Attached files
EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DENNIS HEALTHCARE SOLUTIONS, INC.
(PURSUANT TO SECTIONS 242 AND 245 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE)
Donald L. Conover, as President of DENNIS HEALTHCARE SOLUTIONS, INC. (the
"Company" or the "Corporation"), a corporation duly organized and existing under
the General Corporation Law of the State of Delaware ("DCGL") does hereby
certify as follows:
1. The present name of the corporation is DENNIS HEALTHCARE SOLUTIONS,
INC. (the "Corporation").
2. The date of filing of the original certificate of incorporation of the
Corporation with the Secretary of State was April 15, 2009 under the
name DENNIS HEALTHCARE SOLUTIONS, INC.
3. This Amended and Restated Certificate of Incorporation restates and
integrates, and also further amends the provisions of the Certificate
of Incorporation of the Corporation as heretofore amended or
supplemented. This Amended and Restated Certificate of Incorporation
supersede the Certificate of Incorporation of the Corporation, as
heretofore amended or supplemented, in its entirety.
4. The Board of Directors of the Corporation adopted resolutions
proposing and declaring advisable this Amended and Restated
Certificate of Incorporation in accordance with the provisions of
sections 242 and 245 of the DGCL at its meeting on August 5, 2009.
5. The Stockholders of the Corporation adopted this Amended and Restated
Certificate of Incorporation in accordance with sections 242 and 245
of DGCL at their meeting on August 5, 2009.
6. The Certificate of Incorporation of the Corporation as heretofore
amended and supplemented is hereby restated and further amended to
read in its entirety as follows:
FIRST: The name of the corporation is MOMENTUM HEALTHCARE SERVICES, INC.
SECOND: The registered office of the Corporation in the State of Delaware
is located at 2711 Centerville Road, Suite 400, in the City of Wilmington,
County of New Castle and its registered agent at such address is CORPORATION
SERVICE COMPANY.
THIRD: The purpose or purposes of the Corporation shall be:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is One Hundred Million
(100,000,000), consisting of Eighty Million (80,000,000) shares of Class A
common stock with a par value of $0.001 per share, and Twenty Million
(20,000,000) shares of Class B common stock with a par value of $0.001 per
share.
Section 1. AUTHORIZED SHARES. The number of authorized shares of any class
or classes of stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of at
least a majority of the voting power of the issued and outstanding shares of
Common Stock of the Corporation, voting together as a single class.
Section 2. COMMON STOCK. The following is a statement of the designations
and powers, privileges, and rights, and the qualifications, limitations, or
restrictions thereof in respect of each class of capital stock of the
Corporation:
(a) VOTING RIGHTS.
(i) Except as otherwise provided herein or by applicable law, the
holders of shares of Class A Common Stock and Class B Common Stock
shall at all times vote together as one class on all matters
(including the election of directors) submitted to a vote or for the
consent of the stockholders of the Corporation.
(ii) Each holder of shares of Class A Common Stock shall be
entitled to one (1) vote for each share of Class A Common Stock held
as of the applicable date on any matter that is submitted to a vote or
for the consent of the stockholders of the Corporation.
(iii) Each holder of shares of Class B Common Stock shall be
entitled to one hundred (100) votes for each share of Class B Common
Stock held as of the applicable date on any matter that is submitted
to a vote or for consent of the stockholders of the Corporation.
(b) DIVIDENDS. Subject to the preferences applicable to any series of
Preferred Stock, if any, outstanding at the time, the holders of Class A
Common Stock and the holders of Class B Common Stock shall be entitled to
share equally, on a per share basis, in such dividends and other
distributions of cash, property or shares of stock of the Corporation as
may be declared by the Board of Directors from time to time with respect to
the Common Stock out of assets or funds of the Corporation legally
available therefore; provided, however, that in the event that such
dividend is paid in the form of shares of Common Stock or rights to acquire
Common Stock, the holders of Class A Common Stock shall receive Class A
Common Stock and or rights to acquire Class A Common Stock, as the case may
be, and the holders of Class B Common Stock shall receive Class B Common
Stock or rights to acquire Class B Common Stock, as the case may be.
(c) LIQUIDATION. Subject to the preferences applicable to any series
of Preferred Stock, if any outstanding at any time, in the event of the
voluntary or involuntary liquidation, dissolution, distribution of assets
or winding up of the Corporation, the holders of Class A Common Stock and
the holders of Class B Common Stock shall be entitled to share equally, on
a per share basis, all assets of the Corporation of whatever kind available
for distribution to the holders of Common Stock.
(d) SUBDIVISION OR COMBINATIONS. If the Corporation in any manner
subdivides or combines the outstanding shares of one class of Common Stock,
the outstanding shares of the other class of Common Stock will be
subdivided or combined in the same manner.
(e) EQUAL STATUS. Except as expressly provided in this Article Fourth,
Class A Common Stock and Class B Common Stock shall have the same rights
and privileges and rank equally, share ratably and be identical in all
respects as to all matters.
(f) CONVERSION.
(i) As used in this Section 2(f), the following terms shall have
the following meanings:
(1) "FOUNDER" shall mean Konath Jacob Dennis, , , and Donald
L. Conover, each as a natural living person, and "FOUNDERS" shall
mean two or more of them.
(2) "CLASS B STOCKHOLDER" shall mean (a) the Founders, (b)
the registered holder of a share of Class B Common Stock at the
Effective Time, (c) each natural person who Transferred shares of
Class B Common Stock (or securities convertible into or
exchangeable for shares of Class B Common Stock) prior to the
Effective Time of a Permitted Entity that, as of the Effective
time, complies with the applicable exception for such Permitted
Entity specified in Section (2)(f)(iii)(2) and (d) the initial
registered holder of any shares of Class B Common Stock that were
originally issued by the Corporation after the Effective Time.
All shares of Common Stock subscribed for or agreed to be issued
under specified conditions prior to August 5, 2009, shall be
deemed Class B Common Stock, and all stock certificates issued to
satisfy those subscription and agreements shall be issued as
Class B Common Stock certificates.
(3) "PERMITTED ENTITY" shall mean, with respect to any
individual Class B Stockholder, any trust, account, plan,
corporation, partnership, or limited liability company specified
in Section 2(f)(iii)(2) established by or for such individual
Class B Stockholder, so long as such entity meets the
requirements of the exception set forth in Section 2(f)(iii)(2)
applicable to such entity.
(4) "TRANSFER" of a share of Class B Common Stock shall mean
any sale, assignment, transfer, conveyance, hypothecation or
other transfer or disposition of such share or any legal or
beneficial interest in such share, whether or not for value and
whether voluntary or involuntary or by operation of law. A
"Transfer" shall also include, without limitation, a transfer of
a shall of Class B Common Stock to a broker or other nominee
(regardless of whether or not there is a corresponding change in
beneficial ownership), or the transfer of, or entering into a
binding agreement with respect to, Voting Control over a share of
Class B Common Stock by proxy or otherwise; PROVIDED, HOWEVER,
that the following shall not be considered a "TRANSFER" within
the meaning of this Section 2(f)(i)(4):
a) the granting of a proxy to officers or directors of
the Corporation at the request of the Board of Directors of
the Corporation in connection with actions to be taken at an
annual or special meeting of stockholders;
b) entering into a voting trust, agreement or
arrangement (with or without granting a proxy) solely with
stockholders who are Class B Stockholders, that (A) is
disclosed either in a Schedule 13D filed with the Securities
and Exchange Commission or a writing to the Secretary of the
Corporation, (B) either has a term not exceeding one (1)
year or is terminable by the Class B Stockholder at any time
and (C) does not involve any payment of cash, securities,
property or other consideration to the Class B Stockholder
other than the mutual promise to vote shares in a designated
manner; or
c) the pledge of shares of Class B Common Stock by a
Class B Stockholder that creates a mere security interest in
such shares pursuant to a bona fide loan or indebtedness
transaction so long as the Class B Stockholder continues to
exercise Voting Control over such pledged shares; PROVIDED,
HOWEVER, that a foreclosure on such shares of Class B Common
Stock or other similar action by the pledgee shall
constitute a "TRANSFER."
(ii) Each share of Class B Common Stock shall be convertible into
one (1) fully paid and non-assessable share of Class A Common Stock at
the option of the holder thereof at any time upon written notice to
the transfer agent of the Corporation, provided that the Class B
Stockholder has held the Class B Stock for a period of not less than 2
years.
(iii) Each share of Class B Common Stock shall automatically,
without any further action, convert into one (1) fully paid and
non-assessable shares of Class A Common Stock upon a Transfer of such
share, other than a Transfer:
(1) from a Founder, or such Founder's Permitted entities, to
the other Founders, or such Founder's Permitted Entities.
(2) by a Class B Stockholder who is a natural person to any
of the following Permitted Entities, and from any of the
following Permitted Entities back to such Class B Stockholder
and/or any other Permitted Entity established by or for such
Class B Stockholder:
(a) a trust for the benefit of such Class B Stockholder
and for the benefit of no other person, PROVIDED such
Transfer does not involve any payment of cash, securities,
property or other consideration (other than an interest in
such trust) to the Class B Stockholder and, PROVIDED,
FURTHER, that in the event such Class B Stockholder is no
longer the exclusive beneficiary of such trust, each share
of Class B Common Stock then held by such trust shall
automatically convert into one (1) fully paid and
non-assessable share of Class A Common Stock;
(b) a trust for the benefit of persons other than the
Class B Stockholder so long as the Class B Stockholder has
sole dispositive power and exclusive Voting Control with
respect to the shares of Class B Common Stock held by such
trust, PROVIDED such Transfer does not involve any payment
of cash, securities, property or other consideration (other
than an interest in such trust) to the Class B Stockholder,
and, PROVIDED, further, that in the event the Class B
Stockholder no longer has sole dispositive power and
exclusive Voting Control with respect to the shares of Class
B Common Stock held by such trust, each share of Class B
Common Stock then held by such trust shall automatically
convert into one (1) fully paid and non-assessable share of
Class A Common Stock;
(c) a trust under the terms of which such Class B
Stockholder has retained a "qualified interest" within the
meaning of Section 2702(b)(1) of the Internal Revenue Code
(the "Code") and/or a reversionary interest so long as the
Class B Stockholder has sole dispositive power and exclusive
Voting Control with respect to the Class B Common Stock held
by such trust; PROVIDED, HOWEVER, that in the event the
Class B Stockholder no longer has sole dispositive power and
exclusive Voting Control with respect to the shares of Class
B Common Stock held by such trust, each share of Class B
Common Stock then held by such trust shall automatically
convert into one (1) fully paid and non-assessable share of
Class A Common Stock.
(d) an Individual Retirement Account, as defined in
Section 408(a) of the Internal Revenue Code, or a pension,
profit sharing, stock bonus or other type of plan or trust
of which such Class B Stockholder is a participant or
beneficiary and which satisfied the requirements for
qualification under Section 401 of the Internal Revenue
Code; PROVIDED that in each case such Class B Stockholder
has sole dispositive power and exclusive Voting Control with
respect to the shares of Class B Common Stock held in such
account, plan or trust, and PROVIDED, FURTHER, that in the
event the Class B Stockholder no longer has sole dispositive
power and exclusive Voting Control with respect to the
shares of Class B Common Stock held by such account, plan or
trust, each share of Class B Common Stock then held by such
trust shall automatically convert into one (1) fully paid
and non-assessable share of Class A Common Stock;
(e) a corporation in which such Class B Stockholder
directly, or indirectly through one or more Permitted
Entities, owns share with sufficient Voting Control in the
corporation, or otherwise has legally enforceable rights,
such that the Class B Stockholder retains sole dispositive
power and exclusive Voting Control with respect to the
shares of Class Be Common Stock held by such corporation;
PROVIDED that in the event the Class B Stockholder no longer
owns sufficient shares or has sufficient legally enforceable
rights to enable the Class B Stockholder to retain sole
dispositive power and exclusive Voting Control with respect
to the shares of Class B Common Stock held by such
corporation, each share of Class B Common Stock then held by
such corporation shall automatically convert into one (1)
fully paid and non-assessable share of Class A Common Stock;
(f) a partnership in which such Class B Stockholder
directly, or indirectly through one or mare Permitted
Entities, owns partnership interests with sufficient Voting
Control in the partnership, or otherwise has legally
enforceable rights, such that the Class B Stockholder
retains sole dispositive power and exclusive Voting Control
with respect to the shares of Class B Common Stock held by
such partnership; PROVIDED that in the event the Class B
Stockholder no longer owns sufficient partnership interests
or has sufficient legally enforceable rights to enable the
Class B Stockholder to retain sole dispositive power and
exclusive Voting Control with respect to the shares of Class
B Common Stock held by such partnership, each share of Class
B Common Stock then held by such partnership shall
automatically convert into one (1) fully paid and
non-assessable share of Class A Common Stock; or
(g) a limited liability company in which such Class B
Stockholder directly, or indirectly through one or more
Permitted Entities, owns membership interests with
sufficient Voting Control in the limited liability company,
or otherwise has legally enforceable rights, such that the
Class B stockholder retains sole dispositive power and
exclusive Voting Control with respect to the shares o Class
B Common Stock held by such limited liability company;
provided that in the event the Class B Stockholder no longer
owns sufficient membership interests or has sufficient
legally enforceable rights to enable the Class B Stockholder
to retain sole dispositive power and exclusive Voting
Control with respect to the shares of Class B Common Stock
held by such limited liability company, each share of Class
B Common Stock then held by such limited liability company
shall automatically convert into one (1) fully paid and
non-assessable share of Class A Common Stock.
Notwithstanding the foregoing if the shares of Class B Common Stock held by the
Permitted Entity of a Class B Stockholder would constitute stock of a
"controlled corporation" (as defined in section 2036(b)(2) of the Internal
Revenue Code) upon the death of such Class B Stockholder, and the Transfer of
shares Class B Common Stock by such Class B Stockholder to the Permitted Entity
did not involve a bona fide sale for an adequate and full consideration in money
or money's worth (as contemplated by Section 2036(a) of the Code), then such
shares will not automatically convert to Class A Common Stock if the Class B
Stockholder does not directly or indirectly retain Voting Control over such
shares until such time as the shares of Class B Common Stock would no longer
constitute stock of a "controlled corporation" pursuant to the Code upon the
death of such Class B Stockholder (such time is referred to as the "Voting
Shift"). If the Class B Stockholder does not, within five (5) business days
following the mailing of the Corporation's proxy statement for the first annual
or special meeting of stockholders following the Voting Shirt, directly or
indirectly through one or more Permitted entities assume sole dispositive power
and exclusive Voting Control with respect to such shares of Class B Common
Stock, each such share of Class B Common Stock shall automatically convert into
one (1) fully paid and non-assessable share of Class A Common Stock.
(3) by a Class B Stockholder that is a partnership, or a
nominee for a partnership, which partnership beneficially held
more than five percent (5%) of the total outstanding shares of
Class B Common Stock as of the Effective Time, to any person or
entity that, at the Effective Time, was a partner of such
partnership PRO RATA in accordance with their ownership interests
in the partnership and the terms of any applicable partnership or
similar agreement binding the partnership at the Effective Time,
and any further Transfer(s) by any such partner that is a
partnership or limited liability company to any person or entity
that was at such time a partner or member of such partnership or
limited liability company pro rata in accordance with their
ownership interests in the partnership or limited liability
company and the terms of any applicable partnership or similar
agreement binding the partnership or limited liability company at
the Effective Time. All shares of Class B Common Stock held by
affiliated entities shall be aggregated together for the purposes
of determining the satisfaction of such five percent (5%)
threshold.
(4) by a Class B Stockholder that is a limited liability
company, or a nominee for a limited liability company, which
limited liability company beneficially held more than five
percent (5%) of the total outstanding shares of Class B Common
Stock as of the effective time, to any person or entity that, at
the Effective Time, was a member of such limited liability
company PRO RATA in accordance with their ownership interests in
the company and the terms of any applicable agreement binding the
company and its members at the Effective time, and any further
Transfer(s) by ay such member that is a partnership or limited
liability company to any person or entity that was at such time a
partner or member of such partnership or limited liability
company PRO RATA in accordance with their ownership interests in
the partnership or limited liability company and the terms of any
applicable partnership or similar agreement binding the
partnership or limited liability company. All shares of class B
Common Stock held by affiliated entities shall be aggregated
together for the purposes of determining the satisfaction of such
five percent (5%) threshold.
(iv) Each share of Class B Common Stock held of record by a Class
B Stockholder who is a natural person, or by such Class B
Stockholder's Permitted Entity, shall automatically, without any
further action, convert into one (1) fully paid and non-assessable
share of Class A Common Stock upon the death of such Class B
Stockholder, PROVIDED, HOWEVER, that:
(1) If a Founder, or such Founder's Permitted Entity (in
either case, the "TRANSFERRING FOUNDER") Transfers exclusive
Voting Control (but not ownership) of shares of Class B Common
Stock to another Founder (the "TRANSFEREE FOUNDER") which
Transfer of Voting Control is contingent or effective upon the
death of the Transferring Founder, then each share of Class Be
Common Stock that is the subject of such Transfer shall
automatically convert into one (1) fully paid and non-assessable
share of Class A Common Stock upon that date which is the earlier
of: (a) nine (9) months after the date upon which the
Transferring Founder died, or (b) the date upon which the
Transferee Founder ceases to hold exclusive Voting Control over
such shares of Class B Common Stock; PROVIDED, FURTHER, that if
the Transferee Founder shall die within nine (9) months following
the death of the Transferring Founder, then a trustee is
designated by the Transferee Founder and approved by the Board of
Directors may exercise Voting Control over: (x) the Transferring
Founders' shares of Class B Common Stock and , in such instance,
each such share of Class B Common Stock shall automatically
convert into one (1) fully paid and non-assessable share of Class
A Common Stock upon that date which is the earlier of: (A) nine
(9) months after the date upon which the Transferring Founder
died, or (B) the date upon which such trustee ceases to hold
exclusive Voting Control over such shares of Class B Common
Stock; and (y) the Transferee Founders' shares of Class B Common
Stock (or shares held by an entity of the type referred to in
paragraph (2) below established by or for the Transferee Founder)
and, in such instance, each such share of Class B Common Stock
shall automatically convert to one (1) fully paid and
non-assessable share of Class A Common Stock upon that date which
is the earlier of: (A) nine (0) months after the date upon which
the Transferee Founder died, or (B) the date upon which such
trustee ceases to hold exclusive Voting Control over such shares
of Class B Common Stock; and
(2) If all Founders die substantially simultaneously, a
trustee designated by the Founders and approved by the Board of
Directors may exercise Voting Control over the Founders' shares
of Class B Common Stock and, in such instance, each such share of
Class B Common Stock shall automatically convert into one (1)
fully paid and non-assessable share of Class A Common Stock upon
that date which is the earlier of: (a) nine (9) months after the
date upon which all Founders died, or (b) the date upon which
such trustee ceases to hold exclusive Voting Control over such
shares of Class B Common Stock.
(v) The Corporation may, from time to time, establish such
policies and procedures relating to the conversion of the Class B
Common Stock to Class A Common Stock and the general administration of
this dual class common stock structure, including the issuance of
stock certificates with respect thereto, as it may deem necessary or
advisable, and may request that holders of shares of Class B Common
Stock furnish affidavits or other proof to the Corporation as it deems
necessary to verify the ownership of Class B Common Stock and to
confirm that a conversion to Class A Common Stock has not occurred. A
determination by the Secretary of the Corporation that a Transfer
results in a conversion to Class A Common Stock shall be conclusive.
(vi) In the event of a conversion of shares of Class B Common
Stock to shares of Class A Common Stock pursuant to this Section 2,
such conversion shall be deemed to have been made at the time that the
Transfer of such shares occurred. Upon any conversion of Class B
Common Stock to Class A Common Stock, all rights of the holder of
shares of Class B Common Stock shall ceases and the person or persons
in whose names or names the certificate or certificates representing
the shares of Class A Common Stock are to be issued shall be treated
for all purposes as having become the record holder or holders of such
shares of Class A Common Stock. Shares of Class B Common Stock that
are converted into shares of Class A Common Stock as provided in this
Section 2 shall be retired and may not be reissued.
(g) RESERVATION OF STOCK. The Corporation shall at all times reserve
and keep available out of its authorized but unissued shares of Class A
Common Stock, solely for the purpose of effecting the conversion of the
shares of Class B Common Stock, such number of its shares of Class A Common
Stock as shall from time to time be sufficient to effect the conversion of
all outstanding shares of Class B Common Stock into shares of Class A
Common Stock.
Section 3. CHANGE OF CONTROL TRANSACTION. The Corporation shall not
consummate a Change in Control Transaction without first obtaining the
affirmative vote, at a duly called annual or special meeting of the stockholders
of the Corporation, of the holders of the greater of: (A) a majority of the
voting power of the issued and outstanding shares of capital stock of the
Corporation then entitled to vote thereon, voting together as a single class and
(B) sixty percent (60%) of the voting power of the shares of capital stock
present in person or represented by proxy at the stockholder meeting called to
consider the Change of Control Transaction and entitled to vote thereon, voting
together as a single class. For the purposes of this section, a "CHANGE OF
CONTROL TRANSACTION" means the occurrence of any of the following events:
(a) the sale, encumbrance or disposition (other than non-exclusive
licenses in the ordinary course of business and the grant of security
interests in the ordinary course of business) by the Corporation of all or
substantially all of the Corporation's assets;
(b) the merger or consolidation of the Corporation with or into any
other corporation or entity, other than a merger or consolidation which
would result in the voting securities of the Corporation outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity or its parent) more than fifty percent (50%) of the total voting
power represented by the voting securities of the Corporation or such
surviving entity or its part outstanding immediately after such merger or
consolidation; or
(c) the issuance by the Corporation, in a transaction or series of
related transactions, of voting securities representing more than two
percent (2%) of the total voting power of the Corporation before such
issuance, to any person or persons acting as a group as contemplated in
Rule 13d-5(b) under the Securities Exchange Act of 1934 (or any successor
provision) such that, following such transaction or related transactions,
such person or group of persons would hold more than fifty percent (50%) of
the total voting power of the Corporation, after giving effect to such
issuance.
Section 4. PREFERRED STOCK. The Board of Directors is authorized, subject
to any limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in series, and to establish from time to time the number of
shares to be included in such series, and to fix the designation, power,
preferences, and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. Except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this Certificate of Incorporation (including any certificate of
designation filed with respect to any series of Preferred Stock) that relates
solely to the terms of one or more outstanding series of Preferred Stock if the
holders of such affected series are entitled, either separately or together as a
class with the holders of one or more other such series, to vote thereon by law
or pursuant to this Certificate of Incorporation (including any certificate of
designation filed with respect to any series of Preferred Stock).
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
Section 1. In addition to the powers and authority expressly conferred upon
them by statute or by this Certificate of Incorporation or the Bylaws of the
Corporation, 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. The
Board of Directors is expressly authorized:
(a) To authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation;
(b) To set apart out of any funds of the Corporation available for
dividends, a reserve or reserves for any proper purpose and to reduce any
such reserve in the manner in which it was created; and
(c) To adopt from time to time By-laws provisions with respect to
indemnification of directors, officers, employees, agents and other persons
as it shall deem expedient and in the best interests of the Corporation and
to the extent permitted by law.
Section 2. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, alter, amend
or repeal the Bylaws of the Corporation. The affirmative vote of at least a
majority of the Board of Directors then in office shall be required in order for
the Board of Directors to adopt, amend, alter or repeal the Corporation's
Bylaws. The Corporation's Bylaws may also be adopted, amended, altered or
repealed by the stockholders of the Corporation. Notwithstanding the above or
any other provision of this Certificate of Incorporation, the Bylaws of the
Corporation may not be amended, altered or repealed except in accordance with
Article TWELTH of the Bylaws. No Bylaw hereafter legally adopted, amended,
altered or repealed shall invalidate any prior act of the Directors or Officers
of the Corporation that would have been valid if such Bylaws had not been
adopted, amended, altered or repealed.
Section 3.
(a) If, at any time during which shares of capital stock of the
Corporation are listed for trading on either The Nasdaq National Market
("Nasdaq") or the New York Stock Exchange ("NYSE"), holders of the
requisite voting power under the then-applicable Nasdaq or NYSE listing
standards notify the Corporation in writing of their election to cause the
Corporation to rely upon the applicable "controlled company" exemptions
(the "Controlled Company Exemption") to the corporate governance rules and
requirements of the Nasdaq or the NYSE (the "Exchange Governance Rules"),
the Corporation shall call a special meeting of the stockholders to
consider whether to approve the election to be held within ninety (90) days
of written notice of such election (or, if the next succeeding annual
meeting of stockholders will be held within ninety (90) days of written
notice of such election, the Corporation shall include a proposal to the
same effect to be considered at such annual meeting). The Corporation shall
not elect to rely upon the Controlled Company Exemption until such time as
the Corporation shall have received the approval from holders of at least
sixty-six and two thirds percent (66 2/3%) of the voting power of the
issued and outstanding shares of capital stock of the Corporation at such
annual or special meeting.
(b) In the event such approval is obtained, for so long as shares of
the capital stock of the Corporation are listed on either the Nasdaq or the
NYSE and the Corporation remains eligible for the Controlled Company
Exemption under the requirements of the applicable Exchange Governance
Rules, the Board of Directors shall be constituted such that (i) a majority
of the directors on the Board of Directors shall be Outside Directors (as
defined below), and (ii) the Corporation's compensation committee and the
governance and nominating committee (or such committees serving similar
functions as the Board of Directors of the Corporation shall constitute
from time to time) shall consist of at least two (2) members of the Board
of Directors and shall be composed entirely of Outside Directors. In the
event the number of Outside Directors serving on the Board of Directors
constitutes less than a majority of the directors on the Board of Directors
as a result of the death, resignation or removal of an Outside Director,
then the Board of Directors may continue to properly exercise its powers
and no action of the Board of Directors shall be so invalidated, provided
that the Board of Directors shall promptly take such action as is necessary
to appoint new Outside Director(s) to the Board of Directors.
(c) An "OUTSIDE DIRECTOR" shall mean a director who, currently and for
any of the past three years, is and was not an officer of the Corporation
(other than service as the chairman of the Board of Directors) or a parent
or subsidiary of the Corporation and is not and was not otherwise employed
by the corporation or a parent or subsidiary of the Corporation.
Section 4. The Board of Directors of the Corporation shall establish an
audit committee whose principal purpose will be to oversee the Corporation's and
its subsidiaries' accounting and financial reporting processes, internal systems
of control, independent auditor relationships and audits of consolidated
financial statements of the Corporation and its subsidiaries. The audit
committee will also determine the appointment of the independent auditors of the
Corporation and any change in such appointment and ensure the independence of
the Corporation's auditors. In addition, the audit committee will assume such
other duties and responsibilities delegated to it by the Board of Directors and
specified for it under applicable law and Exchange Governance Rules.
Section 5. The Board of Directors of the Corporation shall establish a
corporate governance and nominating committee whose principal duties will be to
assist the Board of Directors by identifying individuals qualified to become
members of the Board of Directors consistent with criteria approved by the Board
of Directors, to recommend to the Board of Directors for its approval the slate
of nominees to be proposed by the Board of Directors to the stockholders for
election to the Board of Directors, to develop and recommend to the Board of
Directors the governance principles applicable to the Corporation, as well as
such other duties and responsibilities delegated to it by the Board of Directors
and specified for it under applicable law and Exchange Governance Rules. In the
event that the corporate governance and nominating committee will not be
recommending a then incumbent director for inclusion in the slate of nominees to
be proposed by the Board of Director to the stockholders for election to the
Board of Directors, and provided such incumbent director has not notified the
committee that he or she will be resigning or that he or she does not intend to
stand for re-election to the Board of Directors, then, in the case of an
election to be held a an annual meeting of stockholders, the corporate
governance and nominating committee will recommend the slate of nominees to the
Board of Directors at least thirty (30) days prior to the latest date required
by the of the Bylaws of the Corporation (as such provisions may be amended from
time to time) for stockholders to submit nominations for directors at such
annual meeting, or in the case of an election to be held at a special meeting of
stockholders, at least ten (10) days prior to the latest date required by the
Bylaws for stockholders to submit nominations for directors at such special
meeting.
Section 6. The Board of Directors of the Corporation shall establish a
compensation committee whose principal duties will be to review employee
compensation policies and programs as well as the compensation of the chief
executive officer and other executive officers of the Corporation, to recommend
to the Board of Directors a compensation program for outside members of the
Board of Directors, as well as such other duties and responsibilities delegated
to it by the Board of Directors and specified for it under applicable law and
Exchange Governance Rules.
Section 7. Elections of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
Section 8. No stockholder will be permitted to cumulate votes at any
election of directors.
Section 9. The number of directors that constitute the whole Board of
Directors shall be fixed exclusively in the manner designated in the Bylaws of
the Corporation.
SEVENTH:
Section 1. To the fullest extent permitted by the General Corporation Law
of Delaware as the same exists or as may hereafter be amended, no director or
officer of the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director or
officer. If the General Corporation Law of Delaware is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors or officers, then the liability of a director of the Corporation shall
be eliminated to the fullest extent permitted by the General Corporation Law of
Delaware, as so amended.
Section 2. The Corporation may indemnify to the fullest extent permitted by
law any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he, she, his or her testator or intestate is or was a director, officer,
employee or agent at the request of the Corporation or any predecessor to the
Corporation or serves or served at any other enterprise as a director, officer,
employee or agent at the request of the Corporation or any predecessor to the
Corporation.
Section 3. Neither any amendment nor repeal of any Section of this Article
SEVENTH, nor the adoption of any provision of this Certificate of Incorporation
inconsistent with this Article SEVENTH, shall eliminate or reduce the effect of
this Article SEVENTH, in respect of any matter occurring, or any action or
proceeding accruing or arising or that, but for this Article SEVENTH, would
accrue or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
EIGHTH: Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
NINTH:
Section 1. Except as otherwise provided for or fixed by or pursuant to the
provisions of Article FOURTH hereof in relation to the rights of the holders of
Preferred Stock to elect directors under specified circumstances, newly created
directorships resulting from any increase in the number of directors, created in
accordance with the /bylaws of the Corporation, and any vacancies on the Board
of Directors resulting from death, resignation, disqualification, removal or
other cause shall be filled only by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board
of Directors, or by a sole remaining director. Any director elected in
accordance with the preceding sentence shall hold office until the next annual
meeting of stockholders and until such director's successor shall have been
elected and qualified, or until such director's earlier death, resignation or
removal. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
Section 2. Any director or the entire Board of Directors may be removed
from office at any time, with or without cause, by the affirmative vote of the
holders of at least a majority of the voting power of the issued and outstanding
shares of capital stock of the Corporation then entitled to vote in the election
of directors.
TENTH: Advance notice of new business and stockholder nominations for the
election of directors shall be given in the manner and to the extent provided in
the Bylaws of the Corporation.
ELEVENTH:
Section 1. Unless otherwise required by law, special meetings of the
stockholders of the Corporation, for any purpose or purposes, may be called only
by (i) the Board of Directors of the Corporation, (ii) the Chairman of the Board
of Directors of the Corporation, (iii) the chief Executive Officer (or, in the
absence of a Chief Executive Officer, the President) of the Corporation, or (iv)
a holder, or group of holders, of Common Stock holding more than twenty percent
(20%) of the total voting power of the outstanding shares of capital stock of
the Corporation than entitled to vote.
Section 2. Any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of stockholders of the Corporation or may be effected by any consent in writing
by such stockholders.
TWELFTH: The Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights conferred upon
stockholders are granted subject to this reservation; PROVIDED, HOWEVER, that
notwithstanding any other provision of this Certificate of Incorporation or any
provision of law that might otherwise permit a lesser vote or no vote, but in
addition to any vote of the holders of any class or series of the stock of the
Corporation, and, as applicable, such other approvals of the Board of Directors
of the Corporation, as are required by law or by this Certificate of
Incorporation: (i) the unanimous consent of Board of Directors then in office,
and the affirmative vote of the holders of at least a majority of the voting
power of the issued and outstanding shares of capital stock of the Corporation
entitled to vote, shall be required to amend or repeal Article FOURTH, Section 2
or this clause (i) of Article TWELFTH; (ii) the affirmative vote of the holders
of the greater of: (A) a majority of the voting power of the issued and
outstanding shares of capital stock of the Corporation then entitled to vote
thereon, or (B) sixty percent (60%) of the voting power of the shares of capital
stock present in person or represented by proxy at the stockholder meeting and
entitled to vote thereon, shall be required to amend or repeal Article FOURTH,
Section 3 or this clause (ii) of Article TWELFTH; (iii) the consent of a
majority of the members of the Board then in office, and the affirmative vote of
the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of the issued and outstanding shares of capital stock of the Corporation
then entitled to vote shall be required to amend or repeal Article FOURTH,
Section 4 and Article ELEVENTH or this clause (iii) of Article TWELFTH; (iv) the
unanimous consent of the Board of Directors then in office and the consent of at
least sixty-six and two-thirds percent (66 2/3%) of the voting power of the
issued and outstanding shares of capital stock of the Corporation shall be
required to amend or repeal Article SIXTH, Section 3, 5, 6 or 7 or this clause
(iv) of Article TWELFTH; and (v) the consent of at least two-thirds of the
members of the Board of Directors then in office and the affirmative vote of the
holders of at least a majority of the voting power of the issued and outstanding
shares of capital stock of the Corporation then entitled to vote shall be
required to amend or repeal Article SIXTH, Section 4 or this clause (v) of
Article TWELFTH.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed and executed in its corporate name by
Donald L. Conover, its President as of this 5th day of August, 2009.
DENNIS HEALTHCARE SOLUTIONS, INC.
/s/ DONALD L. CONOVER
________________________________
Donald L. Conover, President