EXHIBIT 4.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
PARACELSUS HEALTHCARE CORPORATION
A CALIFORNIA CORPORATION
R.J. MESSENGER and ROBERT C. JOYNER certify that:
1. They are the duly elected and acting President and Assistant Secretary,
respectively, of the corporation named above.
2. The articles of incorporation of the corporation shall be amended and
restated to read in full as follows:
FIRST. The name of the corporation is PARACELSUS HEALTHCARE CORPORATION.
SECOND. The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California ("GCLC") other than the banking business, the trust company
business or the practice of a profession permitted to be incorporated by the
California Corporations Code.
THIRD. The total number of shares of all classes of stock which the
corporation shall have authority to issue is 175,000,000, of which 150,000,000
shares of no par value shall be designated as Common Stock and 25,000,000 shares
of the par value of $0.01 per share shall be designated as 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 powers, preferences and
rights, and the qualifications, limitations and restrictions thereof, of the
shares of each series of Preferred Stock, including without limitation the
following:
(a) the distinctive serial designation of such series which shall
distinguish it from other series;
(b) 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;
(c) the dividend rate (or method of determining such rate, which may be
fixed or variable) 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;
(d) whether dividends on the shares of such series shall be cumulative
and, in the case of shares of any series having 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;
(e) 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 the corporation;
(f) 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
purchased or 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 of a
specified event or events;
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(g) the obligation, if any, of the corporation to purchase or redeem
shares of such series pursuant to a sinking 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 shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(h) 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 or debt
securities of the corporation or of any other entity, and the price or
prices or rate or rates of exchange or conversion and any adjustments
applicable thereto; and
(i) the voting rights, if any, of the holders of the shares of such
series.
Upon this amendment and restatement becoming effective, each of the
outstanding shares of Common Stock shall be split up and converted into
66,159.426 shares of Common Stock.
FOURTH. The board of directors of the corporation is expressly authorized
to adopt, amend or repeal the by-laws of the corporation. This Article Fourth
and the by-laws of the corporation may not be amended, modified or repealed by
the holders of the capital stock of the corporation except by the affirmative
vote of the holders of not less than a majority of the Total Voting Power (as
hereinafter defined) of the corporation and the affirmative vote of the holders
of a majority of the voting power of all outstanding Public Shares (as
hereinafter defined), each considered for purposes hereof as a single class.
For the purposes of these Articles, the following terms shall have the
following meanings: The term "Public Shares" shall mean shares of capital stock
of the corporation not beneficially owned (as determined pursuant to Rule 13d-3
or Rule 13d-5 of the Securities Exchange Act of 1934, as amended, as in effect
on the date this Restated Certificate of Incorporation becomes effective (the
"Exchange Act")) by any individual, partnership, corporation, limited liability
company, trust or other entity (a "Controlling Person") that is a member of any
group (as defined under Rule 13d-5 of the Exchange Act) that beneficially owns
25 percent or more of the Total Voting Power of the corporation; PROVIDED that
the Independent Directors (as hereinafter defined) shall have the power and duty
to construe and apply the provisions of this definition and to make all
determinations necessary or desirable to implement such provisions. The term
"Independent Directors" shall mean the directors of the corporation who are not
employed by, affiliated with or nominees or representatives of any Controlling
Person or employed by or affiliated with the corporation or any of their
respective Subsidiaries (as hereinafter defined), excluding for the purpose of
the foregoing any affiliation by reason of being a member on the Board of
Directors (but not an officer) of the corporation or its Subsidiaries. The term
"Subsidiary" with respect to any person shall mean any corporation or other
organization, whether incorporated or unincorporated, of which at least a
majority of the voting power of all outstanding securities entitled by the terms
thereof to vote generally in the election of directors, or others performing
similar functions with respect to such corporation or other organization, is
directly or indirectly beneficially owned by such person. The term "Total Voting
Power" shall mean the non-diluted aggregate number of votes that may be cast by
the holders of outstanding Voting Securities. The term "Voting Securities" shall
mean securities entitled to vote in the ordinary course in the election of
directors or of persons serving in a similar governing capacity, including the
voting rights attached to such securities and rights or options to acquire such
securities.
FIFTH. The number of directors of the corporation shall be fixed from time
to time pursuant to the by-laws of the corporation.
The directors of the corporation shall be divided into three classes, as
nearly equal in number as possible, as determined by the board of directors,
with the initial term of office of Class I to expire at the first annual meeting
of shareholders thereafter, the initial term of office of Class II to expire at
the second annual meeting of shareholders thereafter and the initial term of
office of Class III to expire at the third annual meeting of shareholders
thereafter, with each class of directors to hold office until
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their successors have been duly elected and qualified. At each annual meeting of
shareholders following such initial classification and election, directors
elected to succeed the directors whose terms expire at such annual meeting shall
be elected to hold office for a term expiring at the annual meeting of
shareholders in the third year following the year of their election and until
their successors have been duly elected and qualified. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain or attain a number of directors in each class as
nearly equal as possible, but no decrease in the number of directors may shorten
the term of any incumbent director. This provision shall become effective only
when the corporation becomes a listed corporation within the meaning of Section
301.5 of the GCLC.
Shareholders shall not be entitled to cumulate votes in the election of
directors. This provision shall become effective only when the corporation
becomes a listed corporation within the meaning of Section 301.5 of the GCLC.
No director may be removed except for cause as set forth in Sections 302 and
304 of the GCLC, except as otherwise provided by Section 303 of the GCLC.
In the event that the holders of any class or series of stock of the
corporation shall be entitled, voting separately as a class, to elect any
directors of the corporation, then the number of directors that may be elected
by such holders shall be in addition to the number fixed pursuant to the by-laws
and, except as otherwise expressly provided in the terms of such class or
series, the terms of the directors elected by such holders shall expire at the
annual meeting of shareholders next succeeding their election without regard to
the classification of the remaining directors.
This Article Fifth may not be amended, modified or repealed except by the
affirmative vote of the holders of not less than eighty percent (80%) of the
Total Voting Power and the affirmative vote of the holders of a majority of the
voting power of all outstanding Public Shares, each considered for purposes
hereof as a single class.
SIXTH. No action required or permitted to be taken by the holders of any
class or series of stock of the corporation, including but not limited to the
election of directors, may be taken by written consent or consents and must be
taken at a duly called annual meeting or at a special meeting of shareholders.
This Article Sixth may not be amended, modified or repealed except by the
affirmative vote of the holders of not less than seventy-five percent (75%) of
the Total Voting Power of the corporation and the affirmative vote of the
holders of a majority of the voting power of all outstanding Public Shares, each
considered for purposes hereof as a single class.
SEVENTH. (a) The Board of Directors may not alter, amend or repeal
Sections 2.3, 2.4, 2.7, 2.11, 2.12, 2.14, 2.16, 3.2, 3.3, 3.4, 3.5, 3.8, 3.9,
4.1, 4.4, Article VI or Article IX of the By-laws, except upon the affirmative
vote of not less than seventy-five percent (75%) of the entire Board of
Directors.
(b) In addition to any approval required by the GCLC or any other provisions
of these Articles, the approval of any contract or transaction between the
Corporation or any of its subsidiaries and one or more of its directors or
Controlling Persons (or any of their "affiliates" as such term is defined in
Rule 12b-2 of the Securities and Exchange Act of 1934, as amended), or between
the corporation or any of its subsidiaries and any other corporation,
partnership, association or other organization in which one or more of its
directors or Controlling Persons have a material financial interest, shall
require that (i) the material facts as to his or her relationship or interest
and as to the contract or transaction be fully and fairly disclosed in good
faith to the Board of Directors and (ii) the Board of Directors in good faith
(having determined that the contract is just and reasonable) authorize the
contract or transaction by the affirmative vote of a majority of the
disinterested directors present at the meeting of the Board of Directors at
which such contract or transaction is considered (or, if there is only one
disinterested director, such disinterested director), even though such
disinterested directors consititute less than a quorum. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors which authorizes the contract or transaction. A mere
common directorship does not constitute a material financial interest within the
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meaning of this Article Seventh. A director is not interested within the meaning
of this subdivision in a resolution fixing the compensation of another director
as a director, officer or employee of the corporation, notwithstanding the fact
that the first director is also receiving compensation from the corporation.
If the other provisions hereinabove are met, no such contract or other
transaction contemplated above, or vote of a director, whether one or more, or
the Board of Directors, shall be void or voidable solely because a director is
not a disinterested director with respect to a matter and is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction to which such director is not a
disinterested director or solely because his or her or their votes are counted
for such approval for any purpose other than as provided above.
(c) Dividends on the outstanding shares of the corporation, if any, shall
not be declared except upon the affirmative vote of not less than seventy-five
percent (75%) of the entire Board of Directors at any regular or special
meeting. Dividends may be paid by the corporation in cash, in property, or in
the corporation's own shares, but only as permitted under Chapter 5 of the GCLC.
Subject to limitations upon the authority of the Board of Directors imposed by
any law, the declaration of and provision for payment of dividends shall be at
the discretion of the Board of Directors.
(d) The Board of Directors may, by resolution passed by the affirmative vote
of at least seventy-five percent (75%) of the entire Board of Directors, appoint
from its membership, annually, an Executive Committee of two or more directors,
which shall include the Chief Executive Officer and the President of the
corporation. The appointment or removal of any member (or alternate members) of
the Executive Committee shall require the affirmative vote of not less than
seventy-five percent (75%) of the entire Board of Directors.
This Article Seventh may not be amended, modified or repealed by the holders
of the capital stock of the corporation except by the affirmative vote of the
holders of not less than a majority of the Total Voting Power of the corporation
and the affirmative vote of the holders of a majority of the voting power of all
outstanding Public Shares, each considered for purposes hereof as a single
class.
EIGHTH. The corporation shall not enter into or recommend any Acquisition
Proposal except upon the affirmative vote of not less than seventy-five percent
(75%) of the entire Board of Directors. For purposes of this Article Eighth, an
Acquisition Proposal shall mean any BONA FIDE offer or proposal for (i) a merger
or other business combination (other than a Surviving Company Merger (as
hereinafter defined)) involving the corporation, (ii) the acquisition of any
Voting Securities representing more than 50% of the Total Voting Power of the
corporation after giving effect to such Acquisition Proposal or (iii) the
acquisition of all or substantially all of the assets of the corporation. For
purposes of this Article Eighth, a "Surviving Company Merger" shall mean any
merger or other business combination or reorganization (i) where the transaction
has been approved by a unanimous vote of the entire Board of Directors or (ii)
where the holders of Voting Securities of the corporation prior to such
transaction will beneficially own (as determined pursuant to Rule 13d-3 or Rule
13d-5 of the Exchange Act) in the aggregate at least 60% of the surviving
corporation's Total Voting Power immediately after giving effect to such
transaction.
This Article Eighth may not be amended, modified or repealed except by the
affirmative vote of the holders of not less than a majority of the Total Voting
Power of the corporation and the affirmative vote of the holders of a majority
of the voting power of all outstanding Public Shares, each considered for
purposes hereof as a single class.
NINTH. The liability of directors of the corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law. No
amendment, modification or repeal of this Article Ninth shall adversely affect
any right or protection of a director that exists at the time of such amendment,
modification or repeal.
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This Article Ninth may not be amended, modified or repealed except by the
affirmative vote of the holders of not less than eighty percent (80%) of the
Total Voting Power of the corporation and the affirmative vote of the holders of
a majority of the voting power of all outstanding Public Shares, each considered
for purposes hereof as a single class.
TENTH. The corporation is authorized to indemnify the directors, officers,
employees or other agents of the corporation to the fullest extent permissible
under California law.
ELEVENTH. The Board of Directors is expressly authorized to adopt, amend or
repeal a shareholder protection rights plan, which plan (or the securities
issued pursuant to the terms of such plan) may distinguish between shares of
Common Stock or other securities of the same class or series and may distinguish
between shareholders of Common Stock or other securities of the same class or
series.
This Article Eleventh may not be amended, modified or repealed except by the
affirmative vote of the holders of not less than eighty percent (80%) of the
Total Voting Power and the affirmative vote of the holders of a majority of the
voting power of all outstanding Public Shares, each considered for purposes
hereof as a single class.
3. The foregoing amendment and this certificate have been approved by the
Board of Directors of the corporation.
4. The foregoing amendment was approved by the required vote of the
shareholder of the corporation in accordance with Section 902 of the GCLC; the
corporation has only one class of shares and the total number of outstanding
shares of such class entitled to vote with respect to the foregoing amendment
was 450 shares; and the total number of shares of such class voting in favor of
the foregoing amendment equaled or exceeded the vote required, such required
vote being a majority of the outstanding shares of such class.
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Each of the undersigned declares under penalty of perjury under the laws of
the State of California that he has read the foregoing certificate and knows the
contents thereof and that the same is true of his own knowledge.
Dated:
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