date
         
Principal Executive Officer:
       
         
/s/  ANDREW MAKRIDES
 
Chief Executive Officer and Chairman of the Board
 
March 31, 2011
Andrew Makrides
       
         
Principal Financial Officer:
       
         
/s/  GARY D. PICKETT
 
Chief Financial Officer, Treasurer, and Secretary
 
March 31, 2011
Gary D. Pickett
       
         
Directors:
       
         
/s/  J. ROBERT SARON
 
President, Chief Sales and Marketing Officer and Director
 
March 31, 2011
J. Robert Saron
       
         
/s/  GEORGE KROMER
 
Director 
 
March 31, 2011
George Kromer
       
         
/s/  MICHAEL NORMAN
 
Director
 
March 31, 2011
Michael Norman
       
         
/s/ AUGUST LENTRICCHIA
 
Director 
 
March 31, 2011
August Lentricchia
       
         
/s/  STEVEN MACLAREN
 
Director 
 
March 31, 2011
Steven MacLaren
       
         
/s/  GREG KONESKY
 
Director 
 
March 31, 2011
 Greg Konesky
       


 
 

 


CERTIFICATE OF INCORPORATION
 
OF
 
AN-CON MEDICAL SYSTEMS, INC.
 
I, the undersigned, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of' Delaware, do hereby certify as follows:
 
FIRST:                        The name of the corporation is:
 
           AN-CON MEDICAL SYSTEMS, INC.
 
SECOND:                  The registered· office of the corporation is to be located at c/o United Corporate Services Inc., 410 South State Street, in the City of Dover, County of' Kent, State of Delaware 19901. The name of its registered agent at that address is United Corporate Services, Inc.
 
THIRD:                      The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware.
 
FOURTH:                  The Corporation shall be authorized to issue the following shares:
 
Class
 
Number of Shares
 
Par Value
         
COMMON
 
100,000,000
 
$.001
 
FIFTH:                      The name and address of the incorporator are as follows:
 
 
Name
 
Address
     
Ray A. Barr
 
9 East 40th Street
   
New York, New York 10016
 

 
 

 

 
 
SIXTH:                  The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for further definition, limitation and regulation of the powers of the corporation and of its directors and stockholders:
 
(1)           The number of directors of the corporation shall be such as from time to time shall be fixed by, or in the manner provided in the by-laws.  Election of directors need not be by ballot unless the by-laws so provide.
 
(2)           The Board of Directors shall have power without the assent or vote of the stockholders:
 
(a) To make, alter, amend, change, add to or repeal the By-Laws of the corporation; to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends.
 
(b) To determine from time to time whether, and to what times and places, and under what conditions the accounts and books of the corporation (other than the stockledger) or any of them, shall be open to the inspection of the stockholders.
 
(3)           The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and as binding upon the corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interest, or for any other reason.
 
(4)           In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this certificate, and to any by-laws from time to time made by the stockholders; provided, however, that no by-laws so made shall invalidate any prior act of the directors which would have been valid if such by-laws had not been made.

 
 

 

SEVENTH:                  The corporation shall, to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended, from time to time, indemnify all persons whom it may indemnify pursuant thereto.
 
EIGHTH:                      Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware, may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs.  If a majority in number representing three-fourths (3/4) in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.
 
NINTH:                      The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power.
 
IN WITIIESS WHEREOF, I hereunto sign my name and affirm that the statements made herein are true under the penalties of perjury, this 3rd day of December, 1982.
 
 
 
/s/ Ray A. Barr
 
 
Ray A. Barr, Incorporator
 
 

 
 

 

CERTIFICATE OF AMENDMENT
OF
AN-CON MEDICAL SYSTEMS, INC.
 
 
The undersigned corporation, in order to amend its Certificate of Incorporation, hereby certifies as follows:
 
FIRST:                      The name of the corporation is
 
          AN-CON MEDICAL SYSTEMS, INC.
 
SECOND:                 The amendment to the Certificate of Incorporation to be effected hereby is as follows:
 
         Paragraph "FOURTH" of the Certificate of Incorporation, relating to the authorized shares of the corporation, is hereby amended to read as follows:
 
          The corporation shall be authorized to issue the following shares:
 
Class
 
Number of Shares
 
Par Value
         
Common
 
15,000,000
 
$.001
 
THIRD:                      The amendment effected herein was authorized by the affirmative vote of the holders of a majority of the outstanding shares entitled to vote thereon at a meeting of shareholders pursuant to Sections 222 and 242 of the General Corporation Law of the State of Delaware.
 
IN WITNESS WHEREOF, we hereunto sign our names and affirm that the statements made herein are true under the penalties of perjury, this 3 rd day of January, 1983.
 
 
 
AN-CON MEDICAL SYSTEMS, INC.
 
     
 
By:
 
     
     
 
/s/ Abraham Concool
 
 
Abraham Concool, President
 
 
 

 
 

 

ATTEST:
 
 
/s/ Andrew Makrides
 
Andrew Makrides
 
Secretary
 
 
 
 
 
STATE OF NEW YORK)
 
COUNTY OF SUFFOLK)
 
 
Be it remembered that on this 3rd day of January, 1983, personally came before me, a Notary Public in and for the County and State aforesaid, Abraham Concool, Chairman of the Board and President, who stated that he is the President of An-Con Medical Systems, Inc., and who is known personally to me to be such, thereof, and that the facts stated therein are true.
 
Given under my hand and seal of office the day and year aforesaid.
 
 
 
 
/s/ Carole Ann Davis  
 
     
 
CAROLE ANN DAVIS
 
 
Notary Public, State of New York
 
 
No. 52-4600620
 
 
Certified in Suffolk County
 
 
Commission Expires March 30, 1984
 
 
 
 

 
 

 

CERTIFICATE OF AMENDMENT
 
OF
 
AN-CON MEDICAL SYSTEMS, INC.
 
The undersigned corporation, in order to amend its Certificate of Incorporation, hereby certifies as follows:
 
FIRST:                      The name of the corporation is
 
                      AN-CON MEDICAL SYSTEMS, INC.
 
SECOND:                 The amendment to the Certificate of Incorporation to be effected hereby is as follows:
 
          Paragraph "FIRST" of the Certificate of Incorporation relating to the name of the corporation is hereby amended to read as follows:
 
           The name of the corporation is:
 
            ANON GENETICS, INC.
 
THIRD:                      The amendment effected herein was authorized by the affirmative vote of the holders of a majority of the outstanding shares entitled to vote thereon at a meeting of shareholders pursuant to Sections 222 and 242 of the General Corporation Law of the State of Delaware.
 
IN WITNESS WHEREOF, we hereunto sign our names and affirm that the statements made herein are true under the penalties of perjury, this 3rd day of January, 1983.
 
 
 
AN-CON MEDICAL SYSTEMS, INC.
 
     
 
By:
 
     
     
 
/s/  Abraham Concool
 
 
Abraham Concool, President
 
 
ATTEST:
 
 
/s/ Andrew Makrides
 
Andrew Makrides
 
Secretary
 

 
 

 

 
STATE OF NEW YORK)
 
COUNTY OF SUFFOLK)
 
 
Be it remembered that on this 3rd day of January, 1983, personally came before me, a Notary Public in and for the County and State aforesaid, Abraham Concool, Chairman of the Board and President, who stated that he is the President of An-Con Medical Systems, Inc., and who is known personally to me to be such, thereof, and that the facts stated therein are true.
 
Given under my hand and seal of office the day and year aforesaid.
 
 
/s/ Carole Ann Davis  
 
     
 
CAROLE ANN DAVIS
 
 
Notary Public, State of New York
 
 
No. 52-4600620
 
 
Qualified in Suffolk County
 
 
Commission Expires March 30, 1984
 
 
 
 
 
 

 
 

 

 
 
CERTIFICATE OF AMENDMENT
 
OF
 
AN-CON GENETICS, INC.
 
 
The undersigned corporation, in order to amend its Certificate of Incorporation, hereby certifies as follows:
 
FIRST :                     The name of the corporation is AN-CON GENETICS, INC.
 
SECOND :                The amendment to the Certificate of Incorporation to be effected hereby is as follows:
 
A new paragraph "TENTH" is added to the Certificate of' Incorporation for the elimination of personal liability of directors to the corporation and its stockholders for monetary damages to the extent permitted by the General Corporation Law of the State of Delaware. The new paragraph shall read as follows:
 
" TENTH :                  No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty by such director as a director; provided, however, that this article TENTH shall not eliminate or limit the liability of a director to the extent provided by applicable law: (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, (iv) for any transaction from which a director derived an improper personal benefit.  No amendment to or repeal of this article TENTH shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal."
 
THIRD :                      The amendment effected herein was authorized by the affirmative vote of the holders of a majority of the outstanding shares entitled to vote thereon at a meeting of shareholders pursuant to Sections 222 and 242 of the General Corporation Law of the State of Delaware.
 
 

 
 

 

IN WITNESS WHEREOF, we hereunto sign our names and affirm that that the statements made herein are true under the penalties of perjury, this 22nd day of December, 1987.
 
 
AN-CON GENETICS, INC.
 
     
     
 
By: /s/ Andrew Makrides
 
 
Andrew Makrides, Pres.
 
 
ATTEST:
 
 
/s/ William Holden       
 
William Holden, Secretary
 

 
 

 

STATE OF NEW YORK                                           )
:  ss.:
COUNTY OF SUFFOLK                                          )
 
 
Be it remembered that on this 22 nd day of December, 1987 personally came before, a notary public in and for the county and state aforesaid, ANDREW MAKRIDES, President, who stated that he is the President of An-Con Genetics, Inc., and who is known personally to me to be such, thereof, and that the facts stated therein are true.
 
Given under my hand and seal of office the day and year aforesaid.
 
 
 
 
/s/ Alfred V. Greco
 
 
Notary Public
 
     
 
ALFRED V. GRECO
 
 
Notary Public, State of New York
 
 
No. 401771
 
 
Qualified in Westchester County
 
 
Commission Expires Oct. 31, 1984
 
 
 
 
 
 

 
 

 

 
CERTIFICATE FOR
 
RENEWAL AND REVIVAL OF CHARTER
OF
 
AN-CON GENETICS, INC.
 
 
An-Con Genetics, Inc., a corporation organized under the laws of Delaware, the certificate of incorporation of which was filed in the office of the Secretary of State on the 3rd day of December, 1982, and recorded in the office of the Recorder of Deeds for Suffolk county, the charter of which was voided for non-payment of taxes, now desires to procure a restoration, renewal and revival of its charter, and hereby certified as follows:
 
1.           The name of the corporation is An-Con Genetics, Inc.
 
2.           Its registered office in the State of Delaware is located at United Corporate Services, Inc., 15 East North Street, in the City of Dover, County of Kent, State of Delaware 19901. The name of its registered agent at that address is United Corporate Services, Inc.
 
3.           The date when the restoration, renewal and revival of the charter of this company is to commence is the 28th day of February, 1990, same being prior to the date of the expiration of the charter. This renewal and revival of the charter of this corporation is to be perpetual.
 
4.           This corporation was duly organized and carried in the business authorized by its charter until the 1st day of March, 1990, at which time its charter became inoperative and void for non-payment of taxes and this certificate for renewal and revival is filed by authority of the duly elected directors of the corporation in accordance with the laws of the State of Delaware.
 
IN TESTIMONY WHEREOF, and in compliance with the provisions of Section 312 of the General Corporation Law of the State of Delaware, as amended, providing for the renewal, extension and restoration of charters, Andrew Makrides, President, and Robert N. Speiser, Secretary, of An-Con Genetics, Inc. have hereunto set their hands to this certificate this 15th day of October, 1992.
 
 
 
By:   /s/ Andrew Makrides
 
 
        Andrew Makrides, President
 
 
ATTEST:
 
 
By:   /s/ Robert N. Speiser
 
       Robert N. Speiser, Secretary
 

 
 

 

 
Certificate of Amendment
to
Certificate of Incorporation
of
An-Con Genetics, Inc.
 
 
An-Con Genetics, Inc, a corporation organized and existing under the General Corporation Law of the State of Delaware, at a special meeting of the Board of Directors of the corporation, held on January 26, 1998 and at a special meeting of the stockholders of the corporation, held on September 8, 1998, an amendment to the Certificate of Incorporation was duly authorized, and written notice bas been given, pursuant to Section 242 and 228 of the General Corporation Law of the State of Delaware, and
 
IT IS HEREBY CERTIFIED THAT:
 
FIRST:                      The Certificate of Incorporation is hereby amended by striking out Paragraph Fourth thereof, and by substituting in lieu of said Paragraph the following new Paragraph
 
"FOURTH:                      The total number of shares of capital stock of all classifications which the corporation shall have the authority to issue is Fifty Million (50,000,000) shares, of which Forty Million (40,000,000) shares shall be designated common stock, having a par value of $.001 per share, and (ii) Ten Million (10,000,000) shares shall be designated "Preferred Stock"; having a par value of $.001 per share.
 
 
(a)
All shares of common stock will be equal to each other and shall have all the rights granted to stockholders under the General Corporation Law of the State of Delaware as amended, and the Certificate of Incorporation, including, without limitation, one vote for each share outstanding in the name of each holder, the power to elect directors or consent or dissent to any action to take place at any regular or special meeting of stockholder, and the right to receive dividends and distributions subject to the rights and preferences of any outstanding shares of Preferred Stock authorized hereby.

 
 

 

 
 
(b)
The Preferred Stock may be issued from time to time in one or more classes and one or more series of each class with specified serial designations, shares of each series of any class shall have equal rights and shall be identical in all respects, and (1) may have specified voting powers, full or limited or may be without voting power; (2) may be subject to redemption at such time or times at designated prices; (3) may be entitled to receive dividends (which may be cumulative or non-cumulative) at designated rates, on such conditions and specified times, and payable on any other class or classes of stock; (4) may have such rights upon the dissolution of, or upon any distribution of, the assets of the corporation may be made convertible into, or exchangeable for shares of any other class or classes or of any other series of the same or any other class or classes of stock of the corporation, at such price or prices or at specified rates of exchange and with specified designated adjustments; and (6) may contain such other special rights and qualifications, all as shall hereafter be stated and expressed in the resolution or resolutions providing for the issue of such Preferred Stock from time to time adopted by the Board of Directors pursuant to the authority so to do which is hereby granted and expressly vested in the Board of Directors.
 
The Board of Directors shall have authority to cause the Corporation to issue from time, without any vote or other action by the shareholders, any or all shares of stock of the Corporation of any class or series at any time authorized, and any securities convertible into or exchangeable for any such shares, and any options, rights or warrants to purchase or acquire any such shares, in each case to such persons and on such terms (including as a dividend or distribution on or with respect to, or in connection with a split or combination of, the outstanding shares of stock of the same or any other class or series) as the Board of Directors from time to time in its discretion lawfully may determine; provided, that the consideration for the issuance of shares of stock of the Corporation (unless issued as such a dividend or distribution or in connection with such a split or combination) shall not be less than the par value of such shares. Shares so issued shall be fully-paid stock, and the holders of such stock shall not be liable to any further calls or assessments thereon.
 
IN WITNESS WHEREOF, we have executed and subscribed this certificate and do affirm the foregoing under the penalties of perjury this 8th day of September, 1998 .
 
An-Con Genetics, INC.
 
 
/s/ Andrew Makrides   
 
Andrew Makrides, President
 
   
   
/s/ Delton Cunningham
 
Delton Cunningham, Secretary
 
 

 
 

 

 
 
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
 
OF SERIES A PREFERRED STOCK OF AN-CON GENETICS, INC.
 
(pursuant to Section 151 of the General Corporation
 
of Law of the State of Delaware)
 
We, Andrew Makrides, President, and Delton Cunningham, Secretary, of An-Con Genetics, Inc., a Corporation organized and existing under the General Corporation Law of the State of Delaware, in accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the Certificate of Incorporation of this Corporation, as amended, the said Board of Directors on September 8, 1998, adopted the following resolution creating a series of Two Million (2,000,000) shares of Preferred Stock designated as Series A Preferred Stock:
RESOLVED , that pursuant to the authority of the Board of Directors of this Corporation in accordance with the provisions of the Certificate of Incorporation, as amended, a series of Preferred Stock of the Corporation be and it is hereby created, and that the designation and amount thereof and the voting powers, preferences and relative participating, optional and other special rights of such series, and the qualifications, limitations or restrictions thereof are as follows:
Section 1.  Designation and Amount .
1.1           The shares of such series shall be designated as Series A Preferred Stock (the “Series A Preferred Stock” or “Series A Preferred Shares”) and the number of shares constituting such series shall be Two Million (2,000,000).  For as long as shares of Series A Preferred Stock is outstanding, the Corporation will not authorize or issue any class or series of Preferred Stock which shall be entitled to any rights or preferences senior to the shares of Series A Preferred Stock.

 
 

 

1.2           The Corporation may issue shares of Preferred Stock having rights and preferences substantially equal to the shares of Series A Preferred Stock, but not additional shares of the same class or series as the shares of Series A Preferred Stock, provided:
 
(a)
A majority of the holders of the shares of Series A Preferred Stock consent in writing to such issuance; or
 
(b)
The Corporation, contemporaneously with the issuance of such shares of Preferred Stock having rights and preferences substantially equal to the shares of Series A Preferred Stock (“Delivery Date”), issues and delivers to the holders of the shares of Series A Preferred Stock, pro-rata, at no additional cost to such holders, shares of common stock, having a par value of $.001 per share (“Common Stock”), of the Corporation, having a Fair Market Value (as hereinafter defined), determined as of the date which is Ten (10) business days prior to the Delivery Date, equal to Five Hundred Thousand Dollars ($500,000.00).
1.3           Any issuance of shares of Common Stock pursuant to Section 1.2(b) shall be a one-time occurrence and subsequent issuances of shares of Preferred Stock by the Corporation having rights and preferences substantially equal to the shares of Series A Preferred Stock shall not give rise to the issuance or delivery of any additional shares of Common Stock to holders of the shares of Series A Preferred Stock.

 
 

 

Section 2.  Dividends .
2.1           The shares of Series A Preferred Stock shall not require the payment of any regular or special dividends; provided, however, the Corporation shall not declare or pay any dividend on shares of any other class or series of Preferred Stock of the Corporation unless the Corporation shall have first declared and paid a dividend on the shares of Series A Preferred Stock in an amount per share of Series A Preferred Stock which is equal to or greater than the amount per share of the dividend to be paid on shares of such other class or series of Preferred Stock, and further provided that the Corporation shall not declare or pay any dividend on shares of any class or series of Common Stock unless the Corporation shall have first declared and paid a dividend on the shares of Series A Preferred Stock in an amount per share of Series A Preferred Stock which is equal or greater than the amount per share which the holders of the shares of Series A Preferred Stock would have received on a participating basis with the holders of the shares of Common Stock assuming the shares of Series A Preferred Stock had been converted into shares of Common Stock.
Section 3. Conversion Rights/Privilege .
3.1           Subject to the terms and conditions hereof, each share of the Series A Preferred Stock shall be convertible at any time, or from time to time, at the option of the holders of record thereof, into fully paid and nonassessable shares of Common Stock of the Corporation at the rate of One (1) share of Common Stock for each One (1) share of Series A Preferred Stock, or at the rate which results from the making of any adjustment specified in Section 3.2 hereof (the number of shares of Common Stock issuable any time, giving effect to the latest prior adjustment pursuant to Section 3.2 hereof, if any, in exchange for One (1) share of Series A Preferred Stock being hereinafter called the “Conversion Rate”).  Shares of Series A Preferred Stock shall be convertible at the principal office of the Corporation into fully paid nonassessable shares of Common Stock at the Conversion Rate upon surrender to the Corporation or its designee of the certificates representing the shares of Series A Preferred Stock to be converted, together with a written notice of election to convert; and, upon receipt by the Corporation or its designee of such notice and of such surrendered certificates with an appropriate endorsement thereon, as may be prescribed by the Board of Directors, any such holder shall be entitled to receive a certificate or certificates representing the shares of Common Stock into which such shares of Series A Preferred Stock is convertible and any such holder shall be deemed to be a holder of record of said shares of Common Stock as of the time of said receipt by the Corporation or its designee.

 
 

 

3.2           The Conversion Rate shall be subject to the following adjustments:
(a)           If the Corporation shall declare and pay to the holders of shares of Common Stock a dividend or other distribution payable in shares of Common Stock, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the holders of shares of Series A Preferred Stock thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which such holder would have owned or been entitled to receive after the declaration and payment of such dividend or other distribution if such shares of Series A Preferred Stock had been converted immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution.
(b)           If the Corporation shall subdivide the outstanding shares of Common Stock into a greater number of shares of Common Stock, or combine the outstanding shares of Common Stock into a lesser number of shares of Common Stock, or issue by reclassification of its shares of Common Stock any shares of capital stock of the Corporation, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the holders of shares of Series A Preferred Stock thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which such holders would have owned or been entitled to receive after the happening of any of the events described above if such shares of Series A Preferred Stock had been converted immediately prior to the happening of such event on the day upon which such subdivision, combination or reclassification, as the case may be, becomes effective.

 
 

 

(c)           If the Corporation shall issue or sell any Additional Shares of Common Stock (as defined in Section 3.5(a) hereof) for a consideration per share less than the Conversion Amount (as defined in Section 3.5(b) hereof), then the Conversion Rate shall be adjusted to the number determined by multiplying the Conversion Rate in effect immediately prior to such issuance or sale by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to the issuance or sale of such Additional Shares of Common Stock plus the number of such Additional Shares of Common Stock so issued or sold, and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to the issuance or sale of Additional Shares of Common Stock plus the number of shares of Common Stock which the aggregate consideration for such Additional Shares of Common Stock so issued or sold would purchase at a consideration per share equal to the Conversion Amount.  For the purpose of this Section 3.2(c), the date as of which the Conversion Amount shall be computed shall be the earlier of (x) the date on which the Corporation shall enter into a binding contract for the issuance or sale of such Additional Shares of Common Stock or (y) the date of the actual issuance or sale of such shares.
(d)           If the Corporation shall issue or sell any warrants, options (other than options issued pursuant to stock option plans adopted by the Board of Directors of the Corporation referred to in Section 3.5(a) (i) hereof) or other rights entitling the holders thereof to subscribe for or purchase either any Additional Shares of Common Stock or evidences of indebtedness, shares of stock or other securities which are convertible into or exchangeable, with or without payment of additional consideration in cash or property, for Additional Shares of Common Stock (such convertible or exchangeable evidences of indebtedness, shares of stock or other securities hereinafter being called “Convertible Securities”), and the consideration per share for which Additional Shares of Common Stock may at any time thereafter be issuable pursuant to such warrants, options or other rights or pursuant to the terms of such Convertible Securities (when added to the consideration per share of Common Stock, if any, received for such warrants, options or rights), shall be less than the Conversion Amount, then the Conversion Rate shall be adjusted as provided in Section 3.2(c) on the basis that (x) the maximum number of Additional Shares of Common Stock issuable pursuant to all such warrants, options or other rights or necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued and (y) the aggregate consideration (plus the consideration, if any, received for such warrants, options or other rights) for such maximum number of Additional Shares of Common Stock shall be deemed to be the consideration received and receivable by the Corporation for the issuance of such Additional Shares of Common Stock pursuant to such warrants, options or other rights or pursuant to the terms of such Convertible Securities.

 
 

 

(e)           If the Corporation shall issue or sell Convertible Securities and the consideration per share for which Additional Shares of Common Stock may at any time thereafter be issuable pursuant to the terms of such Convertible Securities shall be less than the Conversion Amount, then the Conversion Rate shall be adjusted as provided in Section 3.2 (c) on the basis that (x) the maximum number of Additional Shares of Common Stock necessary to effect the conversion or exchange of all such Convertible Securities shall be deemed to have been issued and (y) the aggregate consideration for such maximum number of Additional Shares of Common Stock shall be deemed to be the consideration received and receivable by the Corporation for the issuance of such Additional Shares of Common Stock pursuant to the terms of such Convertible Securities.  No adjustment of the Conversion Rate shall be made under this Section 3.2(e) upon the issuance of any Convertible Securities which are issued pursuant to the exercise of any warrants, options or other rights, if such adjustment shall previously have been made upon the issuance of such warrants, options or other rights pursuant to Section 3.2(d).
(f)           For the purposes of Section 3.2(d) and Section 3.2(e), the date as of which the Conversion Amount shall be computed shall be the earliest of (x) the date on which the Corporation shall take a record of the holders of its shares of Common Stock for the purpose of entitling them to receive any warrants, options or other rights referred to in Section 3.2(d) or to receive any Convertible Securities, (y) the date on which the Corporation shall enter into a binding contract for the issuance of such warrants, options or other rights or Convertible Securities or (z) the date of actual issuance of such warrants, options or other rights or Convertible Securities.

 
 

 

(g)           No adjustment of the Conversion Rate shall be made under Section 3.2(c) upon the issuance of any Additional Shares of Common Stock which are issued pursuant to the exercise of any warrants, options or other rights or pursuant to the exercise of any conversion or exchange rights in any Convertible Securities, if such adjustment shall previously have been made upon the issuance of such warrants, options or other rights or upon the issuance of such Convertible Securities (or upon the issuance of any warrants, options or other rights therefor) pursuant to Section 3.2(d) or Section 3.2(e).
(h)           If any warrants, options or other rights (or any portions thereof) which shall have given rise to an adjustment pursuant to Section 3.2(d) or conversion rights pursuant to Convertible Securities which shall have given rise to an adjustment pursuant to Section 3.2(e) shall have expired or terminated without the exercise thereof and/or if by reason of the terms of such warrants, options or other rights or Convertible Securities there shall have been an increase, with the passage of time or otherwise, in the price payable upon the exercise or conversion thereof, then the Conversion Rate hereunder shall be readjusted (but to no greater extent than originally adjusted) on the basis of (x) eliminating from the computation any Additional Shares of Common Stock corresponding to such warrants, options or other rights or conversion rights as shall have expired or terminated, (y) treating the Additional Shares of Common Stock, if any, actually issued or issuable pursuant to the previous exercise of such warrants, options or other rights or of conversion rights pursuant to any Convertible Securities as having been issued for the consideration actually received or receivable therefor, and (z) treating any of such warrants, options or other rights or of conversion rights pursuant to any Convertible Securities which remain outstanding as being subject to exercise or conversion on the basis of such exercise or conversion price as shall be in effect at the time; provided, however, that any consideration which was actually received by the Corporation in connection with the issuance or sale of such warrants, options or other rights shall form part of the readjustment computation even though such warrants, options or other rights shall have expired without the exercise thereof.  The Conversion Rate shall be adjusted as provided in Section 3.2(c) as a result of any increase in the number of Additional Shares of Common Stock issuable, or any decrease in the consideration payable upon any issuance of Additional Shares of Common Stock, pursuant to any antidilution provisions contained in any warrants, options or other rights or in any Convertible Securities.

 
 

 

(i)           (A)           In case any Additional Shares of Common Stock, Convertible Securities or warrants, options or other rights to purchase any such Additional Shares of Common Stock or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the amount received by the Corporation therefor.
(B)           In case any Additional Shares of Common Stock, Convertible Securities or warrants, options or other rights to purchase any such Additional Shares of Common Stock or Convertible Securities shall be offered by the Corporation for subscription, the consideration received therefor shall be deemed to be the subscription price.
(C)           In case any Additional Shares of Common Stock, Convertible Securities or warrants, options or other rights to purchase any such Additional Shares of Common Stock or Convertible Securities are sold to underwriters or dealers for public offering without a subscription offering, the consideration received therefor shall be deemed to be the initial public offering price.
(D)           In any such case covered by subparagraphs (A), (B), or (C) herein, in determining the amount of consideration received by the Corporation, if the consideration is in whole or in part consideration other than cash, the amount of the consideration shall be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Corporation.  If Additional Shares of Common Stock shall be issued as part of a unit with warrants, options or other rights, then the amount of consideration for the warrants, options or other rights shall be deemed to be the amount determined at the time of issuance by the Board of Directors of the Corporation.  If the Board of Directors of the Corporation shall not make any such determination, the consideration for the warrant, option or other right shall be deemed to be zero.

 
 

 

(E)           In any such case covered by subparagraphs (A), (B), (C), or (D) herein, in determining the amount of consideration received by the Corporation (i) any amounts paid or receivable for accrued interest or accrued dividends shall be excluded, and (ii) any compensation, discounts, expenses paid or incurred or underwriting commissions or concessions paid in connection therewith shall not be deducted.
(F)           In any case covered by subparagraphs (A), (B) or (C) herein, there shall be added to the consideration received by the Corporation at the time of issuance or sale, the minimum aggregate amount of additional consideration payable to the Corporation upon the exercise of such warrants, options or other rights which relate to Convertible Securities and the minimum aggregate amount of consideration, if any, payable upon the conversion or exchange thereof.
             (G)           In case any Additional Shares of Common Stock, Convertible Securities or any options, warrants or other rights to purchase such Additional Shares of Common Stock or Convertible Securities shall be issued in connection with any merger or consolidation in which the Corporation is the surviving Corporation, the amount of consideration therefor shall be deemed to be the fair value, as determined in good faith by the Board of Directors of the Corporation, of such portion of the assets and business of the nonsurviving corporation or corporations as such Board shall determine to be attributable to such Additional Shares of Common Stock, Convertible Securities or warrants, options or other rights to purchase such Additional Shares of Common Stock or Convertible Securities.

 
 

 

(j)           In case the Corporation shall effect a reorganization, shall merge with or consolidate into another corporation, or shall sell, transfer or otherwise dispose of all or substantially all of its property, assets or business and, pursuant to the terms of such reorganization, merger, consolidation or disposition of assets, shares of stock or other securities, property or assets of the Corporation, successor or transferee or an affiliate thereof or cash are to be received by or distributed to the holders of shares of Common Stock, then each holder of shares of Series A Preferred Stock shall be given a written notice from the Corporation informing each holder of the terms of such reorganization, merger, consolidation, or disposition of assets and of the record date thereof for any distribution pursuant thereto, at least Ten (10) days in advance of such record date, and each holder of shares of Series A Preferred Stock shall have the right thereafter to receive, upon conversion of such shares of Series A Preferred Stock, the number of shares of stock or other securities, property or assets of the Corporation, successor or transferee or affiliate thereof or cash receivable upon or as a result of such reorganization, merger, consolidation or disposition of assets by a holder of the number of shares of Common Stock equal to the Conversion Rate immediately prior to such event, multiplied by the number of shares of Series A Preferred Stock as may be converted.  The provisions of this Section 3.2(j) shall similarly apply to successive reorganization mergers, consolidations or dispositions of assets.
(k)           If a purchase, tender or exchange offer is made to and accepted by the holders of more than Fifty Percent (50%) of the outstanding shares of Common Stock, the Corporation shall not effect any consolidation, merger or sale with the person having made such offer or with any affiliate of such person, unless prior to the consummation thereof each holder of shares of the Series A Preferred Stock shall have been given a reasonable opportunity to elect to receive, upon conversion of the shares of the Series A Preferred Stock then held by such holder, either the stock, securities, cash or assets then issuable with respect to the shares of Common Stock or the stock, securities, cash or assets issued to previous holders of the shares of Common Stock in accordance with such offer, or the equivalent thereof.

 
 

 

(l)           The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Corporation, and the disposition of such shares shall be considered an issue or sale of shares of Common Stock, for the purpose of this Section 3.2.
(m)           The Corporation will not pay or declare a dividend (other than in shares of Common Stock) upon the shares of Common Stock payable otherwise than out of earnings or earned surplus (determined in accordance with generally accepted accounting principles).
(n)           If a state of facts shall occur which, without being specifically controlled by the provisions of this Section 3.2, would not fairly protect the conversion rights of the shares of Series A Preferred Stock in accordance with the essential intent and principles of such provisions, then the Board of Directors of the Corporation shall make an adjustment in the application of such provisions, in accordance with such essential intent and principles, so as to protect such conversion rights.
(o)           All calculations under this Section 3.2 shall be made to the nearest One Thousandth (.001) of a share.
(p)           The issuance of certificates for shares of Common Stock upon the conversion of shares of Series A Preferred Stock shall be made without charge to the converting stockholder for any original issue or transfer tax in respect of the issuance of such certificates and any such tax shall be paid by the Corporation.

 
 

 

(q)           Whenever the Conversion Rate shall be adjusted pursuant to this Section 3.2, the Corporation shall forthwith obtain, and cause to be delivered to each holder of shares of Series A Preferred Stock, a certificate signed by the principal financial or accounting officer of the Corporation, setting forth in reasonable detail the event requiring the adjustment and the method by which such adjustment was calculated (including a description of the basis on which the Board of Directors of the Corporation determined the fair value of any consideration other than cash pursuant to Section 3.2(i)(D) or Section 3.2 (i)(G)) and specifying the new Conversion Rate.  In the case referred to in Section 3.2(j), such a certificate shall be issued describing the amount and kind of stock, securities, property or assets or cash which shall be receivable upon conversation of the Series A Preferred Stock after giving effect to the provisions of such Section 3.2(j).
3.3           The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of shares of Series A Preferred Stock, the full number of shares of Common Stock then deliverable upon the conversion of all shares of Series A Preferred Stock at the time outstanding.  The Corporation shall take at all times such corporate action as shall be necessary in order that the Corporation may validly and legally issue fully paid and nonassessable shares of Common Stock upon the conversion of the shares of Series A Preferred Stock in accordance with the provisions hereof.  No fractional shares of Common Stock or scrip representing fractional shares of Common Stock shall be issued upon any conversion of shares of Series A Preferred Stock, but, in lieu thereof, there shall be paid an amount in cash equal to the same fraction of the Conversion Amount of a whole share of Common Stock on the business day preceding the day of conversion.

 
 

 

3.4           Notwithstanding any provisions of the Certificate of Incorporation or of law, no preemptive right shall accrue solely by reason of the issuance by the Corporation of shares of Common Stock and the satisfaction of the conversion rights and privileges of the holders of shares of Series A Preferred Stock.
3.5           The following terms are defined as follows:
(a) “ Additional Shares of Common Stock ” shall mean all shares of Common Stock of the Corporation issued by the Corporation after January 31, 1998, except:
(i)           up to Two Million Four Hundred Thousand (2,400,000) shares of Common Stock to be issued upon exercise of stock options granted to the Corporation’s employees and others pursuant to stock option plans (“Plans”) authorized by the Corporation’s Board of Directors; provided, that the exercise price of any stock options granted under any Plans subsequent to January 20, 1998, shall not be less than the Fair Market Value, as of the date of grant of any such options, of the underlying shares of Common Stock; and
    (ii)       up to Three Million (3,000,000) shares of Common Stock to be issued in connection with a contemplated financing program between the Corporation and BSD Development Beta Corporation on terms and conditions set forth in a duly adopted resolution of the Corporation’s Board of Directors.
(b)           “ Conversion Amount ” shall mean, on any applicable date, the amount equal to the quotient resulting from dividing One Dollar ($1.00) by the Conversion Rate in effect on such date.

 
 

 

(c)           “ Fair Market Value ” of One (1) share of Common Stock as of a particular date (“Determination Date”) means the closing sale price for One (1) share of Common Stock as reported on the primary securities exchange on which such shares of Common Stock are listed or, in the event such shares of Common Stock are not listed on any securities exchange, the last reported sale price on the NASDAQ National Market System (“NASDAQ/NMS”) or, in the event no such reported sale takes place on the date subject to determination of the Fair Market Value, the average of the reported closing bid and asked prices on such securities exchange or NASDAQ/NMS, or, in the event such shares of Common Stock are not listed on any securities exchange or quoted on the NASDAQ/NMS, the average of the bid and asked prices for the immediately preceding Forty-Five (45) days as quoted on the NASDAQ Small Cap Market, or in the event such shares of Common Stock are not quoted on the NASDAQ Small Cap Market, the average of the bona fide independent bid prices or prices, entered by at least One (1) independent market maker, for the immediately preceding Forty-Five (45) days as reported in the NASDAQ Bulletin Board, or in the event such shares of Common Stock are not reported in the NASDAQ Bulletin Board, the average of the bona fide independent bid prices, entered by at least One (1) independent market maker, for the immediately preceding Forty-Five (45) days reported in the “over-the-counter” market in the “pink sheets” published by the National Quotation Bureau, Inc., or in the event such shares of Common Stock are not so listed, quoted or included, the fair market value as established by the good faith determination of any nationally recognized firm of certified public accountants selected by the holders of a majority of the shares of the Series A Preferred Stock, which selection shall be set forth in a written notice to the Secretary of the Corporation signed by the holders of a majority of the shares of the Series A Preferred Stock.  Such Fair Market Value shall be determined as of a date selected by the holders of a majority of the shares of Series A Preferred Stock, which date shall be no more than Ten (10) business days prior to the Determination Date.

 
 

 

Section 4. Mandatory Conversion .
4.1           Notwithstanding any provisions of Section 3.2 hereof, the issued and outstanding shares of Series A Preferred Stock shall, at the option of the Corporation, exercised pursuant to a duly adopted resolution of the Corporation’s Board of Directors, be converted into fully paid and nonassessable shares of Common Stock at the Conversion Rate (“Mandatory Conversion”) in the event the Fair Market Value of shares of Common Stock shall equal or exceed Four (4) times the Conversion Amount for a period of at least Forty Five (45) consecutive business days immediately preceding the Notice of Mandatory Conversion (as hereinafter defined).
4.2           At least Ten (10) days prior to the effective date of the Mandatory Conversion, the Corporation shall give written notice (“Notice of Mandatory Conversion”) to each holder of shares of Series A Preferred Stock, by certified mail enclosed in a postage paid envelope addressed to such holder at such holder’s address as the same shall appear on the books of the Corporation.  Such Notice of Mandatory Conversion shall: (i) state that the shares of Series A Preferred Stock are being mandatorily converted pursuant to Section 4.1 hereof; (ii) state the expected effective date of such Mandatory Conversion (“Mandatory Conversion Date”); and (iii) instruct the holders of shares of Series A Preferred Stock to exchange on or after such Mandatory Conversion Date at the principal office of the Corporation certificates representing the number of shares of Series A Preferred Stock to be converted in accordance with such Notice of Mandatory Conversion.  On or after such Conversion Date, the holder of shares of Series A Preferred Stock shall present and surrender the certificates for the shares of Series A Preferred Stock to the Corporation at the place designated in such Notice of Mandatory Conversion, and thereupon the Corporation shall deliver to such holders of Series A Preferred Stock certificates for the number of shares of Common Stock to which such holder shall be entitled.  Shares of Series A Preferred Stock shall be deemed to have been converted and canceled on such Conversion Date and the holder of shares of Series A Preferred Stock entitled to receive the shares of Common Stock issuable upon such Mandatory Conversion shall be treated for all purposes as the record holder of such shares of Common Stock on the Conversion Date.  In the case of a Mandatory Conversion, the Corporation shall not be obligated to issue certificates for shares of Common Stock unless certificates evidencing the converted shares of Series A Preferred Stock are delivered to the Corporation.

 
 

 

Section 5. Voting Rights .
5.1           The holders of shares of Series A Preferred Stock shall have the following voting rights:
 
(a)
The holders of shares of Series A Preferred Stock shall be entitled to vote on all matters submitted to a vote of the stockholders of the Corporation.  The holders of shares of Series A Preferred Stock shall have the right to cast One (1) vote for each share of Common Stock into which each share of Series A Preferred Stock held by them is convertible, with any fractions rounded to the next highest full vote.
 
(b)
Except as otherwise provided herein or by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock shall vote together as One (1) class on all matters submitted to a vote of stockholders of the Corporation.
 
(c)
Except as provided herein or by law, holders of shares of Series A 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 shares of Common Stock as set forth herein) for taking any corporate action.

 
 

 

Section 6.  Reacquired Shares .
6.1           Any shares of Series A Preferred Stock purchased or otherwise reacquired by the Corporation in any manner whatsoever, shall be retired and canceled 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 Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein.
Section 7. Liquidation, Dissolution or Winding-Up .
7.1           The shares of Series A Preferred Stock shall be preferred over all series and classes of Preferred Stock and all series and classes of Common Stock as to both earnings and assets, and, in the event of any dissolution, liquidation or winding-up of the Corporation, whether voluntary or involuntary, judicial or non-judicial, the holders of the shares of Series A Preferred Stock shall be entitled to receive out of assets of the Corporation available for distribution to its stockholders, whether from capital, surplus or earnings, an amount equal to One Dollar ($1.00) per share of Series A Preferred Stock, (or the then current Conversion Amount per share of Series A Preferred Stock), plus all accrued and unpaid dividends thereon, before any distribution of the assets shall be made to the holders of any series or class of Preferred Stock or to the holders of any series or Class of Common Stock, but shall be entitled to no further distribution.  If, upon any such dissolution, liquidation or winding-up of the Corporation, the assets distributable among the holders of the shares of Series A Preferred Stock shall be insufficient to permit payment in full to the holders of shares of Series A Preferred Stock of such preferential amounts, then the entire assets of the Corporation thus distributable shall be distributed ratably among the holders of shares of Series A Preferred Stock, according to the respective number of shares of Series A Preferred Stock held by them.

 
 

 

7.2           The merger or consolidation of the Corporation into or with another corporation or the merger or consolidation of any other corporation into the Corporation (in which merger or consolidation the stockholders of the Corporation receive shares of stock or other securities, property or assets of the Corporation or another entity or cash), or the sale, lease, conveyance or other disposition of all or a substantial part of its property and business of the Corporation, shall be deemed to be a liquidation, dissolution or winding-up of the Corporation within the meaning of Section 7.1
Section 8.  No Redemption .
The shares of Series A Preferred Stock shall not be redeemable by the Corporation.
IN WITNESS WHEREOF, we have executed and subscribed this certificate and do affirm the foregoing under penalties of perjury this 8 th day of September 1998.
 
 
AN-CON GENETICS, INC.
 
     
     
 
/s/ Andrew Makrides  
 
 
Andrew Makrides, President
 
     
     
 
/s/ Delton Cunningham
 
 
Delton Cunningham, Secretary
 
 

 
 

 

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AN-CON GENETICS, INC.
 
An-Con Genetics, Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify that:
 
I.           The Amendment to the Corporation’s Certificate of Incorporation set forth below was duly adopted in accordance with the provisions of Section 242 and has been consented to in writing by the stockholders, and written notice has been given, in accordance with Section 228 of the General Corporation Law of the State of Delaware.
 
II.           Article FIRST of the Corporation’s Certificate of Incorporation is amended to read in its entirety as follows:
 
“The name of the corporation is Bovie Medical Corporation.”
 
 
IN WITNESS WHEREOF, An-Con Genetics, Inc. has caused this Certificate to be executed by its authorized officer, on this 11 th day of September, 1998.
 
 
AN-CON GENETICS, INC.
 
     
 
By:       /s/ Andrew Makrides  
 
 
Name:  Andrew Makrides
 
 
Title: President
 


BY-LAWS

OF



ANCON MEDICAL SYSTEMS, INC.

ARTICLE I – OFFICES


The office of the Corporation shall be located in the City and State designated in the Articles of Incorporation.  The Corporation may also maintain offices at such other places within or without the United States as the Board of Directors may, from time to time, determine.

ARTICLE II – MEETING OF SHAREHOLDERS

Section 1 – Annual Meetings :

The annual meeting of the shareholders of the Corporation shall be held within five months after the close of the fiscal year of the Corporation, for the purpose of electing directors, and transacting such other business as may properly come before the meeting.

Section 2 – Special Meetings :

Special meetings of the shareholders may be called at any time by the Board of Directors or by the President, and shall be called by the President or the Secretary at the written request of the holders of ten per cent (10%) of the shares then outstanding and entitled to vote thereat, or as otherwise required under the provisions of the Business Corporation Act.

Section 3 – Place of Meetings :

All meetings of shareholders shall be held at the principal office of the Corporation, or at such other places as shall be designated in the notices or waivers of notice of such meetings.

Section 4 – Notice of Meetings :

(a)           Except as otherwise provided by Statute, written notice of each meeting of shareholders, whether annual or special, stating the time when and place where it is to be held, shall be served either personally or by mail, not less than ten or more than fifty days before the meeting, upon each shareholder of record entitled to vote at such meeting, and to any other shareholder to whom the giving of notice may be required by law.  Notice of a special meeting shall also state the purpose or purposes for which the meeting is called and shall indicate that it is being issued by, or at the direction of, the person or persons calling the meeting.  If, at any meeting, action is proposed to be taken that would, if taken, entitle shareholders to receive payment for their shares pursuant to Statute, the notice of such meeting shall include a statement of that purpose and to that effect.  If mailed, such notice shall be directed to each such shareholder at his address, as it appears on the records of the shareholders of the Corporation, unless he shall have previously filed with the Secretary of the Corporation a written request that notices intended for him be mailed to some other address, in which case, it shall be mailed to the address designated in such request.

 

 
By-Laws - 1

 


(b)           Notice of any meeting need not be given to any person who may become a shareholder of record after the mailing of such notice and prior to the meeting, or to any shareholder who attends such meeting, in person or by proxy, or to any shareholder who, in person or by proxy, submits a signed waiver of notice either before or after such meeting.  Notice of any adjourned meeting of shareholders need not be given, unless otherwise required by statute.

Section 5 – Quorum :

(a)           Except as otherwise provided herein, or by statute, or in the Certificate of Incorporation (such Certificate and any amendments thereof being hereinafter collectively referred to as the “Certificate of Incorporation”), at all meetings of shareholders of the Corporation, the presence at the commencement of such meetings in person or by proxy of shareholders holding of record a majority of the total number of shares of the Corporation then issued and outstanding and entitled to vote, shall be necessary and sufficient to constitute a quorum for the transaction of any business.  The withdrawal of any shareholder after the commencement of a meeting shall have no effect on the existence of a quorum, after a quorum has been established at such meeting.

(b)           Despite the absence of a quorum at any annual or special meeting of shareholders, the shareholders, by a majority of the votes cast by the holders of shares entitled to vote thereon, may adjourn the meeting.  At any such adjourned meeting at which a quorum is present, any business may be transacted at the meeting as originally called if a quorum had been present.

Section 6 – Voting :

(a)           Except as otherwise provided by statute or by the Certificate of Incorporation, any corporate action, other than the election of directors, to be taken by vote of the shareholders, shall be authorized by a majority of votes cast at a meeting of shareholders by the holders of shares entitled to vote thereon.

(b)           Except as otherwise provided by statute or by the Certificate of Incorporation, at each meeting of shareholders, each holder of record of stock of the Corporation entitled to vote thereat, shall be entitled to one vote for each share of stock registered in his name on the books of the Corporation.

 
By-Laws - 2

 

(c)           Each shareholder entitled to vote or to express consent or dissent without a meeting, may do so by proxy; provided, however, that the instrument authorizing such proxy to act shall have been executed in writing by the shareholder himself, or by his attorney-in-fact thereunto duly authorized in writing.  No proxy shall be valid after the expiration of eleven months from the date of its execution, unless the person executing it shall have specified therein the length of time it is to continue in force.  Such instrument shall be exhibited to the Secretary at the meeting and shall be filed with the records of the Corporation.

(d)           Any resolution in writing, signed by all of the shareholders entitled to vote thereon, shall be and constitute action by such shareholders to the effect therein expressed, with the same force and effect as if the same had been duly passed by unanimous vote at a duly called meeting of shareholders and such resolution so signed shall be inserted in the Minute Book of the Corporation under its proper date.

ARTICLE III – BOARD OF DIRECTORS

Section 1 – Number, Election and Term of Office:

(a)           The number of the directors of the Corporation shall be no more than seven (7), unless and until otherwise determined by vote of a majority of the entire Board of Directors.  The number of directors shall not be less than three, unless all of the outstanding shares are owned beneficially and of record by less than three shareholders, in which event the number of directors shall not be less than the number of shareholders permitted by statute.*

(b)           Except as may otherwise be provided herein or in the Certificate of Incorporation, the members of the Board of Directors of the Corporation, who need not be shareholders, shall be elected by a majority of the votes cast at a meeting of shareholders, by the holders of shares, present in person or by proxy, entitled to vote in the election.

(c)           Each director shall hold office until the annual meeting of the shareholders next succeeding his election, and until his successor is elected and qualified, or until his prior death, resignation or removal.

Section 2 – Duties and Powers :

The Board of Directors shall be responsible for the control and management of the affairs, property and interests of the Corporation, and may exercise all powers of the Corporation, except as are in the Certificate of Incorporation or by statute expressly conferred upon or reserved to the shareholders.


 
* Pursuant to Board Resolution April 23 rd , 2009:
   The first sentence of Article III Section 1(a) of the by-laws is amended to read as follows:
 
  (a)  The number of directors of the Corporation shall be no more than nine (9), unless and until otherwise determined by vote of a majority of the entire Board of Directors.

 
By-Laws - 3

 

Section 3 – Annual and Regular Meetings; Notice :

(a)           A regular annual meeting of the Board of Directors shall be held immediately following the annual meeting of the shareholders, at the place of such annual meeting of shareholders.

(b)           The Board of Directors, from time to time, may provide by resolution for the holding of other regular meetings of the Board of Directors, and may fix the time and place thereof.

(c)           Notice of any regular meeting of the Board of Directors shall not be required to be given and, if given, need not specify the purpose of the meeting; provided, however, that in case the Board of Directors shall fix or change the time or place of any regular meeting, notice of such action shall be given to each director who shall not have been present at the meeting at which such action was taken within the time limited, and in the manner set forth in paragraph (b) Section 4 of this Article III, with respect to special meetings, unless such notice shall be waived in the manner set forth in paragraph (c) of such Section 4.

Section 4- Special Meetings; Notice :

(a)           Special meetings of the Board of Directors shall be held whenever called by the President or by one of the directors, at such time and place as may be specified in the respective notices or waivers of notice thereof.

(b)           Except as otherwise required by statute, notice of special meetings shall be mailed directly to each director, addressed to him at his residence or usual place of business, at least two (2) days before the day on which the meeting is to be held, or shall be sent to him at such place by telegram, radio or cable, or shall be delivered to him personally or given to him orally, not later than the day before the day on which the meeting is to be held.  A notice, or waiver of notice, except as required by Section 8 of this Article III, need not specify the purpose of the meeting.

(c)           Notice of any special meeting shall not be required to be given to any director who shall attend such meeting without protesting prior thereto or at its commencement, the lack of notice to him, or who submits a signed waiver of notice, whether before or after the meeting.  Notice of any adjourned meeting shall not be required to be given.

Section 5 – Chairman :

At all meetings of the Board of Directors, the Chairman of the Board, if any and if present, shall preside.  If there shall be no Chairman , or he shall be absent, then the President shall preside, and in his absence, a Chairman chosen by the directors shall preside.

 
By-Laws - 4

 
 
Section 6 – Quorum and Adjournments :

(a)           At all meetings of the Board of Directors, the presence of a majority of the entire Board shall be necessary and sufficient to constitute a quorum for the transaction of business, except as otherwise provided by law, by the Certificate of Incorporation, or by these By-Laws.

(b)           A majority of the directors present at the time and place of any regular or special meeting, although less than a quorum, may adjourn the same from time to time without notice, until a quorum shall be present.

Section 7 – Manner of Acting :

(a)           At all meetings of the Board of Directors, each direct present shall have one vote, irrespective of the number of shares of stock, if any, which he may hold.

(b)           Except as otherwise provided by statute, by the Certificate of Incorporation, or by these By-Laws, the action of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors.  Any action authorized, in writing, by all of the directors entitled to vote thereon and filed with the minutes of the corporation shall be the act of the Board of Directors with the same force and effect as if the same had been passed by unanimous vote at a duly called meeting of the Board.

Section 8 – Vacancies :

Any vacancy in the Board of Directors occurring by reason of an increase in the number of directors, or by reason of the death, resignation, disqualification, removal (unless a vacancy created by the removal of a director by the shareholders shall be filled by the shareholders at the meeting at which the removal was effected) or inability to act of any director, or otherwise, shall be filled for the unexpired portion of the term by a majority vote of the remaining directors, though less than a quorum, at any regular meeting or special meeting of the Board of Directors called for that purpose.

Section 9 – Resignation :

Any director may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation.  Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors or such officer, and the acceptance of such resignation shall not be necessary to make it effective.

 
By-Laws - 5

 

Section 10 – Removal :

Any director may be removed with or without cause at any time by the affirmative vote of shareholders holding of record in the aggregate at least a majority of the outstanding shares of the Corporation at a special meeting of the shareholders called for that purpose, and may be removed for cause by action of the Board.

Section 11 – Salary :

No stated salary shall be paid to directors, as such, for their services, but by resolution of the Board of Directors a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board; provided, however, that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

Section 12 – Contracts :

(a)           No contract or other transaction between this Corporation and any other Corporation shall be impaired, affected or invalidated, nor shall any director be liable in any way by reason of the fact that any one or more of the directors of this Corporation is or are interested in, or is a director or officer, or are directors or officers of such other Corporation, provided that such facts are disclosed or made known to the Board of Directors.

(b)           Any director, personally and individually, may be a party to or may be interested in any contract or transaction of this Corporation, and no director shall be liable in any way by reason of such interest, provided that the fact of such interest be disclosed or made known to the Board of Directors, and provided that the Board of Directors shall authorize, approve or ratify such contract or transaction by the vote (not counting the vote of any such director) of a majority of a quorum, notwithstanding the presence of any such director at the meeting at which such action is taken.  Such director or directors may be counted in determining the presence of a quorum at such meeting.  This Section shall not be construed to impair or invalidate or in any way affect any contract or other transaction which would otherwise be valid under the law (common, statutory or otherwise) applicable thereto.

Section 13 – Committees :

The Board of Directors, by resolution adopted by a majority of the entire Board, may from time to time designate from among its members an executive committee and such other committees, and alternative members thereof, as they may deem desirable, each consisting of three or more members, with such powers and authority (to the extent permitted by law) as may be provided in such resolution.  Each such committee shall serve at the pleasure of the Board.

 
By-Laws - 6

 

ARTICLE IV  – OFFICERS

Section 1 – Number, Qualifications, Election and Term of Office :

(a)           The officers of the Corporation shall consist of a President, a Secretary, a Treasurer, and such other officers, including a Chairman of the Board of Directors, and one or more Vice Presidents, as the Board of Directors may from time to time deem advisable.  Any officer other than the Chairman of the Board of Directors may be, but is not required to be, a director of the Corporation.  Any two of more offices may be held by the same person.

(b)           The officers of the Corporation shall be elected by the Board of Directors at the regular annual meeting of the Board following the annual meeting of shareholders.

(c)           Each officer shall hold office until the annual meeting of the Board of Directors next succeeding his election, and until his successor shall have been elected and qualified, or until his death, resignation or removal.

Section 2 – Resignation :

Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, or to the President or the Secretary of the Corporation.  Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors or by such officer, and the acceptance of such resignation shall not be necessary to make it effective.

Section 3 – Removal :

Any officer may be removed, either with or without cause, and a successor elected by a majority vote of the Board of Directors at any time.

Section 4 – Vacancies :

A vacancy in any office by reason of death, resignation, inability to act, disqualification, or any other cause, may at any time be filled for the unexpired portion of the term by a majority vote of the Board of Directors.

Section 5 – Duties of Officers :

Officers of the Corporation shall, unless otherwise provided by the Board of Directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be set forth in these by-laws, or may from time to time be specifically conferred or imposed by the Board of Directors.  The President shall be the chief executive officer of the Corporation.

 
By-Laws - 7

 

Section 6 – Sureties and Bonds :

In case the Board of Directors shall so require, any officer, employee or agent of the Corporation shall execute to the Corporation a bond in such sum, and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful performance of his duties to the Corporation, including responsibility for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands.

Section 7 – Shares of  Other Corporations :

Whenever the Corporation is the holder of shares of any other Corporation, any right or power of the Corporation as such shareholder (including the attendance, acting and voting at shareholders’ meetings and execution of waivers, consents, proxies or other instruments) may be exercised on behalf of the Corporation by the President, any Vice President, or such other person as the Board of Directors may authorize.

ARTICLE V – SHARES OF STOCK

Section 1 – Certificate of Stock :

(a)           The certificates representing shares of the Corporation shall be in such form as shall be adopted by the Board of Directors, and shall be numbered and registered in the order issued.  They shall bear the holder’s name and the number of shares, and shall be signed by (i) the Chairman of the Board or the President or a Vice President, and (ii) the Secretary or Treasurer, or any Assistant Secretary or Assistant Treasurer, and shall bear the corporate seal.
 
(b)           No certificate representing shares shall be issued until the full amount of consideration therefore has been paid, except as otherwise permitted by law.
 
(c)           To the extent permitted by law, the Board of Directors may authorize the issuance of certificates for fractions of a share which shall entitle the holder to exercise voting rights, receive dividends and participate in liquidating distributions, in proportion to the fractional holdings; or it may authorize the payment in cash of the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined; or it may authorize the issuance, subject to such conditions as may be permitted by law, of scrip in registered or bearer form over the signature of an officer or agent of the Corporation, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any rights of a shareholder, except as therein provided.
 
Section 2 – Lost or Destroyed Certificates :

The holder of any certificate representing shares of the Corporation shall immediately notify the Corporation of any loss or destruction of the certificate representing the same.  The Corporation may issue a new certificate in the place of any certificate theretofore issued by it, alleged to have been lost or destroyed.  On production of such evidence of loss or destruction as the Board of Directors in its discretion may require, the Board of Directors may, in its discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the Corporation a bond in such sum as the Board may direct, and with such surety or sureties as may be satisfactory to the Board, to indemnify the Corporation against any claims, loss, liability or damage it may suffer on account of the issuance of the new certificate.  A new certificate may be issued without requiring any such evidence or bond when, in the judgment of the Board of Directors, it is proper so to do.

 
By-Laws - 8

 
 
Section 3 – Transfers of Shares :

(a)           Transfers of shares of the Corporation shall be made on the share records of the Corporation only by the holder of record thereof, in person or by his duly authorized attorney, upon surrender for cancellation of the certificate or certificates representing such shares, with an assignment or power of transfer endorsed thereon or delivered therewith, duly executed, with such proof of the authenticity of the signature and of authority to transfer and of payment of transfer taxes as the Corporation or its agents may require.
 
(b)           The Corporation shall be entitled to treat the holder of record of any share or shares as the absolute owner thereof for all purposes, and accordingly shall not be bound to recognize any legal, equitable or other claim to, or interest in, such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by law.
 
Section 4 – Record Date :

In lieu of closing the share records of the Corporation, the Board of Directors may fix, in advance, a date not exceeding fifty days, nor less than ten days, as the record date for the determination of shareholders entitled to receive notice of, or to vote at, any meeting of shareholders, or to consent to any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividends, or allotment of any rights, or for the purpose of any other action.  If no record date is fixed, the record date for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if no notice is given, the day on which the meeting is held; the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the resolution of the directors relating thereto is adopted.  When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders has been made as provided for herein, such determination shall apply to any adjournment thereof, unless the directors fix a new record date for the adjourned meeting.

ARTICLE VI – DIVIDENDS

Subject to applicable law, dividends may be declared and paid out of any funds available therefor, as often, in such amounts, and at such time or times as the Board of Directors may determine.

 
By-Laws - 9

 

ARTICLE VII – FISCAL YEAR

The fiscal year of the Corporation shall be fixed by the Board of Directors from time to time, subject to applicable law.

ARTICLE VIII – CORPORATE SEAL

The corporate seal, if any, shall be in such form as shall be approved from time to time by the Board of Directors.

ARTICLE IX – AMENDMENTS

Section 1 – By Shareholders :

All by-laws of the Corporation shall be subject to alteration or repeal, and new by-laws may be made, by the affirmative vote of shareholders holding of record in the aggregate at least a majority of the outstanding shares entitled to vote in the election of directors at any annual or special meeting of shareholders, provided that the notice or waiver of notice of such meeting shall have summarized or set forth in full therein, the proposed amendment.

Section 2 – By Directors :

The Board of Directors shall have power to make, adopt, alter, amend and repeal, from time to time, by-laws of the Corporation; provided, however, that the shareholders entitled to vote with respect thereto as in this Article IX above-provided may alter, amend or repeal by-laws made by the Board of Directors, except that the Board of Directors shall have no power to change the quorum for meetings of shareholders or of the Board of Directors, or to change any provisions of the by-laws with respect to the removal of directors or the filling of vacancies in the Board resulting from the removal by the shareholders.  If any by-law regulating an impending election of directors is adopted, amended or repealed by the Board of Directors, there shall be set forth in the notice of the next meeting of shareholders for the election of directors, the by-law so adopted, amended or repealed, together with a concise statement of the changes made.


 
By-Laws - 10

 

AMENDMENT TO BYLAWS
OF
BOVIE MEDICAL CORPORATION

(As Adopted by the Board of Directors on April 23, 2009)


1.
The first sentence in Article III, Section 1(a) of the bylaws of Bovie Medical Corporation (the “Corporation”) is hereby deleted and a new sentence is hereby inserted in its place, reading in its entirety as follows:

“(a)           The number of directors of the Corporation shall be no more than nine (9) unless and until otherwise determined by a vote of a majority of the entire Board of Directors.”

2.
Except as herein amended, the bylaws of the Corporation remain in full force and effect.





 
    /s/ Gary Pickett                                                                         
        Gary Pickett, Secretary
   
 
 
    




 

 

AMENDMENT TO BY-LAWS
OF
BOVIE MEDICAL CORPORATION

(As Adopted by the Board of Directors on March 18, 2011)


1.
The last sentence in Article IV, Section 5 of the By-Laws of Bovie Medical Corporation (the “Corporation”) is hereby deleted and a new sentence is hereby inserted in its place, reading in its entirety as follows:

“Unless otherwise directed by the Board of Directors, the President shall be the chief executive officer of the Corporation.”

2.
Except as herein amended, the By-Laws of the Corporation remain in full force and effect.




 
    /s/ Gary Pickett                                                                         
        Gary Pickett, Secretary
   
 


BOVIE MEDICAL CORPORATION
Policy/Procedure No. 804
 
Title: CODE OF BUSINESS CONDUCT AND ETHICS
Effective: 5/1/2006
Revision:
 
INTRODUCTION
 
This Code of Business and Ethics (the "Code") covers multiple business practices and procedures. It should be noted that it is not possible to include every issue that may arise; however, it attempts to set basic principles in an effort to guide all employees and directors of Bovie Medical Corp. (the "Company"). The Code should be provided to and followed by Bovie's employees, directors, legal counsel and consultants.
 
The Company is committed to maintain the highest standards of ethical conduct.  This Code of Ethics clearly reflects practices and principles of behavior that support the standards of conduct.
 
COMPLIANCE WITH APPLICABLE LAWS
 
All employees, officers and directors of the Company must be in compliance with the laws, rules and regulations of the United States and the countries in which Bovie operates.
 
Kickbacks, bribes or other illegal compensation are prohibited and must not be accepted by any individual employed by Bovie in any capacity or an individual representing the Company.
 
PROHIBITION AGAINST INSIDER TRADING
 
Prohibition against insider trading in general, officers and directors who have knowledge of, material nonpublic information about Bovie are prohibited from buying, selling or otherwise trading in BVX's stock. "Material nonpublic" information includes any information, positive or negative that has not yet been made available or disclosed to the public and that might be of significance to an investor.
 
Such insiders also are prohibited from giving "tips" on material nonpublic information, that is directly or indirectly of such information to any other person, including family members, other relatives and friends. Furthermore, if, in due course of your service you acquire material nonpublic information about another company, such as our customers or suppliers, you are restricted from trading in the securities of the other company. Such "insider trading" is illegal, with criminal and civil penalties.

 
 

 

 

BOVIE MEDICAL CORPORATION
Policy Procedure No. 804
 
 
UNCOVERING INSIDER TRADING
 

 
There are currently (according to the S.E.C.) two types of insider trading:  legal and illegal.
 
Illegal insider trading is the buying or selling of a security by insiders who possess "material" not public. A director, officer, consultant or etc. who acts on non-public favorable or non-favorable information is in clear breach of their fiduciary duty.
 
It should be noted that it is a misconception that only directors and upper management can be convicted of insider trading. The law SEC Rule 10b5-1 is clear in stating that anybody who has material and non-public information can commit such an act. To clarify this refers to brokers, family, friends, employees and consultants.
 
The following are examples of illegal trading;
 

 
·
Knowledge of financial results prior to release to public knowledge of loss
 
·
Loss of large contract prior to release of information to public
 
·
A company plans to register additional shares which would result in a dilution the outstanding shares
 
These are only examples and each case would be examined on a case-by-case study.
 
An individual may not make the trade but can be caught as a "tipster" who is an outsider with material nonpublic information. The tipster can also be found liable.
 
LEGAL INSIDER TRADING
 
Insiders legally buy and sell company stock; their trading is restricted and illegal only at certain times and under certain conditions.  Insiders are required to report their transactions to the S.E.C. often electronically (although not required to be filed electronically).
 
The law of insider trading can be summarized by stating that stock market transactions made with knowledge of nonpublic information about corporate activity is illegal and the S.E.C. regards it as unfair to investors who are not privy to such information. The S.E.C. has the authority and responsibility to prosecute cases of illegal insider trading.

 
 

 


BOVIE MEDICAL CORPORATION
Policy Procedure No. 804
 

 
CORPORATE OPPORTUNITIES

Employees, officers and directors are prohibited from taking for themselves personally opportunities that belong to Bovie or are discovered through the use of certain property, information or position for their personal gain.  In addition, any employee is prohibited from engaging directly or indirectly through a business associate, friend, relative or tech. Included is a business that would be classified as a competitor of Bovie, during the time of employment.  High ranked employees may enter into contracts that more clearly define limitations the company places on an individual.
 
CONFIDENTIALITY
 
Employees, officers and directors must maintain the confidentiality of all information entrusted to them by Bovie, our customers, sales brokers, or suppliers, or others with whom we may conduct business, except when disclosure of information is specifically authorized by an executive of Bovie or required as a matter of law.
 
Confidential information includes any information that has been made available to the public that provides knowledge of our current or anticipated business activities. It also includes important nonpublic information about firms with which we have dealings, including customers, sales brokers and suppliers.  You should not share confidential information with friends, relatives or other non-employees, or discuss any confidential matters in public places, such as elevators, transportation (including airplanes) or restaurants.
 
FAIR DEALING
 
All employees, officers, directors and consultants must endeavor to operate fairly and good faith with fellow employees and customers.  No individual employed by the Company or representing the Company shall deliberately attempt to take unfair advantage of anyone.
 
The Company's policy is clear:
 
To select, place and work with every individual in every capacity without discrimination based on race, national origin, gender, age, religion, disability or sexual orientation.

 
 

 

 

BOVIE MEDICAL CORPORATION
Policy Procedure No. 804
 
SAFETY AND ENVIRONMENT

Safety is always a primary goal. All employees must strive to ensure that the operations of the company are conducted in a safe manner and that all corporate safety rules and practices are adhered to in the workplace. Any violations or unsafe conditions should be promptly brought to a supervisor's attention. In addition, employees must be committed to adhering to the law and taking all reasonable steps to preserve and enhance the laws of public health and safety.
 
PROTECTION AND PROPER USE OF COMPANY ASSETS
 
All employees, officers and directors must protect Bovie's assets and ensure their efficient use. Such assets include without limitation, intellectual property such as the Company's trademarks, patents, copyrights, confidential information including sales and other data, manufacturing processes and formulae, ideas, plans and strategies. Theft and waste have a direct impact on our profitability and company assets should be used only for legitimate business purposes. Any misuse or infringement of assets should be reported to the President.
 
WAIVERS OF THE CODE OF BUSINESS CONDUCT AND ETHICS
 
Any waiver of this Code for executive officers or Directors may be made only by the Board of Directors and will be promptly disclosed to stockholders as required by law or stock exchange.
 
Any questions about a Director's actual or potential conflict of interest with the Company should be brought promptly to the attention of the Corporate Governance Committee, which will review the question and determine an appropriate course of action, including whether consideration or action by the full board is necessary. Directors involved in any conflict or potential conflict shall excuse themselves from any decisions relating thereto.
 
REPORTING ANY ILLEGAL OR UNETHICAL BEHAVIOR
 
Employees are encouraged to talk to supervisors, managers or other appropriate personnel about observed illegal or unethical behavior and, when in doubt, about the best course of action in a particular situation. Employees, officers and directors who are concerned that violations of this Code or that other illegal or unethical conduct by employees, officers or directors of the Company have occurred or may occur should either contact their supervisor or superiors. If they do not believe it appropriate or are not comfortable approaching their supervisors or superiors about their concerns or complaints, then they may contact either the Law Department of the Company or the Audit Committee or Nominating & Governance Committee of the Board of Directors of the Company. If their concerns or complaints require confidentiality, including keeping their identity anonymous, then this confidentiality will be protected, subject to applicable law, regulation or legal proceedings.

 
 

 

 
 

BOVIE MEDICAL CORPORATION
Policy Procedure No. 804
 

PUBLIC COMPANY REPORTING
 
As a public company, it is of critical importance that tile Company's public filings be accurate and timely. Depending on their position with the Company, an employee, officer or director may be called upon to provide necessary information to assure that the Company's public reports are complete, fair and understandable. The Company expects employees, officers and directors to take this responsibility very seriously and to provide prompt accurate answers to inquiries related to the Company's public disclosure requirements. All of the Company's books, records, accounts and financial statements must be properly maintained.
 
ACCOUNTING COMPLAINTS
 
The Company's policy is to comply with all applicable financial reporting and accounting regulations applicable to the Company. If any employee, officer or director of the Company has concerns or complaints regarding questionable accounting or auditing matters of the Company, then he or she is encouraged to submit those concerns or complaints (anonymously, confidentially or otherwise) to the Audit Committee of the Board of Directors, which will, subject to its duties arising under applicable law, regulations and legal proceedings, treat such submissions confidentially. Such submissions may be directed to the attention of the Audit Committee, or any director who is a member of the Audit Committee, at the principal executive offices of the Company.
 
RELATIONSHIP TO COMPANY POLICIES
 
This Code of Business Conduct and Ethics are statements, goals and expectations for good business conduct.
 
The Company's Code of Ethics is not intended nor will it supersede any local, state or federal laws.
 


 
 

 


Exhibit 31.1
 
Certificate Pursuant to Section 302
of Sarbanes – Oxley Act of 2002
CERTIFICATION OF CEO

I, Andrew Makrides, the Registrant's Chief Executive Officer, certify that:

1. I have reviewed this annual report on Form 10-K/A of Bovie Medical Corporation;

2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;

3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:

 
a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
 
b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the liability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America.
 
c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
 
d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the Registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
 
 
a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
 
b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
 
Date: March 31, 2011
 
   
/s/ Andrew Makrides
 
Title : Chief Executive Officer
 
   


 
 

 

Exhibit 31.2
Certificate Pursuant to Section 302
of Sarbanes – Oxley Act of 2002
CERTIFICATION OF CFO

 
I, Gary D. Pickett, the Registrant's Chief Financial Officer, certify that:

1. I have reviewed this annual report on Form 10-K/A of Bovie Medical Corporation;

2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;

3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:

 
a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
 
b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the liability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America.
 
 
c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
 
d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the Registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
 
 
a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
 
b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
 
Date: March 31, 2011
 
   
/s/ Gary D. Pickett
 
Title: Chief Financial Officer
 
   
 

 
 

 

Exhibit 32.1
 
Certificate Pursuant to Section 906
of Sarbanes – Oxley Act of 2002
CERTIFICATION OF CEO
 
 
In connection with the annual report on Form 10-K/A of Bovie Medical Corporation. (the “Company” ) for the period ended December 31, 2010, as filed with the Securities and Exchange Commission on the date hereof (the “Report” ), the undersigned President and Chief Executive Officer certifies, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
 
 (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
 
 (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.   
 
Date: March 31, 2011
 
/s/ Andrew Makrides
Andrew Makrides
President and
Chief Executive Officer
 

Exhibit 32.2
Certificate Pursuant to Section 906
of Sarbanes – Oxley Act of 2002
CERTIFICATION OF CFO
 
In connection with the annual report on Form 10-K/A of Bovie Medical Corporation. (the “Company” ) for the period ended December 31, 2010, as filed with the Securities and Exchange Commission on the date hereof (the “Report” ), the undersigned President and Chief Executive Officer certifies, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
 
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
 
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.  
 
Date: March 31, 2010
 
/s/ Gary D. Pickett
Gary D. Pickett
Chief Financial Officer