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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
---------------------------------------
John L. Westermann III
Vice President, Chief Financial Officer,
Secretary and Treasurer
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CERTIFICATE OF DESIGNATIONS
OF
SERIES A PAYMENT-IN-KIND PREFERRED STOCK
OF
HEALTHEON/WEBMD CORPORATION
(Pursuant to Section 151 of the General
Corporation Law of the State of Delaware)
Healtheon/WebMD Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "CORPORATION"), hereby
certifies that the following resolution was adopted by the Board of Directors of
the Corporation (the "BOARD OF DIRECTORS"):
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors by the Tenth Amended and Restated Certificate
of Incorporation of the Corporation (as amended from time to time, the
"CERTIFICATE OF INCORPORATION"), there hereby is created, out of the 5,000,000
shares of preferred stock, par value $.0001 per share, of the Corporation
authorized in Article IV of the Certificate of Incorporation (the "PREFERRED
STOCK"), a series of Preferred Stock consisting of 213,000 shares, which series
shall have the following powers, designations, preferences and relative,
participating, optional and other rights, and the following qualifications,
limitations and restrictions (in addition to the powers, designations,
preferences and relative, participating, optional and other rights, and the
qualifications, limitations and restrictions, stated in the Certificate of
Incorporation as applicable to the Preferred Stock):
"1. DESIGNATION. The shares of such series created hereby shall be
designated as the "Series A Payment-in-Kind Preferred Stock" (referred to herein
as the "SERIES A PREFERRED STOCK"), and the authorized number of shares
constituting such series shall be 213,000. The par value of the Series A
Preferred Stock shall be $.0001 per share. The face amount of each share of
Series A Preferred Stock shall be $5,000.00 (the "FACE AMOUNT"). The Series A
Preferred Stock shall not be subject to any sinking fund or mandatory redemption
provision.
2. PRIORITY. The Series A Preferred Stock, whether now or hereafter
issued, shall, with respect to dividend rights (other than the right to receive
additional shares of Series A Preferred Stock pursuant to Section 3) and rights
on liquidation, winding up or dissolution, whether voluntary or involuntary,
rank (i) on a parity with the common stock, par value $.0001 per share (the
"COMMON STOCK"), of the Corporation and with any other series of Preferred Stock
established hereafter by the Board of Directors the terms of which shall
specifically provide that such series shall rank on a parity with the Series A
Preferred Stock with respect to dividend rights and rights on liquidation,
winding up or dissolution, (ii) junior to any series of Preferred Stock
established hereafter by the Board of Directors the terms of which shall
specifically provide that such series shall rank senior to the Series A
Preferred Stock with respect to dividend rights and rights on liquidation,
winding up or dissolution and (iii) senior to any series of Preferred Stock
established hereafter by the Board of Directors the terms of which shall
specifically provide that such series shall rank junior to the Series A
Preferred Stock with respect to dividend rights and rights on liquidation,
winding up or dissolution.
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3. DIVIDENDS.
3.1 GENERAL OBLIGATION. When, as and if declared by the Board
of Directors and to the extent permitted by the General Corporation Law of the
State of Delaware, the Corporation shall pay preferential dividends to the
holders of the shares of Series A Preferred Stock in the form of additional
shares of Series A Preferred Stock as provided in this Section 3. Regardless of
whether dividends are paid, dividends on each share of the Series A Preferred
Stock outstanding from time to time shall accrue on a daily basis at the rate of
10.5% per annum computed on an amount with respect to each share equal to the
Face Amount plus the amount of any accrued and unpaid dividends calculated from
the date of initial issuance of such share through the most recently preceding
Quarterly Dividend Reference Date. The "QUARTERLY DIVIDEND REFERENCE DATES" are
each May 1, August 1, November 1 and February 1 occurring after the initial
issuance of the first share of Series A Preferred Stock and on or prior to the
Conversion Date (as defined below). Dividends shall be paid only by the issuance
of additional shares of Series A Preferred Stock in an amount equal to (i) the
accrued and unpaid dividend on any Quarterly Dividend Reference Date or on the
Conversion Date (if the Conversion Date is not a Quarterly Dividend Reference
Date) divided by (ii) the Face Amount of a share of Series A Preferred Stock.
Dividends shall be paid only as and when declared by the Board of Directors to
holders of record at the close of the Dividend Reference Dates with respect to
which the dividend has been declared and certificates for such dividend shall be
distributed to such holders on such distribution date within ten (10) days after
such record date as the Board of Directors may establish. Dividends shall begin
to accrue on shares of Series A Preferred Stock issued as dividends as of the
day following the record date for their issuance regardless of the actual
distribution of a certificate. All dividends that have been accrued but not
declared shall continue to accrue and accumulate as provided herein. All
dividends that have been accrued and declared shall be paid as provided herein
and dividends on such shares shall begin to accrue as provided herein. Dividends
under this Section 3 shall cease to accrue on the Conversion Date. The number of
shares to be paid as a dividend pursuant to this Section 3 shall be rounded to
the nearest 1/100,000th of a share. All shares of Series A Preferred Stock
issued in payment of dividends hereunder shall be deemed issued and outstanding
on the applicable record date, and will thereupon be duly authorized, validly
issued, fully paid and nonassessable and free and clear of all liens and
charges. The Corporation shall at all times reserve for issuance sufficient
shares of Series A Preferred Stock to enable it to satisfy all dividends that
may accrue hereunder.
3.2 PARTICIPATION IN DIVIDEND PAYMENTS ON COMMON STOCK. In
addition to all other amounts payable to the holders of the shares of Series A
Preferred Stock under this Section 3, in the event the Corporation shall declare
and pay a dividend upon the Common Stock (whether payable in cash, securities of
other Persons, evidences of indebtedness issued by the Corporation or other
Persons, assets, or options or rights to purchase any such securities or
evidences of indebtedness) other than in shares of Common Stock, the holders of
the shares of Series A Preferred Stock shall be entitled to participate with the
holders of Common Stock in any such dividend payment (as if a Conversion had
occurred on the date immediately prior to the record date for such dividend
payment).
4. VOTING. In addition to any voting rights provided for elsewhere
herein, in the Certificate of Incorporation and by law, the following provisions
shall apply with regard to voting by the holders of Series A Preferred Stock:
4.1. IN GENERAL. Each share of Series A Preferred Stock shall
be entitled to a number of votes equal to the number of shares of Common Stock
that would be owned by the holder of such share of Series A Preferred Stock if
the Conversion Date had occurred on the date immediately prior to the record
date for such vote. Except as otherwise provided for herein, in the Certificate
of
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Incorporation or by law, each share of Series A Preferred Stock shall be
entitled to vote together with the holders of the Common Stock, on each matter
as to which the holders of the Common Stock are entitled to vote, as if the
Series A Preferred Stock and the Common Stock were one class of capital stock
and a Conversion had occurred.
4.2. WHEN CLASS VOTE REQUIRED. The Corporation shall not
without first obtaining the affirmative vote or consent of the holders of a
least 90% of the shares of Series A Preferred Stock at the time outstanding,
voting as a class, (i) alter or change the rights, preferences or privileges of
the Series A Preferred Stock, (ii) take any action that would result in an
adverse effect on the rights, preferences or privileges of the Series A
Preferred Stock (other than an action which affects all capital stock of the
Corporation in a similar manner), or (iii) authorize any additional Series A
Preferred Stock.
5. CONVERSION INTO COMMON STOCK.
5.1. AUTOMATIC CONVERSION. Upon the earlier to occur of (i)
the liquidation, dissolution or winding up, whether voluntary or involuntary, of
the Corporation, (ii) immediately prior to the consummation of any transaction
resulting in a Change of Control of the Corporation, (iii) the first Business
Day following written notice by the Corporation to the holders of the Series A
Preferred Stock that the Board of Directors has resolved to cause a Conversion
of the Series A Preferred Stock, or (iv) January 26, 2003 (the "THIRD
ANNIVERSARY") (the date on which the earliest of such events occurs is referred
to herein as the "CONVERSION DATE"), each share of Series A Preferred Stock
outstanding shall be converted automatically (a "CONVERSION"), without any
requirement of notice or any other action on the part of the Corporation, any
holder of Series A Preferred Stock or any other Person, into (a) 100 shares of
Common Stock (100 is referred to herein as the "CONVERSION RATE," as may be
adjusted from time to time), plus (b) that number of shares of Common Stock
equal to the dollar amount of any accrued and declared dividends with respect to
such share pursuant to Section 3 above computed through the Conversion Date
divided by the Face Amount and multiplied by the Conversion Rate, plus, if the
Conversion Date is not the Third Anniversary, (c) the Early Conversion Premium
Amount divided by the Face Amount and multiplied by the Conversion Rate. The
"EARLY CONVERSION PREMIUM AMOUNT" shall equal interest on the Face Amount at
10.5% per annum compounded on each Dividend Reference Date from the day
following the Conversion Date through the Third Anniversary. The number of
shares of Common Stock into which the Series A Preferred Stock is convertible
shall be subject to adjustment as described in Section 5.5. The Corporation
shall not issue fractions of shares of Common Stock upon conversion of the
Series A Preferred Stock. If any fraction of a share of Common Stock would be
issuable upon conversion of the Series A Preferred Stock, then the Corporation
shall, in lieu thereof, pay to the Person entitled thereto an amount in cash
equal to the current market price of such fraction of a share of Common Stock,
calculated to the nearest 1/100,000th of a share, to be computed on the
Conversion Date.
5.2. PROCEDURES. Upon the conversion of the Series A Preferred
Stock, the holders of the Series A Preferred Stock shall deliver the certificate
or certificates therefor to the principal office of the Corporation or to a
conversion agent designated by the Corporation accompanied by instruments of
transfer in form reasonably satisfactory to the Corporation or to such
conversion agent, duly executed by the registered holder or his duly authorized
attorney, as well as transfer taxes, stamps or funds therefor, or evidence of
payment thereof, if required by Section 5.3. The automatic conversion of any
outstanding shares of Series A Preferred Stock into Common Stock shall be deemed
to have occurred upon the Conversion Date regardless of the delivery of
certificates or other instruments and the Persons entitled to receive shares of
Common Stock issuable upon conversion shall be treated for all
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purposes as the record holders of such shares at and from the Conversion Date;
PROVIDED, HOWEVER, that the Corporation may defer the payment of any dividend or
other distribution with respect to such Common Stock until such deliveries have
been made.
5.3. TAXES. Upon the conversion of the Series A Preferred
Stock, the Corporation shall pay any documentary, stamp or similar issue or
transfer tax due on the issuance of the Common Stock upon conversion, but the
holder shall pay to the Corporation the amount of any tax that is due (or shall
establish to the satisfaction of the Corporation payment thereof) if the shares
are to be issued in a name other than the name of such holder.
5.4. RESERVATION OF SHARES. The Corporation shall at all times
reserve and keep available, out of its authorized but unissued shares of Common
Stock, enough shares of Common Stock to issue all shares of Common Stock
issuable upon conversion of the Series A Preferred Stock and shall at all times
maintain any legally required capital or surplus to effectuate the foregoing.
All shares of Common Stock that may be issued upon conversion of shares of
Series A Preferred Stock shall be, when so issued, validly issued, fully paid
and nonassessable. In order that the Corporation may issue shares of Common
Stock upon conversion of shares of Series A Preferred Stock, the Corporation
shall comply with all applicable federal and state securities laws.
5.5. ADJUSTMENTS TO CONVERSION RATE. The conversion rate in
effect at any time shall be subject to adjustment from time to time as follows:
5.5.1. ADJUSTMENTS FOR STOCK SPLITS, STOCK DIVIDENDS,
ETC. If the Corporation (1) pays a dividend in shares of the Common Stock to
holders of the Common Stock, (2) makes distributions in shares of Common Stock
to holders of the Common Stock, (3) subdivides the outstanding shares of Common
Stock into a greater number of shares of Common Stock, (4) combines the
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, or (5) takes action resulting in a similar effect upon the Common Stock,
then, and in every such case, the Conversion Rate in effect immediately prior to
such action shall be adjusted to equal the Conversion Rate in effect immediately
prior to such action multiplied by a fraction, the numerator of which is the
number of issued and outstanding shares of Common Stock immediately following
such action and the denominator of which is the number of issued and outstanding
shares of Common Stock immediately prior to such action. An adjustment made
pursuant to this Section 5.5.1 shall become effective on the record date in the
case of a dividend or distribution and on the effective date in the case of a
subdivision or combination.
5.5.2. ADJUSTMENTS FOR OTHER DISTRIBUTIONS. If the
Corporation distributes PRO RATA to all holders of the Common Stock shares of
any class of capital stock (excluding the Common Stock), or options, rights or
warrants to acquire any class of capital stock (including the Common Stock), or
cash or other assets of the Corporation (excluding capital stock of the
Corporation held in its treasury), then, and in any such case, the holder of
each share of Series A Preferred Stock shall be entitled to receive, at the time
such distribution is made, the capital stock, options, rights, warrants, cash or
other assets so distributed as if such holder had owned the number of shares of
Common Stock that such holder would have owned at the time of such distribution
if the Conversion Date had occurred immediately prior to the record date for
such distribution. Such adjustment shall become effective on the record date for
determination of the holders of Common Stock entitled to receive the
distribution.
5.6. COMPUTATIONS. All calculations under this Section 5 shall
be made to the nearest 1/100,000th of a share.
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5.7. SHARES OTHER THAN COMMON SHARES. If, as result of any
adjustment made pursuant to Section 5.5, the holder of any share of Series A
Preferred Stock thereafter surrendered for conversion shall become entitled to
receive any shares of capital stock of the Corporation other than shares of
Common Stock, then the number of such other shares so receivable upon conversion
of any shares of the Series A Preferred Stock shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Common Stock contained in this Section 5.
5.8. NOTICE OF CONVERSION RATE CHANGE. Whenever the conversion
rate is adjusted, the Corporation shall promptly mail to all holders of record
of shares of the Series A Preferred Stock a notice of the adjustment.
5.9. EQUIVALENT CONVERSION. If any of the following occurs,
namely: (i) any reclassification of, or change in, outstanding shares of capital
stock of the class issuable upon conversion of the Series A Preferred Stock
(other than a change in name, or par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination), or (ii) any consolidation, merger, share exchange or similar
transaction (other than events that would constitute a liquidation for purposes
of Section 5.1 or a Change of Control) to which the Corporation is a party and
which does not result in any reclassification of, or change in (other than a
change in name, or par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination), outstanding
shares of such capital stock, then the Corporation or the successor corporation,
as the case may be, shall, as a condition precedent to such reclassification,
change, consolidation, merger, share exchange or other transaction, provide in
its certificate of incorporation or other charter document that each share of
the Series A Preferred Stock shall be convertible into the number and class of
shares of capital stock that would have been issuable upon conversion of such
share of Series A Preferred Stock if the Conversion Date had occurred
immediately prior to such reclassification, change, consolidation, merger, share
exchange or other transaction. Such certificate of incorporation or other
charter document shall provide for adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
5. If this Section 5.9 applies, then Section 5.5.1 shall not apply. If, in the
case of any such reclassification, change, consolidation, merger, share exchange
or other transaction, the stock or other securities and property (including
cash) receivable thereupon by a holder of the capital stock issuable upon
conversion of the Series A Preferred Stock includes shares of capital stock or
other securities and property of an entity other than the Corporation or the
successor corporation in such reclassification, change, consolidation, merger,
share exchange or other transaction, then the certificate of incorporation or
other charter document of such other entity shall contain such additional
provisions to protect the interests of the holders of shares of the Series A
Preferred Stock as the Board of Directions shall reasonably consider necessary
by reason of the foregoing, which provisions shall be subject to approval by the
affirmative vote or consent of holders of at least 90% of the shares of the
then-outstanding Series A Preferred Stock, which approval shall not be
unreasonably withheld. The provisions of this Section 5.9 shall similarly apply
to successive reclassifications, changes, consolidations, mergers, share
exchanges or other transactions.
6. RESTRICTIONS ON TRANSFER. Each holder of shares of Series A
Preferred Stock or shares of Common Stock issued upon conversion of the Series A
Preferred Stock (the shares of Series A Preferred Stock and the shares of Common
Stock issued upon conversion of the Series A Preferred Stock are referred to
collectively as the "SUBJECT STOCK") hereby expressly covenants and agrees as
follows:
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6.1. IN GENERAL. Until the termination provided for in Section
6.5 below, such holder shall not (i) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, or otherwise transfer or dispose
of, directly or indirectly, any shares of Subject Stock or any securities
convertible into or exercisable or exchangeable for Subject Stock (including,
without limitation, shares of Subject Stock or securities convertible into or
exercisable or exchangeable for Subject Stock which may be deemed to be
beneficially owned by such holder in accordance with the rules and regulations
of the Securities and Exchange Commission) or (ii) enter into any swap or other
hedging arrangement that transfers all or a portion of the economic consequences
associated with the ownership of any Subject Stock (regardless of whether any of
the transactions described in clause (i) or clause (ii) is to be settled by the
delivery of Subject Stock, or such other securities, in cash or otherwise (each
action described herein is referred to as a "TRANSFER"). Notwithstanding any
provision of this Section 6 to the contrary, a holder of Subject Stock may
Transfer such Subject Stock to The News Corporation Limited or to any Affiliate
of The News Corporation Limited.
6.2. EFFECT OF ATTEMPTED TRANSFER. Any attempt to Transfer in
violation of this Section 6 shall be null and void and shall be deemed to be in
violation hereof, and neither the Corporation nor the Corporation's transfer
agent shall give any effect in the share transfer records of the Corporation to
any such attempt to Transfer.
6.3. LEGENDS. In addition to any other legends required by law
or in the opinion of counsel to the Corporation, the certificates evidencing
shares of Subject Stock shall bear a legend in substantially the following form:
"THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THE SECURITIES
EVIDENCED BY THIS CERTIFICATE IS FURTHER RESTRICTED BY PROVISIONS OF
THE CERTIFICATE OF DESIGNATIONS OF THE SERIES A PAYMENT-IN-KIND
PREFERRED STOCK CONTAINED IN THE AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION OF THE CORPORATION, A COPY OF WHICH WILL BE FURNISHED TO
THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE BY THE CORPORATION UPON
WRITTEN REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS."
6.4. "STOP TRANSFER" INSTRUCTIONS. A notation will be made in
the share transfer records of the Corporation and "stop transfer" instructions
will be issued with respect to the shares of Subject Stock so as to restrict the
resale, pledge, hypothecation or other transfer thereof, subject to the terms
hereof.
6.5. TERMINATION OF TRANSFER RESTRICTIONS. The provisions of
this Section 6 shall continue in full force and effect until the earlier to
occur of (i) one year after the consummation of a Change of Control of the
Corporation, (ii) the liquidation, dissolution or winding up, whether voluntary
or involuntary, of the Corporation or (iii) the Third Anniversary.
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7. OTHER DEFINITIONS.
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly or indirectly controls, or is under common control with, or
is owned or controlled by, the specified Person. For purposes of this
definition, (i) "control" means, with respect to any specified Person, either
(x) the beneficial ownership of 20% or more of any class of equity securities
issued by such Person or (y) the power to direct the management and policies of
the specified Person through the ownership of voting securities or other equity
interests, by contract or otherwise, and (ii) the terms "controlling," "control
with" and "controlled by," etc., shall have meanings correlative to the
foregoing.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which banks are authorized or required to close by law or executive order in
Atlanta, Georgia.
"CHANGE OF CONTROL" means (i) the merger, consolidation or other
business combination of the Corporation with or into another corporation or the
merger of another corporation (other than the Corporation or a wholly-owned
direct or indirect subsidiary of the Corporation) with or into the Corporation
with the effect that, immediately after such transaction, the stockholders of
the Corporation immediately prior to such transaction or series of transactions
hold less than a majority of the total voting power entitled to vote in the
election of directors, managers or trustees of the Person surviving such
transaction or series of transactions or (ii) the acquisition by any Person or
group of related Persons by way of merger, sale, transfer, consolidation or
other business combination or acquisition, of (x) all or substantially all of
the assets, property or business of the Corporation or (y) more than 35% of the
total voting power entitled to vote in the election of directors, managers or
trustees of the Corporation or such other Person as survives the transaction,
unless in each case the stockholders of the Corporation immediately prior to
such transaction hold immediately after such transaction 65% or more of the
total voting power entitled to vote in the election of directors, managers or
trustees of such Person.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
[SIGNATURES FOLLOW ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations to be signed by its authorized officers, this 25th day of January,
2000.
HEALTHEON/WEBMD CORPORATION
By: /s/ W. Michael Heekin
----------------------------------------
Name: W. Michael Heekin
Title: Executive Vice President
Attest:
By: /s/ Jack Dennison
-------------------------------------
Name: Jack Dennison
Title: Executive Vice President
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CERTIFICATE OF DESIGNATIONS
OF
SERIES B CONVERTIBLE REDEEMABLE PREFERRED STOCK
OF
HEALTHEON/WEBMD CORPORATION
(Pursuant to Section 151 of the General
Corporation Law of the State of Delaware)
Healtheon/WebMD Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "CORPORATION"), hereby
certifies that the following resolution was adopted by the Board of Directors of
the Corporation (the "BOARD OF DIRECTORS"):
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors by the Tenth Amended and Restated Certificate
of Incorporation of the Corporation (as amended from time to time, the
"CERTIFICATE OF INCORPORATION"), there hereby is created, out of the 5,000,000
shares of preferred stock, par value $.0001 per share, of the Corporation
authorized in Article IV of the Certificate of Incorporation (the "PREFERRED
STOCK"), a series of Preferred Stock (the "SERIES B PREFERRED STOCK") consisting
of 200 shares, which series shall have the powers, designations, preferences and
relative, participating, optional and other rights, and the qualifications,
limitations and restrictions (in addition to the powers, designations,
preferences and relative, participating, optional and other rights, and the
qualifications, limitations and restrictions, stated in the Certificate of
Incorporation as applicable to the Preferred Stock) set forth on EXHIBIT A
hereto.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations of the Series B Preferred Stock to be signed by its authorized
officers, this 12 day of September, 2000.
HEALTHEON/WEBMD CORPORATION
By: /s/ John L. Westermann III
----------------------------------
John L. Westermann III
Executive Vice President, Chief
Financial Officer and Treasurer
Attest:
By: /s/ Jack D. Dennison
---------------------------------
Jack D. Dennison
Executive Vice President, General
Counsel and Secretary
<PAGE> 14
EXHIBIT A
As used herein, the following terms have the following meanings (with
terms defined in the singular having comparable meanings when used in the plural
and vice versa), unless the context otherwise requires:
"ADDITIONAL SHARES OF COMMON STOCK" shall mean all shares of Common
Stock issued or issuable (whether upon the exercise of warrants, Convertible
Securities or otherwise) by the Corporation after the Issue Date, other than (a)
the Conversion Shares and (b) any shares of Common Stock issued or issuable
pursuant to evidences of indebtedness, shares of stock, warrants, rights or
other securities entered into or issuable before the Issue Date.
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, such specified
Person.
"AOL" shall mean America Online, Inc., a Delaware corporation.
"BOARD OF DIRECTORS" shall mean the board of directors of the
Corporation.
"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday or a
Legal Holiday.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however designated
and whether voting or non-voting) of, such Person's capital stock and any and
all rights, warrants or options exchangeable for or convertible into such
capital stock (but excluding any debt security whether or not it is exchangeable
for or convertible into such capital stock).
"CAREINSITE" shall mean CareInsite, Inc., a Delaware corporation.
"CHANGE OF CONTROL" shall mean the acquisition by a Person of
beneficial ownership of more than 50% of the voting Capital Stock of the
Corporation. For purposes hereof a Person shall be deemed the beneficial owner
of Capital Stock if such Person would be deemed a beneficial owner under Rule
13d-3, as in effect on the date hereof, under the Exchange Act.
"COMMON STOCK" shall mean the common stock, $.0001 par value per share,
of the Corporation.
"CONTROL" (including the terms "Controlled by" and "under common
Control with") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management and
policies of a Person, whether
<PAGE> 15
through the ownership of voting securities, as trustee or executor, by contract
or credit arrangement or otherwise.
"CONVERSION CONSIDERATION" shall have the meaning specified in Section
9(b).
"CONVERSION DETERMINATION DATE" shall mean March 16, 2002.
"CONVERSION PRICE" shall mean the applicable price at which Conversion
Shares shall be delivered upon conversion of shares of the Series B Preferred
Stock as specified in Section 9(b).
"CONVERSION SHARES" shall have the meaning specified in Section 9(b).
"CONVERSION TIME" shall have the meaning specified in Section 9(c).
"CONVERTIBLE SECURITIES" shall mean evidences of indebtedness, shares
of stock, warrants, rights or other securities entered into or issued after the
Issue Date which are exercisable, convertible or exchangeable, (including, but
not limited to, Options) with or without payment of additional consideration in
cash or property, for Additional Shares of Common Stock, either immediately or
upon the occurrence of a specified date or the happening of a specified event or
both.
"CORPORATION REDEMPTION DATE" shall have the meaning specified in
Section 5(b)(ii).
"EMPLOYEE OPTIONS" shall mean the options to acquire Common Stock that
may be granted to employees, consultants, officers and directors of the
Corporation.
"ENCUMBRANCE" shall mean any security interest, pledge, mortgage, lien,
charge, adverse claim of ownership or other encumbrance of any kind.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"FAIR MARKET VALUE" shall mean in respect of a share of Capital Stock
of the Corporation on any date herein specified, the fair value as determined in
good faith by the Board of Directors of the Corporation.
"GROUP" shall have the meaning set forth in Rule 13d-5, as in effect on
the date hereof, under the Exchange Act.
"HOLDER REDEMPTION DATE" shall have the meaning specified in Section
5(a).
"HOLDERS" shall mean the holders of the Series B Preferred Stock.
"ISSUE DATE" shall mean the date the initial shares of Series B
Preferred Stock are issued.
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"LEGAL HOLIDAY" shall mean any day on which banking institutions are
obligated or authorized to close in The City of New York.
"LIQUIDATION AMOUNT" shall mean, as of any date, an amount equal to
$100,000.00 per share of Series B Preferred Stock, plus all declared but unpaid
dividends to such date.
"LIQUIDATION RIGHT" shall mean for each share of Series B Preferred
Stock the Liquidation Amount or, if prior to the Conversion Determination Date
and if greater, the amount that would be received in liquidation following
conversion of a share of Series B Preferred Stock into Common Stock.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the then
outstanding shares of Series B Preferred Stock.
"NOTICE" shall have the meaning specified in Section 5(b).
"OPTION" shall mean any right, warrant or option to subscribe for or
purchase shares of Common Stock.
"OTHER PROPERTY" shall have the meaning set forth in Section 9(d)(vii).
"OUTSTANDING" shall mean, when used with reference to the Common Stock,
at any date as of which the number of shares thereof is to be determined, all
issued shares of Common Stock, except shares then owned or held by or for the
account of the Corporation or its subsidiaries, and all shares issuable in
respect of outstanding scrip or any certificates representing fractional
interests in shares of Common Stock.
"PERSON" means any individual, firm, corporation, partnership, limited
partnership, limited liability company, association, trust, unincorporated
organization or other entity, as well as any syndicate or Group that would be
deemed to be a person under Section 13(d)(3), as in effect on the date hereof,
of the Exchange Act.
"SERIES B PREFERRED STOCK" shall have the meaning specified in Section
1.
"THIRD PARTY" shall have the meaning specified in Section 11(b).
"WARRANTS" shall mean the Warrants subject to the Warrant Agreement,
dated as of September 15, 1999, between CareInsite and AOL.
SECTION 1. DESIGNATION AND AMOUNT. The designation of such
series of Preferred Stock shall be the Series B Convertible Redeemable Preferred
Stock (the "SERIES B PREFERRED STOCK"). The number of issuable shares of Series
B Preferred Stock shall be two hundred (200); provided that shares of Series B
Preferred Stock shall only be
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<PAGE> 17
issued pursuant to the Subscription Agreement, dated as of September 15, 1999
between CareInsite and AOL.
SECTION 2. RANK. All shares of Series B Preferred Stock, both as
to payment of dividends and to distribution of assets upon liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
shall rank (i) senior to all of the Corporation's now or hereafter issued Common
Stock or any other common stock of any class of the Corporation and (ii) senior
to all of the Corporation's now or hereafter issued Capital Stock which does not
expressly rank pari passu with the Series B Preferred Stock including, without
limitation, the Series A Payment-in-Kind Preferred Stock of the Corporation. The
Corporation shall not issue any Capital Stock senior to the Series B Preferred
Stock.
SECTION 3. DIVIDENDS. (a) The Holders shall not be entitled to
receive dividends except in accordance with this Section 3.
(b) If the Corporation declares and pays dividends on the Common
Stock in cash or property of the Corporation (but not dividends in shares of
Common Stock), then, in that event, the Holders shall be entitled to share in
such dividends on a pro rata basis, as if their shares of Series B Preferred
Stock had been converted into shares of Common Stock pursuant to Section 9
immediately prior to the record date for determining the stockholders of the
Corporation eligible to receive such dividends or, if such shares of Series B
Preferred Stock are no longer convertible into Common Stock immediately prior to
such record date, as if such shares of Series B Preferred Stock had been
converted into Common Stock on the Conversion Determination Date.
SECTION 4. LIQUIDATION RIGHT. Subject to the rights of holders
of any Capital Stock of the Corporation ranking pari passu with the Series B
Preferred Stock, in the event of a liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the Holders shall be entitled to
receive out of the assets of the Corporation, whether such assets are stated
capital or surplus of any nature, the Liquidation Right, before any payment
shall be made or any assets distributed to the holders of Common Stock or any
other class or series of the Corporation's Capital Stock ranking junior as to
liquidation rights to the Series B Preferred Stock. If the assets of the
Corporation available for distribution are not sufficient to pay an amount equal
to the Liquidation Right to the holders of outstanding shares of Series B
Preferred Stock (and any Capital Stock ranking pari passu with the Series B
Preferred Stock), then the assets of the Corporation shall be distributed
ratably among the Holders (and the holders of any Capital Stock ranking pari
passu with the Series B Preferred Stock). Neither a consolidation, merger or
other business combination of the Corporation with or into another corporation
or other entity nor a sale or offer of all or part of the Corporation's assets
for cash, securities or other property shall be considered a liquidation,
dissolution or winding up of the Corporation for purposes of this Section 4
(unless in connection therewith the liquidation of the Corporation is
specifically approved).
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<PAGE> 18
SECTION 5. REDEMPTION. (a) The Holders shall have the right to
compel the Corporation to redeem all (but not less than all) of the outstanding
shares of Series B Preferred Stock at the Liquidation Amount on either (i) the
Conversion Determination Date or (ii) the 30th day following the Corporation's
receipt of the notice described in the immediately following clause (A)(y) (such
date under either clause (i) or (ii) being hereinafter the "HOLDER REDEMPTION
DATE"); provided, however, that (A) the Corporation shall have received a
written demand that the Corporation redeem the Series B Preferred Stock (x) no
later than 30 days prior to the Conversion Determination Date in the case of a
redemption pursuant to the immediately preceding clause (i) or (y) prior to such
date occurring 30 days prior to the Conversion Determination Date and within 30
days of notification pursuant to Section 9(x)(D) of a Change of Control in the
case of a redemption pursuant to the immediately preceding clause (ii), (B) the
Holders shall not have given a Conversion Notice to the Corporation with respect
to the shares of Series B Preferred Stock to be redeemed and (C) redemption
shall be permitted only to the extent that it is permitted under the General
Corporation Law of Delaware. Shares of Series B Preferred Stock which are
subject to redemption but which have not been redeemed shall continue to be
entitled to the dividend and other rights, preferences and privileges of the
Series B Preferred Stock until such shares have been redeemed and the
Liquidation Amount has been paid or otherwise set aside with respect thereto;
provided, however, that all rights to convert the Series B Preferred Stock shall
cease on the receipt by the Corporation of the written demand referred to in
clause (A) of the first sentence of this Section 5(a). If, on or prior to the
Holder Redemption Date, all funds necessary for such redemption shall have been
set aside by the Corporation, separate and apart from its other funds, in trust
for the account of the holders of the shares so to be redeemed (as to be and
continue to be available therefor), then on and after the Holder Redemption
Date, notwithstanding that any certificate for any such shares of the Series B
Preferred Stock shall not have been surrendered for cancellation, all such
shares of the Series B Preferred Stock with respect to which such funds shall
have been set aside shall be deemed to be no longer outstanding and all rights
with respect to such shares of the Series B Preferred Stock shall forthwith
cease and terminate, except the right of the Holders to receive out of the funds
so set aside in trust the amount payable on the redemption thereof (including an
amount equal to accrued and unpaid dividends to the redemption date) without
interest thereon.
(b)(i) The Corporation shall have the right, at any time after the
Conversion Determination Date, at its option, upon not less than 10 days' prior
written notice ("NOTICE"), to redeem, out of funds legally available therefor,
all (but not less than all) of the then outstanding shares of Series B Preferred
Stock at the Liquidation Amount.
(ii) The Notice shall be given to each Holder of record of the Series B
Preferred Stock to be redeemed. Each such Notice of redemption shall specify the
date fixed for redemption (the "CORPORATION REDEMPTION DATE"), the place or
places of payment and that payment will be made upon presentation of and
surrender of the certificates evidencing the shares of Series B Preferred Stock
to be redeemed. Any failure to give such Notice, or any defect in such Notice,
to a Holder of any shares designated for redemption shall not affect the
validity of the proceedings for the
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<PAGE> 19
redemption of any shares of Series B Preferred Stock owned by other Holders to
whom such Notice was duly given. On or after the Corporation Redemption Date,
each Holder of the shares called for redemption shall surrender the certificate
evidencing such shares to the Corporation at the place designated in such Notice
and shall thereupon be entitled to receive payment of the Liquidation Amount. If
such Notice shall have been so given and if, on or prior to the Corporation
Redemption Date, all funds necessary for such redemption shall have been set
aside by the Corporation, separate and apart from its other funds, in trust for
the account of the holders of the shares so to be redeemed (as to be and
continue to be available therefor), then on and after the Corporation Redemption
Date, notwithstanding that any certificate for shares of the Series B Preferred
Stock so called for redemption shall not have been surrendered for cancellation,
all shares of the Series B Preferred Stock with respect to which such Notice
shall have been given and such funds shall have been set aside shall be deemed
to be no longer outstanding and all rights with respect to such shares of the
Series B Preferred Stock so called for redemption shall forthwith cease and
terminate, except the right of the Holders to receive out of the funds so set
aside in trust the amount payable on the redemption thereof (including an amount
equal to accrued and unpaid dividends to the Corporation Redemption Date)
without interest thereon.
(c) The Holder of any shares of Series B Preferred Stock redeemed
under Section 5(a) or Section 5(b) shall not be entitled to receive payment of
the Liquidation Amount for such shares until such Holder shall cause to be
delivered to the Corporation (i) the certificate(s) representing such shares of
Series B Preferred Stock to be redeemed and (ii) transfer instrument(s)
satisfactory to the Corporation and sufficient to transfer such shares of Series
B Preferred Stock to the Corporation free of any Encumbrances; provided that the
foregoing is subject to the other provisions of the Corporation's Amended and
Restated Bylaws governing lost certificates generally.
SECTION 6. VOTING RIGHTS.
(a) GENERAL. Except as provided in Section 6(b) or as provided by
law, the Series B Preferred Stock shall not have any voting rights.
(b) CLASS VOTING RIGHTS.
(i) Actions Requiring Affirmative Vote. So long as shares of
Series B Preferred Stock are outstanding, the Corporation shall not, directly or
indirectly, or through merger or consolidation with any other person, without
the affirmative vote or consent of the Majority Holders, with the Holders voting
separately as a class,
(A) amend, alter or repeal (by merger, consolidation or otherwise)
any provision of the Certificate of Incorporation or the Bylaws of the
Corporation, as amended, so as to affect adversely the relative rights,
preferences, powers (including, without limitation, voting powers) and
privileges of the Series B Preferred Stock, provided that nothing herein shall
provide the Holders with a right to vote on the matters set forth in Section
9(d)(vii),
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<PAGE> 20
(B) authorize or issue any new class of shares of Capital Stock
having a preference with respect to dividends, redemption and/or liquidation
over the Series B Preferred Stock, or
(C) reclassify any of its Capital Stock into shares having a
preference with respect to dividends, redemption and/or liquidation over the
Series B Preferred Stock.
In connection with any right to vote pursuant to this Section 6(b)(i), each
Holder will have one vote for each share of Series B Preferred Stock held.
(ii) Special Meeting. Whenever the rights described in Section
6(b)(i) above shall vest, they may be exercised initially by the vote of the
Majority Holders present and voting, in person or by proxy, at a special meeting
of Holders or by written consent of the Majority Holders without a meeting.
Unless such action shall have been taken by written consent as aforesaid, a
special meeting of the Holders for the exercise of any such right shall be
called by the Secretary of the Corporation as promptly as possible in compliance
with applicable law and regulations, and in any event within 10 days after
receipt of a written request signed by the Holders of record of at least 25% of
the then outstanding shares of the Series B Preferred Stock, subject to any
applicable notice requirements imposed by law or by any national securities
exchange on which any Series B Preferred Stock is listed. Such meeting shall be
held at the earliest practicable date thereafter.
(iii) Stockholders' Right to Call Meeting. If any meeting of the
Holders required by this subparagraph (b) to be called shall not have been
called within 10 days after receipt of a written request therefor by the
Secretary of the Corporation, subject to any applicable notice requirements
imposed by law or any national securities exchange on which any Series B
Preferred Stock is then listed, then the Holders of record of at least 25% of
the then outstanding shares of the Series B Preferred Stock may designate in
writing a Holder of the Series B Preferred Stock to call such meeting at the
reasonable expense of the Corporation, and such meeting may be called by such
Person so designated upon the notice required for annual meetings of
stockholders or such shorter notice (but in no event shorter than permitted by
law or any national securities exchange on which the Series B Preferred Stock is
then listed) as may be acceptable to the Majority Holders. Any Holder of Series
B Preferred Stock so designated shall have reasonable access to the stock books
of the Corporation relating solely to the Series B Preferred Stock for the
purpose of causing such meeting to be called pursuant to these provisions.
SECTION 7. OUTSTANDING SHARES. For purposes of this Resolution,
all shares of Series B Preferred Stock that have been issued shall be deemed
outstanding except (a) from the Conversion Determination Date if a demand for
redemption pursuant to Section 5(a) has been received by the Corporation or date
fixed for redemption pursuant to Section 5(b), as the case may be, all shares of
Series B Preferred Stock that are to be redeemed pursuant to Section 5 if funds
necessary for payment of the amounts to be paid in connection with such
redemption have been irrevocably deposited in trust, for the account of the
Holders of the shares so to be redeemed (so as to be and continue to be
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<PAGE> 21
available therefor), with a corporation organized and doing business under the
laws of the United States or any State or territory thereof or of the District
of Columbia (or a corporation or other person permitted to act as a trustee by
the United States Securities and Exchange Commission), authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $100,000,000 and subject to supervision or examination by Federal,
State or District of Columbia or territorial authority; and (b) from the date of
registration of transfer, all shares of Series B Preferred Stock held of record
by the Corporation or any subsidiary of the Corporation.
SECTION 8. STATUS OF ACQUIRED SHARES. The Corporation shall take
all such actions as are necessary to cause any shares of Series B Preferred
Stock redeemed by the Corporation, received upon conversion pursuant to Section
9, or otherwise acquired by the Corporation, to be restored to the status of
authorized and unissued shares of preferred stock, without designation as to
series, and such shares may thereafter be issued, but not as shares of Series B
Preferred Stock.
SECTION 9. CONVERSION.
(a) CONVERSION RIGHT. Except as otherwise provided herein, the
Holders shall have the right to convert, on the Conversion Determination Date,
all (but not less than all) of the then outstanding shares of Series B Preferred
Stock into the Conversion Consideration; provided, however, that the Corporation
shall have received, no later than 5:00 p.m., New York time, on the date that is
30 days prior to the Conversion Determination Date (the "CONVERSION NOTICE
DEADLINE"), a notice (a "CONVERSION NOTICE") specifying the number of shares to
be converted pursuant to this Section 9. In the event that the Corporation
elects to exercise its right under Section 11(b) to require a sale of shares of
Series B Preferred Stock to a Third Party, notwithstanding anything herein to
the contrary, the Board of Directors, in its sole discretion, may change the
Conversion Determination Date, effective upon the consummation of such sale, to
a date that is after March 16, 2002.
(b) CONVERSION PRICE. At the Conversion Time, each share of Series
B Preferred Stock for which conversion has been requested in a Conversion
Notice, shall be converted into (i) such number of fully paid and non-assessable
shares of the Common Stock ("CONVERSION SHARES") as is determined by dividing
the Liquidation Amount by the Conversion Price, determined as hereinafter
provided, in effect at the Conversion Time and rounding the result to the
nearest 1/100th of a share and (ii) a Warrant (collectively, the "CONVERSION
CONSIDERATION") to purchase such number of shares of Common Stock as shall be
equal to the number of Conversion Shares received upon conversion of the share
of Series B Preferred Stock pursuant to clause (i) of this Section 9(b). If a
Holder converts more than one share at the same time, the number of full shares
issuable upon the conversion shall be based upon the total number of shares
converted. The Conversion Price shall initially be $37.885 per share. Such
initial Conversion Price shall be subject to adjustment, in order to adjust the
number of shares of Common Stock into which the Series B Preferred Stock is
convertible, as hereinafter
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provided. Upon the making of a demand to the Corporation for redemption pursuant
to Section 5(a), all shares of Series B Preferred Stock shall cease to be
convertible.
(c) PROCEDURE. In order to convert shares of the Series B
Preferred Stock into Conversion Consideration, the Holder thereof shall, in
addition to delivering a timely Conversion Notice pursuant to Section 9(a),
surrender at the office of any transfer agent for the Series B Preferred Stock
(or in the absence of any transfer agent, the Corporation) the certificate or
certificates therefor, duly endorsed to the Corporation or in blank prior to the
close of business on the Conversion Determination Date. Shares of the Series B
Preferred Stock so surrendered shall be deemed to have been converted
immediately prior to the close of business on the Conversion Determination Date
or, if later, the time at which any applicable waiting period (and any extension
thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, shall have expired or shall have been terminated (hereinafter, the
"CONVERSION TIME"), and the person or persons entitled to receive Conversion
Consideration issuable upon such conversion shall be treated for all purposes as
the record holder or holders of such Conversion Consideration at the Conversion
Time. No later than 10 days after the Conversion Time, the Corporation shall
issue and deliver to the Holder the certificate or certificates for the number
of full Conversion Shares issuable upon such conversion, together with a cash
payment in lieu of any fraction of a Conversion Share, as hereinafter provided,
and the Warrant to the person or persons entitled to receive the same or to the
nominee or nominees of such person or persons.
(d) ADJUSTMENTS TO THE NUMBER OF CONVERSION SHARES AND/OR THE
CONVERSION PRICE. The number of Conversion Shares and/or the Conversion Price
shall be subject to adjustment from time to time as set forth in this Section
9(d) for events occurring prior to the Conversion Time.
(i) Stock Dividends, Subdivisions and Combinations. If, at any
time prior to the Conversion Time, the Corporation shall:
(A) pay a dividend or make a distribution on its Common Stock in
Additional Shares of Common Stock (this adjustment will be deemed to occur
immediately after the record date);
(B) subdivide its outstanding shares of Common Stock into a larger
number of shares of Common Stock; or
(C) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock;
then (1) the number of Conversion Shares into which a share of Series B
Preferred Stock is convertible shall be adjusted to equal the number of shares
of Common Stock which a record holder of the same number of Conversion Shares
for which the Series B Preferred Stock is convertible immediately prior to the
occurrence of such event would own or be entitled to receive after the happening
of such event, and (2) the Conversion Price shall
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be adjusted to equal (x) the Conversion Price multiplied by the number of
Conversion Shares into which a share of Series B Preferred Stock is convertible
immediately prior to the adjustment divided by (y) the number of Conversion
Shares into which a share of Series B Preferred Stock is exercisable immediately
after such adjustment.
(ii) Issuance of Additional Shares of Common Stock. (A) If, at any
time prior to the Conversion Time, the Corporation shall (except as hereinafter
provided in Section 9(d)(ii)(B)) issue or sell any Additional Shares of Common
Stock and such Additional Shares of Common Stock are issued or sold for no
consideration or for consideration in an amount per additional share of Common
Stock less than the Fair Market Value, then the Conversion Price shall be
reduced to a price determined by multiplying (1) the Conversion Price by (2) a
fraction, (x) the numerator of which is the sum of (I) the number of shares of
Common Stock Outstanding immediately prior to such issuance or sale, plus (II)
an amount equal to the quotient arrived at by dividing the aggregate
consideration, if any, received by the Corporation upon such issuance or sale,
by the Fair Market Value per share of the shares so issued or sold, and (y) the
denominator of which is the number of shares of Common Stock Outstanding
immediately after such issuance or sale.
(B) The provisions of Section 9(d)(ii)(A) shall not apply to any
issuance of Additional Shares of Common Stock for which an adjustment is
provided under Sections 9(d)(i) or 9(d)(vii). No adjustment of the number of
Conversion Shares or the Conversion Price shall be made under Section
9(d)(ii)(A) upon the issuance of any Additional Shares of Common Stock which are
issued pursuant to the exercise, conversion or exchange of any Convertible
Securities.
(iii) Issuance of Convertible Securities. If, at any time prior to
the Conversion Time, the Corporation shall issue or sell, any Convertible
Securities, and the price per share for which Common Stock is initially issuable
upon the exercise, conversion or exchange of such Convertible Securities shall
be less than the Fair Market Value in effect immediately prior to the time of
such issue or sale of Convertible Securities, then the Conversion Price shall be
adjusted as provided in Section 9(d)(ii)(A) on the basis that (A) the maximum
number of Additional Shares of Common Stock issuable pursuant to all such
Convertible Securities shall be deemed to have been issued and outstanding, (B)
the price per share for such Additional Shares of Common Stock shall be deemed
to be the lowest possible price per share in any range of prices per share at
which such Additional Shares of Common Stock are available to such holders, and
(C) the Corporation shall have received all of the consideration payable
therefor, if any, as of the date of the actual issuance of such Convertible
Securities. No further adjustments of the Conversion Price shall be made upon
the actual issue of Additional Shares of Common Stock upon exercise, conversion
or exchange of such Convertible Securities.
(iv) Superseding Adjustment. If, at any time after any adjustment
of the Conversion Price and/or the number of Conversion Shares shall have been
made pursuant to Section 9(d)(iii) as the result of any issuance of Convertible
Securities, and either
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(A) the right of exercise, conversion or exchange for such
Convertible Securities shall expire and all or a portion of such rights with
respect to all or a portion of such other Convertible Securities, as the case
may be, shall not have been exercised, or
(B) the consideration per share for which shares of Common Stock
are issuable pursuant to such Convertible Securities,
shall be increased, then such previous adjustment shall be rescinded and
annulled and the Additional Shares of Common Stock which were deemed to have
been issued by virtue of the computation made in connection with the adjustment
so rescinded and annulled shall no longer be deemed to have been issued by
virtue of such computation. Thereupon, a recomputation shall be made of the
effect of such Convertible Securities on the basis of
(C) treating the number of Additional Shares of Common Stock
theretofore actually issued or issuable pursuant to the previous exercise,
conversion or exchange, as having been issued on the date or dates of any such
exercise, conversion or exchange and for the consideration actually received and
receivable therefor, and
(D) treating any such Convertible Securities which then remain
outstanding as having been granted or issued immediately after the time of such
increase of the consideration per share for which shares of Common Stock are
issuable under such Convertible Securities.
(v) Liquidation; Dissolution. If, at any time prior to the
Conversion Notice Deadline, or, if a valid Conversion Notice has been delivered
to the Corporation prior thereto, at any time prior to the Conversion Time, the
Corporation shall dissolve, liquidate or wind up its affairs, the Holder shall
have the right, but not the obligation, to convert the Series B Preferred Stock
effective as of the date of such dissolution, liquidation or winding up;
provided that written notice of such intent to exercise is delivered to the
Corporation within ten (10) business days of the date that the Holder receives
written notice of the Corporation's intent to dissolve, liquidate or wind up its
affairs.
(vi) Other Provisions Applicable to Adjustments Under This Section.
The following provisions shall be applicable to the making of adjustments of the
number of Conversion Shares and/or the Conversion Price provided for in this
Section 9(d);
(A) Computation of Consideration. To the extent that any
Additional Shares of Common Stock or any Convertible Securities shall be issued
for cash consideration, the consideration received by the Corporation therefor
shall be the amount of the cash received by the Corporation therefor, or, if
such Additional Shares of Common Stock or Convertible Securities are offered by
the Corporation for subscription, the subscription price, or, if such Additional
Shares of Common Stock or Convertible Securities are sold to underwriters or
dealers for public offering without a subscription offering, the public offering
price (in any such case subtracting any amounts paid or receivable for accrued
interest or accrued dividends, but not subtracting any compensation, discounts
or
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expenses paid or incurred by the Corporation for and in the underwriting of, or
otherwise in connection with, the issuance thereof). To the extent that such
issuance shall be for a consideration other than cash, then, except as herein
otherwise expressly provided, the amount of such consideration shall be deemed
to be the fair value of such consideration at the time of such issuance as
determined in good faith by the Board of Directors of the Corporation. The
consideration for any Additional Shares of Common Stock issuable pursuant to the
terms of any Convertible Securities shall be the consideration, if any, received
by the Corporation for issuing such Convertible Securities, plus the
consideration paid or payable to the Corporation in respect of the subscription
for or purchase of such Convertible Securities, plus the additional
consideration, if any, payable to the Corporation upon the exercise, conversion
or exchange of such Convertible Securities. In case of the issuance at any time
of any Additional Shares of Common Stock or Convertible Securities in payment or
satisfaction of any dividends upon any class of stock other than Common Stock,
the Corporation shall be deemed to have received for such Additional Shares of
Common Stock or Convertible Securities consideration equal to the amount of such
dividend so paid or satisfied.
(B) When Adjustments Are Made. The adjustments required by this
Section 9(d) shall be made whenever and as often as any specified event
requiring an adjustment shall occur, except that any adjustment of the number of
Conversion Shares or of the Conversion Price that would otherwise be required
may be postponed (except in the case of a subdivision or combination of shares
of the Common Stock, as provided for in Section 9(d)(i)) up to, but not beyond,
the date of exercise if such adjustment either by itself or with other
adjustments not previously made adds or subtracts less than one percent (1%) of
the Conversion Shares or of the Conversion Price immediately prior to the making
of such adjustment. Any adjustment representing a change of less than such
minimum amount (except as aforesaid) which is postponed shall be carried forward
and made as soon as such adjustment, together with other adjustments required by
this Section 9(d) and not previously made, would result in a minimum adjustment,
but in no event later than the Conversion Determination Date. For the purpose of
any adjustment, any specified event shall be deemed to have occurred at the
close of business on the date of its occurrence.
(C) Fractional Interests. In computing adjustments under this
Section 9(d), fractional interests in Common Stock shall be taken into account
to the nearest 1/10th of a share.
(D) When Adjustment Not Required. If the Corporation shall take a
record of the holders of its Common Stock for the purpose of entitling them to
receive a dividend or distribution or subscription or purchase rights and shall,
thereafter and before the distribution to stockholders thereof, legally abandon
its plan to pay or deliver such dividend, distribution, subscription or purchase
rights, then thereafter no adjustment shall be required by reason of the taking
of such record and any such adjustment previously made in respect thereof shall
be rescinded and annulled. The adjustments pursuant to this Section 9(d) shall
not apply to: (I) any Convertible Securities which are issued to officers,
directors, employees, or consultants of the Corporation pursuant to a bona fide
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plan or plans adopted in good faith by the Board of Directors of the
Corporation; (II) any Additional Shares of Common Stock issued to such officers,
directors, employees, or consultants of the Corporation upon the exchange,
conversion or exercise of the Convertible Securities described in the
immediately preceding clause (I); (III) Additional Shares of Common Stock,
Convertible Securities and other securities issued in connection with
investments in, acquisitions of, or mergers, combinations or other strategic
relationships with, other companies, provided, however, that if such issuance is
to an Affiliate of the Corporation, the Board of Directors shall have determined
in good faith that such issuance was made on fair and reasonable terms no less
favorable to the Corporation than could be obtained in a comparable arm's-length
transaction with a Person that is not an Affiliate of the Corporation; (IV)
Additional Shares of Common Stock issued in a bona fide public offering pursuant
to a firm commitment underwriting or sales at the market pursuant to a
continuous offering stock program; (V) Additional Shares of Common Stock issued
in any private placement or other transaction exempt from the registration
requirements of the Securities Act pursuant to a firm commitment underwriting;
(VI) rights to purchase Additional Shares of Common Stock or issuance of
Additional Shares of Common Stock pursuant to a dividend reinvestment plan or
other plan hereafter adopted for the reinvestment of dividends or interest;
(VII) a change in the par value or no par value of the Common Stock (other than
as a consequence of an event described in Section 9(d)(i)(B), 9(d)(i)(C) or
9(d)(vii) for which an adjustment to the number of Conversion Shares or the
Conversion Price is required pursuant to such Section; or (VIII) non-stock
dividends or distributions paid by the Corporation, except to the extent
otherwise provided in Section 9(d)(ix). In addition, to the extent that the
Series B Preferred Stock becomes convertible into cash, no interest shall accrue
on such cash. In addition, no adjustment need be made for a transaction if all
Holders of Series B Preferred Stock are entitled to participate in the
transaction on a basis and with notice that the Board of Directors determines to
be fair and appropriate in light of the basis and notice on which holders of
Common Stock participate in the transaction.
(vii) Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets. In case the Corporation shall, at any time prior to the
Conversion Time, reorganize its capital, reclassify its capital stock,
consolidate or merge with or into another corporation (where the Corporation is
not the surviving corporation, a reverse triangular merger in which the
Corporation is the surviving entity but the shares of the Corporation's Capital
Stock outstanding immediately prior to the merger are converted, by virtue of
the merger, into other property, whether in the form of cash, securities or
otherwise, or where there is a change in or distribution with respect to the
Common Stock of the Corporation), or sell, transfer or otherwise dispose of all
or substantially all its property, assets or business to another Person and,
pursuant to the terms of such reorganization, reclassification, merger,
consolidation or disposition of assets, shares of Common Stock of any successor
or acquiring corporation or of the Corporation (as applicable), or any cash,
shares of stock or other securities or property of any nature whatsoever
(including, warrants or other subscription or purchase rights) in addition to or
in lieu of Common Stock of the successor or acquiring corporation or of the
Corporation (as applicable) ("OTHER PROPERTY"), are to be received by or
distributed to the holders of Common Stock of the Corporation, then the Holder
shall have the right thereafter to
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<PAGE> 27
receive, upon conversion of a share of Series B Preferred Stock, the number of
shares of Common Stock of the successor or acquiring corporation or of the
Corporation, if it is the surviving corporation, and Other Property receivable
upon or as a result of such reorganization, reclassification, merger,
consolidation or disposition of assets by a holder of the number of shares of
Conversion Stock that would be received upon conversion of a share of Series B
Preferred Stock immediately prior to such event; provided, however, that this
Section 9(d)(vii) shall not apply to the extent any action causes an adjustment
to be made pursuant to Sections 9(d)(i), (ii), (iii) or (v) hereof. For purposes
of this Section 9(d)(vii) "Common Stock of any successor or acquiring
corporation" shall include stock of such corporation of any class which is not
preferred as to dividends or assets over any other class of stock of such
corporation and which is not subject to redemption and shall also include any
evidences of indebtedness, shares of stock or other securities which are
convertible into or exchangeable for any such stock, either immediately or upon
the arrival of a specified date or the happening of a specified event and any
warrants or other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 9(d)(vii) shall similarly apply to
successive reorganizations, reclassifications, mergers, consolidations or
dispositions of assets at any time prior to the Conversion Time, and to the
stock or securities of any other corporation that are at the time receivable by
the Holders upon conversion of shares of Series B Preferred Stock.
(viii) Reclassifications. If, at any time prior to the Conversion
Time, the Corporation changes any of the securities into which shares of Series
B Preferred Stock are convertible into the same or a different number of
securities of any other class or classes, each share of Series B Preferred Stock
shall thereafter be convertible into such number and kind of securities as would
have been issuable as the result of such change with respect to the securities
into which a share of Series B Preferred Stock was convertible immediately prior
to such reclassification or other change and the Conversion Price therefore
shall be appropriately adjusted.
(ix) Extraordinary Dividends. If, at any time prior to the
Conversion Time, the Corporation declares and pays an extraordinary dividend
(i.e., a dividend that is inconsistent with the Corporation's dividend policy
adopted by the Board of Directors other than a customary initial dividend), and
the failure thereupon to make any adjustment pursuant to this Section 9(d) would
not fairly protect the conversion rights of the Holders of Series B Preferred
Stock in accordance with the essential intent and principles hereof, then, in
such case, the Corporation shall appoint a firm of independent certified public
accountants of recognized national standing (which may be the regular
independent auditors of the Corporation) or independent investment banking firm
of recognized national standing, which shall give their opinion upon the
adjustment, if any, on a basis consistent with the essential intent and
principles established in this Section 9, necessary to preserve, without
dilution, the conversion rights of the Holders of Series B Preferred Stock. Upon
receipt of such opinion, the Corporation will promptly mail a copy thereof to
each Holder of shares of Series B Preferred Stock and shall make the adjustment,
if any, described therein.
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(x) Other Notices. In case at any time prior to the Conversion
Time:
(A) there shall be any capital reorganization, or reclassification
of the capital stock of the Corporation, or consolidation or merger of the
Corporation with another corporation (other than a subsidiary of the Corporation
in which the Corporation is the surviving or continuing corporation and no
change occurs in the Corporation's Common Stock), or sale of all or
substantially all of its assets to, another corporation;
(B) there shall be a voluntary or involuntary dissolution,
liquidation, bankruptcy, assignment for the benefit of creditors, or winding up
of the Corporation;
(C) the Corporation shall declare any non-cash dividend on its
Common Stock; or
(D) there shall be a Change of Control;
then, in any one or more of said cases, the Corporation shall give written
notice to the Holders of the date (or, if not then known, a reasonable
approximation thereof by the Corporation) on which such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
bankruptcy, assignment for the benefit of creditors, winding up or other action
or dividend, as the case may be, shall take place. Such notice shall also
specify (or, if not then known, reasonably approximate) the date as of which the
holders of Common Stock of record shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
bankruptcy, assignment for the benefit of creditors, winding up, or other
action, or the date of such dividend, as the case may be. Such notice shall be
given to each Holder: at least twenty days prior to the record date for such
action in the case of any action described in Subsection (A) or Subsection (B)
above; in the case of any action described in Subsection (C) above, at least
twenty days prior to the day on which the action described is to take place and
at least twenty days prior to the record date for determining holders of Common
Stock entitled to receive securities and/or other property in connection with
such action; and in the case of a Change of Control, within 30 days of the
occurrence of Change of Control.
As soon as practicable following any adjustment of the Conversion Price
and/or the number of Conversion Shares, a certificate, signed by (i) the
Corporation's President or Chief Financial Officer, or (ii) any independent firm
of certified public accountants, or investment banking firm, in either case of
recognized national standing, which the Corporation selects at its own expense,
setting forth in reasonable detail the events requiring the adjustment and the
method by which such adjustment was calculated, shall be mailed to the Holders
and shall specify the Conversion Price and/or the number of Conversion Shares
after giving effect to the adjustment.
(e) NO IMPAIRMENT. The Corporation shall not, by amendment of its
charter or bylaws or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issuance or sale of securities or
any other voluntary
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action, seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Corporation, but shall at all times in
good faith assist in the carrying out of all the provisions of this Section 9.
SECTION 10. SEVERABILITY OF PROVISIONS. Whenever possible, each
provision hereof shall be interpreted in a manner as to be effective and valid
under applicable law, but if any provision hereof is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating or otherwise
adversely affecting the remaining provisions hereof. If a court of competent
jurisdiction should determine that a provision hereof would be valid or
enforceable if a period of time were extended or shortened or a particular
percentage were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and valid under
applicable law.
SECTION 11. TRANSFERS. (a) Shares of the Series B Preferred Stock
and the certificates representing such shares and all rights thereunder are
non-transferable, and may not be sold, transferred, pledged, hypothecated, or
assigned without the prior written consent of the Corporation (which may be
withheld in the Corporation's sole discretion), except for a transfer of all or
part of the shares of Series B Preferred Stock held by a Holder (i) to a
majority owned Affiliate of a Holder or (ii) in connection with the distribution
of all of the assets of a Holder pursuant to a liquidation, dissolution or
winding up of the affairs of a Holder, or the sale of all or substantially all
of a Holder's assets or a merger or consolidation of a Holder where the Holder
is not the surviving entity; provided, however, in no event (other than, in the
case AOL is the Holder, in connection with the sale of all or substantially all
of AOL's assets or a merger or consolidation of AOL where AOL is not the
surviving entity) may a Holder make a transfer to a competitor of the
Corporation. Any such prohibited transfer made without the Corporation's consent
shall be void ab initio.
(b) At any time after the Holders have made a valid demand for
redemption of the Series B Preferred Stock pursuant to Section 5 and prior to
the Holder Redemption Date, the Corporation may, to the fullest extent permitted
by applicable law, require that, in lieu of such redemption, (i) the Holders
sell, free and clear of any Encumbrances, all or any portion of the Series B
Preferred Stock at the Liquidation Amount therefor to a third party identified
by the Corporation in a notice given to each Holder of record of the Series B
Preferred Stock no later than three Business Days prior to the Holder Redemption
Date or (ii) the Holders sell, free and clear of any Encumbrances, all or any
portion of the Series B Preferred Stock at an amount less than the Liquidation
Amount therefor to a third party so identified by the Corporation (the "THIRD
PARTY") no later than three Business Days prior to the Holder Redemption Date,
provided that the Corporation shall pay to the Holders the difference between
the amount paid by the Third Party and the Liquidation Amount therefor. The sale
to the Third Party shall be made at a closing held at the offices of the
Corporation at a time prior to the Holder Redemption Date, as mutually agreed by
the Holders and the Corporation. At the closing, the Holder shall deliver stock
certificates evidencing the shares of Series B Preferred Stock to be purchased,
duly endorsed in blank, or accompanied by stock powers duly executed in
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blank, in form satisfactory to the Corporation and the Third Party and with all
required stock transfer tax stamps affixed thereto and the Third Party (or the
Third Party and the Corporation) shall pay an amount equal to the Liquidation
Amount therefor by wire transfer of immediately available funds. Other than the
foregoing, without the prior written consent of the Holders, the Holders shall
have no obligations in connection with such sale other than delivery of such
Series B Preferred Stock, free and clear of any Encumbrances. The Corporation
shall pay all reasonable third party expenses (other than income and similar
taxes) incurred by the Holders in connection with a sale hereunder.
SECTION 12. NOTICES. (a) 45 days prior to the Conversion
Determination Date, the Corporation shall give to the Holders a notice setting
forth the Conversion Determination Date and soliciting from the Holders receipt
of a notice of redemption pursuant to Section 5(a)(i) or a Conversion Notice.
(b) All notices, demands or other communications hereunder shall
be in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by courier service, by
registered or certified mail (post prepaid, return receipt requested) (i) to the
Corporation, at the Corporation's principal executive offices and (ii) to a
Holder, at such Holder's address as it shall appear upon the stock transfer
books of the Corporation.
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CERTIFICATE OF AMENDMENT
OF THE
TENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
Healtheon/WebMD Corporation ("HEALTHEON/WEBMD"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, does hereby certify as follows:
1. That at a meeting of the Board of Directors of Healtheon/WebMD
resolutions were duly adopted setting forth a proposed amendment to the Tenth
Amended and Restated Certificate of Incorporation of Healtheon/WebMD, declaring
said amendment to be advisable and calling a meeting of the stockholders of said
corporation for consideration thereof. The resolution setting forth the proposed
amendment is attached as Exhibit A.
2. That thereafter, pursuant to resolutions of its Board of
Directors, an annual meeting of the stockholders was duly called and held, upon
notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware at which meeting the necessary number of shares as required by
statute were voted in favor of the amendment.
3. That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
[SIGNATURE FOLLOWS ON THE NEXT PAGE]
<PAGE> 32
IN WITNESS WHEREOF, the undersigned have executed this Certificate as
of the 12 day of September, 2000.
HEALTHEON/WEBMD CORPORATION
By: /s/ John L. Westermann III
-----------------------------------------
John L. Westermann III
Executive Vice President, Chief Financial
Officer and Treasurer
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<PAGE> 33
EXHIBIT A
TO
CERTIFICATE OF AMENDMENT OF THE TENTH AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION OF HEALTHEON/WEBMD CORPORATION
RESOLUTIONS OF THE BOARD OF DIRECTORS OF
HEALTHEON/WEBMD CORPORATION ADOPTED JUNE 18, 2000
FURTHER RESOLVED, that the Board of Directors hereby adopts an
amendment (the "CHARTER AMENDMENT") to the Corporation's Tenth Amended and
Restated Certificate of Incorporation (the "CERTIFICATE OF INCORPORATION")
providing for the amendment of Article I of the Certificate of Incorporation to
change the Corporation's name to "WebMD Corporation" and declares the Charter
Amendment advisable;
FURTHER RESOLVED, that the Board of Directors hereby authorizes and
directs that the Charter Amendment be included in the notice of special meeting
for the special meeting of stockholders authorized by the Board at its February
13, 2000 meeting;
FURTHER RESOLVED, that the Board of Directors hereby recommends that
stockholders of the Corporation vote in favor of and adopt and approve the
Charter Amendment;
