RESTATED CERTIFICATE OF
INCORPORATION
EDUCARE COMMUNITY LIVING CORPORATION
– AMERICA
EduCare Community
Living Corporation — America, a corporation organized and
existing under the laws or the State Of Delaware, hereby certifies
as follows:
1. The name
of the Corporation is EduCare Community Living Corporation —
America and the name under which the Corporation was originally
incorporated was National Healthcare Services, Inc.
The date of filing
of its original certificate of Incorporation with the Secretary of
State was August 27, 1987.
2. This
Restated Certificate of Incorporation restates, integrates and
further amends the Certificate of Incorporation to read as herein
set forth in full:
The, name of the
Corporation is EduCare Community Living Corporation.
REGISTERED OFFICE AND
AGENT
The registered
office of the Corporation in the State of Delaware is to be located
at 1209 Orange Street, Wilmington, New Castle County, Delaware
19801. Its registered agent at such address is The Corporation
Trust Company.
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 (the “Act”).
CAPITALIZATION AND
VOTING
Section 1.
The aggregate number of Shares of Capital Stock which the
Corporation shall have authority to issue is ten million, three
hundred thousand (10,300,000) consisting of:
(1) One class
of Ten Million Shares of Common Stock, $0.001 par value per share;
and
(ii) One
class of Three Hundred Thousand Shares of Preferred Stock, $0.001
par value per share consisting of two series as follows:
(a) The 1988
Series Preferred Stock consisting of 200,000 shares shall have
the following rights and preferences: (i) each holder shall be
entitled to ten votes for each share held in his name on the books
of the Corporation; (ii) each share may be converted into
Common Stock at the option of the holder on a one-for-one basis at
any time subsequent to January 31,1995.
(b) The 1991
Series Preferred Stock consisting of 100,000 shares shall have
the following rights and preferences; (i) each holder shall be
entitled to ten votes for each share held in his name on the books
of the Corporation; (ii) each share may be converted into
Common Stock at the option of the holder on a one-for-one basis at
any time subsequent to January 31, 2001.
Section 2.
The conversion ratio for the 1988 Series Preferred Stock and
the 1991 Series Preferred Stock shall be subject to adjustment from
time to time as follows: In case the Corporation shall at any time
subdivide the outstanding shares of Common Stock, or shall issue a
stock dividend on its outstanding Common Stock, the conversion
ratio in effect immediately prior to such subdivision or the
issuance of such dividend shall be proportionately adjusted to give
effect to such transaction, and in case the Corporation shall at
any time combine the outstanding shares of Common Stock, the
conversion ratio in effect immediately prior to such combination
shall be proportionately adjusted to give effect to such
transaction, effective at the close of business on the date of such
subdivision, dividend or combination, as the case may
be.
Section 3. No
holder of shares of Capital Stock of the Corporation shall, as such
holder, have any right to purchase or subscribe for any Capital
Stack of any class which the Corporation may issue or sell, whether
or not exchangeable for any Capital Stock of the Corporation of any
class or gasses, whether issued out of unissued shares authorized
by this Restated Certificate of Incorporation as originally filed
or by any amendment thereof, or out of shares of Capital Stock of
the Corporation acquired by it after the issue thereof; nor shall
any holder of shares of Capital Stock of the Corporation, as such
holder, have any right to purchase, acquire or subscribe for any
securities which the Corporation may issue or sell whether or not
convertible into or exchangeable for shares of Capital Stock of the
Corporation of any class or classes, and whether or not any such
securities have attached or appurtenant thereto warrants, options
or other Instruments which entitle the holders thereof to purchase,
acquire or subscribe for shares of Capital Stock of any dam or
classes.
Section 4. In
the exercise of voting privileges, each holder of shares of the
Common Stock of the Corporation shall be entitled to one
(l) vote for each share held in his name on the
books of the
Corporation, and each holder of the 1988 Series Preferred
Stock and the 1991 Series Preferred Stock of the Corporation
shall have ten (10) votes for each share held in his name on
the books of the Corporation with all such shares voting as a
single class unless otherwise required by law. In all elections of
the Corporation, cumulative voting is expressly prohibited. With
respect to any action to be taken by the stockholders of the
Corporation as to any matter, the affirmative vote of the holders
of shares of Capital Stock representing a majority of the votes
entitled to vote thereon and represented in person or by proxy at a
meeting of the stockholders at which a quorum is present shall be
sufficient to authorize, affirm, ratify or consent to such action,
provided, however, not withstanding the foregoing, at any meeting
duly called and held for the election of directors at which a
quorum is prow t, directors shall be elected by a plurality of the
votes cast by the holders of shares of Capital Stock of the
Corporation entitled to vote thereon and represented in person or
by proxy. Any action required by the Act to be taken at any annual
or special meeting of the stockholders may be taken without a
meeting, without prior notice, and without a vote, if a consent or
consents in wrung, setting forth the action so taken, shall be
signed by the holder or holders of shares of Capital Stock
represents a majority of the votes entitled to vote thereon and
shall be delivered to the Corporation by delivery to its registered
office in Delaware, its principal place of business or an officer
or ant of the Corporation having custody of the Corporation’s
minute book, Prompt notice of the action so taken without a meeting
by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Section 5.
The board of Directors shall have the power and. authority at any
time and from tines to time to issue, sell, or otherwise dispose of
any authorized and unissued shares of any class of stock of the
Corporation to such persons or parties, including the holders of
any
class of stock,
for such consideration (not less than Par value, if any, thereof)
and upon such terms and conditions as the Board of Directors in its
discretion may deem for the best interests of the
Corporation.
Section 6.
The Common Stock is subject and subordinate to any and all rights,
privileges, preferences, and priorities of the 1988
Series Preferred Stock and the 1991 Series Preferred
Stock of the Corporation as set forth in this Article Four.
All shares of Common Stock shall be of equal rank and shall be
identical in all respects,
Section 7. In
the event of any voluntary or involuntary liquidation, dissolution,
or winding up of the affairs of the Corporation, the remaining net
assets of the Corporation shall be divided and distributed among
the holders of the Capital Stock based on the ratio that the number
of shares of Capital Stock owned by each such holder beam k the
aggregate number of issued and outstanding shares of Capital
Stock.
Section 8.
The holders of Common Stock and Preferred Stock shall be entitled
to receive, on a share-for-share basis, treating for dividend
purposes all issued and outstanding shares of Common Stock and
Preferred Stock as a single class, such dividends as may be
declared from time to time by the Board of Directors.
Section 9.
The shares of Common Stock and Preferred Stock shall not be subject
to redemption by the Corporation.
In furtherance and
not in limitation of the powers conferred by the laws of the State
of Delaware, but subject to the provisions of this Restated
Certificate of Incorporation, the Board of Dirge is authorized to
make, alter, amend or repeal the Bylaws of the Corporation by the
affirmative vote of a majority of the Board of Directors tin in
office. The Bylaws of the Corporation may be amended, altered, or
repealed by the stockholders of the Corporation only upon the
affirmative vote of the holders of shares of Capital Stock
representing a majority of the votes entitled to be cast
thereon.
Section 1 .
Election of directors need lot be by written ballot.
Section 2. So
long as at least awe of the directors of the Corporation continues
to serve as a director of the Corporation, any vacancy on the
Corporation’s Board of Directors shall be filled by a
majority of the directors then in office, although less than a
quorum, or by the sole remaining doctor and shall not be filled by
a vote of the stockholders of the Corporation unless there are no
directors in office, in which case an election of directors shall
be held in the manner provided by the Act.
Section 3.
The number of directors constituting the rd of Directors shall be
fixed as specified in the Bylaws of the Corporation, but shall not
be less than one nor more than seven.
Section 4. At
each annual meeting of stockholders, directors shall be elected to
serve until the next annual meeting of stockholders and until their
successors are elected and qualified
or until their
earlier death, resignation, removal, or retirement. Any director
elected or appointed to fill a vacancy shall hold office for the
remaining term to which such person is entitled. No decrease in the
number of directors constituting the Board of Directors shall
shorter the term of any incumbent director.
Section 5.
Any director or the entire board of Directors may be removed for or
without cause upon the affirmative vote of the holders of shares
Capital Stock representing a majority of the votes entitled to be
cast at an election of directors; however, any such removal is
subject to further restrictions, not inconsistent with this
Article, as may be contained in the Bylaws.
SPECIAL MEETINGS OF
STOCKHOLDERS
Special meetings
of the stockholders of the Corporation may be called by the
Chairman of the Board, the President or the Board of Directors
pursuant to a resolution approved by a majority of the entire Board
of Directors, upon not less than 10 nor more than
60 days’ written notice.
The Corporation
shall have perpetual existence.
The Corporation
reserves the right to anted, alter, ch
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