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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
Pursuant to Sections 242 and 245 of the
Delaware General Corporation Law
AMERIGROUP Corporation (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware (the "GCL"),
does hereby certify as follows:
(1) The name of the Corporation is AMERIGROUP Corporation. The
Corporation was originally incorporated under the name AMERICAID Community Care,
Inc. The original certificate of incorporation of the Corporation was filed with
the office of the Secretary of State of the State of Delaware on December 9,
1994.
(2) This Amended and Restated Certificate of Incorporation was duly
adopted by and in accordance with the provisions of Sections 228, 242 and 245 of
the GCL.
(3) This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the certificate of incorporation of the
Corporation, as heretofore amended or supplemented.
(4) The text of the Certificate of Incorporation is amended and
restated in its entirety as follows:
FIRST: The name of the Corporation is AMERIGROUP Corporation
(the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, New Castle County, Delaware 19801. The name
of its registered agent at that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware (the "GCL").
FOURTH: (a) Authorized Capital Stock. The total number of
shares of stock which the Corporation shall have authority to issue is
110,000,000 shares of capital stock, consisting of (i) 100,000,000 shares of
common stock, par value $0.01 per share (the "Common Stock") and (ii) 10,000,000
shares of preferred stock, par value $0.01 per share (the "Preferred Stock").
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(b) Common Stock. The powers, preferences and rights, and the
qualifications, limitations and restrictions, of each class of the Common Stock
are as follows:
(1) No Cumulative Voting. The holders of shares of
Common Stock shall not have cumulative voting rights.
(2) Dividends; Stock Splits. Subject to the rights of
the holders of Preferred Stock, and subject to any other provisions of this
Amended and Restated Certificate of Incorporation, as it may be amended from
time to time, holders of shares of Common Stock shall be entitled to receive
such dividends and other distributions in cash, stock or property of the
Corporation when, as and if declared thereon by the Board of Directors from time
to time out of assets or funds of the Corporation legally available therefor.
(3) Liquidation, Dissolution, etc. In the event of
any liquidation, dissolution or winding up (either voluntary or involuntary) of
the Corporation, the holders of shares of Common Stock shall be entitled to
receive the assets and funds of the Corporation available for distribution after
payments to creditors and to the holders of any Preferred Stock of the
Corporation that may at the time be outstanding, in proportion to the number of
shares held by them, respectively.
(4) Merger, etc. In the event of a merger or
consolidation of the Corporation with or into another entity (whether or not the
Corporation is the surviving entity), the holders of each share of Common Stock
shall be entitled to receive the same per share consideration on a per share
basis.
(5) No Preemptive or Subscription Rights. No holder
of shares of Common Stock shall be entitled to preemptive or subscription
rights.
(c) Preferred Stock. The Board of Directors is hereby
expressly authorized to provide for the issuance of all or any shares of the
Preferred Stock in one or more classes or series, and to fix for each such class
or series such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or other special
rights and such qualifications, limitations or restrictions thereof, as shall be
stated and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issuance of such class or series, including, without
limitation, the authority to provide that any such class or series may be (i)
subject to redemption at such time or times and at such price or prices; (ii)
entitled to receive dividends (which may be cumulative or non-cumulative) at
such rates, on such conditions, and at such times, and payable in preference to,
or in such relation to, the dividends payable on any other class or classes or
any other series; (iii) entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the Corporation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, of the Corporation at
such price or prices or at such rates of exchange and with such adjustments; all
as may be stated in such resolution or resolutions.
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(d) Power to Sell and Purchase Shares. Subject to the
requirements of applicable law, the Corporation shall have the power to issue
and sell all or any part of any shares of any class of stock herein or hereafter
authorized to such persons, and for such consideration, as the Board of
Directors shall from time to time, in its discretion, determine, whether or not
greater consideration could be received upon the issue or sale of the same
number of shares of another class, and as otherwise permitted by law. Subject to
the requirements of applicable law, the Corporation shall have the power to
purchase any shares of any class of stock herein or hereafter authorized from
such persons, and for such consideration, as the Board of Directors shall from
time to time, in its discretion, determine, whether or not less consideration
could be paid upon the purchase of the same number of shares of another class,
and as otherwise permitted by law.
FIFTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the Corporation,
and for further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(a) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
(b) The number of directors of the Corporation shall be as
from time to time fixed by the Board of Directors, and such number shall never
be less than three nor more than thirteen. Election of directors need not be by
written ballot unless the By-Laws so provide.
(c) The directors shall be 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 initial division of the Board of Directors
into classes shall be made by the decision of the affirmative vote of a majority
of the entire Board of Directors. The term of the initial Class I directors
shall terminate on the date of the 2001 annual meeting; the term of the initial
Class II directors shall terminate on the date of the 2002 annual meeting; and
the term of the initial Class III directors shall terminate on the date of the
2003 annual meeting. At each succeeding annual meeting of stockholders beginning
in 2001, successors to the class of directors whose term expires at that annual
meeting shall be elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal as possible,
and any additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director.
(d) A director shall hold office until the annual meeting for
the year in which his or her term expires and until his or her successor shall
be elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office.
(e) Subject to the terms of any one or more classes or series
of Preferred
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Stock, any vacancy on the Board of Directors that results from an increase in
the number of directors may be filled by a majority of the Board of Directors
then in office, provided that a quorum is present, and any other vacancy
occurring on the Board of Directors may be filled by a majority of the Board of
Directors then in office, even if less than a quorum, or by a sole remaining
director. Any director of any class elected to fill a vacancy resulting from an
increase in the number of directors of such class shall hold office for a term
that shall coincide with the remaining term of that class. Any director elected
to fill a vacancy not resulting from an increase in the number of directors
shall have the same remaining term as that of his predecessor. Subject to the
rights, if any, of the holders of shares of Preferred Stock then outstanding,
any or all of the directors of the Corporation may be removed from office at any
time, with or without cause, by the affirmative vote of the holders of at least
a majority of the voting power of the Corporation's then outstanding capital
stock entitled to vote generally in the election of directors. Notwithstanding
the foregoing, whenever the holders of any one or more classes or series of
Preferred Stock issued by the Corporation shall have the right, voting
separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of this
Amended and Restated Certificate of Incorporation applicable thereto, and such
directors so elected shall not be divided into classes pursuant to this Article
FIFTH unless expressly provided by such terms.
(f) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of the GCL,
this Amended and Restated Certificate of Incorporation, and any By-Laws adopted
by the stockholders; provided, however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors which would have
been valid if such By-Laws had not been adopted.
SIXTH: No director shall be personally liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent such exemption from liability
or limitation thereof is not permitted under the GCL as the same exists or may
hereafter be amended. If the GCL is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
authorized by the GCL, as so amended. Any repeal or modification of this Article
SIXTH by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification with respect to acts or omissions occurring prior to
such repeal or modification.
SEVENTH: The Corporation shall indemnify its directors and
officers to the fullest extent authorized or permitted by law, as now or
hereafter in effect, and such right to indemnification shall continue as to a
person who has ceased to be a director or officer of the Corporation and shall
inure to the benefit of his or her heirs, executors and personal and legal
representatives; provided, however, that, except for proceedings to enforce
rights to indemnification, the Corporation shall not be obligated to indemnify
any director or officer (or
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his or her heirs, executors or personal or legal representatives) in connection
with a proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized or consented to by the Board of
Directors. The right to indemnification conferred by this Article SEVENTH shall
include the right to be paid by the Corporation the expenses incurred in
defending or otherwise participating in any proceeding in advance of its final
disposition.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation similar to
those conferred in this Article SEVENTH to directors and officers of the
Corporation.
The rights to indemnification and to the advance of expenses
conferred in this Article SEVENTH shall not be exclusive of any other right
which any person may have or hereafter acquire under this Amended and Restated
Certificate of Incorporation, the By-Laws of the Corporation, any statute,
agreement, vote of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article SEVENTH by the
stockholders of the Corporation shall not adversely affect any rights to
indemnification and to the advancement of expenses of a director or officer of
the Corporation existing at the time of such repeal or modification with respect
to any acts or omissions occurring prior to such repeal or modification.
EIGHTH: (a) In addition to any affirmative vote required by
law or this Amended and Restated Certificate of Incorporation or the By-Laws of
the Corporation, and except as otherwise expressly provided in Section (b) of
this Article EIGHTH, a Business Combination (as hereinafter defined) shall
require the affirmative vote of not less than eighty percent (80%) of the votes
entitled to be cast by the holders of all the then outstanding shares of Voting
Stock (as hereinafter defined), voting together as a single-class, excluding
Voting Stock beneficially owned by any Interested Stockholder (as hereinafter
defined). Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage or separate class vote may
be specified, by law or in any agreement with any national securities exchange
or otherwise.
(b) The provisions of Section (a) of this Article EIGHTH shall
not be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote, if any, as is required by
law or by any other provision of this Amended and Restated Certificate of
Incorporation or the By-Laws of the Corporation, or any agreement with any
national securities exchange, if all of the conditions specified in either of
the following Paragraphs (1) or (2) are met or, in the case of a Business
Combination not involving the payment of consideration to the holders of the
Corporation's outstanding Capital Stock (as hereinafter defined), if the
condition specified in the following Paragraph (1) is met:
(1) The Business Combination shall have been approved
by a
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majority (whether such approval is made prior to or subsequent to the
acquisition of beneficial ownership of the Voting Stock that caused the
Interested Stockholder to become an Interested Stockholder) of the Continuing
Directors (as hereinafter defined).
(2) All of the following conditions shall have been
met:
(A) The aggregate amount of cash and the Fair Market
Value (as hereinafter defined), as of the date of the consummation of the
Business Combinations, of consideration other than cash to be received per share
by holders of Common Stock in such Business Combination shall be at least equal
to the highest amount determined under clauses (i), (ii), (iii) and (iv) below:
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested Stockholder for any share
of Common Stock in connection with the acquisition by the Interested Stockholder
of beneficial ownership of shares of Common Stock (x) within the two-year period
immediately prior to the first public announcement of the proposed Business
Combination (the "Announcement Date") or (y) in the transaction in which it
became an Interested Stockholder, whichever is higher, in either case as
adjusted for any subsequent stock split, stock dividend, subdivision or
reclassification with respect to Common Stock;
(ii) the Fair Market Value per share of
Common Stock on the Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (the "Determination Date"),
whichever is higher, as adjusted for any subsequent stock split, stock dividend,
subdivision or reclassification with respect to Common Stock;
(iii) (if applicable) the price per share
equal to the Fair Market Value per share of Common Stock determined pursuant to
the immediately preceding clause (ii), multiplied by the ratio of (x) the
highest per share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the Interested Stockholder for
any share of Common Stock in connection with the acquisition by the Interested
Stockholder of beneficial ownership of shares of Common Stock within the
two-year period immediately prior to the Announcement Date, as adjusted for any
subsequent stock split, stock dividend, subdivision or reclassification with
respect to Common Stock to (y) the Fair Market Value per share of Common Stock
on the first day in such two-year period on which the Interested Stockholder
acquired beneficial ownership of any share of Common Stock, as adjusted for any
subsequent stock split, stock dividend, subdivision or reclassification with
respect to Common Stock; and
(iv) the Corporation's net income per share
of Common Stock for the four full consecutive fiscal quarters immediately
preceding the Announcement Date, multiplied by the higher of the then
price/earnings multiple (if any) of such Interested Stockholder or the highest
price/earnings multiple of the Corporation within the two-year period
immediately preceding the Announcement Date (such price/earnings multiples being
determined as customarily computed and reported in the financial community).
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(B) The aggregate amount of cash and the Fair Market
Value, as of the date of the consummation of the Business Combination, of
consideration other than cash to be received per share by holders of shares of
any class or series of outstanding Capital Stock, other than Common Stock, shall
be at least equal to the highest amount determined under clauses (i), (ii),
(iii) and (iv) below:
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested Stockholder for any share
of such class or series of Capital Stock in connection with the acquisition by
the Interested Stockholder of beneficial ownership of shares of such class or
series of Capital Stock (x) within the two-year period immediately prior to the
Announcement Date or (y) in the transaction in which it became an Interested
Stockholder, whichever is higher, in either case as adjusted for any subsequent
stock split, stock dividend, subdivision or reclassification with respect to
such class or series of Capital Stock;
(ii) the Fair Market Value per share of such
class or series of Capital Stock on the Announcement Date or on the
Determination Date, whichever is higher, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with respect to such
class or series of Capital Stock;
(iii) (if applicable) the price per share
equal to the Fair Market Value per share of such class or series of Capital
Stock determined pursuant to the immediately preceding clause (ii), multiplied
by the ratio of (x) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by or on behalf
of the Interested Stockholder for any share of such class or series of Capital
Stock in connection with the acquisition by the Interested Stockholder of
beneficial ownership of shares of such class or series of Capital Stock within
the two-year period immediately prior to the Announcement Date, as adjusted for
any subsequent stock split, stock dividend, subdivision or reclassification with
respect to such class or series of Capital Stock to (y) the Fair Market Value
per share of such class or series of Capital Stock on the first day in such
two-year period on which the Interested Stockholder acquired beneficial
ownership of any share of such class or series of Capital Stock, as adjusted for
any subsequent stock split, stock dividend, subdivision or reclassification with
respect to such class or series of Capital Stock; and
(iv) (if applicable) the highest
preferential amount per share to which the holders of shares of such class or
series of Capital Stock would be entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation regardless of whether the Business Combination to be consummated
constitutes such an event.
The provisions of this Paragraph (2) shall be required to be met with
respect to every class or series of outstanding Capital Stock, whether or not
the Interested Stockholder has previously acquired beneficial ownership of any
shares of a particular class or series of Capital Stock.
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(C) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock shall be in cash or in
the same form as previously has been paid by or on behalf of the Interested
Stockholder in connection with its direct or indirect acquisition of beneficial
ownership of shares of such class or series of Capital Stock. If the
consideration so paid for shares of any class or series of Capital Stock varied
as to form, the form of consideration for such class or series of Capital Stock
shall be either cash or the form used to acquire beneficial ownership of the
largest number of shares of such class or series of Capital Stock previously
acquired by the Interested Stockholder.
(D) After the Determination Date and prior to the
consummation of such Business Combination: (i) except as approved by a majority
of the Continuing Directors, there shall have been no failure to declare and pay
at the regular date therefor any full quarterly dividends (whether or not
cumulative) payable in accordance with the terms of any outstanding Capital
Stock; (ii) there shall have been no reduction in the annual rate of dividends
paid on the Common Stock (except as necessary to reflect any stock split, stock
dividend or subdivision of the Common Stock), except as approved by a majority
of the Continuing Directors; (iii) there shall have been an increase in the
annual rate of dividends paid on the Common Stock as necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction that has the effect of reducing the
number of outstanding shares of Common Stock, unless the failure so to increase
such annual rate is approved by a majority of the Continuing Directors; and (iv)
such Interested Stockholder shall not have become the beneficial owner of any
additional shares of Capital Stock except as part of the transaction that
results in such Interested Stockholder becoming an Interested Stockholder and
except in a transaction that, after giving effect thereto, would not result in
any increase in the Interested Stockholder's percentage beneficial ownership of
any class or series of Capital Stock.
(E) After the Determination Date, such Interested
Stockholder shall not have received the benefit, directly or indirectly (except
proportionately as a stockholder of the Corporation), of any loans, advances,
guarantees, pledges or other financial assistance or any tax credits or other
tax advantages provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(F) A proxy or information statement describing the
proposed Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder (the
"Act") (or any subsequent provisions replacing such Act, rules or regulations)
shall be mailed to all stockholders of the Corporation at least 30 days prior to
the consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions). The proxy or information statement shall contain on the
first page thereof, in a prominent place, any statement as to the advisability
(or inadvisability) of the Business Combination that the Continuing Directors,
or any of them, may choose to make and, if deemed advisable by a majority of the
Continuing Directors, the opinion of an investment banking firm selected by a
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majority of the Continuing Directors as to the fairness (or not) of the terms of
the Business Combination from a financial point of view to the holders of the
outstanding shares of Capital Stock other than the Interested Stockholder and
its Affiliates or Associates (as hereinafter defined), such investment banking
firm to be paid a reasonable fee for its services by the Corporation.
(G) Such Interested Stockholder shall not have made
any major change in the Corporation's business or equity capital structure
without the approval of a majority of the Continuing Directors.
(c) The following definitions shall apply with respect to this
Article EIGHTH:
(1) The term "Business Combination" shall mean:
(A) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter defined) with (i) any Interested
Stockholder or (ii) any other company (whether or not itself an Interested
Stockholder) which is or after such merger or consolidation would be an
Affiliate or Associate of an Interested Stockholder; or
(B) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition or security arrangement, investment, loan,
advance, guarantee, agreement to purchase, agreement to pay, extension of
credit, joint venture participation or other arrangement (in one transaction or
a series of transactions) with or for the benefit of any Interested Stockholder
or any Affiliate or Associate of any Interested Stockholder involving any
assets, securities or commitments of the Corporation, any Subsidiary or any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder having an aggregate Fair Market Value and/or involving aggregate
commitments of $10,000,000 or more or constituting more than 5 percent of the
book value of the total assets (in the case of transactions involving assets or
commitments other than capital stock) or 5 percent of the stockholders' equity
(in the case of transactions in capital stock) of the entity in question (the
"Substantial Part"), as reflected in the most recent fiscal year-end
consolidated balance sheet of such entity existing at the time the stockholders
of the Corporation would be required to approve or authorize the Business
Combination involving the assets, securities and/or commitments constituting any
Substantial Part; or
(C) the adoption of any plan or proposal for
the liquidation or dissolution of the Corporation which is voted for or
consented to by any Interested Stockholder; or
(D) any reclassification of securities
(including any reverse stock split), or recapitalization of the Corporation, or
any merger or consolidation of the Corporation with any of its Subsidiaries or
any other transaction (whether or not with or otherwise involving an Interested
Stockholder) that has the effect, directly or indirectly, of increasing the
proportionate share of any class or series of Capital Stock, or any securities
convertible into Capital Stock or into equity securities of any Subsidiary, that
is beneficially owned by any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder; or
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(E) any agreement, contract or other
arrangement providing for any one or more of the actions specified in the
foregoing clauses (A) to (D).
(2) The term "Capital Stock" shall mean all capital
stock of the Corporation authorized to be issued from time to time under Article
FOURTH of this Amended and Restated Certificate of Incorporation, and the term
"Voting Stock" shall mean all Capital Stock which by its terms may be voted on
all matters submitted to stockholders of the Corporation generally.
(3) The term "person" shall mean any individual,
firm, company or other entity and shall include any group comprised of any
person and any other person with whom such person or any Affiliate or Associate
of such person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
Capital Stock.
(4) The term "Interested Stockholder" shall mean any
person (other than the Corporation or any Subsidiary and other than any
profit-sharing, employee stock ownership or other employee benefit plan of the
Corporation or any Subsidiary or any trustee of or fiduciary with respect to any
such plan when acting in such capacity) who (A) is the beneficial owner of
Voting Stock representing ten percent (10%) or more of the votes entitled to be
cast by the holders of all then outstanding shares of Voting Stock; or (B) is an
Affiliate or Associate of the Corporation and at any time within the two-year
period immediately prior to the date in question was the beneficial owner of
Voting Stock representing ten percent (10%) or more of the votes entitled to be
cast by the holders of all then outstanding shares of Voting Stock.
(5) A person shall be a "beneficial owner" of any
Capital Stock (A) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; (B) which such person or any of its
Affiliates or Associates has, directly or indirectly, (i) the right to acquire
(whether such right is exercisable immediately or subject only to the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or
understanding; or (C) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Capital Stock. For the purposes of
determining whether a person is an Interested Stockholder pursuant to Paragraph
4 of this Section (c), the number of shares of Capital Stock deemed to be
outstanding shall include shares deemed beneficially owned by such person
through application of this Paragraph 5 of Section (c), but shall not include
any other shares of Capital Stock that may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(6) The terms "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2 under the Act as in
effect on the date that this
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Article EIGHTH is approved by the Board (the term "registrant" in said Rule
12b-2 meaning in this case the Corporation).
(7) The term "Subsidiary" means any company of which
a majority of any class of equity security is beneficially owned by the
Corporation; provided, however, that for the purposes of the definition of
Interested Stockholder set forth in Paragraph 4 of this Section (c), the term
"Subsidiary" shall mean only a company of which a majority of each class of
equity security is beneficially owned by the Corporation.
(8) The term "Continuing Director" means any member
of the Board of Directors of the Corporation (the "Board of Directors"), while
such person is a member of the Board of Directors, who is not an Affiliate or
Associate or representative of the Interested Stockholder and was a member of
the Board of Directors prior to the time that the Interested Stockholder became
an Interested Stockholder, and any successor of a Continuing Director while such
successor is a member of the Board of Directors, who is not an Affiliate or
Associate or representative of the Interested Stockholder and is recommended or
elected to succeed the Continuing Director by a majority of Continuing
Directors.
(9) The term "Fair Market Value" means (A) in the
case of cash, the amount of such cash; (B) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Act on which such stock is listed, or, if such stock is not listed on any
such exchange, the highest closing bid quotation with respect to a share of such
stock during the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
similar system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as determined by a
majority of the Continuing Directors in good faith; and (C) in the case of
property other than cash or stock, the fair market value of such property on the
date in question as determined in good faith by a majority of the Continuing
Directors.
(10) In the event of any Business Combination in
which the Corporation survives, the phrase "consideration other than cash to be
received" as used in Paragraphs 2(A) and 2(B) of Section (b) of this Article
EIGHTH shall include the shares of Common Stock and/or the shares of any other
class or series of Capital Stock retained by the holders of such shares.
(d) A majority of the Continuing Directors shall have the
power and duty to determine for the purposes of this Article EIGHTH, on the
basis of information known to them after reasonable inquiry, (1) whether a
person is an Interested Stockholder, (2) the number of shares of Capital Stock
or other securities beneficially owned by any person, (3) whether a person is an
Affiliate or Associate of another, (4) whether the assets that are the subject
of any
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Business Combination have, or the consideration to be received for the issuance
or transfer of securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $10,000,000 or more, and (5)
whether the assets or securities that are the subject of any Business
Combination constitute a Substantial Part. Any such determination made in good
faith shall be binding and conclusive on all parties.
(e) Nothing contained in this Article EIGHTH shall be
construed to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
(f) The fact that any Business Combination complies with the
provisions of Section (b) of this Article EIGHTH shall not be construed to
impose any fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Business Combination or
recommend its adoption or approval to the shareholders of the Corporation, nor
shall such compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to evaluations of or
actions and responses taken with respect to such Business Combination.
(g) Notwithstanding any other provisions of this Amended and
Restated Certificate of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that a lesser percentage or separate class vote may be
specified by law, this Amended and Restated Certificate of Incorporation or the
By-Laws of the Corporation), the affirmative vote of the holders of not less
than eighty percent (80%) of the votes entitled to be cast by the holders of all
the then outstanding shares of Voting Stock, voting together as a single class,
excluding Voting Stock beneficially owned by any Interested Stockholder, shall
be required to amend or repeal, or adopt any provisions inconsistent with, this
Article EIGHTH; provided, however, that this Section G shall not apply to, and
such eighty percent (80%) vote shall not be required for, any amendment, repeal
or adoption unanimously recommended by the Board of Directors if all of such
directors are persons who would be eligible to serve as Continuing Directors
within the meaning of Section (c), Paragraph 8 of this Article EIGHTH.
NINTH: Unless otherwise required by law, special meetings of
stockholders, for any purpose or purposes may be called by either (i) the
Chairman of the Board of Directors, if there be one, (ii) the Chief Executive
Officer, or (iii) the Board of Directors. The ability of the stockholders to
call a special meeting is hereby specifically denied.
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TENTH: Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation, and the ability of the
stockholders to consent in writing to the taking of any action is hereby
specifically denied.
ELEVENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the GCL) outside
the State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the By-Laws of the Corporation.
TWELFTH: In furtherance and not in limitation of the powers
conferred upon it by the laws of the State of Delaware, the Board of Directors
shall have the power to adopt, amend, alter or repeal the Corporation's By-Laws.
The affirmative vote of at least a majority of the entire Board of Directors
shall be required to adopt, amend, alter or repeal the Corporation's By-Laws.
The Corporation's By-Laws also may be adopted, amended, altered or repealed by
the affirmative vote of the holders of at least eighty percent (80%) of the
voting power of the shares entitled to vote at an election of directors.
THIRTEENTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Amended and Restated
Certificate of Incorporation in the manner now or hereafter prescribed in this
Amended and Restated Certificate of Incorporation, the Corporation's By-Laws or
the GCL, and all rights herein conferred upon stockholders are granted subject
to such reservation; provided, however, that, notwithstanding any other
provision of this Amended and Restated Certificate of Incorporation (and in
addition to any other vote that may be required by law), the affirmative vote of
the holders of at least eighty percent (80%) of the voting power of the shares
entitled to vote at an election of directors shall be required to amend, alter,
change or repeal, or to adopt any provision as part of this Amended and Restated
Certificate of Incorporation inconsistent with the purpose and intent of
Articles FIFTH, EIGHTH and TWELFTH of this Amended and Restated Certificate of
Incorporation or this Article THIRTEENTH.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be executed on its behalf this day of
June, 2000.
AMERIGROUP Corporation
By:
Jeffrey L. McWaters
President and CEO
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