Exhibit 3.1
ARTICLES OF INCORPORATION
OF MEDAIRE, INC.
1. The name of the Corporation is MEDAIRE, INC.
2. Its principal office in the State of Nevada is located at 6100 Neil Road,
Suite 500, Reno, Washoe County, Nevada 89511. The name and address of the its
resident agent is the Corporation Trust Company of Nevada, 6100 Neil Road, Suite
500, Reno, Nevada 89511.
3. The purpose for which the Corporation is organized is the transaction of any
and all lawful activities for which corporations may be incorporated under the
laws of the State of Nevada, as the same may be amended from time to time.
4. The total authorized capital stock of the Corporation is One Hundred Million
(100,000,000) shares of common stock, $0.001 par value per share ("Common
Stock"), and Ten (10,000,000) shares of preferred stock, $0.001 par value per
share ("Preferred Stock"). Such shares may be issued by the Corporation from
time to time for such consideration as may by the Board of Directors.
As to the Preferred Stock of the Corporation, the power to issue any shares
of Preferred Stock of any class or any series of any class and designations,
voting powers, participating, optional or other rights, if any, or the
qualifications, limitations, or restrictions thereof shall be determined by the
Board of Directors.
5. The governing board of this Corporation shall be known as Directors, and the
number of Directors may from time to time be increased up to nine (9) or
decreased in such laws of the Corporation, The number of Directors that shall
comprise the initial Board of Directors of the Corporation shall be one (1).
The name and mailing address of the initial directors, each of whom is to
serve until their successor is elected and qualified, are:
Name Post Office Address
- ---- -------------------
Joan Sullivan Garrett 80 E. Rio Salado Parkway, Suite 610,
Tempe, AZ 85281
6. The capital stock of the Corporation shall have no pre-emptive rights except
as set forth in any Certificate of Designation fled with the Nevada Secretary of
State by the Corporation.
The capital stock, after the amount of the subscription price or par value
has been paid in, shall not be subject to assessment to pay the debts of the
Corporation.
7. The name and post office address of each of the incorporators signing the
Articles of Incorporation are as follows:
Name Post Office Address
- ---- -------------------
Joan Sullivan Garrett 80 E. Rio Salado Parkway, Suite 610,
Tempe, AZ 85281
8. The Corporation is to have perpetual existence.
9. The fiscal year of the Corporation shall initially end on December 31 and
begin on January 1 of each year; provided, however, that such date may be
changed from time to time as determined by the Board of Directors to be in the
best interest of the Corporation.
10. Meetings of stockholders may be held within or without the State of Nevada,
as the Bylaws may provide. The books of the Corporation may be kept (subject to
any provision contained in the Nevada statutes or the rules and regulations
promulgated thereunder) outside the State of Nevada at such place or places as
may be designated from time to time by the Board of Directors or in the Bylaws
of the Corporation.
11. To the fullest extent permitted by the laws of the State of Nevada, as the
same exist or may hereinafter be amended, no director or officer of the
Corporation shall be personally liable to the Corporation or its stakeholders
for monetary damages for breach of fiduciary duty as a director or officer;
provided, however, that nothing contained herein shall eliminate or limit the
liability of a director or officer of the Corporation to the extent provided by
applicable laws (i) for acts or omissions which involve intentional misconduct,
fraud or knowing violation of law or (ii) for authorizing the payment of
dividends in violation of Nevada Revised Statutes Section 78.300. The limitation
of liability provided herein shall continue after a director or officer has
ceased to occupy such position as to acts or omissions occurring during such
director's or officer's term or terms of office. No repeal, amendment or
modification of Section 78.300, whether direct or indirect, shall eliminate or
reduce its effect with respect to any act or omission of a director or officer
of the Corporation occurring prior to such repeal, amendment or
12. The Corporation shall indemnify, defend or hold harmless any person who
incurs expenses, claims, damages or liability by reason of the fact that he or
she is, or was, an officer or director of the Corporation, to the fullest extent
allowed pursuant to Nevada law.
13. Pursuant to Nevada Revised Statutes Section 78.378, the Corporation elects
not to be governed by the provisions of Nevada Revised Statutes Sections 78.378
to 78.3793, inclusive, as the same may be amended from time to time; and
further, pursuant to Nevada Revised Statutes Section 78.434, the Corporation
elects not to be governed by the provisions of Nevada Revised Statutes Sections
78.411 to 78.444, inclusive, as the same may be amended from time to time.
14. Any Business Combination (as hereinafter defined) with an Interested
Stockholder (as hereinafter defined) shall be subject to the following
requirements:
(a) In addition to any affirmative vote required by law or these Articles
of Incorporation or the Bylaws of the Corporation, and except as otherwise
expressly provided in paragraph (b) of this Article 15, a Business Combination
involving an Interested Stockholder or
any Affiliate or Associate (as hereinafter defined) of any Interested
Stockholder or any person who thereafter would be an Affiliate or Associate of
such Interested Stockholder shall require the affirmative vote of not less than
sixty-six and two-thirds percent (66 2/3%) of the votes entitled to be cast by
the holders of all the then outstanding shares of Voting Stock, voting together
as a single class, excluding Voting Stock beneficially owned by such Interested
Stockholder. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage or separate class vote
may be specified, by law or in any agreement with any national securities
exchange or otherwise.
(b) The provisions of paragraph (a) of this Article 15 shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by law or by
any other provision of these Articles of Incorporation or the Bylaws of the
Corporation, or any agreement with any national securities exchange, if all of
the conditions specified in either of the following Paragraphs 1 or 2 are met
or, in the case of a Business Combination not involving the payment of
consideration to the holders of the Corporation's outstanding Capital Stock (as
hereinafter defined), if the conditions specified in both Paragraphs 1 and 2 are
met:
1. The Business Combinations shall have been approved, either
specifically or as a transaction which is within an approved category of
transactions, by a majority (whether such approval is made prior to or
subsequent to the acquisition of or announcement of or public disclosure of the
intention to acquire, beneficial ownership of the Voting Stock that caused the
Interested Stockholder to become an Interested Stockholder) of the Continuing
Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
A. The aggregate amount of cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the Business
Combination of be received per share by holders of Common Stock in such Business
Combination shall be at least equal to the highest amount determined under
clauses (i) and (ii) below:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by
or on behalf of the Interested Stockholder for any share of Common Stock in
connection with the acquisition by the Interested Stockholder of beneficial
ownership of shares of Common Stock (x) within the two-year period immediately
prior to the first public announcement of the proposed Business Combination (the
"Announcement Date") or (y) in the transaction in which such person became an
Interested Stockholder (the "Determination Date"), whichever is higher, in
either case as adjusted for any subsequent stock split, stock dividend,
subdivision or reclassification with respect to Common Stock; and
(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is higher, as adjusted
for any stock split, stock dividend, subdivision or reclassification with
respect to Common Stock.
B. The aggregate amount of cash and the Fair Market Value, as of
the date of the consummation of the Business Combination, of consideration other
than cash to be received per share by holders of shares of any class or series
of outstanding Capital Stock, other than Common Stock, shall be at least equal
to the highest amount determined under clauses (i) and (ii) below:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by
or on behalf of share of such class or series of Capital Stock in connection
with the acquisition by the Interested Stockholder of beneficial ownership of
shares of such class n the two-year period immediately prior to the Announcement
Date or (y) in the transaction in which such person became an Interested
Stockholder, whichever for any subsequent stock split, stock dividend,
subdivision or reclassification with respect to such class or series of Capital
Stock; and
(ii) the Fair Market Value per share of such class or series
of Capital Stock on the Announcement Date or on the Determination Date,
whichever is higher, as adjusted for any subsequent stock split, stock dividend,
subdivision or reclassification with respect to such class or series of Capital
Stock.
The provisions of this Paragraph (b)(2)(B) shall be required to
be met with respect to every class or series of outstanding Capital Stock
whether or not the Interested Stockholder has previously acquired beneficial
ownership of any shares of a particular class or series of Capital Stock.
C. The consideration to be received by holders of a particular
class or series of outstanding Capital Stock shall be in cash or in the same
form as previously has been paid by or on behalf of the Interested Stockholder
in connection with the Interested Stockholder's direct or indirect acquisition
of beneficial ownership of shares of such class or r shares of any class or
series of Capital Stock. If the consideration so paid for shares of any class or
series of Capital Stock varied as to form, the form of consideration for such
class or series of Capital Stock shall be either cash or the form used to
acquire beneficial ownership of the largest number of shares of such class or
series of Capital Stock previously acquired by the Interested Stockholder.
D. After the Determination Date and prior to the consummation of
such Business Combination: (i) except as provided by a majority of the
Continuing Directors, there shall have been no failure to declare and pay at the
regular date therefore any dividends (whether or not cumulative) payable in
accordance with the terms of any outstanding Capital Stock; (ii) there shall
have been no reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any stock split, stock dividend or subdivision
of the Common Stock), except as approved by a majority of the Continuing
Directors; (iii) there shall have been an increase in the annual rate of
dividends paid on the Common Stock as necessary to reflect any reclassification
(including any reverse stock split), recapitalization, reorganization or any
similar transaction that has the effect of reducing the number of outstanding
shares of Common Stock, unless the failure so to increase such annual rate is
approved by a majority of the Continuing Directors; and (iv) such Interested
Stockholder shall
not have become the beneficial owner of any additional shares of Capital Stock
except as part of the transaction that results in such Interested Stockholder
becoming an Interested Stockholder and except in a transaction that, after
giving effect thereto, would not result in any increase in the Interested
Stockholder's percentage of beneficial ownership of any class or series of
Capital Stock.
E. After the Determination Date, such Interested Stockholder
shall not have received the benefit, directly or indirectly (except
proportionately as a stockholder of the Corporation), of any loans, advances,
guarantees, pledges or other financial assistance or any tax credits or other
tax advantages provided by the Corporation, whether in anticipation of in
connection with such Business Combination or otherwise
F. A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder (the
"Act") (or any subsequent provisions replacing such Act, rules or regulations)
shall be mailed to all stockholders of the Corporation at least thirty (30) days
prior to the consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed pursuant to such Act or
subsequent provisions). The proxy or information statement shall contain on the
first page thereof, in a prominent place, any statement as to the advisability
(or inadvisability) of the Business Combination that the Continuing Directors,
or any of them, may choose to make and, if deemed advisable by a majority of the
Continuing Directors, the opinion of an investment banking firm selected by a
majority of the Continuing Directors as to the fairness (or not) of the terms of
the Business Combination from a financial point of view to the holders of the
outstanding shares of Capita! Stock other than the Interested Stockholder and
its Affiliates or Associates, such investment banking firm to be paid a
reasonable fee for its services by the Corporation.
G. Such Interested Stockholder shall not have made any major
change in the Corporation's business or equity capital structure without the
approval of a majority of the Continuing Directors.
(c) For the purposes of this Article 15:
1. The term "Business Combination" shall mean:
A. any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested Stockholder or (ii)
any other corporation (whether or not itself an Interested Stockholder) which is
or after such merger or consolidation would be an Affiliate or Associate of an
Interested Stockholder; or
B. any sale, lease, exchange, mortgage, pledge, transfer or
other disposition or security arrangement, investment, loan, advance, guarantee,
agreement to purchase, agreement to pay, extension of credit, joint venture
participation or other arrangement (in one transaction or a series of
transactions) with or for the benefit of any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder involving any assets or
securities or commitments of the Corporation, any Subsidiary or any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder which,
together with all other such arrangements (including all contemplated future
events) has an aggregate Fair Market Value and/or involves aggregate commitments
of $10,000,000 or more or constitutes more than ten percent (10%) of the book
value of the total assets (in the case of transactions involving assets or
commitments other than Capital Stock) of the entity in question (the
"Substantial Part"), as reflected in the most recent fiscal year end
consolidated balance sheet of such entity existing at the time the stockholders
of the Corporation would be required to approve or authorize the Business
Combination involving the assets, securities, obligations and/or commitments
constituting any Substantial Part; or
C. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation or any amendment to these Articles of
Incorporation or the Bylaws proposed by or on behalf of an Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder; or
D. any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other transaction (whether or
not with or otherwise involving an Interested Stockholder) that has the effect,
directly or indirectly, of increasing the proportionate share of any class or
series of Capital Stock, or any securities convertible into Capital Stock or
into equity securities of any Subsidiary, that is beneficially owned by any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder; or
E. any agreement, contract or other arrangement providing for any
one or more of the actions specified in the foregoing clauses A to D.
2. The term "Capital Stock" shall mean all capital stock of the
Corporation authorized to be issued from time to time under Article 4 of these
Articles of Incorporation.
3. The term "person" shall mean any individual, firm, Corporation or
other entity and shall include any group comprised of any person and any other
person with whom such person or any Affiliate or Associate of such person has
any agreement, arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Capital Stock.
4. The term "Interested Stockholder" shall mean any person (other than
the Corporation or any Subsidiary and other than any profit-sharing, employee
stock ownership or other employee benefit plan of the Corporation or any
Subsidiary or any trustee of, or fiduciary with respect to, any such plan when
acting in such capacity) who (a) is or has announced or publicly disclosed a
plan or intention to become the beneficial owner of Voting Stock representing
ten percent (10%) or more of the votes entitled to be cast by the holders of all
the then outstanding shares of Voting Stock; or (b) is an Affiliate or Associate
of the Corporation and at any time within the two-year period immediately prior
to the date in question, was the
beneficial owner of Voting Stock representing ten percent (10%) or more of the
votes entitled to be cast by the hollers of all the then outstanding shares of
Voting Stock.
5. A person shall be a "beneficial owner" of any Capital Stock (a)
which such person or any of its Affiliates Or Associates beneficially owns,
directly or indirectly; (b) which such person or any of its Affiliates or
Associates has, directly or indirectly, (i) the right to acquire (whether such
right is exercisable immediately or subject only to the passage of time),
pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or understanding; or
(c) which is beneficially owned, directly or indirectly, by any other person
with which such person or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Capital Stock. For the purposes of determining
whether a person is an Interested Stockholder pursuant to Paragraph 4 of this
Subsection (c), the number of shares of Capital Stock deemed to be outstanding
shall include shares deemed beneficially owned by such person through
application of this Paragraph 5, but shall not include any other shares of
Capital Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
6. The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b2 under the Act as in effect on the
date that these Articles of Incorporation are accepted for fling by the Nevada
Secretary of State (the term "registrant" in said Section 12b-2 meaning in this
case, the Corporation).
7. The term "Subsidiary" means any company of which a majority of any
class of equity security is beneficially owned by the Corporation; provided
however, that for the purposes of the definition of Interested Stockholder set
forth in Paragraph 4 of this Subsection (c), the term "Subsidiary" shall mean
only a company of which a majority of wholly owned by the Corporation.
8. The term "Continuing Director" means (i) any member ofthe Board of
Directors on the date of the fling of these Articles of Incorporation with the
Nevada Secretary of State, and (ii) any member of the Board of Directors who
thereafter becomes a member of the Board of Directors while such person is a
member of the Board of Directors, who is not an Affiliate or Associate or
representative of the Interested Stockholder and was a member of the Board of
Directors prior to the time that the Interested Stockholder became an Interested
Stockholder, and (iii) a successor of a Continuing Director while such successor
is a member of the Board of Directors, who is not an Affiliate or Associate or
representative of the Interested Stockholder and is recommended or elected to
succeed the Continuing Director by a majority of Continuing Directors.
9. The term "Fair Market Value" means (a) in the case of cash, the
amount of such cash; (b) in the case of stock, the highest closing sale price
during the day period immediately preceding the date in question of a share of
such stock on the principal United States securities exchange registered under
the Act on which such stock is r, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of such
stock during the 30-day period immediately preceding the date in he Nasdaq
National Market or any similar system then in use, or if no such quotations are
available, the fair market value on the date in question of a share of such
stock as priority of the Continuing Directors in good faith; and (c) in the case
of property other than cash or stock, the fair market value of such property on
the date in question faith by a majority of the Continuing Directors.
10. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received," as used in
Subsection (b) of this Article 15, shall include the shares of Common Stock
and/or the shares of any other class or series of Capital Stock retained by the
holders of such shares.
11. The term "Voting Stock" means stock of any class or series
entitled to vote generally in the election of directors.
(d) A majority of the Continuing Directors shall have the power and duty to
determine for the purposes of this Article 15 on the basis of information known
to them after reasonable inquiry, (1) whether a person is an Interested
Stockholder, (2) the number of shares of Capital Stock or other securities
beneficially owned by any person, (3) whether a person is an Affiliate or
Associate, (4) whether the proposed action is with, or proposed by, or on behalf
of, an Interested Stockholder or an Affiliate or Associate of an Interested
Stockholder, (5) whether the assets that are the subject of any Business
Combination have, or the consideration to be received for the issuance or
transfer of securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $10,000,000 or more and (6)
whether the assets or securities that are the subject of any Business
Combination constitute a Substantial Part. Any such determination made in good
faith shall be binding and conclusive on all parties.
(e) Nothing contained in this Article 15 shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
(f) The fact that any Business Combination complies with the provisions of
Subsection (b) of this Article 15 shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board of Directors, or any member
thereof, to approve such Business Combination or recommend its adoption or
approval to the stockholders of the Corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of or actions and responses
taken with respect to such Business Combination.
(g) For the purposes of this Article 15, a Business Combination or any
proposal to amend, repeal or adopt any provision of these Articles of
Incorporation inconsistent with this Article 15 (collectively, the "Proposed
Action") is presumed to have been proposed by, or on behalf of, an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder or a
person who thereafter would become such if (1) after the Interested Stockholder
became such, the Proposed Action is proposed following the election of any
director of the Corporation who, with respect to such Interested Stockholder,
would not qualify to serve as a Continuing Director or (2) such interested
Stockholder, Affiliate, Associate or person votes for or consents to the
adoption of any such Proposed Action, unless as to such Interested Stockholder,
Affiliate, Associate or person, a majority of the Continuing Directors makes a
good faith determination that such Proposed Action is not proposed by or on
behalf of such Interested Stockholder, Affiliate, Associate or person, based on
information known to them after reasonable inquiry.
15. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in these Articles of Incorporation or in the Bylaws of
the Corporation, in the manner now or hereafter previously prescribed by
statute, and all rights conferred upon stockholders in are granted subject to
reservation; provided, however, that notwithstanding anything to the contrary in
these Articles of Incorporation, the affirmative vote of sixty-six and
two-thirds percent (66 2/3%) of the outstanding shares of stock of this
Corporation entitled to vote shall be required to amend, alter, change or
repeal, or adopt any provision inconsistent with, these Articles of
Incorporation.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a Corporation pursuant to the General Corporation Lave of the
State of Nevada, do make and file these Articles of Incorporation, hereby
declaring and certifying that the fact herein stated are true, and accordingly
have hereunto set our hands this 9th day of October, 2002.
/s/ Joan Sullivan Garrett
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Joan Sullivan Garrett
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On this 9th day of October, 2002, before me, a Notary Public, personally
appeared Joan Sullivan Garrett, who acknowledged that she executed the above
instrument.
/s/ Lee Patrick
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Notary Public
My Commission Expires: July 7, 2005
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