EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VETERINARY CENTERS OF AMERICA, INC.
Veterinary Centers of America, Inc., a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as
follows:
1. The name of the Corporation is Veterinary Centers of America,
Inc. Veterinary Centers of America, Inc. was originally incorporated under
the same name, and the original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware
on May 4, 1987.
2. Pursuant to Sections 242 and 245 of the General Corporation Law
of the State of Delaware, this Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the
Certificate of Incorporation of this Corporation.
3. The text of the Certificate of Incorporation as heretofore
amended or supplemented is hereby restated and further amended to read in
its entirety as follows:
FIRST: The name of this Corporation is Veterinary Centers of
America, Inc.
SECOND: The address of the registered office of this Corporation in
the State of Delaware is 1209 Orange Street, City of Wilmington, County of
New Castle. The name of its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of this Corporation is to engage in any lawful
act or activity for which a corporation may now or hereafter be organized
under the General Corporation Law of the State of Delaware as set forth in
Title 8 to the Delaware Code (the "GCL").
FOURTH: The total number of shares which the Corporation shall have
authority to issue is 13,500,000 consisting of 12,500,000 shares of common
stock, par value $0.001 per share (the "Common Stock") and 1,000,000 shares
of preferred stock, par value $0.001 per share (the "Preferred Stock").
Shares of the Preferred Stock of the Corporation may be issued from
time to time in one or more classes or series, each of which class or
series shall have such distinctive designation or title as shall be fixed
by the Board of Directors of the Corporation (the "Board of Directors")
prior to the issuance of any shares thereof. Each such class or series of
Preferred Stock shall have such voting powers, full or limited, or no
voting powers, and such preferences and relative, participating, optional
or other special rights and such qualifications, limitations or
restrictions thereof, as shall be stated in such resolution or resolutions
providing for the issue of such class or series of Preferred Stock as may
be adopted from time to time by the Board of Directors prior to the
issuance of any shares thereof pursuant to the authority hereby expressly
vested in it, all in accordance with the laws of the State of Delaware.
FIFTH: All rights to vote and all voting power shall be vested in
the Common Stock and the holders thereof shall be entitled at all elections
of directors to one (1) vote per share. Special meetings of the
stockholders for any purpose or purposes may be called at any time only by
the Board of Directors, the Chairman of the Board or by the Chief Executive
Officer or President of the Corporation.
SIXTH: The directors of the Corporation shall be divided into three
classes, designated Class I, Class II and Class III. The term of the
initial Class I directors shall terminate on the date of the 1994 annual
meeting of stockholders; the term of the initial Class II directors shall
terminate on the date of the 1993 annual meeting of
stockholders and the term of the initial Class III directors shall terminate
on the date of the 1992 annual meeting of stockholders. At each annual meeting
of stockholders beginning in 1992, successors to the class of directors
whose term expires at that annual meeting shall be elected for a three-year
term. If the number of directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as reasonably possible, and any additional
directors of any class elected to fill a vacancy resulting from an increase
in such class shall hold office for a term that shall coincide with the
remaining term of that class, but in no case will a decrease in the number
of directors shorten the term of any incumbent directors. A director shall
hold office until the annual meeting for the year in which his term expires
and until his successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or
removal from office. Any vacancy on the Board of Directors, howsoever
resulting, shall be filled only by a majority of the directors then in
office, even if less than a quorum, or by a sole remaining director and not
by the stockholders. Any director elected to fill a vacancy shall hold
office for a term that shall coincide with the terms of the class to which
such director shall have been elected.
Subject to the rights, if any, of the holders of shares of Preferred
Stock then outstanding, any or all of the directors of the Corporation may
be removed from office at any time, for cause only, by the affirmative vote
of the holders of a majority of the outstanding shares of the Corporation
then entitled to vote generally in the election of directors, considered
for purposes of the Article SIXTH as one class.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have
the right, voting separately by class or series, to elect directors at an
annual or special meeting of stockholders, the election, term of office,
filling of vacancies and other features of such directorships shall be
governed by the terms of this Amended and Restated Certificate of
Incorporation or the resolution or resolutions adopted by the Board of
Directors pursuant to the second paragraph of Article FOURTH applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Article SIXTH unless expressly provided by such terms.
SEVENTH: Elections of directors at an annual or special meeting of
stockholders need not be by written ballot unless the Bylaws of the
Corporation shall otherwise provide.
Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken only upon the vote of the stockholders
at an annual or special meeting duly noticed and called, as provided in the
Bylaws of the Corporation, and may not be taken by written consent of the
stockholders pursuant to the GCL.
EIGHTH: The officers of the Corporation shall be chosen in such a
manner, shall hold their offices for such terms and shall carry out such
duties as are determined solely by the Board of Directors, subject to the
right of the Board of Directors to remove any officer or officers at any
time with or without cause.
NINTH: (A) The Corporation shall indemnify to the full extent
authorized or permitted by law (as now or hereafter in effect) any person
made, or threatened to be made, a defendant or witness to any action, suit
or proceeding (whether civil or criminal or otherwise) by reason of the
fact that he, his testator or intestate, is or was a director or officer of
the Corporation or by reason of the fact that such director or officer, at
the request of the Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or enterprise, in
any capacity. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers may be
entitled by law. No amendment or repeal of this Section A or Article NINTH
shall apply to or have any effect on any right to indemnification provided
hereunder with respect to any acts or omissions occurring prior to such
amendment or repeal.
(B) No director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for any
breach of fiduciary duty by such a director as a director. Notwithstanding
the foregoing sentence, a director shall be liable to the extent provided
by applicable law (i) for any breach of the Director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the GCL, or (iv) for any transaction
from which such director derived an improper personal benefit. No amendment
to or repeal of this Section B of Article NINTH shall apply to or have any
effect on the liability or alleged liability
of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
(C) In furtherance and not in limitation of the powers
conferred by statute:
(i) the Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether or
not the Corporation would have the power to indemnify against such
liability under the provisions of law; and
(ii) the Corporation may create a trust fund, grant a
security interest and/or use other means (including, without limitation,
letters of credit, surety bonds and/or other similar arrangements), as well
as enter into contracts providing indemnification to the full extent
authorized or permitted by law and including as part thereof provisions
with respect to any or all of the foregoing to ensure the payment of such
amounts as may become necessary to effect indemnification as provided
therein, or elsewhere.
TENTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to adopt,
repeal, alter, amend or rescind the Bylaws of the Corporation.
ELEVENTH: The Corporation reserves the right to repeal, alter, amend
or rescind any provision contained in this Amended and Restated Certificate
of Incorporation, in the manner now or hereafter prescribed by statute, and
all rights conferred on stockholders herein are granted subject to this
reservation.
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been signed this 22nd day of April, 1991.
/s/ Robert L. Antin
----------------------------------------
Robert L. Antin, Chief Executive Officer
ATTEST:
/s/ Arthur J. Antin
- --------------------------
Arthur J. Antin, Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Veterinary Centers of America, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Veterinary
Centers of America, Inc. (the "Corporation"), resolutions were duly adopted
setting forth a proposed amendment of the Amended and Restated Certificate
of Incorporation of Veterinary Centers of America, Inc., declaring such
amendment to be advisable and authorizing the submission of such amendment
to the stockholders of Veterinary Centers of America, Inc. for approval at
the 1995 Annual Meeting of Stockholders. The resolutions setting forth the
proposed amendment are as follows:
WHEREAS, the Board of Directors has determined that it is in the
best interests of the Corporation to have available additional
authorized shares for making acquisitions and other purposes;
NOW, THEREFORE, BE IT RESOLVED, that the number of authorized
shares of the Corporation's common stock be increased to 30
million shares; and
RESOLVED FURTHER, that Article Fourth of the Certificate of
Incorporation of the Corporation is hereby amended in its
entirety, effective at the close of business on May 9, 1995, to
read as follows:
"FOURTH: The total number of shares which the
Corporation shall have authority to issue is
31,000,000, consisting of 30,000,000 shares of common
stock, par value $0.001 per share (the "Common Stock")
and 1,000,000 shares of preferred stock, par value
$0.001 per share (the "Preferred Stock").
Shares of the Preferred Stock of the Corporation
may be issued from time to time in one or more classes
or series, each of which class or series shall have
such distinctive designation or title as shall be fixed
by the Board of Directors of the Corporation (the
"Board of Directors") prior to the issuance of any
shares thereof. Each such class or series of Preferred
Stock shall have such voting powers, full or limited,
or no voting powers, and such preferences and relative,
participating, optional or other special rights, and
such qualifications, limitations or restrictions
thereof, as shall be stated in such resolution or
resolutions providing for the issue of such class or
series of Preferred Stock as may be adopted from time
to time by the Board of Directors prior to the issuance
of any shares thereof pursuant to the authority hereby
expressly vested in it, all in accordance with the laws
of the State of Delaware."
RESOLVED FURTHER, that the officers and Directors of the
Corporation be, and each of them hereby is, authorized and
directed to present and recommend to the Corporation's
shareholders the approval of the increase in the number of
authorized shares of common stock to 30,000,000, and to file an
amendment to the Certificate of Incorporation for the Corporation
with the State of Delaware after approval by the Shareholders.
SECOND: That thereafter, pursuant to resolution of the Board of
Directors of the Corporation, the Annual Meeting of Stockholders of the
Corporation was duly called and held, upon notice in accordance with
Section 222 of the General Corporation Law of the State of Delaware at
which meeting the necessary number of shares as required by statute were
voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Veterinary Centers of America, Inc. has caused
this certificate to be signed by Robert L. Antin, its Chairman of the Board
and Chief Executive Officer, and Arthur J. Antin, its Chief Operating
Officer, Senior Vice President and Secretary, this 29th day of June, 1995.
BY: /s/ Robert L. Antin
__________________________
Robert L. Antin
Chairman of the Board and
Chief Executive Officer
ATTEST: /s/ Arthur J. Antin
_________________________
Arthur J. Antin
Chief Operating Officer,
Senior Vice President
and Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Veterinary Centers of America, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That by Unanimous Written Consent of the Board of
Directors of Veterinary Centers of America, Inc. (the "Corporation"),
resolutions were duly adopted setting forth a proposed amendment of the
Amended and Restated Certificate of Incorporation of Veterinary Centers of
America, Inc., (the "Certificate") declaring such amendment to be in the
best interest of the Corporation and its stockholders and authorizing the
submission of such amendment to the stockholders of the Corporation for
approval at the 1996 Annual Meeting of Stockholders. The resolutions
setting forth the proposed amendment are as follows:
"RESOLVED FURTHER, that the first sentence of Article Fourth
of the Certificate be, and it hereby is amended to read in full as
follows:
"FOURTH: The total number of shares which the Corporation
shall have authority to issue is 61,000,000, consisting of
60,000,000 shares of common stock, par value $0.001 per
share (the "Common Stock") and 1,000,000 shares of preferred
stock, par value $0.001 per share (the "Preferred Stock")."
RESOLVED FURTHER, that the forgoing amendment to the
Certificate shall be submitted to the stockholders of the Corporation
for approval at the Annual Meeting of Stockholders scheduled to be
held on July 19, 1996, or on such date as the Annual Meeting is held
or a special meeting of Stockholders is called for a vote upon this
matter.
RESOLVED FURTHER, that upon approval of the forgoing
amendment to the Certificate by the stockholders of the Corporation,
the officers of the Corporation be, and each of them, is hereby
authorized, directed and empowered to prepare, execute and file with
the Secretary of State of the State of Delaware a Certificate of
Amendment of the Certificate effecting the forgoing amendment to the
Certificate."
SECOND: That pursuant to resolution of the Board of Directors
of the Corporation, the Annual Meeting of Stockholders of the Corporation
was duly called and held, upon notice in accordance with Section 222 of the
General Corporation Law of the State of Delaware at which meeting the
necessary number of shares as required by statute were voted in favor of
the amendment.
THIRD: That said amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, Veterinary Centers of America, Inc. has
caused this certificate to be signed by Robert L. Antin, it Chairman of the
Board and Chief Executive Officer, and Arthur J. Antin, its Chief Operating
Officer, Senior Vice President and Secretary, the 19th day of July 1996.
By: /s/ Robert L. Antin
--------------------------------
Robert L. Antin, Chairman of the
Board and Chief Executive Officer
Attest: /s/ Arthur J. Antin
-------------------------
Arthur J. Antin, Chief
Operating Officer,
Senior Vice President and
Secretary