Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
AMN HEALTHCARE SERVICES, INC.
AMN Healthcare Services, Inc., a corporation duly incorporated under
the laws of the State of Delaware, hereby certifies as follows:
FIRST: The present name of the corporation is AMN Healthcare Services,
Inc. (the "Corporation"). The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
the 10th day of November, 1997, under the name AMN Holdings, Inc.
SECOND: This Amended and Restated Certificate of Incorporation has been
duly adopted in accordance with Sections 228, 242 and 245 of the Delaware
General Corporation Law (the "General Corporation Law").
THIRD: This Amended and Restated Certificate of Incorporation restates,
integrates and further amends the Certificate of Incorporation of the
Corporation as follows:
1. Name. The name of the corporation is "AMN Healthcare Services,
Inc."
2. Address; Registered Office and Agent. The address of the
Corporation's registered office is Corporation Trust Center, 1209 Orange Street,
City of Wilmington, County of Newcastle, State of Delaware, and the name of its
registered agent at such address is The Corporation Trust Company.
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3. Purposes. 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.
4. Number of Shares. The total number of shares of stock that the
Corporation shall have authority to issue is: two hundred and ten million
(210,000,000), divided as follows: ten million (10,000,000) shares of Preferred
Stock, of the par value of $0.01 per share (the "Preferred Stock"), and two
hundred million (200,000,000) shares of Common Stock, of the par value of $0.01
per share (the "Common Stock").
Upon this Amended and Restated Certificate of Incorporation becoming
effective pursuant to the General Corporation Law (the "Effective Time"), each
share of Common Stock issued and outstanding immediately prior to the Effective
Time (the "Old Common Stock") shall, without any action on the part of the
holder thereof, be automatically reclassified as and converted into 43.10849
shares of Common Stock (the "New Common Stock").
The number of authorized shares, the number of shares of treasury stock
and the par value of the Common Stock shall not be affected. Each stock
certificate that immediately prior to the Effective Time represented shares of
Old Common Stock shall, from and after the Effective Time, automatically and
without the necessity of presenting the same for exchange, represent the number
of shares of New Common Stock as equals the product obtained by multiplying the
number of shares of Old Common Stock represented by such certificate immediately
prior to the Effective Time by 43.10849.
4.1 The designation, relative rights, preferences and
limitations of the shares of each class are as follows:
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4.1.1 The shares of Preferred Stock may be issued
from time to time in one or more series of any number of shares, provided that
the aggregate number of shares issued and not cancelled of any and all such
series shall not exceed the total number of shares of Preferred Stock
hereinabove authorized, and with such powers, including voting powers, if any,
and the preferences and relative, participating, optional or other special
rights, if any, and any qualifications, limitations or restrictions thereof, all
as shall hereafter be stated and expressed in the resolution or resolutions
providing for the designation and issue of such shares of Preferred Stock from
time to time adopted by the Board of Directors (the "Board") pursuant to
authority so to do which is hereby expressly vested in the Board. The powers,
including voting powers, if any, preferences and relative, participating,
optional and other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding. Each series of shares
of Preferred Stock: (a) may have such voting rights or powers, full or limited,
if any; (b) may be subject to redemption at such time or times and at such
prices, if any; (c) may be entitled to receive dividends (which may be
cumulative or non-cumulative) at such rate or rates, on such conditions and at
such times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or series of stock, if any; (d) may have
such rights upon the voluntary or involuntary liquidation, winding up or
dissolution of, or upon any distribution of the assets of, the Corporation, if
any; (e) may be made convertible into or exchangeable for, shares of any other
class or classes or of any other series of the same or any other class or
classes of stock of the Corporation (or any other securities of the Corporation
or any other person) at such price or prices or at such rates
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of exchange and with such adjustments, if any; (f) may be entitled to the
benefit of a sinking fund to be applied to the purchase or redemption of shares
of such series in such amount or amounts, if any; (g) may be entitled to the
benefit of conditions and restrictions upon the creation of indebtedness of the
Corporation or any subsidiary, upon the issue of any additional shares
(including additional shares of such series or of any other series) and upon the
payment of dividends or the making of other distributions on, and the purchase,
redemption or other acquisition by the Corporation or any subsidiary of, any
outstanding shares of the Corporation, if any; and (h) may have such other
relative, participating, optional or other special rights, qualifications,
limitations or restrictions thereof, if any; all as shall be stated in said
resolution or resolutions of the Board providing for the designation and issue
of such shares of Preferred Stock. Any of the voting powers, designations,
preferences, rights and any qualifications, limitations or restrictions of any
such series of Preferred Stock may be made dependent upon facts ascertainable
outside of the resolution or resolutions providing for the issue of such
Preferred Stock adopted by the Board pursuant to the authority vested in it by
this Section 4.1.1, provided that the manner in which such facts shall operate
upon the voting powers, designations, preferences, rights and qualifications,
limitations or restrictions of such series of Preferred Stock is clearly and
expressly set forth in the resolution or resolutions providing for the issue of
such Preferred Stock. The term "facts" as used in the preceding sentence shall
have the meaning set forth in Section 151(a) of the General Corporation Law.
4.1.2 Except as otherwise provided by law or by
this Certificate of Incorporation and subject to the express terms of any series
of shares of
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Preferred Stock, the holders of outstanding shares of Common Stock shall
exclusively possess voting power for the election of Directors and for all other
purposes, each holder of record of shares of Common Stock being entitled to one
vote for each share of Common Stock standing in his or her name on the books of
the Corporation. Except as otherwise provided by law or by this Certificate of
Incorporation and subject to the express terms of any series of shares of
Preferred Stock, the holders of shares of Common Stock shall be entitled, to the
exclusion of the holders of shares of Preferred Stock of any and all series, to
receive such dividends as from time to time may be declared by the Board. In the
event of any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, subject to the rights, if any, of the holders of any
outstanding series of Preferred Stock, the holders of shares of Common Stock
shall be entitled to share ratably according to the number of shares of Common
Stock held by them in all remaining assets of the Corporation available for
distribution to its stockholders.
4.1.3 Subject to the provisions of this
Certificate of Incorporation and the express terms of any series of Preferred
Stock and except as otherwise provided by law, the stock of the Corporation,
regardless of class, may be issued for such consideration and for such corporate
purposes as the Board may from time to time determine.
5. Election of Directors. Unless and except to the extent that
the By-laws of the Corporation (the "By-laws") shall so require, the election of
the directors of the Corporation need not be by written ballot.
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6. Limitation of Liability. No Director of the Corporation shall
be personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, provided that this provision shall
not eliminate or limit the liability of a Director (a) for any breach of the
Director's duty of loyalty to the Corporation or its stockholders, (b) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under section 174 of the General Corporation Law
or (d) for any transaction from which the Director derived any improper personal
benefits. If the General Corporation Law is hereafter amended 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, as so amended.
Any repeal or modification of the foregoing provision shall not
adversely affect any right or protection of a Director of the Corporation
existing at the time of such repeal or modification.
7. Indemnification.
7.1 To the extent not prohibited by applicable law, the
Corporation shall indemnify any person (a "Covered Person") who is or was made,
or threatened to be made, a party to any threatened, pending or completed
action, suit or proceeding (a "Proceeding"), whether civil, criminal,
administrative or investigative, including, without limitation, an action by or
in the right of the Corporation to procure a judgment in its favor, by reason of
the fact that such person, or a person of whom such person is the legal
representative, is or was a Director or officer of the Corporation, or, while a
Director or officer of the Corporation, is or was serving at the request of the
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Corporation as a director or officer of any other corporation or in a capacity
with comparable authority or responsibilities for any partnership, joint
venture, trust, employee benefit plan or other enterprise (an "Other Entity"),
against expenses (including attorneys' fees) in the event of an action by or in
the right of the Corporation and against judgments, fines, and amounts paid in
settlement and expenses (including attorneys' fees), in the event of any other
proceeding, if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal proceeding, had no reason to
believe the person's conduct was unlawful; and except that no indemnification
shall be made, in the event of an action by or in the right of the Corporation,
if prohibited by the General Corporation Law. Persons who are not Directors or
officers of the Corporation (or otherwise entitled to indemnification pursuant
to the preceding sentence) may be similarly indemnified in respect of service to
the Corporation or to an Other Entity at the request of the Corporation to the
extent the Board at any time specifies that such persons are entitled to the
benefits of this Section 7.
7.2 The Corporation shall, from time to time, reimburse
or advance to any Covered Person the funds necessary for payment of expenses,
including attorneys' fees and disbursements, incurred in connection with any
Proceeding, in advance of the final disposition of such Proceeding; provided,
however, that, if required by the General Corporation Law, such payment of
expenses in advance of the final disposition of a Proceeding shall be made only
upon receipt by the Corporation of an undertaking, by the Covered Person, to
repay any such amount so advanced if it shall
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ultimately be determined that such Covered Person is not entitled to be
indemnified for such expenses.
7.3 The rights to indemnification or advancement of
expenses provided by, or granted pursuant to, this Section 7 shall not be deemed
exclusive of any other rights to which a person seeking indemnification or
reimbursement or advancement of expenses may have or hereafter be entitled under
applicable law, this Certificate of Incorporation, the By-laws, any agreement,
any vote of stockholders or disinterested Directors or otherwise.
7.4 The rights to indemnification or advancement of
expenses provided by, or granted pursuant to, this Section 7 shall continue as
to a person who has ceased to be a Director or officer and shall inure to the
benefit of the executors, administrators, legatees and distributees of such
person.
7.5 The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a Director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of an Other Entity,
against any liability asserted against such person and 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
liability under the provisions of this Section 7, the By-laws or under Section
145 of the General Corporation Law or any other provision of law.
7.6 Any repeal or modification of the provisions of this
Section 7 shall not adversely affect any right or protection hereunder of any
Covered
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Person in respect of any act or omission occurring prior to the time of such
repeal or modification.
7.7 The rights to indemnification or advancement of
expenses provided by, or granted pursuant to, this Section 7 shall be
enforceable by any Covered Person in the Court of Chancery of the State of
Delaware. The burden of proving that such indemnification or advancement of
expenses is not appropriate shall be on the Corporation. Neither the failure of
the Corporation (including its Board, its independent legal counsel and its
stockholders) to have made a determination prior to the commencement of such
action that such indemnification or reimbursement or advancement of expenses is
proper in the circumstances nor an actual determination by the Corporation
(including its Board, its independent legal counsel and its stockholders) that
such person is not entitled to such indemnification or reimbursement or
advancement of expenses shall constitute a defense to the action or create a
presumption that such person is not so entitled. Such a person shall also be
indemnified for any expenses incurred in connection with successfully
establishing his or her right to such indemnification or advancement of
expenses, in whole or in part, in any such proceeding.
7.8 The Corporation's obligation, if any, to indemnify or
to advance expenses to any Covered Person who was or is serving at the
Corporation's request as a director, officer, employee or agent of any Other
Entity shall be reduced by any amount such Covered Person may collect as
indemnification or advancement of expenses from such Other Entity.
7.9 This Section 7 shall not limit the right of the
Corporation, to the extent and in the manner permitted by applicable law, to
indemnify and advance
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expenses to persons other than Covered Persons when and as authorized by
appropriate corporate action.
8. Section 203. The Corporation hereby expressly elects not to be
governed by the provisions of Section 203 of the General Corporation Law (or any
successor provision thereof), and the restrictions and limitations set forth
therein.
9. Adoption, Amendment and/or Repeal of By-Laws. The Board may
from time to time adopt, amend or repeal the By-laws; provided, however, that
any By-laws adopted or amended by the Board may be amended or repealed, and any
By-laws may be adopted, by the stockholders of the Corporation by vote of the
holders of stock of the Corporation entitled to vote in the election of
Directors of the Corporation and representing a majority of the voting power.
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IN WITNESS WHEREOF, the undersigned has executed this Restated
Certification of Incorporation this 17th day of October, 2001.
AMN HEALTHCARE SERVICES, INC.
By: /s/ Steven C. Francis
-----------------------------------
Name: Steven C. Francis
Title: President and Chief
Executive Officer