Attached files
| file | filename |
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| 8-K - PURESPECTRUM, INC. | v164759_8k.htm |
| EX-3.2 - PURESPECTRUM, INC. | v164759_ex3-2.htm |
| EX-99.1 - PURESPECTRUM, INC. | v164759_ex99-1.htm |
EXHIBIT
3.1
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
INTERNATIONAL
MEDICAL STAFFING, INC.
Pursuant
to Sections 242 and 245 of the General Corporation Law of the State of Delaware
(the “Act”), the undersigned, being the President of International Medical
Staffing, Inc., a Delaware corporation (the “Corporation”), does hereby certify
as follows:
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1.
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The
Corporation was originally incorporated under the name International
Medical Staffing, Inc. and the date of filing of its original Certificate
of Incorporation was March 21, 2007, which was amended and restated on
July 9, 2009.
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2.
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This
Amended and Restated Certificate of Incorporation has been duly adopted in
accordance with the provisions of Sections 242 and 245 of the Act by
written consent of the holders of a majority of the outstanding stock
entitled to vote thereon in accordance with the provisions of Section 228
of the Act.
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3.
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The
Certificate of Incorporation of the Corporation, as amended, is hereby
amended, restated and superseded in its entirety by this Amended and
Restated Certificate of Incorporation to read as
follows:
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ARTICLE
I
Name
The name of the Corporation is
PureSpectrum, Inc.
ARTICLE
II
Registered
Office and Agent
The address of the registered office of
the Corporation in the State of Delaware is 1201 North market Street, 18th Floor,
Wilmington, Delaware 19801, in the County of New Castle. The name of the
registered agent at that address is Delaware Corporation Organizers,
Inc.
ARTICLE
III
Purpose
The purpose of the Corporation is to
engage in any lawful act or activity for which corporations may be organized
under the Act.
ARTICLE
IV
Capital
Stock
The aggregate number of shares of
capital stock which the Corporation shall have authority to issue is nine
hundred fifty million (950,000,000) shares, consisting of (a) nine hundred
million (900,000,000) shares of common stock, par value $0.0001 per share (the
“Common Stock”) and (b) fifty million (50,000,000) shares of preferred stock,
par value $0.0001 per share (the “Preferred Stock”), which Preferred Stock shall
be issuable in one or more series as hereinafter provided. A description of the
classes of shares and a statement of the number of shares in each class and the
relative rights, voting power, and preferences granted to and the restrictions
imposed upon the shares of each class are as follows:
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A. Common Stock. Each
share of Common Stock shall have, for all purposes one (1) vote per
share.
Subject to the preferences applicable
to Preferred Stock outstanding at any time, the holders of shares of Common
Stock shall be entitled to receive such dividends and other distributions in
cash, property or shares of stock of the Corporation as may be declared thereon
by the Board of Directors from time to time out of assets or funds of the
Corporation legally available therefor. The holders of Common Stock issued and
outstanding have and possess the right to receive notice of shareholders’
meetings and to vote upon the election of directors or upon any other matter as
to which approval of the outstanding shares of Common Stock or approval of the
common shareholders is required or requested.
B. Preferred Stock.
Shares of Preferred Stock may be issued in series from time to time by the Board
of Directors, and the Board of Directors is expressly authorized to fix by
resolution or resolutions the designations and the voting powers, preferences,
rights and qualifications, limitations or restrictions thereof, of the shares of
each series of Preferred Stock, including without limitation the
following:
(i) the
serial designation of such series which shall distinguish it from the other
series;
(ii) the
number of shares included in such series, which number may be increased or
decreased from time to time unless otherwise provided by the Board of Directors
in the resolution or resolutions providing for the issue of such
series;
(iii) the
dividend rate (or method of determining such rate) payable to the holders of the
shares of such series, any conditions upon which such dividends shall be paid
and the date or dates upon which such dividends shall be payable;
(iv) whether
dividends on the shares of such series shall be cumulative dividend rights, the
date or dates or method of determining the date or dates from which dividends on
the shares of such series shall be cumulative;
(v) the
amount or amounts which shall be payable out of the assets of the Corporation to
the holders of the shares of such series upon voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(vi) the
price or prices at which, the period or periods within which, and the terms and
conditions upon which the shares of such series may be redeemed in whole or in
part, at the option of the Corporation or at the option of the holder or holders
thereof or upon the happening or a specified event or events;
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(vii) the
right or obligation, if any, of the Corporation to purchase or redeem shares of
such series pursuant to a shrinking fund or otherwise and the price or prices at
which, the period or periods within which and the terms and conditions upon
which the shares of such series may or shall be redeemed or purchased, in whole
or in part, pursuant to such right or obligation;
(viii) whether
or not the shares of such series shall be convertible or exchangeable, at any
time or times at the option of the holder or holders thereof or at the option of
the Corporation or upon the happening of a specified event or events, into
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the Corporation, and the price or prices or
rate or rates of exchange or conversion and any adjustments applicable
thereto;
(ix) the
voting rights, if any, of the holders of the shares of such series;
(x) the
ranking of the shares of such series as compared with shares of other series of
the capital stock of the Corporation in respect of the right to receive payments
out of the assets of the Corporation upon voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation; and
(xi) any
other relative rights and qualifications, preferences or limitation of the
shares not inconsistent herewith or with applicable law.
ARTICLE
V
No
Preemptive Rights
Preemptive rights shall not exist with
respect to shares of stock or securities convertible into shares of stock of the
Corporation.
ARTICLE
VI
No
Cumulative Voting
There shall be no cumulative voting of
shares of stock of the Corporation.
ARTICLE
VII
Board
of Directors
The Board
of Directors of the Corporation shall consist of such number of persons, not
less than one and not to exceed fifteen, as shall be determined in accordance
with the bylaws from time to time
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ARTICLE
VIII
Indemnification
of Officers and Directors
8.1 The
Corporation shall indemnify its directors and officers to the fullest extent
permitted under the Act, as it exists on the date hereof or as it may hereafter
be amended. Without limiting the generality of the
foregoing:
(a) The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to 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) by reason of the fact that the
person is or was a director or officer, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or 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 person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that the person 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 expenses (including attorneys' fees)
actually and reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation and except 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 action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To
the extent that a present or former director or officer of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this Section 8.1, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
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(d) Any
indemnification under subsections (a) and (b) of this Section 8.1 (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 present or former
director or officer is proper in the circumstances because the person has met
the applicable standard of conduct set forth in subsections (a) and (b) of this
Section 8.1. Such determination shall be made, with respect to a person who is a
director or officer at the time of such determination, (1) by a majority vote of
the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (3) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders.
(e) Expenses
(including attorneys' fees) incurred by an officer or director in defending any
civil, criminal, administrative or investigative action, suit or proceeding may
be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the Corporation as
authorized in this Section 8.1. Such expenses (including attorneys' fees)
incurred by former directors and officers or other employees and agents may be
so paid upon such terms and conditions, if any, as the Corporation deems
appropriate.
(f) The
indemnification and advancement of expenses provided by, or granted pursuant to,
the other subsections of this Section 8.1 shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(g) The
Corporation shall have power to 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 such person and incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under this Section 8.1.
(h) For
purposes of this Section 8.1, references to "the 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, and 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
this Section 8.1 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.
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(h) For
purposes of this Section 8.1, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and references
to "serving at the request of the Corporation" shall include any service as a
director or officer of the Corporation which imposes duties on, or involves
services by, such director or officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Section 8.1.
(i) The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Section 8.1 shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
8.2 The
right of indemnification under Section 8.1 shall not be exclusive of any other
right which such directors or officers may have or hereafter acquire and,
including without limitation any and all of the rights of indemnification under
any bylaw, agreement, vote of stockholders or other provision of
law.
8.3 No
director or officer of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages from any breach of fiduciary duty as a
director or officer, provided that such provision shall not eliminate or limit
the liability of a director: (a) for any breach of the director's duty of
loyalty to the corporation or its stockholders; (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; (c) under Section 174 of the Act; or (d) for any transaction from which the
director derived an improper personal benefit.
ARTICLE
IX
Bylaws
The power to adopt, amend and repeal
the bylaws of the Corporation is hereby conferred upon the Board of Directors of
the Corporation as provided in Section 109(a) of the Act.
ARTICLE
X
Amendment
The Corporation reserves the right to
amend or repeal any provisions contained in this Amended and Restated
Certificate of Incorporation so long as such amendment or repeal is effected in
the manner prescribed by the Act and all rights conferred upon the stockholders
are granted subject to this reservation.
Executed
this 9th day of
October, 2009.
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/S/ Lee L. Vanatta
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By:
Lee L. Vanatta
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Its:
President
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