Attached files
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S-1/A - FORM S-1/A - R1 RCM INC. | c53658a4sv1za.htm |
EX-3.4 - EX-3.4 - R1 RCM INC. | c53658a4exv3w4.htm |
EX-4.1 - EX-4.1 - R1 RCM INC. | c53658a4exv4w1.htm |
EX-10.3 - EX-10.3 - R1 RCM INC. | c53658a4exv10w3.htm |
EX-21.1 - EX-21.1 - R1 RCM INC. | c53658a4exv21w1.htm |
EX-23.1 - EX-23.1 - R1 RCM INC. | c53658a4exv23w1.htm |
EX-10.1 - EX-10.1 - R1 RCM INC. | c53658a4exv10w1.htm |
EX-10.8 - EX-10.8 - R1 RCM INC. | c53658a4exv10w8.htm |
EX-10.21 - EX-10.21 - R1 RCM INC. | c53658a4exv10w21.htm |
EX-10.25 - EX-10.25 - R1 RCM INC. | c53658a4exv10w25.htm |
EX-10.23 - EX-10.23 - R1 RCM INC. | c53658a4exv10w23.htm |
EX-10.22 - EX-10.22 - R1 RCM INC. | c53658a4exv10w22.htm |
EX-10.24 - EX-10.24 - R1 RCM INC. | c53658a4exv10w24.htm |
Exhibit 3.2
RESTATED CERTIFICATE OF INCORPORATION
OF
ACCRETIVE HEALTH, INC.
(originally incorporated on July 2, 2003 under the name Healthcare Services, Inc.)
FIRST: The name of the Corporation is Accretive Health, Inc.
SECOND: The address of the Corporations registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at that address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted by the Corporation
is to engage in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock that the Corporation shall have
authority to issue is 505,000,000 shares, consisting of (i) 500,000,000 shares of Common Stock,
$0.01 par value per share (Common Stock), and (ii) 5,000,000 shares of Preferred Stock, $0.01 par
value per share (Preferred Stock).
The following is a statement of the designations and the powers, privileges and rights, and
the qualifications, limitations or restrictions thereof in respect of each class of capital stock
of the Corporation.
A. COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the holders of the Common
Stock are subject to and qualified by the rights of the holders of the Preferred Stock of any
series as may be designated by the Board of Directors upon any issuance of the Preferred Stock of
any series.
2. Voting. The holders of the Common Stock shall have voting rights at all meetings
of stockholders, each such holder being entitled to one vote for each share thereof held by such
holder; provided, however, that, except as otherwise required by law, holders of
Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation
(which, as used herein, shall mean the certificate of incorporation of the Corporation, as amended
from time to time, including the terms of any certificate of designations of any series of
Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred
Stock if the holders of such affected series are entitled, either separately or together as a class
with the holders of one or more other such series, to vote thereon pursuant to this Certificate of
Incorporation. There shall be no cumulative voting.
The number of authorized shares of Common Stock may be increased or decreased (but not below
the number of shares thereof then outstanding) by the affirmative vote of the holders
of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions
of Section 242(b)(2) of the General Corporation Law of the State of Delaware.
3. Dividends. Subject to any preferential dividend or other rights of any then
outstanding Preferred Stock, the holders of shares of Common Stock shall be entitled to receive
dividends and other distributions (payable in cash, property or capital stock of the Corporation)
when, as and if declared thereon by the Board of Directors from time to time out of any assets or
funds of the Corporation legally available therefor and shall share equally on a per share basis in
such dividends and distributions.
4. Liquidation. Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, after payment or provision for payment of the debts and other
liabilities of the Corporation and subject to any preferential or other rights of any then
outstanding Preferred Stock, holders of Common Stock shall be entitled to receive all the remaining
assets of the Corporation available for distribution to its stockholders, ratably in proportion to
the number of shares of Common Stock held by them.
B. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series, each of such series to
have such terms as stated or expressed herein and in the resolution or resolutions providing for
the issue of such series adopted by the Board of Directors of the Corporation as hereinafter
provided. Any shares of Preferred Stock that may be redeemed, purchased or acquired by the
Corporation may be reissued except as otherwise provided by law.
Authority is hereby expressly granted to the Board of Directors from time to time to issue the
Preferred Stock in one or more series, and in connection with the creation of any such series, by
adopting a resolution or resolutions providing for the issuance of the shares thereof and by filing
a certificate of designations relating thereto in accordance with the General Corporation Law of
the State of Delaware, to determine and fix the number of shares of such series and such voting
powers, full or limited, or no voting powers, and such designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations or restrictions
thereof, including dividend rights, conversion rights, redemption privileges and liquidation
preferences, as shall be stated and expressed in such resolutions, all to the full extent now or
hereafter permitted by the General Corporation Law of the State of Delaware. Without limiting the
generality of the foregoing, the resolutions providing for issuance of any series of Preferred
Stock may provide that such series shall be superior or rank equally or be junior to any other
series of Preferred Stock to the extent permitted by law.
The number of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares then outstanding) by the affirmative vote of the holders of a majority
of the voting power of the capital stock of the Corporation entitled to vote thereon, voting as a
single class, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of
the State of Delaware.
FIFTH: Except as otherwise provided herein, the Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate of Incorporation, in the
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manner now or hereafter prescribed by statute and this Certificate of Incorporation, and
except as set forth in Article EIGHTH, all rights conferred upon stockholders, directors or any
other persons by and pursuant to this Certificate of Incorporation are granted subject to this
reservation.
SIXTH: In furtherance and not in limitation of the powers conferred upon it by the General
Corporation Law of the State of Delaware, and subject to the terms of any series of Preferred
Stock, the Board of Directors shall have the power to adopt, amend, alter or repeal the Bylaws of
the Corporation by the affirmative vote of a majority of the directors present at any regular or
special meeting of the Board of Directors at which a quorum is present. The stockholders may not
adopt, amend, alter or repeal the Bylaws of the Corporation, or adopt any provision inconsistent
therewith, unless such action is approved, in addition to any other vote required by this
Certificate of Incorporation, by the affirmative vote of the holders of at least two-thirds of the
votes that all the stockholders would be entitled to cast in an election of directors or class of
directors. Notwithstanding any other provision of law, this Certificate of Incorporation or the
Bylaws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least two-thirds of the votes that all the
stockholders would be entitled to cast in an election of directors or class of directors shall be
required to amend, alter or repeal, or to adopt any provision inconsistent with, this Article
SIXTH.
SEVENTH: Except to the extent that the General Corporation Law of the State of Delaware, as
the same exists or hereafter may be amended, prohibits the elimination or limitation of liability
of directors for breaches of fiduciary duty, no person who is or was a director of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary damages for any
breach of fiduciary duty as a director, notwithstanding any provision of law imposing such
liability. No amendment to or repeal of this provision by the stockholders of the Corporation or
by changes in law, or the adoption of any other provision of this Certificate of Incorporation
inconsistent with this Article Seventh, unless otherwise required by law, shall apply to or have
any effect on the liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such amendment, repeal or
adoption of such inconsistent provision, provided, however, that if the General
Corporation Law of the State of Delaware is 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 the State
of Delaware as so amended.
EIGHTH: The Corporation shall provide indemnification as follows:
1. Actions, Suits and Proceedings Other than by or in the Right of the Corporation.
The Corporation shall indemnify each person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a
director, officer, partner, employee or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (including any employee benefit
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plan) (all such persons being referred to hereafter as an Indemnitee), or by reason of any
action alleged to have been taken or omitted in such capacity, against all expenses (including
attorneys fees), liabilities, losses, judgments, fines, excise taxes and penalties arising under
the Employee Retirement Income Security Act of 1974, and amounts paid in settlement actually and
reasonably incurred by or on behalf of Indemnitee in connection with such action, suit or
proceeding and any appeal therefrom, if Indemnitee acted in good faith and in a manner that
Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner that
Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
2. Actions or Suits by or in the Right of the Corporation. The Corporation shall
indemnify any Indemnitee who was or is a party to or threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, a
director or officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer, partner, employee or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action alleged to have been taken or
omitted in such capacity, against all expenses (including attorneys fees) and, to the extent
permitted by law, amounts paid in settlement actually and reasonably incurred by or on behalf of
Indemnitee in connection with such action, suit or proceeding and any appeal therefrom, if
Indemnitee acted in good faith and in a manner that Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Corporation, except that no indemnification shall be made
under this Section 2 in respect of any claim, issue or matter as to which Indemnitee shall have
been adjudged to be liable to the Corporation, unless, and only to the extent, that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses (including
attorneys fees) that the Court of Chancery of Delaware or such other court shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding any other
provisions of this Article EIGHTH, to the extent that an Indemnitee has been successful, on the
merits or otherwise, in defense of any action, suit or proceeding referred to in Sections 1 and 2
of this Article EIGHTH, or in defense of any claim, issue or matter therein, or on appeal from any
such action, suit or proceeding, Indemnitee shall be indemnified against all expenses (including
attorneys fees) actually and reasonably incurred by or on behalf of Indemnitee in connection
therewith. Without limiting the foregoing, Indemnitee shall be considered for the purposes hereof
to have been wholly successful with respect to any action, suit or proceeding, or in defense of any
claim, issue or matter therein or any appeal therefrom, that is disposed of, on the merits or
otherwise (including a disposition without prejudice), without (i) the disposition being adverse to
Indemnitee, (ii) an adjudication that Indemnitee was liable to the Corporation, (iii) a
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plea of guilty or nolo contendere by Indemnitee, (iv) an adjudication that Indemnitee did not
act in good faith and in a manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and (v) with respect to any criminal proceeding, an adjudication that
Indemnitee had reasonable cause to believe his or her conduct was unlawful.
4. Notification and Defense of Claim. As a condition precedent to an Indemnitees
right to be indemnified, such Indemnitee must notify the Corporation in writing as soon as
practicable of any action, suit, proceeding or investigation involving such Indemnitee for which
indemnity will or could be sought. With respect to any action, suit, proceeding or investigation
of which the Corporation is so notified, the Corporation will be entitled to participate therein at
its own expense and/or to assume the defense thereof at its own expense, with legal counsel
reasonably acceptable to Indemnitee. After notice from the Corporation to Indemnitee of its
election so to assume such defense, the Corporation shall not be liable to Indemnitee for any legal
or other expenses subsequently incurred by Indemnitee in connection with such action, suit,
proceeding or investigation, other than as provided below in this Section 4. Indemnitee shall have
the right to employ his or her own counsel in connection with such action, suit, proceeding or
investigation, but the fees and expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) the
employment of counsel by Indemnitee has been authorized by the Corporation, (ii) counsel to
Indemnitee shall have reasonably concluded that there may be a conflict of interest or position on
any significant issue between the Corporation and Indemnitee in the conduct of the defense of such
action, suit, proceeding or investigation or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, suit, proceeding or investigation, in each of which
cases the fees and expenses of counsel for Indemnitee shall be at the expense of the Corporation,
except as otherwise expressly provided by this Article EIGHTH. The Corporation shall not be
entitled, without the consent of Indemnitee, to assume the defense of any claim brought by or in
the right of the Corporation or as to which counsel for Indemnitee shall have reasonably made the
conclusion provided for in clause (ii) above. The Corporation shall not be required to indemnify
Indemnitee under this Article EIGHTH for any amounts paid in settlement of any action, suit,
proceeding or investigation effected without its written consent. The Corporation shall not settle
any action, suit, proceeding or investigation in any manner that would impose any penalty or
limitation on Indemnitee without Indemnitees written consent. Neither the Corporation nor
Indemnitee will unreasonably withhold or delay its consent to any proposed settlement.
5. Advancement of Expenses. Subject to the provisions of Section 6 of this Article
EIGHTH, in the event of any threatened or pending action, suit, proceeding or investigation of
which the Corporation receives notice under this Article EIGHTH, any expenses (including attorneys
fees) incurred by or on behalf of Indemnitee in defending an action, suit, proceeding or
investigation or any appeal therefrom shall be paid by the Corporation in advance of the final
disposition of such matter; provided, however, that the payment of such expenses incurred
by or on behalf of Indemnitee in advance of the final disposition of such matter shall be made only
upon receipt of an undertaking by or on behalf of Indemnitee to repay all amounts so advanced in
the event that it shall ultimately be determined by final judicial decision from which there is no
further right to appeal that Indemnitee is not entitled to be indemnified by the Corporation as
authorized in this Article EIGHTH; and provided further that no such advancement of
expenses
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shall be made under this Article EIGHTH if it is determined (in the manner described in
Section 6) that (i) Indemnitee did not act in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the Corporation, or (ii) with respect
to any criminal action or proceeding, Indemnitee had reasonable cause to believe his or her conduct
was unlawful. Such undertaking shall be accepted without reference to the financial ability of
Indemnitee to make such repayment.
6. Procedure for Indemnification and Advancement of Expenses. In order to obtain
indemnification or advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article EIGHTH,
an Indemnitee shall submit to the Corporation a written request. Any such indemnification and
advancement of expenses shall be made promptly, and in any event within 60 days after receipt by
the Corporation of the written request of Indemnitee, except in the case of a claim for an
advancement of expenses, the applicable period shall be 30 days, unless (i) the Corporation has
assumed the defense pursuant to Section 4 of this Article EIGHTH (and none of the circumstances
described in Section 4 of this Article EIGHTH that would nonetheless entitle the Indemnitee to
indemnification for the fees and expenses of separate counsel have occurred) or (ii) the
Corporation determines within such applicable period that Indemnitee did not meet the applicable
standard of conduct set forth in Section 1, 2 or 5 of this Article EIGHTH, as the case may be. Any
such indemnification, unless ordered by a court, shall be made with respect to requests under
Section 1 or 2 only as authorized in the specific case upon a determination by the Corporation that
the indemnification of Indemnitee is proper because Indemnitee has met the applicable standard of
conduct set forth in Section 1 or 2, as the case may be. Such determination shall be made in each
instance (a) by a majority vote of the directors of the Corporation consisting of persons who are
not at that time parties to the action, suit or proceeding in question (disinterested directors),
whether or not a quorum, (b) by a committee of disinterested directors designated by majority vote
of disinterested directors, whether or not a quorum, (c) if there are no disinterested directors,
or if the disinterested directors so direct, by independent legal counsel (who may, to the extent
permitted by law, be regular legal counsel to the Corporation) in a written opinion, or (d) by the
stockholders of the Corporation.
7. Remedies. The right to indemnification or advancement of expenses as granted by
this Article EIGHTH shall be enforceable by Indemnitee in any court of competent jurisdiction.
Neither the failure of the Corporation to have made a determination prior to the commencement of
such action that indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Corporation pursuant to Section
6 of this Article EIGHTH that Indemnitee has not met such applicable standard of conduct, shall be
a defense to the action or create a presumption that Indemnitee has not met the applicable standard
of conduct. In any suit brought by Indemnitee to enforce a right to indemnification, or brought by
the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall have the burden of proving that Indemnitee is not entitled to be indemnified, or
to such advancement of expenses, under this Article EIGHTH. Indemnitees expenses (including
attorneys fees) reasonably incurred in connection with successfully establishing Indemnitees
right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by
the Corporation. Notwithstanding the foregoing, in any suit brought by Indemnitee to enforce a
right to
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indemnification hereunder it shall be a defense that the Indemnitee has not met any applicable
standard for indemnification set forth in the General Corporation Law of the State of Delaware.
8. Limitations. Notwithstanding anything to the contrary in this Article EIGHTH,
except as set forth in Section 7 of this Article EIGHTH, the Corporation shall not indemnify an
Indemnitee pursuant to this Article EIGHTH in connection with a proceeding (or part thereof)
initiated by such Indemnitee unless the initiation thereof was approved by the Board of Directors
of the Corporation. Notwithstanding anything to the contrary in this Article EIGHTH, the
Corporation shall not indemnify an Indemnitee to the extent such Indemnitee is reimbursed from the
proceeds of insurance, and in the event the Corporation makes any indemnification payments to an
Indemnitee and such Indemnitee is subsequently reimbursed from the proceeds of insurance, such
Indemnitee shall promptly refund indemnification payments to the Corporation to the extent of such
insurance reimbursement.
9. Subsequent Amendment. No amendment, termination or repeal of this Article EIGHTH
or of the relevant provisions of the General Corporation Law of the State of Delaware or any other
applicable laws, or the adoption of any other provision of this Certificate of Incorporation
inconsistent with this Article EIGHTH, shall adversely affect or diminish in any way the rights of
any Indemnitee to indemnification under the provisions hereof with respect to any action, suit,
proceeding or investigation arising out of or relating to any actions, transactions or facts
occurring prior to the final adoption of such amendment, termination or repeal (except to the
extent such amendment, termination or repeal permits the Corporation to provide broader
indemnification rights on a retroactive basis than permitted prior thereto).
10. Other Rights. The indemnification and advancement of expenses provided by this
Article EIGHTH shall not be deemed exclusive of any other rights to which an Indemnitee seeking
indemnification or advancement of expenses may be entitled under any law (common or statutory),
this Certificate of Incorporation, the Bylaws of the Corporation, an agreement or vote of
stockholders or disinterested directors or otherwise, both as to action in Indemnitees official
capacity and as to action in any other capacity while holding office for the Corporation, and shall
continue as to an Indemnitee who has ceased to be a director or officer, and shall inure to the
benefit of the estate, heirs, executors and administrators of Indemnitee. Nothing contained in
this Article EIGHTH shall be deemed to prohibit, and the Corporation is specifically authorized to
enter into, agreements with officers and directors providing indemnification rights and procedures
different from those set forth in this Article EIGHTH. In addition, the Corporation may, to the
extent authorized from time to time by its Board of Directors, grant indemnification rights to
other employees or agents of the Corporation or other persons serving the Corporation and such
rights may be equivalent to, or greater or less than, those set forth in this Article EIGHTH.
11. Partial Indemnification. If an Indemnitee is entitled under any provision of this
Article EIGHTH to indemnification by the Corporation for some or a portion of the expenses
(including attorneys fees), liabilities, losses, judgments, fines (including excise taxes and
penalties arising under the Employee Retirement Income Security Act of 1974) or amounts paid in
settlement actually and reasonably incurred by or on behalf of Indemnitee in connection with any
action, suit, proceeding or investigation and any appeal therefrom but not, however, for the total
amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion of
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such expenses (including attorneys fees), liabilities, losses, judgments, fines (including
excise taxes and penalties arising under the Employee Retirement Income Security Act of 1974) or
amounts paid in settlement to which Indemnitee is entitled.
12. Insurance. The Corporation may purchase and maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise (including any employee benefit
plan) against any expense, liability or loss incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the General Corporation Law of
the State of Delaware.
13. Savings Clause. If this Article EIGHTH or any portion hereof shall be held
invalid, illegal or unenforceable on any ground whatsoever by any court of competent jurisdiction,
(a) the validity, legality and enforceability of the remaining provisions of this Article EIGHTH
shall not in any way be effected or impaired thereby; and (b) the Corporation shall nevertheless
indemnify each Indemnitee as to any expenses (including attorneys fees), liabilities, losses,
judgments, fines (including excise taxes and penalties arising under the Employee Retirement Income
Security Act of 1974) and amounts paid in settlement in connection with any action, suit,
proceeding or investigation, whether civil, criminal or administrative, including an action by or
in the right of the Corporation, to the fullest extent permitted by any applicable portion of this
Article EIGHTH that shall not have been invalidated and to the fullest extent permitted by
applicable law, provided further, that to the fullest extent possible, the provisions of this
Article EIGHTH (including, without limitation, each such portion of this Article EIGHTH containing
any such provisions held to be invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or unenforceable.
14. Definitions. Terms used herein and defined in Section 145(h) and Section 145(i)
of the General Corporation Law of the State of Delaware shall have the respective meanings assigned
to such terms in such Section 145(h) and Section 145(i).
NINTH: This Article NINTH is inserted for the management of the business and for the conduct
of the affairs of the Corporation.
1. General Powers. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
2. Number of Directors; Election of Directors. Subject to the rights of holders of
any series of Preferred Stock to elect directors, the number of directors of the Corporation shall
be established by the Board of Directors. Election of directors need not be by written ballot,
except as and to the extent provided in the Bylaws of the Corporation.
3. Classes of Directors. Subject to the rights of holders of any series of Preferred
Stock to elect directors, the Board of Directors shall be and is divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire Board of Directors.
The
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Board of Directors is authorized to assign members of the Board of Directors already in office
to Class I, Class II or Class III at the time such classification becomes effective.
4. Terms of Office. Subject to the rights of holders of any series of Preferred Stock
to elect directors, each director shall serve for a term ending on the date of the third annual
meeting of stockholders following the annual meeting of stockholders at which such director was
elected; provided that each director initially assigned to Class I shall serve for a term
expiring at the Corporations first annual meeting of stockholders held after the effectiveness of
this Restated Certificate of Incorporation; each director initially assigned to Class II shall
serve for a term expiring at the Corporations second annual meeting of stockholders held after the
effectiveness of this Restated Certificate of Incorporation; and each director initially assigned
to Class III shall serve for a term expiring at the Corporations third annual meeting of
stockholders held after the effectiveness of this Restated Certificate of Incorporation;
provided further, that the term of each director shall continue until the election
and qualification of his or her successor and be subject to his or her earlier death, resignation
or removal.
5. Quorum. The greater of (a) a majority of the directors at any time in office and
(b) one-third of the number of directors fixed pursuant to Section 2 of this Article NINTH shall
constitute a quorum of the Board of Directors. If at any meeting of the Board of Directors there
shall be less than such a quorum, a majority of the directors present may adjourn the meeting from
time to time without further notice other than announcement at the meeting, until a quorum shall be
present.
6. Action at Meeting. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be regarded as the act
of the Board of Directors unless a greater number is required by law or by this Certificate of
Incorporation.
7. Removal. Subject to the rights of holders of any series of Preferred Stock,
directors of the Corporation may be removed only for cause and only by the affirmative vote of the
holders of at least two-thirds of the votes that all the stockholders would be entitled to cast in
an election of directors or class of directors.
8. Vacancies. Subject to the rights of holders of any series of Preferred Stock, any
vacancies or newly-created directorships in the Board of Directors, however occurring, shall be
filled only by vote of a majority of the directors then in office, although less than a quorum, or
by a sole remaining director and shall not be filled by the stockholders. A director elected to
fill a vacancy or to fill a position resulting from a newly-created directorship shall hold office
until the next election of the class for which such director shall have been chosen, subject to the
election and qualification of a successor and to such directors earlier death, resignation or
removal.
9. Stockholder Nominations and Introduction of Business, Etc. Advance notice of
stockholder nominations for election of directors and other business to be brought by stockholders
before a meeting of stockholders shall be given in the manner provided by the Bylaws of the
Corporation.
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10. Amendments to Article. Notwithstanding any other provision of law, this
Certificate of Incorporation or the Bylaws of the Corporation, and notwithstanding the fact that a
lesser percentage may be specified by law, the affirmative vote of the holders of at least
two-thirds of the votes that all the stockholders would be entitled to cast in an election of
directors or class of directors shall be required to amend or repeal, or to adopt any provision
inconsistent with, this Article NINTH.
TENTH: Stockholders of the Corporation may not take any action by written consent in lieu of a
meeting. Notwithstanding any other provision of law, this Certificate of Incorporation or the
Bylaws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least two-thirds of the votes that all the
stockholders would be entitled to cast in an election of directors or class of directors shall be
required to amend or repeal, or to adopt any provision inconsistent with, this Article TENTH.
ELEVENTH: Special meetings of stockholders for any purpose or purposes may be called at any
time by the Board of Directors, the Chairman of the Board or the Chief Executive Officer, but such
special meetings may not be called by any other person or persons. Business transacted at any
special meeting of stockholders shall be limited to matters relating to the purpose or purposes
stated in the notice of meeting. Notwithstanding any other provision of law, this Certificate of
Incorporation or the Bylaws of the Corporation, and notwithstanding the fact that a lesser
percentage may be specified by law, the affirmative vote of the holders of at least two-thirds of
the votes that all the stockholders would be entitled to cast in an election of directors or class
of directors shall be required to amend or repeal, or to adopt any provision inconsistent with,
this Article ELEVENTH.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which restates, integrates and
amends the certificate of incorporation of the Corporation, and which has been duly adopted in
accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware,
has been executed by its duly authorized officer this ___day of May, 2010.
ACCRETIVE HEALTH, INC. |
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By: | ||||
Mary A. Tolan | ||||
President and Chief Executive Officer | ||||
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