Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
UNITED DIAGNOSTIC, INC.
Pursuant to Section 242 and 245 of the Delaware General Corporation Law
(the "DGCL"), the undersigned, being the President of United Diagnostic, Inc., a
Delaware corporation (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is United Diagnostic, Inc. The date of
filing of the Corporation's original Certificate of Incorporation with the
Secretary of State of the State of Delaware was September 9, 1981. The
Corporation was originally incorporated under the name "Applied DNA Systems,
Inc."
2. This Amended and Restated Certificate of Incorporation amends and
restates the provisions of the Certificate of Incorporation of the Corporation
and has been duly adopted in accordance with the provisions of Sections 228, 242
and 245 of the DGCL by the Board of Directors and the stockholders of the
Corporation.
3. The text of the Certificate of Incorporation is hereby amended and
restated to read in its entirety as follows:
FIRST. Corporate Name. The name of the corporation is SPO Medical Inc.
(the "Corporation").
SECOND. Registered Office. The address of the registered office of the
Corporation is 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation at such address is
The Corporation Trust Company.
THIRD. Corporate Purpose. The purpose of the Corporation is to engage in
any lawful act or activity for which a corporation may be organized under the
Delaware General Corporation Law, as amended from time to time (the "DGCL").
FOURTH. Capital Stock.
Authorized Shares. The total number of shares of all classes of stock
which the Corporation shall have the authority to issue is 52,000,000 shares, of
which 50,000,000 shares are common stock, par value $0.01 per share ("Common
Stock"), and 2,000,000 shares are preferred stock, par value $0.01 per share
("Preferred Stock").
Subdivision of Shares. Upon the effectiveness of the Amended and Restated
Certificate of Incorporation, each of the 6,428,815 shares of Common Stock
issued and outstanding as of the date hereof is hereby subdivided into 2.652685
shares of Common Stock.
Common Stock. Subject to the prior or equal rights of any holders of
Preferred Stock, the holders of Common Stock shall be entitled (i) to receive
dividends when and as declared by the Board of Directors out of any funds
legally available therefor, (ii) in the event of any dissolution, liquidation or
winding up of the Corporation, to receive the remaining assets of the
Corporation available for distribution, ratably according to the number of
shares of Common Stock held, and (iii) to one vote for each share of Common
Stock held on all matters submitted to a vote of stockholders. No holder of
Common Stock shall have any preemptive right to purchase or subscribe for any
part of any issue of stock or of securities of the Corporation convertible into
stock of any class whatsoever, whether now or hereafter authorized. Holders of
Common Stock are not entitled to cumulate votes in the election of any
directors.
Preferred Stock. Preferred Stock may be issued from time to time in one or
more series, each of such series to have such terms as stated or expressed
herein and in the resolution or resolutions providing for the issue of such
series adopted by the Board of Directors of the Corporation as hereinafter
provided. Any shares of Preferred Stock that are redeemed, purchased or acquired
by the Corporation may be reissued except as otherwise provided by law.
Different series of Preferred Stock shall not be construed to constitute
different classes of shares for the purposes of voting by classes unless
expressly provided.
Authority is hereby expressly granted to the Board of Directors from time
to time to issue the Preferred Stock in one or more series, and in connection
with the creation of any such series, by resolution or resolutions providing for
the issuance of the shares thereof, to determine and fix the number of shares of
such series and such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, including without limitation thereof, voting rights,
dividend rights, conversion rights, redemption privileges and liquidation
preferences, as shall be stated and expressed in such resolutions, all to the
full extent now or hereafter permitted by the DGCL. Without limiting the
generality of the foregoing, the resolutions providing for issuance of any
series of Preferred Stock may provide that such series shall be superior or rank
equally or be junior to the Preferred Stock of any other series to the extent
permitted by law.
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The number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, irrespective of the provisions of Section 242(b)(2) of the
DGCL. Unless otherwise provided in such resolution or resolutions, shares of
Preferred Stock of such class or series which shall be issued and thereafter
acquired by the Corporation through purchase, redemption, exchange, conversion
or otherwise shall return to the status of authorized but unissued Preferred
Stock.
FIFTH. Board of Directors of the Corporation.
Responsibilities. The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors.
Number. The number of directors shall be determined from time to time by
resolution of the Board of Directors and the initial Board of Directors shall
consist of three directors. No decrease in the authorized number of directors
shall shorten the term of any incumbent director.
Elections of Directors. Elections of directors need not be by written
ballot unless the By-Laws of the Corporation shall so provide.
Nominations for Directors. Except as otherwise permitted in this Article
FIFTH, only persons who are nominated in accordance with the procedures
established in the By-Laws shall be eligible for election as directors.
Vacancies. Vacancies and newly created directorships resulting from (i) an
increase in the authorized number of directors, (ii) death, (iii) resignation,
(iv) retirement, (v) disqualification, (vi) removal from office or (vii) any
other cause, may be filled by a majority vote of the remaining directors then in
office, although less than a quorum, or by the sole remaining director, and each
director so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of the class to which he or she has been
elected expires and until such director's successor shall have been duly elected
and qualified.
SIXTH. By-Laws. The Board of Directors is expressly authorized from time
to time to make, alter or repeal the By-Laws of the Corporation in the manner
set forth in the By-Laws from time to time.
SEVENTH. Indemnification.
Indemnification of Authorized Representatives in Third Party Proceedings.
The Corporation shall indemnify any person who was or is an authorized
representative of the Corporation, and who was or is a party, or is threatened
to be made a party to any third party proceeding, by reason of the fact that
such person was or is an authorized representative of the Corporation, against
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such third party
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal third party proceeding, had no
reasonable cause to believe such conduct was unlawful. The termination of any
third party proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendere or its equivalent, shall not of itself create a presumption
that the authorized representative did not act in good faith and in a manner
which such person reasonably believed to be in or not opposed to, the best
interests of the Corporation, or, with respect to any criminal third party
proceeding, had reasonable cause to believe that such conduct was unlawful.
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Indemnification of Authorized Representatives in Corporate Proceedings.
The Corporation shall indemnify any person who was or is an authorized
representative of the Corporation and who was or is a party or is threatened to
be made a party to any corporate proceeding, by reason of the fact that such
person was or is an authorized representative of the Corporation, against
expenses actually and reasonably incurred by such person in connection with the
defense or settlement of such corporate proceeding if such person acted in good
faith and in a manner reasonably believed to be in, or not opposed to, the best
interests of the Corporation; provided, however, that, except as provided in
this Article SEVENTH with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such person in connection
with an action, suit or proceeding (or part thereof) initiated by such person
only if the initiation of such action, suit or proceeding (or part thereof) was
authorized by the Board of Directors; provided further, however, that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such corporate proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such authorized representative is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Mandatory Indemnification of Authorized Representatives. To the extent
that an authorized representative or other employee or agent of the Corporation
has been successful on the merits or otherwise in defense of any third party or
corporate proceeding or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses actually and reasonably incurred by
such person in connection therewith.
Determination of Entitlement to Indemnification. Any indemnification under
this Article SEVENTH (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the authorized representative or other employee or agent is
proper under the circumstances because such person has either met the applicable
standard of conduct set forth in this Article or has been successful on the
merits or otherwise as set forth in this Article, as the case may be, and that
the amount requested has been actually and reasonably incurred. Such
determination shall be made:
(i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such third party or corporate proceeding; or
(ii) if such a quorum is not obtainable, or even if obtainable, a quorum
of disinterested directors so directs, by independent legal counsel in a written
opinion; or
(iii) by the stockholders.
Advancing Expenses. Expenses actually and reasonably incurred in defending
a third party or corporate proceeding shall be paid on behalf of an authorized
representative by the Corporation in advance of the final disposition of such
third party or corporate proceeding and within 30 days of receipt by the
secretary of the Corporation of (i) an application from such authorized
representative setting forth the basis for such indemnification, and (ii) if
required by law at the time such application is made, an undertaking by or on
behalf of the authorized representative to repay such amount if it shall
ultimately be determined that the authorized representative is not entitled to
be indemnified by the Corporation as authorized in this Article SEVENTH. The
financial ability of any authorized representative to make a repayment
contemplated by this section shall not be a prerequisite to the making of an
advance. Expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the Board of Directors deems appropriate.
Definitions. For purposes of this Article SEVENTH:
"authorized representative" shall mean any and all directors and officers
of the Corporation and any person designated as an authorized representative by
the Board of Directors of the Corporation or any officer of the Corporation to
whom the Board has delegated the authority to make such designations (which
"authorized representative" may, but need not, include any person serving at the
request of the Corporation as a director, officer, employee, trustee or agent of
another corporation, partnership, joint venture, trust or other enterprise);
"Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued;
"corporate proceeding" shall mean any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor and any investigative proceeding by the Corporation;
"criminal third party proceeding" shall include any action or
investigation which could or does lead to a criminal third party proceeding;
"expenses" shall include attorneys' fees and disbursements;
"fines" shall include any excise taxes assessed on a person with respect
to an employee benefit plan;
actions "not opposed to the best interests of the Corporation" shall
include without limitation actions taken in good faith and in a manner the
authorized representative reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan;
"other enterprises" shall include employee benefit plans;
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"party" shall include the giving of testimony or similar involvement;
"serving at the request of the Corporation" shall include without
limitation any service as a director, officer or employee of the Corporation
which imposes duties on, or involves services by, such director, officer or
employee with respect to an employee benefit plan, its participants, or
beneficiaries; and
"third party proceeding" shall mean any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative, or
investigative, other than an action by or in the right of the Corporation.
Insurance. 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 or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against the
person and incurred by the person in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power or the
obligation to indemnify such person against such liability under the provisions
of this Article SEVENTH.
Scope of Article. The indemnification of authorized representatives and
advancement of expenses, as authorized by the preceding provisions of this
Article SEVENTH, shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity
while holding such office. The indemnification and advancement of expenses
provided by or granted pursuant to this Article SEVENTH shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be an authorized representative and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Reliance on Provisions. Each person who shall act as an authorized
representative of the Corporation shall be deemed to be doing so in reliance
upon rights of indemnification provided by this Article SEVENTH. Any repeal or
modification of the provisions of this Article SEVENTH by the stockholders of
the Corporation shall not adversely affect any right or benefit of a director
existing at the time of such repeal or modification.
Severability. If this Article SEVENTH or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each authorized representative of the
Corporation as to expenses, judgments, fines and amounts paid in settlement with
respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, including, without limitation, a grand jury
proceeding and an action, suit or proceeding by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this
Article SEVENTH that shall not have been invalidated, by the DGCL or by any
other applicable law.
EIGHTH. Directors' Liability. No director shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of a
fiduciary duty as a director; provided, however, that to the extent required by
the provisions of Section 102(b)(7) of the DGCL or any successor statute, or any
other laws of the State of Delaware, this provision shall not eliminate or limit
the liability of a director (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) under Section 174 of the DGCL or (iv) for any transaction from which the
director derived an improper personal benefit. If the DGCL hereafter is amended
to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation, in addition to
the limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended DGCL. Any repeal or modification of this
Article EIGHTH by the stockholders of the Corporation shall be prospective only,
and shall not adversely affect any limitation on the personal liability of a
director of the Corporation existing as of the time of such repeal or
modification.
NINTH. Amendments. 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.
IN WITNESS WHEREOF, the undersigned has caused this Amended and Restated
Certificate of Incorporation to be executed as of this 21st day of April, 2005.
/s/ Michael Braunold
--------------------------
Name: Michael Braunold
Title: President Director
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