EXHIBIT NO. 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
UCI MEDICAL AFFILIATES, INC.
UCI MEDICAL AFFILIATES, INC., a corporation duly organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is UCI MEDICAL AFFILIATES, INC. The date
of filing its original Certificate of Incorporation with the Secretary of State
was August 25, 1982, and the original name of the corporation was UrgentCare,
Inc.
2. This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the original Restated Certificate of Incorporation
of this corporation filed on February 1, 1984, in the following manner:
The Article numbered FOURTH of the original Restated
Certificate of Incorporation is amended so as to read in its entirety
as follows:
"FOURTH: After giving effect to Section Seven herein, the
total number of shares of stock which the corporation shall have
authority to issue is as follows: Ten Million (10,000,000) shares of
Common Stock, having a par value of five cents ($.05) per share,
amounting in the aggregate to Five Hundred Thousand Dollars ($500,000),
and Ten Million (10,000,000) shares of Preferred Stock having a par
value of one cent ($.01) per share, amounting in the aggregate to One
Hundred Thousand Dollars ($100,000).
The following is a statement fixing certain of the
designations and powers, voting powers, preferences, and relative,
participating, optional or other rights of the Common Stock and
Preferred Stock of the corporation, and the qualifications, limitations
or restrictions thereof, and the authority with respect thereto
expressly granted to the Board of Directors of the corporation to fix
any such provisions not fixed by this Certificate:
I. Common Stock
Authority is hereby expressly granted to and vested
in the Board of Directors of this corporation to provide for
the issue of Common Stock. The holders of record of shares of
Common Stock shall be entitled to unlimited voting rights
equating to one (1) vote per outstanding share of Common Stock
on all matters upon which shareholders are entitled to vote.
Shares of Common Stock shall have distribution, dividend, and
liquidation rights granted by law or declared by resolution or
resolutions of the Board of Directors from time to time,
except that in the absence of the establishment of liquidation
rights for one or more series of Preferred Stock (either
preferentially to, or on a parity with, the Common Stock) as
provided below, the holders of record of shares of Common
Stock shall be entitled to receive the net assets of this
corporation upon dissolution. The distribution, dividend, and
liquidation rights associated with the shares of Common Stock
will be subordinated only to the comparable distribution,
dividend, or liquidation rights associated with shares of
certain series of Preferred Stock, if any, but only to the
extent such preferences, if any, are established for one or
more series of Preferred Stock by the Board of Directors in
its discretion as provided below.
II. Preferred Stock
The Board of Directors is hereby expressly vested
with the authority to adopt a resolution or resolutions
provided for the issue of authorized but unissued shares of
Preferred Stock, which shares may be issued from time to time
in one or more series and in such amounts as may be determined
by the Board of Directors in such resolution or resolutions.
The powers, voting powers, designations, preferences, and
relative, participating, operational or other rights, if any,
of each series of Preferred Stock and the qualifications,
limitations or restrictions, if any, of such preferences
and/or rights (collectively the "Series Terms"), shall be such
as are stated and expressed in a resolution or resolutions
provided for the creation or revision of such Series Terms (a
"Preferred Stock Series Resolution") adopted by the Board of
Directors or a committee of the Board of Directors to which
such responsibility is specifically and lawfully delegated.
The powers of the Board of Directors with respect to the
Series Terms of a particular series (any of which powers,
other than voting powers, may be resolution of the Board of
Directors be specifically delegated to one or more of its
committees, except as prohibited by law) shall include, but
not be limited to, determination of the following:
(1) The number of shares constituting that
series and the distinctive designation of that
series, or any increase or decrease (but not below
the number of shares thereof then outstanding) in
such number;
(2) The dividend rate of the shares of that
series, whether such dividends, if any, shall be
cumulative, and, if so, the date or dates from which
dividends payable on such shares shall accumulate,
and the relative rights of priority, if any, of
payment of dividends on shares of that series;
(3) Whether that series shall have voting
rights, in addition to the voting rights provided by
law, and, if so, the terms of such voting rights;
(4) Whether that series shall have
conversion privileges with respect to shares of any
other class or classes of stock or of any other
series of any class of stock, and, of so, the terms
and conditions of such conversion, including
provision for adjustment of the conversion rate upon
occurrence of such events as the Board of Directors
shall determine;
(5) Whether the shares of that series shall
be redeemable, and, if so, the terms and conditions
of such redemption, including their relative rights
of priority, if any, of redemption, the date or dates
upon or after which they shall be redeemable,
provisions regarding redemption notices, and the
amount per shares payable in case of redemption,
which amount may vary under different conditions and
at different redemption dates;
(6) Whether that series shall have a sinking
fund for the redemption or purchase of shares of that
series, and, if so, the terms and amount of such
sinking fund;
(7) The rights of the shares of that series
in the event of voluntary or involuntary liquidation,
dissolution, or winding up of the corporation, and
the relative rights of priority, if any, of payment
of shares of that series;
(8) The conditions or resolutions upon the
creation of indebtedness of the corporation or upon
the issuance of additional preferred stock or other
capital stock ranking on a parity therewith, or prior
thereto, with respect to dividends or distribution of
assets upon liquidation;
(9) The conditions or restrictions with
respect to the issuance of, payment of dividends
upon, or the making of other distributions to, or the
acquisition or redemption of, shares ranking junior
to the Preferred Stock or to any series thereof with
respect to dividends or distribution of assets upon
liquidation; and,
(10) Any other designations, powers,
preferences, and rights, including, without
limitation any qualifications, limitations, or
restrictions thereof.
Any of the Series Terms, including voting rights, of
any series may be made dependent upon facts ascertainable
outside the Amended and Restated Certificate of Incorporation
and the Preferred Stock Series Resolution, provided that the
manner in which such facts shall operate upon such Series
Terms is clearly and expressly set forth in the Amended and
Restated Certificate of Incorporation or in the Preferred
Stock Series Resolution,
Subject to the provisions of this Article Four,
shares of one or more series of Preferred Stock may be
authorized or issued from time to time as shall be determined
by and for such consideration as shall be fixed by the Board
of Directors or a designated committee thereof, in an
aggregate amount not exceeding the total number of shares of
Preferred Stock authorized by this Amended and Restated
Certificate of Incorporation. Except in respect of series
particulars fixed by the Board of Directors or its committee
as permitted thereby, all shares of Preferred Stock shall be
of equal rank and shall be identical. All shares of any one
series of Preferred Stock so designated by the Board of
Directors shall be alike in every particular, except that
shares of any one series issued at different times may differ
as to the dates from which dividends thereon shall be
cumulative."
The following addition is added to the original Restated
Certificate of Incorporation so as to read in its entirety as follows:
"SEVENTH: Pursuant to a 1 for 5 reverse stock split, the
amount of the total authorized Common Stock of this corporation is
decreased and the number and par value are by these means changed so
that the authorized Common Stock of this corporation, which, prior to
the filing of this amendment, was Twenty Million (20,000,000) shares of
Common Stock, having a par value of one cent ($.01) per share,
amounting in the aggregate to Two Hundred Thousand Dollars ($200,000),
shall be Four Million (4,000,000) shares of Common Stock, having a par
value of five cents ($.05) per share, amounting in the aggregate to Two
Hundred Thousand Dollars ($200,000) ; provided however, immediately
after the effectuation of such reverse stock split, the authorized
Common Stock of this corporation shall be increased so that the
authorized Common Stock of this corporation shall be Ten Million
(10,000,000) shares of Common Stock, having a par value of five cents
($.05) per share, amounting in the aggregate to Five Hundred Thousand
Dollars ($500,000).
At the time this amendment becomes effective, each five (5)
prior issued and outstanding shares of the Common Stock of this
corporation, par value one cent ($.01) per share, shall thereby and
thereupon be combined into one (1) share of validly issued, fully paid
and nonassessable shares of Common Stock of this corporation, par value
five cents ($.05) per share. Each person at that time holding of record
any issued and outstanding share of Common Stock of this corporation
shall receive upon surrender thereof to the corporation's authorized
agency a stock certificate or certificates to evidence and represent
the number of shares of post reverse stock split Common Stock of this
corporation to which he is entitled after this reverse split; provided,
however, that this corporation shall not issue fractional shares of
Common Stock in connection with this reverse stock split, but, in lieu
thereof, this corporation shall make a cash payment at the rate of
seventy cents ($.70) and for each share of prior Common Stock to the
holders thereof who would otherwise be entitled to receive fractional
shares except for the provisions hereof upon surrender of certificates
representing those shares to the corporation's authorized agent. The
ownership of such fractional interests shall not entitle the holder
thereof to any voting, dividend or other right except the right to
receive payment therefore as described above.
EIGHTH: 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 such liability as is
expressly not subject to limitation under the General Corporation Law
of the State of Delaware, as the same exists or may hereafter be
amended to further limit or eliminate such liability.
NINTH: Notwithstanding any other provision of this Amended and
Restated Certificate of Incorporation or the Bylaws of this
corporation, the terms of the members of the Board of Directors shall
be staggered in the manner set forth in this Article Nine, in lieu of
electing the whole number of directors annually. Commencing on the
effective date of this Article Nine, the directors shall be divided by
the Board of Directors into three (3) classes, each class to be as
nearly equal in number as possible. The term of office of directors of
the first class shall expire at the first annual meeting of
shareholders after their election, that of the second class shall
expire at the second annual meeting after the election, and that of the
third class shall expire at the third annual meeting after their
election. At each annual meeting after such classification, the number
of directors equal to the number of the class whose terms expires at
the time of such meeting shall be elected to hold office until the
third such succeeding annual meeting. The provisions of this Article
Nine shall apply only when the Board of Directors consists of three or
more members; if the Board of Directors consists of less than three
members, the terms of each such member shall expire at the next annual
meeting of the shareholders of the corporation.
TENTH: To the fullest extent permitted by law, the Board of
Directors, when evaluating any offer by another party to (i) make a
tender or exchange offer for any equity security of this corporation
outside of the ordinary course of business, (ii) merge or consolidate
this corporation with any other corporation, (iii) purchase or
otherwise acquire all or substantially all of the properties and assets
of this corporation, or (iv) undertake any similar extraordinary
corporate transactions with this corporation, may be its discretion, in
connection with exercise of its judgment in determining what is in the
best interests of this corporation and its shareholders, give due
consideration to: (aa) all relevant factors, including without
limitation the social, legal, and economic effects on the employees,
customers, suppliers, and other constituencies of this corporation and
its subsidiaries, on the communities and geographical areas in which
this corporation and its subsidiaries operate or are located, and on
any of the businesses and properties of this corporation or any of its
subsidiaries, as well as such other factors as the directors deem
relevant; and (bb) all features of the consideration being offered, not
only in relation to the then current market price for the corporation's
outstanding shares of capital stock, but also in relation to the then
current value of the corporation in a freely negotiated transaction and
in relation to the Board of Director's estimate of the future value of
this corporation (including the unrealized value of its properties and
assets) as an independent going concern."
3. The text of the original Restated Certificate of Incorporation as
amended or supplemented heretofore is further amended hereby to read as herein
set forth in full:
"AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
UCI MEDICAL AFFILIATES, INC.
FIRST: The name of the corporation is: UCI MEDICAL AFFILIATES, INC.
SECOND: The address of its registered office in the State of
Delaware is: Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle, and the name of its registered agent
at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted
or promoted is: the operation of an Emergency Care Center and to engage
in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH: After giving effect to Section Seven herein, the total
number of shares of stock which the corporation shall have authority to
issue is as follows: Ten Million (10,000,000) shares of Common Stock,
having a par value of five cents ($.05) per share, amounting in the
aggregate to Five Hundred Thousand Dollars ($500,000), and Ten Million
(10,000,000) shares of Preferred Stock having a par value of one cent
($.01) per share, amounting in the aggregate to One Hundred Thousand
Dollars ($100,000).
The following is a statement of fixing certain of the
designations and powers, voting powers, preferences, and relative,
participating, optional or other rights of the Common Stock and
Preferred Stock of the corporation, and the qualifications, limitations
or restrictions thereof, and the authority with respect thereto
expressly granted to the Board of Directors of the corporation to fix
any such provisions not fixed by this Certificate:
I. Common Stock
Authority is hereby expressly granted to and vested
in the Board of Directors of this corporation to provide for
the issue of Common Stock. The holders of record of shares of
Common Stock shall be entitled to unlimited voting rights
equating to one (1) vote per outstanding share of Common Stock
on all matters upon which shareholders are entitled to vote.
Shares of Common Stock shall have distribution, dividend, and
liquidation rights granted by law or declared by resolution or
resolutions of the Board of Directors from time to time,
except that in the absence of the establishment of liquidation
rights for one or more series of Preferred Stock (either
preferentially to, or on a party with, the Common Stock) as
provided below, the holders of record of shares of Common
Stock shall be entitled to receive the net assets of this
corporation upon dissolution. The distribution, dividend, and
liquidation rights associated with the shares of Common Stock
will be subordinated only to the comparable distribution,
dividend, or liquidation rights associated with shares of
certain series of Preferred Stock, if any, but only to the
extent such preferences, if any, are established for one or
more series of Preferred Stock by the Board of Directors in
its discretion as provided below.
II. Preferred Stock
The Board of Directors is hereby expressly vested
with the authority to adopt a resolution or resolutions
providing for the issue of authorized but unissued shares of
Preferred Stock, which shares may be issued from time to time
in one or more series and in such amounts as may be determined
by the Board of Directors in such resolution or resolutions.
The powers, voting powers, designations, preferences, and
relative, participating, operational or other rights, if any,
of each series of Preferred Stock and the qualifications,
limitations or restrictions, if any, of such preferences
and/or rights (collectively the "Series Terms"), shall be such
as are stated and expressed in a resolution or resolutions
providing for the creation or revision of such Series Terms (a
"Preferred Stock Series Resolution") adopted by the Board of
Directors or a committee of the Board of Directors to which
such responsibility is specifically and lawfully delegated.
The powers of the Board of Directors with respect to the
Series Terms of a particular series (any of which powers,
other than voting powers, may be resolution of the Board of
Directors be specifically delegated to one or more of its
committees, except as prohibited by law) shall include, but
not be limited to, determination of the following:
(1) The number of shares constituting that
series and the distinctive designation of that
series, or any increase or decrease (but not below
the number of shares thereof then outstanding) in
such number;
(2) The dividend rate of the shares of that
series, whether such dividends, if any, shall be
cumulative, and, if so, the date or dates from which
dividends payable on such shares shall accumulate,
and the relative rights of priority, if any, of
payment of dividends on shares of that series;
(3) Whether that series shall have voting
rights, in addition to the voting rights provided by
law, and, if so, the terms of such voting rights;
(4) Whether that series shall have
conversion privileges with respect to shares of any
other class or classes of stock or of any other
series of any class of stock, and, of so, the terms
and conditions of such conversion, including
provision for adjustment of the conversion rate upon
occurrence of such events as the Board of Directors
shall determine;
(5) Whether the shares of that series shall
be redeemable, and, if so, the terms and conditions
of such redemption, including their relative rights
of priority, if any, of redemption, the date or dates
upon or after which they shall be redeemable,
provisions regarding redemption notices, and the
amount per shares payable in case of redemption,
which amount may vary under different conditions and
at different redemption dates;
(6) Whether that series shall have a sinking
fund for the redemption or purchase of shares of that
series, and, if so, the terms and amount of such
sinking fund;
(7) The rights of the shares of that series
in the event of voluntary or involuntary liquidation,
dissolution, or winding up of the corporation, and
the relative rights of priority, if any, of payment
of shares of that series;
(8) The conditions or resolutions upon the
creation of indebtedness of the corporation or upon
the issuance of additional preferred stock or other
capital stock ranking on a parity therewith, or prior
thereto, with respect to dividends or distribution of
assets upon liquidation;
(9) The conditions or restrictions with
respect to the issuance of, payment of dividends
upon, or the making of other distributions to, or the
acquisition or redemption of, sharing ranking junior
to the Preferred Stock or to any series thereof with
respect to dividends or distribution of assets upon
liquidation; and,
(10) Any other designations, powers,
preferences, and rights, including, without
limitation any qualifications, limitations, or
restrictions thereof.
Any of the Series Terms, including voting rights, of
any series may be made dependent upon facts ascertainable
outside the Amended and Restated Certificate of Incorporation
and the Preferred Stock Series Resolution, provided that the
manner in which such facts shall operate upon such Series
Terms is clearly and expressly set forth in the Amended and
Restated Certificate of Incorporation or in the Preferred
Stock Series Resolution.
Subject to the provisions of this Article Four,
shares of one or more series of Preferred Stock may be
authorized or issued from time to time as shall be determined
by and for such consideration as shall be fixed by the Board
of Directors or a designated committee thereof, in an
aggregate amount not exceeding the total number of shares of
Preferred Stock authorized by this Amended and Restated
Certificate of Incorporation. Except in respect of series
particulars fixed by the Board of Directors or its committee
as permitted thereby, all shares of Preferred Stock shall be
of equal rank and shall be identical. All shares of any one
series of Preferred Stock so designated by the Board of
Directors shall be alike in every particular, except that
shares of any one series issued at different times may differ
as to the dates from which dividends thereon shall be
cumulative.
FIFTH: The corporation shall have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the corporation's Board of Directors is expressly authorized to adopt,
amend, or repeal by Bylaws of the corporation.
SEVENTH: Pursuant to a 1 for 5 reverse stock split, the amount
of the total authorized Common Stock of this corporation is decreased
and the number and par value are by these means changed so that the
authorized Common Stock of this corporation, which, prior to the filing
of this amendment, was Twenty Million (20,000,000) shares of Common
Stock, having a par value of one cent ($.01) per share, amounting in
the aggregate to Two Hundred Thousand Dollars ($200,000), shall be Four
Million (4,000,000) shares of Common Stock, having a par value of five
cents ($.05) per share, amounting in the aggregate to Two Hundred
Thousand Dollars ($200,000); provided however, immediately after the
effectuation of such reverse stock split, the authorized Common Stock
of this corporation shall be increased so that the authorized Common
Stock of this corporation shall be Ten Million (10,000,000) shares of
Common Stock, having a par value of five cents ($.05) per share,
amounting in the aggregate to Five Hundred Thousand Dollars ($500,000).
At the time this amendment becomes effective, each five (5)
prior issued and outstanding shares of the Common Stock of this
corporation, par value one cent ($.01) per share, shall thereby and
thereupon be combined into one (1) share of validly issued, fully paid
and nonassessable shares of Common Stock of this corporation, par value
five cents ($.05) per share. Each person at that time holding of record
any issued and outstanding share of Common Stock of this corporation
shall receive upon surrender thereof to the corporation's authorized
agency a stock certificate or certificates to evidence and represent
the number of shares of post reverse split; provided, however, that
this corporation shall not issue fractional shares of Common Stock in
connection with this reverse stock split, but, in lieu thereof, this
corporation shall make a cash payment at the rate of seventy cents
($.70) and for each share of prior Common Stock to the holders thereof
who would otherwise by entitled to receive fractional shares except for
the provisions hereof upon surrender of certificates representing those
shares to the corporation's authorized agent. The ownership of such
fractional interests shall not entitle the holder thereof to any
voting, dividend or other right except the right to receive payment
therefore as described above.
EIGHTH: 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 such liability as is
expressly not subject to limitation under the General Corporation Law
of the State of Delaware, as the same exists or may hereafter be
amended to further limit or eliminate such liability.
NINTH: Notwithstanding any other provision of this Amended and
Restated Certificate of Incorporation or the Bylaws of this
corporation, the terms of the members of the Board of Directors shall
be staggered in the manner set forth in this Article Nine, in lieu of
electing the whole number of directors annually. Commencing on the
effective date of this Article Nine, the directors shall be divided by
the Board of Directors into three (3) classes, each class to be as
nearly equal in number as possible. The term of office of directors of
the first class shall expire at the first annual meeting of
shareholders after their election, that of the second class shall
expire at the second annual meeting after the election, and that of the
third class shall expire at the third annual meeting after their
election. At each annual meeting after such classification, the number
of directors equal to the number of the class whose terms expires at
the time of such meeting shall be elected to hold office until the
third such succeeding annual meeting. The provisions of this Article
Nine shall apply only when the Board of Directors consists of three or
more members; if the Board of Directors consists of less than three
members, the term of each such member shall expire at the next annual
meeting of the shareholders of the corporation.
TENTH: To the fullest extent permitted by law, the Board of
Directors, when evaluating any offer by another party to (i) make a
tender or exchange offer for any equity security of this corporation
outside of the ordinary course of business, (ii) merge or consolidate
this corporation with any other corporation, (iii) purchase or
otherwise acquire all or substantially all of the properties and assets
of this corporation, or (iv) undertake any similar extraordinary
corporate transactions with this corporation, may in its discretion, in
connection with exercise of its judgment in determining what is in the
best interests of this corporation and its shareholders, give due
consideration to: (aa) all relevant factors, including without
limitation the social, legal, and economic effects on the employees,
customers, suppliers, and other constituencies of this corporation and
its subsidiaries, on the communities and geographical areas in which
this corporation and its subsidiaries operate or are located, and on
any of the businesses and properties of this corporation or any of its
subsidiaries, as well as such other factors as the directors deem
relevant; and (bb) all features of the consideration being offered, not
only in relation to the then current value of the corporation in a
freely negotiated transaction and in relation to the Board of
Director's estimate of the future value of this corporation (including
the unrealized value of its properties and assets) as an independent
going concern."
4. This Amended and Restated Certificate of Incorporation was duly
adopted by the stockholders in accordance with the applicable provisions of
Sections 242 and 245 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, UCI Medical Affiliates, Inc. has caused this
certificate to be signed by M.F. McFarland, III, M.D., its Chairman of the Board
of Directors, and attested to by Jon R. Bright, its Assistant Secretary, this
30th day of June, 1994.
UCI MEDICAL AFFILIATES, INC.
By: /s/ M.F. McFarland, III, M.D.
---------------------------------
M.F. McFarland, III, M.D. Its:
Chairman of the Board
(CORPORATE SEAL)
Attest:
By: /s/ Jon R. Bright
----------------------
Jon R. Bright
Its: Assistant Secretary