Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED
OF
AMERICAN HEALTHWAYS, INC.
(Originally incorporated on September 2, 1981)
FIRST: The name of the corporation (hereinafter called the "Corporation") is
American Healthways, Inc.
SECOND: The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle. The
name of the registered agent of the Corporation at such address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
FOURTH: The aggregate number of shares of capital stock the Corporation is
authorized to issue is 45,000,000 shares, of which 40,000,000 shares shall be
Common Stock, par value $.001 per share (the "Common Stock"), and 5,000,000
shares shall be preferred stock, par value $.001 per share (the "Preferred
Stock"), of which 400,000 shares are designated as Series A Preferred Stock (the
"Series A Preferred Stock").
The designations and the powers, preferences and relative,
participating, optional or other rights of the capital stock and the
qualifications, limitations or restrictions thereof are as follows:
A. COMMON STOCK PROVISIONS
1. Voting Rights.
Except as otherwise required by law or expressly provided herein, the
holder of each share of Common Stock shall have one vote on each matter
submitted to a vote of the stockholders of the Corporation.
2. Dividend Rights.
Subject to the provisions of law, the holders of the Common Stock shall
be entitled to receive dividends at such times and in such amounts as may be
determined by the Board of Directors of the Corporation.
3. Liquidation Rights.
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after payment or provision for
payment of the debts and other liabilities of the Corporation and the
preferential amounts to which the holders of any outstanding shares of Preferred
Stock shall be entitled upon dissolution, liquidation, or winding up, the
holders of the Common Stock shall be entitled to share ratably in the remaining
assets of the Corporation.
B. PREFERRED STOCK PROVISIONS
1. Designation.
The Board of Directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of the shares of Preferred Stock
in series, and by filing a certificate pursuant to the applicable law of the
State of Delaware, to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences,
and rights of the shares of each such series and any qualifications, limitations
or restrictions thereof. The number of authorized shares of Preferred Stock may
be increased or decreased (but not below the number of shares thereof then
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, or of any series
thereof, unless a vote of any such holders is required pursuant to the
certificate or certificates establishing the series of Preferred Stock.
2. Liquidation Rights.
If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the assets available for distribution to holders
of shares of Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series of Preferred
Stock in accordance with the respective preferential amounts payable with
respect thereto.
3. Series A Preferred Stock.
Pursuant to the authority vested in the Board of Directors in
accordance with the provisions of this Article Fourth of the Restated
Certificate of Incorporation, the Board of Directors does hereby create,
authorize and provide for the issuance of the Series A Preferred Stock out of
the class of 5,000,000 shares of Preferred Stock, having the voting powers,
designation, relative, participating, optional and other special rights,
preferences, and qualifications, limitations and restrictions thereof that are
set forth as follows:
(a) Designation and Amount. The shares of such series shall be
designated as Series A Preferred Stock ("Series A Preferred Stock") and
the number of shares constituting such series shall be 150,000. Such
number of shares may be adjusted by appropriate action of the Board of
Directors.
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(b) Dividends and Distributions. Subject to the prior and
superior rights of the holders of any shares of any other series of
Preferred Stock or any other shares of Preferred Stock of the
Corporation ranking prior and superior to the shares of Series A
Preferred Stock with respect to dividends, each holder of one
one-hundredth (1/100) of a share (a "Unit") of Series A Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for that purpose, dividends at
the same rate as dividends are paid with respect to the Common Stock.
In the event that the Corporation shall at any time after June 19, 2000
(the "Rights Dividend Declaration Date") (i) declare or pay any
dividend on outstanding shares of Common Stock payable in shares of
Common Stock; (ii) subdivide outstanding shares of Common Stock; or
(iii) combine outstanding shares of Common Stock into a smaller number
of shares, then in each such case the amount to which the holder of a
Unit of Series A Preferred Stock was entitled immediately prior to such
event pursuant to the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which shall be
the number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(c) Voting Rights. The holders of Units of Series A Preferred
Stock shall have the following voting rights:
(i) Subject to the provision for adjustment hereinafter
set forth, each Unit of Series A Preferred Stock shall entitle
the holder thereof to one vote on all matters submitted to a
vote of the stockholders of the Corporation. In the event the
Corporation shall at any time after the Rights Dividend
Declaration Date (i) declare any dividend on outstanding shares
of Common Stock payable in shares of Common Stock; (ii)
subdivide outstanding shares of Common Stock; or (iii) combine
the outstanding shares of Common Stock into a smaller number of
shares, then in each such case the number of votes per Unit to
which holders of Units of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying
such number by a fraction the numerator of which shall be the
number of shares of Common Stock that are outstanding
immediately after such event and the denominator of which shall
be the number of shares of Common Stock that were outstanding
immediately prior to such event.
(ii) Except as otherwise provided herein or by law, the
holders of Units of Series A Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(iii) Except as set forth herein or required by law,
holders of Units of Series A Preferred Stock shall have no
special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
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shares of Common Stock as set forth herein) for the taking of
any corporate action.
(d) Reacquired Shares. Any Units of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such Units shall, upon their cancellation,
become authorized but unissued Units of Series A Preferred Stock to be
created by resolution or resolutions of the Board of Directors, subject
to the conditions and restrictions on issuance set forth herein.
(e) Liquidation. Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the holders of
Units of Series A Preferred Stock shall be entitled to share in any
assets remaining ratably with the holders of the Common Stock. In the
event the Corporation shall at any time after the Rights Dividend
Declaration Date (i) increase by way of stock split or similar
transaction the number of outstanding shares of Common Stock; (ii)
subdivide the outstanding shares of Common Stock; or (iii) combine the
outstanding shares of Common Stock into a smaller number of shares,
then in each such case the aggregate amount to which holders of Units
of Series A Preferred Stock were entitled prior to such event shall be
adjusted by multiplying such amount by a fraction, the numerator of
which shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were outstanding
immediately prior to such event.
(f) Share Exchange, Merger, Etc. In case the Corporation shall
enter into any share exchange, merger, combination or other transaction
in which the shares of Common Stock are exchanged for or converted into
other stock or securities, cash and/or any other property, then in any
such case Units of Series A Preferred Stock shall at the same time be
similarly exchanged for or converted into an amount per Unit (subject
to the provision for adjustment hereinafter set forth) equal to the
aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each
share of Common Stock is converted or exchanged. In the event the
Corporation shall at any time after the Rights Dividend Declaration
Date (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock; (ii) subdivide outstanding shares of
Common Stock; or (iii) combine outstanding shares of Common Stock into
a smaller number of shares, then in each such case the amount set forth
in the immediately preceding sentence with respect to the exchange or
conversion of Units of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which shall be
the number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior to such
event.
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(g) Redemption. The Units of Series A Preferred Stock shall
not be redeemable at the option of the Corporation or any holder
thereof. Notwithstanding the foregoing sentence of this Section, the
Corporation may acquire Units of Series A Preferred Stock in any other
manner permitted by law and the Certificate of Incorporation or Bylaws
of the Corporation.
(h) Ranking. The Units of Series A Preferred Stock shall rank
junior to all other series of the Preferred Stock and to any other
class of Preferred Stock that hereafter may be issued by the
Corporation as to the payment of dividends and the distribution of
assets, unless the terms of any such series or class shall provide
otherwise.
(i) Amendment. The Certificate of Incorporation, including
without limitation the provisions hereof, shall not hereafter be
amended, either directly or indirectly, or through merger or share
exchange with another corporation, in any manner that would alter or
change the powers, preferences or special rights of the Series A
Preferred Stock so as to affect the holders thereof adversely without
the affirmative vote of the holders of a majority or more of the
outstanding Units of Series A Preferred Stock, voting separately as a
class.
(j) Fractional Shares. The Series A Preferred Stock may be
issued in Units or other fractions of a share, which Units or fractions
shall entitle the holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of
Series A Preferred Stock.
FIFTH:
(a) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. Except as otherwise fixed by or
pursuant to the provisions of Article FOURTH hereof relating to the rights of
the holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation to elect additional directors under
specified circumstances, the number of directors shall be fixed by or in the
manner provided in the by-laws of the Corporation.
(b) The directors, other than those who may be elected by the holders
of any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, shall be divided into three classes, designated
Class I, Class II and Class III. Each class shall consist, as nearly equal in
number as possible, of one-third of the total number of directors constituting
the entire Board of Directors. At each annual meeting of stockholders,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as possible.
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(c) A director shall hold office until the annual meeting of
stockholders for the year in which his or her term expires and until his or her
successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. Any additional
director of any class appointed or elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with the
remaining term of that class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director.
(d) Elections of directors need not be by written ballot unless the
by-laws of the Corporation so provide.
SIXTH: In furtherance and not in limitation of the powers conferred by statute
and unless otherwise provided herein, the Board of Directors, by a majority vote
taken at any meeting at which a quorum is present, is expressly authorized to
make, alter or repeal the by-laws of the Corporation.
SEVENTH: No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided, however, that this provision shall not eliminate
or limit the liability of a director (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 an improper personal
benefit.
EIGHTH:
(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 or an officer 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 of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (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, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), 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; provided, however, that,
except as provided in Section (c) of this Article EIGHTH with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a
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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.
(b) Right to Advancement of Expenses. The right to indemnification
conferred in Section (a) of this Article EIGHTH shall include the right to be
paid by the Corporation the expenses (including attorneys' fees) 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, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter 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 (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section (b) or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections (a) and (b) of this Article EIGHTH shall be
contract rights and such rights 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.
(c) Right of Indemnitee to Bring Suit. If a claim under Section (a) or
(b) of this Article EIGHTH 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) in any suit brought 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 any applicable standard for indemnification 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 to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the
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burden of proving that the indemnitee is not entitled to be indemnified, or to
such advancement of expenses, under this Article EIGHTH or otherwise shall be on
the Corporation.
(d) Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article EIGHTH shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, the Corporation's Restated Certificate of Incorporation, by-laws,
agreement, vote of stockholders or disinterested directors or otherwise.
(e) 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 have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
(f) Indemnification of Employees and 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 employee or agent of the Corporation to the fullest extent of the provisions
of this Article EIGHTH with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation.
NINTH: No amendment to or repeal of Article SEVENTH or EIGHTH of this Restated
Certificate of Incorporation shall apply to or have any effect on the rights of
any individual referred to in Article SEVENTH or EIGHTH for or with respect to
acts or omissions of such individual occurring prior to such amendment or
repeal.
TENTH:
A. Vote Required For Certain Business Combinations
1. In addition to any affirmative vote required by law or this
Restated Certificate of Incorporation, and except as otherwise expressly
provided in Section B of this Article TENTH:
(a) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or not
itself an Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an
Interested Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having
an aggregate Fair Market Value of $30,000,000 or more; or
(c) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any
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Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate Fair Market
Value of $10,000,000 or more; or
(d) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of an
Interested Stockholder or any Affiliate of any Interested Stockholder;
or
(e) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving
an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Stockholder or any Affiliate of any Interested
Stockholder;
shall require the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock"),
excluding shares held by the Interested Stockholder, voting together as a single
class (it being understood that for purposes of this Article TENTH, each share
of the Voting Stock shall have the number of votes granted to it pursuant to
Article FOURTH of this Restated Certificate of Incorporation). Such affirmative
vote shall be required notwithstanding the fact that no vote may be required, or
that a lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
2. The term "Business Combination" as used in this Article TENTH
shall mean any transaction which is referred to in any one or more of
subparagraphs (a) through (e) of paragraph 1 of this Section A.
B. When Higher Vote Is Not Required. The provisions of Section A
of this Article TENTH shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provision of this Restated Certificate
of Incorporation, if all of the conditions specified in either of the following
paragraphs 1 or 2 are met:
1. The Business Combination shall have been approved by a
majority of the Disinterested Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market Value
(as hereinafter defined) as of the date of the consummation of the
Business Combination of consideration other than cash to be received
per share by holders of Common Stock in such Business Combination shall
be at least equal to the higher of the following:
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I. (if applicable) the Highest Per Share Price (as
hereinafter defined) (including the brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of Common Stock acquired
by it (X) within the two year period immediately prior to the
first public announcement of the proposal of the Business
Combination (the "Announcement Date") or (Y) in the
transaction in which it became an Interested Stockholder,
whichever is higher; and
II. the Fair Market Value per share of Common Stock
on the Announcement Date or on the date on which the
Interested Stockholder became an Interested Stockholder (such
latter date is referred to in this Article TENTH as the
"Determination Date"), whichever is higher.
(b) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
shares of any class of outstanding Voting Stock other than Common Stock
shall be at least equal to the highest of the following (it being
intended that the requirements of this subparagraph (b) shall be
required to be met with respect to every such class of outstanding
Voting Stock, whether or not the Interested Stockholder has previously
acquired any shares of a particular class of Voting Stock):
I. (if applicable) the Highest Per Share Price (as
hereinafter defined) (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of such class of Voting
Stock acquired by it (X) within the two-year period
immediately prior to the Announcement Date or (Y) in the
transaction in which it became an Interested Stockholder,
whichever is higher;
II. (if applicable) the highest preferential amount
per share to which the holders of shares of such class of
Voting Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation; and
III. the Fair Market Value per share of such class of
Voting Stock on the Announcement Date or on the Determination
Date, whichever is higher.
(c) The consideration to be received by holders of a
particular class of outstanding Voting Stock (including Common Stock)
shall be in cash or in the same form as the Interested Stockholder has
previously paid for shares of such class of Voting Stock. If the
Interested Stockholder has paid for shares of any class of Voting Stock
with varying forms of consideration, the form of consideration for such
class of Voting Stock shall be either cash or the form used to acquire
the largest number of shares of such class of Voting Stock previously
acquired by it.
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(d) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination:
(i) except as approved by a majority of the Disinterested Directors,
there shall have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not cumulative) on
any outstanding Preferred Stock; (ii) there shall have been (x) no
reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any subdivision of the Common Stock),
except as approved by a majority of the Disinterested Directors, and
(y) an increase in such annual rate of dividends as necessary to
reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate is approved
by a majority of the Disinterested Directors; and (iii) such Interested
Stockholder shall have not become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction
which results in such Interested Stockholder becoming an Interested
Stockholder.
(e) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(f) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), and the
rules and regulations thereunder (or any subsequent provisions
replacing the Exchange Act, rules or regulations) shall be mailed to
public stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to the Exchange
Act or subsequent provisions).
C. Certain Definitions. For the purposes of this Article TENTH:
1. A "person" shall mean any individual, firm, corporation or
other entity.
2. "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of more
than 20% of the voting power of the outstanding Voting Stock; or
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(b) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, within the meaning of Rule
13d-3 under the Exchange Act, of 20% or more of the voting power of the
then outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act of
1933.
3. A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns, directly or indirectly,
within the meaning of Rule 13d-3 under the Exchange Act; or
(b) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (ii) the right to vote pursuant to any agreement, arrangement or
understanding (but neither such person nor any such Affiliate or
Associate shall be deemed to be the beneficial owner of any shares of
Voting Stock solely by reason of a revocable proxy granted for a
particular meeting of stockholders, pursuant to a public solicitation
of proxies for such meeting, and with respect to which shares neither
such person nor any such Affiliate or Associate is otherwise deemed the
beneficial owner); or
(c) which are beneficially owned, directly or indirectly,
within the meaning of Rule 13d-3 under the Exchange Act, by any other
person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purposes of
acquiring, holding, voting (other than solely by reason of a revocable
proxy as described in subparagraph (b) of this paragraph (3)) or
disposing of any shares of Voting Stock;
provided, however, that in the case of any employee stock ownership or similar
plan of the Corporation or of any Subsidiary in which the beneficiaries thereof
possess the right to vote any shares of Voting Stock held by such plan, no such
plan nor any trustee with respect thereto (nor any Affiliate of such trustee),
solely by reason of such capacity of such trustee, shall be deemed, for any
purposes hereof, to beneficially own any shares of Voting Stock held under any
such plan.
4. For the purposes of determining whether a person is an
Interested Stockholder pursuant to paragraph 2 of this Section C, the number of
shares of Voting Stock deemed to be
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outstanding shall include shares deemed owned by such person through application
of paragraph 3 of this Section C but shall not include any other shares of
Voting Stock which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
5. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act.
6. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph 2 of this Section C, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
7. "Disinterested Director" means any member of the Board of
Directors who is unaffiliated with the Interested Stockholder and was a member
of the Board of Directors prior to the time that the Interested Stockholder
became an Interested Stockholder, and any successor of a Disinterested Director
who is unaffiliated with the Interested Stockholder and is recommended to
succeed a Disinterested Director by a majority of Disinterested Directors then
on the Board of Directors.
8. "Fair Market Value" means: (a) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding the
date in question of a share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Exchange Act on which such stock is listed, or, if such stock is not listed
on any such exchange, the highest closing bid quotation with respect to a share
of such stock during the 30-day period preceding the date in question on the
National Association of Securities Dealers Automated Quotation System or any
system then in use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock as determined by the
Board of Directors in good faith, in each case with respect to any class of
stock, appropriately adjusted for any dividend or distribution in shares of such
stock or any stock split or reclassification of outstanding shares of such stock
into a greater number of shares of such stock or any combination or
reclassification of outstanding shares of such stock into a smaller number of
shares of such stock; and (b) in the case of property other than cash or stock,
the fair market value of such property on the date in question as determined by
the Board of Directors in good faith.
9. References to "Highest Per Share Price" shall in each case
with respect to any class of stock reflect an appropriate adjustment for any
dividend or distribution in shares of such stock or any stock split or
reclassification of outstanding shares of such stock into a greater number of
shares of such stock or any combination or reclassification of outstanding
shares of such stock into a smaller number of shares of such stock.
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10. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash" as used in
subparagraphs (a) and (b) of paragraph 2 of Section B of this Article TENTH
shall include the shares of Common Stock and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such shares.
D. Powers of the Board of Directors. A majority of the directors
of the Corporation shall have the power and duty to determine for the purposes
of this Article TENTH, on the basis of information known to them after
reasonable inquiry, (a) whether a person is an Interested Stockholder, (b) the
number of shares of Voting Stock beneficially owned by any person, (c) whether a
person is an Affiliate or Associate of another and (d) whether the assets which
are the subject of any Business Combination have, an aggregate Fair Market Value
of $30,000,000 or more, or the consideration to be received for the issuance or
transfer of securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $10,000,000 or more.
E. No Effect on Fiduciary Obligations of Interested Stockholders.
Nothing contained in this Article TENTH shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
F. Amendment or Repeal. Notwithstanding any other provisions of
this Restated Certificate of Incorporation or the by-laws of the Corporation
(and notwithstanding the fact that a lesser percentage may be specified by law,
this Restated Certificate of Incorporation or the by-laws of the Corporation),
the affirmative vote of the holders of 80% or more of the outstanding Voting
Stock, excluding shares held by an Interested Stockholder, voting together as a
single class, shall be required to amend or repeal, or adopt any provisions
inconsistent with this Article TENTH.
ELEVENTH: No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent, in writing, without a
meeting, to the taking of any action is specifically denied.
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TWELFTH: The Corporation shall not be governed by the provisions of Section 203
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation which
restates, integrates and amends the provisions of the Certificate of
Incorporation of the Corporation, and which has been duly adopted in accordance
with Section 242 of the General Corporation Law of the State of Delaware, has
been executed by its President and attested by its Secretary, this ____ day of
August, 1991.
AMERICAN HEALTHWAYS, INC.
By: /s/ Thomas G. Cigarran
-------------------------------
President
ATTEST:
/s/ Henry D. Herr
- -----------------------------
Henry D. Herr
Secretary
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