Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Form S-1, Registration Statement 81 372K
2: EX-3.1 Certificate of Incorporation of the Registrant 6 23K
3: EX-3.2 Articles of Amendment to the Articles 2 9K
4: EX-3.3 Articles of Amendment to the Certificate 7 22K
5: EX-3.4 Certificate of Incorporation of Registrant 7 25K
6: EX-3.5 Bylaws of Registrant 7 40K
7: EX-16.1 Predecessor Auditor Letter 1 6K
8: EX-23.1 Consent of Ernst & Young, LLP 1 6K
9: EX-23.2 Consent of Wilkins, Miller, P.C. 1 6K
10: EX-24.1 Powers of Attorney 10 28K
EX-3.4 — Certificate of Incorporation of Registrant
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Exhibit 3.4
CERTIFICATE OF INCORPORATION
OF
COMPUTER PROGRAMS AND SYSTEMS, INC.
ARTICLE I
NAME
The name of the corporation is Computer Programs and Systems, Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the state of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
PURPOSE
The purpose for which the Corporation is organized 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, now or as hereafter amended.
ARTICLE IV
CAPITAL STOCK
Section 1. The total number of shares of stock which the Corporation
shall have authority to issue is thirty million (30,000,000) shares, which shall
consist entirely of thirty million (30,000,000) shares of common stock, $.001
par value per share (Common Stock).
Section 2. At all lawfully constituted meetings of the stockholders of
the Corporation, the holders of shares of Common Stock shall be entitled to one
vote per share. The holders of shares of Common Stock shall, except as herein
otherwise provided, have such other rights and privileges as are expressly
provided by law.
Section 3. No holder of shares of authorized stock shall have
preemptive rights or shall otherwise be entitled, as a matter of right, to
subscribe for or purchase shares of any class now or hereafter authorized, or to
purchase or subscribe for securities convertible into or exchangeable for shares
of any class of stock, or to which shall be attached or appertain any warrants
or rights entitling the holder thereto to purchase or subscribe for shares of
any class of stock.
ARTICLE V
DIRECTORS
Section 1. The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of Directors. The number
of directors which shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
Section 2. Following the closing of an initial public offering pursuant
to an effective registration statement under the Securities Act of 1933, as
amended, covering the offer and sale of Common Stock to the public (the "Initial
Public Offering"), the directors shall be divided into three classes designated
as Class I, Class II and Class III, respectively. Directors shall be assigned to
each class in accordance with a resolution or resolutions adopted by the Board
of Directors. At the first annual meeting of stockholders following the closing
of the Initial Public Offering, the term of office of the Class I directors
shall expire and Class I directors shall be elected for a full term of three
years. At the second annual meeting of stockholders following the Initial Public
Offering, the term of office of the Class II directors shall expire and Class II
director shall be elected for a full term of three years. At the third annual
meeting of stockholders following the Initial Public Offering, the term of
office of the Class III directors shall expire and Class III directors shall be
elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to
succeed the directors of the class whose terms expire at such annual meeting.
Section 3. Any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other causes and any newly
created directorships resulting from any increase in the number of directors,
shall, unless the Board of Directors determines by resolution that any such
vacancies or newly created directorships shall be filled by the stockholders,
except as otherwise provided by law, be filled only by the affirmative vote of a
majority of the directors then in office, even though less than a quorum of the
Board of Directors, and not by the stockholders. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the director for which the vacancy was created or occurred and
until such director's successor shall have been elected and qualified.
ARTICLE VI
ELECTION OF DIRECTORS
Section 1. Stockholders of the Corporation shall not have the right to
cumulate votes in the election of directors.
Section 2. The directors of the Corporation need not be elected by
written ballot unless the Bylaws so provide.
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ARTICLE VII
STOCKHOLDER MEETINGS
Section 1. No action shall be taken by the stockholders of the
Corporation except at an annual or special meeting of stockholders called in
accordance with the Bylaws or by written consent of stockholders in accordance
with the Bylaws prior to the closing of the Initial Public Offering, and
following the closing of the Initial Public Offering, no action shall be taken
by the stockholders by written consent, such ability to act by written consent
in lieu of a meeting is specifically denied.
Section 2. Advance notice of stockholder nominations for the election
of directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
Section 3. Special meetings of the stockholders of the Corporation for
any purpose or purposes may be called at any time by the Board of Directors, or
by a committee of the Board of Directors which has been duly designated by the
Board of Directors and whose powers and authority, as provided in a resolution
of the Board of Directors or in the Bylaws of the Corporation, include the power
to call such meetings, but such special meetings may not be called by any other
person or persons.
ARTICLE VIII
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, adopt, repeal,
alter, amend, and rescind the Bylaws of the Corporation by a resolution adopted
by a majority of the directors.
ARTICLE IX
LIMITATION OF DIRECTOR LIABILITY
No director of the Corporation shall have personal liability to the
Corporation or its stockholders for monetary damages for breach of a fiduciary
duty as a director, except that this 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 General Corporation Law of Delaware (or any provision of
Delaware law that replaces Section 174) or (d) for any transaction from which
the director derived an improper personal benefit. If the Delaware General
Corporation Law 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 limitations on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended Delaware
General Corporation Law. Any repeal or modification of this Article IX that
increases the exposure of directors to personal liability shall be prospective
only and will not apply to any action or failure to act by directors prior to
such repeal or modification.
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ARTICLE X
MERGERS, SHARE EXCHANGES, AND OTHER TRANSACTIONS
A merger, share exchange, sale of substantially all of the
Corporation's assets, or dissolution must be approved by the affirmative vote of
a majority of the Corporation's outstanding shares entitled to vote, or if
separate voting by voting groups is required then by not less than a majority of
all the votes entitled to be cast by that voting group.
ARTICLE XI
CORPORATION'S ACQUISITION OF ITS OWN SHARES
The Corporation may purchase, redeem, receive, take or otherwise
acquire, own and hold, sell, lend, exchange, transfer or otherwise dispose of,
pledge, use and otherwise deal with and in its own shares. The shares, so
acquired shall have the status of authorized and unissued shares of Common Stock
and shall not be regarded as cancelled or as a reduction to the authorized
capital of the Corporation unless specifically so designated by the Board of
Directors in an amendment to this Certificate of Incorporation. Nothing in this
Article limits or restricts the right of the Corporation to resell or otherwise
dispose of any of its shares previously acquired for such consideration and
according to such procedures as established by the Board of Directors.
ARTICLE XII
INDEMNIFICATION
Section 1. Each person who was or is made a party to or is threatened
to be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a Director or officer of the Corporation or is or was
serving at the request of the corporation as a Director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefits plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
Director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide prior to such amendment), against all expense, liability
and loss (including attorney's fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a Director, officer, employee or
agent and shall insure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in Section 2 of this
Article, the Corporation shall indemnify any such person seeking indemnification
in
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connection with a proceeding (or part hereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
The right to indemnification conferred in this Article shall be a
contract right and shall include the right to be paid by the corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a Director or officer in his
or her capacity as a Director or officer (and not in any other capacity in which
service was or is rendered by such person while a Director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such Director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
Director or officer is not entitled to be indemnified under this Article or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of Directors and officers.
Section 2. If a claim under Section 1 of this Article is not paid in
full by the Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time hereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
Section 3. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of this Certificate or
Incorporation, Bylaws, agreement, vote of stockholders or disinterested
Directors or otherwise.
Section 4. The Corporation may maintain insurance, at its expense, to
protect itself and any Director, officer, employee or agent of the Corporation
or another Corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
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Section 5. As used in this Article, references to "the Corporation"
shall include, in addition to the resulting or surviving corporation, any
constituent corporation 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 and 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 the Article with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation of its
separate existence had continued.
Section 6. If this Article or any portion hereof shall have invalidated
on any ground by a court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Director, officer, employee and agent of the
Corporation as to expenses (including attorney's fees), judgments, fines and
amounts paid in settlement with respect to any action, suite or proceeding,
whether civil, criminal, administrative or investigative, including a grand jury
proceeding and an action by the Corporation, to the fullest extent permitted (i)
by any applicable portion of this Article that shall not have been invalidated
or (ii) by any other applicable law.
ARTICLE XIII
AMENDMENT OF CERTIFICATE OF INCORPORATION
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, or as expressly provided for herein, and all
rights conferred upon the stockholders herein are granted subject to this
reservation.
ARTICLE XIV
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
Until such time as this Article may be changed in accordance with
applicable law, the Corporation shall not be governed by Section 203 of the
General Corporation Law of the State of Delaware ("Section 203"), and the
restrictions contained in Section 203 shall not apply to the Corporation.
ARTICLE XV
INCORPORATOR
The name and the mailing address of the Sole Incorporator is as
follows:
Gregory S. Curran, Esq.
Maynard, Cooper and Gale, P.C.
1901 Sixth Avenue North
2400 AmSouth/Harbert Plaza
Birmingham, AL 35203
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IN WITNESS WHEREOF, this Certificate has been subscribed this 13th day
of March, 2002 by the undersigned who affirms that the statements made herein
are true and correct.
/s/ Gregory S. Curran
------------------------------
Gregory S. Curran
Sole Incorporator
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