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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION OF
MATRIA HEALTHCARE, INC.
Matria Healthcare, Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. This is the Restated Certificate of Incorporation of Matria
Healthcare, Inc., which was originally incorporated under the name
"Tokos/Healthdyne Acquisition Company, Inc." The original Certificate of
Incorporation of the corporation was filed with the Secretary of State of the
State of Delaware (the "Secretary of State") on October 4, 1995. A Certificate
of Amendment of Tokos/Healthdyne Acquisition Company, Inc. changing its name
from "Tokos/Healthdyne Acquisition Company, Inc." to "Matria Healthcare, Inc."
was filed with the Secretary of State on February 1, 1996. A Certificate of
Ownership and Merger merging Tokos Medical Corporation (Delaware), a Delaware
corporation, and Healthdyne, Inc., a Georgia corporation, with and into Matria
Healthcare, Inc. was filed with the Secretary of State on March 8, 1996.
2. This Restated Certificate of Incorporation was duly adopted by
the board of directors of the corporation without a vote of the stockholders in
accordance with the provisions of Section 245 of the General Corporation Law of
the State of Delaware and only restates and integrates and does not further
amend the provisions of the Certificate of Incorporation of this corporation as
heretofore amended or supplemented. There is no discrepancy between the
provisions of the Certificate of Incorporation of the corporation as heretofore
amended or supplemented and the provisions of this Restated Certificate of
Incorporation, which are as follows:
ARTICLE I.
The name of the Corporation is Matria Healthcare, Inc. (the
"Corporation").
ARTICLE II.
The name and address of the registered agent of the Corporation in the
State of Delaware are:
The Corporation Trust Company
1209 Orange Street
Wilmington, New Castle County, Delaware 19801
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ARTICLE III.
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 of the State of Delaware.
ARTICLE IV.
The Corporation shall have authority to issue 150,000,000 shares of
stock, consisting of 100,000,000 shares of Common Stock, par value $0.01 per
share, and 50,000,000 shares of Preferred Stock, par value $0.01 per share.
ARTICLE V.
The shares of Preferred Stock may be issued from time to time in one
or more series. The Board of Directors is authorized to fix by resolution the
designations, powers, preferences and relative, participating, optional or
other special rights (including voting rights, if any, and conversation rights,
if any), and qualifications, limitations or restrictions thereof, of any such
series of Preferred Stock, and the number of shares constituting any such
series, or all or any of them; and to increase or decrease the number of shares
of any series subsequent to the issue of shares of that series, but not below
the number of such shares then outstanding. Except as otherwise provided (i)
by law, (ii) by this Certificate of Incorporation as amended from time to time,
or (iii) by resolutions of the Board of Directors fixing the powers and
preferences of any class or series of shares as to which the Board of Directors
has been expressly vested with authority to fix the powers and preferences, (a)
the Common Stock shall possess the full voting power of the Corporation and (b)
the number of authorized shares of any class or classes of 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 stock
of the Corporation entitled to vote.
ARTICLE VI.
The business and affairs of the Corporation shall be managed and
controlled by a Board of Directors. The number of directors constituting the
Board of Directors shall be fixed, initially, by the Bylaws of the Corporation;
thereafter the number of directors shall be fixed or altered exclusively by
resolutions adopted by the Board of Directors. The directors shall be divided
into three classes as nearly equal in number as possible, designated Class I,
Class II and Class III. The initial term of office of Class I directors shall
expire at the 1996 annual meeting of stockholders; of Class II directors at the
1997 annual meeting of stockholders; and of Class III directors at the 1998
annual meeting of stockholders. At each annual meeting of stockholders,
successors to the class of directors whose terms of office expire in that year
shall be elected to hold office for a term of three years. Each director shall
hold office until his successor is
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elected and qualified or until his earlier resignation. No decrease in the
number of directors shall shorten the term of any incumbent director.
Elections of directors need not be by ballot unless the Bylaws so provide.
ARTICLE VII.
In furtherance and not in limitation of the powers conferred by law,
the Board of Directors is authorized to adopt, amend or repeal the Bylaws of
the Corporation, subject to the restrictions, if any, contained in the Bylaws
of the Corporation, and subject to the further restriction that, until three
years from March 8, 1996, Articles VI and VII of this Certificate and Sections
3.2, 3.14 and 3.15 of the Bylaws can only be amended by the affirmative vote of
the holders of at least 66-2/3% of the Common Stock of the Corporation.
ARTICLE VIII.
To the fullest extent permitted by the General Corporation Law of the
State of Delaware, as the same exists or may hereafter be amended, 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. The liability
of a director of the Corporation to the Corporation or its stockholders for
monetary damages shall be eliminated to the fullest extent permissible under
applicable law in the event it is determined that Delaware law does not apply.
The Corporation shall, to the fullest extent permitted by law, indemnify its
directors and officers against any liabilities, losses or related expenses
which they may incur by reason of serving or having served as directors or
officers of the Corporation, or serving or having served at the request of the
Corporation as directors, officers, trustees, partners, employees or agents of
any entity in which the Corporation has an interest. The Corporation is
authorized to provide by Bylaw, agreement or otherwise for indemnification of
directors, officers, employees and agents in excess of the indemnification
otherwise permitted by applicable law. Any repeal or modification of this
Article shall not result in any liability of a director, or any change or
reduction in the indemnification to which a director, officer, employee or
agent would otherwise be entitled, with respect to any action or omission
occurring prior to such repeal or modification.
ARTICLE IX.
Any action required or permitted to be the taken by holders of stock
of the Corporation must be taken at a meeting of such holders and may not be
taken by consent in writing, except (i) as permitted by resolutions of the
Board of Directors fixing the powers and preferences of any class or series of
shares as to which the Board of Directors has been expressly vested with
authority to fix the powers and preferences, or (ii) for the purposes of
approving, authorizing or adopting any action or proposal theretofore approved,
authorized or adopted by the Board of Directors.
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation has
been signed by J. Brent Burkey, its authorized officer this 29th day of March,
1996.
MATRIA HEALTHCARE, INC.
By: /s/ J. Brent Burkey
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J. Brent Burkey
Senior Vice President, General Counsel and
Secretary
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