EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AARONCO CORP.
* * * * *
The Corporation was incorporated under the name "Aaronco Corp." by the
filing of its original Certificate of Incorporation with the Secretary of the
State of Delaware on August 6, 1999. This Amended and Restated Certificate of
Incorporation, which both restates and amends the provisions of the
Corporation's Certificate of Incorporation (as amended, this "Certificate of
Incorporation"), was duly adopted in accordance with the provisions of Sections
242 and 245 of the General Corporation Law of the State of Delaware (the
"DGCL"). The Certificate of Incorporation of the Corporation is hereby amended
and restated to read in its entirety as follows:
ARTICLE I
NAME
The name of the Corporation is Gentiva Health Services, Inc.
ARTICLE II
REGISTERED OFFICES AND AGENT
The address of its registered office in the State of Delaware is 15
East North Street, Dover, Delaware 19901. The name of its registered agent at
such address is XL Corporate Services.
ARTICLE III
PURPOSE
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may now or hereafter be organized
under the General Corporation Law of the State of Delaware (the "DGCL").
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ARTICLE IV
CAPITAL STOCK
SECTION 4.1 CAPITAL STOCK. The Corporation shall be authorized to issue
the following shares:
Class Number of Shares Par Value
----- ---------------- ---------
Common Stock 100,000,000 $.10
Preferred Stock 25,000,000 $.01
SECTION 4.2 DESIGNATION OF PREFERRED STOCK TERMS. The Preferred Stock
may be issued from time to time in one or more series. The Board of Directors is
hereby authorized to provide for the issuance of shares of Preferred Stock in
series and, by filing a certificate pursuant to the DGCL (hereinafter referred
to as a "PREFERRED STOCK DESIGNATION"), to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, privileges, preferences and rights of the shares of each such series and
the qualifications, limitations and restrictions thereon. The authority of the
Board of Directors with respect to each series shall include, but not be limited
to, determination of the following:
(a) the designation of the series, which may be by
distinguishing number, letter or title;
(b) the number of shares of the series, which number the Board
of Directors may thereafter (except where otherwise provided in the
Preferred Stock Designation) increase or decrease (but not below the
number of shares thereof then outstanding) in the manner permitted by
law;
(c) the rate of any dividends (or method of determining the
dividends) payable to the holders of the shares of such series, any
conditions upon which such dividends shall be paid and the date or
dates or the method for determining the date or dates upon which such
dividends shall be payable;
(d) whether dividends, if any, shall be cumulative or
noncumulative, and, in the case of shares of any series having
cumulative dividend rights, the date or dates or method of determining
the date or dates
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from which dividends on the shares of such series shall cumulate;
(e) if the shares of such series may be redeemed by the
Corporation, the price or prices (or method of determining such price
or prices) at which, the form of payment of such price or prices (which
may be cash, property or rights, including securities of the
Corporation or of another corporation or other entity) for which, the
period or periods within which, and the other terms and conditions upon
which, the shares of such series may be redeemed, in whole or in part,
at the option of the Corporation or at the option of the holder or
holders thereof or upon the happening of a specified event or events,
if any, including the obligation, if any, of the Corporation to
purchase or redeem shares of such series pursuant to a sinking fund or
otherwise;
(f) the amount payable out of the assets of the Corporation to
the holders of shares of the series in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the Corporation;
(g) provisions, if any, for the conversion or exchange of the
shares of such series, at any time or times, at the option of the
holder or holders thereof or at the option of the Corporation or upon
the happening of a specified event or events, into shares of any other
class or classes or any other series of the same class of capital stock
of the Corporation or into any other security of the Corporation, or
into the stock or other securities of any other corporation or other
entity, and the price or prices or rate or rates of conversion or
exchange and any adjustments applicable thereto, and all other terms
and conditions upon which such conversion or exchange may be made;
(h) restrictions on the issuance of shares of the same series
or of any other class or series of capital stock of the Corporation, if
any; and
(i) the voting rights and powers, if any, of the holders of
shares of the series.
SECTION 4.3 POWERS, PRIVILEGES AND RIGHTS PERTAINING TO CAPITAL STOCK.
The powers, privileges and rights pertaining to the Common Stock shall be
subject to the powers, privileges, preferences and rights pertaining to the
Preferred
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Stock and any and all series thereof. The shares of Common Stock of the
Corporation shall be identical in all respects and have equal rights and
privileges. The holders of shares of Common Stock shall be entitled to one vote
for each such share upon all matters and proposals presented to the stockholders
on which the holders of Common Stock are entitled to vote. Except as otherwise
provided by law or by another provision of the certificate of incorporation of
the Corporation or by a Preferred Stock Designation, the Common Stock shall have
the exclusive right to vote for the election of directors and on all other
matters or proposals presented to the stockholders; provided, however, that the
holders of shares of Common Stock, as such, shall not be entitled to vote on any
amendment of the certificate of incorporation of the Corporation (including any
amendment of any provision of a Preferred Stock Designation) that solely relates
to the powers, privileges, preferences or rights pertaining to one or more
outstanding series of Preferred Stock, or the number of shares of any such
series, and does not affect the number of authorized shares of Preferred Stock
or the powers, privileges and rights pertaining to the Common Stock, if the
holders of any of such series of Preferred Stock are entitled, separately or
together with the holders of any other series of Preferred Stock, to vote
thereon pursuant to the certificate of incorporation of the Corporation
(including any Preferred Stock Designation) or pursuant to the DGCL, unless a
vote of holders of shares of Common Stock is otherwise required by any provision
of the Preferred Stock Designation for any such series or any other provision of
the certificate of incorporation of the Corporation fixing the powers,
privileges, powers and rights of any such series or the qualifications,
limitations or restrictions thereon or is otherwise required by law. Holders of
shares of Preferred Stock (of any series) shall not be entitled to receive
notice of any meeting of stockholders at which they are not entitled to vote,
except as may be explicitly provided by any Preferred Stock Designation. The
number of authorized shares of 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 outstanding shares of Common Stock,
without a vote of the holders of the Preferred Stock, or of any series thereof,
unless a vote of any such holders is required pursuant to another provision of
the certificate of incorporation of the Corporation (including any Preferred
Stock Designation).
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ARTICLE V
BYLAWS
Bylaws for the Corporation may be adopted, consistent with law and the
provisions of the certificate of incorporation of the Company (including any
Preferred Stock Designation), and, once adopted, any Bylaw may be altered or
repealed: (i) by the affirmative vote of the holders of a majority of the voting
power of the capital stock issued and outstanding and entitled to vote thereon
or (ii) by the affirmative vote of a majority of the number of directors of the
Corporation then in office.
ARTICLE VI
STOCKHOLDER ACTION
SECTION 6.1 NO ACTION BY CONSENT IN LIEU OF A MEETING. Except as
otherwise provided pursuant to provisions of the certificate of incorporation of
the Corporation (including any Preferred Stock Designation) fixing the powers,
privileges or rights of any class or series of stock other than the Common Stock
in respect of action by written consent of the holders of such class or series
of stock, 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
such holders and may not be effected by any consent in writing by such holders
in lieu of a meeting of such holders.
SECTION 6.2 STOCKHOLDER NOMINATION OF DIRECTOR CANDIDATES AND OTHER
STOCKHOLDER PROPOSALS. Advance notice of stockholder nominations for the
election of directors and of the proposal by stockholders of any other action to
be taken by the stockholders shall be given in such manner as shall be provided
in the Bylaws of the Corporation (as amended and in effect from time to time).
ARTICLE VII
BOARD OF DIRECTORS
SECTION 7.1 POWERS OF THE BOARD OF DIRECTORS. The business and affairs
of the Corporation shall be managed by or under the direction of the Board of
Directors, which shall be constituted as provided in this Article and as
provided by law.
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SECTION 7.2 NUMBER, ELECTION AND TERM OF OFFICE. Except in respect of
the election of additional directors as otherwise provided for by or pursuant to
the provisions of the certificate of incorporation of the Corporation (including
any Preferred Stock Designation) pertaining to any class or series of stock
having a preference over the Common Stock as to dividends or distributions upon
liquidation, the number of the directors of the Corporation shall be fixed from
time to time (and may be changed) exclusively pursuant to a resolution adopted
by a majority of the directors then in office, but shall not be more or less
than that set forth in the Bylaws; provided, however, that no reduction in the
number of directors shall end the term of office of any incumbent director prior
to the date such director's term of office would otherwise end. The directors,
other than those who may be elected by the holders of any class or series of
stock having a preference over the Common Stock as to dividends or distributions
upon liquidation, shall be classified, with respect to the time for which they
severally hold office, into three classes designated Class I, Class II and Class
III, as nearly equal in number as possible. Class I directors shall initially be
elected for a term expiring at the annual meeting of stockholders to be held in
2000. Class II directors shall initially be elected for a term expiring at the
annual meeting of stockholders to be held in 2001. Class III directors shall
initially be elected for a term expiring at the annual meeting of stockholders
to be held in 2002. Each director shall hold office until his or her successor
is duly elected and qualified. At each succeeding annual meeting of
stockholders, directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election, with each director to hold
office until his or her successor shall have been duly elected and qualified.
SECTION 7.3 WRITTEN BALLOT NOT REQUIRED. Unless and except to the
extent that the Bylaws of the Corporation shall so require, the election of
directors of the Corporation need not be by written ballot.
SECTION 7.4 NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except for the
election of one or more directors as provided for by or pursuant to the
provisions of the certificate of incorporation of the Corporation (including any
Preferred Stock Designation) pertaining to any class or series of stock having a
preference over the Common Stock as to dividends or distributions upon
liquidation and except as the stockholders shall otherwise be entitled to elect
directors as
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provided by law, newly created directorships resulting from any increase in the
number of directors constituting the Board of Directors and any vacancies on the
Board of Directors occurring for any reason 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, and not by the
stockholders. Any director elected to fill a vacancy on the Board of Directors
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.
SECTION 7.5 REMOVAL. Subject to the rights of any class of Preferred
Stock or series thereof to elect and remove additional directors under specified
circumstances, any director may be removed from office only for cause by the
affirmative vote of the holders of at least a majority of the voting power of
all shares of capital stock of the Corporation entitled generally to vote on the
election of directors of the Corporation ("VOTING STOCK") then outstanding,
voting together as a single class.
ARTICLE VIII
LIMITATIONS ON LIABILITY OF AND INDEMNIFICATION OF
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
SECTION 8.1 LIMITED LIABILITY OF DIRECTORS. A director of the
Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except to the
extent such exemption from liability or limitation thereof is not permitted
under the DGCL as the same exists or may hereafter be amended. Any repeal,
modification or amendment of the foregoing sentence shall not adversely affect
any right or protection of a director of the Corporation existing hereunder with
respect to any act or omission occurring prior to such repeal, modification or
amendment.
SECTION 8.2 INDEMNIFICATION. The Corporation shall indemnify (A) its
directors and officers, whether serving the Corporation or at its request, any
other entity, to the full extent required or permitted by the DGCL now or
hereafter in force, including the advance of expenses under the procedures and
to the full extent permitted by law (B) other employees and agents to such
extent as shall be expressly authorized by the Board of Directors or the By-Laws
and as
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permitted by law. The foregoing rights of indemnification shall not be exclusive
of any other rights to which those seeking indemnification may be entitled. The
Board of Directors may take such action as is necessary to carry out these
indemnification provisions and is expressly empowered to adopt, approve and
amend from time to time such by-laws, resolutions or contracts implementing such
provisions or such further indemnification arrangements as may be permitted by
law. No amendment of this Certificate of Incorporation or repeal of any of its
provisions shall limit or eliminate the right to indemnification provided under
this Section 8.2 with respect to any acts or omissions occurring prior to such
amendment or repeal.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right at any time and from time to time to
amend, alter, change or repeal any provision contained in the certificate of
incorporation of the Corporation, as from time to time in effect, and to add
thereto any other provision authorized by the laws of the State of Delaware at
the time in force, and, except as may otherwise be explicitly provided by any
provision of the certificate of incorporation of the Corporation, all rights,
preferences and privileges of whatsoever nature conferred upon stockholders,
directors or officers of the Corporation or any other person whomsoever by and
pursuant to the certificate of incorporation of the Corporation in its present
form, or as hereafter amended, are granted subject to the right reserved in this
Article. Any provision of the certificate of incorporation of the Corporation
may be altered, amended or repealed, and any inconsistent provision may be
added, by such action (if any) of the Board of Directors and the stockholders,
and otherwise in such manner, as is provided by law; provided, however, that, in
addition to any other vote of stockholders (if any) required by law and
notwithstanding that a lower vote (or no vote) of stockholders otherwise would
be required, if any provision of the certificate of incorporation of the
Corporation other than this Article requires a particular vote of stockholders
in order to alter, amend or repeal, or adopt any provision inconsistent with,
any provision of the certificate of incorporation of the Corporation, then such
vote of stockholders shall be required for such change.
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ARTICLE X
EXISTENCE
The Corporation shall have perpetual existence.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be duly executed this 4th day of
January, 2000.
GENTIVA HEALTH SERVICES, INC.
By: /s/ Patricia Ma
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Name: Patricia Ma
Title: Senior Vice President &
General Counsel