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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
NOVEMBER 12, 1999
Date of Report (Date of earliest event reported)
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HEALTHEON/WEBMD CORPORATION
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(Exact name of registrant as specified in its charter)
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DELAWARE 0-24975 94-3236644
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer Identification No.)
incorporation)
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400 THE LENOX BUILDING
3399 PEACHTREE ROAD NE
ATLANTA, GEORGIA 30326
(Address of principal executive offices, including zip code)
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(404) 495-7600
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(Registrant's telephone number, including area code)
HEALTHEON CORPORATION
4600 PATRICK HENRY ROAD
SANTA CLARA, CALIFORNIA 95054
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(Former name or address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On November 12, 1999, Healtheon Corporation completed its mergers with
WebMD, Inc. ("WebMD"), MedE AMERICA Corporation ("MedE AMERICA") and Greenberg
News Networks, Inc. ("Medcast"). On that date Healtheon Corporation also changed
its name to "Healtheon/WebMD Corporation" ("Healtheon/WebMD" or "Registrant").
The shareholders of each of the four companies had approved the respective
mergers on November 11, 1999.
Pursuant to an Agreement and Plan of Reorganization dated May 20, 1999, as
amended, by and among Registrant, Water Acquisition Corp., a Georgia corporation
and a wholly-owned subsidiary of Registrant, and WebMD, a Georgia corporation,
Water Acquisition Corp. merged with and into WebMD with WebMD surviving as a
wholly-owned subsidiary of Registrant. Each outstanding share of Common Stock of
WebMD has been converted into the right to receive 1.796 shares of Common Stock
of Healtheon/WebMD. Each outstanding share of Preferred Stock of WebMD was
converted into that number of shares of Common Stock of WebMD into which it was
exchangeable immediately prior to the merger; and each of these shares of WebMD
Common Stock has been converted into the right to receive 1.796 shares of Common
Stock of Healtheon/WebMD.
In addition, each option and warrant to acquire WebMD Common Stock
outstanding immediately prior to the effective time of the merger has been
converted into an option or warrant, as applicable, to purchase that number of
shares Healtheon/WebMD into which the shares of WebMD Common Stock underlying
the option or warrant would have been converted in the merger.
Pursuant to an Agreement and Plan of Reorganization dated April 20, 1999,
as amended, by and among Registrant, Merc Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Registrant, and MedE AMERICA, a
Delaware corporation, Merc Acquisition Corp. merged with and into MedE AMERICA
with MedE AMERICA surviving as a wholly-owned subsidiary of Registrant. Each
outstanding share of Common Stock of MedE AMERICA has been converted into the
right to receive 0.7494 shares of Common Stock of Healtheon/WebMD.
In addition, each option to acquire MedE AMERICA Common Stock outstanding
immediately prior to the effective time of the merger has been converted into an
option to purchase that number of shares Healtheon/WebMD into which the shares
of MedE AMERICA Common Stock underlying the option would have been converted in
the merger.
Pursuant to an Agreement and Plan of Reorganization dated June 30, 1999, as
amended, by and among Registrant, GNN Merger Corp., a Delaware corporation and a
wholly-owned subsidiary of Registrant, WebMD, and Medcast, a Delaware
corporation, GNN Merger Corp. merged with and into Medcast with Medcast
surviving as a wholly-owned subsidiary of Registrant. Medcast stockholders in
the aggregate will receive 2,528,426 shares of Healtheon/WebMD stock, and the
holders of Medcast Series C Preferred Stock in the aggregate will also receive
$2,331,796.50.
In addition, each option to acquire Medcast Common Stock outstanding
immediately prior to the effective time of the merger has been converted into an
option to purchase that number of shares Healtheon/WebMD into which the shares
of Medcast Common Stock underlying the option would have been converted in the
merger.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Businesses Acquired
Financial statements of the acquired companies are not required in
this form 8-K as "substantially the same" financial statements were previously
filed in the Registrant's Registration Statement on Form S-4 filed October 19,
1999 (File No. 333-86685).
(b) Pro Forma Financial Information
Pro forma financial information is not required in this Form 8-K as
"substantially the same" information was previously filed in the Registrant's
Registration Statement on Form S-4 filed October 19, 1999 (File No. 333-86685).
(c) Exhibits
The following exhibits are filed herewith:
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3.1 Tenth Amended and Restated Certificate of Incorporation of
Registrant
3.2 Bylaws of Registrant, as amended
99.1 Text of Press Release, dated November 11, 1999, titled
"Healtheon, WebMD, MedE AMERICA and Medcast Announce Completion
of Healtheon/WebMD Merger"
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3
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
Healtheon/WebMD Corporation has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
HEALTHEON/WEBMD CORPORATION
Dated: November 29, 1999 By /s/ Jack Dennison
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Jack Dennison,
Vice President and General Counsel
4
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EXHIBIT INDEX
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3.1 Tenth Amended and Restated Certificate of Incorporation of
Registrant
3.2 Bylaws of Registrant, as amended
99.1 Text of Press Release, dated November 11, 1999, titled
"Healtheon, WebMD, MedE AMERICA and Medcast Announce Completion
of Healtheon/WebMD Merger"
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5
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EXHIBIT 3.1
HEALTHEON CORPORATION
a Delaware corporation
TENTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
(PURSUANT TO SECTIONS 242 AND 245 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE)
Healtheon Corporation, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "General Corporation Law")
DOES HEREBY CERTIFY:
FIRST: That this corporation was originally incorporated on December 26,
1995 under the name Healthscape Corporation, pursuant to the General Corporation
Law. The corporation changed its name to "Healtheon Corporation" on June 17,
1996.
SECOND: The Tenth Amended and Restated Certificate of Incorporation of
Healtheon Corporation, in the form set forth below, has been duly adopted in
accordance with the provisions of Sections 228, 242, and 245 of the General
Corporation Law by the directors and the stockholders of the corporation.
THIRD: The Tenth Amended and Restated Certificate of Incorporation, as
so adopted, reads in full as set forth below:
ARTICLE I
The name of this corporation is Healtheon/WebMD Corporation.
ARTICLE II
The address of the registered office of this corporation in the State of
Delaware is 15 East North Street, Dover, County of Kent, Delaware 19901. The
name of its registered agent at such address is Incorporating Services, Ltd.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
ARTICLE IV
This corporation is authorized to issue one class of stock to be
designated "Common Stock" and another class of stock to be designated "Preferred
Stock," the rights, preferences and privileges of which may from time to time be
determined by the Board of Directors. The total number of shares of Common Stock
that this corporation is authorized to issue is 600,000,000 with a par value of
$0.0001 per share. The total number of shares of Preferred Stock that this
corporation is authorized to issue is 5,000,000 with a par value of $0.0001 per
share.
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ARTICLE V
To the fullest extent permitted by the General Corporation Law as the
same exists or as may hereafter be amended, 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.
The corporation shall indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he, his testator or intestate is or was a director or officer of the
corporation or any predecessor or the corporation or serves or served at any
other enterprise as a director, officer or employee at the request of the
corporation or any predecessor to the corporation.
Neither any amendment nor repeal of this Article V, nor the adoption of
any provision of this Amended and Restated Certificate of Incorporation
inconsistent with this Article V, shall eliminate or reduce the effect of this
Article V, in respect of any matter occurring, or any cause of action, suit,
claim or proceeding that, but for this Article V, would accrue or arise, prior
to such amendment, repeal or adoption of an inconsistent provision.
ARTICLE VI
This corporation reserves the right to amend, alter, change or repeal
any provision contained in this Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by statute or this Restated Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation.
ARTICLE VII
In furtherance and not in limitation of powers conferred by statute, the
Board of Directors is expressly authorized to make, alter, amend or repeal the
Bylaws of the corporation.
ARTICLE VIII
Section 1. At any time following the closing of the first sale of Common
Stock of the Corporation pursuant to a registration statement declared effective
by the Securities and Exchange Corporation under the Securities Act of 1933, as
amended, stockholders of the Corporation may not take any action by written
consent in lieu of a meeting and any action contemplated by stockholders after
such time must be taken at a duly called annual or special meeting of
stockholders.
Section 2. The number of directors which constitute the whole Board of
Directors of the Corporation shall be fixed exclusively by one or more
resolution adopted from time to time by the Board of Directors. The Board of
Directors shall be divided into three classes designated as Class I, Class II,
and Class III, respectively. Directors shall be assigned to each class in
accordance with a resolution or resolutions adopted by the Board of Directors.
At the first annual meeting of stockholders following the date hereof, the term
of office of the Class I directors shall expire and Class I directors shall be
elected for a full term of three years. At the second annual meeting of
stockholders following the date hereof, the term of office of the Class II
directors shall expire and Class II directors shall be elected for a full term
of three years. At the third annual meeting of stockholders following the date
hereof, the term of office of the Class III directors shall expire and Class III
directors shall be elected for a full term of three years. At each succeeding
annual meeting of stockholders, directors shall be elected for a full term of
three years to succeed the directors of the class whose terms expire at such
annual meeting.
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Section 3. Advance notice of new business and stockholder nominations
for the election of directors shall be given in the manner and to the extent
provided in the Bylaws of the Corporation.
ARTICLE IX
Elections of directors need not be by written ballot unless the Bylaws
of this corporation shall so provide.
ARTICLE X
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of this corporation may be kept
(subject to any provision contained in the statutes) 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 Bylaws of this corporation.
ARTICLE XI
This corporation is to have perpetual existence.
***
FOURTH: That said amendments were duly adopted in accordance with the
provisions of Sections 242 and 245 of the General Corporation Law.
I hereby further declare and certify under penalty of perjury under the
laws of the State of Delaware that the facts set forth in the foregoing
certificate are true and correct of my own knowledge and that this certificate
is my act and deed.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been signed by the Vice President, Chief Financial Officer,
Secretary and Treasurer of this corporation this 12th day of November, 1999.
Healtheon Corporation
By: /s/ John L. Westermann III
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John L. Westermann III
Vice President, Chief Financial Officer,
Secretary and Treasurer
4
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EXHIBIT 3.2
BYLAWS
OF
HEALTHEON/WEBMD CORPORATION
(as amended)
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TABLE OF CONTENTS
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Page
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ARTICLE I
CORPORATE OFFICES...................................................................... 1
1.1 REGISTERED OFFICE............................................................... 1
1.2 OTHER OFFICES................................................................... 1
ARTICLE II
MEETINGS OF STOCKHOLDERS............................................................... 1
2.1 PLACE OF MEETINGS............................................................... 1
2.2 ANNUAL MEETING.................................................................. 1
2.3 SPECIAL MEETING................................................................. 1
2.4 NOTICE OF STOCKHOLDERS' MEETINGS................................................ 2
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.................................... 2
2.6 QUORUM.......................................................................... 2
2.7 ADJOURNED MEETING; NOTICE....................................................... 2
2.8 VOTING.......................................................................... 3
2.9 WAIVER OF NOTICE................................................................ 3
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING......................... 3
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS..................... 3
2.12 PROXIES......................................................................... 4
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE........................................... 4
ARTICLE III
DIRECTORS.............................................................................. 5
3.1 POWERS.......................................................................... 5
3.2 NUMBER OF DIRECTORS............................................................. 6
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS......................... 6
3.4 RESIGNATION AND VACANCIES....................................................... 6
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE........................................ 7
3.6 FIRST MEETINGS.................................................................. 7
3.7 REGULAR MEETINGS................................................................ 7
3.8 SPECIAL MEETINGS; NOTICE........................................................ 7
3.9 QUORUM.......................................................................... 7
3.10 WAIVER OF NOTICE................................................................ 7
3.11 ADJOURNED MEETING; NOTICE....................................................... 8
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING............................... 8
3.13 FEES AND COMPENSATION OF DIRECTORS.............................................. 8
3.14 APPROVAL OF LOANS TO OFFICERS................................................... 8
3.15 REMOVAL OF DIRECTORS............................................................ 8
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ARTICLE IV
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COMMITTEES............................................................................. 9
4.1 COMMITTEES OF DIRECTORS......................................................... 9
4.2 COMMITTEE MINUTES............................................................... 9
4.3 MEETINGS AND ACTION OF COMMITTEES............................................... 9
4.4 ADVISORY COMMITTEES............................................................ 10
ARTICLE V
OFFICERS.............................................................................. 10
5.1 OFFICERS....................................................................... 10
5.2 ELECTION OF OFFICERS........................................................... 10
5.3 SUBORDINATE OFFICERS........................................................... 10
5.4 REMOVAL AND RESIGNATION OF OFFICERS............................................ 10
5.5 VACANCIES IN OFFICES........................................................... 11
5.6 CHAIRMAN OF THE BOARD.......................................................... 11
5.7 CHIEF EXECUTIVE OFFICER........................................................ 11
5.8 PRESIDENT...................................................................... 11
5.9 VICE PRESIDENT................................................................. 12
5.10 SECRETARY...................................................................... 12
5.11 CHIEF FINANCIAL OFFICER........................................................ 12
5.13 ASSISTANT SECRETARY............................................................ 13
5.14 ASSISTANT TREASURER............................................................ 13
5.15 AUTHORITY AND DUTIES OF OFFICERS............................................... 13
ARTICLE VI
INDEMNITY............................................................................. 13
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS...................................... 13
6.2 INDEMNIFICATION OF OTHERS...................................................... 13
6.3 INSURANCE...................................................................... 14
ARTICLE VII
RECORDS AND REPORTS................................................................... 14
7.1 MAINTENANCE AND INSPECTION OF RECORDS.......................................... 14
7.2 INSPECTION BY DIRECTORS........................................................ 15
7.3 ANNUAL STATEMENT TO STOCKHOLDERS............................................... 15
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS................................. 15
ARTICLE VIII
GENERAL MATTERS....................................................................... 15
8.1 CHECKS......................................................................... 15
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS............................... 16
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES......................................... 16
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8.4 SPECIAL DESIGNATION ON CERTIFICATES............................................ 16
8.5 LOST CERTIFICATES.............................................................. 17
8.6 CONSTRUCTION; DEFINITIONS...................................................... 17
8.7 DIVIDENDS...................................................................... 17
8.8 FISCAL YEAR.................................................................... 17
8.9 SEAL........................................................................... 17
8.10 TRANSFER OF STOCK.............................................................. 18
8.11 STOCK TRANSFER AGREEMENTS...................................................... 18
8.12 REGISTERED STOCKHOLDERS........................................................ 18
ARTICLE IX
AMENDMENTS............................................................................ 18
ARTICLE X
DISSOLUTION........................................................................... 18
ARTICLE XI
CUSTODIAN............................................................................. 19
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES.................................... 19
11.2 DUTIES OF CUSTODIAN............................................................ 20
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BYLAWS
OF
HEALTHEON/WEBMD CORPORATION
(AS AMENDED)
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation shall be at Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle,
State of Delaware. The name of the registered agent of the corporation at such
location is The Corporation Trust Company.
1.2 OTHER OFFICES
The board of directors may at any time establish other offices at any
place or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place, within or outside
the State of Delaware, designated by the board of directors. In the absence of
any such designation, stockholders' meetings shall be held at the principal
office of the corporation.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each year on a date and
at a time designated by the board of directors.
2.3 SPECIAL MEETING
A special meeting of the stockholders may be called, at any time by the
board of directors, or by the president, or by one or more stockholders holding
shares in the aggregate entitled to cast not less than ten percent (10%) of the
votes at that meeting.
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If a special meeting is called by any person or persons other than the
board of directors or the president or the chairman of the board, then the
request shall be in writing, specifying the time of such meeting and the general
nature of the business proposed to be transacted, and shall be delivered
personally or sent by registered mail or by telegraphic or other facsimile
transmission to the chairman of the board, the president, any vice president or
the secretary of the corporation. The officer receiving the request shall cause
notice to be promptly given to the stockholders entitled to vote, in accordance
with the provisions of Sections 2.4 and 2.5 of these bylaws, that a meeting will
be held at the time requested by the person or persons calling the meeting, so
long as that time is not less than thirty-five nor more than sixty (60) days
after the receipt of the request. If the notice is not given within twenty (20)
days after receipt of the request, then the person or persons requesting the
meeting may give the notice. Nothing contained in this paragraph of this Section
2.3 shall be construed as limiting, fixing or affecting the time when a meeting
of stockholders called by action of the board of directors may be held.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings with stockholders shall be in writing and shall
be sent or otherwise given in accordance with Section 2.5 of these bylaws not
less than ten (10) nor more than sixty (60) days before the date of the meeting
to each stockholder entitled to vote at such meeting. The notice shall specify
the place, date, and hour of the meeting, and, in the case of a special meeting,
the purpose or purposes for which the meeting is called.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if mailed, is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation. An
affidavit of the secretary or an assistant secretary or of the transfer agent of
the corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
2.6 QUORUM
The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum is not present or represented at any
meeting of the stockholders, then the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present or represented. At such adjourned meeting at
which a quorum is present or represented, any business may be transacted that
might have been transacted at the meeting as originally noticed.
2.7 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place, unless these
bylaws otherwise require, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact
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any business that might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
2.8 VOTING
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 2.11 of these bylaws,
subject to the provisions of Sections 217 and 218 of the General Corporation Law
of Delaware (relating to voting rights of fiduciaries, pledgors and joint owners
of stock and to voting trusts and other voting agreements).
Except as provided in the last paragraph of this Section 2.8, or as may
be otherwise provided in the certificate of incorporation, each stockholder
shall be entitled to one vote for each share of capital stock held by such
stockholder.
2.9 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these bylaws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders need be specified in any written waiver of notice unless so
required by the certificate of incorporation or these bylaws.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Section 2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING of the Bylaws of this corporation was removed, in its entirety,
effective as of the initial public offering of the corporation, by the Board of
Directors.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If the board of directors does not so fix a record date:
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(i) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held.
(ii) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the board of directors is necessary, shall be the day on which the first
written consent is expressed.
(iii) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
2.12 PROXIES
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by a written proxy, signed by
the stockholder and filed with the secretary of the corporation, but no such
proxy shall be voted or acted upon after three (3) years from its date, unless
the proxy provides for a longer period. A proxy shall be deemed signed if the
stockholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the stockholder or the
stockholder's attorney-in-fact. The revocability of a proxy that states on its
face that it is irrevocable shall be governed by the provisions of Section
212(c) of the General Corporation Law of Delaware.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of a corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
2.14 NOMINATIONS AND PROPOSALS
Nominations of persons for election to the board of directors of the
corporation and the proposal of business to be considered by the stockholders
may be made at any meeting of stockholders only (a) pursuant to the
corporation's notice of meeting, (b) by or at the direction of the board of
directors or (c) by any stockholder of the corporation who was a stockholder of
record at the
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time of giving of notice provided for in these bylaws, who is entitled to vote
at the meeting and who complies with the notice procedures set forth in this
Section 2.14.
For nominations or other business to be properly brought before a
stockholders meeting by a stockholder pursuant to clause (c) of the preceding
sentence, the stockholder must have given timely notice thereof in writing to
the secretary of the corporation and such other business must otherwise be a
proper matter for stockholder action. To be timely, a stockholder's notice shall
be delivered to the secretary at the principal executive offices of the
corporation not later than the close of business on the 60th day nor earlier
than the close of business on the 90th day prior to the meeting; provided,
however, that in the event that less than 65 days notice of the meeting is given
to stockholders, notice by the stockholder to be timely must be so delivered not
earlier than the close of business on the seventh (7th) day following the day on
which the notice of meeting was mailed. In no event shall the public
announcement of an adjournment of a stockholders meeting commence a new time
period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (or any successor thereto) and Rule 14a-11 thereunder
(or any successor thereto) (including such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected); (b) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such stockholder,
as they appear on the corporation's books, and of such beneficial owner, and
(ii) the class and number of shares of the corporation which are owned
beneficially and of record by such stockholder and such beneficial owner.
Notwithstanding any provision herein to the contrary, no business shall be
conducted at a stockholders meeting except in accordance with the procedures set
forth in this Section 2.14.
ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of the General Corporation Law of Delaware and
any limitations in the certificate of incorporation or these bylaws relating to
action required to be approved by the stockholders or by the outstanding shares,
the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the board of directors.
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3.2 NUMBER OF DIRECTORS
The number of directors of the corporation shall be not less than six
(6) nor more than eleven (11). The exact number of directors shall be ten (10).
This number may be changed, within the limits specified above, by a duly adopted
amendment to the certificate of incorporation or by an amendment to this bylaw
duly adopted by the vote or written consent of the holders of a majority of the
stock issued and outstanding and entitled to vote or by resolution of a majority
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation.
No reduction of the authorized number of directors shall have the effect
of removing any director before that director's term of office expires.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
The Board of Directors shall be divided into three classes designated as
Class I, Class II and Class III, respectively. Directors shall be assigned to
each class in accordance with a resolution or resolutions adopted by the Board
of Directors. At the first annual meeting of stockholders following the date
hereof, the term of office of the Class I directors shall expire and Class I
directors shall be elected for a full term of three years. At the second annual
meeting of stockholders following the date hereof, the term of office of the
Class II directors shall expire and Class II directors shall be elected for a
full term of three years. At the third annual meeting of stockholders following
the date hereof, the term of office of the Class III directors shall expire and
Class III directors shall be elected for a full term of three years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full
term of three years to succeed the directors of the class whose terms expire at
such annual meeting.
Notwithstanding the foregoing provisions of this Section 3.3, each
director shall serve until his or her successor is duly elected and qualified or
until his or her death, resignation or removal. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
3.4 RESIGNATION AND VACANCIES
Any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal, or other causes shall, unless the Board
of Directors determines by resolution that any such vacancies or newly created
directorships shall be filled by stockholders, except as otherwise provided by
law, be filled only by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors and not by the stockholders. Newly created directorships resulting
from any increase in the number of directors shall, unless the Board of
Directors determines by resolution that any such newly created directorship
shall be filled by the stockholders, be filled only by the affirmative vote of
the directors then in office, even though less than a quorum of the Board of
Directors and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the class of directors in which the new directorship was created or the vacancy
occurred and until such director's successor shall have been elected and
qualified.
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3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The board of directors of the corporation may hold meetings, both
regular and special, either within or outside the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or these
bylaws, members of the board of directors, or any committee designated by the
board of directors, may participate in a meeting of the board of directors, or
any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
3.6 FIRST MEETINGS
The first meeting of each newly elected board of directors shall be held
at such time and place as shall be determined by the directors.
3.7 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice at
such time and at such place as shall from time to time be determined by the
board.
3.8 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors may be called by the chief
executive officer on three (3) days' notice to each director, either personally
or by mail, telegram, telex, or telephone; special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of two (2) directors unless the board consists of only one (1) director,
in which case special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
3.9 QUORUM
At all meetings of the board of directors, a majority of the authorized
number of directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the board of directors, except as may be
otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum is not present at any meeting of the board of
directors, then the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
is present.
3.10 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these bylaws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the
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beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the directors, or members
of a committee of directors, need be specified in any written waiver of notice
unless so required by the certificate of incorporation or these bylaws.
3.11 ADJOURNED MEETING; NOTICE
If a quorum is not present at any meeting of the board of directors,
then the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is
present.
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise restricted by the certificate of incorporation or these
bylaws, any action required or permitted to be taken at any meeting of the board
of directors, or of any committee thereof, may be taken without a meeting if all
members of the board or committee, as the case may be, consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the board or committee.
3.13 FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the certificate of incorporation or these
bylaws, the board of directors shall have the authority to fix the compensation
of directors.
3.14 APPROVAL OF LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the
corporation or its subsidiary, whenever, in the judgment of the directors, such
loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or without
interest and may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing in this section contained shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
3.15 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the certificate of
incorporation or by these bylaws, any director or the entire board of directors
may be removed, only with cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
No reduction of the authorized number of directors shall have the effect
of removing any director prior to the expiration of such director's term of
office.
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ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution passed by a majority of the
whole board, designate one or more committees, with each committee to consist of
one or more of the directors of the corpo ration. The board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
board of directors or in the bylaws of the corporation, shall have and may
exercise all the powers and authority of the board of directors in the
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers that may require it; but no
such committee shall have the power or authority to (i) amend the certificate of
incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the board of directors as provided in Section 151(a) of the General
Corporation Law of Delaware, fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the corporation or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation), (ii) adopt an agreement of
merger or consolidation under Sections 251 or 252 of the General Corporation Law
of Delaware, (iii) recommend to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, (iv)
recommend to the stockholders a dissolution of the corporation or a revocation
of a dissolution, or (v) amend the bylaws of the corporation; and, unless the
board resolution establishing the committee, the bylaws or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.
4.2 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report the
same to the board of directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these bylaws, Section
3.5 (place of meetings and meetings by telephone), Section 3.7 (regular
meetings), Section 3.8 (special meetings and notice), Section 3.9 (quorum),
Section 3.10 (waiver of notice), Section 3.11 (adjournment and notice of
adjournment), and Section 3.12 (action without a meeting), with such changes in
the context of those bylaws as are necessary to substitute the committee and its
members for the board of directors and its members;
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provided, however, that the time of regular meetings of committees may also be
called by resolution of the board of directors and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these bylaws.
4.4 ADVISORY COMMITTEES
The board of directors may, by resolution passed by a majority of the
whole board, designate one or more advisory committees, with each committee to
consist of one or more of the directors of the corporation or any other such
persons as the board may appoint. The board may designate one or more persons as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. Members who are not board members shall
not have the responsibilities or obligations of board members nor be deemed
directors of the corporation for any other purpose.
ARTICLE V
OFFICERS
5.1 OFFICERS
The officers of the corporation shall be a chief executive officer
("CEO"), a president, one or more vice presidents, a secretary, a chief
financial officer ("CFO") and a treasurer. The corporation may also have, at the
discretion of the board of directors, a chairman of the board, one or more
assistant vice presidents, assistant secretaries, assistant treasurers, and any
such other officers as may be appointed in accordance with the provisions of
Section 5.3 of these bylaws. Any number of offices may be held by the same
person.
5.2 ELECTION OF OFFICERS
The officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Sections 5.3 or 5.5 of these
bylaws, shall be chosen by the board of directors, subject to the rights, if
any, of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or empower the CEO to appoint, such
other officers and agents as the business of the corporation may require, each
of whom shall hold office for such period, have such authority, and perform such
duties as are provided in these bylaws or as the board of directors may from
time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
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Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by an
affirmative vote of the majority of the board of directors at any regular or
special meeting of the board or by any officer upon whom such power of removal
may be conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 VACANCIES IN OFFICES
Any vacancy occurring in any office of the corporation shall be filled
by the board of directors.
5.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, shall, if
present, preside at meetings of the board of directors and exercise and perform
such other powers and duties as may from time to time be assigned to him by the
board of directors or as may be prescribed by these bylaws. If there is no CEO,
then the chairman of the board shall also be the CEO of the corporation and
shall have the powers and duties prescribed in Section 5.7 of these bylaws.
5.7 CHIEF EXECUTIVE OFFICER
Subject to such supervisory powers, if any, as may be given by the board
of directors to the chairman of the board, if there be such an officer, the CEO
of the corporation shall, subject to the control of the board of directors, have
general supervision, direction, and control of the business and the officers of
the corporation. He shall preside at all meetings of the stockholders and, in
the absence or nonexistence of a chairman of the board, at all meetings of the
board of directors. He shall have the general powers and duties of management
usually vested in the CEO of a corporation, and shall have such other powers and
duties as may be prescribed by the board of directors or these bylaws.
5.8 PRESIDENT
The president may assume and perform the duties of the chief executive
officer in the absence or disability of the chief executive officer or whenever
the office of the chief executive officer is vacant. The president of the
corporation shall exercise and perform such powers and duties as may from time
to time be assigned to him by the board of directors, the CEO or as may be
prescribed by these bylaws. The president shall have authority to execute in the
name of the corporation bonds, contracts, deeds, leases and other written
instruments to be executed by the corporation. In the absence or nonexistence of
the chairman of the board and chief executive officer, he shall preside at all
meetings of the stockholders and, in the absence or nonexistence of a chairman
of the board and the chief executive officer, at all meetings of the board of
directors and shall perform such other duties as the board of directors may from
time to time determine.
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5.9 VICE PRESIDENT
In the absence or disability of the CEO and the president, the vice
presidents, if any, in order of their rank as fixed by the board of directors
or, if not ranked, a vice president designated by the board of directors, shall
perform all the duties of the president and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the president. The vice
presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the board of directors,
these bylaws, the president or the chairman of the board.
5.10 SECRETARY
The secretary shall keep or cause to be kept, at the principal executive
office of the corporation or such other place as the board of directors may
direct, a book of minutes of all meetings and actions of directors, committees
of directors, and shareholders. The minutes shall show the time and place of
each meeting, whether regular or special (and, if special, how authorized and
the notice given), the names of those present at directors' meetings or
committee meetings, the number of shares present or represented at shareholders'
meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolu tion of the board of
directors, a share register, or a duplicate share register, showing the names of
all shareholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares, and the number
and date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings
of the shareholders and of the board of directors required to be given by law or
by these bylaws. He shall keep the seal of the corporation, if one be adopted,
in safe custody and shall have such other powers and perform such other duties
as may be prescribed by the board of directors or by these bylaws.
5.11 CHIEF FINANCIAL OFFICER
The CFO shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and
business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings,
and shares. The books of account shall at all reasonable times be open to
inspection by any director. The CFO shall have such other powers and perform
such other duties as may be prescribed by the board of directors or these
bylaws.
5.12 TREASURER
The treasurer shall deposit all money and other valuables in the name
and to the credit of the corporation with such depositaries as may be designated
by the board of directors. He shall disburse the funds of the corporation as may
be ordered by the board of directors, shall render to the president and
directors, whenever they request it, an account of all of his transactions as
treasurer and of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be prescribed by the board of
directors or these bylaws.
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5.13 ASSISTANT SECRETARY
The assistant secretary, or, if there is more than one, the assistant
secretaries in the order determined by the stockholders or board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the secretary or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the secretary
and shall perform such other duties and have such other powers as the board of
directors or the stockholders may from time to time prescribe.
5.14 ASSISTANT TREASURER
The assistant treasurer, or, if there is more than one, the assistant
treasurers, in the order determined by the stockholders or board of directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the treasurer or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the treasurer
and shall perform such other duties and have such other powers as the board of
directors or the stockholders may from time to time prescribe.
5.15 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing authority and duties, all officers of the
corporation shall respectively have such authority and perform such duties in
the management of the business of the corporation as may be designated from time
to time by the board of directors or the stockholders.
ARTICLE VI
INDEMNITY
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner permitted
by the General Corporation Law of Delaware, indemnify each of its directors and
officers against expenses (including attorneys' fees), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection
with any proceeding, arising by reason of the fact that such person is or was an
agent of the corporation. For purposes of this Section 6.1, a "director" or
"officer" of the corporation includes any person (i) who is or was a director or
officer of the corporation or any subsidiary of the corporation, (ii) who is or
was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise, or
(iii) who was a director or officer of a corporation which was a predecessor
corporation of the corporation or any of its subsidiaries or of another
enterprise at the request of such predecessor corporation or subsidiary.
6.2 INDEMNIFICATION OF OTHERS
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The corporation shall have the power, to the extent and in the manner
permitted by the General Corporation Law of Delaware, to indemnify each of its
employees and agents (other than directors and officers) against expenses
(including attorneys' fees), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the corporation. For
purposes of this Section 6.2, an "employee" or "agent" of the corporation (other
than a director or officer) includes any person (i) who is or was an employee or
agent of the corporation or any subsidiary of the corporation, (ii) who is or
was serving at the request of the corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or (iii) who
was an employee or agent of a corporation which was a predecessor corporation of
the corporation or any of its subsidiaries or of another enterprise at the
request of such predecessor corporation or subsidiary.
6.3 INSURANCE
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation or its subsidiaries as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of the General Corporation Law of Delaware.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at
such place or places as designated by the board of directors, keep a record of
its shareholders listing their names and addresses and the number and class of
shares held by each shareholder, a copy of these bylaws as amended to date,
accounting books, and other records.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
The officer who has charge of the stock ledger of a corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled
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to vote at the meeting, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
7.2 INSPECTION BY DIRECTORS
Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders, and its other books and records for a
purpose reasonably related to his position as a director. The Court of Chancery
is hereby vested with the exclusive jurisdiction to determine whether a director
is entitled to the inspection sought. The Court may summarily order the
corporation to permit the director to inspect any and all books and records, the
stock ledger, and the stock list and to make copies or extracts therefrom. The
Court may, in its discretion, prescribe any limitations or conditions with
reference to the inspection, or award such other and further relief as the Court
may deem just and proper.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
The board of directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the corporation.
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, the CEO, the CFO or any other person
authorized by the board of directors or the CEO, is authorized to vote,
represent, and exercise on behalf of this corporation all rights incident to any
and all shares of any other corporation or corporations standing in the name of
this corporation. The authority granted herein may be exercised either by such
person directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
ARTICLE VIII
GENERAL MATTERS
8.1 CHECKS
From time to time, the board of directors shall determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are issued in
the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
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8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
The board of directors, except as otherwise provided in these bylaws,
may authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific instances.
Unless so authorized or ratified by the board of directors or within the agency
power of an officer, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or for any amount.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of a corporation shall be represented by certificates,
provided that the board of directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the board of
directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the corporation by the chairman or vice-chairman of
the board of directors, or the president or vice-president, and by the treasurer
or an assistant treasurer, or the secretary or an assistant secretary of such
corporation representing the number of shares registered in certificate form.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate has ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, upon the books and records of the corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
8.4 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class of stock
or more than one series of any class, then the powers, the designations, the
preferences, and the relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, the designations,
the preferences, and the relative, participating, optional or other special
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rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
8.5 LOST CERTIFICATES
Except as provided in this Section 8.5, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and cancelled at the same time. The corporation
may issue a new certificate of stock or uncertificated shares in the place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal represen tative, to give the corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate or uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the Delaware General Corporation Law shall
govern the construction of these bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a corporation and a natural
person.
8.7 DIVIDENDS
The directors of the corporation, subject to any restrictions contained
in the certificate of incorporation, may declare and pay dividends upon the
shares of its capital stock pursuant to the General Corporation Law of Delaware.
Dividends may be paid in cash, in property, or in shares of the corporation's
capital stock.
The directors of the corporation may set apart out of any of the funds
of the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve. Such purposes shall include but not be
limited to equalizing dividends, repairing or maintaining any property of the
corporation, and meeting contingencies.
8.8 FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
board of directors and may be changed by the board of directors.
8.9 SEAL
The seal of the corporation shall be such as from time to time may be
approved by the board of directors.
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8.10 TRANSFER OF STOCK
Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction in its books.
8.11 STOCK TRANSFER AGREEMENTS
The corporation shall have power to enter into and perform any agreement
with any number of shareholders of any one or more classes of stock of the
corporation to restrict the transfer of shares of stock of the corporation of
any one or more classes owned by such stockholders in any manner not prohibited
by the General Corporation Law of Delaware.
8.12 REGISTERED STOCKHOLDERS
The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends and
to vote as such owner, shall be entitled to hold liable for calls and
assessments the person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of another person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be adopted, amended
or repealed by the stockholders or the board of directors.
ARTICLE X
DISSOLUTION
If it should be deemed advisable in the judgment of the board of
directors of the corporation that the corporation should be dissolved, the
board, after the adoption of a resolution to that effect by a majority of the
whole board at any meeting called for that purpose, shall cause notice to be
mailed to each stockholder entitled to vote thereon of the adoption of the
resolution and of a meeting of stockholders to take action upon the resolution.
At the meeting a vote shall be taken for and against the proposed
dissolution. If a majority of the outstanding stock of the corporation entitled
to vote thereon votes for the proposed dissolution, then a certificate stating
that the dissolution has been authorized in accordance with the provisions of
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Section 275 of the General Corporation Law of Delaware and setting forth the
names and residences of the directors and officers shall be executed,
acknowledged, and filed and shall become effective in accordance with Section
103 of the General Corporation Law of Delaware. Upon such certificate's becoming
effective in accordance with Section 103 of the General Corporation Law of
Delaware, the corporation shall be dissolved.
Whenever all the stockholders entitled to vote on a dissolution consent
in writing, either in person or by duly authorized attorney, to a dissolution,
no meeting of directors or stockholders shall be necessary. The consent shall be
filed and shall become effective in accordance with Section 103 of the General
Corporation Law of Delaware. Upon such consent's becoming effective in
accordance with Section 103 of the General Corporation Law of Delaware, the
corporation shall be dissolved. If the consent is signed by an attorney, then
the original power of attorney or a photocopy thereof shall be attached to and
filed with the consent. The consent filed with the Secretary of State shall have
attached to it the affidavit of the secretary or some other officer of the
corporation stating that the consent has been signed by or on behalf of all the
stockholders entitled to vote on a dissolution; in addition, there shall be
attached to the consent a certification by the secretary or some other officer
of the corporation setting forth the names and residences of the directors and
officers of the corporation.
ARTICLE XI
CUSTODIAN
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES
The Court of Chancery, upon application of any stockholder, may appoint
one or more persons to be custodians and, if the corporation is insolvent, to be
receivers, of and for the corporation when:
(i) at any meeting held for the election of directors the stockholders
are so divided that they have failed to elect successors to directors whose
terms have expired or would have expired upon qualification of their successors;
or
(ii) the business of the corporation is suffering or is threatened with
irreparable injury because the directors are so divided respecting the
management of the affairs of the corporation that the required vote for action
by the board of directors cannot be obtained and the stockholders are unable to
terminate this division; or
(iii) the corporation has abandoned its business and has failed within a
reasonable time to take steps to dissolve, liquidate or distribute its assets.
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11.2 DUTIES OF CUSTODIAN
The custodian shall have all the powers and title of a receiver
appointed under Section 291 of the General Corporation Law of Delaware, but the
authority of the custodian shall be to continue the business of the corporation
and not to liquidate its affairs and distribute its assets, except when the
Court of Chancery otherwise orders and except in cases arising under Sections
226(a)(3) or 352(a)(2) of the General Corporation Law of Delaware.
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CERTIFICATE OF ADOPTION OF BYLAWS
OF
HEALTHEON/WEBMD CORPORATION
(a Delaware corporation)
Adoption by Secretary
The undersigned person appointed to act as the Secretary of
Healtheon/WebMD Corporation hereby adopts the foregoing bylaws, comprising
eighteen (18) pages, as the Bylaws of the corporation.
Executed this 12th day of November, 1999.
/s/ John L. Westermann III
----------------------------------
John L. Westermann III, Secretary
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<PAGE> 1
Exhibit 99.1
Healtheon, Web MD, MEDE America and Medcast Announce Completion of
Healtheon/WebMD Merger
ATLANTA, Nov. 11 /PRNewswire/ -- Healtheon Corporation (Nasdaq: HLTH), WebMD,
Inc., MEDE America Corporation (Nasdaq: MEDE) and Medcast (Greenberg News
Networks, Inc.) today announced the completion of the merger of the four
companies to form Healtheon/WebMD. The mergers follow the approval by the
stockholders of Healtheon, WebMD, MEDE America and Medcast at their respective
stockholder meetings. The new company, Healtheon/WebMD, will trade on the
Nasdaq National Market under the ticker symbol "HLTH."
"Healtheon/WebMD will use its strategic relationships, advanced technology
and the Internet to bring physicians and consumers together in the same place.
By providing information and fostering the interaction between these parties
and with healthcare institutions, together we believe we can realign the
currently inefficient healthcare system," said Mike Long, Chairman and Chief
Operating Officer of Healtheon/WebMD. "With the successful completion of the
merger forming Healtheon/WebMD, we have established the first end-to-end
Internet healthcare company that will enable the reduction of the estimated
$250 billion in administrative waste in today's healthcare market, in the United
States alone, while improving the quality of healthcare."
"At Healtheon/WebMD, our vision is to improve health and wellness around the
world. Our goal is to use the Internet to facilitate a new system for the
delivery of healthcare, resulting in a single, secure environment for all
communications and transactions between physicians and consumers and healthcare
institutions," commented Jeff Arnold, Chief Executive Officer of
Healtheon/WebMD. "Healtheon/WebMD's technology, content and services will
enable a more efficient and people-oriented healthcare system, reduce costs,
and improve care across the entire system."
The combined company brings together the Internet-based information and
transaction platform of Healtheon, the brand awareness, marketing strategy and
strategic relationships of WebMD, the connectivity to more than 650 payers of
MEDE America and the daily medical news content of Medcast. As of today,
Healtheon/WebMD is actively deploying services for 280,000 physicians, 11,000
dentists, 1,100 hospitals, 46,000 pharmacies and providing millions of consumers
coming to the site for trusted healthcare information with more than 510,000
consumers enrolled in one of the company's support communities.
The combination of Health, WebMD, MEDE America and Medcast creates a clearly
differentiated leadership position. The new company will focus on executing the
following five key, near-term initiatives: -- Connectivity - Healtheon/WebMD
connects all entities involved in the delivery of healthcare and enables them to
communicate, exchange information and perform transactions. Currently, only 3
billion of the 30 billion transactions in the healthcare industry are
electronic. More than 500 million of the electronic transactions are processed
by Healtheon/WebMD annually. -- Content - Healtheon/WebMD will deliver
proprietary, breaking healthcare news and continue to expand and improve the
quality and quantity of the healthcare information disseminated through the site
for physicians and consumers, always maintaining the highest standards of trust
and credibility, -- Partnerships - Healtheon/WebMD has established more than 70
strategic partnerships and will continue to establish strategic healthcare,
technology and media partnerships and create mechanisms to combine the unique
strengths of each partner, building upon the strategic relationships we have
already secured. -- Distribution - Healtheon/WebMD will continue to establish
strategic relationships with online and offline partners to allow for broad and
effective distribution of healthcare information and services. Currently,
Healtheon/WebMD has secured more than 70 commitments from major healthcare
systems, has signed more than 60,000 physician subscribers and provides services
to more than 280,000 physicians. In addition, the company has exclusive content
relationships with Excite@Home, Lycos, WebTV and MSN. -- Branding -
Healtheon/WebMD is creating extensive and comprehensive brand awareness as the
only source that effectively connects physicians and consumers to the entire
health industry. Through leveraging synergistic relationships with partners,
including CNN and Reader's Digest, developing extensive offline and online
co-branded programming, and executing traditional branding campaigns,
Healtheon/WebMD has penetrated the market -- reaching more than 28 billion
impressions over the next five years.
<PAGE> 2
Arnold commented, "We are well positioned to lead the deployment of technology
to revolutionize today's healthcare system. Our winning combination of brand,
content, connectivity, distribution and partnerships establishes Healtheon/WebMD
as the first and only provider of end-to-end Internet-enabled healthcare
solutions," Structure of the Deals
As a result of the merger, WebMD stockholders will receive 1.796 shares of
Healtheon/WebMD common stock for each share of outstanding WebMD common stock.
MEDE AMERICA stockholders will receive 0.7494 shares of Healtheon/WebMD common
stock in exchange for each share of MEDE AMERICA common stock. Medcast
stockholders will receive approximately $2.3 million in cash and 2.6 million
shares of Healtheon/WebMD common stock. Healtheon will issue approximately 75
million common shares in connection with the merger and will assume
approximately 51 million options and warrants of the merged companies. New
Leadership Roles and Board of Directors Appointed
Healtheon/WebMD has also announced new management roles in connection with the
merger. -- Jeff Arnold, formerly Chief Executive Officer of WebMD, has been
named Chief Executive Officer of Healtheon/WebMD. -- Mike Long, formerly Chief
Executive Officer of Healtheon, has been named Chairman and Chief Operating
Officer of Healtheon/WebMD. -- Alan Greenberg, formerly Chief Executive Officer
of Medcast, will lead International development of Healtheon/WebMD. -- Tom
Staudt, formerly Chief Executive Officer of MEDE America, will lead the
institutional connectivity operations of Healtheon/WebMD.
In addition, Healtheon/WebMD has named a new Board of Directors to serve as
advisors for the company. The nine members of the board of directors are:
-- Jeff Arnold: CEO, Healtheon/WebMD
-- Jim Clark: Co-Founder, Healtheon; Co-Founder, Netscape; and Founder,
Silicon Graphics
-- John Doerr: Partner, Kleiner Perkins Caufield & Byers
-- Bert Ellis: Chairman and CEO, iXL Enterprises
-- Eric Gleacher: Chairman and CEO, Gleacher and Company, LLC
-- Laura Jennings: Vice President of Worldwide Strategic Planning,
Microsoft
-- Mike Long: Chairman and COO, Healtheon/WebMD
-- William W. McGuire, M.D.: Chairman and CEO, UnitedHealth Group
-- Billy Payne: Former President and CEO of the Atlanta Committee for the
Olympic Games
New WebMD.com Product
To clearly demonstrate the combined strengths and vision behind Healtheon,
WebMD, MEDE America and Medcast, the new company will be unveiling its new
portal, www.WebMD.com, next week. This powerful, new healthcare destination will
bring physicians and consumers together in the same place, providing information
and fostering interaction. It was designed by WebMD, engineered by Healtheon,
with connectivity to large volume institutions from MEDE America and content
driven by Medcast. In developing this new product, Healtheon/WebMD has helped
streamline the communication channels in the current healthcare system. About
Healtheon
Healtheon, founded in 1996 and based in Santa Clara, CA, is a pioneer in
providing Internet-based, business-to-business and consumer-to-business
electronic commerce services that link physicians and consumers with healthcare
institutions, enabling them to efficiently and conveniently manage their
<PAGE> 3
business and personal healthcare needs. Healtheon's services simplify the
business and clinical processes of healthcare, provide more timely access to
information, provide faster and more convenient service and lead to higher
quality, more affordable care. Healtheon can be reached through its Website at
http://www.healtheon.com. About WebMD
Atlanta-based WebMD, which is privately held and was founded in 1998, offers a
comprehensive suite of Internet-based services and information for physicians
as well as healthcare information services and online communities for
consumers. WebMD can be reached though its Website at http://www.webmd.com.
About MEDE AMERICA
Headquartered in East Meadow, NY, MEDE AMERICA is a leading provider of
healthcare transaction solutions to a broad range of providers and payers in the
healthcare industry. The company offers an integrated suite of electronic
transaction solutions that allows hospitals, pharmacies, physicians, dentists
and other healthcare providers and provider groups to electronically edit,
process and transmit claims, eligibility and enrollment data, track claims
submissions throughout the claims payment process and obtain faster
reimbursement for their services. With offices in New York, Ohio and Atlanta,
MEDE AMERICA has 450 employees and can be reached through its Website at
http://www.mede.com. About Medcast (Greenberg News Networks)
Medcast, based in Atlanta, provides breaking medical news, education and other
vital information electronically every morning to physicians throughout the
United States. The editorial and design staff numbers more than 50
professionals -- including 11 medical doctors -- making it among the world's
largest medical news organizations. Medcast can be reached through its Website
at http://www.medcast.com.
Other than historical information set forth herein, this announcement contains
forward-looking statements that involve risks and uncertainties, including
those relating to the ability of Healtheon/WebMD's services to decrease costs
and improve patient care. Actual results could be materially different from
those discussed in this announcement. Factors that could cause actual results
to differ include, among others: Healtheon/WebMD's limited operating history,
continued growth in the use of the Internet and acceptance of the Internet as a
secure medium over which to conduct transactions. Additional risks associated
with Healtheon/WebMD's business can be found in its recent Registration
Statement on Form S-4 and other periodic filings with the SEC.
/CONTACT: media, Dave Faupel of Alexander Ogilvy Public Relations, 404-897-2300,
ext. 339, or [email protected], or investors, Renee Hartmann,
415-923-1660, ext. 149, or [email protected], both of Alexander
Ogilvy Public Relations, for Healtheon/
