AMENDED AND RESTATED
                              --------------------
                          CERTIFICATE OF INCORPORATION
                          ----------------------------
 
     1. The name of the Corporation is HelpMate Robotics Inc.
 
     2. The activities or purposes of the Corporation are as follows:
 
          To engage in any lawful act or activity for which corporations may be
     formed under the Stock Corporation Act of the State of Connecticut (as the
     same may hereafter be amended, the "Act").
 
     The foregoing statement of the nature of the activity to be transacted by
the Corporation is not intended to limit or restrict in any manner the exercise
of all powers conferred upon the Corporation by the Act, and nothing in this
Certificate is to be construed as an attempt to secure powers not properly
obtainable by corporations organized under the Act.
 
     3. The authorized capital stock of the Corporation shall consist of ten
million (10,000,000) shares of common stock without par value.
 
     4. The holders of shares of any class of stock of the Corporation shall
have no preemptive rights.
 
     5. The terms, limitations and rights of the capital stock of the
Corporation shall be as follows:
 
          (a) Voting Rights. The entire voting power of the Corporation shall be
              -------------
     vested in the common stock. Each holder of record of shares of common stock
     shall be entitled to one vote for each share of stock registered in such
     holder's name on the record date for the meeting.
 
          (b) Voting Requirements. Stockholder action on any matter whatsoever
              -------------------
     at any meeting of the stockholders shall require the affirmative vote of a
     majority of the shares of the common stock of the Corporation represented
     at the meeting and entitled to vote on the matter, subject to the quorum
     requirements for such meeting as set forth in the Corporation's by-laws.
     For those matters for which the vote of a designated proportion of the
     shares of stock may be specified by the Act, the affirmative vote of a
     majority of the shares of stock of the Corporation represented at the
     meeting and entitled to vote on the matter shall be required and sufficient
     for stockholder action on the matter, although the vote of a greater
     proportion may be designated by the Act; provided that, in addition to any
     shareholder vote otherwise required by law or this Certificate of
     Incorporation, the shareholder voting requirements set forth in Section
     33-374b of the Act, as the same may hereafter be amended, shall apply to
     any "business combination" (as defined in Section 33-374a of the Act, as
     the same may hereafter be amended) with respect to the Corporation, to the
     extent applicable under Sections 33-374a through 33-374c, inclusive, of the
     Act, as the same may hereafter be amended.
 
                                       3
<PAGE>
 
     6. The business, property and affairs of the Corporation shall be managed
by or under the direction of a board of directors who shall be elected and shall
serve in accordance with the following principles and as more particularly set
forth in the Corporation's by-laws:
 
          (a) Board of Directors. The board of directors shall consist of not
              ------------------
     fewer than three (3) nor more than fifteen (15) directorships, the exact
     number to be determined by the board of directors from time to time. The
     directors in office may increase or decrease the number of directorships by
     the concurring vote of directors holding a majority of the directorships;
     provided that no reduction in the number of directorships shall remove, or
     shorten the term of, any director then in office.
 
          (b) Vacancies. Any vacancy on the board that is created by an increase
              ---------
     in the number of directorships may be filled for the unexpired term by the
     concurring vote of directors holding a majority of the directorships, which
     number of directorships shall be the number immediately prior to the vote
     to increase the number of directorships. Any other vacancy which occurs on
     the board may be filled for the unexpired term by the concurring vote of a
     majority of the remaining directors in office, though such remaining
     directors are less than a quorum, and though such majority is less than a
     quorum, or by action of the sole remaining director in office.
 
     7. New by-laws may be adopted, and existing by-laws may be amended or
repealed by the shareholders or by the board of directors, by the affirmative
vote of the holders of a majority of the voting power of the shares entitled to
vote thereon or of a majority of the directorships, as the case may be. The
notice of any meeting of shareholders or directors at which by-laws are to be
adopted, amended or repealed shall include notice of such proposed action. Any
action taken with respect to adopting or repealing a by-law or amending the
by-laws by the board of directors may be rendered ineffective by the affirmative
of vote of the holders of a majority of the voting power of the shares entitled
to vote, provided that the notice of any meeting of the shareholders at which
actions of the board of directors are to be rendered ineffective shall include
notice of such proposed action.
 
     8. The provisions of Sections 33-374a through 33-374c, inclusive, of the
Act, as the same may hereafter be amended, shall apply to the Corporation as if
on the effective date hereof the Corporation were, and whether or not after the
effective date hereof the Corporation is, required to file reports pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), unless and until this Certificate of Incorporation may
hereafter be amended to otherwise provide.
 
     9. The provisions of Section 33-374d through Section 33-374f, inclusive, of
the Act, as the same may hereafter be amended, shall apply to the Corporation as
if on the effective date hereof the Corporation had, and whether or not after
the effective date hereof the Corporation may have, a class of voting stock
registered pursuant to Section 12 of the Exchange Act, unless and until this
Certificate of Incorporation may hereafter be amended to otherwise provide.
 
     10. The minimum amount of stated capital with which the corporation shall
commence business is one thousand dollars ($1,000).
 
                                       4
<PAGE>
 
     11. The personal liability of a director of the Corporation to the
Corporation or its shareholders for monetary damages for breach of duty as a
director shall be limited to the maximum extent now or hereafter permitted by
law, including, without limitation, by Section 33-290(c)(2) of the Act, as the
same may hereafter be amended, or any successor provision thereto. This
provision shall not limit or preclude the liability of a director for any act or
omission occurring prior to the effective date hereof. No amendment,
modification or repeal of this paragraph, of said Section 33-290(c)(2) of the
Act, or of any other provision of law shall adversely affect any protection,
defense or right of a director arising or existing prior to the date of such
amendment, modification or repeal.
 
 

FORM OF

 

AGREEMENT AND PLAN OF MERGER

 

This AGREEMENT AND PLAN OF MERGER (“Agreement”) is effective as of October     , 2002 by and between PainCare Holdings, Inc., a Florida corporation (“PainCare Holdings” or the “Surviving Company”), and HelpMate Robotics, Inc., a Connecticut corporation (“HelpMate Robotics” or the “Non-Surviving Company”). Each are sometimes hereinafter referred to as the “Constituent Companies.”

 

W I T N E S S E T H :

 

WHEREAS, pursuant to Section 607.1105 of the Florida Business Corporation Act (“FBCA”) and Section 33-821 of the Connecticut Business Corporation Act (“CBCA”) the Constituent Companies’ respective Bylaws, the Board Directors and Shareholders of HelpMate Robotics and the Shareholders and Board of Directors of PainCare Holdings have each approved the Merger (as hereinafter defined), whereby HelpMate Robotics will merge with and into PainCare Holdings, upon the terms and subject to the conditions set forth herein, as evidenced by Minutes of a Meeting of the Board of Directors of PainCare Holdings dated September 13, 2002, Minutes of a Meeting of the Stockholders of PainCare Holdings dated September 13, 2002, Minutes of a Meeting of the Board of Directors of HelpMate Robotics and Minutes of a Meeting of the Stockholders of HelpMate Robotics dated October 8, 2002;

 

NOW, THEREFORE, in consideration of the premises and of the mutual covenants, representations, warranties and agreements herein contained, the parties hereto have agreed as follows:

 

ARTICLE I

 

THE MERGER

 

1.01  The Merger.

 

(a)  Subject to the terms and conditions of this Agreement, at the Effective Time (as such term is defined in Section 1.01(b) hereof), HelpMate Robotics shall be merged with and into PainCare Holdings (the “Merger”) in accordance with Section 607.1105 of the FBCA and Section 33-821 of the CBCA, and the separate corporate existence of HelpMate Robotics shall cease to exist and PainCare Holdings shall continue as the Surviving Company under the laws of the State of Florida under the name “PainCare Holdings, Inc”

 

(b)  The Surviving Company shall file duly executed Articles of Merger with the Florida Secretary of State (“FL Articles of Merger”). The Non-Surviving Company shall file duly executed Certificate of Merger with the Connecticut Secretary of State (“CN Certificate of Merger”). The “Effective Time” of the Merger shall be the later of: (i) the date and time of acceptance for filing with the Florida Secretary of State the FL Articles of Merger, and (ii) the date and time of acceptance for filing with the Connecticut Secretary of State the CN Certificate of Merger.

 

(c)  At the Effective Time, the Surviving Company shall thereupon and thereafter possess all of the rights, privileges, powers and franchises, both of a public and private nature, of each of the Constituent Companies, and shall be subject to all of the restrictions, disabilities and duties of each of the Constituent Companies; and all of the rights, privileges, powers and franchises of each of the Constituent Companies, and all property (real, personal and mixed), and all debts due to either of the Constituent Companies on whatever account, for stock subscriptions as well as all other things in action or belonging to each of the Constituent Companies, shall be vested in the Surviving Company; and all property, rights, privileges, powers and franchises and all and every other interest shall thereafter be the property of the Surviving Company as they were of the several and respective Constituent Companies; but all rights of creditors and all liens upon any property of either of the Constituent Companies shall be preserved unimpaired, and all debts, liabilities and duties of each of the Constituent Companies shall thenceforth attach to the Surviving Company, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by the Surviving Company.

 

1.02  Conversion of Shares of Common Stock.    Immediately at the Effective Time, each of the issued and outstanding shares of Common Stock of the Non-Surviving Company shall be converted into the same number of shares of Common Stock of the Surviving Company pursuant to the Merger.

 

1.03  Certificate of Incorporation of the Surviving Company.    The Certificate of Incorporation of the Surviving Company in effect immediately prior to the Effective Time shall be the Certificate of Incorporation of the Surviving Company until otherwise amended or repealed.

1


 

1.04  Bylaws of the Surviving Company.    The Bylaws of the Surviving Company shall be the Bylaws of the Surviving until otherwise amended or repealed.

 

1.05  Board of Directors of the Non-Surviving Company.    The Board of Directors of the Non-Surviving Company in office immediately prior to the Effective Time, together with such additional persons as may thereafter be elected, shall serve as the Board of Directors of the Surviving Company from and after the Effective Time in accordance with the Bylaws of the Surviving Company.

 

1.06  Tax Treatment of the Merger.    It is intended by the parties hereto that the Merger shall constitute a reorganization of the Surviving and the Non-Surviving Company within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended.

 

ARTICLE II

 

SHARES OF STOCK

 

2.01  Authorized Shares of HelpMate Robotics and PainCare Holdings.    The authorized capital stock of HelpMate Robotics consists of Forty Million (40,000,000) shares of common stock with a no par value, and no shares of preferred stock. The authorized capital stock of PainCare Holdings consists of Eighty-Five Million (85,000,000) shares consisting of Seventy-Five Million (75,000,000) shares of common stock with a par value of $0.0001 per share, and Ten Million (10,000,000) shares of preferred stock with a par value of $0.0001 per share.

 

2.02  Conversion of Shares of Stock.    At the Effective Time, pursuant to the Merger, each stockholder of the Non-Surviving Company shall automatically become a stockholder of the Surviving Company and each share of common stock in the Non-Surviving Company shall be converted into the same number of shares of common stock in the Surviving Company.

 

ARTICLE III

 

MISCELLANEOUS

 

3.01  Fees and Expenses.    Whether or not the Merger is consummated, the Surviving Company shall pay the costs and expenses incident to the preparation of this Agreement, the consummation of the Merger, and the performance of and compliance with all of the agreements and conditions contained herein.

 

3.02  Notices.    All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally or mailed by overnight delivery service or by first class mail postage prepaid, or sent by telecopier, to the parties at the following addresses (or at such other address of a party as shall be specified by like notice) as follows:

 

(a)  if to the Non-Surviving Company at:

 

HelpMate Robotics, Inc.

 

 

37 North Orange Ave., Suite 500

 

 

Orlando, FL 32801

 

 

Attention: CEO.

 

(b)  if to the Surviving Company at:

 

PainCare Holdings, Inc.

 

 

37 North Orange Ave., Suite 500

 

 

Orlando, FL 32801

 

 

Attention: CEO

 

3.03  Binding Effect; Benefit.    This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any party hereto without the prior written consent of the other party. Nothing in this Agreement, express or implied, is intended to confer on any person other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

 

3.04  Amendment and Modification.    Subject to applicable law, this Agreement may be amended, modified and supplemented in any and all respects by written agreement of the directors and shareholders of the Surviving Company and the directors and shareholders of the Non-Surviving Company at any time prior to the Effective Time with respect to any of the terms contained herein.

 

2


3.05  Section Headings.    The Section headings contained in this Agreement are inserted for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

 

3.06  Applicable Law.    This Agreement and the legal relations among the parties hereto shall be governed by and construed in accordance with the laws of the State of Florida without regard to the conflict of laws principles or rules thereof.

 

3.07  Integration.    This Agreement sets forth and is intended to be an integration of all of the promises, agreements, conditions, understandings, covenants, warranties and representations among the parties with respect to the Merger and there are no promises, agreements, conditions, understandings, covenants, warranties or representations, oral or written, express or implied, among the parties with respect to the transactions contemplated other than as set forth herein. Any and all prior agreements among the parties with respect to the Merger are hereby revoked.

 

IN WITNESS WHEREOF, the parties hereto have executed this Merger Agreement effective as of the date first written.

 

HELPMATE ROBOTICS, INC.

    a Connecticut Corporation

 

 

 

By:

 

/s/    RANDY LUBINSKY        


 

 

Chairman and Chief Executive Officer

 

PAINCARE HOLDINGS, INC.

    a Florida Corporation

 

 

 

By:

 

/s/    RANDY LUBINSKY        


 

 

Chairman and Chief Executive Officer