EXHIBIT (3)-1
RESTATED
CERTIFICATE OF INCORPORATION
OF
HEALTHSOUTH CORPORATION
HEALTHSOUTH Corporation, 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 HEALTHSOUTH Corporation.
The Corporation was originally incorporated under the name AMCARE, Inc.
The date of filing its original Certificate of Incorporation with the Secretary
of State was February 22, 1984.
2. This Restated Certificate of Incorporation further amends and
restates the Restated Certificate of Incorporation of the Corporation by
inserting therein a new Article FOURTH.
3. The text of the Restated Certificate of Incorporation, as amended or
supplemented heretofore, is further amended hereby to read as herein set forth
in full:
"FIRST: The name of the Corporation is HEALTHSOUTH Corporation.
SECOND: The address of its registered office 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.
THIRD: The nature of the business or purposes to be conducted or
promoted are:
(a) To engage in the business of providing comprehensive
rehabilitation and clinical healthcare services on an ambulatory and
inpatient basis in rehabilitation clinics and hospitals to the general
public through the provision of physician services, physical therapy,
social and/or psychological, respiratory therapy, cardiac
rehabilitation, pulmo- nary rehabilitation, occupational therapy,
speech pathology, prosthetic and orthotic devices, nursing care, drugs
and biologicals, supplies, appliances and equipment and other services
and to do any and all things necessary and appropriate to carry out
such business effectively, including, without limitation, the owning,
leasing, management and operation of medical facilities and other
physical properties, either directly or indirectly, or in concert with
others.
(b) 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 total number of shares of stock which the Corporation shall
have authority to issue is Five Hundred One Million Five Hundred Thousand
(501,500,000) shares, consisting of Five Hundred Million (500,000,000) shares of
Common Stock, par value One Cent ($.01) per share, and One Million Five Hundred
Thousand (1,500,000) shares of Preferred Stock, par value Ten Cents ($.10) per
share.
Shares of Preferred Stock may be issued from time-to-time in one or
more series, each such series to have such distinctive designation or title as
may be stated and expressed in this Article FOURTH or as may be fixed by the
Board of Directors
prior to the issuance of any shares thereof. Each such series of Preferred Stock
shall have such voting powers, full or limited, or no voting powers, and such
preferences and such relative, participating, optional or other special rights
(including, without limitation, the right to convert the shares of such
Preferred Stock into shares of the Corpora- tion's Common Stock at such rate and
upon such terms and conditions as may be fixed by the Corporation's Board of
Directors), with such qualifications, limitations or restrictions of such
preferences or rights as shall be stated and expressed in this Article FOURTH or
in the resolution or resolutions providing for the issue of such series of
Preferred Stock as may be adopted from time-to-time by the Board of Directors
prior to the issuance of any shares thereof, in accordance with the laws of the
State of Delaware.
Except as may be otherwise provided in this Article FOURTH or in the
resolution or resolutions providing for the issue of a particular series, the
Board of Directors may from time-to-time increase the number of shares of any
series already created by providing that any unissued shares of Preferred Stock
shall constitute part of such series, or may decrease (but not below the number
of shares thereof then outstanding) the number of shares of any series already
created by providing that any unissued shares previously assigned to such series
shall no longer constitute part thereof.
FIFTH: The Board of Directors shall have the power to make, alter or
repeal the Bylaws of the Corporation at any meeting at which a quorum is present
by the affirmative vote of a majority of the whole Board of Directors. Election
of Directors need not be by written ballot.
SIXTH: Special Meetings of the stockholders of the Corporation may be
called only by the Board of Directors of the Corporation by resolution adopted
by a majority of the whole Board of Directors or in writing by the holders of at
least 20% of the outstanding shares of the Corporation entitled to vote in
elections of Directors.
SEVENTH: (a) Unless the conditions set forth in clauses (1) through (4)
of this Article SEVENTH, Section (a) are satisfied, the affirmative vote of the
holders of Sixty-Six and Two-Thirds Percent (66-2/3%) of all shares of the
Corporation entitled to vote in elections of Directors, considered for the
purposes of this Article SEVENTH as one class, shall be required for the
adoption or authorization of a business combination (as hereinafter defined)
with any other entity (as hereinafter defined) if, as of the record date for the
determination of stockholders entitled to notice thereof and to vote thereon,
the other entity is the beneficial owner, directly or indirectly, of more than
Twenty Percent (20%) of the outstanding shares of the Corporation entitled to
vote in elections of Directors, considered for the purposes of this Article
SEVENTH as one class. The Sixty-Six and Two-Thirds Percent (66-2/3%) voting
requirement set forth in the foregoing sentence shall not be applicable if:
(1) The cash, or fair market value of other consideration, to
be received per share by holders of the Corporation's Common Stock in
the business combination is at least an amount equal to (A) the highest
per share price paid by the other entity in acquiring any of its
holdings of the Corporation's Common Stock plus (B) the aggregate
amount, if any, by which Five Percent (5%) per annum of that per share
price exceeds the aggregate amount of all dividends paid in cash, in
each case since the date on which the other entity acquired the Twenty
Percent (20%) interest;
(2) After the other entity has acquired a Twenty Percent (20%)
interest and prior to the consummation of the business combination: (A)
the other entity shall have taken steps to ensure that the
Corporation's Board of Directors included at all times representation
by continuing Director(s) (as hereinafter defined) proportionate to the
stockholders of the public holders of the Corporation's Common Stock
not affiliated with the other entity (with a continuing Director to
occupy any resulting fractional board position); (B) the other entity
shall not have acquired any newly issued shares, directly or
indirectly, from the Corporation (except upon conversion of convertible
securities acquired by it prior to obtaining a Twenty Percent (20%)
interest or as a result of a pro rata share dividend or share split);
and (C) the other entity shall not have acquired any additional
outstanding shares of the Corporation's Common Stock or securities
convertible into shares of the Corporation's Common Stock except as a
part of the transaction that resulted in the other entity's acquiring
its Twenty Percent (20%) interest;
(3) The other entity shall not have (A) received the benefit,
directly or indirectly (except proportionately as a stockholder), of
any loans, advances, guarantees, pledges or other financial assistance
or tax credits provided by the Corporation or (B) made any major change
in the Corporation's business or equity capital structure without in
either case the approval of at least a majority of all the Directors
and at least two-thirds of the continuing Directors prior to the
consummation of the business combination; and
(4) A proxy statement responsive to the requirements of the
Securities Exchange Act of 1934 shall have been mailed to public
stockholders of the Corporation for the purpose of soliciting
stockholder approval of the business combination and shall have
contained at the front thereof, in a prominent place, any
recommendations as to the advisability (or inadvisability) of the
business combination that the continuing Directors, or any of them, may
choose to state and, if deemed advisable by a majority of the
continuing Directors, an opinion of a reputable investment banking firm
as to the fairness of the terms of the business combination, from the
point of view of the remaining public stockholders of the Corporation
(the investment banking firm to be selected by a majority of the
continuing Directors and to be paid a reasonable fee for its services
by the Corporation upon receipt of the opinion).
The provisions of this Article SEVENTH shall also apply to a business
combination with any other entity that at any time has been the beneficial
owner, directly or indirectly, of more than Twenty Percent (20%) of the
outstanding shares of the Corporation entitled to vote in elections of
Directors, considered for the purposes of this
Article SEVENTH as one class, notwithstanding the fact that the other entity has
reduced its shareholders below Twenty Percent (20%) if, as of the record date
for the determination of stockholders entitled to notice of and to vote on the
business combination, the other entity is an "affiliate" (as hereinafter
defined) of the Corporation.
(b) As used in this Article SEVENTH, (1) the term "other entity" shall
include any corporation, person or other entity and any other entity with which
it or its "affiliate" or "associate" (as defined below) has any agreement,
arrangement, or understanding, directly or indirectly, for the purpose of
acquiring, holding, voting, or disposing of shares of the Corporation, or that
is its "affiliate" or "associate" as those terms are defined in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act of 1934 as
in effect on September 1, 1986, together with the successors and assigns of
those persons in any transaction or series of transactions not involving a
public offering of the Corporation's shares within the meaning of the Securities
Act of 1933; (2) an other entity shall be deemed to be the beneficial owner of
any shares of the Corporation that the other entity (as defined above) has the
right to acquire pursuant to any agreement or upon exercise of conversion
rights, warrants or options, or otherwise; (3) the outstanding shares of any
class of the Corporation shall include shares deemed owned through application
of clause (2) above but shall not include any other shares that may be issuable
pursuant to any agreement or upon exercise of conversion rights, warrants or
options, or otherwise; (4) the term "business combination" shall include (A) the
sale, exchange, lease, transfer or other disposition by the Corporation of all,
or substantially all, of its assets or business to any other entity, (B) the
consolidation of the Corporation with or its merger into any other entity, (C)
the merger into the Corporation of any other entity, or (D) a combination or
major-
ity share acquisition in which the Corporation is the acquiring corporation and
its voting shares are issued or transferred to any other entity or to
stockholders of any other entity, and the term "business combination" shall also
include any agreement, contract or other arrangement with an other entity
providing for any of the transactions described in (A) through (D) of this
clause (4); (5) the term "continuing Director" shall mean either a person who
was a member of the Corporation's Board of Directors on August 15, 1986, or a
person who was elected to the Corporation's Board of Directors by the public
stockholders of the Corporation prior to the time when the other entity acquired
in excess of five percent (5%) of the shares of the Corporation entitled to vote
in the election of Directors, considered for the purposes of this Article
SEVENTH as one class, or a person recommended to succeed a continuing Director
by a majority of the continuing Directors; and (6) for the purposes of Article
SEVENTH, Section (a), clause (1), the term "other consideration to be received"
shall mean shares of the Corporation's Common Stock retained by its existing
public stockholders in the event of a business combination with the other entity
in which the Corporation is the surviving corporation.
(c) A majority of the continuing Directors shall have the power and
duty to determine for the purposes of this Article SEVENTH, on the basis of
information known to them, whether (1) the other entity beneficially owns more
than Twenty Percent (20%) of the outstanding shares of the Corporation entitled
to vote in elections of Directors, (2) an other entity is an "affiliate" or
"associate" (as defined above) of another, or (3) an other entity has an
agreement, arrangement or understanding with another.
(d) Nothing contained in this Article SEVENTH shall be construed to
relieve any other entity from any fiduciary obligation imposed by law.
EIGHTH: Subject to the last sentence of this Article EIGHTH, the
Corporation reserves the right to amend and repeal any provision contained in
this Certificate of Incorporation including, without limiting the generality of
the foregoing, the addition of a provision requiring a supermajority vote of
stockholders to remove Directors. The provisions set forth in Articles SIXTH,
SEVENTH and this Article EIGHTH of this Certificate of Incorporation may not be
repealed or amended in any respect, unless such action is approved by the
affirmative vote of the holders of Sixty-Six and Two- Thirds Percent (66-2/3%)
of all shares of the Corporation entitled to vote in elections of Directors,
considered for purposes of this Article EIGHTH as one class.
NINTH: No Director of this 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 Article NINTH shall not
eliminate the liability of a Director (a) for any breach of the Director's duty
of loyalty to the Corporation or its stockholders, (b) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the General Corporation Law of Delaware, or (d)
for any transaction from which the Director derived an improper personal
benefit.
(4) In accordance with the applicable provisions of Sections 242 and
245 of the General Corporation Law of the State of Delaware, this Restated
Certificate of
Incorporation has been duly adopted by the Directors of the Corporation and by
vote of the stockholders.
IN WITNESS WHEREOF, said HEALTHSOUTH Corporation has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by
Anthony J. Tanner, its Executive Vice President, and attested by William W.
Horton, its Group Vice President--Legal Services, this 13th day of March, 1997.
HEALTHSOUTH Corporation
By /s/ ANTHONY J. TANNER
----------------------------
Anthony J. Tanner
Executive Vice President
[ CORPORATE SEAL ]
ATTEST:
By /s/ WILLIAM W. HORTON
-------------------------------
William W. Horton
Assistant Secretary