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EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
(WITH AMENDMENTS)
OF KINETIC CONCEPTS, INC.
ARTICLE ONE
Kinetic Concepts, Inc., pursuant to the provisions of Article 4.07 of
the Texas Business Corporation Act ("TBCA"), hereby adopts restated articles of
incorporation that accurately copy the articles of incorporation and all
amendments thereto that are in effect to date and as further amended by such
restated articles of incorporation as hereinafter set forth and that contain no
other change in any provisions thereof.
ARTICLE TWO
The articles of incorporation of the corporation are amended by the
restated articles of incorporation as follows:
Article Three of the Articles of Incorporation is amended by the
restated articles of incorporation of the corporation to read as follows:
"ARTICLE THREE
The purpose for which the Corporation is organized is to transact any
or all lawful business for which corporations may be organized under the Texas
Business Corporation Act; provided, however, that the corporation shall not
transact any business in this state that is prohibited by Article 2.01-B of the
Texas Business Corporation Act."
Article Four of the Articles of Incorporation is amended by the
restated articles of incorporation of the corporation to read as follows:
"ARTICLE FOUR
The total number of shares of all classes of stock that the
Corporation is authorized to issue is one hundred fifty million (150,000,000)
shares, all of which shall be shares of Common Stock, par value $.001 per
share."
Article Six has been redesignated Article Ten and amended by the
restated articles of incorporation of the corporation to read as follows:
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"ARTICLE TEN
The street address of the registered office of the Corporation is 8023
Vantage Drive, San Antonio, Texas 78230, and the name of the registered agent
of the Corporation at such address is Dennis E. Noll."
Article Seven has been redesignated as paragraph (2) of Article Eight
and amended by the restated articles of incorporation of the corporation to
read as follows:
"(2) To the extent permitted by the Texas Business Corporation Act
as it now exists and as it may hereafter be amended, a Director of the
Corporation shall not be personally liable to the Corporation or its
shareholders for monetary damages for an act or omission in the Director's
capacity as a director, except for liability for (a) a breach of the Director's
duty of loyalty to the Corporation or its shareholders, (b) an act or omission
not in good faith that constitutes a breach of duty of the Director to the
Corporation or an act or omission that involves intentional misconduct or a
knowing violation of the law, (c) a transaction from which the Director
received an improper benefit, whether or not the benefit resulted from an
action taken within the scope of the Director's office, or (d) an act or
omission for which the liability for the Director is expressly provided for by
statute."
Article Eight has been redesignated Article Nine and amended by the
restated articles of incorporation of the corporation to read as follows:
"ARTICLE NINE
The current board of directors of the Corporation at the time of
filing of these Amended and Restated Articles of Incorporation consists of six
(6) directors. The names and address of the persons who are acting at the time
of filing of these Amended and Restated Articles of Incorporation in the
capacity of directors until the selection of their successors are:
NAME ADDRESS
James R. Leininger, M.D. 8023 Vantage Drive
San Antonio, Texas 78230
Raymond R. Hannigan 8023 Vantage Drive
San Antonio, Texas 78230
Robert Jaunich II 50 Fremont Street
Suite 3700
San Francisco, California 94105
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James T. Farrell 50 Fremont Street
Suite 3700
San Francisco, California 94105
N. Colin Lind 909 Montgomery Street
Suite 400
San Francisco, California 94133
Jeffrey W. Ubben 909 Montgomery Street
Suite 400
San Francisco, California 94133
Article Nine has been redesignated Article Six and amended by the
restated articles of incorporation of the corporation to read as follows:
"ARTICLE SIX
No shareholder or other holder of securities of the Corporation shall
have any preemptive right to acquire additional, unissued or treasury shares of
the Corporation, or securities of the Corporation convertible into or carrying
a right to subscribe to or acquire shares, except as provided by any agreement
between the Corporation and its shareholders."
Articles Ten and Eleven have been deleted in their entirety by the
amendments effected by the restated articles of incorporation of the
corporation .
The Articles of Incorporation are further amended by the restated
articles of incorporation of the corporation by adding new Article Seven and
paragraph (1) to Article Eight to read as follows:
"ARTICLE SEVEN
(1) With respect to any matter for which, but for this provision,
the affirmative vote of the holders of two-thirds of the shares entitled to
vote is required by the Act, the act of the shareholders on that matter shall
be the affirmative vote of a majority of the shares entitled to vote on that
matter rather than the affirmative vote otherwise required by the Act. With
respect to any matter for which, but for this provision, the affirmative vote
of the holders of two-thirds of the shares of any class or series is required
by the Act, the act of the shareholders on that matter shall be the affirmative
vote of a majority of the shares of that class or series rather than the
affirmative vote of the holders of shares of that class or series otherwise
required by the Act.
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(2) Any action required by the Texas Business Corporation Act to
be taken at any annual or special meeting of shareholders, or any action which
may be taken at any annual or special meeting of shareholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent or
consents in writing, setting forth the action so taken shall be signed by the
holder or holders of all shares entitled to vote on the action were present and
voted.
ARTICLE EIGHT
(1) Elections of directors of the Corporation need not be by
written ballot, except and to the extent provided in the By-laws of the
Corporation."
The Articles of Incorporation are further amended by the restated
articles of incorporation of the corporation by adding new Articles Eleven and
Twelve to read as follows:
"ARTICLE ELEVEN
(1) The Corporation reserves the right to amend, alter, change or
repeal any provision of these Articles of Incorporation, in the manner now or
hereafter prescribed by law, and all rights conferred on shareholders in these
Articles of Incorporation are subject to this reservation.
(2) The By-laws of the Corporation may be amended, repealed or
adopted by the affirmative vote of the holders of a majority of shares then
entitled to vote on such action. The Board of Directors shall not have the
power to amend, repeal or adopt any By-law of the Corporation.
ARTICLE TWELVE
The Corporation shall indemnify its directors to the fullest extent
provided by the Texas Business Corporation act, as amended."
ARTICLE THREE
Each such amendment made by the restated articles of incorporation has
been effected in conformity with the provisions of the Texas Business
Corporation Act and such restated articles of incorporation and each such
amendment made by the restated articles of incorporation were duly adopted by
the shareholders of the corporation on the 5th day of January 1998.
ARTICLE FOUR
The number of shares outstanding was 19,431,254, and the number of
shares entitled to vote on the restated articles of incorporation as so amended
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was 19,431,254. All of the shareholders have signed a written consent to the
adoption of such restated articles of incorporation as so amended pursuant to
Article 9.10(A) of the TBCA and any written notice required by Article 9.10(A)
of the TBCA has been given.
ARTICLE FIVE
The articles of incorporation and all amendments and supplements
thereto are hereby superseded by the following restated articles of
incorporation which accurately copy the entire text thereof and as amended as
above set forth:
"AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
KINETIC CONCEPTS, INC.
ARTICLE ONE
The name of the corporation (which is hereinafter called the
"Corporation") is Kinetic Concepts, Inc.
ARTICLE TWO
The period of duration of the Corporation is perpetual.
ARTICLE THREE
The purpose for which the Corporation is organized is to transact any
or all lawful business for which corporations may be organized under the Texas
Business Corporation Act; provided, however, that the corporation shall not
transact any business in this state that is prohibited by Article 2.01-B of the
Texas Business Corporation Act.
ARTICLE FOUR
The total number of shares of all classes of stock that the
Corporation is authorized to issue is one hundred fifty million (150,000,000)
shares, all of which shall be shares of Common Stock, par value $.001 per
share."
ARTICLE FIVE
The Corporation will not commence business until it has received for
the issuance of its shares consideration of the value of at least One Thousand
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Dollars ($1,000.00), consisting of money, labor done or property actually
received.
ARTICLE SIX
No shareholder or other holder of securities of the Corporation shall
have any preemptive right to acquire additional, unissued or treasury shares of
the Corporation, or securities of the Corporation convertible into or carrying
a right to subscribe to or acquire shares, except as provided by any agreement
between the Corporation and its shareholders.
ARTICLE SEVEN
(1) With respect to any matter for which, but for this provision,
the affirmative vote of the holders of two-thirds of the shares entitled to
vote is required by the Act, the act of the shareholders on that matter shall
be the affirmative vote of a majority of the shares entitled to vote on that
matter rather than the affirmative vote otherwise required by the Act. With
respect to any matter for which, but for this provision, the affirmative vote
of the holders of two-thirds of the shares of any class or series is required
by the Act, the act of the shareholders on that matter shall be the affirmative
vote of a majority of the shares of that class or series rather than the
affirmative vote of the holders of shares of that class or series otherwise
required by the Act.
(2) Any action required by the Texas Business Corporation Act to
be taken at any annual or special meeting of shareholders, or any action which
may be taken at any annual or special meeting of shareholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent or
consents in writing, setting forth the action so taken shall be signed by the
holder or holders of shares having not less than the minimum number of votes
that would be necessary to take such action at a meeting at which the holders
of all shares entitled to vote on the action were present and voted.
ARTICLE EIGHT
(1) Elections of directors of the Corporation need not be by
written ballot, except and to the extent provided in the By-laws of the
Corporation.
(2) To the extent permitted by the Texas Business Corporation Act
as it now exists and as it may hereafter be amended, a Director of the
Corporation shall not be personally liable to the Corporation or its
shareholders for monetary damages for an act or omission in the Director's
capacity as a director, except for liability for (a) a breach of the Director's
duty of loyalty to the Corporation or its shareholders, (b) an act or omission
not in good faith that constitutes a breach of duty of the Director to the
Corporation or an act or omission that
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involves intentional misconduct or a knowing violation of the law, (c) a
transaction from which the Director received an improper benefit, whether or
not the benefit resulted from an action taken within the scope of the
Director's office, or (d) an act or omission for which the liability for the
Director is expressly provided for by statute.
Any repeal or modification of all or part of this article Eight by the
shareholders 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 NINE
The current board of directors of the Corporation at the time of
filing of these Amended and Restated Articles of Incorporation consists of six
(6) directors. The names and address of the persons who are acting at the time
of filing of these Amended and Restated Articles of Incorporation in the
capacity of directors until the selection of their successors are:
NAME ADDRESS
James R. Leininger, M.D. 8023 Vantage Drive
San Antonio, Texas 78230
Raymond R. Hannigan 8023 Vantage Drive
San Antonio, Texas 78230
Robert Jaunich II 50 Fremont Street
Suite 3700
San Francisco, California 94105
James T. Farrell 50 Fremont Street
Suite 3700
San Francisco, California 94105
N. Colin Lind 909 Montgomery Street
Suite 400
San Francisco, California 94133
Jeffrey W. Ubben 909 Montgomery Street
Suite 400
San Francisco, California 94133
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ARTICLE TEN
The street address of the registered office of the Corporation is 8023 Vantage
Drive, San Antonio, Texas 78230, and the name of the registered agent of the
Corporation at such address is Dennis E. Noll."
ARTICLE ELEVEN
(1) The Corporation reserves the right to amend, alter, change or
repeal any provision of these Articles of Incorporation, in the manner now or
hereafter prescribed by law, and all rights conferred on shareholders in these
Articles of Incorporation are subject to this reservation.
(2) The By-laws of the Corporation may be amended, repealed or
adopted by the affirmative vote of the holders of a majority of shares then
entitled to vote on such action. The Board of Directors shall not have the
power to amend, repeal or adopt any By-law of the Corporation.
ARTICLE TWELVE
The Corporation shall indemnify its directors to the fullest extent
provided by the Texas Business Corporation act, as amended.
/s/ DENNIS E. NOLL
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Name: Dennis E. Noll
Title: Senior Vice President
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