EXHIBIT (C)(7)
CERTIFICATE OF INCORPORATION, AS AMENDED
OF
SMT HEALTH SERVICES INC.
FIRST: The name of the corporation is SMT Health Services Inc.
SECOND: The registered office of the Corporation is to be located at 32
Loockerman Square, Suite L-100 in the City of Dover, in the County of Kent, in
the State of Delaware. The name of its registered agent at that address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall be authorized to issue is 21,000,000 shares, of which
20,000,000 shall be designated Common Stock, having a par value of $.01 per
share (hereinafter called "Common Stock") and 1,000,000 shall be designated
Preferred Stock, having a par value of $.01 per share (hereinafter called
"Preferred Stock").
Shares of the Preferred Stock shall be designated as the Board of Directors
may determine and may be issued in series by the Board of Directors as
hereinafter provided in paragraph (c) below. The relative rights and
preferences of the shares of capital stock of the Corporation shall be as
follows:
(a) Each holder of Common Stock shall, at every meeting of stockholders
of the Corporation, be entitled to one vote in person or by proxy for each
share of Common Stock held by such holder and each holder of Preferred
Stock with voting rights shall, at every meeting of stockholders of the
Corporation, be entitled to one vote in person or by proxy for each share
of Preferred Stock with voting rights held by such holder to the extent of
such rights as specified pursuant to paragraph (c)(vii) below.
(b) Subject to the rights, if any, of the holders of the Preferred Stock,
or any series thereof, the holders of the Common Stock are entitled to the
entire voting power, all dividends declared and paid by the Corporation and
all assets of the Corporation in the event of any liquidation, dissolution,
or winding up of the Corporation.
(c) The Preferred Stock may be divided into and issued from time to time
in one or more series. All shares of the Preferred Stock shall be of equal
rank and shall be identical, except with respect to the particulars that
may be fixed by the Board of Directors as hereinafter provided
pursuant to authority that is hereby expressly vested in the Board of
Directors; provided, however, that each share of a given series of the
Preferred Stock shall be identical in all respects with the other shares of
such series. Before any shares of the Preferred Stock of any particular
series shall be issued, the Board of Directors shall fix and determine, in
the manner provided by law, the following particulars with respect to the
shares of such series:
(i) the distinctive designation of such series and the number of
shares of Preferred Stock that shall constitute such series, which
number may be increased (except where otherwise provided by the Board
of Directors in creating such series) or decreased (but not below the
number of shares of such series then issued) from time to time by the
Board of Directors by resolution;
(ii) the dividend or rate of dividend payable with respect to shares
of Preferred Stock of such series, the time of payment of any dividend,
whether dividends shall be cumulative and, if so, the conditions under
which and the date from which dividends shall be accumulated; the
redemption provisions applicable to the shares of Preferred Stock of
such series, if any, and if applicable, the time or times when, the
price or prices at which, and the other terms and conditions under
which the shares of Preferred Stock of such series shall be redeemable;
(iii) the redemption provisions applicable to the shares of Preferred
Stock of such series, if any, and if applicable, the time or times
when, the price or prices at which, and the other terms and conditions
under which the shares of Preferred Stock of such series shall be
redeemable;
(iv) the amount payable on shares of Preferred Stock of such series
in the event of any voluntary or involuntary dissolution, liquidation
or winding-up of the affairs of the Corporation, which shall not be
deemed to include the merger or consolidation of the Corporation or a
sale, lease or conveyance of all or part of the assets of the
Corporation;
(v) the purchase, retirement or sinking fund provisions, if any, for
the redemption or purchase of shares of Preferred Stock of such series;
(vi) the rights, if any, of the holders of shares of Preferred Stock
of such series to convert such shares into or exchange such shares for
shares of the Common Stock or shares of any other series of the
Preferred Stock and the terms and conditions of such conversion or
exchange;
(vii) subject to paragraph (a) above, the extent of voting rights of
the shares of Preferred Stock of such series or the absence thereof;
and
(viii) such other terms, limitations, rights and preferences, if any,
of such series as the Board of Directors may lawfully fix under the
laws of the State of Delaware as in effect at the time of creation of
such series.
FIFTH: The name and address of the incorporator is as follows:
NAME ADDRESS
Sherri Rosen 380 Madison Avenue
New York, New York 10017
SIXTH: 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:
(1) 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 ballot unless the by-laws to provide.
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(2) The Board of Directors shall have power without the assent or vote of
the stockholders:
(a) 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 net profits; and to fix the times for the
declaration and payment of dividends; and
(b) to determine from time to time whether, and to what extent, and at
what times and places, and under what conditions and regulations, the
accounts and books of the Corporation (other than the stock ledger) or any
of them, shall be open to the inspection of the stockholders.
(3) The directors in their discretion may submit any contract or act for
approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for 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 be 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.
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(4) 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-Laws had
not been made.
SEVENTH: Any person who was or is a party or is threatened to be made a party
to any threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (whether or not by or in the
right of the Corporation) by reason of the fact that he is or was a director,
officer, incorporator, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
incorporator, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise shall be entitled to be indemnified by the
Corporation to the full extent then permitted by law or to the extent that a
court of competent jurisdiction shall deem proper or permissible under the
circumstances, whichever is greater against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement incurred by him in
connection with such action, suit or proceeding. Such right of indemnification
shall inure whether or not the claim asserted is based on matters which
antedate the adoption of this Article SEVENTH. Such right of indemnification
shall continue as to a person who has ceased to be a director, officer,
incorporator, employee or agent and shall inure to the benefit of the heirs
and personal representatives of such person.
EIGHT: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware, may, on application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the 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 the 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 a class of stockholders of the 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 the
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of the Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be,
and also on the Corporation.
NINTH: The personal liability of directors of the Corporation is hereby
eliminated to the fullest extent permitted by paragraph 7 of Subsection (b) of
Section 102 of the General Corporation Law of the State of Delaware as the
same may be amended and supplemented.
TENTH: 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.
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