SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report February 10, 1994
(Date of Earliest Event Reported)
COLUMBIA/HCA HEALTHCARE CORPORATION
(Exact name of Registrant as specified in its Charter)
DELAWARE
(State of Incorporation)
001-11239 75-2497104
(Commission (I.R.S. Employer
File Number) Identification No.)
201 West Main Street, Louisville, Kentucky 40202
(Address of principal executive offices) (Zip Code)
(502) 572-2000
(Registrant's telephone number, including area code)
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ITEM 2. Acquisition or Disposition of Assets
and
ITEM 5. Other Events
At special stockholders' meetings held on February 10, 1994, the
respective stockholders of Columbia Healthcare Corporation ("Columbia")
and HCA-Hospital Corporation of America ("HCA") approved Columbia's
acquisition of HCA by means of a merger (the "Merger") of HCA into a
wholly-owned subsidiary of Columbia. The Merger was effective on
February 10, 1994. As a result of the Merger (a) the holders of the
outstanding shares of HCA's Class A Common Stock, $.01 par value, will
receive 1.05 shares of the Common Stock, $.01 par value, of Columbia for
each share of HCA's Class A Common Stock and (b) the holders of the
outstanding shares of HCA's Class B Common Stock, $.01 par value, will
receive 1.05 shares of the Nonvoting Common Stock $.01 par value, of
Columbia for each share of HCA's Class B Common Stock.
In addition, at Columbia's special stockholders' meeting, the
stockholders of Columbia approved proposals to amend Columbia's Restated
Certificate of Incorporation to (a) change the name of the corporation
to "Columbia/HCA Healthcare Corporation" and (b) increase the authorized
number of shares of Columbia Common Stock from 400,000,000 shares to
800,000,000 shares and the authorized number of shares of Columbia
Preferred Stock from 10,000,000 shares to 25,000,000 shares.
Columbia incorporates by reference into this Current Report on
Form 8-K the additional information about the Merger set forth in copies
of the two joint press releases of Columbia and HCA, each dated February
10, 1994, copies of which are attached as Exhibits 99(a) and 99(b)
hereto.
Certain additional information about the Merger which is required
by Item 2 of this Current Report on Form 8-K is incorporated by reference
from the information set forth in Columbia's and HCA's Joint Proxy
Statement and Prospectus dated December 14, 1993.
On February 10, 1994, Richard E. Rainwater resigned as a
director. Darla D. Moore was elected to fill the vacancy.
In addition, the size of the Board of Directors was increased
from eleven to fifteen and the following four individuals were elected:
Thomas F. Frist, Jr., M.D., Charles J. Kane, Carl E. Reichardt, and Frank
S. Royal, M.D.
In addition, on February 10, 1994, the Board of Directors of
Columbia amended Columbia's By-laws to add a director's retirement
policy, effective July 1, 1994, which prohibits the nomination as a
director of any person, other than current directors whose terms expire
after the Company's 1994 Annual Meeting, who has attained age 70 prior
to the first day of such person's proposed term of office.
ITEM 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(a) Financial Statements of Businesses Acquired.
and
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(b) Pro Forma Financial Information.
The financial statements and pro forma financial information
required by these Items 7(a) and 7(b) are incorporated herein by
reference from the financial statements and pro forma financial
information set forth in Columbia's and HCA's Joint Proxy Statement and
Prospectus dated December 14, 1993.
(c) Exhibits.
3(a) Amended and Restated Certificate of
Incorporation.
3(b) By-laws of Columbia Healthcare Corporation
(attached as Appendix F to the Registrant's
Registration Statement on Form S-4(Reg. No. 33-
49773 as filed with the Securities and Exchange
Commission on July 15, 1993, and incorporated by
reference herein).
3(b).1 Amendment to By-laws as approved on February 10,
1994.
20 Joint Proxy Statement and Prospectus of Columbia
and HCA dated December 14, 1993 (incorporated by
reference to Columbia's Registration Statement
No. 33-50735 on Form S-4 as filed with the
Securities and Exchange Commission on December
14, 1993).
99(a) Press Release of Columbia and HCA dated February
10, 1994.
99(b) Press Release of Columbia and HCA dated February
10, 1994
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EXHIBIT-3(a)
RESTATED CERTIFICATE OF INCORPORATION
OF
COLUMBIA HEALTHCARE CORPORATION
Columbia Healthcare Corporation, a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as
follows:
1. The name of the corporation is Columbia Healthcare
Corporation. Columbia Healthcare Corporation was originally incorporated
under the same name and the original Certificate of Incorporation of the
corporation was filed with the Secretary of State of Delaware on July 7,
1993. A Restated Certificate of Incorporation of the Corporation was filed
with the Secretary of State of Delaware on August 26, 1993.
2. Pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, this Restated Certificate of Incorporation
restates and amends the provisions of the Restated Certificate of
Incorporation of the Corporation.
3. The text of the Restated Certificate of Incorporation is
hereby restated and amended to read in its entirety as follows:
FIRST: The name of the Corporation is
Columbia/HCA Healthcare Corporation
SECOND: The address of the Corporation's registered office in the
State of Delaware is 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 General
Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue is Eight Hundred
and Fifty Million (850,000,000) shares, divided into three classes of
which Twenty Five Million (25,000,000) shares, par value $.01 per share,
shall be designated Preferred Stock, Eight Hundred Million (800,000,000)
shares, par value $.01 per share, shall be designated Common Stock and
Twenty Five Million (25,000,000) shares, par value $.01 per share, shall
be designated Nonvoting Common Stock.
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A. Preferred Stock
1. Issuance. The Board of Directors is 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.
2. Series A Preferred Stock and Series B Preferred Stock.
Section 1. Designation and Amount. Eight million (8,000,000) shares of
the Preferred Stock of the Corporation shall be designated as "Series A
Participating Preferred Stock," par value $.01 per share (the "Series A
Preferred Stock") and two hundred fifty thousand (250,000) shares of the
Preferred Stock of the Corporation shall be designated as "Series B
Participating Preferred Stock," par value $.01 per share (the "Series B
Preferred Stock"). The number of shares of each such series of Preferred
Stock may be increased or decreased by resolution of the Board of
Directors; provided that no decrease shall reduce the number of shares of
either of such series of Preferred Stock to a number less than that of the
shares of such series then outstanding plus the number of shares issuable
upon exercise of outstanding rights, options or warrants or upon
conversion of outstanding securities issued by the Corporation.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of stock of the Corporation ranking prior and superior to the
shares of Series A Preferred Stock and Series B Preferred Stock with
respect to dividends, the holders of shares of Series A Preferred Stock
and Series B Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of assets legally available for the
purpose, quarterly dividends payable in cash on the first business day of
January, April, July and October 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 or Series B
Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount
of all cash dividends, and 100 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 or Series B Preferred Stock; provided that no
dividend shall be declared on the shares of Series A Preferred Stock or
Series B Preferred Stock unless at the same time a dividend is declared on
the outstanding shares of the other series in the same amount and having
the same record and payment dates. In the event the Corporation shall at
any time after September 1, 1993 (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, (iii) combine the outstanding Common Stock into a smaller number of
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shares, or (iv) issue any shares of Common Stock in a reclassification or
change of the outstanding shares of Common Stock (including any such
reclassification or change in connection with a merger in which the
Corporation is the continuing or surviving Corporation), then in each such
case the amount to which holders of shares of Series A Preferred Stock and
Series B 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 and Series B Preferred Stock as provided in
paragraph (A) above immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares
of Common Stock); provided 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 $1.00 per share on the Series A Preferred
Stock and Series B Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock and Series B Preferred
Stock from the Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series A Preferred Stock or Series B Preferred
Stock, as the case may be, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date for
such shares, 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 or Series B
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 and Series B
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 shares of Series A Preferred Stock and
Series B Preferred Stock 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 and Series B Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date
shall be not more than 30 days prior to the date fixed for the payment
thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock and Series B Preferred Stock shall have the following voting rights:
(A) (i) Except as provided in paragraph C of this Section 3 and
subject to the provision for adjustment hereinafter set forth, each share
of Series A Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the stockholders of the Corporation.
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(ii) Except as otherwise provided herein or by law, the holders of
shares of Series A Preferred Stock and the holders of shares of Common
Stock shall vote together as one class on all matters submitted to a vote
of stockholders of the Corporation.
(B) (i) Except as otherwise required by applicable law, each
outstanding share of Series B Preferred Stock shall not be entitled to
vote on any matter on which the stockholders of the Corporation shall be
entitled to vote, and shares of Series B Preferred Stock shall not be
included in determining the number of shares voting or entitled to vote on
any such matters.
(ii) On any matter on which the holders of shares of
Common Stock are entitled to vote and on which the holders of shares of
Series B Preferred Stock are also entitled to vote, except as otherwise
required by law, the Series B Preferred Stock shall vote together with the
Common Stock (and each other class or series of capital stock then
entitled to vote with the Common Stock); provided that each share of
Series B Preferred Stock shall entitle the holder thereof to 100 votes on
any matter on which the Series B Preferred Stock shall vote together with
the Common Stock.
(C) (i) If, on the date used to determine stockholders of record for
any meeting of stockholders for the election of directors, a default in
preference dividends (as defined in subparagraph (v) below) on the
Series A Preferred Stock shall exist, the holders of the Series A
Preferred Stock shall have the right, voting as a class as described in
subparagraph (ii) below, to elect two directors (in addition to the
directors elected by holders of Common Stock of the Corporation). Such
right may be exercised (a) at any meeting of stockholders for the election
of directors or (b) at a meeting of the holders of shares of Voting
Preferred Stock (as hereinafter defined), called for the purpose in
accordance with the Bylaws of the Corporation, until all such cumulative
dividends (referred to above) shall have been paid in full or until
non-cumulative dividends have been paid regularly for at least one year.
(ii) The right of the holders of Series A Preferred Stock to
elect two directors, as described above, shall be exercised as a class
concurrently with the rights of holders of any other series of any class
of preferred stock of the Corporation upon which voting rights to elect
such directors have been conferred and are then exercisable. The Series A
Preferred Stock and any additional series of such preferred stock which
the Corporation may issue and which may provide for the right to vote with
the Series A Preferred Stock are collectively referred to herein as
"Voting Preferred Stock."
(iii) Each director elected by the holders of shares of Voting
Preferred Stock shall be referred to herein as a "Preferred Director." A
Preferred Director so elected shall continue to serve as such director for
a term of one year, except that upon any termination of the right of all
of such holders to vote as a class for Preferred Directors, the term of
office of such directors shall terminate. Any Preferred Director may be
removed by, and shall not be removed except by, the vote of the holders of
record of a majority of the outstanding shares of Voting Preferred Stock
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then entitled to vote for the election of directors, present (in person or
by proxy) and voting together as a single class (a) at a meeting of the
stockholders, or (b) at a meeting of the holders of shares of such Voting
Preferred Stock, called for that purpose in accordance with the Bylaws of
the Corporation.
(iv) So long as a default in any preference dividends on the
Series A Preferred Stock shall exist or the holders of any other series of
Voting Preferred Stock shall be entitled to elect Preferred Directors, (a)
any vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (b)) by an instrument in writing signed
by the remaining Preferred Director and filed with the Corporation and (b)
in the case of the removal of any Preferred Director, the vacancy may be
filled by the vote of the holders of a majority of the outstanding shares
of Voting Preferred Stock then entitled to vote for the election of
directors, present (in person or by proxy) and voting together as a single
class, at such time as the removal shall be effected. Each director
appointed as aforesaid by the remaining Preferred Director shall be
deemed, for all purposes hereof, to be a Preferred Director.
(v) For purposes hereof, a "default in preference dividends" on
the Series A Preferred Stock shall be deemed to have occurred whenever the
amount of cumulative and unpaid dividends on the Series A Preferred Stock
shall be equivalent to six full quarterly dividends or more (whether or
not consecutive), and, having so occurred, such default shall be deemed to
exist thereafter until, but only until, all cumulative dividends on all
shares of the Series A Preferred Stock then outstanding shall have been
paid through the last Quarterly Dividend Payment Date or until, but only
until, non-cumulative dividends have been paid regularly for at least one
year.
(D) Except as set forth herein (or as otherwise required by
applicable law), holders of Series A Preferred Stock and Series B
Preferred Stock shall have no general or special voting rights and their
consent shall not be required 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 and/or Series B
Preferred Stock as provided in Section 2 are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on such shares of 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
and Series B 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
and Series B Preferred Stock, except dividends paid ratably on the
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Series A Preferred Stock and Series B 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
(based upon their respective liquidation values);
(iii)redeem or purchase or otherwise acquire for consideration
(except as provided in (iv) below) shares of any stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock and Series B Preferred Stock, provided 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 and Series B
Preferred Stock;
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock or Series B Preferred Stock, or 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
and Series B 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 or
Series B Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and canceled
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 subject to the
conditions and restrictions on issuance set forth in this Restated
Certificate of Incorporation, in any Certificate of Amendment creating a
series of Preferred Stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Subject to the prior and superior rights of holders of any
shares of stock of the Corporation ranking prior and superior to the
shares of Series A Preferred Stock and Series B Preferred Stock with
respect to rights upon liquidation, dissolution or winding up (voluntary
or otherwise), no distribution shall be made 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 and Series B
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock and Series B Preferred Stock shall have received $100.00
per share, plus an amount equal to accrued and unpaid dividends and
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distributions thereon, whether or not declared, to the date of such
payment (the "Series Liquidation Preference"). Following the payment of
the full amount of the Series Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Preferred
Stock and Series B Preferred Stock unless, prior thereto, the holders of
shares of Common Stock and Nonvoting Common Stock shall have received an
amount per share (the "Capital Adjustment") equal to the quotient obtained
by dividing (i) the Series Liquidation Preference by (ii) 100 (subject to
the provision for adjustment hereinafter set forth in subparagraph (C)
below) (such number in clause (ii), the "Adjustment Number"). Following
the payment of the full amount of the Series Liquidation Preference and
the Capital Adjustment in respect of all outstanding shares of Series A
Preferred Stock and Series B Preferred Stock, and Common Stock and
Nonvoting Common Stock, respectively, holders of Series A Preferred Stock
and Series B Preferred Stock, and holders of Common Stock and Nonvoting
Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number
to 1 with respect to such Series A Preferred Stock and Series B Preferred
Stock, and Common Stock and Nonvoting Common Stock, on a per share basis,
respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series Liquidation Preference
and the liquidation preferences of all other series of stock of the
Corporation, if any, which rank on a parity with the Series A Preferred
Stock and Series B Preferred Stock, then such remaining assets shall be
distributed ratably to the holders of Series A Preferred Stock and
Series B Preferred Stock and the holders of such parity stock in
proportion to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to permit payment
in full of the Capital Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock and Nonvoting Common
Stock.
(C) In the event the Corporation shall at any time after
September 1, 1993 (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock,
(iii) combine or consolidate the outstanding Common Stock into a smaller
number of shares, or (iv) issue any shares of Common Stock in a
reclassification or exchange of the outstanding shares of Common Stock
(including any such reclassification or exchange in connection with a
merger in which the Corporation is the continuing or surviving
corporation), then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such
Adjustment 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.
Section 7. Conversion.
(a) Conversion of Series A Preferred Stock. Subject to and upon
compliance with the provisions of Section 4 of Paragraph B of this Article
FOURTH, any Regulated Stockholder (as defined in Section 5 of Paragraph B
of this Article FOURTH) shall be entitled to convert, at any time and from
time to time, any or all of the shares of Series A Preferred Stock held by
such stockholder into the same number of shares of Series B Preferred
Stock.
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(b) Conversion of Series B Preferred Stock. Subject to and upon
compliance with the provisions of Section 4 of Paragraph B of this Article
FOURTH, each record holder of Series B Preferred Stock shall be entitled
to convert, at any time and from time to time, any or all of the shares of
Series B Preferred Stock held by such stockholder into the same number of
shares of Series A Preferred Stock; provided however, that no holder of
shares of Series B Preferred Stock shall be entitled to convert any such
shares to the extent that, as a result of such conversion, such holder and
its Affiliates (as defined in Section 5 of Paragraph B of this Article
FOURTH), directly or indirectly, would own, control or have the power to
vote a greater number of shares of Series A Preferred Stock or other
securities of any kind issued by the Corporation than such holder and its
Affiliates shall be permitted to own, control or have power to vote under
any law, regulation, rule or other requirement of any governmental
authority at the time applicable to such holder or its Affiliates.
(c) Stock Splits; Adjustments. If the Corporation shall in any manner
subdivide (by stock split, stock dividend or otherwise) or combine (by
reverse stock split or otherwise) the outstanding shares of Series A
Preferred Stock or Series B Preferred Stock, then the outstanding shares
of Series B Preferred Stock or Series A Preferred Stock, as the case may
be, shall be subdivided or combined, as the case may be, to the same
extent, share and share alike, and effective provision shall be made for
the protection of the conversion rights hereunder.
In the case of any reorganization, reclassification or change of
shares of Series A Preferred Stock or Series B Preferred Stock (other than
a change in par value or from par to no par value as a result of a
subdivision or combination), or in case of any consolidation of the
Corporation with one or more corporations or a merger of the Corporation
with another corporation (other than a consolidation or merger in which
the Corporation is the resulting or surviving corporation and which does
not result in any reclassification or change of outstanding shares of
Series A Preferred Stock or Series B Preferred Stock), each holder of a
share of Series A Preferred Stock or Series B Preferred Stock shall have
the right at any time thereafter, so long as the conversion right
hereunder with respect to such share would exist had such event not
occurred, to convert such share into the kind and amount of shares of
stock and other securities and properties (including cash) receivable upon
such reorganization, reclassification, change, consolidation or merger by
a holder of the number of shares of Series A Preferred Stock or Series B
Preferred Stock into which such shares of Series A Preferred Stock or
Series B Preferred Stock, as the case may be, might have been converted
immediately prior to such reorganization, reclassification, change,
consolidation or merger. In the event of such a reorganization,
reclassification, change, consolidation or merger, effective provision
shall be made in the certificate of incorporation of the resulting or
surviving corporation or otherwise for the protection of the conversion
rights of the shares of Series A Preferred Stock and Series B Preferred
Stock that shall be applicable, as nearly as reasonably may be, to any
such other shares of stock and other securities and property deliverable
upon conversion of the shares of Series A Preferred Stock or Series B
Preferred Stock into which such Series B Preferred Stock or Series A
Preferred Stock, as the case may be, might have been converted immediately
prior to such event.
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(d) Reservation of Shares. The Corporation shall at all times reserve
and keep available out of its authorized but unissued shares of Preferred
Stock or its treasury shares, solely for the purpose of issuance upon the
conversion of shares of Series A Preferred Stock and Series B Preferred
Stock, such number of shares of such class as are then issuable upon the
conversion of all outstanding shares of Series A Preferred Stock and
Series B Preferred Stock.
Shares of Series A Preferred Stock and Series B Preferred Stock that
are converted into shares of another class shall not be reissued, except
for reissuances in connection with the conversion of shares of Series A
Preferred Stock held by Regulated Stockholders into shares of Series B
Preferred Stock and the conversion of shares of Series B Preferred Stock
into shares of Series A Preferred Stock.
Section 8. 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 or any other property, then, in any such case,
(i) the shares of Series A Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to
adjustment as set forth herein) equal to 100 times the aggregate amount of
stock, securities, cash 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 and (ii) the shares of Series B Preferred Stock shall at the
same time be similarly exchanged or changed in an amount per share
(subject to adjustment as set forth herein) equal to 100 times the
aggregate amount of stock, securities, cash or other property (payable in
kind), as the case may be, into which or for which each share of Common
Stock is changed or exchanged (or, if any shares of Nonvoting Common Stock
are then outstanding and are being exchanged or changed, 100 times the
aggregate amount of stock, securities, cash or other property into which
or for which each share of Nonvoting Common Stock is changed or
exchanged).
Section 9. No Redemption. The shares of Series A Preferred Stock and
Series B Preferred Stock shall not be redeemable.
Section 10. Ranking. The Series A Preferred Stock and Series B
Preferred Stock shall rank junior to all other series of stock of the
Corporation (other than the Common Stock) as to the payment of dividends
and the distribution of assets, unless the terms of any such series shall
provide otherwise.
Section 11. Amendment. The Restated Certificate of Incorporation of
the Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences or special rights of any series of
Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of a majority or more of the outstanding shares of all
series of Preferred Stock so affected, voting together as a separate
class.
B. Common Stock and Nonvoting Common Stock
Shares of Common Stock and Nonvoting Common Stock will be identical
and will entitle the holders thereof to the same rights and privileges,
except as otherwise provided herein.
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Section 1. Dividends. Subject to the preferential rights, if any, of
the Preferred Stock, the holders of shares of Common Stock shall be
entitled to receive, when and if declared by the Board of Directors, out
of the assets of the Corporation which are by law available therefor,
dividends payable either in cash, in property or in shares of Common Stock
or other securities of the Corporation. The holders of shares of Nonvoting
Common Stock shall be entitled to receive, at the same time that any
dividend is declared by the Board of Directors on the shares of Common
Stock, the same dividend per share on the shares of Nonvoting Common
Stock, payable on the same date as such dividend on the Common Stock;
provided that if any dividend is payable on the shares of Common Stock in
shares of Common Stock, or options, warrants or rights to acquire shares
of Common Stock, or securities convertible into or exchangeable for shares
of Common Stock, the shares, options, warrants, rights or securities
payable in the case of the dividend on the shares of Nonvoting Common
Stock shall be shares of, or options, warrants or rights to acquire, or
securities convertible into or exchangeable for, Nonvoting Common Stock.
Section 2. Voting Rights.
(a) Common Stock. At every annual or special meeting of stockholders of
the Corporation, every 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.
(b) Nonvoting Common Stock. Except as set forth herein or as otherwise
required by law, each outstanding share of Nonvoting Common Stock shall
not be entitled to vote on any matter on which the stockholders of the
Corporation shall be entitled to vote, and shares of Nonvoting Common
Stock shall not be included in determining the number of shares voting or
entitled to vote on any such matters. On any matter on which the holders
of shares of Common Stock and the holders of shares of Nonvoting Common
Stock are entitled to vote, except as otherwise required by law, the
Common Stock and Nonvoting Common Stock shall vote together as a single
class, and each holder of shares of Nonvoting Common Stock entitled to
vote shall be entitled to one vote for each share of such stock held by
such holder; provided, however, that notwithstanding the foregoing,
holders of shares of Nonvoting Common Stock shall be entitled to vote as
a separate class on any amendment to this Section 2(b) and on any
amendment, repeal or modification of any provision of this Restated
Certificate of Incorporation that adversely affects the powers,
preferences or special rights of holders of the Nonvoting Common Stock.
Section 3. Liquidation, Dissolution or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, after payment or provision for payment of the
debts and other liabilities of the Corporation and of the preferential
amounts, if any, to which the holders of Preferred Stock shall be
entitled, the holders of all outstanding shares of Common Stock and
Nonvoting Common Stock shall be entitled to share ratably in the remaining
net assets of the Corporation.
Section 4. Conversion
(a) Conversion of Common Stock. Subject to and upon compliance with the
provisions of this Section 4, any Regulated Stockholder (defined below)
shall be entitled to convert, at any time and from time to time, any or
all of the shares of Common Stock held by such stockholder into the same
number of shares of Nonvoting Common Stock.
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(b) Conversion of Nonvoting Common Stock. Subject to and upon
compliance with the provisions of this Section 4, each record holder of
Nonvoting Common Stock shall be entitled to convert, at any time and from
time to time, any or all of the shares of Nonvoting Common Stock held by
such stockholder into the same number of shares of Common Stock; provided
however, that no holder of shares of Nonvoting Common Stock shall be
entitled to convert any such shares to the extent that, as a result of
such conversion, such holder and its Affiliates (defined below), directly
or indirectly, would own, control or have the power to vote a greater
number of shares of Common Stock or other securities of any kind issued by
the Corporation than such holder and its Affiliates shall be permitted to
own, control or have power to vote under any law, regulation, rule or
other requirement of any governmental authority at the time applicable to
such holder or its Affiliates.
(c) Conversion Procedure. Each conversion of shares of a class or
series of the capital stock of the Corporation into shares of another
class or series of capital stock of the Corporation shall be effected by
the surrender of the certificate or certificates representing the shares
to be converted (the "Converting Shares") at the principal office of the
Corporation (or such other office or agency of the Corporation as the
Corporation may designate by written notice to the holders of shares of
capital stock of the Corporation) at any time during its usual business
hours, together with written notice by the holder of such Converting
Shares, stating that such holder desires to convert the Converting Shares,
or a stated number of the shares represented by such certificate or
certificates, into an equal number of shares of the class or series into
which such shares may be converted (the "Converted Shares"). Such notice
shall also state the name or names (with addresses) and denominations in
which the certificate or certificates for Converted Shares are to be
issued and shall include instructions for the delivery thereof. The
Corporation shall promptly notify each Regulated Stockholder of its
receipt of such notice. Promptly after such surrender and the receipt of
such written notice, the Corporation will issue and deliver in accordance
with the surrendering holder's instructions the certificate or
certificates evidencing the Converted Shares issuable upon such
conversion, and the Corporation will deliver to the converting holder a
certificate (which shall contain such legends as were set forth on the
surrendered certificate or certificates) representing any shares which
were represented by the certificate or certificates that were delivered to
the Corporation in connection with such conversion, but which were not
converted; provided, however, that if such conversion is subject to
subparagraph (d) of this Section 4 below, the Corporation shall not issue
such certificate or certificates until the expiration of the Deferral
Period referred to therein. Such conversion, to the extent permitted by
law, shall be deemed to have been effected as of the close of business on
the date on which such certificate or certificates shall have been
surrendered and such notice shall have been received by the Corporation,
and at such time the rights of the holder of the Converting Shares as such
holder shall cease (except that, in the case of a conversion subject to
subparagraph (d) of this Section 4 below, the conversion shall be deemed
to be effective upon the expiration of the Deferral Period referred to
therein), and the person or persons in whose name or names the certificate
or certificates for the Converted Shares are to be issued upon such
conversion shall be deemed to have become the holder or holders of record
of the Converted Shares. Upon issuance of shares in accordance with this
Section 4, such Converted Shares shall be deemed to be duly authorized,
validly issued, fully paid and non-assessable.
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Notwithstanding any provision of this Section 4 to the contrary, the
Corporation shall not be required to record the conversion of, and no
holder of shares shall be entitled to convert, shares of nonvoting capital
stock of the Corporation into shares of voting capital stock of the
Corporation unless such conversion is permitted under applicable law;
provided, however, that the Corporation shall be entitled to rely without
independent verification upon the representation of any holder that the
conversion of shares by such holder is permitted under applicable law, and
in no event shall the Corporation be liable to any such holder or any
third party arising from any such conversion whether or not permitted by
applicable law.
(d) Notice of Conversion to Other Regulated Stockholders; Deferral. The
Corporation shall not convert or directly or indirectly redeem, purchase
or otherwise acquire any shares of Common Stock or any other class of
capital stock of the Corporation or take any other action affecting the
voting rights of such shares, if such action will increase the percentage
of any class of outstanding voting securities owned or controlled by any
Regulated Stockholder (other than any such stockholder which requested
that the Corporation take such action, or which otherwise waives in
writing its rights under this subparagraph (d)), unless the Corporation
gives written notice (the "Deferral Notice") of such action to each
Regulated Stockholder. The Corporation will defer making any such
conversion, redemption, purchase or other acquisition, or taking any such
other action for a period of 20 days (the "Deferral Period") after giving
the Deferral Notice in order to allow each Regulated Stockholder to
determine whether it wishes to convert or take any other action with
respect to the voting capital stock it owns, controls or has the power to
vote, and if any such Regulated Stockholder then elects to convert any
shares of voting capital stock, it shall notify the Corporation in writing
within 10 days of the issuance of the Deferral Notice, in which case the
Corporation shall (i) promptly notify from time to time prior to the end
of such 20-day period each other Regulated Stockholder holding shares of
each proposed conversion and the proposed transactions, and (ii) effect
the conversions requested by all Regulated Stockholders in response to the
notices issued pursuant to this subparagraph (d) at the end of the
Deferral Period. The Corporation will not directly or indirectly redeem,
purchase, acquire or take any other action affecting outstanding shares of
capital stock of the Corporation if such action will increase the
percentage of the outstanding shares of capital stock owned or controlled
by any Regulated Stockholder and its Affiliates (other than a stockholder
which waives in writing its rights under this Section 4) to more than
24.9% of the aggregate number of outstanding shares of capital stock of
the Corporation (it being understood that for the purposes of the
foregoing calculation each one one-hundredth of a share of Series A
Preferred Stock or Series B Preferred Stock shall be treated as the
equivalent of one share of Common Stock or Nonvoting Common Stock).
(e) Stock Splits; Adjustments. If the Corporation shall in any manner
subdivide (by stock split, stock dividend or otherwise) or combine (by
reverse stock split or otherwise) the outstanding shares of Common Stock
or Nonvoting Common Stock, then the outstanding shares of Nonvoting Common
Stock or Common Stock, as the case may be, shall be subdivided or
combined, as the case may be, to the same extent, share and share alike,
and effective provision shall be made for the protection of the conversion
rights hereunder.
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In the case of any reorganization, reclassification or change of
shares of Common Stock or Nonvoting Common Stock (other than a change in
par value or from par to no par value as a result of a subdivision or
combination), or in case of any consolidation of the Corporation with one
or more corporations or a merger of the Corporation with another
corporation (other than a consolidation or merger in which the Corporation
is the resulting or surviving corporation and which does not result in any
reclassification or change of outstanding shares of Common Stock or
Nonvoting Common Stock), each holder of a share of Common Stock or
Nonvoting Common Stock shall have the right at any time thereafter, so
long as the conversion right hereunder with respect to such share would
exist had such event not occurred, to convert such share into the kind and
amount of shares of stock and other securities and properties (including
cash) receivable upon such reorganization, reclassification, change,
consolidation or merger by a holder of the number of shares of Common
Stock or Nonvoting Common Stock into which such shares of Common Stock or
Nonvoting Common Stock, as the case may be, might have been converted
immediately prior to such reorganization, reclassification, change,
consolidation or merger. In the event of such a reorganization,
reclassification, change, consolidation or merger, effective provision
shall be made in the certificate of incorporation of the resulting or
surviving corporation or otherwise for the protection of the conversion
rights of the shares of Common Stock and Nonvoting Common Stock that shall
be applicable, as nearly as reasonably may be, to any such other shares of
stock and other securities and property deliverable upon conversion of the
shares of Common Stock or Nonvoting Common Stock into which such Common
Stock or Nonvoting Common Stock, as the case may be, might have been
converted immediately prior to such event.
The Corporation shall not be a party to any merger, consolidation or
recapitalization pursuant to which any Regulated Stockholder would be
required to take (i) any voting securities which would cause such holder
to violate any law, regulation or other requirement of any governmental
body applicable to such holder, or (ii) any securities convertible into
voting securities which, if such conversion took place, would cause such
holder to violate any law, regulation or other requirement of any
governmental body applicable to such holder other than securities which
are specifically provided to be convertible only in the event that such
conversion may occur without any such violation.
(f) Reservation of Shares. The Corporation shall at all times reserve
and keep available out of its authorized but unissued shares of Common
Stock and Nonvoting Common Stock or its treasury shares, solely for the
purpose of issuance upon the conversion of shares of Common Stock and
Nonvoting Common Stock, such number of shares of such class as are then
issuable upon the conversion of all outstanding shares of Common Stock and
Nonvoting Common Stock.
Shares of Common Stock and Nonvoting Common Stock that are converted
into shares of another class shall not be reissued, except for reissuances
in connection with the conversion of shares of Common Stock held by
Regulated Stockholders into shares of Nonvoting Common Stock and the
conversion of shares of Nonvoting Common Stock into shares of Common
Stock.
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(g) No Charge. The issuance of certificates for shares of any class or
series of capital stock of the Corporation upon conversion of shares of
another class or series of capital stock of the Corporation shall be made
without charge to the holders of such shares for any issuance tax in
respect thereof or other cost incurred by the Corporation in connection
with such conversion and the related issuance of shares of capital stock
of the Corporation; provided, however, that the Corporation shall not be
required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name other
than that of the holder of the capital stock of the Corporation converted.
Section 5. Definitions. As used in this Paragraph B, the following
terms shall have the meanings shown below:
"Affiliate" shall mean with respect to any Person, any other Person,
directly or indirectly controlling, controlled by or under common control
with such Person. For the purpose of the above definition, the term
"control" (including with correlative meaning, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to
any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or by
contract or otherwise.
"Person" shall mean an individual, a partnership, a corporation, a
trust, a joint venture, an unincorporated organization or a government or
any department or agency thereof.
"Regulated Stockholder" shall mean (a) any stockholder that is
subject to the provisions of Regulation Y of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Part 225 (or any successor to such
Regulation) ("Regulation Y") which was a "Regulated Stockholder" of
HCA-Hospital Corporation of America (as such term was defined in the
certificate of incorporation of such corporation) immediately prior to the
merger (the "Merger") of HCA-Hospital Corporation of America with CHOS
Acquisition Corporation, a wholly owned subsidiary of the Corporation, so
long as such stockholder shall hold, and only with respect to, the shares
of Common Stock or Nonvoting Common Stock received by such stockholder in
connection with the Merger and shares of Series A Preferred Stock and
Series B Preferred Stock received by such stockholder upon the exercise of
preferred stock purchase rights received by such stockholder in connection
with the Merger, or shares issued upon conversion(s) of or in respect of
any of the foregoing shares or upon exercise of preferred stock purchase
rights received upon conversion(s) of any of the foregoing shares, (b) any
Affiliate of any such Regulated Stockholder that is a transferee of any of
the foregoing shares or rights or shares issued upon conversion(s) of or
in respect of any of the foregoing shares or upon exercise of preferred
stock purchase rights received upon conversion(s) of any of the foregoing
shares and (c) any Person to which such Regulated Stockholder or any of
its Affiliates has transferred such shares or rights, so long as such
transferee shall hold, and only with respect to, any of the foregoing
shares or rights or any shares issued upon conversion(s) of or in respect
of any of the foregoing shares or upon exercise of preferred stock
purchase rights received upon conversion(s) of any of the foregoing shares
but only if such Person (or any Affiliate of such Person) is subject to
the provisions of Regulation Y.
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Section 6. Certain Amendments Affecting Nonvoting Common Stock.
(a) In addition to any other action required by law or by this
Restated Certificate of Incorporation, any change in the authorized number
of shares of any class of capital stock of the Corporation shall require
the affirmative vote of a majority of the directors then in office and the
affirmative vote of the holders of not less than a majority of the then
outstanding shares of Common Stock and Nonvoting Common Stock, voting
together as a single class. The provisions of this Section 6(a) may be
amended by, in addition to any other action required by law or by this
Restated Certificate of Incorporation, the affirmative vote of the holders
of not less than a majority of the then outstanding shares of Common Stock
and Nonvoting Common Stock, voting together as a single class.
(b) In addition to any other action required by law or by this
Restated Certificate of Incorporation, any change in the powers,
preferences or special rights of the shares of Nonvoting Common Stock so
as to affect the holders thereof adversely shall require the affirmative
vote of a majority of the directors then in office and the affirmative
vote of the holders of not less than 66 2/3% of the shares of Nonvoting
Common Stock.
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
Restated Certificate of Incorporation directed or required to be exercised
or done by the stockholders.
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 be less than three nor
more than fifteen.
B. Classes. The directors shall be divided into three classes, as
nearly equal in number as reasonably possible, with the term of office of
the first class to expire at the 1994 annual meeting of stockholders, the
term of office of the second class to expire at the 1995 annual meeting of
stockholders and the term of office of the third class to expire at the
1996 annual meeting of stockholders. At each annual meeting of
stockholders following adoption of this Restated Certificate of
Incorporation, 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. 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. Vacancies. Subject to the rights, if any, of the holders of any
series of Preferred Stock then outstanding, 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,
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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 above). No decrease
in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
D. Removal. Subject to the rights, if any, 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 66 2/3% 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. 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.
SIXTH: Subject to the rights of the holders of any class or series
of Preferred Stock, any action required or permitted to be taken at any
annual or special meeting of stockholders may be taken only upon the vote
of the stockholders at an annual or special meeting duly called and may
not be taken by written consent of the stockholders.
SEVENTH: Subject to the rights of the holders of any class or series
of Preferred Stock, special meetings of the stockholders, unless otherwise
prescribed by statute, may be called at any time only by the Board of
Directors, the Chairman of the Board or the Chief Executive Officer.
EIGHTH: At an annual meeting of stockholders, only such business
shall be conducted, and only such proposals shall be acted upon, as shall
have been properly brought before the annual meeting of stockholders
(a) by, or at the direction of, the Board of Directors or (b) by a
stockholder of the Corporation who complies with the procedures set forth
in this Article EIGHTH. For business or a proposal to be properly brought
before an annual meeting of stockholders by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation
not less than 60 days nor more than 90 days prior to the scheduled date of
the annual meeting, regardless of any postponement, deferral or
adjournment of that meeting to a later date; provided, however, that if
less than 70 days' notice or prior public disclosure of the date of the
annual meeting is given or made to stockholders, notice by the stockholder
to be timely must be so delivered or received not later than the close of
business on the 10th day following the earlier of (i) the day on which
such notice of the date of the meeting was mailed or (ii) the day on which
such public disclosure was made.
A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before an annual meeting of
stockholders (i) a description, in 500 words or less, of the business
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desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and address,
as they appear on the Corporation's books, of the stockholder proposing
such business and any other stockholders known by such stockholder to be
supporting such proposal, (iii) the class and number of shares of the
Corporation which are beneficially owned by such stockholder on the date
of such stockholder's notice and by any other stockholders known by such
stockholder to be supporting such proposal on the date of such
stockholder's notice, (iv) a description, in 500 words or less, of any
interest of the stockholder in such proposal and (v) a representation that
the stockholder is a holder of record of stock of the Corporation and
intends to appear in person or by proxy at the meeting to present the
proposal specified in the notice. Notwithstanding anything in this
Restated Certificate of Incorporation to the contrary, no business shall
be conducted at a meeting of stockholders except in accordance with the
procedures set forth in this Article EIGHTH.
The chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that the business was not properly brought
before the meeting in accordance with the procedures prescribed by this
Article EIGHTH, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting
shall not be transacted. Notwithstanding the foregoing, nothing in this
Article EIGHTH shall be interpreted or construed to require the inclusion
of information about any such proposal in any proxy statement distributed
by, at the direction of, or on behalf of, the Board of Directors.
NINTH: Subject to the rights, if any, of the holders of any series of
Preferred Stock then outstanding, only persons nominated in accordance
with the procedures set forth in this Article NINTH shall be eligible for
election as directors. Nominations of persons for election to the Board
may be made at an annual meeting of stockholders or special meeting of
stockholders called by the Board of Directors for the purpose of electing
directors (i) by or at the direction of the Board or (ii) by any
stockholder of the Corporation entitled to vote for the election of
directors at such meeting who complies with the notice procedures set
forth in this Article NINTH. Such nominations, other than those made by or
at the direction of the Board, shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal
executive offices of the Corporation not less than 60 days nor more than
90 days prior to the scheduled date of the meeting, regardless of any
postponement, deferral or adjournment of that meeting to a later date;
provided, however, that if less than 70 days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so delivered or received
not later than the close of business on the 10th day following the earlier
of (i) the day on which such notice of the date of the meeting was mailed
or (ii) the day on which such public disclosure was made.
A stockholder's notice to the Secretary shall set forth (i) as to
each person whom the stockholder proposes to nominate for election or
reelection as a director (a) the name, age, business address and residence
address of such person, (b) the principal occupation or employment of such
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person, (c) the class and number of shares of the Corporation which are
beneficially owned by such person on the date of such stockholder's notice
and (d) any other information relating to such person that is required to
be disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, or any successor statute
thereto (the "Exchange Act") (including without limitation such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (ii) as to the stockholder giving the
notice (a) the name and address, as they appear on the Corporation's
books, of such stockholder and any other stockholders known by such
stockholder to be supporting such nominee(s), (b) the class and number of
shares of the Corporation which are beneficially owned by such stockholder
on the date of such stockholder's notice and by any other stockholders
known by such stockholder to be supporting such nominee(s) on the date of
such stockholder's notice, (c) a representation that the stockholder is a
holder of record of stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; and (iii) a
description of all arrangements or understandings between the stockholder
and each nominee and other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by
the stockholder.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth
in this Article NINTH. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not
made in accordance with the procedures prescribed by this Article NINTH,
and if he should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
TENTH: The Board of Directors is expressly authorized to adopt, amend or
repeal the Bylaws of the Corporation. Any Bylaws made by the directors
under the powers conferred hereby may be amended or repealed by the
directors or by the stockholders. Notwithstanding the foregoing and
anything contained in this Restated Certificate of Incorporation to the
contrary, the Bylaws shall not be amended or repealed by the stockholders,
and no provision inconsistent therewith shall be adopted by the
stockholders, without the affirmative vote of the holders of at least 75%
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.
ELEVENTH: Elections of directors need not be by written ballot unless
the Bylaws of the Corporation shall otherwise provide.
TWELFTH: 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
General Corporation Law of Delaware, or (iv) for any transaction from
which the director derived an improper personal benefit. If the General
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Corporation Law of Delaware 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 General Corporation Law of Delaware
as so amended. Any repeal or modification of this Article TWELFTH shall
not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
THIRTEENTH: 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
General Corporation Law of Delaware or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation
under the provisions of Section 279 of the General Corporation Law of
Delaware, 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 may be, and also on this Corporation.
FOURTEENTH:
A. For purposes of this Article FOURTEENTH, the following terms
shall be defined as follows:
(1) The term "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 FOURTEENTH or (g) any agreement,
contract or other arrangement or understanding providing, directly or
indirectly, for any of the transactions described in this Paragraph A(1).
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(2) The term "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 September 1, 1993, 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 FOURTEENTH; provided, however, that the members of the Board
of Directors of the Corporation shall not be deemed to be 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 FOURTEENTH.
(3) The term "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 referred to in Paragraph A(2) of this
Article FOURTEENTH 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.
(4) The term "Person" shall mean any individual, firm, corporation
or other entity.
(5) The term "Subsidiary" shall mean any corporation or other
entity of which the Person in question owns, directly or indirectly, not
less than 50% of any class of equity securities or not less than 50% of
the voting power of all securities of the Corporation entitled to vote
generally in the election of directors.
(6) The term "Voting Stock" shall mean any shares of the
Corporation entitled to vote generally in the election of directors.
(7) The term "Entire Board of Directors" shall mean the total
number of directors which the Corporation would have if there were no
vacancies.
(8) The term "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
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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 any 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 Restated
Certificate of Incorporation or the General Corporation Law of Delaware,
the affirmative vote of the holders of not less 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 Restated 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
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(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 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 public stockholders (other than the
Related Person) of the Corporation.
C. A Related Person shall be deemed for purposes of this Article
FOURTEENTH 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(2) of this Article FOURTEENTH). 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 FOURTEENTH, 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) 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 shall be construed to relieve any
Related Person from any fiduciary obligation imposed by law.
D. Notwithstanding any other provision of this Restated
Certificate of Incorporation or the Bylaws 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 FOURTEENTH, or any other amendment of this Restated Certificate
of Incorporation or the Bylaws of the Corporation inconsistent with or
modifying or permitting circumvention of this Article FOURTEENTH, must
first be proposed by the Board of Directors of the Corporation, upon the
affirmative vote of at least two-thirds 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
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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 be deemed to mean the
Entire Board of Directors.
FIFTEENTH: 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 Restated 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 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 FIFTEENTH 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 FIFTEENTH 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.
SIXTEENTH: 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 any actual or threatened action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he 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 General Corporation Law
of Delaware, 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.
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A. Procedure. Any indemnification under this Article SIXTEENTH (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
director, officer, employee or agent is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
the General Corporation Law of Delaware, 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). 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 SIXTEENTH. 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 director, officer, employer, employee or
agent of the Corporation, 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 SIXTEENTH, shall be made
promptly, and in any event within 60 days upon the written request of the
director, officer, employee or agent. The right to indemnification or
advances as granted by this Article SIXTEENTH, shall be enforceable by the
director, officer, employee or agent 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 person'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 SIXTEENTH, where
the required undertaking, if any, has been received by the Corporation)
that the claimant has not met the standard of conduct set forth in the
General Corporation Law of Delaware, 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
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have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in the General
Corporation Law of Delaware, 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 claimant has not met such
applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant 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
SIXTEENTH 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 (common or statutory), bylaw, 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 SIXTEENTH, 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 SIXTEENTH, is in effect. Any repeal or modification of
this Article SIXTEENTH, or any repeal or modification of relevant
provisions of the General Corporation Law of Delaware 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 SIXTEENTH,
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 SIXTEENTH, 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
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would have the power to indemnify him or her against such liability under
the provisions of this Article SIXTEENTH; 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 SIXTEENTH, 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 the first paragraph of this Article SIXTEENTH, as to
all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes, penalties and amounts to be paid in settlement)
actually and reasonably incurred or suffered by such person and for which
indemnification is available to such person pursuant to this
Article SIXTEENTH, to the full extent permitted by any applicable portion
of this Article SIXTEENTH, that shall not have been invalidated and to the
full extent permitted by applicable law.
SEVENTEENTH: In furtherance and not in limitation of the powers
conferred by law or in this Restated 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 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, 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 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.
EIGHTEENTH: The Corporation reserves the right to amend, add, alter,
change, repeal or adopt any provision contained in this Restated
Certificate of Incorporation, 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 Restated 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 75% of the voting
power of all securities of the Corporation entitled to vote generally in
the election of directors shall be required to amend, add, alter, change,
repeal or adopt any provisions inconsistent with Articles FIFTH, SIXTH,
SEVENTH, EIGHTH, NINTH, TENTH, TWELFTH, THIRTEENTH, FIFTEENTH, SIXTEENTH,
SEVENTEENTH and EIGHTEENTH of this Restated Certificate of Incorporation.
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation has
been signed by authorized representatives of the Corporation this 10th day
of February, 1994.
Columbia Healthcare Corporation
By: ____________________________________________
Stephen T. Braun
Senior Vice President,
General Counsel and
Assistant Secretary
ATTEST:
By: ________________________
Joan O. Kroger
Secretary
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Exhibit-3(b).1
The By-laws of the Company as approved by the Board of Directors on
February 10, 1994, are amended by adding a new Section 13 to Article III
thereof:
"Section 13. Mandatory Board Retirement Policy. Effective July 1,
1994, no person shall be nominated to a term of office on the Company's
Board of Directors who has attained the age of 70 or more before the first
day of the proposed term of office; provided, however, the foregoing
policy shall be inapplicable to current directors of the Company aged 70
or more whose current term of office, on February 10, 1994, expires
subsequent to the Company's 1994 Annual Meeting of Stockholders."
EXHIBIT-99(a)
INVESTOR CONTACT: MEDIA CONTACT:
Victor L. Campbell Lindy B. Richardson
615/320-2053 502/572-2153
Lee A. Wood David L. McFadden
502/572-2115 615/320-2056
COLUMBIA AND HCA SHAREHOLDERS APPROVE MERGER
Merger Expected to be Completed Later Today
Louisville, KY and Nashville, TN, February 10, 1994 -- Columbia
Healthcare Corporation (NYSE:COL) and HCA - Hospital Corporation of
America (NYSE:HCA) today jointly announced that earlier today at special
shareholders' meetings their shareholders had each voted to approve their
merger. Under the terms of the merger, which is expected to be completed
later today, shareholders of HCA will receive 1.05 shares of Columbia
Common Stock for each share of HCA common stock held.
A decision on the location for the corporate headquarters has not
been made at this time.
"The merger will strengthen Columbia's position as a leader in cost-
effective healthcare delivery in the local markets in which we operate,"
said Richard L. Scott, President and Chief Executive Officer of Columbia.
"The quality of healthcare providers and facilities in our networks will
allow us to continue our mission of providing quality healthcare, cost
effectively."
"The strategy Columbia developed of building comprehensive networks
complements the quality hospitals HCA has developed over the past 25
years," said Thomas F. Frist, Jr., M.D., Chairman and Chief Executive
Officer of HCA. "I look forward to continuing to build upon the strategy
that has been key to Columbia's success. The opportunities for
Columbia/HCA Healthcare Corporation, as the company will be renamed, are
exciting."
Columbia/HCA Healthcare Corporation will be the largest healthcare
services provider in the world, with over 190 acute-care and specialty
hospitals in 26 states and two foreign countries. With its comprehensive
approach, Columbia/HCA will work effectively to meet the healthcare needs
of its communities.
# # #
EXHIBIT-99(b)
INVESTOR CONTACT: MEDIA CONTACT:
Victor L. Campbell Lindy B. Richardson
615/320-2053 502/572-2153
Lee A. Wood David L. McFadden
502/572-2115 615/320-2056
COLUMBIA/HCA MERGER COMPLETED
ON FEBRUARY 10, 1994
Louisville, KY and Nashville, TN, February 10, 1994 -- Columbia
Healthcare Corporation (NYSE:COL) and HCA - Hospital Corporation of
America (NYSE:HCA) jointly announced completion of their merger. The
common stock of the combined company, which has been renamed Columbia/HCA
Healthcare Corporation, will continue to be traded on the New York Stock
Exchange under the ticker symbol "COL".
The Company has not yet finalized its decision on the location of
the corporate headquarters.
Senior management has been named by Company officials, as follows:
Chairman of the Board . . . . . . . . . . Thomas F. Frist, Jr., M.D.
President and CEO . . . . . . . . . . . . Richard L. Scott
Chief Operating Officer . . . . . . . . . David T. Vandewater
Senior Vice President and CFO . . . . . . David C. Colby
Senior Vice President and
General Counsel. . . . . . . . . .. . . Stephen T. Braun
The Company also announced that the Board of Directors voted to
change the timing of future dividend declaration and payment dates,
postponing them one month to correspond with quarterly earnings
announcements, effective with the first quarterly dividend declared in
1994. The Board of Directors today declared a quarterly dividend of $0.03
per common share payable on June 1, 1994 to shareholders of record on May
2.
Under terms of the merger, shareholders of HCA will receive 1.05
shares of Columbia/HCA common stock for each HCA share held. First Union
National Bank of North Carolina has been selected as the transfer agent
for Columbia/HCA. First Union expects to promptly send to HCA
shareholders the documents required for exchanging their HCA stock
certificates for Columbia/HCA certificates.
Columbia/HCA Healthcare Corporation is the largest healthcare
services provider in the world, with over 190 acute-care and specialty
hospitals in 26 states and two foreign countries. With its comprehensive
approach, Columbia/HCA will work effectively to meet the healthcare needs
of its communities.
# # #
