Attached files
file | filename |
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10-K - ACTIVECARE, INC. FORM 10-K SEPTEMBER 30, 2009 - ACTIVECARE, INC. | actc10k20090930.htm |
EX-10.9 - STATEMENT OF WORK BETWEEN COMPANY AND QUECTEL WIRELESS SOLUTIONS, LTD., DATED DECEMBER 1, 2009 - ACTIVECARE, INC. | actc10k20090930sow.htm |
EX-3.4 - ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION CHANGING NAME TO ACTIVECARE, INC. - ACTIVECARE, INC. | actc10k20090930art.htm |
EX-32 - SECTION 1350 CERTIFICATIONS - ACTIVECARE, INC. | actc10k20090930ex32.htm |
EX-31.1 - CERTIFICATIONS OF CHIEF EXECUTIVE (PRINCIPAL) EXECUTIVE OFFICER UNDER RULE 13A-14(A)/15D-14(A) - ACTIVECARE, INC. | actc10k20090930ex31-i.htm |
EX-31.2 - CERTIFICATIONS OF CHIEF FINANCIAL (PRINCIPAL FINANCIAL AND ACCOUNTING) OFFICER UNDER RULE 13A-14(A)/15D-14(A) - ACTIVECARE, INC. | actc10k20090930ex31-ii.htm |
EX-3.6 - BY-LAWS REFLECTING CHANGE OF THE CORPORATE NAME - ACTIVECARE, INC. | actc10k20090930bylawsvol.htm |
Exhibit 3.5
CERTIFICATE
OF INCORPORATION
OF
ACTIVECARE,
INC.
ARTICLE
I
The name
of this Corporation is “ActiveCare, Inc.”
ARTICLE
II
The
address of the registered office of the Corporation in the State of Delaware is
1209 Orange Street, in the City of Wilmington, 19801, County of
New Castle. The name of its registered agent at such address is
The Corporation Trust Company.
ARTICLE
III
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
ARTICLE
IV
The name of the Corporation’s
incorporator is Michael G. Acton and the incorporator’s mailing address is 5095
West 2100 South, Salt Lake City, Utah 84120.
ARTICLE
V
A.
Authorized Stock. The
Corporation is authorized to issue two classes of stock to be designated
respectively Preferred Stock (“Preferred Stock”) and Common Stock (“Common
Stock”). The total number of all shares of all classes of capital stock the
Corporation shall have authority to issue is sixty million (60,000,000). The
total number of shares of Preferred Stock the Corporation shall have authority
to issue is ten million (10,000,000). The total number of shares of Common Stock
the Corporation shall have authority to issue is fifty million (50,000,000). The
Preferred Stock and the Common Stock each shall have $.00001 par value per
share. The number of authorized shares of Common Stock or Preferred Stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the then
outstanding shares of Common Stock, without a vote of the holders of Preferred
Stock, or of any series thereof, unless a vote of any such holders of Preferred
Stock is required pursuant to the provisions established by the Board of
Directors of the Corporation (the “Board of Directors”) in the resolution or
resolutions providing for the issue of such Preferred Stock, and if such holders
of such Preferred Stock are so entitled to vote thereon, then, except as may
otherwise be set forth in this Certificate of Incorporation, the only
stockholder approval required shall be the affirmative vote of a majority of the
combined voting power of the Common Stock and the Preferred Stock so entitled to
vote.
B.
Preferred Stock. The
Preferred Stock may be issued from time to time in one or more series, as
determined by the Board of Directors. The Board of Directors is expressly
authorized to provide for the issue, in one or more series, of all or any of the
remaining shares of Preferred Stock and, in the resolution or resolutions
providing for such issue, to establish for each such series the number of its
shares, the voting powers, full or limited, of the shares of such series, or
that such shares shall have no voting powers, and the designations, preferences,
and relative participating, optional, or other special rights of the shares of
such series and the qualifications, limitations, or restrictions thereof. The
Board of Directors is also expressly authorized (unless forbidden in the
resolution or resolutions providing for such issue) to increase or decrease (but
not below the number of shares of such series then outstanding) the number of
shares of any series subsequent to the issuance of shares of that series. In
case the number of shares of any such series shall be so decreased, the shares
constituting such decrease shall resume the status that they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
C.
Common
Stock.
1. Relative Rights of Preferred
Stock and Common Stock. All preferences, voting powers, relative,
participating, optional or other special rights and privileges, and
qualifications, limitations, or restrictions, of the Common Stock are expressly
made subject and subordinate to those that may be fixed with respect to any
shares of the Preferred Stock.
2. Voting Rights. Except
as otherwise required by law or this Certificate of Incorporation, each holder
of Common Stock shall have one vote in respect of each share of stock held by
such holder of record on the books of the Corporation for the election of
directors and on all matters submitted to a vote of stockholders of the
Corporation.
3. Dividends. Subject to
the preferential rights of the Preferred Stock, the holders of shares of Common
Stock shall be entitled to receive, when and if declared by the Board of
Directors, out of the assets of the Corporation which are by law available
therefor, dividends payable either in cash, in property or in shares of capital
stock.
4. Dissolution, Liquidation or
Winding Up. In the event of any dissolution, liquidation or winding up of
the affairs of the Corporation, after distribution in full of the preferential
amounts, if any, to be distributed to the holders of shares of the Preferred
Stock, holders of Common Stock shall be entitled, unless otherwise provided by
law or this Certificate of Incorporation, to receive all of the remaining assets
of the Corporation of whatever kind available for distribution to stockholders
ratably in proportion to the number of shares of Common Stock held by them
respectively.
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ARTICLE
VI
A.
Limitation on
Liability. A director of the Corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (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, or
(iv) for any transaction from which the director derived any improper
personal benefit. If the General Corporation Law of the State of
Delaware is amended after approval by the stockholders of this Article to
authorize corporate action further eliminating or limiting the personal
liability of directors then the liability of a director of the corporation shall
be eliminated or limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware as so amended.
B.
Indemnification. Each
person who is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust, employee
benefit plan or other enterprise (including the heirs, executors, administrators
or estate of such person), shall be indemnified and advanced expenses by the
Corporation, in accordance with the bylaws of the Corporation, to the fullest
extent authorized by the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment) or any other applicable laws as presently or
hereinafter in effect. The right to indemnification and advancement of expenses
hereunder shall not be exclusive of any other right that any person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
C.
Insurance. The
Corporation may, to the fullest extent permitted by law, purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation or another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise against any expense, liability
or loss incurred by such person in any such capacity or arising out of such
person’s status as such, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the General
Corporation Law of the State of Delaware.
D.
Repeal and
Modification. Any repeal or modification of the foregoing provisions of
this Article VI by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation existing at the
time of such repeal or modification.
ARTICLE
VII
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 statute, and all rights conferred on stockholders herein are
granted subject to this reservation.
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ARTICLE
VIII
Election
of directors need not be by written ballot unless the Bylaws of the Corporation
shall so provide.
ARTICLE
IX
A.
Number of
Directors. The number of directors which shall constitute the
whole Board of Directors of the Corporation shall be fixed from time to time by,
or in the manner provided in, the Bylaws of the Corporation or in an amendment
thereof duly adopted by the Board of Directors of the Corporation or by the
stockholders of the Corporation.
B.
Vacancies. Except as
otherwise provided for or fixed pursuant to the provisions of Article V of
this Certificate of Incorporation relating to the rights of the holders of any
series of Preferred Stock to elect directors, and subject to the provisions
hereof, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies on the Board of Directors
resulting from death, resignation, disqualification, removal or another cause
may be filled 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. Any
director elected in accordance with the preceding sentence shall hold office for
the remainder of the full term of the class of directors in which the new
directorship was created or in which the vacancy occurred, and until such
director’s successor shall have been duly elected and qualified or until his or
her earlier resignation, removal from office, death or incapacity. Subject to
the provisions of this Certificate of Incorporation, no decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
ARTICLE
X
Meetings
of stockholders of the Corporation may be held within or without the State of
Delaware, as the Bylaws of the Corporation may provide. The books of
the corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors of the Corporation or in the Bylaws of
the Corporation.
ARTICLE
XI
Except as
otherwise provided in this Certificate of Incorporation, in furtherance and not
in limitation of the powers conferred by statute, the Board of Directors of the
Corporation is expressly authorized to make, repeal, alter, amend and rescind
any or all of the Bylaws of the Corporation.
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IN
WITNESS WHEREOF, the undersigned has signed this Certificate of Incorporation
this _____ day of July, 2009.
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Michael
G. Acton, Incorporator
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