<PAGE>
As filed with the Securities and Exchange Commission on May 11, 1999
Registration Number 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Triad Hospitals, Inc.
(Exact name of registrant as specified in its charter)
Delaware 75-2816101
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
13455 Noel Road, 20th Floor
Dallas, Texas 75240
(Address of Principal Executive Offices) (Zip Code)
Triad Hospitals, Inc. 1999 Long-Term Incentive Plan
(Full Title of the Plan)
Donald P. Fay, Esq.
Executive Vice President,
General Counsel and Secretary
Triad Hospitals, Inc.
13455 Noel Road, 20th Floor
Dallas, Texas 75240
(972) 789-2732
(Name, address and telephone number of agent for service)
----------------------
Copies to:
Aileen C. Meehan, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
(212) 259-8000
----------------------
<PAGE>
<TABLE>
<CAPTION>
=====================================================================================================================
CALCULATION OF REGISTRATION FEE
Title Of Each Amount To Be Proposed Maximum Proposed Maximum Amount Of
Class of Securities Registered(1) Offering Price Per Aggregate Offering Registration Fee
To Be Registered Unit (2) Price (2)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 5,350,000 $ 9.4375 $ 50,490,625 $ 14,036.39
par value $.01 per
share (3)
=====================================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Triad Hospitals, Inc. 1999
Long-Term Incentive Plan by reason of any stock dividend, stock split,
recapitalization, merger, consolidation or reorganization of or by the
Registrant which results in an increase in the number of the Registrant's
outstanding shares of Common Stock or shares issuable pursuant to awards
granted under the plan.
(2) Estimated for the sole purpose of computing the registration fee. Pursuant
to Rules 457(c) and 457(h) under the Securities Act, the proposed maximum
offering price per unit is calculated as the average of the high and low
selling prices, as reported on the Nasdaq National Market, of the common
stock of the registrant on May 7, 1999.
(3) Includes Preferred Stock Purchase Rights which, prior to the occurrence of
certain events, will not be exercisable or evidenced separately from the
Common Stock.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following document filed with the Securities and Exchange
Commission by Triad Hospitals, Inc. ("Triad") (File No. 0-29818) is incorporated
herein by reference and made a part hereof:
Triad's Registration Statement on Form 10, as amended, filed pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including the description of the common stock and
associated preferred stock purchase rights of Triad contained in such
Registration Statement on Form 10; such description is qualified in its
entirety by reference to the (i) Certificate of Incorporation of Triad and
(ii) By-Laws of Triad, filed as Exhibits 3.1 and 3.2, respectively, to this
Registration Statement, and any amendment or report filed for the purpose
of updating that description.
All documents filed by Triad pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents.
The combined financial statements of Triad Hospitals, Inc. and its
subsidiaries at December 31, 1998 and 1997 and for each of the three years in
the period ended December 31, 1998, appearing in Triad's Registration Statement
on Form 10, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such combined financial statements are incorporated herein by
reference in reliance upon such report on the authority of such firm as experts
in accounting and auditing.
ITEM 4. Description of Securities.
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel.
Not Applicable.
ITEM 6. Indemnification of Directors and Officers.
Triad is a Delaware corporation. Reference is made to Section 145 of
the Delaware General Corporation Law as to indemnification by Triad of its
officers and directors. The general effect of such law is to empower a
corporation to indemnify any of its officers and directors against certain
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person to be
II-1
<PAGE>
indemnified in connection with certain actions, suits or proceedings
(threatened, pending or completed) if the person to be indemnified acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed to,
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
Article Fourteenth of Triad's Certificate of Incorporation (which
Certificate of Incorporation is incorporated by reference as Exhibit 3.1 to this
Registration Statement), provides for the indemnification of Triad's officers
and directors in accordance with the Delaware General Corporation Law. Article
Twelfth of Triad's Certificate of Incorporation includes, as permitted by the
Delaware General Corporation Law, certain limitations on the potential personal
liability of members of Triad's Board of Directors for monetary damages as a
result of actions taken in their capacity as Board members.
The directors and officers of Triad are covered by insurance policies
indemnifying them against certain liabilities arising under the Securities Act,
which might be incurred by them in such capacities.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
The documents listed hereunder are filed as exhibits hereto.
Exhibit Number Description
- -------------- -----------
3.1 Certificate of Incorporation of Triad,
as filed with the Secretary of State of
the State of Delaware on April 27, 1999.
3.2 By-Laws of Triad.
4.1 Form of Specimen Certificate for Triad
Hospitals, Inc. common stock, filed as
exhibit 4.1 to Triad Hospitals, Inc.
Registration Statement on Form 10 under
the Securities Exchange Act of 1934, as
amended, is incorporated herein by
reference.
4.2 Form of Rights Agreement between Triad Hospitals, Inc.
and National City Bank, as rights agent, filed as
exhibit 4.2 to Triad Hospitals, Inc. Registration
Statement on Form 10 under the Securities Exchange Act
of 1934, as amended, is incorporated herein by
reference.
5 Opinion and Consent of Dewey Ballantine LLP.
23.1 Consent of Dewey Ballantine LLP (included in Exhibit 5
hereto).
23.2 Consent of Ernst & Young LLP.
II-2
<PAGE>
Exhibit Number Description
- -------------- -----------
99 Form of Triad Hospitals, Inc. 1999 Long-Term Incentive
Plan, filed as exhibit 10.8 to Triad Hospitals, Inc.
Registration Statement on Form 10 under the Securities
Exchange Act of 1934, as amended, is incorporated
herein by reference.
ITEM 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered
II-3
<PAGE>
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, as of the 10th day of May
1999.
TRIAD HOSPITALS, INC.
By: /s/ James D. Shelton
------------------------
James D. Shelton
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Date: May 10, 1999 By: /s/ R. Milton Johnson
------------------------
R. Milton Johnson
Director
Date: May 10, 1999 By: /s/ Bruce A. Moore
------------------------
Bruce A. Moore
Director
Date: May 10, 1999 By: /s/ John M. Franck II
------------------------
John M. Franck II
Director
Date: May 10, 1999 By: /s/ James D. Shelton
------------------------
James D. Shelton
Chief Executive Officer
(Principal executive officer,
principal financial officer
and principal accounting officer)
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
- --------------- -----------
3.1 Certificate of Incorporation of Triad, as
filed with the Secretary of State of the
State of Delaware on April 27, 1999.
3.2 By-Laws of Triad.
4.1 Form of Specimen Certificate for Triad
Hospitals, Inc. common stock, filed as
exhibit 4.1 to Triad Hospitals, Inc.
Registration Statement on Form 10 under the
Securities Exchange Act of 1934, as
amended, is incorporated herein by
reference.
4.2 Form of Rights Agreement between Triad
Hospitals, Inc. and National City Bank, as
rights agent, filed as exhibit 4.2 to Triad
Hospitals, Inc. Registration Statement on
Form 10 under the Securities Exchange Act
of 1934, as amended, is incorporated herein
by reference.
5 Opinion and Consent of Dewey Ballantine
LLP.
23.1 Consent of Dewey Ballantine LLP (included
in Exhibit 5 hereto).
23.2 Consent of Ernst & Young LLP.
99 Form of Triad Hospitals, Inc. 1999 Long-
Term Incentive Plan, filed as exhibit 10.8
to Triad Hospitals, Inc. Registration
Statement on Form 10 under the Securities
Exchange Act of 1934, as amended, is
incorporated herein by reference.
<PAGE>
EXHIBIT 3.1
===============================================================================
CERTIFICATE OF INCORPORATION
OF
TRIAD HOSPITALS, INC.
______________
DELAWARE
===============================================================================
<PAGE>
EXHIBIT 3.1
Certificate of Incorporation
of
Triad Hospitals, Inc.
FIRST: The name of the Corporation is Triad Hospitals, Inc.
SECOND: The address of the Corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, Delaware 19801. The name of its registered
agent 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 Delaware General
Corporation Law.
FOURTH: The total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue is One Hundred Million
(100,000,000) shares, divided into two classes of which Ten Million (10,000,000)
shares, par value $.01 per share, shall be designated Preferred Stock, and
Ninety Million (90,000,000) shares, par value $.01 per share, shall be
designated Common Stock.
A. Preferred Stock
1. Issuance. The Board of Directors is expressly authorized,
--------
subject to limitations prescribed by law, to provide for the issuance
of shares of Preferred Stock in one or more series, to establish the
number of shares to be included in each such series, and to fix the
designations, 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 at least
80% of the voting power of all of the then outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, without a
separate vote of the holders of the Preferred Stock, unless a vote of
any such holders is required pursuant to the terms of any such series
of Preferred Stock.
2. Series A Junior Participating Preferred Stock.
-----------------------------------------------
Section 1. Designation and Amount. Ninety Thousand
----------------------
(90,000) shares of the Preferred Stock of the Corporation shall
be designated as "Series A Junior Participating Preferred
Stock," par value $.01 per share (the "Series A Preferred
Stock"). The number of shares of such series of Preferred Stock
may be increased or decreased by resolution of the Board of
Directors; provided, however, that no decrease shall reduce the
number of shares of such series of Preferred Stock to a number
less than the number of shares then outstanding plus the number
of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or
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<PAGE>
upon the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
----------------------------
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares
of Series A Preferred Stock, in preference to the holders of Common Stock,
and of any other junior stock, shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the first day of March,
June, September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $10 or (b)
subject to the provision for adjustment hereinafter set forth, 1,000 times
the aggregate per share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section 2
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided,
however, that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $10 per share on the Series A Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
- 2 -
<PAGE>
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue
of such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date shall be
not more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
--------------
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to
1,000 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the number of votes per
share to which holders of shares 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 is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, in a resolution or
resolutions adopted by the Board of Directors providing for the issuance of
a series of Preferred Stock or any similar stock (a "Certificate of
Designation"), or by law, the holders of shares of Series A Preferred Stock
and the holders of shares of Common Stock and any other capital stock of
the Corporation entitled to vote generally in the election of directors
shall vote together as a single class on all matters submitted to a vote of
stockholders of the Corporation.
(C) Except as otherwise provided herein, or by law, holders of Series A
Preferred Stock shall have no special voting rights and their consent shall
not be
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<PAGE>
required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
---------------------
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 of
paragraph A of this Article Fourth are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not declared, on
shares of Series A Preferred Stock outstanding shall have been paid in
full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A Preferred Stock and
all such parity stock on which dividends are payable or in arrears, in
proportion to the total amounts to which the holders of all such shares
are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock,
provided, however, that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior (both as to
dividends and upon dissolution, liquidation or winding up) to the Series
A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
Section 5. Reacquired Shares. Any shares 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 shares shall upon their cancellation become authorized
but unissued shares of Preferred Stock and may be reissued as part of a
new series of Preferred Stock
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<PAGE>
subject to the conditions and restrictions on issuance set forth herein or
in any Certificate of Designation providing for the issuance of a series of
Preferred Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
--------------------------------------
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of
Series A Preferred Stock shall have received $1,000 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, provided, however,
that the holders of shares of Series A Preferred Stock shall be entitled to
receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 1,000 times the aggregate amount
to be distributed per share to holders of shares of Common Stock, or (2) to
the holders of shares of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred Stock
and all such parity stock, in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution
or winding up. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case each share of Series A Preferred Stock shall at the
same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to
1,000 times 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 changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount set forth in the preceding sentence with
respect to the
- 5 -
<PAGE>
exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock
--------------
shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with
----
respect to the payment of dividends and the distribution of assets, junior
to all series of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. This Certificate of Incorporation shall not be
---------
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series A Preferred Stock,
voting together as a single class.
B. Common Stock.
Section 1. Dividends. Subject to the preferential rights, if any, of
---------
the holders of any series of Preferred Stock then outstanding, the holders
of the Common Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose,
dividends payable either in cash, in property or in shares of Common Stock
or other securities of the Corporation.
Section 2. Voting Rights. Subject to the rights, if any, of the
-------------
holders of any series of Preferred Stock then outstanding, and except as
otherwise required by law, the holders of the Common Stock shall
exclusively possess all voting power, and at every annual or special
meeting of stockholders of the Corporation, each holder of Common Stock
shall be entitled to one vote, in person or by proxy, for each share of
Common Stock standing in such holder's name on the books of the
Corporation.
Section 3. Liquidation, Dissolution or Winding Up. Upon any
--------------------------------------
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, the holders of the Common Stock shall be
entitled to share ratably in all assets of the Corporation available for
distribution to its stockholders, subject to the preferential rights, if
any, of the holders of any series of Preferred Stock then outstanding.
FIFTH: The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. The Board of Directors may
exercise all such authority and powers of the Corporation and do all such lawful
acts and things as are not by statute or this Certificate of Incorporation
directed or required to be exercised or done by the stockholders.
- 6 -
<PAGE>
A. Number of Directors. The number of directors of the Corporation
(exclusive of directors to be elected by the holders of one or more series of
the Preferred Stock of the Corporation which may be outstanding, voting
separately as a series or class) shall be fixed from time to time by action of
not less than a majority of the members of the Board of Directors then in
office, but in no event shall such number of directors of the Corporation be
less than three nor more than fifteen.
B. Classes. The directors, 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, as nearly equal in number as reasonably possible, with the
term of office of the first class to expire at the 2000 annual meeting of
stockholders, the term of office of the second class to expire at the 2001
annual meeting of stockholders and the term of office of the third class to
expire at the 2002 annual meeting of stockholders. At each annual meeting of
stockholders, commencing with the 2000 annual meeting, (i) directors shall be
elected to succeed those directors whose terms expire for a term of office to
expire at the third succeeding annual meeting of stockholders after their
election, and (ii) if authorized by a resolution of the Board of Directors,
directors may be elected to fill any vacancy in the Board of Directors,
regardless of how such vacancy was created. Directors need not be stockholders.
All directors shall hold office until the expiration of the term for which
elected and until their successors are elected, except in the case of the death,
resignation, disqualification or removal of any director.
C. Stockholder Nomination of Director Candidates and Introduction of
Business. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
By-Laws of the Corporation.
D. Vacancies. Subject to the rights, if any, of the holders of any
series of Preferred Stock then outstanding, and unless the Board of Directors
otherwise determines, newly created directorships resulting from any increase in
the authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, disqualification or removal may be filled
only by a majority vote of the directors then in office, though less than a
quorum, and directors so chosen shall hold office for a term expiring at the
annual meeting of stockholders at which the term of office of the class to which
they have been elected expires or, in the case of newly created directorships,
shall hold office until such time as determined by the directors electing such
new director (in a manner consistent with paragraph B of this Article Fifth). No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
E. Removal. Subject to the rights, if any, of the holders of any
series of Preferred Stock then outstanding, any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least 80% of the voting power of
all of the then outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class.
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SIXTH: Subject to the rights, if any, of the holders of any series of
Preferred Stock then outstanding, no action required to be taken or which may be
taken at any annual or special meeting of the stockholders of the Corporation
may be taken without a meeting, and the power of the stockholders to consent in
writing, without a meeting, to the taking of any action, including (without
limitation) the power of stockholders to adopt or amend the By-Laws of the
Corporation by written consent, is hereby specifically denied.
SEVENTH: Subject to the rights, if any, of the holders of any series of
Preferred Stock then outstanding, special meetings of the stockholders of the
Corporation may be called only by (a) the Chairman of the Board of Directors, if
one shall have been elected or (b) the Chief Executive Officer of the
Corporation, and, in addition, a special meeting shall be called by the Chairman
of the Board or the Chief Executive Officer at the request in writing of a
majority of the Board of Directors. The ability of the stockholders to call a
special meeting is hereby specifically denied.
EIGHTH: In furtherance and not in limitation of the powers conferred
upon it by the laws of the State of Delaware, the Board of Directors shall have
the power to adopt, amend, alter or repeal the By-Laws of the Corporation. The
Corporation's By-Laws may also be adopted, amended, altered or repealed by the
stockholders at any annual or special meeting by the affirmative vote of the
holders of at least 80% of the voting power of all shares of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class.
NINTH: Elections of directors need not be by written ballot unless
the By-Laws of the Corporation shall otherwise provide.
TENTH: A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that the foregoing 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. If the Delaware General Corporation Law is hereafter
amended to permit further elimination or limitation of the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law as so amended. Any repeal or modification of this Article Tenth
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
ELEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them 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 the Delaware General Corporation Law or on
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the application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of the
Delaware General Corporation Law, order a meeting of the creditors or class of
creditors, 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, or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this 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 said application has been made, be
binding on all the creditors or class of creditors, or on all of the
stockholders or class of stockholders, of this Corporation, as the case maybe,
and also on this Corporation.
TWELFTH:
A. As used in this Article Twelfth, the following terms shall
have the meanings set forth below:
"Business Combination" shall mean (a) any merger or consolidation of
the Corporation or a Subsidiary with a Related Person, (b) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition other than in the
ordinary course of business to or with a Related Person of any assets of
the Corporation or a Subsidiary having an aggregate fair market value of
$25,000,000 or more, (c) the issuance or transfer by the Corporation of any
shares of Voting Stock or securities convertible into or exercisable for
such shares (other than by way of pro rata distribution to all
stockholders) to a Related Person, (d) any recapitalization, merger or
consolidation that would have the effect of increasing the voting power of
a Related Person, (e) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation or a Subsidiary proposed,
directly or indirectly, by or on behalf of a Related Person, (f) any merger
or consolidation of the Corporation with another Person proposed, directly
or indirectly, by or on behalf of a Related Person unless the entity
surviving or resulting from such merger or consolidation has a provision in
its certificate or articles of incorporation, charter or similar governing
instrument which is substantially identical to this Article Twelfth or (g)
any agreement, contract or other arrangement or understanding providing,
directly or indirectly, for any of the transactions described in clauses
(a) through (f) above.
"Related Person" shall mean any individual, partnership, corporation,
trust or other Person which, together with its "affiliates" and
"associates," as defined in Rule 12b-2 under the Exchange Act as in effect
on April 23, 1999, and together with any other individual, partnership,
corporation, trust or other Person with which it or they have any
agreement, contract or other arrangement or understanding with respect to
acquiring, holding, voting or disposing of Voting Stock, "beneficially
owns" (within the meaning of Rule 13d-3 under the Exchange Act on said
date) an aggregate of 10% or more of the outstanding Voting Stock. A
Related Person, its affiliates and associates and all such other
individuals, partnerships, corporations and other Persons with whom it or
they have any such agreement, contract or other arrangement or
understanding, shall be deemed a single Related Person for purposes of this
Article Twelfth; provided, however, that the members of the Board of
Directors of the Corporation shall not be deemed to be
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associates or otherwise to constitute a Related Person solely by reason of
their board membership. A person who is a Related Person as of (i) the time
any definitive agreement relating to a Business Combination is entered
into, (ii) the record date for the determination of stockholders entitled
to notice of and to vote on a Business Combination or (iii) immediately
prior to the consummation of a Business Combination, shall be deemed a
Related Person for purposes of this Article Twelfth.
"Continuing Director" shall mean any member of the Board of Directors
of the Corporation who is not an "affiliate" or "associate" of the Related
Person and was a member of the Board of Directors prior to the time that
such Related Person became a Related Person, and any successor of a
Continuing Director who is unaffiliated with such Related Person and is
recommended to succeed a Continuing Director by a majority of the
Continuing Directors.
"Person" shall mean any individual, firm, corporation or other entity.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation in which such Person, directly or indirectly, owns or controls,
at the time of determination, at least a majority in interest of the
outstanding voting stock (having by the terms thereof voting power under
ordinary circumstances to elect a majority of the directors of such
corporation, irrespective of whether or not stock of any other class or
classes of such corporation shall have or might have voting power by reason
of the occurrence of a contingency); or (ii) any non-corporate entity in
which such Person either (a) directly or indirectly, at the time of
determination, has at least a majority ownership interest, or (b) at the
date of determination, is a general partner or an entity performing similar
functions (for example, manager of a limited liability company or a trustee
of a trust).
"Voting Stock" shall mean any shares of the Corporation entitled to
vote generally in the election of directors.
"Entire Board of Directors" shall mean the total number of directors
which the Corporation would have if there were no vacancies.
"Market Value" shall mean the average of the high- and low-quoted
sales price on the date in question (or, if there is no reported sale on
such date, on the last preceding date on which any reported sale occurred)
of a share on the Composite Tape for the New York Stock Exchange Listed
Stocks, or, if the shares are not listed or admitted to trading on such
exchange, on the principal United States securities exchange registered
under the Exchange Act on which the shares are listed or admitted to
trading, or, if the shares are not listed or admitted to trading on any
such exchange, the mean between the closing high-bid and low-asked
quotations with respect to a share on such date as quoted on the National
Association of Securities Dealers Automated Quotations System, or similar
system then in use, or, if no such quotations are available, the fair
market value on such date of a share as at least 66 2/3% of the Continuing
Directors shall determine.
B. In addition to any other vote required by this Certificate of
Incorporation or the Delaware General Corporation Law, the affirmative vote of
the holders of not less
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than 85% of the outstanding Voting Stock held by stockholders other than a
Related Person by or with whom or on whose behalf, directly or indirectly, a
Business Combination is proposed, voting as a single class, shall be required
for the approval or authorization of such Business Combination; provided,
however, that the 85% voting requirement shall not be applicable and such
Business Combination may be approved by the vote required by law or by any other
provision of this Certificate of Incorporation if either:
1. The Business Combination is approved by the Board of Directors of
the Corporation by the affirmative vote of at least 66 2/3% of the Continuing
Directors, or
2. All of the following conditions are satisfied:
(A) The aggregate amount of cash and the fair market value of the
property, securities or other consideration to be received per share of
capital stock of the Corporation in the Business Combination by the holders
of capital stock of the Corporation, other than the Related Person involved
in the Business Combination, shall not be less than the highest of (i) the
highest per share price (including brokerage commissions, soliciting
dealers' fees, and dealer-management compensation, and with appropriate
adjustments for recapitalizations, stock splits, stock dividends and like
transactions and distributions) paid by such Related Person in acquiring
any of its holdings of such class or series of capital stock, (ii) the
highest per share Market Value of such class or series of capital stock
within the twelve-month period immediately preceding the date the proposal
for such Business Combination was first publicly announced or (iii) the
book value per share of such class or series of capital stock, determined
in accordance with generally accepted accounting principles, as of the last
day of the month immediately preceding the date the proposal for such
Business Combination was first publicly announced;
(B) The consideration to be received in such Business Combination
by holders of capital stock other than the Related Person involved shall,
except to the extent that a stockholder agrees otherwise as to all or part
of the shares which he or she owns, be in the same form and of the same
kind as the consideration paid by the Related Person in acquiring capital
stock already owned by it, provided, however, that if the Related Person
has paid for capital stock with varying forms of consideration, the form of
consideration for shares of capital stock acquired in the Business
Combination by the Related Person shall either be cash or the form used to
acquire the largest number of shares of capital stock previously acquired
by it; and
(C) A proxy statement responsive to the requirements of the
Exchange Act and regulations promulgated thereunder, whether or not the
Corporation is then subject to such requirements, shall be mailed to the
stockholders of the Corporation for the purpose of soliciting stockholder
approval of such Business Combination and shall contain at the front
thereof, in a prominent place, (i) any recommendations as to the
advisability (or inadvisability) of the Business Combination which the
Continuing Directors may choose to state and (ii) the
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opinion of a reputable investment banking firm selected by the Continuing
Directors as to the fairness of the terms of such Business Combination,
from a financial point of view, to the stockholders (other than the Related
Person) of the Corporation.
C. A Related Person shall be deemed for purposes of this Article
Twelfth to have acquired a share of the Corporation at the time when such
Related Person became the beneficial owner thereof (as such term is defined in
paragraph A of this Article Twelfth). With respect to shares owned by
affiliates, associates and other Persons whose ownership is attributed to a
Related Person, if the price paid by such Related Person for such shares is not
determinable, the price so paid shall be deemed to be the higher of (i) the
price paid upon acquisition thereof by the affiliate, associate or other Person
or (ii) the Market Value of the shares in question at the time when the Related
Person became the beneficial owner thereof.
For purposes of this Article Twelfth, in the event of a Business
Combination upon consummation of which the Corporation would be the surviving
corporation or would continue to exist (unless it is provided, contemplated or
intended that as part of such Business Combination a plan of liquidation or
dissolution of the Corporation will be effected), the term "other consideration
to be received" in paragraph B.2.(A) of this Article Twelfth shall include
(without limitation) common stock or other capital stock of the Corporation
retained by stockholders of the Corporation (other than Related Persons who are
parties to such Business Combination).
Nothing contained in this Article Twelfth shall be construed to
relieve any Related Person from any fiduciary obligation imposed by law.
D. Notwithstanding any other provision of this Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that a lesser percentage may be permitted by law), any amendment, addition,
alteration, change or repeal of this Article Twelfth, or any other amendment of
this Certificate of Incorporation or the By-Laws of the Corporation inconsistent
with or modifying or permitting circumvention of this Article Twelfth, must
first be proposed by the Board of Directors of the Corporation, upon the
affirmative vote of at least 66 2/3% of the directors then in office at a duly
constituted meeting of the Board of Directors called for such purpose, and
thereafter approved by the affirmative vote of the holders of not less than 85%
of the then outstanding Voting Stock held by stockholders other than a Related
Person by or with whom or on whose behalf, directly or indirectly, a Business
Combination is proposed, voting as a single class; provided, however, that this
paragraph D shall not apply to, and such 85% vote shall not be required for, any
such amendment, addition, alteration, change or repeal recommended to
stockholders of the Corporation by the affirmative vote of not less than 66 2/3%
of the Continuing Directors. For the purposes of this paragraph D only, if at
the time when any such amendment, addition, alteration, change or repeal is
under consideration there is no proposed Business Combination, the term
"Continuing Directors" shall mean the Entire Board of Directors.
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THIRTEENTH: The Board of Directors, each committee of the Board of
Directors and each individual director, in discharging their respective duties
under applicable law and this Certificate of Incorporation and in determining
what they each believe to be in the best interests of the Corporation and its
stockholders, may consider the effects, both short-term and long-term, of any
action or proposed action taken or to be taken by the Corporation, the Board of
Directors or any committee of the Board of Directors on the interests of (i) the
employees, associates, associated physicians, distributors, patients or other
customers, suppliers or creditors of the Corporation and its subsidiaries and
(ii) the communities in which the Corporation and its subsidiaries own or lease
property or conduct business, all to the extent that the Board of Directors, any
committee of the Board of Directors or any individual director deems pertinent
under the circumstances (including the possibility that the interests of the
Corporation may best be served by the continued independence of the
Corporation); provided, however, that the provisions of this Article Thirteenth
shall not limit in any way the right of the Board of Directors to consider any
other lawful factors in making its determinations, including, without
limitation, the effects, both short-term and long-term, of any action or
proposed action on the Corporation or its stockholders directly; and provided
further, that this Article Thirteenth shall be deemed solely to grant
discretionary authority to the Board of Directors, each committee of the Board
of Directors and each individual director and shall not be deemed to provide to
any specific constituency any right to be considered.
FOURTEENTH: Each person who was or is made a party or is threatened
to be made a party to or is involved (including, without limitation, as a
witness) in an actual or threatened 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, employee or
agent 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
such a director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the full 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 said law
permitted the Corporation to provide prior to such amendment), or by other
applicable law as then in effect, against all expense, liability and loss
(including attorneys' fees, judgments, fines, excise taxes under the Employee
Retirement Income Security Act of 1974, as amended from time to time ("ERISA"),
penalties and amounts to be paid in settlement) actually and reasonably incurred
or suffered by such Indemnitee in connection therewith.
A. Procedure. Any indemnification under this Article Fourteenth
(unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification
of the Indemnitee is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in the Delaware General
Corporation Law, as the same exists or hereafter may 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
said law permitted the
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Corporation to provide prior to such amendment). Such determination shall be
made (a) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding (the
"Disinterested Directors"), or (b) if such a quorum of Disinterested Directors
is not obtainable, or, even if obtainable, a quorum of Disinterested Directors
so directs, by independent legal counsel in a written opinion, or (c) by the
stockholders.
B. Advances For Expenses. Costs, charges and expenses (including
attorneys' fees) incurred by a director or officer of the Corporation in
defending a civil or criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized in this Article Fourteenth. Such costs, charges
and expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the majority of the Disinterested Directors
deems appropriate. The majority of the Disinterested Directors may, in the
manner set forth above, and upon approval of such Indemnitee, authorize the
Corporation's counsel to represent such person, in any action, suit or
proceeding, whether or not the Corporation is a party to such action, suit or
proceeding.
C. Procedure for Indemnification. Any indemnification or advance of
costs, charges and expenses under this Article Fourteenth, shall be made
promptly, and in any event within 60 days upon the written request of the
Indemnitee. The right to indemnification or advances as granted by this Article
Fourteenth, shall be enforceable by the Indemnitee in any court of competent
jurisdiction, if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within 60 days. Such Indemnitee's costs and
expenses incurred in connection with successfully establishing his or her right
to indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for the advance of costs, charges and
expenses under this Article Fourteenth, where the required undertaking, if any,
has been received by the Corporation) that the Indemnitee has not met the
standard of conduct set forth in the Delaware General Corporation Law, as the
same exists or hereafter may 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 said law permitted the Corporation to
provide prior to such amendment), but the burden of proving such defense shall
be on the Corporation. Neither the failure of the Corporation (including its
Board of Directors, its independent legal counsel and its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the Indemnitee is proper in the circumstances because he or
she has met the applicable standard of conduct set forth in the Delaware General
Corporation Law, as the same exists or hereafter may 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 that said law permitted
the Corporation to provide prior to such amendment), nor the fact that there has
been an actual determination by the Corporation (including its Board of
Directors, its independent legal counsel and its stockholders) that the
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Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that the Indemnitee has not met the
applicable standard of conduct.
D. Other Rights; Continuation of Right to Indemnification. The
indemnification and advancement of expenses provided by this Article Fourteenth
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law, by-
law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding office or while employed by or acting as agent for the
Corporation, and shall continue as to a person who has ceased to be a director,
officer, employee or agent, and shall inure to the benefit of the estate, heirs,
executors and administrators of such person. All rights to indemnification
under this Article Fourteenth, shall be deemed to be a contract between the
Corporation and each director, officer, employee or agent of the Corporation who
serves or served in such capacity at any time while this Article Fourteenth, is
in effect. Any repeal or modification of this Article Fourteenth, or any repeal
or modification of relevant provisions of the Delaware General Corporation Law
or any other applicable laws shall not in any way diminish any rights to
indemnification of such director, officer, employee or agent or the obligations
of the Corporation arising hereunder with respect to any action, suit or
proceeding arising out of, or relating to, any actions, transactions or facts
occurring prior to the final adoption of such modification or repeal. For the
purposes of this Article Fourteenth, references to "the Corporation" include all
constituent corporations absorbed in a consolidation or merger as well as the
resulting or surviving corporation, so that any person who is or was a director,
officer, employee or agent of such a constituent corporation or is or was
serving at the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise shall stand in the same position under the provisions of this
Article Fourteenth, with respect to the resulting or surviving corporation, as
he would if he or she had served the resulting or surviving corporation in the
same capacity.
E. Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was or has agreed to become
a director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him or her and incurred by him or her or
on his or her behalf in any such capacity, or arising out of his or her status
as such, whether or not the Corporation would have the power to indemnify him or
her against such liability under the provisions of this Article Fourteenth;
provided, however, that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the Board of Directors.
F. Savings Clause. If this Article Fourteenth, or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each person entitled to
indemnification under paragraph A of this Article Fourteenth, as to all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes, penalties and amounts to be paid in settlement)
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actually and reasonably incurred or suffered by such person and for
which indemnification is available to such person pursuant to this
Article Fourteenth, to the full extent permitted by any applicable
portion of this Article Fourteenth, that shall not have been invalidated
and to the full extent permitted by applicable law.
FIFTEENTH: In furtherance and not in limitation of the powers
conferred by law or in this Certificate of Incorporation, the Board of Directors
(and any committee of the Board of Directors) is expressly authorized, to the
extent permitted by law, to take such action or actions as the Board of
Directors or such committee may determine to be reasonably necessary or
desirable to (A) encourage any person to enter into negotiations with the Board
of Directors and management of the Corporation with respect to any transaction
which may result in a change in control of the Corporation which is proposed or
initiated by such person or (B) contest or oppose any such transaction which the
Board of Directors or such committee determines to be unfair, abusive or
otherwise undesirable with respect to the Corporation and its business, assets
or properties or the stockholders of the Corporation, including, without
limitation, the adoption of such plans or the issuance of such rights, options,
capital stock, notes, debentures or other evidences of indebtedness or other
securities of the Corporation, which rights, options, capital stock, notes,
debentures, evidences of indebtedness and other securities (i) may be
exchangeable for or convertible into cash or other securities on such terms and
conditions as may be determined by the Board of Directors or such committee and
(ii) may provide for the treatment of any holder or class of holders thereof
designated by the Board of Directors or any such committee in respect of the
terms, conditions, provisions and rights of such securities which is different
from, and unequal to, the terms, conditions, provisions and rights applicable to
all other holders thereof.
SIXTEENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
and to add or adopt new provisions, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject
to this reservation. In addition to any affirmative vote required by applicable
law or any other provision of this Certificate of Incorporation or specified in
any agreement, and in addition to any voting rights granted to or held by the
holders of any series of Preferred Stock, the affirmative vote of the holders of
not less than 80% of the voting power of all securities of the Corporation
entitled to vote generally in the election of directors shall be required to
amend, alter, change or repeal, or to add or adopt any provisions inconsistent
with, Articles Fifth, Sixth, Seventh, Eighth, Tenth, Eleventh, Thirteenth,
Fourteenth, Fifteenth and Sixteenth of this Certificate of Incorporation.
SEVENTEENTH: The name and mailing address of the incorporator is
Donald P. Fay, Triad Hospitals, Inc., 13455 Noel Road, 20th Floor, Dallas, Texas
75240.
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IN WITNESS WHEREOF, the undersigned incorporator hereby acknowledges
that the foregoing certificate of incorporation is his act and deed and that the
facts stated therein are true on this 27th day of April, 1999.
By: /s/ Donald P. Fay
-----------------
Donald P. Fay
Incorporator
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EXHIBIT 3.2
================================================================================
By-Laws
of
Triad Hospitals, Inc.
______________
Delaware
================================================================================
<PAGE>
Article I
Offices
Section 1. Registered Office.
The registered office of the Corporation shall be within the State of
Delaware in the City of Wilmington, County of New Castle.
Section 2. Other Offices.
The Corporation may also have an office or offices other than said
registered office at such place or places, either within or without the State of
Delaware, as the Board of Directors shall from time to time determine or the
business of the Corporation may require.
Article II
Meetings of Stockholders
Section 1. Place of Meetings.
All meetings of the stockholders for the election of directors or for
any other purpose shall be held at any such place, either within or without the
State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of meeting or in a duly executed waiver
thereof.
Section 2. Annual Meeting.
The annual meeting of stockholders shall be held at such date and time
as shall be designated from time to time by the Board of Directors and stated in
the notice of meeting or in a duly executed waiver thereof. At such annual
meeting, the stockholders shall elect, by a plurality vote, members of a Board
of Directors and transact such other business as may properly be brought before
the meeting.
Section 3. Special Meetings.
Special meetings of the stockholders of the Corporation may be called
only by (a) the Chairman of the Board of Directors, if one shall have been
elected or (b) the Chief Executive Officer of the Corporation, and, in addition,
a special meeting shall be called by the Chairman of the Board or the Chief
Executive Officer at the request in writing of a majority of the Board of
Directors. The ability of the stockholders to call a special meeting is hereby
specifically denied.
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Section 4. Notice of Meetings.
Except as otherwise expressly required by statute, written notice of
each annual and special meeting of stockholders stating the date, place and hour
of the meeting, and, in the case of a special meeting, the purpose or purposes
for which the meeting is called, shall be given to each stockholder of record
entitled to vote thereat not less than ten nor more than sixty days before the
date of the meeting. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice. Notice shall be given
personally or by mail and, if by mail, shall be sent in a postage prepaid
envelope, addressed to the stockholder at the address appearing on the records
of the Corporation. Notice by mail shall be deemed given at the time when the
same shall be deposited in the United States mail, postage prepaid. Notice of
any such meeting need not be given to any person who shall, either before or
after the meeting, submit a signed waiver of notice or who shall attend such
meeting, except when he or she shall attend for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, an annual or special meeting of
stockholders need be specified in any written waiver of notice.
Section 5. List of Stockholders.
The officer who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten days before each meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, showing the address of and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city, town or village where the meeting is to be held,
which place shall be specified in the notice of meeting, or, if not specified,
at the place where the meeting is to be held. The list shall be produced and
kept at the time and place of the meeting during the whole time thereof, and may
be inspected by any stockholder who is present.
Section 6. Quorum.
The holders of a majority of the voting power of the issued and
outstanding stock of the Corporation entitled to vote thereat, present in person
or represented by proxy, shall constitute a quorum for the transaction of
business at all meetings of stockholders, except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, such quorum shall
not be present or represented by proxy at any meeting of stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented by proxy. At such adjourned meeting at which a quorum shall be
present or represented by proxy, any business may be transacted which might have
been transacted at the meeting as originally called. If the adjournment is for
more than thirty days, or, if
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after adjournment a new record date is set, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
Section 7. Organization.
At each meeting of stockholders, the Chairman of the Board, if one shall
have been elected, or, in his or her absence or if one shall not have been
elected, the Chief Executive Officer, shall act as chairman of the meeting. The
Secretary or, in his or her absence or inability to act, the person whom the
chairman of the meeting shall appoint secretary of the meeting, shall act as
secretary of the meeting and keep the minutes thereof.
Section 8. Order of Business.
The order of business at all meetings of the stockholders shall be as
determined by the chairman of the meeting.
Section 9. Voting.
Except as otherwise provided by statute or the Certificate of
Incorporation, each stockholder of the Corporation shall be entitled at each
meeting of stockholders to one vote for each share of capital stock of the
Corporation standing in his or her name on the record of stockholders of the
Corporation:
(a) on the date fixed pursuant to the provisions of Section 7 of
Article V of these By-Laws as the record date for the determination of the
stockholders who shall be entitled to notice of and to vote at such
meeting; or
(b) if no such record date shall have been so fixed, then at the close
of business on the day next preceding the day on which notice thereof shall
be given.
Each stockholder entitled to vote at any meeting of stockholders may authorize
another person or persons to act for him or her by a proxy signed by such
stockholder or his or her attorney-in-fact, but no proxy shall be voted after
three years from its date, unless the proxy provides for a longer period. Any
such proxy shall be delivered to the secretary of the meeting at or prior to the
time designated in the order of business for so delivering such proxies. Any
copy, facsimile telecommunication or other reliable reproduction of the writing
or transmission created pursuant to this paragraph may be substituted or used in
lieu of the original writing or transmission for any and all purposes for which
the original writing or transmission could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
When a quorum is present at any meeting, the vote of the holders of a
majority of the voting power of the issued and outstanding stock of the
Corporation entitled to vote thereon, present in person or represented by proxy,
shall decide any question brought before such meeting, unless the question is
one upon which by express provision of statute or of the Certificate of
Incorporation or of these By-Laws, a different
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vote is required, in which case such express provision shall, govern and control
the decision of such question. Unless required by statute, or determined by the
chairman of the meeting to be advisable, the vote on any question need not be by
ballot. On a vote by ballot, each ballot shall be signed by the stockholder
voting, or by his or her proxy, and shall state the number of shares voted.
Section 10. Inspectors.
The Board of Directors shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at such meeting or any adjournment thereof
and make a written report thereof. If any of the inspectors so appointed shall
fail to appear or shall be unable to act, the chairman of the meeting shall
appoint one or more inspectors. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector at such meeting with strict impartiality and
according to the best of his or her ability. The inspectors shall ascertain the
number of shares of capital stock of the Corporation outstanding and the voting
power of each, determine the number of shares represented at the meeting and the
validity of proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors and certify their determination of
the number of shares represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of the duties of the inspectors. No
director or candidate for the office of director shall act as an inspector of an
election of directors, or assist an inspector in the performance of such duties.
Inspectors need not be stockholders.
Section 11. Nominations and Stockholder Business.
Nominations of persons for election to the Board of Directors and the
proposal of business to be transacted by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the Corporation's notice with
respect to such meeting, (b) by or at the direction of the Board of Directors or
(c) by any stockholder of record of the Corporation who was a stockholder of
record at the time of the giving of the notice provided for in this Section 11
who is entitled to vote at the meeting and who has complied with the notice
procedures set forth in this Section 11.
For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to this Section 11, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation, such business must be a proper matter for stockholder action under
the Delaware General Corporation Law and, if the stockholder, or the beneficial
owner on whose behalf any such proposal or nomination is made, solicits or
participates in the solicitation of proxies in support of such proposal or
nomination, the stockholder must have timely indicated such stockholder's, or
such beneficial owner's, intention to do so as hereinafter provided. To be
timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than 90 days prior to
the first anniversary of the preceding year's annual meeting of stockholders;
provided, however, that if the date
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of the annual meeting is advanced more than 30 days prior to or delayed more
than 60 days after such anniversary date, notice by the stockholder to be timely
must be so delivered not later than the close of business on the later of the
90th day prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person as would be required to be disclosed in solicitations of
proxies for the election of such nominees as directors pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and such person's written consent to serve as a director if elected; (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of such business, the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, and
(iii) whether either such stockholder or beneficial owner intends to solicit or
participate in the solicitation of proxies in favor of such proposal or nominee
or nominees.
Notwithstanding anything in this Section 11 to the contrary, in the
event that the number of directors to be elected to the Board of Directors is
increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increased Board of Directors made by the
Corporation at least 100 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this section shall
also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) by any stockholder of
record of the Corporation who is a stockholder of record at the time of giving
of notice provided for in this Section 11 who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this Section
11. Nominations by stockholders of persons for election to the Board of
Directors may be made at such a special meeting of stockholders if the
stockholder's notice required by this Section 11 shall be delivered to the
Secretary at the principal executive offices of the Corporation not later than
the close of business on the later of the 90th day prior to such special meeting
or the 10th day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
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Only persons nominated in accordance with the procedures set forth in
this section shall be eligible to serve as directors and only such business
shall be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this Section
11. The officer of the Corporation or other person presiding over the meeting
shall have the power and the duty to determine whether a nomination or any
business proposed to be brought before the meeting has been made in compliance
with the procedures set forth in this Section 11 and, if any proposed nomination
or business is not in compliance with this Section 11, to declare that such
defective proposed business or nomination shall not be presented for stockholder
action at the meeting and shall be disregarded.
For purposes of this section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this section, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Section 11. Nothing in this Section 11 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 12. Adjournments.
Any meeting of stockholders may be adjourned from time to time, whether
or not a quorum is present, by the affirmative vote of a majority of the votes
present and entitled to be cast at the meeting, or by the officer of the
Corporation presiding over the meeting, or by the Board of Directors.
Article III
Board Of Directors
Section 1. Place of Meetings.
Meetings of the Board of Directors shall be held at such place or
places, within or without the State of Delaware, as the Board of Directors may
from time to time determine or as shall be specified in the notice of any such
meeting.
Section 2. Annual Meeting.
The Board of Directors shall meet for the purpose of organization, the
election of officers and the transaction of other business, as soon as
practicable after each annual meeting of stockholders, on the same day and at
the same place where such annual meeting shall be held. Notice of such meeting
need not be given. In the event such annual meeting is not so held, the annual
meeting of the Board of Directors may be held
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at such other time or place (within or without the State of Delaware) as shall
be specified in a notice thereof given as hereinafter provided in Section 5 of
this Article III.
Section 3. Regular Meetings.
Regular meetings of the Board of Directors shall be held at such time
and place as the Board of Directors may fix. If any day fixed for a regular
meeting shall be a legal holiday at the place where the meeting is to be held,
then the meeting which would otherwise be held on that day shall be held at the
same hour on the next succeeding business day (unless the Chairman of the Board
determines otherwise). Notice of regular meetings of the Board of Directors
need not be given except as otherwise required by statute or these By-Laws.
Section 4. Special Meetings.
Special meetings of the Board of Directors may be called by the Chairman
of the Board, if one shall have been elected, by two or more directors of the
Corporation or by the Chief Executive Officer.
Section 5. Notice of Meetings.
Notice of each special meeting of the Board of Directors (and of each
regular meeting for which notice shall be required) shall be given by the
Secretary as hereinafter provided in this Section 5, in which notice shall be
stated the time and place of the meeting. Except as otherwise required by these
By-Laws, such notice need not state the purposes of such meeting. Notice of
each such meeting shall be sent to each director, addressed to such director at
his or her residence or usual place of business, by telegraph, cable, telex,
telecopier or other similar means, or be delivered to him or her personally or
be given to him or her by telephone or other similar means, at least two hours
before the time at which such meeting is to be held. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting, except when
he or she shall attend for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any such meeting need be specified in any written waiver of notice.
Section 6. Quorum and Manner of Acting.
A majority of the entire Board of Directors shall constitute a quorum
for the transaction of business at any meeting of the Board of Directors, and,
except as otherwise expressly required by statute, the Certificate of
Incorporation or these By-Laws, the act of a majority of the directors present
at any meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum at any meeting of the Board of Directors,
a majority of the directors present thereat may adjourn such meeting to another
time and place. Notice of the time and place of any such adjourned meeting
shall be given to all of the directors unless such time and place were announced
at the meeting at which the adjournment was taken, in which case such notice
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shall only be given to the directors who were not present thereat. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called. The
directors shall act only as a Board and the individual directors shall have no
power as such.
Section 7. Organization.
At each meeting of the Board of Directors, the Chairman of the Board, if
one shall have been elected, or, in the absence of the Chairman of the Board or
if one shall not have been elected, another director chosen by a majority of the
directors present, shall act as chairman of the meeting and preside thereat. The
Secretary or, in his or her absence or if one shall not have been elected, any
person appointed by the chairman of the meeting, shall act as secretary of the
meeting and keep the minutes thereof.
Section 8. Resignations.
Any director of the Corporation may resign at any time by giving written
notice of his or her resignation to the Corporation. Any such resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt by the
Corporation. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 9. Compensation.
The Board of Directors shall have authority to fix the compensation,
including fees and reimbursement of expenses, of directors for services to the
Corporation in any capacity.
Section 10. Committees.
The Board of Directors may, by resolution passed by a majority of the
entire Board of Directors, designate one or more committees, including an
executive committee, each committee to consist of one or more of the directors
of the Corporation. The Board of Directors may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In addition, in the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or she or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
Except to the extent restricted by statute or the Certificate of
Incorporation, each such committee, to the extent provided in the resolution
creating it, shall have and may exercise all the powers and authority of the
Board of Directors. Each such committee shall serve at the pleasure of the
Board of Directors and have such name as may be determined from time to time by
resolution adopted by the Board of Directors.
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Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors.
Section 11. Action By Consent.
Unless restricted by the Certificate of Incorporation, any action
required or permitted to be taken by the Board of Directors or any committee
thereof may be taken without a meeting if all members of the Board of Directors
or such committee, as the case may be, consent thereto in writing and the
writing or writings are filed with the minutes of the proceedings of the Board
of Directors or such committee, as the case may be.
Section 12. Telephonic Meetings.
Any one or more members of the Board of Directors or any committee
thereof may participate in a meeting of the Board of Directors or such committee
by means of a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other.
Participation by such means shall constitute presence in person at a meeting.
Section 13. Mandatory Retirement Policy for Directors.
No person shall be nominated to a term of office on the Board of
Directors who has attained the age of 70 or more before the first day of the
proposed term of office.
Article IV
Officers
Section 1. Number and Qualifications.
The officers of the Corporation shall be elected by the Board of
Directors and shall include the Chairman of the Board, the Chief Executive
Officer (who also shall be the President), one or more Vice Presidents
(including Senior or Executive Vice Presidents or other classifications of Vice
Presidents), the Secretary and the Treasurer. If the Board of Directors wishes,
it may also elect other officers (including one or more Assistant Treasurers and
one or more Assistant Secretaries) as may be necessary or desirable for the
business of the Corporation. Any two or more offices may be held by the same
person, and no officer except the Chairman of the Board need be a director.
Each officer shall hold office until his or her successor shall have been duly
elected and shall have qualified, or until his or her death, or until he or she
shall have resigned or have been removed or disqualified, as hereinafter
provided in these By-Laws.
Section 2. Resignation and Removal.
Any officer of the Corporation may resign at any time by giving written
notice of his or her resignation to the Corporation. Any such resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon receipt by the
Corporation. Unless otherwise
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specified therein, the acceptance of any such resignation shall not be necessary
to make it effective.
Any officer of the Corporation may be removed, either with or without
cause, at any time, by the Board of Directors at any meeting thereof.
Section 3. Vacancies.
The Board of Directors may fill any vacancy occurring in any office for
any reason and may, in its discretion, leave unfilled for such period as it may
determine any offices other than those of President, Treasurer and Secretary.
Each successor shall hold office for the unexpired term of his predecessor and
until his successor is elected and qualified, or until his earlier death,
resignation or removal.
Section 4. Chairman of the Board.
The Chairman of the Board shall be elected from among the members of the
Board. If present, he or she shall preside at all meetings of the Board of
Directors and stockholders. He or she shall advise and counsel with the Chief
Executive Officer, and in his or her absence with other executives of the
Corporation, and shall perform such other duties as may from time to time be
assigned to him or her by the Board of Directors.
Section 5. Chief Executive Officer.
The Chief Executive Officer also shall serve as the President and,
subject to the Board of Directors, he or she shall have general executive
charge, management, and control of the properties and operations of the
Corporation in the ordinary course of its business, with all such powers with
respect to such properties and operations as may be reasonably incident to such
responsibilities. If the Board of Directors has not elected a Chairman or in the
absence or inability to act of the Chairman of the Board, the Chief Executive
Officer shall exercise all of the powers and discharge all of the duties of the
Chairman of the Board.
Section 6. Vice President.
Each Vice President shall perform all such duties as from time to time
may be assigned to him or her by the Board of Directors, the Chairman of the
Board or the Chief Executive Officer. At the request of the Chief Executive
Officer or in his or her absence or in the event of his or her inability or
refusal to act, the Vice President, or if there shall be more than one, the Vice
Presidents in the order determined by the Board of Directors (or if there be no
such determination, then the Vice Presidents in the order of their election),
shall perform the duties of the Chief Executive Officer, and, when so acting,
shall have the powers of and be subject to the restrictions placed upon the
Chief Executive Officer.
Section 7. Treasurer.
The Treasurer shall:
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(a) have charge and custody of, and be responsible for, all the funds
and securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of the
Corporation in such depositaries as may be designated by the Board of
Directors or pursuant to its direction;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the investment
of its funds, taking proper vouchers therefor;
(f) render to the Board of Directors, whenever the Board of Directors
may require, an account of the financial condition of the Corporation; and
(g) in general, perform all duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him or her by
the Board of Directors, the Chairman of the Board or the Chief Executive
Officer.
Section 8. Secretary.
The Secretary shall
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board of Directors, the
committees of the Board of Directors and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and
affix and attest the seal to all certificates for shares of the Corporation
(unless the seal of the Corporation on such certificates shall be a
facsimile, as hereinafter provided) and affix and attest the seal to all
other documents to be executed on behalf of the Corporation under its seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly
kept and filed; and
(e) in general, perform all duties incident to the office of Secretary
and such other duties as from time to time may be assigned to him or her by
the Board of Directors, the Chairman of the Board or the Chief Executive
Officer.
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In the absence of the Secretary at any meeting of the Board of
Directors, a committee of the Board of Directors or the stockholders, the person
presiding at the meeting shall designate a temporary secretary to keep a record
of the meeting.
Section 9. Assistant Treasurer.
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of his or her inability or refusal
to act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties as from time to time may be assigned by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer or the
Treasurer.
Section 10. Assistant Secretary.
The Assistant Secretary, or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Secretary or in the event of his or her inability or refusal
to act, perform the duties and exercise the powers of the Secretary and shall
perform such other duties as from time to time may be assigned by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer or the
Secretary.
Section 11. Officers' Bonds or Other Security.
If required by the Board of Directors, any officer of the Corporation
shall give a bond or other security for the faithful performance of his or her
duties, in such amount and with such surety as the Board of Directors may
require.
Section 12. Compensation.
The compensation of the officers of the Corporation for their services
as such officers shall be fixed from time to time by the Board of Directors. An
officer of the Corporation shall not be prevented from receiving compensation by
reason of the fact that he or she is also a director of the Corporation.
Article V
Stock Certificates and Their Transfer
Section 1. Stock Certificates.
Every holder of stock in the Corporation shall be entitled to have a
certificate signed by, or in the name of the Corporation by, the Chairman of the
Board, the Chief Executive Officer or a Vice President and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him or her in the
Corporation. If the Corporation shall be
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authorized to issue more than one class of stock or more than one series of any
class, the designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences or rights shall
be set forth in full or summarized on the face or back of the certificate which
the Corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in Section 202 of the Delaware General
Corporation Law, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the Corporation will
furnish without charge to each stockholder who so requests the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences or rights.
Section 2. Facsimile Signatures.
Any or all of the signatures on a certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he, she or it were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates.
The Board of Directors may direct a new certificate or certificates to
be issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen, or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in
its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen, or destroyed certificate or certificates, or his or
her legal representative, to give the Corporation a bond in such sum as it may
direct sufficient to indemnify it against any claim that may be made against the
Corporation on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 4. Transfers of Stock.
Upon surrender to the Corporation or the transfer agent of a Corporation
of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record a transaction upon its records; provided,
however, that the Corporation shall be entitled to recognize and enforce any
lawful restriction on transfer.
Section 5. Transfer Agents and Registrars.
The Board of Directors may appoint, or authorize any officer or officers
to appoint, one or more transfer agents and one or more registrars.
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Section 6. Regulations.
The Board of Directors may make such additional rules and regulations,
not inconsistent with these By-Laws, as it may deem expedient concerning the
issue, transfer and registration of certificates for shares of stock of the
Corporation.
Section 7. Fixing The Record Date.
In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may, in its discretion, fix a new record date for
the adjourned meeting.
Section 8. Registered Stockholders.
The Corporation shall be entitled to recognize the exclusive right of
a person registered on its records as the owner of shares of stock to receive
dividends and to vote as such owner, shall be entitled to hold liable for calls
and assessments a person registered on its records as the owner of shares of
stock, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares of stock on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
Section 9. Legends.
The Board of Directors shall have the power and authority to provide
that certificates representing shares of stock bear such legends as the Board of
Directors deems appropriate to assure that the Corporation does not become
liable for violations of Federal or state securities laws or other applicable
law.
Article VI
General Provisions
Section 1. Dividends.
Subject to the provisions of applicable law and the Certificate of
Incorporation, dividends upon the shares of capital stock of the Corporation may
be declared by the Board of Directors at any regular or special meeting of the
Board of Directors. Dividends may be paid in cash, in property or in shares of
stock of the Corporation, unless otherwise provided by statute or the
Certificate of Incorporation.
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Section 2. Reserves.
Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of
Directors may, from time to time, in its absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors may think conducive to the interests of the
Corporation. The Board of Directors may modify or abolish any such reserve in
the manner in which it was created.
Section 3. Seal.
The seal of the Corporation shall be in such form as shall be approved
by the Board of Directors.
Section 4. Fiscal Year.
The fiscal year of the Corporation shall end on December 31 of each
year; provided, however that such fiscal year may be changed by resolution of
the Board of Directors.
Section 5. Checks, Notes, Drafts, Etc.
All checks, notes, drafts or other orders for the payment of money of
the Corporation shall be signed, endorsed or accepted in the name of the
Corporation by such officer, officers, person or persons as from time to time
may be designated by the Board of Directors or by an officer or officers
authorized by the Board of Directors to make such designation.
Section 6. Execution of Contracts, Deeds, Etc.
The Board of Directors may authorize any officer or officers, agent or
agents, in the name and on behalf of the Corporation to enter into or execute
and deliver all deeds, bonds, mortgages, contracts and other obligations or
instruments, and such authority may be general or confined to specific
instances. The attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, bond, mortgage,
contract or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the Board of Directors
authorizing such execution expressly state that such attestation is necessary.
Section 7. Voting of Stock in Other Corporations.
Unless otherwise provided by resolution of the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or any Vice President, from
time to time may (or may appoint one or more attorneys or agents to) cast the
votes which the Corporation may be entitled to cast as a shareholder or
otherwise in another corporation, any of whose shares or securities may be held
by the Corporation, at meetings of the holders of the shares or other securities
of such other corporation. In the event one or
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more attorneys or agents are appointed, the Chairman of the Board or the Chief
Executive Officer may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent. The Chairman of the Board
or the Chief Executive Officer may, or may instruct the attorneys or agents
appointed to, execute or cause to be executed in the name and on behalf of the
Corporation and under its seal or otherwise, such written proxies, consents,
waivers or other instruments as may be necessary or proper in the circumstances.
Section 8. Severability.
Any determination that any provision of these By-Laws is for any reason
inapplicable, illegal or ineffective shall not affect or invalidate any other
provision of these By-Laws.
Section 9. Certificate of Incorporation.
All references in these By-Laws to the Certificate of Incorporation
shall be deemed to refer to the Certificate of Incorporation of the Corporation,
as amended and in effect from time to time.
Article VII
Amendments
Section 1. By the Board of Directors.
If the Certificate of Incorporation so provides, these By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the affirmative
vote of a majority of the directors present at any regular or special meeting of
the Board of Directors at which a quorum is present.
Section 2. By the Stockholders.
These By-Laws, including this Section 2 of this Article VII, may be
altered, amended or repealed or new By-Laws may be adopted by the affirmative
vote of the holders of at least 80% of the voting power of all shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class.
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DEWEY BALLANTINE LLP
1301 AVENUE OF THE AMERICAS
NEW YORK 10019-6092
TEL 212 259-8000 FAX 212 259-6333
May 10, 1999
Triad Hospitals, Inc.
13455 Noel Road, Suite 2000
Dallas, Texas 75240
Re: Triad Hospitals, Inc. 1999 Long-Term Incentive Plan
----------------------------------------------------------
Gentlemen:
We are acting as counsel for Triad Hospitals, Inc., a Delaware
corporation ("Triad"), in connection with the registration by Triad under the
Securities Act of 1933, as amended (the "Act"), of 5,350,000 shares of common
stock, par value $.01 per share (the "Shares"), to be offered pursuant to the
Triad Hospitals, Inc. 1999 Long-Term Incentive Plan (the "1999 Plan") under the
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission (the "Registration Statement").
We are familiar with the proceedings of Triad relating to the
authorization and issuance of the Shares. In addition, we have made such
further examinations of law and fact as we have deemed appropriate in connection
with the opinion hereinafter set forth. We express no opinion as to the law of
any jurisdiction other than the laws of the State of New York and the corporate
laws of the State of Delaware.
Based upon the foregoing, we are of the opinion that the Shares to be
offered pursuant to the 1999 Plan have been duly authorized and, when issued in
accordance with the resolutions of the Board of Directors of Triad authorizing
such issuance, will be validly issued, fully paid and nonassessable.
<PAGE>
Triad Hospitals, Inc.
May 10, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act, or under the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Dewey Ballantine LLP
<PAGE>
Consent of Independent Auditors
We consent to the reference to our firm as "Experts" in Item 3 of the
Registration Statement (Form S-8) pertaining to the Triad Hospitals, Inc. 1999
Long-Term Incentive Plan and to the incorporation by reference therein of our
report dated February 26, 1999, with respect to the combined financial
statements of Triad Hospitals, Inc. and its subsidiaries included in Triad's
Registration Statement on Form 10 at December 31, 1998 and 1997 and for each of
the three years in the period ended December 31, 1998, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Nashville, Tennessee
May 10, 1999
