EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
CONFLUENCE ACQUISITION PARTNERS I, INC.
FIRST. The name of the corporation is:
"CONFLUENCE ACQUISITION PARTNERS I, INC."
SECOND. The address of its registered office in the State of Delaware is
2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, located in New
Castle County. The name of its registered agent at such address is Corporation
Service Company.
THIRD. The nature of the business or purposes to be conducted or promoted
by the corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
In addition to the powers and privileges conferred upon the corporation by
law and those incidental thereto, the corporation shall possess and may exercise
all the powers and privileges which are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the corporation.
FOURTH. The total number of shares of capital stock which the Corporation
shall have authority to issue is fifty five million shares, consisting of fifty
million (50,000,000) shares of common stock, par value $0.01 per share ("Common
Stock"), and five million (5,000,000) shares of preferred stock, par value $0.01
per share ("Preferred Stock").
FIFTH. The Board of Directors is hereby expressly authorized, by
resolution or resolutions from time to time adopted, to provide, out of the
unissued shares of Preferred Stock, for the issuance of the Preferred Stock in
one or more classes or series. Before any shares of any such class or series are
issued, the Board of Directors shall fix and state, and hereby is expressly
empowered to fix, by resolution or resolutions, the designations, preferences,
and relative, participating, optional or other special rights of the shares of
each such series, and the qualifications, limitations or restrictions thereon,
including, but not limited to, determination of any of the following:
(a) the designation of such class or series, the number of shares to
constitute such class or series and the stated value thereof if different
from the par value thereof;
(b) whether the shares of such class or series shall have voting
rights, in addition to any voting rights provided by law, and, if so, the
terms of such voting rights, which may be full, special or limited, and
whether the shares of such class or series shall be entitled to vote as a
separate class either alone or together with the shares of one or more
other classes or series of stock;
(c) the dividends, if any, payable on such class or series, whether
any such dividends shall be cumulative, and, if so, from what dates, the
conditions and dates upon which such dividends shall be payable, the
preference or relation that such dividends
shall bear to the dividends payable on any shares of stock of any other
class or any other series of the same class;
(d) whether the shares of such class or series shall be subject to
redemption by the Corporation at its option or at the option of the
holders of such shares or upon the happening of a specified event, and, if
so, the times, prices and other terms, conditions and manner of such
redemption;
(e) the preferences, if any, and the amount or amounts payable upon
shares of such series upon, and the rights of the holders of such class or
series in, the voluntary or involuntary liquidation, dissolution or
winding up, or upon any distribution of the assets, of the Corporation;
(f) whether the shares of such class or series shall be subject to
the operation of a retirement or sinking fund and, if so, the extent to
and manner in which any such retirement or sinking fund shall be applied
to the purchase or redemption of the shares of such class or series for
retirement or other corporate purposes and the terms and provisions
relative to the operation thereof;
(g) whether the shares of such class or series shall be convertible
into, or exchangeable for, at the option of either the holder or the
Corporation or upon the happening of a specified event, shares of stock of
any other class or any other series of the same class or any other class
or classes of securities or property and, if so, the price or prices or
the rate or rates of conversion or exchange and the method, if any, of
adjusting the same, and any other terms and conditions of conversion or
exchange;
(h) the limitations and restrictions, if any, to be effective while
any shares of such class or series are outstanding, upon the payment of
dividends or the making of other distributions on, and upon the purchase,
redemption or other acquisition by the Corporation of, the Common Stock or
shares of stock of any other class or any other series of the same class;
(i) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issue of any additional stock,
including additional shares of such series or of any other series of the
same class or of any other class; and
(j) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations and
restrictions thereof.
The powers, preferences and relative, participating, optional and other
special rights of each class or series of Preferred Stock, and the
qualifications, limitations and restrictions thereof, if any, may differ from
those of any and all other classes or series at any time outstanding. All shares
of any one series of Preferred Stock shall be identical in all respects with all
other shares of such series, except that shares of any one series issued at
different times may differ as to the dates from which dividends thereof shall be
cumulative. The Board of Directors may increase the number of shares of the
Preferred Stock designated for any existing class or series by a resolution
adding to such class or series authorized and unissued shares of the Preferred
Stock not designated for any other class or series. The Board of Directors may
decrease the number of
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shares of Preferred Stock designated for any existing class or series by a
resolution subtracting from such class or series unissued shares of the
Preferred Stock designated for such class or series, and the shares so
subtracted shall become authorized, unissued, and undesignated shares of the
Preferred Stock.
SIXTH. The following provisions (A) through (E) shall apply during the
period commencing upon the filing of this Certificate of Incorporation and
terminating upon the consummation of any "Business Combination," and may not be
amended prior to the consummation of any Business Combination. A "Business
Combination" shall mean the acquisition by the Corporation, whether by merger,
capital stock exchange, asset or stock acquisition or other similar type of
transaction, of a company ("Target Business") which is an operating business in
the healthcare industry.
A. Prior to the consummation of any Business Combination the Corporation
shall submit such Business Combination to its stockholders for approval
regardless of whether the Business Combination is of a type which normally would
require such stockholder approval under the GCL. In the event that the holders
of a majority of the outstanding Voting Stock vote for the approval of the
Business Combination, the Corporation shall be authorized to consummate the
Business Combination; provided that the Corporation shall not consummate any
Business Combination if 20% or more in interest of the holders of IPO Shares
(defined below) exercise their conversion rights described in paragraph B below.
B. Prior to the consummation of any Business Combination the Corporation
shall not designate or issue shares of the Preferred Stock without the prior
written consent of the managing underwriter of the IPO (as defined below).
C. Prior to the consummation of any Business Combination the Corporation
shall not designate or issue shares of the Preferred Stock without the prior
written consent of the managing underwriter of the IPO (as defined below).
D. In the event that a Business Combination is approved in accordance with
the above paragraph A and is consummated by the Corporation, any stockholder of
the Corporation holding shares of Common Stock issued to persons who are not
officers, directors or ten percent or greater stockholders of the Corporation or
the affiliates of any of them in the Corporation's initial public offering
("IPO") of securities (the "IPO Shares") who voted against the Business
Combination may, contemporaneous with such vote, demand that the Corporation
convert his IPO Shares into cash. If so demanded, the Corporation shall convert
such shares at a per share conversion price equal to the quotient determined by
dividing (i) the amount in the Trust Fund (as defined below) inclusive of any
interest thereon, as of the record date for determination of stockholders
entitled to vote on the Business Combination, by (ii) the total number of IPO
Shares held by the such holder. "Trust Fund" shall mean the trust account
established by the Corporation at the consummation of its IPO and into which a
certain amount of the net proceeds of the IPO are deposited.
E. In the event that the Corporation does not consummate a Business
Combination by the later of (i) 18 months after the consummation of the IPO or
(ii) 24 months after the consummation of the IPO in the event that either a
letter of intent, an agreement in principle or a
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definitive agreement to complete a Business Combination was executed but was not
consummated within such 18 month period (such later date being referred to as
the "Termination Date"), the officers of the Corporation shall take all such
action necessary to dissolve and liquidate the Corporation within sixty days of
the Termination Date. In the event that the Corporation is so dissolved and
liquidated, only the holders of IPO Shares shall be entitled to receive
liquidating distributions and the Corporation shall pay no liquidating
distributions with respect to any other shares of capital stock of the
Corporation.
F. A holder of IPO Shares shall be entitled to receive distributions from
the Trust Fund only in the event of a liquidation of the Corporation or in the
event he demands conversion of his shares in accordance with paragraph B, above.
In no other circumstances shall a holder of IPO Shares have any right or
interest of any kind in or to the Trust Fund.
G. The Board of Directors shall be divided into three classes: Class I,
Class II and Class III. The number of directors in each class shall be as nearly
equal as possible. The initial director, as Class III director, and his term
expiring at the Corporation's third Annual Meeting of Stockholders, shall elect
additional Class I, Class II and Class III directors. The directors in Class I
shall be elected for a term expiring at the first Annual Meeting of
Stockholders, the directors in Class II shall be elected for a term expiring at
the second Annual Meeting of Stockholders and the directors in Class III shall
be elected for a term expiring at the third Annual Meeting of Stockholders.
Commencing at the first Annual Meeting of Stockholders, and at each annual
meeting thereafter, directors elected to succeed those directors whose terms
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election. Except as the GCL may
otherwise require, in the interim between annual meetings of stockholders or
special meetings of stockholders called for the election of directors and/or the
removal of one or more directors and the filling of any vacancy in that
connection, newly created directorships and any vacancies in the Board of
Directors, including unfilled vacancies resulting from the removal of directors
for cause, may be filled by the vote of a majority of the remaining directors
then in office, although less than a quorum (as defined in the Corporation's
Bylaws), or by the sole remaining director. All directors shall hold office
until the expiration of their respective terms of office and until their
successors shall have been elected and qualified. A director elected to fill a
vacancy resulting from the death, resignation or removal of a director shall
serve for the remainder of the full term of the director whose death,
resignation or removal shall have created such vacancy and until his successor
shall have been elected and qualified.
SEVENTH. The name and mailing address of the incorporator is Jessica
Sauer, 1818 N Street, NW, Suite 400, Washington, DC 20036.
EIGHTH. The name and mailing address of the person who is to serve as the
initial Class III director of the Corporation pursuant to the terms set forth
herein is:
Robert W. May
2322 Picardy Place Drive
Chesterfield, MO 63017
Elections of directors need not be by ballot unless the bylaws of the
Corporation shall so provide.
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NINTH. The original bylaws of the Corporation shall be adopted in any
manner provided by law. Thereafter, the bylaws of the Corporation may from time
to time be altered, amended or repealed, or new bylaws may be adopted, by the
Board of Directors or by holders of the outstanding shares of stock of the
Corporation entitled to vote.
TENTH. The Corporation may agree to the terms and conditions upon which
any director, officer, employee or agent accepts his office or position and in
its bylaws, by contract or in any other manner may agree to indemnify and
protect any director, officer, employee or agent of the Corporation, or any
person who serves at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, to the extent permitted by the laws of the State of Delaware.
ELEVENTH. 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 General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended. Any repeal or
modification 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 or modification.
TWELFTH. The Corporation shall, to the fullest extent permitted by the
General Corporation Law of Delaware as the same exists or may hereafter be
amended, indemnify any and all persons who it shall have power to indemnify
under such law from and against any and all of the expenses, liabilities or
other matters referred to in or covered by such law, and, in addition, to the
extent permitted under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his director or
officer capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
THIRTEENTH. Except as set forth in Article Sixth hereof, 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 upon stockholders herein are granted subject
to this reservation.
The undersigned, for the purpose of forming a corporation under the
General Corporation Law of the State of Delaware, does hereby make this
certificate, and does hereby declare and certify that this is her act and deed
and the facts herein stated are true, and accordingly has executed this
certificate this 2nd day of February, 2005.
/s/ Jessica Sauer
--------------------------------
Jessica Sauer, Incorporator
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