EXHIBIT 3.5
RESTATED
CERTIFICATE OF INCORPORATION
OF
AMERICAN HEALTH SERVICES CORP.
Filed pursuant to Sections 242 & 245 of
the Delaware Corporation Law
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I, THE UNDERSIGNED, being the duly elected President and Chief
Executive Officer of American Health Services Corp., a Delaware corporation
formerly known as NMR Centers Inc., whose original certificate of incorporation
was filed with the Delaware Secretary of State in October 1982 and whose first
restated certificate of incorporation was filed with the Delaware Secretary of
State in July 1987, do hereby certify that the following provisions constitute
the RESTATED CERTIFICATE OF INCORPORATION of the corporation which was duly
adopted by the directors and stockholders of the corporation in accordance with
the provisions of Sections 242 & 245 of the Delaware General Corporation Law:
FIRST: The name of the corporation is
AMERICAN HEALTH SERVICES CORP.
SECOND: The registered office of the corporation is located at
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, in the
County of Newcastle, in the State of Delaware. The name of its registered agent
at the address is the Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
Without limiting in any manner the scope and generality of the
foregoing, it is hereby provided that the corporation shall have the following
purposes, objects and powers:
To purchase, manufacture, produce, assemble, receive, lease or in any
manner acquire, hold, own, use, operate, install, maintain, service,
repair, process, alter, improve, import, export, sell, lease, assign,
transfer and generally to trade and deal in and with raw materials,
natural or
manufactured articles or products,
machinery, equipment, devices, systems,
parts, supplies, apparatus, goods, wares,
merchandise and personal property of every
kind, nature or description, tangible or
intangible, used or capable of being used
for any purpose whatsoever; and to engage
and participate in any mercantile,
manufacturing or trading business of any
kind or character.
To improve, manage, develop, sell,
assign, transfer, lease, mortgage, pledge or
otherwise dispose of or deal with all or any
part of the property of the corporation and
from time to time to vary any investment or
employment of capital of the corporation.
To borrow money, and to make and issue
notes, bonds, debentures, obligations and
evidences of indebtedness of all kinds,
whether secured by mortgage, pledge or
otherwise, without limit as to amount, and
to secure the same by mortgage, pledge or
otherwise; and generally to make and perform
agreements and contracts of every kind and
description, including contracts of guaranty
and suretyship.
To lend money for its corporate
purposes, invest and reinvest its funds, and
take, hold and deal with real and personal
property as security for the payment of
funds so loaned or invested.
To the same extent as natural persons
might or could do, to purchase or otherwise
acquire, and to hold, own, maintain, work,
develop, sell, lease, exchange, hire,
convey, mortgage or otherwise dispose of and
deal in lands and leaseholds, and any
interest, estate and rights in real
property, and any personal or mixed
property, and any franchises, rights,
licenses or privileges necessary, convenient
or appropriate for any of the purposes
herein expressed.
To apply for, obtain, register,
purchase, lease or otherwise to acquire and
to hold, own, use, develop, operate and
introduce and to sell, assign, grant
licenses or territorial rights in respect
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to, or otherwise to turn to account or
dispose of, any copyrights, trade marks,
trade names, brands, labels, patent rights,
letters patent of the United States or of
any other country or government, inventions,
improvements and processes, whether used in
connection with or secured under letters
patent or otherwise.
To participate with others in any
corporation, partnership, limited
partnership, joint venture, or other
association of any kind, or in any
transaction, undertaking or arrangement
which the participating corporation would
have power to conduct by itself, whether or
not such participation involves sharing or
delegation of control with or to others; and
to be an incorporator, promoter or manager
of other corporations of any type or kind.
To pay pensions and establish and carry
out pension, profit sharing, stock option,
stock purchase, stock bonus, retirement,
benefit, incentive and commission plans,
trusts and provisions for any or all of its
directors, officers and employees, and for
any or all of the directors, officers and
employees of its subsidiaries; and to
provide insurance for its benefit on the
life of any of its directors, officers or
employees, or on the life of any stockholder
for the purpose of acquiring at his death
shares of its stock owned by such
stockholders.
To acquire by purchase, subscription or
otherwise and to hold for investment or
otherwise and to use, sell, assign,
transfer, mortgage, pledge or otherwise deal
with or dispose of stocks, bonds or any
other obligations or securities of any
corporation or corporations; to merge or
consolidate with any corporation in such
manner as may be permitted by law; to aid in
any manner any corporation whose stock,
bonds or other obligations are held or in
any manner guaranteed by this corporation,
or in which this corporation is in any way
interested; and to do any other acts or
things for the preservation, protection,
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improvement or enhancement of the value
while owner of any such stock, bonds or
other obligations to exercise all the
rights, powers and privileges of ownership
thereof, and to exercise any and all voting
powers thereon; and to guarantee the payment
of dividends upon any stock, the principal
or interest or both, of any bonds or other
obligations, and the performance of any
contracts.
To do all and everything necessary,
suitable and proper for the accomplishment
of any of the purpose or the attainment of
any of the objects or the furtherance of any
of the powers hereinbefore set forth, either
alone or in association with other
corporations, firms or individuals, and to
do every other act or acts, thing or things
incidental or appurtenant to or growing out
of or connected with the aforesaid business
or powers or any part or parts thereof,
provided the same be not inconsistent with
the laws under which this corporation is
organized.
The business or purpose of the
corporation is from time to time to do any
one or more of the acts and things
hereinabove set forth, and it shall have
power to conduct and carry on its said
business, or any part thereof, and to have
one or more offices, and to exercise any or
all of its corporate powers and rights, in
the State of Delaware, and in the various
other states, territories, colonies and
dependencies of the United States, in the
District of Columbia, and in all or any
foreign countries.
The enumeration herein of the object
and purpose of the corporation shall be
construed as powers as well as objects and
purposes and shall not be deemed to be
excluded by interference any powers, objects
or purposes which the corporation is
empowered to exercise, whether expressly by
force of the laws of the State of Delaware
now or hereafter in effect, or impliedly by
the reasonable construction of the said laws.
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FOURTH: The corporation is authorized to issue two
classes of capital stock, designated Common Stock and Preferred
Stock. The amount of total authorized capital stock of the
corporation is 30,000,000 shares, divided into 25,000,000 shares
of Common shares, par value three cents ($.03) per share, and
5,000,000 shares of Preferred Stock, par value three cents ($.03)
per share.
The Preferred Stock may be issued in one or more series.
The Board of Directors is hereby authorized to issue the shares of
Preferred Stock in such series and to fix from time to time before
issuance the number of shares to be included in any series and the
designation, relative powers, preferences and rights and
qualifications, limitations or restrictions of all shares of such
series. The authority of the Board of Directors with respect to
each series shall include, without limiting the generality of the
foregoing, the determination of any or all of the following:
(a) The number of shares constituting
that series and the distinctive designation
of that series;
(b) The dividend rate on the shares of
that series, whether dividends shall be
cumulative and, if so, from which date or
dates, and the relative rights of priority,
if any, of payment of dividends on shares of
that series;
(c) Whether that series shall have
voting rights, in addition to the voting
rights provided by law, and, if so, the
terms of such voting rights;
(d) Whether that series shall have
conversion privileges, and, if so, the terms
and conditions of such conversion, including
provision for adjustment of the conversion
rate upon the happening of certain specified
events;
(e) Whether or not the shares of that
series shall be redeemable, and, if so, the
terms and conditions of such redemption,
including the date or dates upon or after
which they shall be redeemable, and the
amount per share payable in case of
redemption, which amount may vary under
different conditions and at different
redemption dates;
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(f) Whether that series shall have a
sinking fund for the redemption of purchase
or shares of that series, and, if so, the
terms and amount of such sinking fund;
(g) The rights of the shares of that
series in the event of voluntary or
involuntary liquidation, dissolution or
winding up of the corporation, and the
relative rights of priority, if any, of
payment on shares of that series; and
(h) Such other designations,
preferences and relative, participating,
optional or other special rights and
qualifications, limitations or restrictions
thereof as it may deem advisable;
all as shall be determined from time to time by the Board of
Directors and shall be stated in a resolution or resolutions
providing for the issuance of such Preferred Stock.
The number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares then
outstanding) by the affirmative vote of the holders of a majority
of the capital stock of the corporation entitled to vote, with all
such holders voting as a single class.
FIFTH: The following provisions are inserted for the
management of the business and for the conduct of the affairs of
the corporation, and for further definition, limitation and
regulation of the powers of the corporation and of its directors
and stockholders:
(a) The number of directors of the
corporation shall be such as from time to
time shall be fixed by, or in the manner
provided in the by-laws. Election of
directors need not be by ballot unless the
by-laws so provide.
(b) The Board of Directors shall have
power without the assent or vote of the
stockholders to make, alter, amend, change,
add to or repeal the by-laws of the
corporation; to fix and vary the amount to
be reserved for any proper purpose; to
authorize and cause to be executed mortgages
and liens upon all or any part of the
property of the corporation; to determine
the use and disposition of any surplus or
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net profits; and to fix the times for the
declaration and payment of dividends.
(c) Subject to the provisions of
Article Twelfth, the directors in their
discretion may submit any contract or act of
approval or ratification at any annual
meeting of the stockholders or at any
meeting of the stockholders called or the
purpose of considering any such act or
contract, and any contract or act that shall
be approved or be ratified by the vote of
the holders of a majority of the stock of
the corporation which is represented in
person or by proxy at such meeting and
entitled to vote thereat (provided that a
lawful quorum of stockholders by there
represented in person or by proxy) shall be
as valid and as binding upon the corporation
and upon all the stockholders as though it
had been approved or ratified by every
stockholder of the corporation, whether or
not the contract or act would otherwise be
open to legal attack because of directors'
interest, or for any other reason.
(d) In addition to the powers and
authorities hereinbefore or by statute
expressly conferred upon them, the directors
are hereby empowered to exercise all such
powers and do all such acts and things as
may be exercised or done by the corporation;
subject, nevertheless, to the provisions of
the statutes of Delaware, of this
certificate, and to any by-laws from time to
time made by the stockholders; provided,
however, that no by-laws so made shall
invalidate any prior act of the directors
which would have been valid if such by-law
had been made.
SIXTH: Section 1. A director of the corporation shall
not be personally liable to the corporation or its stockholders
for monetary damages for breach of the 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 Delaware General Corporation Law, or (iv) for
any transaction from which the director derived any improper
personal benefit.
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Any repeal or modification of the foregoing paragraph by
the stockholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing at
the time of such repeal or modification.
Section 2. (a) Right to Indemnification. Each person
who was or is made a party or is threatened to be made a party to
or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director, officer or employee of the corporation or is
or was serving at the request of the corporation as a director,
officer or employee of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or
agent of another corporation or a partnership, joint venture,
trust or other enterprise, including service with respect to
employee benefit plans (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity
as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the corporation to the fullest
extent authorized by the Delaware General Corporation Law against
all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid
in settlement) reasonably incurred or suffered by such indemnitee
in connection therewith and such indemnification shall continue as
to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators; provided,
however, that, except as provided in paragraph (b) hereof with
respect to proceedings to enforce rights to indemnification, the
corporation shall indemnify any such indemnitee in connection with
a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board
of directors of the corporation. The right to indemnification
conferred in this Section shall be a contract right and shall
include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires,
an advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee) shall be
made only upon delivery to the corporation of an undertaking, by
or on behalf of such indemnitee, to repay all amounts so advanced
if it shall ultimately be determined by final judicial decision
from which there is no further right to appeal that such
indemnitee is not entitled to be indemnified for such expenses
under this Section or otherwise (hereinafter an "undertaking").
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(b) Right of Indemnitee to Bring Suit. If a claim under
paragraph (a) of this Section is not paid in full by the
corporation within sixty (60) days after a written claim has been
received by the corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall
be twenty (20) days, the indemnitee may at any time thereafter
bring suit against the corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit or
in a suit brought by the corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of
expenses) it shall be a defense that, and (ii) any suit by the
corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the corporation shall be entitled to
recover such expenses upon a final adjudication that the
indemnitee has not met the applicable standard of conduct set
forth in the Delaware General corporation Law. Neither the
failure of the corporation (including its board of directors,
independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct
set forth in the Delaware General corporation Law, nor an actual
determination by the corporation (including its board of
directors, independent legal counsel, or its stockholders) that
the indemnitee has not met such applicable standard of conduct,
shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right hereunder, or by the
corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee
is not entitled to be indemnified or to such advancement of
expenses under this Section or otherwise shall be on the
corporation.
(c) Non-Exclusivity of Rights. The rights to
indemnification and to the advancement of expenses conferred in
this Section shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, this
Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The corporation may maintain insurance,
at its expense, to protect itself and any director, officer,
employee or agent of the corporation or another corporation,
partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the corporation would
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have the power to indemnify such person against such expense,
liability or loss under the Delaware General corporation Law.
(e) Indemnification of Agents of the Corporation. The
corporation may, to the extent authorized from time to time by the
board of directors, grant rights to indemnification and to the
advancement of expenses, to any agent of the corporation to the fullest
extent of the provisions of this Section with respect to
the indemnification and advancement of expenses of directors,
officers and employees of the corporation.
SEVENTH: Whenever a compromise or arrangement is
proposed between this corporation and its creditors or any class
of them and/or between this corporation and its stockholders or
any class of them, any court of equitable jurisdiction within the
State of Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this
corporation under the provisions of Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this corporation under
the provisions of Section 279 of Title 8 of the Delaware Code,
order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as
the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the
case may be, agree to any compromise as consequence of such
compromise of arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or
class of stockholders, of this corporation, as the case may be,
and also on this corporation.
EIGHTH: Subject to the provisions of Article Thirteenth
hereof, the corporation reserves the right to amend, alter, change
or repeal any provision contained in this certificate of
incorporation in the manner now or hereafter prescribed by law,
and all rights and powers conferred herein on stockholders,
directors and officers are subject to this reserved power.
NINTH: New Bylaws may be adopted or the Bylaws of the corporation
may be amended or repealed by the affirmative vote of
the holders of not less than sixty-six and two-thirds percent
(66-2/3%) of the outstanding Voting Stock (as defined below),
unless one or more Related Persons (as defined below) exist, in
which case the required vote shall be by holders of not less than
sixty-six and two-thirds percent (66-2/3%) of the Disinterested
Shares (as defined below). Bylaws may also be adopted, amended or
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repealed by the Board of Directors as provided in Article Fifth
hereof or as permitted by law.
TENTH: Section 1. Classified Board. The directors in
office, other than those who may be elected by the holders of any
series of Preferred Stock under specified circumstances, shall be
divided, with respect to the time for which they severally hold
office, into three classes: Class I, Class II and Class III. The
term of office of the Class I directors will expire at the 1989
annual meeting of stockholders, the term of office of the Class II
directors will expire at the 1990 annual meeting of stockholders,
and the term of office of the Class III directors will expire at
the 1991 annual meeting of stockholders, with each director to
hold office until his or her successor shall have been duly
elected and qualified. At each annual meeting of stockholders,
commencing with the 1989 annual meeting, directors elected to
succeed those directors whose terms then expire shall be elected
for a term of office to expire at the third succeeding annual
stockholders meeting following their election, and shall hold
office until their successors have been duly elected and qualified.
Section 2. Removal. Subject to the rights of the
holders of any series of Preferred Stock, any director, or the
entire Board, may be removed from office at any time, with or
without cause, but only by the affirmative vote of the holders of
a majority of the corporation's outstanding Voting Stock;
provided, however, that if a proposal to remove a director is made
by or on behalf of a Related Person or a director affiliated with
a Related Person, then in addition to such affirmative vote such
removal shall require the affirmative vote of the holders of not
less than sixty-six and two-thirds percent (66-2/3%) of the
Disinterested Shares.
Section 3. Notice of Stockholder Nominees. Nominations
of persons for election to the board of directors of the
corporation shall be made only at a meeting of stockholders and
only (1) by or at the direction of the Board or (2) by any
stockholder of the corporation entitled to vote for the election
of directors at the meeting who complies with the notice
procedures set forth in this Section 3. Such nominations, other
than those made by or at the direction of the Board, shall be made
pursuant to timely notice in writing to the Secretary of the
corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive
offices of the corporation not less than sixty (60) days nor more
than ninety (90) days prior to the meeting; provided, however,
that in the event that less than forty (40) days' notice or prior
public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting
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was mailed or such public disclosure was made. For purposes of
this Section 3, any adjournment(s) or postponement(s) of the
original meeting whereby the meeting will reconvene within thirty
(30) days from the original date shall be deemed for purposes of
notice to be a continuation of the original meeting and no
nominations by a stockholder of persons to be elected directors of
the corporation may be made at any such reconvened meeting unless
pursuant to a notice which was timely for the meeting on the date
originally scheduled. Such stockholder's notice shall set forth:
(i) as to each person whom the stockholder proposes to nominate
for election or re-election as a director, all information relating
to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in
each case pursuant to the Securities Exchange Act of 1934
(including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if
elected); and (ii) as to the stockholder giving the notice (A) the
name and address, as they appear on the corporation's books, of
such stockholder, and (B) the class, series and number of shares
of the corporation which are beneficially owned by such stockholder.
Notwithstanding the foregoing, nothing in this Section 3 shall be
interpreted or construed to require the inclusion of information
about any such nominee in any proxy statement distributed by, at
the direction of, or on behalf of the Board.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the procedures prescribed by this
Section 3, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
ELEVENTH: Subject to the right of the holders of any
series of Preferred Stock, any election or other action by
stockholders of this corporation must be effected at an annual or
special meeting of stockholders, and may not be effected by
written consent without a meeting.
TWELFTH: Section 1: Definitions. For the purposes of
this Article Twelfth and Articles Ninth, Tenth, Eleventh and
Thirteenth:
A. "Affiliate" and "Associate" have the meanings set
forth in Rule 12b-2 under the Securities Exchange Act of 1934 as
in effect on December 31, 1987.
B. "Beneficially Owns" has the meaning set forth in
Rule 13d-3 under the Securities Exchange Act of 1934 as in effect
on December 31, 1987.
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C. "Business Combination" means (a) any merger,
consolidation, combination or reorganization of the corporation or
a Subsidiary with or into a Related Person or of a Related Person
with or into the corporation or a Subsidiary, (b) any sale, lease,
exchange, transfer, liquidation or other disposition, including
without limitation a mortgage or any other security device, of
assets of the corporation and/or one or more Subsidiaries
(including, without limitation, any voting securities of a
Subsidiary) constituting a Substantial Part of the corporation, to
a Related Person, (c) any sale, lease, exchange, transfer,
liquidation or other disposition, including without limitation, a
mortgage or any other security device, of assets of a Related
Person (including, without limitation, any voting securities of a
subsidiary of such Related Person but excluding the Affiliates and
Associates of such Related Person), or of any Affiliate or
Associate of such Related Person, constituting a Substantial Part
of such Related Person, to the corporation and/or one or more
Subsidiaries, (d) the issuance or transfer of any securities
(other than by way of a pro rata distribution to all stockholders)
of the corporation or a Subsidiary to a Related Person which, when
aggregated with all prior issuances and transfers to such Related
Person of securities of the corporation or such Subsidiary during
the preceding 365 days, constitutes five percent (5%) or more of
the outstanding class or series of securities of the corporation
or such Subsidiary, (e) the acquisition by the corporation or a
Subsidiary of any securities issued by a Related Person if, after
giving effect thereto, the corporation and its Subsidiaries would
own an aggregate of one percent (1%) or more of (i) the
outstanding shares of any class or series of any equity security
issued by the Related Person or (ii) the outstanding principal
amount of any class or series of any debt security issued by the
Related Person (for purposes of such calculation, the corporation
and its Subsidiaries shall be deemed to own at the time of such
calculation any such equity or debt securities of the Related
Person that may then or thereafter be acquired (x) upon the
exercise of any options, warrants or other rights then owned by
the corporation or a Subsidiary or (y) upon the conversion or
exchange of any other security then owned by the corporation or a
Subsidiary); (f) any recapitalization or reorganization that would
have the effect, directly or indirectly, of increasing the voting
power of a Related Person and (g) any agreement, contract or other
arrangement providing for any of the transactions described in
this definition of a Business Combination.
D. "Continuing Director" means a director who (a) is
not a Related Person or affiliated with a Related Person and
(b) either (i) was a director on April 30, 1988, or (ii) became a
director subsequent to such date and was recommended, elected or
nominated by a majority of the Continuing Directors.
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E. "Disinterested Shares" means, as to any Related
Person, shares of Voting Stock Beneficially Owned by
stockholders other than such Related Person.
F. "Related Person" means and includes any individual,
corporation, partnership or other person or entity, or any group
of two or more of the foregoing that have agreed to act together,
which, together with its Affiliates and Associates, Beneficially
Owns, in the aggregate, fifteen percent (15%) or more of the
outstanding Voting Stock, and any Affiliate or Associate of any
such individual, corporation, partnerships or other person or
entity; provided, however, that the term "Related Person" shall
not include any individual, corporation, partnership or other
person, entity or group, or any Affiliate or Associate thereof,
which Beneficially Owned on December 23, 1987 fifteen percent
(15%) or more of the outstanding Voting Stock of the corporation.
C. "Subsidiary" means any corporation in which the
corporation owns, directly or indirectly, securities which entitle
the corporation to elect a majority of the board of directors of
such corporation or which otherwise give to the corporation the
power to control such corporation.
H. "Substantial Part" means more than ten percent (10%)
of the fair market value of the total consolidated assets of the
corporation in question and its subsidiaries as of the end of its
most recent fiscal year ending prior to the time the determination
is being made.
I. "Voting Stock" means all outstanding shares of
capital stock of the corporation entitled to vote generally in the
election of directors of the corporation, and each reference to a
percentage or portion of shares of Voting Stock shall refer to
such percentage or portion of the votes entitled to be cast by
such shares.
Section 2. Vote Required for Certain Business
Combinations. Except as otherwise expressly provided in Section 3
of this Article Twelfth, in addition to any affirmative vote
required by law or by any other provision of this Restated
Certificate of Incorporation, the approval or authorization of
any Business Combination shall require the affirmative vote of the
holders of not less than sixty-six and two-thirds percent
(66-2/3%) of the Disinterested Shares.
Section 3. Exception. Section 2 of this Article Twelfth
shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative
vote as may be required by law and by any other provision of this
Restated Certificate of Incorporation, if the Business Combination
shall have been approved by a majority of the Continuing Directors.
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Section 4. Determination of Compliance. A majority of
the total number of Continuing Directors shall have the power and
duty to determine, on the basis of information known to them after
reasonable inquiry, all facts necessary to determine compliance
with this Article Twelfth, including, without limitation,
(a) whether a person is a Related Person, (b) the number of shares
of capital stock Beneficially Owned by any person, (c) whether a
person is an Affiliate or Associate of another and (d) whether the
proposed transaction is a Business Combination.
THIRTEENTH: In addition to any affirmative vote required
by applicable law, any alteration, amendment, repeal or rescission
(any "Change") of any provision of this Restated Certificate of
Incorporation must be approved by a majority of the directors of
the corporation then in office and by the affirmative vote of the
holders of a majority of the outstanding Voting Stock of the
corporation; provided, however, that if any such Change relates to
Articles Ninth, Tenth, Eleventh or Twelfth hereof or to this
Article Thirteenth, such Change must be approved (i) by a majority
of the Continuing Directors, or (ii) by the affirmative vote of
the holders of not less than sixty-six and two-thirds percent
(66-2/3%) of the outstanding Voting Stock of the corporation and,
if the Change is proposed by or on behalf of a Related Person or a
director affiliated with a Related Person, by the affirmative vote
of the holders of not less than sixty-six and two-thirds percent
(66-2/3%) of the Disinterested Shares.
IN WITNESS WHEREOF, American Health Services Corp. has
caused this Certificate to be signed and attested by its duly
authorized officers, this 21st day of July, 1988.
AMERICAN HEALTH SERVICES CORP.
By: /s/ S. LEWIS MEYER
-----------------------------
S. Lewis Meyer, President and
Chief Executive Officer
ATTEST:
/s/ CLARKE J. UNDERWOOD
- ------------------------------
Clarke J. Underwood, Secretary
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