Exhibit 3.02
CERTIFICATE OF AMENDMENT
OF
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
VISTACARE, INC.
It is hereby certified that:
The name of the Corporation (the "Corporation") is VistaCare, Inc.
The Corporation filed its original Certificate of Incorporation with the
Secretary of State of Delaware on May 28, 1998. The Corporation's original
Certificate of Incorporation was amended and restated by a First Amended and
Restated Certificate of Incorporation filed with the Secretary of State of
Delaware on July 17, 1998. The Corporation's Certificate of Incorporation was
further amended and restated by a Second Amended and Restated Certificate of
Incorporation filed with the Secretary of State of Delaware on December 30,
1998. The Corporation's Certificate of Incorporation was further amended and
restated by a Third Amended and Restated Certificate of Incorporation filed with
the Secretary of State of Delaware on December 27, 1999 (the "Certificate of
Incorporation").
In accordance with Section 242 of the General Corporation Law of the State
of Delaware (the "Delaware Law"), (i) a resolution was duly adopted by the Board
of Directors of the Corporation setting forth and proposing an amendment to the
Certificate of Incorporation, and (ii) the stockholders of the Corporation duly
approved such proposed amendment by written consent in accordance with Section
228 of the Delaware Law.
The Certificate of Incorporation is hereby amended by:
(a) deleting the first paragraph of Article FOURTH and inserting in lieu
thereof the following:
"Prior to the filing of this Certificate of Amendment, the total
number of shares of all classes of stock which the Corporation had the
authority to issue was 41,300,000 shares, consisting of (i) 35,000,000
shares of Class A Common Stock, $.01 par value per share (the "Old Class
A Common Stock"), (ii) 1,000,000 shares of Class B Common Stock, $.01 par
value per share (the "Old Class B Common Stock"), (iii) 3,300,000 shares
of Class C Common Stock, $.01 par value per share (the "Old Class C
Common Stock," and together with the Old Class A Common Stock and the Old
Class B Common Stock, the "Old Common Stock") and (iv) 2,000,000 shares
of Preferred Stock, $.01 par value per share, 404,500 shares of which
were designated as Series A-1 Preferred Stock, $.01 par value per share,
29,500 shares of which were designated as Series A-2 Preferred Stock,
$.01 par value per share, 485,000 shares of which were designated as
Series B
Convertible Preferred Stock, $.01 par value per share, 402,500 shares of
which were designated as Series C Convertible Preferred Stock, $.01 par
value per share, and 65,000 shares of which were designated as Series D
Convertible Preferred Stock, $.01 par value per share.
Effective immediately upon the filing of this Certificate of
Amendment, each two and one half (2.5) issued and outstanding shares, and
each two and one half (2.5) authorized but unissued shares, of Old Common
Stock shall be combined into one (1) share of the same class of Old
Common Stock, and the par value of such shares, as so combined, shall be
reduced by a multiple of two and one half (2.5), so that the resulting
par value per share of each class of Old Common Stock shall be $.01 (such
actions being hereinafter referred to as the "Reverse Stock Split"),
provided, however, that no fractional shares are to be issued as a result
of the Reverse Stock Split, and each stockholder of the Corporation who
would otherwise be entitled to receive fractional shares as a result of
the Reverse Stock Split shall receive cash for such fractional shares in
an amount based upon the fair market value of the Common Stock, as
determined in good faith by the Board of Directors of the Corporation.
Immediately following the Reverse Stock Split, and subject to the
tender to the Corporation of each certificate (or an affidavit attesting
to the loss, theft or destruction thereof, in form and substance
satisfactory to the Corporation) representing a holder's shares of Old
Common Stock, a holder of shares of Old Common Stock shall be entitled to
a new certificate or certificates (each a "Substitute Certificate")
representing an appropriate number of shares so as to give effect to the
Reverse Stock Split. Until such time as the certificates representing
shares of Old Common Stock (or appropriate affidavits) have been tendered
to the Corporation as provided in this paragraph, such certificates shall
represent only the right to receive a Substitute Certificate in
accordance with the terms hereof.
Immediately after giving effect to Reverse Stock Split, the total
number of shares of all classes of stock which the Corporation shall have
the authority to issue shall be 17,720,000 shares, consisting of (i)
14,000,000 shares of Class A Common Stock, $.01 par value per share
("Class A Common Stock"), (ii) 400,000 shares of Class B Common Stock,
$.01 par value per share ("Class B Common Stock"), (iii) 1,320,000 shares
of Class C Common Stock, $.01 par value per share ("Class C Common
Stock") and (iv) 2,000,000 shares of Preferred Stock, $.01 par value per
share ("Preferred Stock"), 404,500 shares of which are designated as
Series A-1 Preferred Stock, $.01 par value per share (the "Series A-1
Preferred Stock"), 29,500 shares of which are designated as Series A-2
Preferred Stock, $.01 par value per share (the "Series A-2 Preferred
Stock" and together with the Series A-1 Preferred Stock, the "Series A
Preferred Stock"), 485,000 shares of which are designated as Series B
Convertible Preferred Stock, $.01 par value per share (the "Series B
Preferred Stock"), 402,500 shares of which are designated as Series C
Convertible Preferred Stock, $.01 par value per share (the "Series C
Preferred Stock"), and 65,000 shares of which are designated as Series D
Convertible Preferred Stock, $.01 par value per share (the "Series D
Preferred Stock"). The term "Common Stock" as used herein without
reference to the Class A Common
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Stock, the Class B Common Stock or the Class C Common Stock shall mean
all of the Class A Common Stock, the Class B Common Stock and the Class C
Common Stock. The term "Preferred Stock" as used herein without reference
to the Series A Preferred Stock, the Series B Preferred Stock, the Series
C Preferred Stock or the Series D Preferred Stock shall mean all of the
Series A Preferred Stock, the Series B Preferred Stock, the Series C
Preferred Stock and the Series D Preferred Stock. The term "Convertible
Preferred Stock" shall mean all of the Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock."
(b) deleting Section A.6. of Article FOURTH and inserting in lieu thereof
the following:
"6. Conversion of Class C Common Stock Upon Qualified Initial
Public Offering. Upon the closing of a Qualified Initial Public Offering
(as defined in Section B.5.(a) below) each share of Class B Common Stock
may, at the option of the holder thereof, be converted into one fully
paid and nonassessable share of Class A Common Stock, each share of Class
C Common Stock shall automatically and without any further action on the
part of any holder thereof be converted into one fully paid and
nonassessable share of Class A Common Stock, and all references herein to
such Class C Common Stock shall be deleted and shall be of no further
force and effect."
(c) deleting Section B.5.(a) of Article FOURTH and inserting in lieu
thereof the following:
"(a) Upon the request of the holders of Convertible Preferred Stock
convertible into at least two-thirds of the total number of shares of
Class A Common Stock issuable upon conversion of all then outstanding
Convertible Preferred Stock or upon the closing of a public offering of
Common Stock managed by a nationally recognized investment banking firm
pursuant to a registration statement filed with and declared effective by
the Commission with a per share price of at least $10.00 (after giving
effect to the Reverse Stock Split) and which would result in gross
proceeds to the Corporation and/or selling stockholders of at least
$25,000,000 (a "Qualified Initial Public Offering") (the date upon which
the earlier of such events occurs being herein referred to as the
"Mandatory Conversion Date"), (i) all outstanding shares of Convertible
Preferred Stock shall automatically be converted into shares of Class A
Common Stock, at the then effective conversion rate and (ii) the number
of authorized shares of each series of Convertible Preferred Stock shall
be automatically reduced by the number of shares of such series of
Convertible Preferred Stock that had been designated as such series of
Convertible Preferred Stock and all references to such series of
Convertible Preferred Stock shall be deleted and shall be of no further
force and effect. Notwithstanding the foregoing, there shall be no
automatic mandatory conversion of the Convertible Preferred Stock upon
the closing of a Qualified Initial Public Offering if immediately
thereafter any shares of Series A Preferred Stock remain outstanding."
[Signature page follows]
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IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Amendment to be signed by its President
and Chief Executive Officer this _____ day of _________ 2002.
VISTACARE, INC.
By:_______________________________
Richard R. Slager
President and Chief Executive Officer
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