Exhibit 2.1
FIFTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BIOFIELD CORP.
Biofield Corp., a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Biofield Corp. The date of filing of its
original Certificate of Incorporation with the Secretary of State was December
15, 1992.
2. On May 7, 1993, the Corporation filed an Amended and Restated
Certificate of Incorporation.
3. On November 3, 1993, the Corporation filed a Second Amended and
Restated Certificate of Incorporation.
4. On March 1, 1994, the Corporation filed a Third Amended and Restated
Certificate of Incorporation.
5. On March 3, 1995, the Corporation filed a Fourth Amended and Restated
Certificate of Incorporation, which was further amended on April 24, 1995,
December 20, 1995 and February 26, 1996.
6. This Fifth Amended and Restated Certificate of Incorporation restates,
integrates and further amends the provisions of the Certificate of Incorporation
of the Corporation. This Fifth Amended and Restated Certificate of Incorporation
was duly adopted by unanimous written consent of the directors of the
Corporation in accordance with Section 141(f) of the General Corporation Law of
the State of Delaware (the "DGCL") and the majority written consent of the
stockholders of the Corporation in accordance with Section 228 of the DGCL. In
accordance with Section 228 of the DGCL, notice of such majority written consent
is being promptly given to all stockholders of the Corporation who did not
consent to the actions taken thereby.
7. The amendment to the certificate of incorporation herein certified has
been duly adopted and written consent has been given in accordance with the
provisions of Sections 242 and 245 of the General Corporation Law of the State
of Delaware.
8. The text of the Certificate of Incorporation as heretofore amended is
hereby restated and further amended to read in its entirety as follows:
FIRST. The name of the Corporation is BIOFIELD CORP.
SECOND. The address, including street, number, city and county of the
Corporation's registered office in the State of Delaware is 2711 Centerville
Road, Suite 400, in the City of Wilmington, in the County of New Castle. The
name of its registered agent at such address is The Prentice-Hall Corporation
System, Inc.
THIRD. 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.
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FOURTH. The aggregate number of shares which the Corporation shall have
the authority to issue is fifty-two million three hundred thousand (52,300,000)
shares, par value of $.001 per share, consisting of forty million (40,000,000)
shares of Common Stock, par value $.001 per share; and twelve million three
hundred thousand (12,300,000) shares of Preferred Stock, par value $.001 per
share, such Preferred Stock to be issued in such series and with such
designations, powers, preferences and rights and with such qualifications,
limitations and restrictions as may be established by the Board of Directors
pursuant to Article FIFTH.
FIFTH. The Board of Directors is authorized, subject to limitations
prescribed by law and provisions of Article FOURTH, to provide for the issuance
of additional shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish from time
to time the number of shares to be included in each such series and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each series shall include
but not be limited to, determination of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividend on shares of that
series;
(c) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion privileges, and, if
so, the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors shall
determine;
(e) Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the date or
date upon or after which they shall be redeemable, which amount may vary under
different conditions and at different redemption dates;
(f) Whether that series shall have a sinking fund for the redemption
or purchase shares of that series, and, if so the terms and amount of such
sinking fund;
(g) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
corporation, and the relative rights of priority, if any, of payment of shares
of that series; and
(h) Any other relative rights, preferences and limitations of
that series.
SIXTH. Election of directors need not be by written ballot.
SEVENTH. The Board of Directors is authorized to adopt, amend or repeal
By-Laws of the Corporation.
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EIGHTH. 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 (whether or not by or
in the right of the Corporation) by reason of the fact that he is or was a
director, officer, incorporator, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer,
incorporator, employee, partner, trustee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise (including an employee
benefit plan), shall be entitled to be indemnified by the Corporation to the
full extent then permitted by law against expenses (including counsel fees and
disbursements), judgments, fines (including excise taxes assessed on a person
with respect to an employee benefit plan), and amounts paid in settlement
incurred by him in connection with such action, suit, or proceeding. Such right
of indemnification shall inure whether or not the claim asserted is based on
matters which antedate the adoption of this Article EIGHTH. Such right of
indemnification shall continue as to a person who has ceased to be a director,
officer, incorporator, employee, partner, trustee, or agent and shall inure to
the benefit of the heirs and personal representatives of such a person. The
indemnification provided by this Article EIGHTH shall not be deemed exclusive of
any other rights which may be provided now or in the future under any provision
currently in effect or hereafter adopted of the By-Laws by any agreement, by
vote of stockholders, by resolution of disinterested directors, by provision of
law, or otherwise.
NINTH. No director of the Corporation shall be liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary duty as
a director, provided that this provision does not eliminate the liability of the
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. For purposes the prior sentence, the term
"damages shall, to the extent permitted by law, include without limitation, any
judgment, fine, amount paid in settlement, penalty, punitive damages, excise or
other tax assessed with respect to an employee benefit plan, or expense of any
nature (including, without limitation, counsel fees and disbursements). Each
person who serves as a director of the Corporation while this Article NINTH is
in effect shall be deemed to be doing so in reliance on the provisions of this
Article NINTH, and neither the amendment or repeal of this Article NINTH, nor
the adoption of any provision of this Certificate of Incorporation inconsistent
with this Article NINTH, shall apply to or have any effect on the liability or
alleged liability of any director or the Corporation for, arising out of, based
upon, or in connection with any acts or omissions of such director occurring
prior to such amendment, repeal, or adoption of an inconsistent provision. The
provisions of this Article NINTH are cumulative and shall be in addition to and
independent of any and all other limitations on or eliminations of the
liabilities of directors of the Corporation, as such, whether such limitations
or eliminations arise under or are created by any law, rule, regulation, by-law,
agreement, vote of shareholders or disinterested directors, or otherwise.
TENTH. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of the DGCL, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
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creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
IN WITNESS WHEREOF, I have made, signed, and sealed this Fifth Amended and
Restated Certificate of Incorporation this 5th day of October, 2000.
BIOFIELD CORP.
By: /s/ JOHN STEPHENS
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John Stephens
Senior Vice President and
Chief Operating Officer
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