AMENDED AND

RESTATED

CERTIFICATE OF INCORPORATION

OF

MED-MOBILE, INC.

The undersigned corporation, in order to amend and restate its Certificate of Incorporation, hereby certifies as follows:

FIRST: The name of the corporation is

BIO-REFERENCE LABORATORIES, INC.

SECOND: The Corporation was originally incorporated in New Jersey on December 24, 1981 under the name “Med-Mobile, Inc.”

THIRD: The Certificate of Incorporation is hereby amended to effect the following:

(a) Article 1 is hereby amended to change the name of the corporation to Bio-Reference Laboratories, Inc.;

(b) Article 3 is hereby amended to (i) increase the authorized Common Stock of the corporation to 50,000,000 shares; and (ii) authorize a class of 5,000,000 shares of Preferred Stock, $.10 per value par share;

(c) Article 4 is hereby amended to set forth a new registered office of the Corporation;

(d) A new Article 6 is added to change the Board into three classes of two directors each;

(e) A new Article 7 is added which requires approval of 80% of the outstanding shares of Common Stock of the corporation for any merger, consolidation or sale of units or other acquisition of the Corporation not approved by the Board of Directors; and

(f) A new Article 8 is added which will limit the monetary liability of directors.

The text of the Certificate of Incorporation as amended is hereby restated as follows:

l. The name of the corporation is

BIO-REFERENCE LABORATORIES, INC.

2. The purpose or purposes for which the corporation is organized are: To do any lawful act or thing for which



corporations may be organized pursuant to the provisions of Title 14A, Corporations, General, of the New Jersey Statutes.

3. Capital Stock

(A) Authorized Capital Stock. The total number of shares of all classes of stock which this Corporation shall have authority to issue is FIFTY-FIVE MILLION (55,000,000) shares, consisting of FIFTY MILLION (50,000,000) shares of Common Stock, $.001 par value per share (hereinafter, the “Common Stock”), and FIVE MILLION (5,000,000) shares of Preferred Stock, $.10 par value per share (hereinafter, the “Preferred Stock”).

(B) Preferred Stock. Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors. Each series shall be distinctly designated. All shares of any one series of the Preferred Stock shall be alike in every particular event except that there may be different dates from which dividends thereon, if any, shall be cumulative, if made cumulative. The powers, preferences and relative participating, optional and other rights of each series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. Subject to the provisions of subparagraph (4) of Paragraph (D) of this Article THIRD, the Board of Directors of this Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of each particular series of Preferred Stock, the designation, powers, preferences and relative participating, optional and other rights, and the qualifications, limitations and restrictions thereof, if any, of such series, including, but without limiting the generality of the foregoing, the following:

(1) the distinctive designation of and the number of shares of Preferred Stock which shall constitute the series, which number may be increased (except as otherwise fixed by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by action of the Board of Directors;

(2) the rate and times at which, and the terms and conditions upon which, dividends, if any, on shares of the series shall be paid, the extent of preferences or relation, if any, of such dividends to the dividends payable on any other class or classes of stock of this Corporation, or on any series of Preferred Stock or of any other class or classes of stock of this Corporation, and whether such dividends shall be cumulative or non-cumulative;

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(3) the right, if any, of the holders of shares of the series to convert the same into, or exchange the same for, shares of any other class or classes of stock of this Corporation, or of any series of Preferred Stock of this Corporation, and the terms and conditions of such conversion or exchange;

(4) whether shares of the series shall be subject to redemption, and the redemption price or prices including, without limitation, a redemption price or prices payable in shares of the Common Stock and the time or times at which, and the terms and conditions upon which, shares of the series may be redeemed;

(5) the rights, if any, of the holders of shares of the series upon voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding up of this Corporation;

(6) the terms of the sinking fund or redemption or purchase account, if any, to be provided for shares of the series; and

(7) the voting powers, if any, of the holders of shares of the series which may, without limiting the generality of the foregoing, include (i) the right to more or less than one vote per share on any or all matters voted upon by the stockholders and (ii) the right to vote, as a series by itself or together with other series of Preferred Stock or together with all series of Preferred Stock as a class, upon such matters, under such circumstances and upon such conditions as the Board of Directors may fix, including, without limitation, the right, voting as a series by itself or together with other series of Preferred Stock or together with all series of Preferred Stock as a class, to elect one or more directors of this Corporation, or to elect a majority of the members of the Board, under such circumstances and upon such conditions as the Board may determine.

(C) Common Stock.

(1) After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with provisions of paragraph (B) of this Article THIRD), if any, shall have been met and after this Corporation shall have complied with all the requirements, if any, with respect to the setting aside

3



of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of paragraph (B) of this Article THIRD) and subject further to any other conditions which may be fixed in accordance with the provisions of paragraph (B) of this Article THIRD, then but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors.

(2) After distribution in full of the preferential amount (fixed in accordance with the provisions of paragraph (B) of this Article THIRD), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of this Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of this Corporation, tangible and intangible, of whatever kind available for distribution to stockholders, ratably in proportion to the number of shares of the Common Stock held by each.

(3) Except as otherwise be required by law, this Certificate of Incorporation or the provisions of the resolution or resolutions as may be adopted by the Board of Directors pursuant to paragraph (B) of this Article THIRD, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the stockholders.

(D) Other Provisions.

(1) The relative powers, preferences and rights of each series of Preferred Stock in relation to the powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in paragraph (B) of this Article THIRD, and the consent, by class or series vote or otherwise, of the holders of the Preferred Stock of such of the series of the Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding

4



series, or any of them, provided, however, that the Board of Directors may provide in such resolution or resolutions adopted with respect to any series of Preferred Stock that the consent of the holders of a majority (or such greater portion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other shares of Preferred Stock.

(2) Subject to the provisions of subparagraph (1) of this paragraph, shares of any series of Preferred Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors.

(3) Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors.

(4) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series.

4. The address of the corporation’s initial registered office is 481 Edward H. Ross Drive, Elmwood Park, New Jersey 07407. The name of the corporation’s registered agent at such address is Dr. Marc Grodman.

5. The name and address of the incorporator is as follows:

NAME

ADDRESS

Catherine E. Allen

28 West State Street

Trenton, New Jersey 08608

6. A. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which may exercise all such powers of the Corporation and do all

5



such lawful acts as are not by law or by the Certificate of Incorporation of the Corporation directed or required to be exercised or done by the shareholders.

B. The number of directors of the Corporation shall be as from time to time provided by or pursuant to the By-Laws of the Corporation, but shall be not less than three. The directors shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors, but in no event shall any class include less than one director. At the annual meeting of shareholders in 1989, Class I directors shall be elected for a three-year term, Class II directors for a two-year term and Class III directors for a one-year term. At each succeeding annual meeting of shareholders beginning at the 1990 annual meeting, successors to the class of directors whose term expires at the annual meeting shall be elected for a three-year term. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible.

C. Newly created directorship resulting from any increase in the authorized number of directors constituting the entire Board of Directors or vacancies on the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or any other cause shall be filled only by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum, or by the sole remaining director. Directors elected to fill vacancies shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred and until such director’s successor shall be elected and shall qualify. The directors of any class of directors of the Corporation may be removed by the shareholders only for cause by the affirmative vote of the holders of at least 80% of the combined voting power of all outstanding voting stock. For the purpose of this Article 6, “cause” shall mean the willful failure of a director to perform in any substantial respect such director’s duties to the Corporation (other than any such failure resulting from incapability due to physical or mental illness), willful malfeasance by a director in the performance of his duties to the Corporation which is materially and demonstrably injurious to the Corporation, the commission by a director of an act of fraud in the performance of his duties, the conviction of a director for a felony punishable by confinement for a period in excess of one year, or the ineligibility of a director for continuation in office under any applicable rules, regulations or orders of any federal or state regulatory authority.

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D. Notwithstanding the foregoing, whenever the holders of any one or more classes or series of preferred stock or preference shares issued by the Corporation shall have the right to vote separately by class or series to elect directors at an annual or special meeting of shareholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Certificate of Incorporation applicable thereto, and such directors so elected shall not be divided into classes pursuant to this Article 6 unless expressly provided by such terms.

E. Where the term “Board of Directors” is used in this Certificate of Incorporation, such term shall mean the Board of Directors of the Corporation; provided, however, that to the extent any committee of directors of the Corporation is lawfully entitled to exercise the powers of the Board of Directors, such committee may exercise any right or authority of the Board of Directors under this Certificate of Incorporation.

F. Notwithstanding any other provisions of this Certificate of Incorporation or the By-Laws of this Corporation (and notwithstanding the fact that a lesser percentage or separate class vote may be specified by law, this Certificate of Incorporation, the By-Laws of the Corporation or otherwise), the affirmative vote of the holders of at least 80% of the combined voting power of all outstanding voting stock shall be required to adopt any provisions inconsistent with, or to amend or repeal, Paragraph b, c, or f of this Article 6.

7. The affirmation vote of the holders of not less than 80% of the outstanding voting stock of this corporation shall be required for the approval or authorization of any (i) merger or consolidation of this corporation with or into any other corporation, or (ii) sale, lease, exchange or other disposition of all or substantially all of the assets of this corporation to or with any other corporation, person or other entity; provided however, that such 80% voting requirement shall not be applicable if the Board of Directors of the corporation shall have approved such a transaction described in clause (i) or (ii) by a resolution adopted by 80% of the members of the Board of Directors.

8. The personal liability of the directors of the Corporation is hereby eliminated to the fullest extent permitted by subsection 14A:2-7 of the New Jersey Business Corporation Act, as the same may be amended and supplemented.

FOURTH: The amendment effected herein was authorized by a vote of the holders of a majority of all of the outstanding

7



shares entitled to vote thereon pursuant to the Business Corporation Law of the State of New Jersey.

IN WITNESS WHEREOF, the undersigned hereby executes this document and affirms the facts set for herein are true and penalties of perjury this 10th day of November, 1989.

/s/ Marc D. Grodman

Marc D. Grodman, President

/s/ Sam singer

Sam singer, Assistant Secretary

 

CERTIFICATE OF AMENDMENT TO THE

CERTIFICATE OF Incorporation OF

BIO-REFERENCE LABORATORIES, INC.

To: The Secretary of State

State of New Jersey

Pursuant to the provisions of Section 14A:Z-15.1, Corporations, General, of the New Jersey Statutes, the undersigned corporation executes this certificate of amendment to its certificate of incorporation:

(a) The name of the corporation is Bio-Reference Laboratories, Inc.

(b) On July 30, 1993, the board of directors of the corporation duly adopted resolutions approving a one-for-three reverse stock split of the corporation’s authorized and outstanding Common Stock, $.01 par value, and of the corporation’s authorized and outstanding Preferred Stock, $.10 par value, effective at the close of business on August 23, 1993, without changing the par value of the Common Stock and the Preferred Stock and without reducing, distributing or withdrawing the existing capital of the corporation.

(c) This amendment to the corporation’s certificate of incorporation will not adversely affect the rights or preferences of the holders of outstanding shares of any class or series of the corporation’s capital stock and will not result in the percentage of authorized shares that remains unissued after the reverse stock split exceeding the percentage of authorized shares that was unissued before the reverse stock split.



(d) The 55,000,000 authorized shares and the 6,897,710 outstanding shares of Common Stock are subject to the one-for-three reverse stock split and as a result of same, will be reduced to 18,333,333 authorized shares and 2,299,237 outstanding shares of Common Stock. The 5,000,000 authorized shares and the 1,812,226 outstanding shares of Preferred Stock are also subject to the one-for-three reverse stock split and as a result of same, will be reduced to 1,666,667 authorized shares and 604,076 outstanding shares of Preferred Stock. Any stockholder entitled to receive a fractional share of Common Stock or Preferred Stock as a result of the reverse stock split will be issued one whole share of the New Stock therefor.

(e) The amendment to the corporation’s certificate of incorporation made in connection with the one-for-three reverse stock split is as follows:

RESOLVED that Article 3(A) of this corporation’s certificate of incorporation, be and is hereby amended to decrease the authorized shares of Common Stock, $.01 par value per share, to 18,333,333 shares, without changing the par value per share, and to decrease the authorized shares of Preferred Stock, $.10 par value per share, to 1,666,667 shares, without changing the par value per share, and to read in its entirety as follows:

“3. Capital Stock (A) Authorized Capital Stock. The total number of shares of all classes of stock which this Corporation shall have authority to issue is TWENTY MILLION (20,000,000) shares, consisting of EIGHTEEN MILLION THREE HUNDRED THIRTY - THREE THOUSAND THREE HUNDRED THIRTY THREE (18,333,333) shares of Common Stock, $.01 par value per share (hereinafter, the ‘Common stock’), and ONE MILLION SIX HUNDRED SIXTY SIX THOUSAND SIX HUNDRED SIXTY SEVEN (1,666,667) shares of

2



Preferred Stock, $.10 par value per share (hereinafter, the ‘Preferred Stock’).”

(f) The effective date of the one-for-three reverse stock split shall be the close of business on August 23, 1993 or the date of filing of this certificate of amendment, whichever is later.

Dated this 20th day of August, 1993.

BIO-REFERENCE LABORATORIES, INC.

By

/s/ Marc D. Grodman

Marc D. Grodman, President

ATTEST:

/s/ Sam Singer

Sam Singer, Secretary

 

CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
BIO-REFERENCE LABORATORIES, INC.

To: The Secretary of State
State of New Jersey

Pursuant to the provisions of Section 14A:7-2(2), Corporations, General; of the New Jersey Statutes, the undersigned corporation executes this certificate of amendment to its certificate of incorporation:

1. The name of the corporation (hereinafter called the “Corporation”) is Bio-Reference Laboratories, Inc.

2. The following resolution has been duly adopted by the Board of Directors of the Corporation as required by Subsection 14A:7-2(3) of the New Jersey Business Corporation Act.

RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation in accordance with the provisions of its Certificate of Incorporation, the Board of Directors hereby creates a series of Preferred Stock, $.10 par value, of the Corporation, and hereby states the designation and amount thereof and fixes the relative rights, preferences and limitations thereof (in addition to the provisions set forth in the Certificate of Incorporation of the Corporation, which are applicable to the preferred stock of all classes and series) as follows, so that ARTICLE (3) of the Corporation’s Certificate of Incorporation be, and it hereby ie, amended by inserting therein the following paragraph B(1) immediately following ARTICLE (3) (B), paragraph 7:

B(1). Senior Preferred Stock.

(a) Designation and Amount. An aggregate of 1,812,226 shares of Preferred Stock, $.10 par value, of the Corporation are hereby constituted as a series designated as “Senior Preferred Stock” (the “Senior Preferred Stock”). Such number of shares may be increased or decreased by resolution of the Board of Directors.



(b) Vote. Except as may otherwise be required by law, this Certificate of Incorporation or the provisions of the resolution or resolutions as may be adopted by the Board of Directors pursuant to paragraph (B) of this Article THIRD, each holder of Senior Preferred Stock shall have one vote in respect of each share of Senior Preferred Stock held by such holder on each matter voted upon by the stockholders. The holders of shares of Senior Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.

(c) Dividends. Holders of Senior Preferred Stock shall be entitled to be paid dividends on a per share basis equal to dividends, if any paid on a per share basis to holders of Common Stock, at the time such dividends are paid with respect to the Common stock.

(d) Liquidation Rights. After distribution in full of any preferential amount (fixed in accordance with the provisions of paragraph (B) of this Article THIRD), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale or assets, dissolution or winding-up of this Corporation, the holders of the Senior Preferred Stock together with the holders of the Common Stock shall be entitled to receive all the remaining assets of this Corporation, tangible and intangible, of whatever kind available for distribution to stockholders, ratably on a per share basis in proportion to the number of shares of the Senior Preferred Stock and the Common Stock held by each.

(e) Conversion Rights. From and after the Date or Issuance and prior to the close of business on April 20, 2003, each share of Senior Preferred Stock shall be convertible, at the option of the holder, upon payment of the Conversion Price, into one share of Common Stock. The initial Conversion Price shall be $.50 per share. In the event of a stock dividend, combination, stock split or reverse stock split, the Conversion Price and the number of shares of Common Stock into which the Senior Preferred Stock may be converted shall be appropriately adjusted.

3. The foregoing resolution was duly adopted by the Board of Directors of the Corporation on April 20, 1993, pursuant to

2



authority granted under Section 14A:7-2(2) of the New Jersey Business Corporation Act.

4. The Certificate of Incorporation of the Corporation is amended so that the designation and number of shares of the series of Preferred Stock acted upon in the foregoing resolution, and the relative rights, preferences and limitations of such series, are as stated in the resolution.

IN WITNESS WHEREOF, Bio-Reference Laboratories, Inc. has caused this Certificate of Amendment to the Certificate of Incorporation to be duly executed this 20th day of August, 1993.

BIO-REFERENCE LABORATORIES, INC.

By

/s/ Marc D. Grodman

Marc D. Grodman, President

ATTEST:

/s/ Sam Singer

Sam Singer, Secretary

 

CERTIFICATE OF AMENDMENT TO THE

CERTIFICATE OF INCORPORATION OF

BIO-REFERENCE LABORATORIES, INC.

To: The Secretary of State
State of New Jersey

Pursuant to the provisions of Section 14A: 7-2(2), Corporations, General, of the New Jersey Statutes, the undersigned corporation executes this certificate of amendment to its certificate of incorporation:

1. The name of the corporation (hereinafter called the “Corporation”) is Bio-Reference Laboratories, Inc.

2. The following resolution has been duly adopted by the Board of Directors of the Corporation as required by Subsection 14A:7-2(3) of the New Jersey Business Corporation Act.

RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation in accordance with the provisions of its Certificate of Incorporation, the Board of Directors hereby creates a series of Series A Preferred Stock, $.l0 par value, of the Corporation, and hereby states the designation and amount thereof and fixes the relative rights, preferences and limitations thereof (in addition to the provisions set forth in the Certificate of Incorporation of the Corporation, which are applicable to the preferred stock of all classes and series) as follows, so that ARTICLE (3) of the Corporation’s Certificate of Incorporation be, and it hereby is, amended by deleting the present Article (3)B(1) and by inserting therein the following new paragraph B(1) immediately following ARTICLE (3)(B), paragraph 7:

B(1). Series A Senior Preferred Stock.

(a) Designation and Amount. An aggregate of 604,078 shares of series A Preferred Stock, $.10 par value, of the Corporation are hereby constituted as a series designated as “Series A Senior Preferred Stock”

1



(the “Series A Senior Preferred Stock”). Such number of shares nay be increased or decreased by resolution of the Board of Directors.

(b) Vote. Except as may otherwise be required by law, this Certificate of Incorporation or the provisions of the resolution or resolutions as may be adopted by the Board of Directors pursuant to paragraph (B) of this Article THIRD, each holder of Series A Senior Preferred Stock shall have one vote in respect of each share of Series A Senior Preferred Stock held by such holder on each matter voted upon by the stockholders. The holders of shares of Series A Senior Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.

(c) Dividends. Holders of Series A Senior Preferred Stock shall be entitled to be paid dividends on a per share basis equal to dividends, if any paid on a per share basis to holders of Common Stock, at the time such dividends are paid with respect to the Common Stock.

(d) Liquidation Rights. After distribution in full of any preferential amount (fixed in accordance with the provisions of paragraph (B) of this Article THIRD), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale or assets, dissolution or winding-up of this Corporation, the holders of the Series A Senior Preferred Stock together with the holders of the Common Stock shall be entitled to receive all the remaining assets of this Corporation, tangible and intangible, of whatever kind available for distribution to stockholders, ratably on a per share basis in proportion to the number of shares of the Series A Senior Preferred Stock and the Common Stock held by each.

(e) Conversion Rights. From and after the Date of Issuance and prior to the close of business on May 1, 2007, each share of Series A Senior Preferred Stock shall be convertible, at the option of the holder, upon payment of the Conversion Price, into one share of Common Stock. The initial Conversion Price shall be $.75 per share. In the event of a stock dividend, combination, stock split or reverse stock split, the Conversion Price and the number of shares of Common Stock into which the Series A Senior Preferred Stock may be converted shall be appropriately adjusted.”

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3. The foregoing resolution was duly adopted by the Board of Directors of the Corporation on May 17, 1997, pursuant to authority granted under Section 14A:7-2(2) of the New Jersey Business Corporation Act.

4. The Certificate of Incorporation of the Corporation is amended so that the designation and number of shares of the series of Preferred Stock acted upon in the foregoing resolution, and the relative rights, preferences and limitations of such series, are as stated in the resolution.

IN WITNESS WHEREOF, Bio-Reference Laboratories, Inc. has caused this Certificate of Amendment to the Certificate of Incorporation to be duly executed this 25th day of March, 1998.

BIO-REFERENCE LABORATORIES, INC.

By

/s/ Marc D. Grodman

Marc D. Grodman, President

 

ATTEST:

/s/ Sam Singer

Sam Singer, Secretary

 

CERTIFICATE OF AMENDMENT

TO THE

CERTIFICATE OF INCORPORATION

of

BIO-REFERENCE LABORATORIES, INC.

To: The Secretary of State

State of New Jersey

Pursuant to the provisions of Section 14A:7-2(2), Corporations, General, of the New Jersey statutes, the undersigned corporation executes this certificate of amendment to its certificate of incorporation:

1. The name of the corporation (hereinafter called the “Corporation”) is Bio-Reference Laboratories, Inc.

2. The following resolution has been duly adopted by the Board of Directors of the Corporation as required by Subsection 14A:7-2(3) of the New Jersey Business Corporation Act.

RESOLVED, that pursuant to the authority vested in the Board of Directors of the Corporation in accordance with the provisions of its Certificate of Incorporation, the Board of Directors hereby creates a series of Preferred Stock, $.10 par value, of the Corporation, and hereby states the designation and amount thereof and fixes the relative rights, preferences and limitations thereof (in addition to the provisions set forth in the Certificate of Incorporation of the Corporation, which are applicable to the preferred stock of all classes and series) as follows, so that ARTICLE (3) of the Corporation’s Certificate of Incorporation be, and it hereby is, amended by inserting therein the following paragraph B(2) immediately following ARTICLE (3) (B), paragraph 7, paragraph B(1):

B(2). Series A Junior Participating Preferred Stock.

Section 1. Designation and Amount. The shares of such series shall be designated as “Series A Junior Participating Preferred Stock” and the number of shares constituting such series shall be 3,000.

Section 2. Dividends and Distributions. (A) Subject to the prior and superior rights of the holders of any shares of any series of Preferred Stock ranking prior and superior to the shares of Series A Junior Participating Preferred Stock with respect to dividends, the holders of shares of Series A Junior Participating

1



Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the 15th day of March, June, September and December in each year (each such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Junior Participating Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $500 or (b) subject to the provision for adjustment hereinafter set forth, 10,000 times the aggregate per share amount of all cash dividends, and 10,000 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock, par value $.01 per share, of the Corporation (the “Common Stock”) since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Junior Participating Preferred Stock. In the event the Corporation shall at any time after March 31, 1998 (the “Rights Declaration Date”) (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount to which holders of shares of Series A Junior Participating Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.

(B) The Corporation shall declare a dividend or distribution on the Series A Junior Participating Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $500 per share on the Series A Junior Participating Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.

(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A Junior Participating Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date in which

2



case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Junior Participating Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Junior Participating Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Junior Participating Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than 30 days prior to the date fixed for the payment thereof.

Section 3. Voting Rights. The holders of shares of Series A Junior Participating Preferred Stock shall have the following voting rights:

(A) Subject to the provision for adjustment hereinafter set forth, each share of Series A Junior Participating Preferred stock shall entitle the holder thereof to 10,000 votes on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the number of votes per share to which holders of shares of Series A Junior Participating Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.

(B) Except as otherwise provided herein or by law, the holders of shares of Series A Junior Participating Preferred Stock, the holders of shares of Common Stock and the holders of Series A Senior Preferred Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.

(C) (i) If at any time dividends on any Series A Junior Participating Preferred Stock shall be in arrears in an amount equal to six (6) quarterly dividends thereon, the occurrence of such contingency shall mark the beginning of a period (herein called a “default period”) which shall extend until such time when all accrued and unpaid dividends for all previous quarterly

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dividend periods and for the current quarterly dividend period on all shares of Series A Junior Participating Preferred Stock then outstanding shall have been declared and paid or set apart for payment. During each default period, all holders of Preferred Stock (including holders of the Series A Junior Participating Preferred Stock) with dividends thereon, voting as a class, irrespective of series, shall have the right to elect two (2) Directors.

(ii) During any default period, such voting right of the holders of Series A Junior Participating Preferred Stock may be exercised initially at a special meeting called pursuant to subparagraph (iii) of this Section 3(C) or at any annual meeting of stockholders, and thereafter at annual meetings of stockholders, provided that neither such voting right nor the right of the holders of any other series of Preferred Stock, if any, to increase, in certain cases, the authorized number of Directors shall be exercised unless the holders of ten percent (10%) in number of shares of Preferred Stock outstanding shall be present in person or by proxy. The absence of a quorum of the holders of Common Stock shall not affect the exercise by the holders of Preferred Stock of such voting right. At any meeting at which the holders of Preferred Stock shall exercise such voting right initially during an existing default period, they shall have the right, voting as a class, to elect Directors to fill such vacancies, if any, in the Board of Directors as may then exist up to two (2) Directors. If the number which may be so elected at any special meeting does not amount to the required number, the holders of the Preferred Stock shall have the right to make such increase in the number of Directors as shall be necessary to permit the election by them of the required number. After the holders of the Preferred Stock shall have exercised their right to elect Directors in any default period and during the continuance of such period, the number of Directors shall not be increased or decreased except by vote of the holders of Preferred Stock as herein provided or pursuant to the rights of any equity securities ranking senior to or pari passu with the Series A Junior Participating Preferred Stock.

(iii) Unless the holders of Preferred Stock shall, during an existing default period, have previously exercised their right to elect Directors, the Board of Directors may order, or any stockholder or stockholders owning in the aggregate not less than ten percent (10%) of the total number of shares of Preferred Stock outstanding, irrespective of series, may request, the calling of special meeting of the holders of Preferred stock, which meeting shall thereupon be called by the President, a Vice-President or the Secretary of the Corporation. Notice of such meeting and of any annual meeting at which holders of Preferred Stock are entitled to vote pursuant to this paragraph (C) (iii) shall be given to each holder of record of Preferred Stock by mailing a copy of such notice to him at his last address as the same appears on the books

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of the Corporation. Such meeting shall be called for a time not earlier than 10 days and not later than 60 days after such order or request or in default of the calling of such meeting may be called on similar notice by any stockholder or stockholders owning in the aggregate not less than ten percent (10%) of the total number of shares of Preferred Stock outstanding. Notwithstanding the provisions of this paragraph (C) (iii), no such special meeting shall be called during the period within 60 days immediately preceding the date fixed for the next annual meeting of the stockholders.

(iv) In any default period, the holders of Common Stock, and other classes of stock of the Corporation if applicable, shall continue to be entitled to elect the whole number of Directors until the holders of Preferred Stock shall have exercised their right to elect two (2) Directors voting as a class, after the exercise of which right (x) the Directors so elected by the holders of Preferred Stock shall continue in office until their successors shall have been elected by such holders or until the expiration of the default period, and (y) any vacancy in the Board of Directors may (except as provided in paragraph (C) (ii) of this Section 3) be filled by vote of a majority of the remaining Directors theretofore elected by holders of the class of stock which elected the Director whose office shall have become vacant. References in this paragraph (C) to Directors elected by the holders of a particular class of stock shall include Directors elected by such Directors to fill vacancies as provided in clause (y) of the foregoing sentence.

(v) Immediately upon the expiration of a default period, (x) the right of the holders of Preferred Stock as a class to elect Directors shall cease, (y) the term of any Directors elected by the holders of Preferred Stock as a class shall terminate, and (z) the number of Directors shall be such number as may be provided for in the certificate of incorporation or by-laws irrespective of any increase made pursuant to the provisions of paragraph (C) (ii) of this Section 3 (such number being subject, however, to change thereafter in any manner provided by law or in the certificate of incorporation or by-laws). Any vacancies in the Board of Directors effected by the provisions of clauses (y) and (z) in the preceding sentence may be filled by a majority of the remaining Directors.

(D) Except as set forth herein, holders of Series A Junior Participating Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.

Section 4. Certain Restrictions. (A) Whenever quarterly dividends or other dividends, or distributions payable on the Series A Junior Participating Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends

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and distributions, whether or not declared, on shares of Series A Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation shall not

(i) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock;

(ii) declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, except dividends paid ratably on the Series A Junior Participating Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;

(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Junior Participating Preferred Stock;

(iv) redeem or purchase or otherwise acquire for consideration any shares of Series A Junior Participating Preferred Stock, or any shares of stock ranking on a parity with the Series A Junior Participating Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.

(B) The corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation

6



could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner.

Section 5. Reacquired Shares. Any shares of Series A Junior Participating Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein.

Section 6. Liquidation, Dissolution or Winding Up.

(A) Upon any liquidation (voluntary or otherwise), dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock unless, prior thereto, the holders of shares of Series A Junior Participating Preferred Stock shall have received $10,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment (the “Series A Liquidation Preference”). Following the payment of the full amount of the Series A Liquidation Preference, no additional distributions shall be made to the holders of shares of Series A Junior Participating Preferred Stock unless, prior thereto, the holders of shares of Common Stock shall have received an amount per share (the “Common Adjustment”) equal to the quotient obtained by dividing (i) the Series A Liquidation Preference by (ii) 10,000 (as appropriately adjusted as set forth in subparagraph C below to reflect such events as stock splits, stock dividends and recapitalizations with respect to the Common Stock) (such number in clause (ii), the “Adjustment Number”). Following the payment of the full amount of the Series A Liquidation Preference and the Common Adjustment in respect of all outstanding shares of Series A Junior Participating Preferred Stock and Common Stock, respectively, holders of Series A Junior Participating Preferred Stock and holders of shares of Common Stock shall receive their ratable and proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number to 1 with respect to such Preferred Stock and Common Stock, on a per share basis, respectively.

(B) In the event, however, that there are not sufficient assets available to permit payment in full of the Series A Liquidation Preference and the liquidation preferences of all other series of preferred stock, if any, which rank on a parity with the Series A Junior Participating Preferred Stock, then such remaining assets shall be distributed ratably to the holders of such parity shares in proportion to their respective liquidation preferences.

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In the event, however, that there are not sufficient assets available to permit payment in full of the Common Adjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock.

(C) In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.

Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series A Junior Participating Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 10,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Junior Participating Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common stock that were outstanding immediately prior to such event.

Section 8. No Redemption. The shares of Series A Junior Participating Preferred Stock shall not be redeemable.

Section 9. Ranking. The Series A Junior Participating Preferred Stock shall rank junior to all other series of the Corporation’s Preferred Stock as to the payment of dividends and the distribution of assets, unless the terms of any such series shall provide otherwise.

Section 10. Amendment. The Certificate of Incorporation of the Corporation shall not be further amended in any manner which

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would materially alter or change the powers, preferences or special rights of the Series A Junior Participating Preferred Stock so as to affect them adversely without the affirmative vote of the holders of two-thirds of the outstanding shares of Series A Junior Participating Preferred Stock, voting separately as a class; it being understood that nothing in this Section 10 shall be deemed to restrict the Corporation from designating additional shares of Series A Junior Participating Preferred Stock if the Board of Directors determines that it is necessary to do so in order to achieve the purposes of the Rights Agreement, dated as of March 31, 1998 between the Corporation and American Stock Transfer & Trust Company.

Section 11. Fractional Shares. Series A Junior Participating Preferred Stock may be issued in fractions of a share which shall entitled the holder, in proportion to such holders fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series A Junior Participating Preferred Stock.

IN WITNESS WHEREOF, Bio-Reference Laboratories, Inc. has caused this Certificate of Amendment to the Certificate of Incorporation to be duly executed this day of March 31, 1998.

BIO-REFERENCE LABORATORIES, INC.

By

/s/ Marc D. Grodman

Marc D. Grodman, President

Attest:

/s/ Sam Singer

Sam Singer, Secretary

 

CERTIFICATE OF AMENDMENT TO THE

CERTIFICATE OF INCORPORATION

OF BIO-REFERENCE LABORATORIES, INC.

To:

The Secretary of State

State of New Jersey

Pursuant to the provisions of Section 14A: 9-4, Corporations, General, of the New Jersey Statutes, the undersigned corporation executes this certificate of amendment to its certificate of incorporation:

(a) The name of the corporation is Bio-Reference Laboratories, Inc.

(b) Article 3(A) of the corporation’s certificate of incorporation, as amended, is hereby further amended to increase the authorized Common Stock of the corporation from 18,333,333 shares to 35,000,000 shares. The resolution authorizing the amendment and the amendment is as follows:

RESOLVED that Article 3(A) of this corporation’s certificate of incorporation, as amended, be and it hereby is further amended to increase the authorized shares of Common Stock, $.01 par value per share, to 35,000,000 shares, without changing the par value per share, and to read in its entirety as follows:

“3. Capital Stock (A) authorized Capital Stock. The total number of shares of all classes of stock which this corporation shall have authority to issue is THIRTY SIX MILLION SIX HUNDRED SIXTY SIX THOUSAND SIX HUNDRED SIXTY SEVEN (36,666,667) shares, consisting of THIRTY FIVE MILLION (35,000,000) shares of Common Stock, $.01 par value per share (hereinafter the ‘Common Stock’) and ONE MILLION SIX HUNDRED SIXTY SIX THOUSAND SIX HUNDRED SIXTY SEVEN (1,666,667) shares of Preferred Stock, $.10 par value per share (hereinafter, the ‘Preferred Stock.’)”



(c) The foregoing amendment to the corporation’s certificate of incorporation, as amended, was duly adopted by the shareholders of the corporation at a meeting of shareholders held on July 31, 2003.

(d) There were an aggregate 11,429,783 shares of Common Stock and an aggregate 604,078 shares of Series A Senior Preferred Stock (and no other classes of stock) entitled to notice of and to vote at the July 31, 2003 shareholder meeting, Each such share was entitled to one vote. The holders of the Common Stock and the Series A Senior Preferred Stock vote together as one class.

(e) At the July 31, 2003 shareholder meeting, an aggregate 11,178,575 votes were cast for and an aggregate 385,777 votes were voted against the proposed amendment set forth above to Article 3(A) of the corporation’s certificate of incorporation, as amended, so that said amendment was duty adopted.

(f) This amendment is not intended to provide for an exchange, reclassification or cancellation of issued shares.

(g) This amendment is intended to become effective at the time of filing with the New Jersey Secretary of State.

Dated this 22nd day of September 2003

BIO-REFERENCE LABORATORIES, INC.

By

/s/ Marc D. Grodman

Marc D. Grodman, President

ATTEST:

/s/ Sam Singer

Sam Singer, Secretary

 

[As Filed: 01-13-2012]