THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SHERIDAN HEALTHCARE, INC.
Sheridan Healthcare, Inc., 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 Sheridan Healthcare, Inc. The date of the
filing of its original Certificate of Incorporation with the Secretary of State
of the State of Delaware was October 27, 1994. The name under which the
Corporation filed its original Certificate of Incorporation was SAMA Holdings,
Inc.
2. This Third Amended and Restated Certificate of Incorporation amends,
restates and integrates the provisions of the Second Amended and Restated
Certificate of Incorporation of the Corporation filed with the Secretary of
State of the State of Delaware on October 30, 1995, as heretofore amended (the
"Certificate of Incorporation"), and was duly adopted by the written consent of
the stockholders of the Corporation, with written notice thereof having been
given to all stockholders of the Corporation who have not given their written
consent, all in accordance with the applicable provisions of Sections 228, 242
and 245 of the General Corporation Law of the State of Delaware (the "DGCL").
3. The text of the Certificate of Incorporation is hereby amended and
restated in its
entirety to provide as herein set forth in full.
ARTICLE I
NAME
The name of the Corporation is Sheridan Healthcare, Inc.
ARTICLE II
REGISTERED OFFICE
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
PURPOSES
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
The total number of shares of capital stock which the Corporation shall
have the authority to issue is Thirty-Six Million (36,000,000) shares of which
(i) Thirty Million (30,000,000) shares shall be Common Stock, par value $.01 per
share (the "Common Stock"), (ii) One Million (1,000,000) shares shall be Class A
Common Stock, par value $.01 per share (the "Class A Common Stock" and together
with the Common Stock, the "Common Shares") and (iii) Five Million (5,000,000)
shares shall be Preferred Stock, par value $.01 per share (the "Preferred
Stock").
As set forth in this Article IV, the Board of Directors or any authorized
committee thereof is authorized from time to time to establish and designate one
or more series of Preferred Stock, to fix and determine the variations in the
relative rights and preferences as between the different series of Preferred
Stock in the manner hereinafter set forth in this Article IV, and to fix or
alter the number of shares comprising any such series and the designation
thereof to the extent permitted by law.
The number of authorized shares of the class of Preferred Stock may be
increased or decreased (but not below the number of shares outstanding) by the
affirmative vote of the holders of a majority of the Common Stock, without a
vote of the holders of the Preferred Stock.
The designations, powers, preferences and rights of, and the
qualifications, limitations and restrictions upon, each class or series of stock
shall be determined in accordance with, or as set forth below.
Subject to any limitations prescribed by law, the Board of Directors or any
authorized committee thereof is expressly authorized to provide for the issuance
of the shares of Preferred Stock in one or more series of such stock, and by
filing a certificate pursuant to applicable law of the State of Delaware, to
establish or change from time to time the number of shares to be included in
each such series, and to fix the designations, powers, preferences and the
relative, participating, optional or other special rights of the shares of each
series and any qualifications, limitations and restrictions thereof. Any action
by the Board of Directors or any authorized committee thereof under this Article
IV to fix the designations, powers, preferences and the relative, participating,
optional or other special rights of the shares of a series of Preferred Stock
and any qualifications, limitations and restrictions thereof shall require the
affirmative vote of a majority of the Directors then in office or a majority of
the members of such committee. The Board of Directors or any authorized
committee thereof shall have the right to determine or fix one or more of the
following with respect to each series of Preferred Stock to the extent permitted
by law:
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(a) The distinctive serial designation and the number of shares
constituting such
series;
(b) The rights in respect of dividends or the amount of dividends to
be paid on the shares of such series, whether dividends shall be cumulative and,
if so, from which date or dates, the payment date or dates for dividends, and
the participating and other rights, if any, with respect to dividends;
(c) The voting powers, full or limited, if any, of the shares of
such series;
(d) Whether the shares of such series shall be redeemable and, if so,
the price or prices at which, and the terms and conditions on which, such shares
may be redeemed;
(e) The amount or amounts payable upon the shares of such series and
any preferences applicable thereto in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(f) Whether the shares of such series shall be entitled to the benefit
of a sinking or retirement fund to be applied to the purchase or redemption of
such shares, and if so entitled, the amount of such fund and the manner of its
application, including the price or prices at which such shares may be redeemed
or purchased through the application of such fund;
(g) Whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any other series of
the same or any other class or classes of stock of the Corporation and, if so
convertible or exchangeable, the conversion price or prices, or the rate or
rates of exchange, and the adjustments thereof, if any, at which such conversion
or exchange may be made, and any other terms and conditions of such conversion
or exchange;
(h) The price or other consideration for which the shares of such
series shall
be issued;
(i) Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of Preferred Stock (or
series thereof) and whether such shares may be reissued as shares of the same or
any other class or series of stock; and
(j) Such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as the Board of Directors or any authorized
committee thereof may deem advisable.
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A. COMMON SHARES
-------------
1. General. Except as herein otherwise expressly provided, all shares
of Common
Stock and Class A Common Stock shall be identical and shall entitle the
holders thereof to the
same rights and privileges.
2. Voting. Each holder of record shall be entitled to one vote for each
share of Common Stock standing in his name on the books of the Corporation. The
holders of Class A Common Stock shall not have any right to vote, except that,
as to any matter on which holders of Class A Common Stock are required to have a
vote under applicable law, (a) each holder of record shall be entitled to one
vote for each share of Class A Common Stock standing in his name on the books of
the Corporation and, (b) except as required by law, the holders of Common Stock
and Class A Common Stock shall vote together as a single class on all matters as
to which holders of Class A Common Stock are entitled to vote.
3. Dividends. Subject to applicable law, the holders of Common Shares shall
be entitled to receive dividends out of funds legally available therefor at such
times and in such amounts as the Board of Directors may determine in its sole
discretion, with each share of Common Stock and each share of Class A Common
Stock sharing equally, share for share, in such dividends, except that if
dividends are declared which are payable in shares of Common Stock or Class A
Common Stock, dividends shall be declared which are payable at the same rate in
both classes of stock and the dividends payable in shares of Common Stock shall
be payable to the holders of that class of stock and the dividends payable in
shares of Class A Common Stock shall be payable to the holders of that class of
stock.
4. Liquidation. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary (a "Liquidation Event"), after the
payment or provision for payment of all debts and liabilities of the Corporation
and all preferential amounts to which the holders of preferred stock are
entitled with respect to the distribution of assets in liquidation, the holders
of Common Shares shall be entitled to share ratably in the remaining assets of
the Corporation available for distribution.
5. Conversion of Class A Common Stock.
(a) Right to Convert. Subject to and upon compliance with the
provisions of this Section 5, each share of Class A Common Stock which is
to be distributed, disposed of or sold in connection with a Class A
Conversion Event (as defined below) shall be convertible, at the option of
the holder thereof, into fully paid and non-assessable shares of Common
Stock, effective upon the occurrence of (or the expected occurrence of) a
Class A Conversion Event at the rate of one share of Common Stock for each
share of Class A Common Stock so converted (the "Class A Common Conversion
Rate"), subject to adjustment as provided in Section 7, provided that such
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holder has given the Corporation notice of its intent to exercise its
rights hereunder prior to the effectiveness of such Class A Conversion
Event. A "Class A Conversion Event" shall mean (i) any sale in connection
with any public offering or public sale of securities of the Corporation
(including a public offering registered under the Securities Act of 1933,
as amended (the "Securities Act")), and a sale pursuant to Rule 144 of the
Securities and Exchange Commission or any similar rule then in force), (ii)
any sale (including by way of a merger, consolidation or similar
transaction) of securities of the Corporation to a person or group of
persons (within the meaning of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) if, after such sale, such person or group of
persons in the aggregate would own or control securities which possess in
the aggregate the power to elect a majority of the Corporation's directors
(provided that such sale has been approved by the Corporation's Board of
Directors or a committee thereof), (iii) any sale (including by way of a
merger, consolidation or similar transaction) of securities of the
Corporation to a person or group of persons (within the meaning of the
Exchange Act) if, after such sale, such person or group of persons in the
aggregate would own or control securities of the Corporation (excluding any
being converted and disposed of in connection with such Class A Conversion
Event) which possess in the aggregate the power to elect a majority of the
Corporation's directors, and (iv) any sale of securities of the Corporation
to a person or group of persons (within the meaning of the Exchange Act)
if, after such sale, such person or group of persons in the aggregate would
not own, control or have the right to acquire more than two percent of the
outstanding securities of any class of voting securities of the
Corporation. The term, "person" shall include any natural person and any
corporation, partnership, joint venture, trust, unincorporated
organization, limited liability company, business association and any other
entity or organization.
(b) Notice of Conversion. Each holder of Class A Common Stock shall be
entitled to convert shares of Class A Common Stock which are to be
distributed, disposed of or sold in connection with a Class A Conversion
Event, if such holder reasonably believes that such Class A Conversion
Event will be consummated, and a written request for conversion from any
holder of Class A Common Stock to the Corporation stating such holder's
reasonable belief that a Class A Conversion Event shall occur shall be
conclusive and obligate the Corporation to effect such conversion in a
timely manner, so as to enable each such holder to participate in such
Class A Conversion Event. The Corporation will not cancel the shares of
Class A Common Stock so converted before the tenth day following such Class
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A Conversion Event and will reserve such shares until such tenth day for
reissuance in compliance with the next sentence. If any shares of Class A
Common Stock are converted into Common Stock in connection with a Class A
Conversion Event and such shares are not actually distributed, disposed of
or sold pursuant to such Class A Conversion Event, such shares of Common
Stock shall promptly be converted back into the same number of shares of
Class A Common Stock. No share or shares of the Class A Common Stock
acquired by the Corporation by reason of conversion or otherwise shall be
reissued, and all such shares shall be canceled, retired and eliminated
from the shares which the Corporation shall be authorized to issue. The
Corporation may from time to time take such appropriate corporate action as
may be necessary to reduce the authorized number of shares of the Class A
Common Stock accordingly.
(c) Surrender of Certificates. Each conversion of shares of Class A
Common Stock into shares of Common Stock shall be effected by the surrender
of the certificate or certificates representing the shares of Class A
Common Stock to be converted, duly assigned or endorsed for transfer to the
Corporation (or accompanied by duly executed stock powers relating
thereto), at the principal executive office of the Corporation or the
offices of the transfer agent for the Common Shares or such office or
offices in the continental United States of an agent for conversion as may
from time to time be designated by notice to the holders of the Class A
Common Stock by the Corporation together with written notice by the holder
of such Class A Common Stock stating that such holder desires to convert
the shares, or a stated number of the shares, of Class A Common Stock
represented by such certificate, into Common Stock, which notice shall also
state the name or names (with addresses) and denominations in which the
certificate or certificates for Common Stock shall be issued and shall
include instructions for delivery thereof. Upon surrender of a certificate
representing Class A Common Stock for conversion, the Corporation shall
issue and send by hand delivery, by courier or by first class mail (postage
prepaid) to the holder thereof or to such holder's designee, at the address
designated by such holder, certificates for the number of shares of Common
Stock to which such holder shall be entitled upon conversion. In the event
that there shall have been surrendered a certificate or certificates
representing Class A Common Stock, only part of which are to be converted,
the Corporation shall issue and send to such holder or such holder's
designee, in the manner set forth in the preceding sentence, a new
certificate or certificates representing the number of shares of Class A
Common Stock which shall not have been converted. If the certificate or
certificates for Common Stock are to be issued in a name other than the
name of the registered holder of the stock surrendered for conversion, the
Corporation shall not be obligated to issue or deliver any certificate
unless and until the holder of the stock surrendered has paid to the
Corporation the amount of any tax that may be payable in respect of any
transfer involved in such issuance or shall establish to the satisfaction
of the Corporation that such tax has been paid. The issuance of
certificates for Common Stock upon conversion of Class A Common Stock will
be made without charge to the holders of such shares for any issuance tax
in respect thereof or other costs incurred by the Corporation in connection
with such conversion and the related issuance of such stock.
(d) Effective Date of Conversion. Such conversion shall be deemed to
have been effected as of the close of business on the date on which such
certificate or certificates shall have been surrendered and such notice
shall have been received by the Corporation and at such time the rights of
the holder of such Class A Common Stock (or specified portion thereof) as
to such converted shares shall cease and the person or persons in whose
name or names any certificate or certificates for shares of Common Stock
are to be issued upon such conversion shall be deemed to have become the
holder or holders of record of the shares of Common Stock represented
thereby.
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(e) Reservation of Common Stock. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares of
Common Stock, solely for the purpose of issuance upon the conversion of the
Class A Common Stock, such number of shares of Common Stock issuable upon
the conversion of all outstanding shares of Class A Common Stock.
(f) No Closing of Transfer Books. The Corporation shall not close its
books against the transfer of Common Shares in any manner which would
interfere with the timely conversion of any shares of Class A Common Stock.
6. Adjustments.
(a) Changes in Common Stock. In the event the Corporation shall (i)
pay a dividend in or make a distribution in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares, or (iv)
issue by reclassification of its shares of Common Stock any shares of the
Corporation, the Class A Common Conversion Rate in effect immediately prior
thereto shall be adjusted so that the holder of a share of Class A Common
Stock thereafter surrendered for conversion shall be entitled to receive
the number of shares of Common Stock which it would have owned or have been
entitled to receive after the happening of any of the events described
above had such share of Class A Common Stock been converted on or
immediately prior to the record date for such dividend or the effective
date of such subdivision, combination or reclassification, as the case may
be.
(b) Changes in Class A Common Stock. In the event that the Corporation
shall (i) pay a dividend in or make a distribution in shares of its Class A
Common Stock, (ii) subdivide its outstanding shares of Class A Common
Stock, (iii) combine its outstanding shares of Class A Common Stock into a
smaller number of shares, or (iv) issue by reclassification of its shares
of Class A Common Stock any shares of the Corporation, the Class A Common
Conversion Rate in effect immediately prior thereto shall be adjusted so
that the holder of a share of Class A Common Stock thereafter surrendered
for conversion shall be entitled to receive the number of shares of Common
Stock which it would have owned or have been entitled to receive after the
happening of any of the events described above had such share of Class A
Common Stock been converted on or immediately prior to the record date for
such dividend or the effective date of such subdivision, combination or
reclassification, as the case may be.
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(c) General. An adjustment made pursuant to this Section 6 shall
become effective immediately after the record date (in the case of a
dividend or distribution in shares of capital stock) and shall become
effective immediately after the effective date, (in the case of a
subdivision, combination or reclassification). No adjustment in accordance
with this Section 6 shall be required unless such adjustment would require
an increase or decrease in any conversion rate of at least 0.1%; provided,
however, that any adjustments which by reason of this clause are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. Any calculations under this Section 6 shall be made
to the nearest one-thousandth of a share.
7. Notices. In the event that the Corporation provides any notice, report
or statement to any holder of Common Shares, the Corporation shall at the same
time provide a copy of any such notice, report or statement to each holder of
outstanding Common Shares.
8. Reclassification.
(a) Effective November 3, 1995 (the "Effective Date"), each share of
the Corporation's Class A Voting Common Stock, par value $.01 per share (the
"Class A Voting Common Stock") issued and outstanding or held in treasury
immediately prior to the Effective Date shall, without any action on the part of
the respective holders thereof, be reclassified into one share of Common Stock,
and each stock certificate that, immediately prior to the Effective Date,
represented shares of Class A Voting Common Stock shall, from and after the
Effective Date and without the necessity of presenting the same for exchange,
represent one share of Common Stock.
(b) Effective upon the Effective Date, each share of the Corporation's
Class B Non-Voting Common Stock, par value $.01 per share (the "Class B
Non-Voting Common Stock"), issued and outstanding or held in treasury
immediately prior to the Effective Date shall, without any action on the part of
the respective holders thereof, be reclassified into one share of Class A Common
Stock, and each stock certificate that, immediately prior to the Effective Date,
represented shares of the Corporation's Class B Non-Voting Common Stock shall,
from and after the Effective Date and without the necessity of presenting the
same for exchange, represent one share of Class A Common Stock.
ARTICLE V
STOCKHOLDER ACTION
------------------
Any action required or permitted to be taken by the stockholders of the
Corporation at any annual or special meeting of stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders and
may not be taken or effected by a written consent of stockholders in lieu
thereof.
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ARTICLE VI
DIRECTORS
---------
Section 1. General.
--------------------
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors except as otherwise provided herein or
required by law.
Section 2. Election of Directors.
----------------------------------
Election of Directors need not be by written ballot unless the By-laws of
the Corporation
shall so provide.
Section 3. Terms of Directors.
-------------------------------
The number of Directors of the Corporation shall be fixed by resolution
duly adopted from time to time by the Board of Directors. The Directors, other
than those who may be elected by the holders of any series of Preferred Stock of
the Corporation, shall be classified, with respect to the term for which they
severally hold office, into three classes, as nearly equal in number as
possible. The initial Class I Directors of the Corporation shall be Robert W.
Daly and Luis E. Lamela; the initial Class II Directors of the Corporation shall
be Lewis D. Gold and Henry E. Golembesky; and the initial Class III Directors of
the Corporation shall be Mitchel Eisenberg and Richard D. Tadler. The initial
Class I Directors shall serve for a term expiring at the annual meeting of
stockholders to be held in 1996, the initial Class II Directors shall serve for
a term expiring at the annual meeting of stockholders to be held in 1997, and
the initial Class III Directors shall serve for a term expiring at the annual
meeting of stockholders to be held in 1998. At each annual meeting of
stockholders, the successor or successors of the class of Directors whose term
expires at that meeting (other than Directors elected by any series of Preferred
Stock) shall be elected by a plurality of the votes cast at such meeting and
shall hold office for a term expiring at the annual meeting of stockholders held
in the third year following the year of their election. The Directors elected to
each class (other than Directors elected by any series of Preferred Stock) shall
hold office until their successors are duly elected and qualified or until their
earlier resignation or removal.
Notwithstanding the foregoing, whenever, pursuant to the provisions of
Article IV of this Third Amended and Restated Certificate of Incorporation, the
holders of any one or more series of Preferred Stock shall have the right,
voting separately as a series or together with holders of other such series, to
elect Directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this Third Amended and Restated Certificate of
Incorporation and any certificate of designations applicable thereto, and such
Directors so elected shall not be divided into classes pursuant to this Section
3.
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During any period when the holders of any series of Preferred Stock have
the right to elect additional Directors as provided for or fixed pursuant to the
provisions of Article IV hereof, then upon commencement and for the duration of
the period during which such right continues: (i) the then otherwise total
authorized number of Directors of the Corporation shall automatically be
increased by such specified number of Directors, and the holders of such
Preferred Stock shall be entitled to elect the additional Directors so provided
for or fixed pursuant to said provisions, and (ii) each such additional Director
shall serve until such Director's successor shall have been duly elected and
qualified, or until such Director's right to hold such office terminates
pursuant to said provisions, whichever occurs earlier, subject to such
Director's earlier death, disqualification, resignation or removal. Except as
otherwise provided by the Board in the resolution or resolutions establishing
such series, whenever the holders of any series of Preferred Stock having such
right to elect additional Directors are divested of such right pursuant to the
provisions of such stock, the terms of office of all such additional Directors
elected by the holders of such stock, or elected to fill any vacancies resulting
from the death, resignation, disqualification or removal of such additional
Directors, shall forthwith terminate and the total and authorized number of
Directors of the Corporation shall be reduced accordingly.
Section 4. Vacancies.
---------------------
Subject to the rights, if any, of the holders of any series of Preferred
Stock to elect Directors and to fill vacancies in the Board of Directors
relating thereto, any and all vacancies in the Board of Directors, however
occurring, including, without limitation, by reason of an increase in size of
the Board of Directors, or the death, resignation, disqualification or removal
of a Director, shall be filled solely by the affirmative vote of a majority of
the remaining Directors then in office, even if less than a quorum of the Board
of Directors. Any Director appointed in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of Directors
in which the new directorship was created or the vacancy occurred and until such
Director's successor shall have been duly elected and qualified or until his or
her earlier resignation or removal. Subject to the rights, if any, of the
holders of any series of Preferred Stock to elect Directors, when the number of
Directors is increased or decreased, the Board of Directors shall determine the
class or classes to which the increased or decreased number of Directors shall
be apportioned; provided, however, that no decrease in the number of Directors
shall shorten the term of any incumbent Director. In the event of a vacancy in
the Board of Directors, the remaining Directors, except as otherwise provided by
law, may exercise the powers of the full Board of Directors until the vacancy is
filled.
Section 5. Removal.
-------------------
Subject to the rights, if any, of any series of Preferred Stock to elect
Directors and to remove any Director whom the holders of any such stock have the
right to elect, any Director (including persons elected by Directors to fill
vacancies in the Board of Directors) may be removed from office (i) only with
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cause and (ii) only by the affirmative vote of at least two-thirds of the total
votes which would be eligible to be cast by stockholders in the election of such
Director. At least 30 days prior to any meeting of stockholders at which it is
proposed that any Director be removed from office, written notice of such
proposed removal shall be sent to the Director whose removal will be considered
at the meeting. For purposes of this Third Amended and Restated Certificate of
Incorporation, "cause," with respect to the removal of any Director shall
include (i) conviction of a felony, (ii) declaration of unsound mind by order of
court, (iii) gross dereliction of duty, (iv) commission of any action involving
moral turpitude, or (v) commission of an action which constitutes intentional
misconduct or a knowing violation of law if such action in either event results
both in an improper substantial personal benefit and a material injury to the
Corporation.
ARTICLE VII
LIMITATION OF LIABILITY
-----------------------
A Director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability (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. If the
DGCL is amended after the effective date of this Third Amended and Restated
Certificate of Incorporation to authorize corporate action further eliminating
or limiting the personal liability of Directors, then the liability of a
Director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
Any repeal or modification of this Article VII by either of (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL, shall not
adversely affect any right or protection existing at the time of such repeal or
modification with respect to any acts or omissions occurring before such repeal
or modification of a person serving as a Director at the time of such repeal or
modification.
ARTICLE VIII
AMENDMENT OF BY-LAWS
--------------------
Section 1. Amendment by Directors
---------------------------------
Except as otherwise provided by law, the By-laws of the Corporation may be
amended or repealed by the Board of Directors.
Section 2. Amendment by Stockholders
------------------------------------
The By-laws of the Corporation may be amended or repealed at any annual
meeting of stockholders, or special meeting of stockholders called for such
purpose, by the affirmative vote of at least two-thirds of the total votes
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eligible to be cast on such amendment or repeal by holders of voting stock,
voting together as a single class; provided, however, that if the Board of
Directors recommends that stockholders approve such amendment or repeal at such
meeting of stockholders, such amendment or repeal shall only require the
affirmative vote of a majority of the total votes eligible to be cast on such
amendment or repeal by holders of voting stock, voting together as a single
class.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
-----------------------------------------
The Corporation reserves the right to amend or repeal this Third Amended
and Restated Certificate of Incorporation in the manner now or hereafter
prescribed by statute and this Third Amended and Restated Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation. No amendment or repeal of this Third Amended and
Restated Certificate of Incorporation shall be made unless the same is first
approved by the Board of Directors pursuant to a resolution adopted by the Board
of Directors in accordance with Section 242 of the DGCL, and, except as
otherwise provided by law, thereafter approved by the stockholders. Whenever any
vote of the holders of voting stock is required, and in addition to any other
vote of holders of voting stock that is required by this Third Amended and
Restated Certificate of Incorporation or by law, the affirmative vote of a
majority of the total votes eligible to be cast by holders of voting stock with
respect to such amendment or repeal, voting together a single class, at a duly
constituted meeting of stockholders called expressly for such purpose shall be
required to amend or repeal any provisions of this Third Amended and Restated
Certificate of Incorporation; provided, however, that the affirmative vote of
not less than 80% of the total votes eligible to be cast by holders of voting
stock, voting together a single class, shall be required to amend or repeal any
of the provisions of Article VI or Article IX of this Third Amended and Restated
Certificate of Incorporation.
I, Mitchell Eisenberg, President of the Corporation, for the purpose of
amending and restating the Corporation's Certificate of Incorporation pursuant
to the General Corporation Law of the State of Delaware, do make this
certificate, hereby declaring and certifying that this is my act and deed on
behalf of the Corporation this 3rd day of November, 1995.
/s/ Mitchell Eisenberg
-----------------------------
Mitchell Eisenberg, President
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CERTIFICATE OF AMENDMENT
OF
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SHERIDAN HEALTHCARE, INC.
Sheridan Healthcare, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), does hereby certify as
follows:
1. The name of the Corporation is Sheridan Healthcare, Inc.
2. Article IV of the Third Amended and Restated Certificate of
Incorporation of the Corporation is hereby amended and restated to read in its
entirety as follows:
ARTICLE IV
CAPITAL STOCK
-------------
The total number of shares of capital stock which the Corporation shall
have the authority to issue is Twenty-Six Million (26,000,000) shares of which
(i) Twenty Million (20,000,000) shares shall be Common Stock, par value $.01 per
share (the "Common Stock"), (ii) One Million (1,000,000) shares shall be Class A
Common Stock, par value $.01 per share (the "Class A Common Stock" and together
with the Common Stock, the "Common Shares") and (iii) Five Million (5,000,000)
shares shall be Preferred Stock, par value $.01 per share (the "Preferred
Stock").
As set forth in this Article IV, the Board of Directors or any authorized
committee thereof is authorized from time to time to establish and designate one
or more series of Preferred Stock, to fix and determine the variations in the
relative rights and preferences as between the different series of Preferred
Stock in the manner hereinafter set forth in this Article IV, and to fix or
alter the number of shares comprising any such series and the designation
thereof to the extent permitted by law.
The number of authorized shares of the class of Preferred Stock may be
increased or decreased (but not below the number of shares outstanding) by the
affirmative vote of the holders of a majority of the Common Stock, without a
vote of the holders of the Preferred Stock.
The designations, powers, preferences and rights of, and the
qualifications, limitations and restrictions upon, each class or series of stock
shall be determined in accordance with, or as set forth below.
Subject to any limitations prescribed by law, the Board of Directors or any
authorized committee thereof is expressly authorized to provide for the issuance
of the shares of Preferred Stock in one or more series of such stock, and by
filing a certificate pursuant to applicable law of the State of Delaware, to
establish or change from time to time the number of shares to be included in
each such series, and to fix the designations, powers, preferences and the
relative, participating, optional or other special rights of the shares of each
series and any qualifications, limitations and restrictions thereof. Any action
by the Board of Directors or any authorized committee thereof under this Article
IV to fix the designations, powers, preferences and the relative, participating,
optional or other special rights of the shares of a series of Preferred Stock
and any qualifications, limitations and restrictions thereof shall require the
affirmative vote of a majority of the Directors then in office or a majority of
the members of such committee. The Board of Directors or any authorized
committee thereof shall have the right to determine or fix one or more of the
following with respect to each series of Preferred Stock to the extent permitted
by law:
(a) The distinctive serial designation and the number of shares
constituting such series;
(b) The rights in respect of dividends or the amount of dividends to
be paid on the shares of such series, whether dividends shall be cumulative and,
if so, from which date or dates, the payment date or dates for dividends, and
the participating and other rights, if any, with respect to dividends;
(c) The voting powers, full or limited, if any, of the shares of such
series;
(d) Whether the shares of such series shall be redeemable and, if so,
the price or prices at which, and the terms and conditions on which, such shares
may be redeemed;
(e) The amount or amounts payable upon the shares of such series and
any preferences applicable thereto in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(f) Whether the shares of such series shall be entitled to the benefit
of a sinking or retirement fund to be applied to the purchase or redemption of
such shares, and if so entitled, the amount of such fund and the manner of its
application, including the price or prices at which such shares may be redeemed
or purchased through the application of such fund;
(g) Whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any other series of
the same or any other class or classes of stock of the Corporation and, if so
convertible or exchangeable, the conversion price or prices, or the rate or
rates of exchange, and the adjustments thereof, if any, at which such conversion
or exchange may be made, and any other terms and conditions of such conversion
or exchange;
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(h) The price or other consideration for which the shares of such
series shall be issued;
(i) Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of Preferred Stock (or
series thereof) and whether such shares may be reissued as shares of the same or
any other class or series of stock; and
(j) Such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as the Board of Directors or any authorized
committee thereof may deem advisable.
A. COMMON SHARES
-------------
1. General. Except as herein otherwise expressly provided, all shares of
Common Stock and Class A Common Stock shall be identical and shall entitle the
holders thereof to the same rights and privileges.
2. Voting. Each holder of record shall be entitled to one vote for each
share of Common Stock standing in his name on the books of the Corporation. The
holders of Class A Common Stock shall not have any right to vote, except that,
as to any matter on which holders of Class A Common Stock are required to have a
vote under applicable law, (a) each holder of record shall be entitled to one
vote for each share of Class A Common Stock standing in his name on the books of
the Corporation and, (b) except as required by law, the holders of Common Stock
and Class A Common Stock shall vote together as a single class on all matters as
to which holders of Class A Common Stock are entitled to vote.
3. Dividends. Subject to applicable law, the holders of Common Shares shall
be entitled to receive dividends out of funds legally available therefor at such
times and in such amounts as the Board of Directors may determine in its sole
discretion, with each share of Common Stock and each share of Class A Common
Stock sharing equally, share for share, in such dividends, except that if
dividends are declared which are payable in shares of Common Stock or Class A
Common Stock, dividends shall be declared which are payable at the same rate in
both classes of stock and the dividends payable in shares of Common Stock shall
be payable to the holders of that class of stock and the dividends payable in
shares of Class A Common Stock shall be payable to the holders of that class of
stock.
4. Liquidation. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary (a "Liquidation Event"), after the
payment or provision for payment of all debts and liabilities of the Corporation
and all preferential amounts to which the holders of preferred stock are
entitled with respect to the distribution of assets in liquidation, the holders
of Common Shares shall be entitled to share ratably in the remaining assets of
the Corporation available for distribution.
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5. Conversion of Class A Common Stock.
-----------------------------------
(a) Right to Convert. Subject to and upon compliance with the
provisions of this Section 5, each share of Class A Common Stock which is to be
distributed, disposed of or sold in connection with a Class A Conversion Event
(as defined below) shall be convertible, at the option of the holder thereof,
into fully paid and non-assessable shares of Common Stock, effective upon the
occurrence of (or the expected occurrence of) a Class A Conversion Event at the
rate of one share of Common Stock for each share of Class A Common Stock so
converted (the "Class A Common Conversion Rate"), subject to adjustment as
provided in Section 7, provided that such holder has given the Corporation
notice of its intent to exercise its rights hereunder prior to the effectiveness
of such Class A Conversion Event. A "Class A Conversion Event" shall mean (i)
any sale in connection with any public offering or public sale of securities of
the Corporation (including a public offering registered under the Securities Act
of 1933, as amended (the "Securities Act")), and a sale pursuant to Rule 144 of
the Securities and Exchange Commission or any similar rule then in force), (ii)
any sale (including by way of a merger, consolidation or similar transaction) of
securities of the Corporation to a person or group of persons (within the
meaning of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
if, after such sale, such person or group of persons in the aggregate would own
or control securities which possess in the aggregate the power to elect a
majority of the Corporation's directors (provided that such sale has been
approved by the Corporation's Board of Directors or a committee thereof), (iii)
any sale (including by way of a merger, consolidation or similar transaction) of
securities of the Corporation to a person or group of persons (within the
meaning of the Exchange Act) if, after such sale, such person or group of
persons in the aggregate would own or control securities of the Corporation
(excluding any being converted and disposed of in connection with such Class A
Conversion Event) which possess in the aggregate the power to elect a majority
of the Corporation's directors, and (iv) any sale of securities of the
Corporation to a person or group of persons (within the meaning of the Exchange
Act) if, after such sale, such person or group of persons in the aggregate would
not own, control or have the right to acquire more than two percent of the
outstanding securities of any class of voting securities of the Corporation. The
term, "person" shall include any natural person and any corporation,
partnership, joint venture, trust, unincorporated organization, limited
liability company, business association and any other entity or organization.
(b) Notice of Conversion. Each holder of Class A Common Stock shall be
entitled to convert shares of Class A Common Stock which are to be distributed,
disposed of or sold in connection with a Class A Conversion Event, if such
holder reasonably believes that such Class A Conversion Event will be
consummated, and a written request for conversion from any holder of Class A
Common Stock to the Corporation stating such holder's reasonable belief that a
Class A Conversion Event shall occur shall be conclusive and obligate the
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Corporation to effect such conversion in a timely manner, so as to enable each
such holder to participate in such Class A Conversion Event. The Corporation
will not cancel the shares of Class A Common Stock so converted before the tenth
day following such Class A Conversion Event and will reserve such shares until
such tenth day for reissuance in compliance with the next sentence. If any
shares of Class A Common Stock are converted into Common Stock in connection
with a Class A Conversion Event and such shares are not actually distributed,
disposed of or sold pursuant to such Class A Conversion Event, such shares of
Common Stock shall promptly be converted back into the same number of shares of
Class A Common Stock. No share or shares of the Class A Common Stock acquired by
the Corporation by reason of conversion or otherwise shall be reissued, and all
such shares shall be canceled, retired and eliminated from the shares which the
Corporation shall be authorized to issue. The Corporation may from time to time
take such appropriate corporate action as may be necessary to reduce the
authorized number of shares of the Class A Common Stock accordingly.
(c) Surrender of Certificates. Each conversion of shares of Class A
Common Stock into shares of Common Stock shall be effected by the surrender of
the certificate or certificates representing the shares of Class A Common Stock
to be converted, duly assigned or endorsed for transfer to the Corporation (or
accompanied by duly executed stock powers relating thereto), at the principal
executive office of the Corporation or the offices of the transfer agent for the
Common Shares or such office or offices in the continental United States of an
agent for conversion as may from time to time be designated by notice to the
holders of the Class A Common Stock by the Corporation together with written
notice by the holder of such Class A Common Stock stating that such holder
desires to convert the shares, or a stated number of the shares, of Class A
Common Stock represented by such certificate, into Common Stock, which notice
shall also state the name or names (with addresses) and denominations in which
the certificate or certificates for Common Stock shall be issued and shall
include instructions for delivery thereof. Upon surrender of a certificate
representing Class A Common Stock for conversion, the Corporation shall issue
and send by hand delivery, by courier or by first class mail (postage prepaid)
to the holder thereof or to such holder's designee, at the address designated by
such holder, certificates for the number of shares of Common Stock to which such
holder shall be entitled upon conversion. In the event that there shall have
been surrendered a certificate or certificates representing Class A Common
Stock, only part of which are to be converted, the Corporation shall issue and
send to such holder or such holder's designee, in the manner set forth in the
preceding sentence, a new certificate or certificates representing the number of
shares of Class A Common Stock which shall not have been converted. If the
certificate or certificates for Common Stock are to be issued in a name other
than the name of the registered holder of the stock surrendered for conversion,
the Corporation shall not be obligated to issue or deliver any certificate
unless and until the holder of the stock surrendered has paid to the Corporation
the amount of any tax that may be payable in respect of any transfer involved in
such issuance or shall establish to the satisfaction of the Corporation that
such tax has been paid. The issuance of certificates for Common Stock upon
conversion of Class A Common Stock will be made without charge to the holders of
such shares for any issuance tax in respect thereof or other costs incurred by
the Corporation in connection with such conversion and the related issuance of
such stock.
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(d) Effective Date of Conversion. Such conversion shall be deemed to
have been effected as of the close of business on the date on which such
certificate or certificates shall have been surrendered and such notice shall
have been received by the Corporation and at such time the rights of the holder
of such Class A Common Stock (or specified portion thereof) as to such converted
shares shall cease and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock are to be issued upon
such conversion shall be deemed to have become the holder or holders of record
of the shares of Common Stock represented thereby.
(e) Reservation of Common Stock. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of issuance upon the conversion of the Class A
Common Stock, such number of shares of Common Stock issuable upon the conversion
of all outstanding shares of Class A Common Stock.
(f) No Closing of Transfer Books. The Corporation shall not close its
books against the transfer of Common Shares in any manner which would interfere
with the timely conversion of any shares of Class A Common Stock.
6. Adjustments.
------------
(a) Changes in Common Stock. In the event the Corporation shall (i)
pay a dividend in or make a distribution in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares, or (iv) issue by
reclassification of its shares of Common Stock any shares of the Corporation,
the Class A Common Conversion Rate in effect immediately prior thereto shall be
adjusted so that the holder of a share of Class A Common Stock thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Common Stock which it would have owned or have been entitled to receive after
the happening of any of the events described above had such share of Class A
Common Stock been converted on or immediately prior to the record date for such
dividend or the effective date of such subdivision, combination or
reclassification, as the case may be.
(b) Changes in Class A Common Stock. In the event that the Corporation
shall (i) pay a dividend in or make a distribution in shares of its Class A
Common Stock, (ii) subdivide its outstanding shares of Class A Common Stock,
(iii) combine its outstanding shares of Class A Common Stock into a smaller
number of shares, or (iv) issue by reclassification of its shares of Class A
Common Stock any shares of the Corporation, the Class A Common Conversion Rate
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in effect immediately prior thereto shall be adjusted so that the holder of a
share of Class A Common Stock thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock which it would have
owned or have been entitled to receive after the happening of any of the events
described above had such share of Class A Common Stock been converted on or
immediately prior to the record date for such dividend or the effective date of
such subdivision, combination or reclassification, as the case may be.
(c) General. An adjustment made pursuant to this Section 6 shall
become effective immediately after the record date (in the case of a dividend or
distribution in shares of capital stock) and shall become effective immediately
after the effective date (in the case of a subdivision, combination or
reclassification). No adjustment in accordance with this Section 6 shall be
required unless such adjustment would require an increase or decrease in any
conversion rate of at least 0.1%; provided, however, that any adjustments which
by reason of this clause are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. Any calculations under this
Section 6 shall be made to the nearest one-thousandth of a share.
7. Notices. In the event that the Corporation provides any notice, report
or statement to any holder of Common Shares, the Corporation shall at the same
time provide a copy of any such notice, report or statement to each holder of
outstanding Common Shares.
8. Reclassification.
-----------------
(a) Effective November 3, 1995 (the "Effective Date"), each share of
the Corporation's Class A Voting Common Stock, par value $.01 per share (the
"Class A Voting Common Stock") issued and outstanding or held in treasury
immediately prior to the Effective Date shall, without any action on the part of
the respective holders thereof, be reclassified into one share of Common Stock,
and each stock certificate that, immediately prior to the Effective Date,
represented shares of Class A Voting Common Stock shall, from and after the
Effective Date and without the necessity of presenting the same for exchange,
represent one share of Common Stock.
(b) Effective upon the Effective Date, each share of the Corporation's
Class B Non-Voting Common Stock, par value $.01 per share (the "Class B
Non-Voting Common Stock"), issued and outstanding or held in treasury
immediately prior to the Effective Date shall, without any action on the part of
the respective holders thereof, be reclassified into one share of Class A Common
Stock, and each stock certificate that, immediately prior to the Effective Date,
represented shares of the Corporation's Class B Non-Voting Common Stock shall,
from and after the Effective Date and without the necessity of presenting the
same for exchange, represent one share of Class A Common Stock.
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3. The Board of Directors of the Corporation adopted resolutions on
February 26, 1997 declaring the advisability of the foregoing amendment and
directing the officers of the Corporation to submit the amendment to the
stockholders of the Corporation for their approval at the Corporation's 1997
Annual Meeting of Stockholders.
4. The stockholders of the Corporation approved the foregoing amendment by
the affirmative vote of the holders of a majority of the shares of Common Stock
outstanding and entitled to vote at the Corporation's 1997 Annual Meeting of
Stockholders held on May 15, 1997.
5. The amendment was duly adopted in accordance with Section 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Sheridan Healthcare, Inc., has caused this Certificate
to be signed on its behalf by Mitchell Eisenberg, M.D., Chairman of the Board of
Directors, President and Chief Executive Officer and attested by Jay A. Martus,
Esq., Vice President, General Counsel and Secretary, and does hereby affirm that
the facts stated therein are true, this 21st day of May, 1997.
SHERIDAN HEALTHCARE, INC.
By: /s/ Mitchell Eisenberg
-------------------------------------
Mitchell Eisenberg, M.D.
Chairman of the Board of Directors,
President and Chief Executive Officer
ATTEST:
/s/ Jay A. Martus
- -----------------------------
Jay A. Martus, Esq.
Vice President, General Counsel
and Secretary
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