SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form 10-Q
[X] Quarterly report pursuant to Section 13 or 15(d) of the
Securities Act of 1934 for the quarterly period ended
September 30, 1998 or
[ ] Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Commission file number: 0-12024
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MAXICARE HEALTH PLANS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 95-3615709
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1149 South Broadway Street, Los Angeles, California 90015
- --------------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (213)765-2000
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Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [ X ] No [ ]
Indicate by check mark whether the registrant has filed all
documents and reports required to be filed by Sections 12, 13, or
15(d) of the Securities Exchange Act of 1934 subsequent to the
distribution of securities under a plan confirmed by a court.
Yes [ X ] No [ ]
Common Stock, $.01 par value - 17,925,381 shares outstanding as
of November 13, 1998.
<PAGE>
PART I: FINANCIAL INFORMATION
---------------------
Item 1: Financial Statements
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MAXICARE HEALTH PLANS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands except par value)
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
------------- ------------
<S> <C> <C>
CURRENT ASSETS (Unaudited)
Cash and cash equivalents................................. $ 38,676 $ 51,881
Marketable securities..................................... 21,459 47,843
Accounts receivable, net.................................. 39,813 26,024
Deferred tax asset........................................ 18,159 18,061
Prepaid expenses.......................................... 7,468 6,763
Other current assets...................................... 677 653
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TOTAL CURRENT ASSETS.................................... 126,252 151,225
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PROPERTY AND EQUIPMENT
Leasehold improvements.................................... 5,441 5,441
Furniture and equipment................................... 17,702 18,135
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23,143 23,576
Less accumulated depreciation and amortization.......... 21,804 22,330
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NET PROPERTY AND EQUIPMENT.............................. 1,339 1,246
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LONG-TERM ASSETS
Long-term receivables..................................... 509
Restricted investments.................................... 14,130 14,135
Intangible assets, net.................................... 272 307
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TOTAL LONG-TERM ASSETS.................................. 14,402 14,951
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TOTAL ASSETS............................................ $ 141,993 $ 167,422
============= ============
CURRENT LIABILITIES
Estimated claims and other health care costs payable...... $ 68,324 $ 67,334
Accounts payable.......................................... 748 528
Deferred income........................................... 2,141 7,220
Accrued salary expense.................................... 2,458 3,304
Reserve for loss contracts and divestiture costs.......... 4,444
Other current liabilities................................. 4,697 7,805
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TOTAL CURRENT LIABILITIES............................... 82,812 86,191
LONG-TERM LIABILITIES....................................... 247 195
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TOTAL LIABILITIES....................................... 83,059 86,386
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SHAREHOLDERS' EQUITY
Common stock, $.01 par value - 40,000 shares authorized,
1998 - 17,925 shares and 1997 - 17,936 shares issued and
outstanding............................................. 179 179
Additional paid-in capital................................ 254,250 254,376
Notes receivable from shareholders ....................... (4,934) (4,704)
Accumulated deficit....................................... (190,659) (168,815)
Accumulated other comprehensive income.................... 98
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TOTAL SHAREHOLDERS' EQUITY.............................. 58,934 81,036
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TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY.............. $ 141,993 $ 167,422
============= ============
See notes to consolidated financial statements.
</TABLE>
<PAGE>
MAXICARE HEALTH PLANS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts in thousands except per share data)
(Unaudited)
<TABLE>
<CAPTION>
For the three For the nine
months ended months ended
September 30, September 30,
------------------- -------------------
<S> <C> <C> <C> <C>
1998 1997 1998 1997
-------- -------- -------- --------
REVENUES (Restated)
Commercial premiums................................. $119,390 $112,804 $358,160 $341,606
Governmental premiums............................... 67,537 58,303 193,690 142,911
Other income........................................ 407 609 1,612 4,765
-------- -------- -------- --------
TOTAL REVENUES.................................... 187,334 171,716 553,462 489,282
-------- -------- -------- --------
EXPENSES
Physician services.................................. 75,441 70,105 222,124 196,303
Hospital services................................... 68,780 73,060 201,864 177,730
Outpatient services................................. 26,218 28,312 86,444 74,309
Other health care services.......................... 3,392 5,647 11,995 12,408
-------- -------- -------- --------
TOTAL HEALTH CARE EXPENSES........................ 173,831 177,124 522,427 460,750
Marketing, general and administrative expenses...... 13,959 14,208 46,511 41,335
Depreciation and amortization....................... 182 174 557 565
Loss contracts, divestiture costs and
litigation charges................................ 10,000 6,000
-------- -------- -------- --------
TOTAL EXPENSES.................................... 187,972 191,506 579,495 508,650
-------- -------- -------- --------
INCOME (LOSS) FROM OPERATIONS.......................... (638) (19,790) (26,033) (19,368)
Investment income, net of interest expense.......... 1,272 1,802 4,189 5,700
-------- -------- -------- --------
INCOME (LOSS) BEFORE INCOME TAXES...................... 634 (17,988) (21,844) (13,668)
INCOME TAX PROVISION...................................
-------- -------- -------- --------
NET INCOME (LOSS)...................................... $ 634 $(17,988) $(21,844) $(13,668)
======== ======== ======== ========
NET INCOME (LOSS) PER COMMON SHARE:
Basic:
Basic Earnings (Loss) per Common Share.............. $ .04 $ (1.00) $ (1.22) $ (.76)
======== ======== ======== ========
Weighted average number of common
shares outstanding................................ 17,925 17,957 17,929 17,875
======== ======== ======== ========
Diluted:
Diluted Earnings (Loss) per Common Share............ $ .04 $ (1.00) $ (1.22) $ (.76)
======== ======== ======== ========
Weighted average number of common dilutive
potential shares outstanding...................... 17,937 17,957 17,929 17,875
======== ======== ======== ========
See notes to consolidated financial statements.
</TABLE>
<PAGE>
MAXICARE HEALTH PLANS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
(Unaudited)
<TABLE>
<CAPTION>
For the nine months
ended September 30,
1998 1997
--------- ---------
<S> <C> <C>
(Restated)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss.......................................................... $ (21,844) $ (13,668)
Adjustments to reconcile net loss to net cash provided by
(used for) operating activities:
Depreciation and amortization.................................. 557 565
Benefit from deferred taxes.................................... (98) (80)
Amortization of restricted stock............................... 58 524
Loss contracts, divestiture costs and litigation charges....... 4,444 6,000
Changes in assets and liabilities:
Increase in accounts receivable.............................. (13,789) (8,455)
Increase in estimated claims and other health
care costs payable......................................... 990 9,942
Decrease in deferred income.................................. (5,079) (5,205)
Changes in other miscellaneous assets and liabilities........ (4,512) (2,870)
--------- ---------
Net cash used for operating activities............................ (39,273) (13,247)
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CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment............................ (473) (198)
Increase (decrease) in restricted investments.................. 30 (142)
Proceeds from sales of marketable securities................... 38,895 30,465
Purchases of marketable securities............................. (12,438) (30,448)
(Increase) decrease in long-term receivables................... 509 (426)
Loans to shareholders.......................................... (4,458)
--------- ---------
Net cash provided by (used for) investing activities.............. 26,523 (5,207)
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CASH FLOWS FROM FINANCING ACTIVITIES:
Payments on capital lease obligations.......................... (271) (293)
Stock options exercised........................................ 160 3,613
Repurchase of restricted stock................................. (344)
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Net cash provided by (used for) financing activities.............. (455) 3,320
---------- ---------
Net decrease in cash and cash equivalents......................... (13,205) (15,134)
Cash and cash equivalents at beginning of period.................. 51,881 55,568
--------- ---------
Cash and cash equivalents at end of period........................ $ 38,676 $ 40,434
========= =========
Supplemental disclosures of cash flow information:
Cash paid during the period for -
Interest..................................................... $ 66 $ 45
Supplemental schedule of non-cash investing activities:
Capital lease obligations incurred for purchase of property
and equipment................................................ $ 63 $ 103
See notes to consolidated financial statements.
</TABLE>
<PAGE>
MAXICARE HEALTH PLANS, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
(Amounts in thousands)
<TABLE>
<CAPTION>
Accumulated
Number of Additional Other
Common Common Paid-in Accumulated Comprehensive
Shares Stock Capital Other Deficit Income Total
--------- -------- ---------- ------- ----------- ------------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Balances at December 31, 1996
(Restated)..................... 17,565 $ 176 $ 249,804 $ (143,734) $106,246
Stock options exercised........ 403 4 3,609 3,613
Restricted stock amortized..... 426 426
Retirement of restricted
stock.......................... (32) (1) (368) (369)
Adjustment to paid-in capital
for deferred compensation...... 905 905
Notes receivable from
shareholders................... $ (4,704) (4,704)
Net loss (Restated)............ (25,081) (25,081)
------- -------- --------- -------- ---------- ------------ --------
Balances at December 31, 1997.... 17,936 179 254,376 (4,704) (168,815) 81,036
Comprehensive income (loss)
Net loss..................... (21,844) (21,844)
Other comprehensive income,
net of tax, related to
unrealized gains on
securities................... $ 98 98
--------
Comprehensive income (loss).... (21,746)
Stock options exercised........ 20 160 160
Restricted stock amortized..... 58 58
Retirement of restricted
stock.......................... (31) (344) (344)
Notes receivable from
shareholders................... (230) (230)
------- -------- --------- -------- ---------- ------------ --------
Balances at September 30, 1998... 17,925 $ 179 $ 254,250 $ (4,934) $ (190,659) $ 98 $ 58,934
======= ======== ========= ======== ========== ============ ========
See notes to consolidated financial statements.
</TABLE>
<PAGE>
MAXICARE HEALTH PLANS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
- ---------------------
Maxicare Health Plans, Inc., a Delaware corporation ("MHP"), is a
holding company which owns various subsidiaries, primarily health
maintenance organizations ("HMOs"). The accompanying unaudited
consolidated financial statements have been prepared in
accordance with generally accepted accounting principles for
interim financial information. In the opinion of management, all
adjustments considered necessary for a fair presentation, which
consist solely of normal recurring adjustments, have been
included. All significant inter-company balances and
transactions have been eliminated. The accompanying unaudited
consolidated financial statements for the periods through
September 30, 1997 have been restated to reflect certain non-cash
adjustments. For further information on MHP and subsidiaries
(collectively the "Company") refer to the consolidated financial
statements and accompanying footnotes included in the Company's
amended Annual Report on Form 10-K as filed with the Securities
and Exchange Commission (the "SEC") for the year ended December
31, 1997 and the unaudited consolidated financial statements and
accompanying footnotes included in the Company's amended
Quarterly Report on Form 10-Q as filed with the SEC for the
quarterly period ended March 31, 1998 and Quarterly Report on
Form 10-Q as filed with the SEC for the quarterly period ended
June 30, 1998.
Net Income Per Common Share
- ---------------------------
Effective December 15, 1997 the Company was required to adopt
Statement of Financial Accounting Standards ("SFAS") No. 128
"Earnings per Share." SFAS No. 128 requires the presentation of
"basic earnings per share" (which excludes dilution) and "diluted
earnings per share" as replacements for primary earnings per
share and fully diluted earnings per share. Restatement of all
earnings per share calculations presented in the financial
statements is required by SFAS No. 128.
Basic earnings per share is computed by dividing net income
available to common shareholders by the weighted average number
of common shares outstanding.
Diluted earnings per share is computed by dividing net income by
the weighted average number of common shares outstanding, after
giving effect to stock options with an exercise price less than
the average market price for the period, when such effect would
be to dilute earnings.
<PAGE>
Comprehensive Income
- --------------------
As of January 1, 1998, the Company adopted SFAS No. 130
"Reporting Comprehensive Income." SFAS No. 130 requires the
reporting and display of comprehensive income and its components.
SFAS No. 130 requires unrealized gains or losses on the Company's
available-for-sale and held-to-maturity securities to be included
in other comprehensive income.
NOTE 2 - CHARGE FOR LOSS CONTRACTS AND DIVESTITURE COSTS
In December 1997, the Company began a comprehensive restructuring
of the Company's operations and businesses with a view towards
enhancing and focusing on the Company's core operations which
have generated substantially all of the membership growth in
recent years. As a result of assessing various strategic
alternatives, the Company concluded that the divestiture of the
Company's operations in Illinois, the Carolinas and Wisconsin
through either a sale or closure of these operations was in its
best interest as the Company was unable to predict a return to
profitability for these health plans in a reasonable time frame.
Additionally, the Company initiated the restructuring of its
commercial and Medicaid provider network arrangements in southern
Indiana to improve the operating margins in this region.
Accordingly, the Company recorded in the second quarter of 1998 a
$10.0 million charge for anticipated continuing losses primarily
related to contracts in Illinois and the Carolinas for which the
anticipated future health care costs and associated maintenance
costs exceed the related premiums, and certain other costs
associated with the divestiture of these health plans. For the
quarter ended September 30, 1998, the Company applied against the
$10.0 million reserve established as of June 30, 1998
approximately $3.2 million of health care costs and $2.3 million
of associated maintenance costs which exceeded the related
premiums.
On September 30, 1998, the Company completed the sale of its
Wisconsin health plan which had approximately 4,700 commercial
members and approximately 10,200 Medicaid members. On October
16, 1998, the Company completed the sale of its Illinois health
plan which had approximately 22,600 commercial members. In
addition, on September 30, 1998, the Company announced it would
cease offering in North and South Carolina, all commercial health
care lines of business, including its commercial health
maintenance organization, preferred provider organization and
point of service product lines.
<PAGE>
Item 2: Management's Discussion and Analysis of Financial
-------------------------------------------------
Condition and Results of Operations
-----------------------------------
Results of Operations
The Company reported net income of $634,000 or $.04 per share for
the third quarter of 1998, as compared to a net loss of $18.0
million or $1.00 per share for the comparable quarter of the prior
year which included a $20.0 million charge to increase health care
claims reserves for unanticipated health care costs.
In December 1997, the Company began a comprehensive restructuring
of the Company's operations and businesses with a view towards
enhancing and focusing on the Company's core operations which have
generated substantially all of the membership growth in recent
years. As a result of assessing various strategic alternatives,
the Company concluded that the divestiture of the Company's
operations in Illinois, the Carolinas and Wisconsin through either
a sale or closure of these operations was in its best interest as
the Company was unable to predict a return to profitability for
these health plans in a reasonable time frame. Additionally, the
Company initiated the restructuring of its commercial and Medicaid
provider network arrangements in southern Indiana to improve the
operating margins in this region. Accordingly, the Company
recorded in the second quarter of 1998 a $10.0 million charge for
anticipated continuing losses primarily related to contracts in
Illinois and the Carolinas for which the anticipated future health
care costs and associated maintenance costs exceed the related
premiums, and certain other costs associated with the divestiture
of these health plans. On September 30, 1998, the Company
completed the sale of its Wisconsin health plan which had
approximately 4,700 commercial members and approximately 10,200
Medicaid members. On October 16, 1998, the Company completed the
sale of its Illinois health plan which had approximately 22,600
commercial members. In addition, on September 30, 1998, the
Company announced it would cease offering in North and South
Carolina, all commercial health care lines of business, including
its commercial health maintenance organization, preferred provider
organization and point of service product lines.
For the third quarter ended September 30, 1998, revenues were
$187.3 million, an increase of $15.6 million or 9.1% as compared
to the third quarter of 1997. The Company's membership grew 4%
from the prior year quarter to approximately 538,000 members at
the end of the third quarter, primarily as a result of increases
to commercial membership of approximately 19,800 and increases to
governmental membership of approximately 24,700 for the California
and Indiana health plans. For the third quarter of 1998 commercial
premiums increased $6.6 million or 5.8% to $119.4 million as a
result of a 3.6% increase in membership over the third quarter of
<PAGE>
1997, primarily in California and Indiana, and a 2.0% increase in
the average commercial premium revenue per member per month
("PMPM"). Governmental premiums increased $9.2 million or 15.8% to
$67.5 million as a result of a 10.2% increase in membership,
primarily generated by growth in the Medicaid line of business in
California and growth in the Medicare line of business in both
California and Indiana. Average premium revenue PMPM for the
Medicaid line of business decreased by .3% due to greater
membership growth in California, which has a lower average premium
revenue PMPM as compared to that of Indiana; however, the
California Medicaid line of business has a lower medical loss
ratio (defined as health care expenses as a percentage of premium
revenues) than does the Indiana Medicaid line of business.
Average premium revenue PMPM for the Medicare line of business
increased by 7.4% due to premium rate increases in both California
and Indiana and to greater membership growth in California, which
has a higher average premium revenue PMPM as compared to that of
Indiana.
Health care expenses were $173.8 million for the third quarter of
1998, a decrease of $3.3 million as compared to the third quarter
of 1997. This decrease in health care expenses was in part a
result of the $20.0 million charge to increase health care claims
reserves recorded in the third quarter of 1997 offset in part by
an increase to health care expenses in the third quarter of 1998
from growth in all lines of business and an increase in pharmacy
costs reduced by approximately $3.2 million of health care costs
applied against the $10.0 million reserve for loss contracts and
divestiture costs established as of June 30, 1998. Although
prescription drug costs are expected to continue to rise, this
trend has been somewhat mitigated by enhanced procedures and
controls implemented from June 1998 through September 1998 to
promote cost effective use of prescription drug benefits.
Marketing, general and administrative ("M,G&A") expenses decreased
$.2 million to $14.0 million for the third quarter of 1998
compared to $14.2 million for the third quarter of 1997. This
decrease in M,G&A expenses was primarily due to approximately $2.3
million of maintenance costs applied against the $10.0 million
reserve for loss contracts and divestiture costs established at
June 30, 1998. Including the $2.3 million of maintenance costs,
M,G&A expenses for the third quarter of 1998 increased as a
percentage of revenues from 8.3% in the third quarter of 1997 to
8.7% in the third quarter of 1998.
Net investment income for the third quarter of 1998 decreased by
$.5 million to $1.3 million as compared to the same period in
1997. The decrease in net investment income was due to lower cash
and investment balances as well as lower investment yields.
Total revenues for the nine months ended September 30, 1998
increased 13.1% to $553.5 million from $489.3 million for the same
period in 1997 primarily due to a 15.1% membership increase. The
<PAGE>
average commercial premium revenue PMPM for the nine months ended
September 30, 1998 increased 1.3% compared to the same nine month
period in 1997. The average governmental premium revenue PMPM
decreased 4.1% primarily as a result of the growth in the lower
premium revenue PMPM Medicaid line of business. Total health care
expenses increased $61.7 million for the first nine months of 1998
as compared to the same period in 1997 as a result of the increase
in membership and an increase in pharmacy costs. M,G&A expenses,
including approximately $1.2 million of costs recorded in the
second quarter of 1998 related to a shareholder action and
excluding approximately $2.3 million of maintenance costs applied
against the reserve for loss contracts and divestiture costs,
increased $5.2 million for the nine months ended September 30,
1998, and remained constant at 8.4% of revenues.
Liquidity and Capital Resources
All of MHP's operational subsidiaries are direct subsidiaries of
MHP. The Company's HMOs are federally qualified and are licensed
in the states where they operate. Certain of MHP's operating
subsidiaries are subject to state regulations which require
compliance with certain statutory deposit, dividend distribution
and net worth requirements. To the extent the operating
subsidiaries must comply with these regulations, they may not have
the financial flexibility to transfer funds to MHP. MHP's
proportionate share of net assets (after inter-company
eliminations) which, at September 30, 1998, may not be transferred
to MHP by subsidiaries in the form of loans, advances or cash
dividends without the consent of a third party is referred to as
"Restricted Net Assets". Restricted Net Assets of these operating
subsidiaries were $31.7 million at September 30, 1998, with
deposit requirements and limitations imposed by state regulations
on the distribution of dividends representing $14.3 million and
$5.3 million of the Restricted Net Assets, respectively, and net
worth requirements in excess of deposit requirements and dividend
limitations representing the remaining $12.1 million. The
Company's total Restricted Net Assets at September 30, 1998 were
32.0 million. In addition to the $5.0 million in cash, cash
equivalents and marketable securities held by MHP, approximately
$6.2 million in funds held by operating subsidiaries could be
considered available for transfer to MHP at September 30, 1998.
The operating HMOs currently pay monthly fees to MHP pursuant to
administrative services agreements for various management,
financial, legal, computer and telecommunications services. The
Company believes that for the foreseeable future it will have
sufficient resources and working capital to fund ongoing
operations and remain in compliance with statutory financial
requirements for its California, Indiana and Louisiana HMOs and
Maxicare Life and Health Insurance Company.
The Company has from time to time sought to obtain a committed
line of credit; however, to date has not secured such a line of
<PAGE>
credit. Accordingly, the Company cannot state with any degree of
certainty at this time whether it could obtain such a line of
credit or whether additional equity capital or other working
capital would be available to it, and if available, would be at
terms and conditions acceptable to the Company.
Forward Looking Information
General - This Quarterly Report on Form 10-Q contains and
incorporates by reference forward looking statements within the
"safe harbor" provisions of the Private Securities Litigation
Reform Act of 1995. Reference is made in particular to the
discussion set forth under "Item 2. Management's Discussion and
Analysis of Financial Condition and Results of Operations". Such
statements are based on certain assumptions and current
expectations that involve a number of risks and uncertainties, many
of which are beyond the Company's control. These risks and
uncertainties include unanticipated costs and losses related to the
sales of the Company's Wisconsin and Illinois health plans,
unanticipated costs and losses related to terminating the Carolinas
commercial health care lines of business, limitations on premium
levels, greater than anticipated increases in healthcare expenses,
loss of contracts with providers, insolvency of providers, benefit
mandates, variances in anticipated enrollment as a result of
competition or other factors, changes to the laws or funding of
Medicare and Medicaid programs, and increased regulatory
requirements for dividending, minimum capital, reserve and other
financial solvency requirements. These statements are forward
looking and actual results could differ materially from those
projected in the forward looking statements, which statements
involve risks and uncertainties. In addition, past financial
performance is not necessarily a reliable indicator of future
performance and investors should not use historical performance to
anticipate results or future period trends. Shareholders are also
directed to disclosures in this and other documents filed by the
Company with the Securities and Exchange Commission.
Business Strategy - The Company's business strategy includes
strengthening its position in the core markets it serves by:
marketing an expanded range of managed care products and services,
providing superior service to the Company's members and employer
groups, enhancing long-term relationships and arrangements with
health care providers, and selectively targeting geographic areas
within a state for expansion through increased penetration or
development of new areas. The Company continually evaluates
opportunities to expand its business as well as evaluates the
investment in these businesses.
Year 2000 - The Company has initiated a Year 2000 readiness program
to assess Year 2000 issues relative to its major computing
information systems and related business processes. The Company
formalized the program in 1997 with an initial focus on the
Company's existing core legacy software application systems. The
program has been expanded to include desktop systems, networks,
telecommunications and other non-information technology systems.
<PAGE>
Selected systems are being retired and replaced with packaged
software from large vendors that is Year 2000 compliant. The total
estimated cost of the program incurred since 1997 is approximately
$300,000 and projected future costs of the program are estimated to
approximate an additional $300,000. Implementation costs are
expensed as incurred. Given its experience in developing and
managing its core legacy systems, the Company believes that its
internal personnel resources are adequate to meet most Year 2000
compliance needs and that, accordingly, such implementation costs
are not expected to have a material impact on the Company's
consolidated financial position, results of operations or cash
flows. The Company expects its legacy systems to be Year 2000
compliant by third quarter 1999.
The Company is also initiating a program of contacting its major
vendors and customers, primarily employer groups, governmental
contractors, and healthcare providers, to evaluate their Year 2000
readiness and to gain reasonable assurance regarding Year 2000
compliance.
The Company cannot ensure that the systems of its vendors and
customers will be timely updated to be Year 2000 compliant or the
failure of a vendor or customer to become Year 2000 compliant would
not have a material adverse effect on the Company. Based upon the
outcome of its contacts with major vendors and customers, the
Company will be developing business process contingency plans in
1999 to mitigate Year 2000 issues. As part of the contingency
planning process, the Company will estimate the cost of
implementing its contingency plans.
<PAGE>
PART II: OTHER INFORMATION
-----------------
Item 1: Legal Proceedings
-----------------
The information contained in "Part I, Item 3 Legal Proceedings" of
the Company's 1997 Annual Report on Form 10-K and in "Part II, Item
1 Legal Proceedings" of the Company's Quarterly Report on Form 10-
Q for the quarterly periods ended March 31, 1998 and June 30, 1998,
respectively, is hereby incorporated by reference and the following
information updates the information contained in the relevant
subparts thereof.
a. ALPHA HEALTH SYSTEMS, INC. AND CALIFORNIA FAMILY CARE SERVICES,
INC.
Pursuant to Demands For Arbitration (the "Demands") dated October
14, 1998 filed with the American Arbitration Association ("AAA") in
Los Angeles, California, Alpha Health Systems, Inc. ("Alpha") and
California Family Care Services, Inc. ("Cal"), each demanded
arbitrations of a breach of contract dispute with Maxicare, the
Company's California subsidiary. Alpha and Cal are participating
providers in Maxicare's Los Angeles County Medi-Cal program
pursuant to their contracts with Maxicare. In the Demands Cal and
Alpha contend that Maxicare has: (a) miscalculated capitation
payments paid to them for the month of May 1997; (b) failed to
submit adequate documentation for pharmacy charges; (c) deducted
incorrect amounts for stop loss coverage and administrative fees;
(d) caused them to lose revenue because of administrative delays in
credentialing physicians and performing physician site evaluations
and because Maxicare failed to offer them as health care providers
to Maxicare's commercial members (the "Allegations"). Alpha and
Cal have also requested that the arbitrator determine whether
Maxicare breached the covenant of good faith and fair dealing or
statutes and regulations to which Maxicare is subject as a result
of the Allegations. Alpha and Cal seek compensatory damages in the
approximate amounts of $3.9 million and $4.2 million, respectively,
pre and post arbitration award interest and attorneys' fees. The
Company believes that it has meritorious defenses to the Demands
and that it will prevail in the arbitration.
b. OTHER LITIGATION
The Company is a defendant in a number of other lawsuits arising in
the ordinary course from its operations, including cases in which
the plaintiffs assert claims against the Company or third parties
that assert breach of contract, indemnity or contribution claims
against the Company for malpractice, negligence, bad faith in the
failure to pay claims on a timely basis or denial of coverage
seeking compensatory, fraud and, in certain instances, punitive
damages in an indeterminate amount which may be material and/or
seeking other forms of equitable relief. The Company does not
believe that the ultimate determination of these cases will either
individually or in the aggregate have a material, adverse effect on
the Company's business or operations.
<PAGE>
Item 2: Change in Securities
--------------------
None
Item 3: Defaults Upon Senior Securities
-------------------------------
None
Item 4: Submission of Matters to a Vote of Security Holders
---------------------------------------------------
Annual Meeting of Shareholders
The Company's Annual Meeting of Shareholders was held in the Sunset
Room of the Transamerica Center Tower at 1150 South Olive Street in
Los Angeles on July 30, 1998 at 8:00 a.m. (Pacific Time). The
Company's shareholders approved by ballot and by proxy all five
proposals set forth for shareholder consideration which were as
follows:
Proposal #1: Provided for the election of three Directors, Ms.
Florence F. Courtright, Mr. Paul R. Dupee, Jr. and Mr. Elwood
I. Kleaver, Jr. to serve until the year 2001 Annual Meeting of
Shareholders. Of the 14,339,525 votes cast for purposes of
electing three directors; (i) 14,281,933 votes were cast for
Ms. Courtright and 57,592 votes were withheld; (ii) 14,280,981
votes were cast for Mr. Dupee and 58,544 votes were withheld;
and (iii) 14,277,584 votes were cast for Mr. Kleaver and 61,941
votes were withheld. Following the meeting, Claude S.
Brinegar, Robert M. Davies, Thomas W. Field, Jr., Charles E.
Lewis, Alan S. Manne and Peter J. Ratican continued to serve as
directors of the Company.
Proposal #2: Provided for an amendment to the Company's
Certificate of Incorporation to eliminate the right of
shareholders to act by written consent or to call a special
meeting of shareholders and to set the number of Directors at
nine until the conclusion of the Company's 1999 Annual Meeting
of Shareholders, which the Company agreed to call on or before
June 30, 1999 (the "Termination Date"). Adoption of Proposal #
2 was approved by the stockholders with 12,526,135 votes cast
for approval, 284,668 votes cast against approval, and 30,354
votes abstaining.
Proposal #3: Provided for four amendments to the Company's
Bylaws prohibiting shareholders from actions by written consent
or calling of a special meeting of shareholders prior to the
Termination Date, restricting the ability of the Board of
Directors to adopt bylaws or otherwise interfere with the
rights of shareholders to nominate three directors at the 1999
Annual Meeting, setting the number of directors at nine through
<PAGE> the Termination Date and elimination of the supermajority
voting requirements for shareholder actions seeking to change the
number of Directors or amending certain bylaw provisions relating to
rights of shareholders. Adoption of Proposal # 3 was approved by the
stockholders with 12,320,455 votes cast for approval, 282,068 votes
cast against approval, and 30,884 votes abstaining.
Proposal #4: Provided for an amendment to the Shareholders
Rights Plan (the "Plan") to eliminate the "dead hand"
(continuing Directors) provision of the Plan. Adoption of
Proposal # 4 was approved by the stockholders with 12,480,037
votes cast for approval, 124,195 votes cast against approval,
and 29,171 votes abstaining.
Proposal #5: Provided for, pursuant to a Settlement Agreement
with the Company, the reimbursement for an aggregate of
$444,135 representing certain expenses incurred by Mr. Paul R.
Dupee, Jr. and others in connection with his recent consent
solicitation. Adoption of Proposal # 5 was approved by the
stockholders with 12,602,152 votes cast for approval, 176,803
votes cast against approval, and 62,202 votes abstaining.
The Proposed Dupee Consent Solicitation
On March 19, 1998, Paul R. Dupee, Jr. ("Mr. Dupee") and certain
other entities holding in the aggregate approximately 5% of the
Company's outstanding shares began an action to solicit written
consents of shareholders of the Company by filing preliminary
consent material with the Securities and Exchange Commission (the
"SEC"), and issuing a press release (the "Dupee Consent
Solicitation"). The Dupee Consent Solicitation proposed to enact
the following proposals (the "Dupee Proposals"): (i) to repeal any
amendments to the Company's Bylaws adopted by the Board since
February 1, 1998; (ii) to amend Article III, Section 2 of the
Company's Bylaws through the addition of ten new directors, thereby
increasing the number of directors eligible to serve on the Board to
17, and to confirm that the existing Bylaw provisions of Article II,
Section 14 were not applicable to the Dupee Consent Solicitation;
and (iii) to fill the new directorships created by the increase in
the authorized number of directors with the ten nominees proposed by
Mr. Dupee, including Mr. Dupee and Mr. Robert M. Davies. At the
same time, Mr. Dupee filed litigations against the Company in
Federal court and against the Company and its directors in State
court (the "Dupee Litigation").
For a further description of the Dupee Consent Solicitation, the
Company's responses thereto and the Settlement Agreement, dated May
8, 1998, pursuant to which Mr. Dupee terminated the Dupee Consent
Solicitation as well as the Dupee Litigation, see pages 3 through 6
under "Background to the 1998 Annual Meeting" of the Company's
Definitive Proxy Statement, dated June 26, 1998 for the Company's
1998 Annual Meeting of Shareholders which is incorporated hereto by
reference.
<PAGE>
Item 5: Other Information
-----------------
None
Item 6: Exhibits and Reports on Form 8-K
--------------------------------
(a) Exhibits
--------
3.5 Certificate of Incorporation, as amended and
restated, which includes, Restated Certificate of
Incorporation of Healthcare USA Inc. filed with the
Office of the Secretary of State of Delaware on July
19, 1985, Certificate of Merger of MHP Acquisition
Corp. into Healthcare USA Inc. filed with the Office
of the Secretary of State of Delaware on September
13, 1986, Certificate of Change of Registered Agent
and Registered Office filed with the Office of the
Secretary of State of Delaware on August 17, 1987,
Certificate of Merger Merging Maxicare Health Plans,
Inc. with and into Healthcare USA Inc. (including as
Exhibit A thereto the Restated Certificate of
Incorporation of Healthcare USA Inc.) filed with the
Office of the Secretary of State of Delaware on
December 5, 1990, Certificate of Correction filed
with the Office of the Secretary of State of
Delaware on May 17, 1991, Certificate of Ownership
and Merger Merging HealthAmerica Corporation into
Maxicare Health Plans, Inc. filed with the Office of
the Secretary of State of Delaware on November 22,
1991, Certificate of Amendment of Restated
Certificate of Incorporation of Maxicare Health
Plans, Inc. filed with the Office of the Secretary
of State of Delaware on March 9, 1992, Certificate
of Ownership and Merger Merging HCS Computer, Inc.
into Maxicare Health Plans, Inc. filed with the
Office of the Secretary of State of Delaware on
November 6, 1992, and Certificate of Designation of
Series B Preferred Stock of Maxicare Health Plans,
Inc. filed with the Office of the Secretary of State
of Delaware on February 27, 1998, Certificate of
Amendment of Certificate of Inc. of Maxicare Health
Plans, Inc. filed with the Office of the Secretary
of State of Delaware on July 30, 1998.
3.4b Bylaw Amendment approved at Annual Meeting of
Shareholders held on July 30, 1998.
10.3i Promissory Note entered into by Peter J. Ratican
dated July 30, 1998.
4.13a First Amendment to Rights Agreement of Maxicare
Health Plans, Inc., entered into and between
Maxicare Health Plans, Inc. and American Stock
Transfer & Trust Company as of October 9, 1998.
<PAGE>
(b) Reports on Form 8-K
-------------------
None
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
MAXICARE HEALTH PLANS, INC.
---------------------------
(Registrant)
November 13, 1998 /s/ Richard A. Link
----------------- --------------------------
Date Richard A. Link
Chief Financial Officer and
Executive Vice President -
Finance and Administration
<PAGE>
Exhibit 3.5
RESTATED
CERTIFICATE OF INCORPORATION
OF
HEALTHCARE USA INC.
The undersigned, for the purposes of restating the
Certificate of Incorporation of Healthcare USA Inc. (originally
incorporated under the name Great Western Hospital Corp.),
originally filed with the Secretary of State of the State of
Delaware on January 5, 1981, do execute this Restated Certificate
of Incorporation pursuant to Sections 245 of the Delaware General
Corporation Law of the State of Delaware ("General Corporation
Law") and do hereby certify as follows:
FIRST: The name of the Corporation is HEALTHCARE
USA INC.
SECOND: Its registered office in the State of
Delaware is located at 306 South State Street in the City of
Dover, County of Kent. The name and address of its registered
agent is United States Corporation Company, 306 South State
Street, Dover, Delaware 19901.
THIRD: The nature of the business or objects
purposes to be transacted, promoted or carried on are:
To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law
of Delaware.
FOURTH: The total number of shares of stock which
the Corporation shall have authority to issue is Twenty-six
Million (26,000,000), Twenty-five Million (25,000,000) of which
shall be shares of Common Stock of the par value of One Cent
($0.01) each, and One Million (1,000,000) of which shall be
shares of Preferred Stock of the par value of One Dollar ($1.00)
each.
The designations, powers, preferences and relative
participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the
shares of each class are as follows:
PREFERRED STOCK
The Preferred Stock shall be of the par value of One
Dollar ($1.00) per share and may be issued from time to time in
one or more series, each of such series to have such voting
powers, designations, preferences, and relative participating,
optional or other special rights, and the qualifications,
limitations or restrictions thereof, as are stated and expressed
<PAGE>
herein or in a resolution or resolutions, providing for the
issuance of such series, adopted by the Board of Directors is
hereby expressly empowered, subject to the provisions of this
ARTICLE FOURTH, to provide for the issuance of the Preferred
Stock from time to time in series and to fix by resolution or
resolutions providing for the issuance of such series:
(a) The number of shares to constitute such series
and the designation thereof;
(b) The voting rights, full or limited, if any, to
which holders of shares of any series of Preferred Stock my be
entitled;
(c) The dividend rate of the shares of such series,
and whether or not such dividends shall be cumulative;
(d) Whether or not the shares of such series shall be
redeemable and, if redeemable, the redemption price and the terms
and conditions thereof;
(e) The amount, if any, which the shares of any such
series shall be entitled to receive, before any distribution or
payment shall be made to holders of the Common Stock, in the
event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntarily,
or of any proceedings resulting in any distribution of all, or
substantially all, of its assets to its stockholders;
(f) Whether or not the shares of such series shall be
subject to the operation of retirement or sinking funds to be
applied to the purchase or redemption of such shares and, if such
funds are established, the annual amount thereof and the terms
and provisions relative to the operation thereof;
(g) Whether or not the shares of such series shall be
convertible into, or exchangeable for, shares of any other class
or classes of any other series of the same or any other class of
stock of the Corporation and, if convertible, the conversion
price or prices or rate or rates of conversion or exchange and
terms of adjustments, if any, upon such conditions as shall be
stated in said resolution or resolutions; and
(h) Such other designations, preferences and
relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof as it may
deem advisable and shall be stated in said resolution or
resolutions.
COMMON STOCK
The Common Stock shall have a par value of One Cent
($0.01) per share. Upon any liquidation, dissolution or winding
up of the Corporation, and after payment, if required, shall have
been made in full to the holders of any share of Preferred Stock
<PAGE>
which may be issued and outstanding, pursuant to the terms upon
which such Preferred Stock was issued, the holders of the Common
Stock shall be entitled to share pro rata in the distribution of
any and all assets remaining to be paid or distributed, and the
holders of the Preferred Stock shall not be entitled to share
therein. Subject to any rights of the Preferred Stock, dividends
may be paid upon the Common Stock, as and when declared by the
Board of Directors, out of any funds or assets legally available
therefor.
FIFTH: In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is expressly
authorized;
To make, alter or repeal the By-Laws of the
Corporation.
To authorize and cause to be executed mortgages and
liens upon the real and personal property of the Corporation.
To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper
purpose and to abolish any such reserve in the manner in which it
was created.
When and as authorized by the affirmative vote of the
holders of a majority of the stock issued and outstanding having
voting power given at a Stockholders' meeting, duly called for
that purpose, or when authorized by the written consent of the
holders of a majority of the voting stock issued and outstanding,
to sell, lease or exchange all of the property and assets of the
Corporation, including its good will and its corporate
franchises, upon such terms and conditions and for such
consideration, which may be in whole or in part shares of stock
in, and/or securities of, any other corporation or corporations,
as its Board of Directors shall deem expedient and for the best
interests of the Corporation.
SIXTH: Meetings of Stockholders may be held
outside the State of Delaware, if the By-Laws so provide. The
books of the 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 By-Laws of the Corporation.
SEVENTH: The Corporation reserves the right to
amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon Stockholders
herein are granted subject to this reservation.
EIGHTH: Whenever a compromise or arrangement is
proposed between this Corporation and its creditors or any class
of them and/or between this Corporation and its Stockholders or
any class of them, any court of equitable jurisdiction within the
<PAGE>
State of Delaware may, on the application in a summary way of
this Corporation or of any creditor or Stockholder thereof or on
the application of any receiver or receivers appointed for this
Corporation under the provisions of Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of
the Stockholders or class of Stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
Stockholders or class of Stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to any
reorganization of this Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the
creditors or class or creditors, and/or of the Stockholders or
class of Stockholders, of this Corporation, as the case may be,
and also on this Corporation.
NINTH: 1. In addition to whatever stockholder
vote may be required by law, the affirmative vote or consent of
the holders of fifty-one percent (51%) of all shares (as defined
in subparagraph 2(c) of this ARTICLE NINTH) of stock of the
Corporation [but without considering as outstanding and not
counting the vote of any shares owned beneficially, directly or
indirectly, by any other entity (as defined in subparagraph 2(a)
of this ARTICLE NINTH)], entitled to vote in elections of
directors, considered for the purposes of this ARTICLE NINTH as
one class, shall be required for the adoption or authorization
of:
(A) a business combination (as defined in
subparagraphs 2(d)(i), 2(d)(ii) and 2(d)(iii) of this ARTICLE
NINTH) with such other entity if, (i) as of the record date for
the determination of Stockholders entitled to notice thereof and
to vote thereon or consent thereto, or (ii) immediately prior
thereto, such other entity is;
(B) a business combination (as defined in
subparagraph 2(d)(iv) of this ARTICLE NINTH) if (i) on the record
date for determination of stockholders entitled to notice thereof
and to vote thereon or consent thereto, or (ii) immediately prior
thereto, such other entity is:
the beneficial owner (as defined in subparagraph 2(b) of this
ARTICLE NINTH), directly or indirectly, of twenty-five percent
(25%) or more of the outstanding shares of stock of the
Corporation entitled to vote in elections of directors considered
for the purpose of this ARTICLE NINTH as one class; provided that
such fifty-one percent (51%) voting requirement shall not be
applicable if:
(a) The cash or fair market value of other
consideration to be received per share by common
<PAGE>
Stockholders of the Corporation in such business
combination is at least an amount equal to that sum
which bears the same or greater percentage relationship
to the market price of the Corporation's Common Stock
immediately prior to the announcement of such business
combination as the highest per share price (including
brokerage commissions, dealer manager and/or soliciting
dealers' fees) which such other entity has theretofore
paid for any of the shares of the Corporation's Common
Stock already owned by it bears to the market price of
the Common Stock of the Corporation immediately prior
to (i) the announcement of an intention by the other
entity to acquire shares of the Corporation's Common
Stock, or (ii) the commencement of acquisition of the
Corporation's Common Stock by such other entity,
whichever occurs first;
(b) The cash or fair market value of other
consideration to be received per share by Common
Stockholders of the Corporation in such business
combination (i) is not less than the highest per share
price (including brokerage commissions, dealer manager
and/or soliciting dealers' fees) paid by such other
entity in acquiring any of its holdings of the
Corporation's Common Stock, and (ii) is not less than
the aggregate earnings per share of Common Stock of the
Corporation for the four full consecutive fiscal
quarters immediately preceding the record date for
solicitation of votes on such business combination,
multiplied by the then average price earnings multiple
(if any) of such other entity for the twenty trading
days immediately prior to said record date as reported
in The Wall Street Journal, or if not so reported, then
as would be customarily computed and reported in the
financial community;
(c) After such other entity has acquired a
twenty-five percent (25%) or greater interest and prior
to the consummation of such business combination, (i)
such other entity shall have taken steps to ensure that
the Corporation's Board of Directors included at all
times representation by continuing director(s) (as
defined in subparagraph 2(e) of this ARTICLE NINTH)
proportionate to the stockholdings of the Corporation's
public common Stockholders not affiliated with such
other entity (with a continuing director to occupy any
resulting fractional board position); (ii) there shall
have been no reduction in the rate of dividends payable
on the Corporation's Common Stock except as may have
been approved by the unanimous vote of all the
directors; (iii) such other entity shall not have
acquired any newly issued shares of stock, directly or
indirectly, from the Corporation (except upon
conversion of convertible securities acquired by it
prior to obtaining a twenty-five percent (25%) or
<PAGE>
greater interest or as a result of a pro rata stock
dividend or stock split); and (iv) such other entity
shall not have acquired any additional shares of the
Corporation's outstanding Common Stock except as a part
of the transaction which results in such other entity
acquiring its twenty-five percent (25%) or greater
interest;
(d) Such other entity shall not have (i)
received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial
assistance or tax credits provided by the Corporation,
or (ii) made any major change in the Corporation's
business or equity capital structure without the
unanimous approval of all the directors, in either case
prior to the consummation of such business combination;
and
(e) A proxy statement responsive to the
requirements of the Securities Exchange Act of 1934
shall be mailed to public Stockholders of the
Corporation for the purpose of soliciting Stockholder
approval of such business combination and shall contain
in the forepart thereof, in a prominent place, any
recommendations as to the advisability (or
inadvisability) of the business combination which the
continuing directors, or any of them, may choose to
state and, if deemed advisable by a majority of the
continuing directors, an opinion of a reputable
investment banking firm as to the fairness (or lack
thereof) of the terms of such business combination from
the point of view of the remaining public Stockholders
of the Corporation and the Corporation (such investment
banking firm to be selected by a majority of the
continuing directors and to be paid a reasonable fee
for their services by the Corporation upon receipt of
such opinion).
The provisions of this ARTICLE NINTH shall also apply to
a business combination with any other entity which at any time
has been the beneficial owner, directly or indirectly, of more
than twenty-five percent (25%) of the outstanding shares of stock
of the corporation entitled to vote in elections of directors
considered for the purposes of this ARTICLE NINTH as one class,
notwithstanding the fact that such other entity has reduced its
stockholdings below twenty-five percent (25%) of (i) as of the
record date for the determination of stockholders entitled to
notice of and to vote on or consent to the business combinations,
or (ii) immediately prior to such business combination, such
other entity is an "affiliate" of the Corporation (as defined in
subparagraph 2(a) of this ARTICLE NINTH).
<PAGE>
2. As used in this ARTICLE NINTH:
(a) the term "other entity" shall include any
corporation, person or other entity and any other entity with
which it or its "affiliate" or "associate" (as defined in this
subparagraph 2(a)) has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of
acquiring, holding, voting or disposing of stock of the
Corporation, or which is an "affiliate" or "associate" as those
terms are defined in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934 as in
effect on December 30, 1980, together with the successors and
assigns of such persons which acquired, directly or indirectly,
shares of the Corporation's Common Stock in any transaction or
series of transactions not involving a public offering of the
Corporation's stock within the meaning of the Securities Act of
1933;
(b) the other entity (as defined in subparagraph
2(a) of this ARTICLE NINTH) shall be deemed to be the beneficial
owner of any shares of stock of the Corporation which the other
entity has the right to acquire pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or
otherwise;
(c) the outstanding shares of any class of stock
of the Corporation shall include shares deemed owned through
application of clause (b) above but shall not include any other
shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options, or otherwise;
(d) the term "business combination" shall
include:
(i) any merger or consolidation of the
Corporation with or into any other entity;
(ii) any sale or lease or exchange or other
disposition (in one transaction or a series of related
transactions) of all or substantially all of the assets of the
Corporation;
(iii) any sale or lease or exchange or other
disposition (in one transaction or a series of related
transactions) to the Corporation or any subsidiary of the
Corporation of any assets (except assets having an aggregate fair
market value of less than $1,000,000) in exchange for voting
securities (or securities convertible into or exchangeable for
voting securities, or options, warrants or rights to purchase
voting securities or securities convertible into or exchangeable
for voting securities) of the Corporation or any subsidiary of
the Corporation; or
(iv) any reclassification of securities,
recapitalization or other transaction designed to decrease the
<PAGE>
number of holders of the Corporation's voting securities;
(e) the term "continuing director" shall mean a
person who was a member of the Board of Directors of the
Corporation elected by the public Stockholders prior to the time
that such other entity acquired in excess of ten percent (10%) of
the stock of the Corporation entitled to vote in the election of
directors, or a person recommended to succeed a continuing
director by a majority of continuing directors;
(f) for purposes of subparagraphs 1(a) and 1(b)
of this ARTICLE NINTH, the term "fair market value or other
consideration shall be as determined in good faith by the Board
of Directors of the Corporation and concurred in by a majority of
continuing directors; and
(g) for the purpose of subparagraphs 1(a) and
1(b) of this ARTICLE NINTH the term "other consideration to be
received" shall include Common Stock of the Corporation retained
by its existing public stockholders in the event of a business
combination with such other entity in which the Corporation is
the surviving corporation.
3. A majority of the continuing directors shall have
the power and duty to determine for the purposes of this ARTICLE
NINTH, on the basis of information known to them, whether (a)
such other entity beneficially owns twenty-five percent (25%) or
more of the outstanding shares of stock of the Corporation
entitled to vote in election of directors, (b) the other entity
(as defined in subparagraph 2(a) of this ARTICLE NINTH) is an
"affiliate" or "associate" (as defined in subparagraph 2(a) of
this ARTICLE NINTH) of another entity, (c) the other entity (as
defined in subparagraph 2(a) of this ARTICLE NINTH) has an
agreement, arrangement or understanding with another entity, or
(d) the assets being acquired by the Corporation, or any
subsidiary thereof, have an aggregate fair market value of less
than $1,000,000.
4. Nothing contained in this ARTICLE NINTH shall be
construed to relieve the other entity (as defined in subparagraph
2(a) of this ARTICLE NINTH) from any fiduciary obligation imposed
by law.
5. Notwithstanding any other provision of the
Certificate of Incorporation of this Corporation, no amendment to
the Certificate of Incorporation of this corporation shall
amend, alter, change or repeal any of the provisions of this
ARTICLE NINTH, unless the amendment effecting such amendment,
alteration, change or repeal shall receive the affirmative vote
or consent of the holders of fifty-one percent (51%) of all
outstanding shares of stock of the Corporation [but without
considering as outstanding and not counting the vote of shares
owned beneficially, directly or indirectly, by any other entity
(as defined in subparagraph 2(a) of this ARTICLE NINTH)] entitled
<PAGE>
to vote in election of directors, considered for the purposes of
this paragraph of this ARTICLE NINTH as one class; provided that
this paragraph of this ARTICLE NINTH shall not apply to, and such
fifty-one percent (51%) vote or consent shall not be required
for, any amendment, alteration, change or repeal unanimously
recommended to the Stockholders by the Board of Directors of the
Corporation if all of such directors are persons who would be
eligible to serve as "continuing directors" within the meaning of
subparagraph 2(e) of this ARTICLE NINTH.
TENTH: Special meetings of the Stockholders may be
called by a majority of the members of the Board of Directors, or
by the persons who hold not less than thirty percent (30%) of the
outstanding shares of any class of stock of the Corporation and
entitled to vote on any proposal to be submitted at said special
meeting.
ELEVENTH: (a) The number of directors of the
Corporation shall be the number fixed by, or in the manner
provided in, the By-Laws. The Board of Directors shall be
divided into three classes as nearly equal in number as may be,
with the term of office of one class expiring each year. At the
first annual meeting of Stockholders, directors of the first
class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class
shall be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class shall
be elected to hold office for a term expiring at the third
succeeding annual meeting. At each annual meeting of
Stockholders after the first meeting, successors to the directors
whose terms shall then expire shall be elected to hold office for
terms expiring at the third succeeding annual meeting, except
that any director elected to a directorship newly created since
the last annual meeting shall hold office for the same term as
the other directors of the class to which such director has been
assigned. When the number of directors is changed, any newly
created directorships or any decrease in directorships shall be
so assigned among the classes by a majority of the directors then
in office, though less than a quorum, or by a sole remaining
director, so as to make all classes as nearly equal in number as
may be possible. To the extent of any inequality within the
limits of the foregoing, the class or classes caused to have the
greatest or greater number of directorships shall be the class or
classes then having the last date or the later dates for the
expiration of its or their terms. Any vacancy occurring among
the directors may be filled by a majority of the directors then
in office, though less than a quorum, or by a sole remaining
director, and each director elected to fill such vacancy shall
hold office for the unexpired term in respect of which such
vacancy occurred; (b) directors shall be subject to removal only
for cause; and (c) directors need not be elected by written
ballot unless otherwise provided in the By-Laws.
The affirmative vote of the holders of the two-thirds
(2/3) of the outstanding shares of any class of stock of the
<PAGE>
Corporation entitled to vote in the election of directors shall
be required to amend this ARTICLE ELEVENTH.
IN WITNESS WHEREOF, the undersigned hereby certify that
this Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Sections 245 of the General
Corporation Law; hereby certify that this Restated Certificate of
Incorporation only restates and integrates and does not further
amend the provisions of the Corporation's Certificate of
Incorporation as theretofore amended or supplemented, and that
there is no discrepancy between those provisions and the
provisions of this Restated certificate of Incorporation; and
hereby execute and acknowledge the foregoing Restated Certificate
of Incorporation on this 10th day of July, 1985.
/s/ Harlan W. Loomas
Harlan W. Loomas,
Chief Executive Officer
ATTEST:
/s/ Charles S. Fiedler
Charles S. Fiedler,
Assistant Secretary
<PAGE>
CERTIFICATE OF MERGER OF
MHP ACQUISITION CORP.
INTO
HEALTHCARE USA INC.
The undersigned corporation organized and existing under
and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name of the state of Incorporation
of each of the constituent corporations of
the merger is as follows:
Name State of Incorporation
HealthCare USA Inc. Delaware
MHP Acquisition Corp. Delaware
SECOND: That a plan and agreement of merger between
the parties to the merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations
in accordance with the requirements of subsection (c) of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation of
the merger is HealthCare USA Inc.
FOURTH: The Restated Certificate of Incorporation of
the surviving corporation, with such amendments as are effected
by the merger, shall be as follows:
FIRST: The name of the corporation is
HealthCare USA Inc.
SECOND: The address of the registered office
of the corporation in the State of Delaware is 410 South
State Street, in the City of Dover, County of Kent. The
name of the registered agent of the corporation at such
address is Incorporating Services, Ltd.
THIRD: The purpose of the corporation is to
engage in any lawful act or activity for which
corporations may be organized under the General
Corporation Law of the State of Delaware.
<PAGE>
FOURTH: The total number of shares of stock
which the corporation is authorized to issue is one
hundred thousand (100,000) shares of common stock, having
a par value of one cent ($0.01) per share.
FIFTH: The business and affairs of the
corporation shall be managed by the board of directors,
and the directors need not be elected by ballot unless
required by the by laws of the Corporation.
SIXTH: In furtherance and not in limitation
of the powers conferred by the laws of the State of
Delaware, the board of directors is expressly authorized
to adopt, amend or repeal the by-laws.
SEVENTH: The corporation reserves the right
to amend and repeal any provision contained in this
Certificate of Incorporation in the manner prescribed by
the laws of the State of Delaware. All Rights herein
conferred are granted subject to this reservation.
FIFTH: That the executed plan and agreement of
merger is on file at the principal place of business of the
surviving corporation. The address of the principal place of
business of the surviving corporation is 701 South Parker Street,
Suite 6000, Orange, California 92660.
SIXTH: That a copy of the plan and agreement of
merger will be furnished by the surviving corporation, on request
and without cost to any stockholder of any constituent
corporation.
SEVENTH: The effective time ("Effective Time") of the
merger shall be 12.01 A.M. Eastern Daylight Time, on October 1,
1986.
IN WITNESS WHEREOF, the undersigned, being the President
and Secretary of HealthCare USA Inc., have caused this
Certificate of Merger to be executed this 30th day of September,
1986.
HEALTHCARE USA INC.
BY /s/ Ernest Park
President
ATTEST:
By: /s/ Charles S. Fiedler
Secretary
<PAGE>
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
HEALTHCARE USA INC., a corporation organized and
existing under and by virtue of the General Corporation Law of
the State of Delaware,
DOES HEREBY CERTIFY:
The present registered agent of the corporation is
Incorporating Services. Ltd. and the present registered office of
the corporation is in the county of Kent.
The Board of Directors of HEALTHCARE USA INC.
adopted the following resolution on the 1st day of October, 1986.
Resolved, that the registered office of HEALTHCARE USA
INC. in the state of Delaware be and it hereby is
changed to Corporation Trust Center, 1209 Orange Street,
in the City of Wilmington, County of New Castle, and the
authorization of the present registered agent of this
corporation be and the same is hereby withdrawn, and THE
CORPORATION TRUST COMPANY, shall be and is hereby
constituted and appointed the registered agent of this
corporation at the address of its registered office.
IN WITNESS WHEREOF: HEALTHCARE USA INC. has caused
this statement to be signed by Bruce Pollack, its President and
attested by Alan Bloom, its Secretary this 13th day of July,
1987.
By: /s/ Bruce Pollack
Bruce Pollack, President
ATTEST:
By: /s/ Alan Bloom
Alan Bloom, Secretary
<PAGE>
CERTIFICATE OF MERGER
MERGING
MAXICARE HEALTH PLANS, INC.
WITH AND INTO
HEALTHCARE USA INC.
(Pursuant to Sections 252 and 303
of the General Corporation Law
of the State of Delaware.)
The undersigned corporation, organized and existing
under and by virtue of the General Corporation Law of the State
of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of
each of the constituent corporations of the merger is as follows:
Names States of Incorporation
MAXICARE HEALTH PLANS, INC. California
HEALTHCARE USA INC. Delaware
SECOND: An Agreement and Plan of Merger has been
approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the
requirements of Sections 252 and 303 of the General Corporation
Law of the State of Delaware.
THIRD: Provision for the merger of the above
referenced corporations is contained in an order date August 31,
1990 of the United States Bankruptcy Court for the Central
District of California in In re Family Health Services, Inc., et
al., Case Nos. SA 89-01549 JW, SA 89-01550 JW through SA 89-01594
JW, SA 89-02535 JW and SA 89-02536 JW.
FOURTH: The name of the surviving corporation is
Healthcare USA Inc.
<PAGE>
FIFTH: Upon the merger becoming effective, the
Restated Certificate of Incorporation of Healthcare USA Inc., the
surviving corporation, shall be amended in its entirety to read
as set forth in Exhibit A.
SIXTH: The executed Agreement and Plan of Merger is
on file at the principal place of business of the surviving
corporation. The address of the principal place of business of
the surviving corporation is 5250 West Century Boulevard, Los
Angeles, California 90045.
SEVENTH: A copy of the executed Agreement and Plan of
Merger will be furnished by the surviving corporation on request
and without cost to any shareholder of any constituent
corporation.
HEALTHCARE USA INC.
By: /s/ Robert S. Amador
Robert S. Amador
President
Attest:
By: /s/ Alan D. Bloom
Alan D. Bloom
Secretary
<PAGE>
EXHIBIT A
RESTATED
CERTIFICATE OF INCORPORATION
OF
HEALTHCARE USA INC.
HealthCare USA Inc., a corporation organized and
existing under the laws of the State of Delaware hereby certifies
as follows:
1. The name of the corporation is HealthCare USA Inc.
(the "Corporation"). The Corporation was originally incorporated
under the name of Greatwest Hospitals, Inc. The original
Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on January 5,
1981.
2. This Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the
Certificate of Incorporation of this Corporation by:
Amending Article FIRST;
Amending Article SECOND;
Amending Article THIRD;
Amending Article FOURTH;
Deleting Article FIFTH and adding a new Article FIFTH;
Deleting Article SIXTH and adding a new Article SIXTH;
Deleting Article SEVENTH and adding a new Article
SEVENTH;
Deleting Article EIGHTH and adding a new Article EIGHTH;
Deleting Article NINTH and adding a new Article NINTH;
Deleting Article TENTH and adding a new Article TENTH;
and
Deleting Article ELEVENTH and adding a new Article
ELEVENTH.
3. The text of the Restated Certificate of
Incorporation as heretofore amended or supplemented is hereby and
further amended and restated to read in its entirety as follows:
FIRST: Name. The name of the Corporation is
Maxicare Health Plans, Inc.
SECOND: Registered Office. The address of the
Corporation's registered office in the State of Delaware is 1209
Orange Street Corporation Trust Center in the City of Wilmington,
<PAGE>
County of New Castle, Delaware 19801. The name of its
registered agent at such address is The Corporation Trust
Company.
THIRD: Purpose. The purpose of the Corporation is
to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State
of Delaware (the "GCL").
FOURTH: Capital Stock.
A. Authorized Capital Stock. The total number
of shares of all classes of capital stock which the Corporation
shall have the authority to issue is Eighteen Million
(18,000,000) shares with a par value of $0.01 per share. All
such shares are of one class and are shares of Common Stock (the
"Common Stock").
B. Voting Rights. Each holder of shares of
Common Stock shall be entitled to one vote in respect of each
share of such stock held by him or her of record.
C. Non-voting Capital Stock. This Corporation
shall not authorize or issue any non-voting capital stock.
FIFTH: Board of Directors.
A. Number of Directors. The number of directors
which shall constitute the board of directors of the Corporation
<PAGE>
(the "Board") shall be fixed in accordance with the Bylaws of
the Corporation.
B. Classification of Board.
(i) The Board shall be divided into
three classes, Class I, Class II and Class III. Each class shall
have as nearly equal in number of directors as possible, with the
term of office of the directors of one class expiring each year;
provided however, that the directors initially serving to Class I
shall serve a term ending on the date of the annual meeting next
following the end of the calendar year 1991, the directors
initially serving in Class II shall serve a term ending on the
date of the second annual meeting next following the end of the
calendar year 1991, and the directors initially serving in Class
III shall serve for a term ending on the date of the third annual
meeting next following the end of the calendar year 1991. Except
as specified in Section C of this Article FIFTH, below, each
director shall serve for a term ending on the date of the third
annual meeting following the annual meeting at which the class of
directors of which such director is a member was elected.
Election of directors need not be by written ballot unless the
Bylaws of the Corporation shall otherwise provide.
(ii) Upon any change in the authorized
number of directors, the Board shall apportion any newly created
directorships to, or reduce the number of directorships in, such
<PAGE>
class or classes as shall, so far as possible, equalize the
number of directors in each class. If consistent with the rule
that the three classes of directors shall be as nearly equal in
number of directors as possible, the Board shall allocate any new
directorships to the available class whose term of office is due
to expire at the earliest date following such allocation.
(iii) Notwithstanding any provision of
this Section B of this Article FIFTH, each director shall serve
for a term continuing until the annual meeting of the
stockholders at which the term of the class to which he was
elected expires and until his successor is elected and qualified
or until his earlier death, resignation or removal.
C. Vacancies on Board. Any vacancies occurring
in the Board for any reason, and any newly created directorships
resulting from any increase in the number of directors, may be
filled by the Board, acting by a majority of the directors then
in office, although less than a quorum or by the stockholders,
and any director so chosen shall hold office until the next
election of the class for which such director shall have been
chosen and until his successor shall be elected and qualified.
D. Removal of Directors. A director may be
removed by the holders of a majority of the shares then entitled
to vote at an election of directors, but only for cause. Except
as may otherwise be provided by law, such cause for removal shall
<PAGE>
exist only if the director has been (i) convicted of a felony by
a court of competent jurisdiction and such conviction is no
longer subject to direct appeal, (ii) adjudged by a court of
competent jurisdiction to be liable for gross negligence or
misconduct in the performance of his duty to the Corporation in a
matter of substantial importance to the Corporation, and such
adjudication is no longer subject to direct appeal, or (iii)
adjudged by a court of competent jurisdiction to be an
incompetent, with the appointment of a guardian to administer the
director's affairs, and such adjudication is no longer subject to
direct appeal.
SIXTH: Amendment of Bylaws. The Board is expressly
authorized to adopt, amend or repeal the Bylaws of the
Corporation.
SEVENTH: Elimination of Certain Liability of Directors.
A director of this Corporation shall not be liable to this
Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, to the fullest extent permitted
by Section 102(b) of the GCL as it currently exists or as it may
hereafter be amended. No amendment to, or modification or repeal
of, this Article SEVENTH shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation
for or with respect to acts or omissions of such director
occurring prior to such amendment, modification or repeal.
<PAGE>
EIGHTH: Indemnification and Insurance. The
Corporation shall indemnify its directors, officers, employees
and agents in accordance with the provisions of this Article
EIGHTH.
A. Right to Indemnification. The Corporation
shall indemnify, to the fullest extent now or hereafter permitted
under the GCL, any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action brought by
or in the right of the Corporation, by reason of the fact that on
or after March 16, 1989, he or she is or was a director, officer,
employee or agent of the Corporation (or was a director, officer,
employee or agent of Maxicare Health Plans, Inc., a California
corporation ("MHP"), prior to the merger of MHP into the
Corporation), or is or was serving at the request of the
Corporation or MHP as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise. Notwithstanding anything to the contrary contained
herein and except as otherwise provided by law, the Corporation
may, but shall have no obligation to, indemnify any present or
former director, officer, employee or agent of the Corporation or
MHP in accordance with this Article EIGHTH for any action, suit
or preceding which arose or may arise out of or in connection
<PAGE>
with such individual's acts or failure to act which occurred
prior to March 15, 1989.
B. Authorization. Except as otherwise provided
by law, any indemnification under Section A of this Article
EIGHTH (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case and in
accordance with the provisions of Section 145 of the GCL.
C. Expenses. Expenses (including attorneys
fees) incurred by an officer or director in defending a civil,
criminal, administrative or investigative action, suit or
proceeding for which indemnification may be provided pursuant to
Section A of this Article EIGHTH above shall, so long as such
officer or director is serving in such capacity at the time such
action, suit or proceeding is brought, be paid by the Corporation
in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the
officer or director to repay such amount if it shall ultimately
be determined that he or she is not entitled to be indemnified by
the Corporation as authorized in this ARTICLE EIGHTH.
D. Nonexclusivity. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Article EIGHTH shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses
may be entitled under any agreement, vote of stockholders or
<PAGE>
disinterested directors, statute, court decision, insurance
policy or otherwise, now or hereafter in effect, both as to
action in a person's official capacity and as to action in
another capacity while holding office, and shall continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
E. 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 as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability
asserted against him or her and incurred in any such capacity, or
arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify the person against
such liability under the provisions of this Article EIGHTH or the
GCL.
F. Other Agreements. Without limiting the
generality of the foregoing, the Corporation shall have the
express authority to enter into such agreements as the Board
deems appropriate for the indemnification of former, present or
future directors, officers, employees and agents of the
Corporation in connection with their service to or status with
the Corporation or any other corporation, entity or enterprise
<PAGE>
with whom such person is serving at the express written request
of the Corporation.
NINTH: Compromise Arrangements. Whenever a
compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court
or equitable jurisdiction within the State of Delaware may, on
the application in a summary way of this Corporation or of any
creditor or stockholder thereof or on the application of any
receiver or receivers appointed for this Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on
the application of trustees in dissolution or of any receiver or
receivers appointed for this Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders
or class of stockholders of this Corporation, as the case may be,
to be summoned in such a manner as the said court directs. If a
majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or
class of stockholders this Corporation, as the case may be, agree
to any compromise or arrangement and to any reorganization of
this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which said
application has been made, be binding on all of the stockholders
or class of stockholders of this Corporation, as the case may be,
<PAGE>
and also on this Corporation.
TENTH: Amendments of Certificate of Incorporation.
The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated
Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation. Notwithstanding
the foregoing or any other provision of this Restated Certificate
of Incorporation or the Bylaws of the Corporation and
notwithstanding the fact that some lesser percentage may be
specified by law, the provisions set forth in this Article TENTH
and in Articles SEVENTH and EIGHTH hereof, may not be repealed,
rescinded, altered or amended in any respect, and no other
provision or provisions may be adopted which impair(s) in any
respect the operation or effect of any such provision, except by
the affirmative vote of the holders of not less than eighty
percent (80%) of the voting power of all outstanding shares of
Voting Stock regardless of class and voting together as a single
voting class, and, where such actions is proposed by an
Interested Stockholder (as such capitalized terms are defined
below), the affirmative vote of the holders of a majority of the
voting power of all then outstanding shares of Voting Stock,
regardless of class and voting together as a single voting class,
other than shares held by the Interested Stockholder which
proposed (or the Affiliate or Associate of which proposed) such
action, or any Affiliate or Associate of such Interested
<PAGE>
Stockholder; provided, however, that where such action is
approved by a majority of the Disinterested Directors (as defined
below), the affirmative vote of a majority of the voting power of
all outstanding shares of Voting Stock, regardless of class and
voting class, shall be required for approval of such action.
ELEVENTH: Certain Definitions. As used in this
Certificate of Incorporation, the following capitalized terms
shall have the following meanings:
A. "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1944, as in effect on January 1, 1990.
B. A person shall be a "beneficial owner" of any
Voting Stock:
(i) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to an agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants or
options, or otherwise; provided, however, that a person shall not
be deemed the beneficial owner of securities tendered pursuant to
a tender or exchange offer made by or on behalf of such person or
<PAGE>
any of such person's Affiliates or Associates until such tendered
securities are accepted for purchase; or (b) the right to vote
pursuant to any agreement, arrangement or understanding;
provided, however, that a person shall not be deemed the
beneficial owner of any security if the agreement, arrangement or
understanding to vote such security (aa) arises solely from a
revocable proxy or consent solicitation made pursuant to, and in
accordance with, the Securities Exchange Act of 1944, as amended
(the "Exchange Act") and (bb) is not also then reportable on
Schedule 13D under the Exchange Act (or a comparable or successor
report); or
(iii) which is beneficially owned, directly or
indirectly, by any other person with which such person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding voting
(except to the extent permitted by the proviso of subsection B
(ii) of Article TENTH above) or disposing of any shares of Voting
Stock.
C. A "Disinterested Director" is any member of
the Board who is not an Interested Stockholder or an Affiliate or
Associate of any Interested Stockholder and either (i) was a
member of the Board immediately prior to the time that the
Interested Stockholder became an Interested Stockholder, or (ii)
was elected or nominated to succeed a Disinterested Director, or
to join the Board of Directors by a majority of Disinterested
Directors then on the Board.
<PAGE>
D. "Interested Stockholder" shall mean any person
(other than the Corporation, any corporation of which a majority
of each class of equity security is owned, directly or
indirectly, by the Corporation (a "subsidiary"), or any employee
benefit plan or employee stock plan of the Corporation or any
subsidiary, or any person or entity organized, appointed,
established or holding Voting Stock for or pursuant to the terms
of any such plan) who or which:
(i) is the beneficial owner, directly or
indirectly, or more than 10% of the voting power of the
outstanding Voting Stock; or
(ii) is an Affiliate of this Corporation and at any
time within the two-year period immediately prior to the
date in question was the beneficial owner, directly or
indirectly, of 10% or more of the voting power of the
then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded
to any shares of Voting Stock which were at any time
within the two-year period immediately prior to the date
in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall
have occurred in the course of a transaction or series
of transactions not involving a public offering within
the meaning of the Securities Act of 1933, as amended.
For the purposes of determining whether a person is an Interested
Stockholder, the number of shares of Voting Stock deemed to be
<PAGE>
outstanding shall include shares of which such person is deemed
to be a beneficial owner, but shall not include any other shares
of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
E. A "person" shall mean any individual, firm,
corporation or other entity.
<PAGE>
CERTIFICATE OF CORRECTION
CERTIFICATE OF CORRECTION FILED
TO CORRECT A CERTAIN ERROR IN THE
RESTATED CERTIFICATE OF INCORPORATION OF
MAXICARE HEALTH PLANS, INC.
FILED IN THE OFFICE OF THE SECRETARY OF
STATE OF DELAWARE ON DECEMBER 5, 1990
Maxicare Health Plans, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of
the State of Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is Maxicare Health
Plans, Inc. The corporation was originally incorporated under
the name of Greatwest Hospitals, Inc. The original Certificate
of Incorporation was filed with the Secretary of State of the
State of Delaware on January 5, 1981.
2. A Restated Certificate of Incorporation was filed
with the Secretary of State of Delaware on December 5, 1990, and
said Restated Certificate requires correction as permitted by
subsection (f) of Section 103 of The General Corporation Law of
the State of Delaware.
3. The inaccuracy or defect of said Restated
Certificate to be corrected is as follows:
The number "1991" contained in the seventh,
tenth and twelfth lines of subsection B.(i)
of Article Fifth of the Restated Certificate
should be deleted and the number "1990"
should be inserted in lieu thereof.
4. As corrected, said Article Fifth shall read in its
entirety as follows:
"FIFTH: Board of Directors.
A. Number of Directors. The number of
directors which shall constitute the board
of directors of the Corporation (the
"Board") shall be fixed in accordance with
the Bylaws of the Corporation.
B. Classification of Board.
(i) The Board shall be divided into
three classes, Class I, Class II and Class
<PAGE>
III. Each class shall have as nearly equal in number of
directors as possible, with the term of office of the
directors of one class expiring each year; provided however,
that the directors initially serving to Class I shall serve
a term ending on the date of the annual meeting next
following the end of the calendar year 1990, the directors
initially serving in Class II shall serve a term ending on
the date of the second annual meeting next following the end
of the calendar year 1990, and the directors initially
serving in Class III shall serve for a term ending on the
date of the third annual meeting next following the end of
the calendar year 1990. Except as specified in Section C of
this Article FIFTH, below, each director shall serve for a
term ending on the date of the third annual meeting
following the annual meeting at which the class of directors
of which such director is a member was elected. Election of
directors need not be by written ballot unless the Bylaws of
the Corporation shall otherwise provide.
(ii) Upon any change in the
authorized number of directors, the Board
shall apportion any newly created
directorships to, or reduce the number of
directorships in, such class or classes as
shall, so far as possible, equalize the
number of directors in each class. If
consistent with the rule that the three
classes of directors shall be as nearly
equal in number of directors as possible,
the Board shall allocate any new
directorships to the available class whose
term of office is due to expire at the
earliest date following such allocation.
(iii) Notwithstanding any provision
of this Section B of this Article FIFTH,
each director shall serve for a term
continuing until the annual meeting of the
stockholders at which the term of the class
to which he was elected expires and until
his successor is elected and qualified or
until his earlier death, resignation or
removal.
C. Vacancies on Board. Any vacancies occurring
in the Board for any reason, and any newly
created directorships resulting from any
<PAGE>
increase in the number of directors, may be filled by the
Board, acting by a majority of the directors then in office,
although less than a quorum or by the stockholders, and any
director so chosen shall hold office until the next election
of the class for which such director shall have been chosen
and until his successor shall be elected and qualified.
D. Removal of Directors. A director may be
removed by the holders of a majority of the
shares then entitled to vote at an election
of directors, but only for cause. Except as
may otherwise be provided by law, such cause
for removal shall exist only if the director
has been (i) convicted of a felony by a
court of competent jurisdiction and such
conviction is no longer subject to direct
appeal, (ii) adjudged by a court of
competent jurisdiction to be liable for
gross negligence or misconduct in the
performance of his duty to the Corporation
in a manner of substantial importance to the
Corporation, and such adjudication is no
longer subject to direct appeal, or (iii)
adjudged by a court of competent
jurisdiction to be an incompetent, with the
appointment of a guardian to administer the
director's affairs, and such adjudication is
no longer subject to direct appeal."
IN WITNESS WHEREOF, said Maxicare Health Plans, Inc. has
caused this Certificate to be signed on its behalf by Peter J.
Ratican, its Chairman of the Board of Directors, Chief Executive
Officer and President, and attested to by Alan D. Bloom, its
Secretary, this 15th day of May, 1991.
MAXICARE HEALTH PLANS, INC.
By: /s/ Peter J. Ratican
Peter J. Ratican, Chairman
of the Board of Directors,
Chief Executive Officer and
President
ATTESTED:
By: /s/ Alan D. Bloom
Alan D. Bloom
Secretary
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
HEALTHAMERICA CORPORATION
INTO
MAXICARE HEALTH PLANS, INC.
* * * *
MAXICARE HEALTH PLANS, INC., a corporation organized and
existing under the laws of Delaware.
DOES HEREBY CERTIFY:
FIRST: That this corporation was incorporated on
the 5th day of January, 1981, pursuant to the General Corporation
Law of the State of Delaware.
SECOND: That this corporation owns all of the
outstanding shares of the stock of HEALTHAMERICA CORPORATION, a
corporation incorporated on the 1st day of October, 1980,
pursuant to the General Corporation Law of the State of Delaware.
THIRD: That this corporation, by the following
resolutions of its Board of Directors, adopted and filed with the
minutes of the Board on the 5th day of December, 1990, determined
to and did merge into itself said HEALTHAMERICA CORPORATION.
RESOLVED, that MAXICARE HEALTH PLANS, INC. merge, and it
hereby does merge into itself said HEALTHAMERICA CORPORATION, and
assumes all of its obligations; and
FURTHER RESOLVED, that the merger shall be effective on
December 31, 1990 for accounting purposes only.
FURTHER RESOLVED, that the proper officers of this
corporation be and they hereby are directed to make and execute a
Certificate of Ownership and Merger setting forth a copy of the
resolutions to merge said HEALTHAMERICA CORPORATION, and assume
its liabilities and obligations, and the date of adoption
thereof, and to cause the same to be filed with the Secretary of
State and a certified copy recorded in the office of the Recorder
of Deeds of New Castle County and to do all acts and things
whatsoever, whether within or without the State of Delaware,
which may be in anywise necessary or proper to effect said
merger.
FOURTH: Anything herein or elsewhere to the contrary
notwithstanding, this merger may be amended or terminated and
abandoned by the Board of Directors of MAXICARE HEALTH PLANS,
INC. at any time prior to the date of filing the merger with the
Secretary of State.
IT WITNESS WHEREOF, said MAXICARE HEALTH PLANS, INC. has
caused this Certificate to be signed by Peter Ratican, its
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President and attested by Alan Bloom its Secretary, this 4th day
of November, 1991.
MAXICARE HEALTH PLANS, INC.
BY /s/ Peter Ratican
Peter Ratican, President
ATTEST:
By /s/ Alan Bloom
Alan Bloom, Secretary
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
MAXICARE HEALTH PLANS, INC.
Maxicare Health Plans, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of
the State of Delaware does hereby certify:
1. That at a meeting of the Board of Directors of
Maxicare Health Plans, Inc., resolutions were adopted setting
forth a proposed amendment of the Restated Certificate of
Incorporation of said Corporation, 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 approved the amendment of the
Restated Certificate of Incorporation of the Corporation by
changing the Article thereof numbered "Fourth" so that, as
amended, said Article shall be and read in its entirety as
follows:
"FOURTH: CAPITAL STOCK.
A. Authorized Capital Stock. The Corporation is
authorized to issue two classes of shares to be
designated Common Stock and Preferred Stock,
respectively. The Corporation is authorized to
issue 40,000,000 shares of Common Stock, par value
$.01 and 5,000,000 shares of Preferred Stock, par
value $.01, which shall be issued from time to
time in series, and of which 2,500,000 shares
shall be designated as Series A Cumulative
Convertible Preferred Stock (the "Series A
Stock"). The rights, preferences, privileges and
restrictions of the Series A Stock and of the
respective holders thereof shall be as set forth
in this Article Fourth. Except with respect to
the shares of its Preferred Stock designated as
Series A Stock, the Board of Directors of the
Corporation (the "Board of Directors") is
authorized to determine and alter the rights,
preferences, privileges and restrictions granted
to and imposed upon any series of Preferred Stock
with respect to any wholly unissued series of
Preferred Stock, and to fix the number of shares
of any series of Preferred Stock and the
designation of any series of Preferred Stock. The
Board of Directors, within the limits and
restrictions stated in any resolution or
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resolutions of the Board of Directors originally fixing the
number of shares constituting any series, may increase or
decrease (but not below the number of shares of such series then
outstanding) the number of shares of any series subsequent to the
issuance of shares of that series.
B. Voting Rights.
(1) Common Shares. Each holder of Common Stock
shall be entitled to one vote in respect of each
share of such stock held by such holder of record.
(2) Series A Stock. Except as may be otherwise
provided in these terms of the Series A Stock or
by law, the Series A Stock shall vote together
with the Common Stock as a single class (together
with all other classes and series of stock of the
Corporation that are entitled to vote as a single
class with the Common Stock) on all actions
submitted to a vote for, or consent by, the
holders of the Common Stock. Each holder of
Series A Stock shall be entitled to such number of
votes in respect of such stock as shall equal the
number of shares of Common Stock into which the
shares of Series A Stock held by such holder of
record are then convertible.
(3) Required Vote for Changes to Series A Stock
Rights. So long as any shares of Series A Stock
remain outstanding, the Corporation will not,
either directly or indirectly or through merger or
consolidation with or into any other corporation,
without the affirmative vote at a meeting, or the
written consent with or without a meeting, of the
holders of at least sixty-six and two-thirds
percent (66-2/3%) in number of shares of the
Series A Stock then outstanding, (i) create or
issue, or increase the authorized number of,
shares of any class or classes or series of stock
ranking prior to the Series A Stock either as to
dividends or upon liquidation, (ii) amend, alter
or repeal any of the provisions of the Certificate
of Incorporation of the Corporation (including
this Article Fourth) so as to affect adversely the
preferences, special rights or powers of the
Series A Stock, or (iii) authorize any
reclassification of the Series A Stock.
C. Dividends.
(1) Series A Stock Preference. The holders of
the Series A Stock shall be entitled to receive,
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when, as and if declared by the Board of Directors, and out of
funds of the Corporation legally available therefor, annual
dividends of $2.25 per share (the "Dividend Rate"), payable in
cash, in quarterly installments commencing on the first Dividend
Date (as defined below) after the date of initial issuance of the
Series A Stock, but in no event earlier than June 30, 1992, and
continuing quarterly thereafter on the last day of each March,
June September and December (each a "Dividend Date") on which any
shares of Series A Stock are outstanding. Such dividends shall
be payable to holders of record of Series A Stock as they appear
on the stock books of the Corporation on such record date, not
more than sixty (60) days nor less than ten (10) days preceding
the Dividend Date, as shall be fixed by the Board of Directors
therefor. Such dividends on the Series A Stock shall accrue from
day to day, whether or not earned or declared, and shall be
cumulative from the date of initial issuance of the shares of
Series A Stock (the "Original Issue Date") so that if such
dividends in respect of any previous quarterly dividend period at
said Dividend Rate shall not have been paid on, or declared and
set apart for all shares of, Series A Stock at the time
outstanding, the deficiency shall be fully paid on, or declared
and set apart for payment on, each outstanding share of Series A
Stock before the Corporation declares or pays any dividend on,
makes any distribution to holders of, or repurchases or otherwise
acquires for value shares of Common Stock or any other stock of
the Corporation ranking junior to the Series A Stock. Dividends
on Series A Stock payable for any partial dividend period shall
be calculated on the basis of a 360-day year of twelve 30-day
months. Accrued but unpaid dividends shall not bear interest.
(2) Partial Payment of Series A Stock Dividend.
If the Board of Directors shall declare a payment
of a dividend and the amount declared for dividend
payment is insufficient to permit the payment of
the full preferential amounts required to be paid
to the holders of Series A Stock, then the entire
amount declared for dividend payment shall be
distributed ratably among the holders of the
Series A Stock.
D. Liquidation.
(1) Series A Stock Preference. The shares of
Series A Stock shall rank prior to the shares of
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Common Stock and any other class of stock of the Corporation
ranking junior to the Series A Stock upon liquidation, including
any other series of Preferred Stock (such Common Stock and other
stock collectively referred to hereinafter as "Junior Liquidation
Stock"), so that upon any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the holders
of the Series A Stock then outstanding shall first be entitled,
before any distribution or payment is made upon any Junior
Liquidation Stock, to be paid out of the assets of the
Corporation available for distribution to its stockholders,
whether from capital, surplus or earnings, an amount equal to
$25.00 per share plus, in the case of each share, an amount equal
to all accrued but unpaid dividends thereon (whether or not
earned or declared) and any other dividends declared but unpaid
thereon, computed to the date fixed for distribution thereof.
Such amount payable with respect to each share of Series A Stock
being sometimes referred to as the "Liquidation Preference
Payment" and with respect to all shares of Series A Stock being
sometimes referred to as the "Liquidation Preference Payments."
If upon such liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the assets to be
distributed among the holders of Series A Stock shall be
insufficient to permit payment in full to the holders of Series A
Stock of the Liquidation Preference Payments, then the entire
assets of the Corporation to be so dis-tributed shall be
distributed ratably among the holders of Series A Stock in
accordance with the respective amounts that would be payable on
such shares if all amounts payable thereon were paid in full.
Upon any such liquidation, dissolution or winding up of the
Corporation, immediately after the holders of Series A Stock
shall have been paid in full the Liquidation Preference Payments,
the holders of Series A Stock will not be entitled to any further
participation in any distribution of assets by the Corporation
and the remaining net assets of the Corporation available for
distribution to its stockholders shall be distributed ratably
among the holders of Junior Liquidation Stock. Written notice of
such liquidation, dissolution or winding up, stating a payment
date and the place where said payments shall be made, shall be
given by the Corporation by facsimile, personal delivery or
overnight courier and confirmed by registered or certified mail
(return receipt requested), or by first class
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mail (postage prepaid) not less than 20 days prior to the payment
date stated therein, to the holders of record of Series A Stock,
such notice to be addressed to each holder at such holder's
address as shown by the records of the Corporation.
(2) Consolidation or Merger. A consolidation,
merger or other business combination of the
Corporation into or with any other entity or
entities (whether or not the Corporation is the
surviving entity), a sale, transfer or other
conveyance by the Corporation of all or
substantially all of its assets, or a sale,
transfer or other conveyance of all or
substantially all of the outstanding Common Stock
in any transaction or related series of
transactions shall not be deemed to be a
liquidation, dissolution or winding up of the
Corporation within the meaning of the provisions
of this Section D.
E. Optional Redemption. At the option of the
Corporation, the Corporation may, from time to
time following the third anniversary of the
Original Issue Date, redeem from each holder of
shares of Series A Stock all or a pro rata portion
of the shares of Series A Stock held by such
holder pursuant to the following terms:
(1) Redemption Price and Payment. The Series A
Stock to be redeemed shall be redeemed by paying
in cash therefor an amount equal to $25.00 per
share plus, in the case of each share, an amount
equal to all accrued but unpaid dividends thereon
(whether or not earned or declared) and any other
dividends declared but unpaid thereon (the
"Optional Redemption Price"), computed to the date
set for redemption by the Corporation (the
"Optional Redemption Date"). Such payment shall
be made in full on the Optional Redemption Date to
the holders entitled thereto.
(2) Redemption While Dividends Unpaid. If full
cumulative dividends on the Series A Stock have
not been paid through the most recent Dividend
Date, the Series A Stock may not be redeemed in
part and the Corporation may not purchase or
acquire any shares of the Series A Stock otherwise
than pursuant to a purchase or exchange offer made
on the same terms to all holders of the Series A
Stock.
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(3) Redemption Mechanics.
(a) At least 20 but not more than 30 days
prior to the Optional Redemption Date, written
notice (the "Optional Redemption Notice") shall be
given by the Corporation by facsimile, personal
delivery or overnight courier and confirmed by
registered or certified mail (return receipt
requested) or by first class mail (postage
prepaid) to each holder of record (at the close of
business on the business day next preceding the
day on which the Optional Redemption Notice is
given) of Series A Stock notifying such holder of
the redemption and specifying the amount of the
Optional Redemption Price, the Optional Redemption
Date, the place where the Optional Redemption
Price shall be payable and the number of shares of
such holder's Series A Stock to be redeemed, if
any. The Optional Redemption Notice shall be
addressed to each holder at such holder's address
as shown by the records of the Corporation.
(b) If an Optional Redemption Notice has
been given pursuant to this Section E and if, on
or before the Optional Redemption Date, the funds
necessary for the redemption shall have been set
aside by the Corporation, separate and apart from
its other funds, in trust for the pro rata benefit
of the holders of the shares so called for
redemption, then, notwithstanding that any
certificates for those shares have not been
surrendered for cancellation, on the Optional
Redemption Date, unless the Corporation
subsequently shall default in making, be
restrained from making by a court or other
governmental order or decree, or otherwise fail to
make timely payment of the Optional Redemption
Price on such shares (in which case this Section
E(3)(b) shall be of no effect as to any shares not
timely redeemed), dividends shall cease to accrue
on the shares of Series A Stock to be redeemed,
and from and after the close of business on the
Optional Redemption Date the holders of those
shares shall cease to be stockholders with respect
to those shares, shall have no interest in or
claims against the Corporation by virtue thereof,
and shall have no voting or other rights with
respect to the shares, except the right to receive
the Optional Redemption Price upon surrender (and
endorsement, if required by the Corporation) of
their certificates, and such shares shall not
thereafter be transferred on the books of the
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Corporation or be deemed to be outstanding for any purpose
whatsoever.
(c) If on or before an Optional Redemption
Date (but no later than the close of business on
the day prior to the Optional Redemption Date) the
Corporation shall deposit, in a trust fund, with
any bank or trust company organized under the laws
of the United States of America or any state
thereof having a combined capital and surplus of
at least $250,000,000 (the "Optional Redemption
Agent") moneys sufficient to redeem on the
Optional Redemption Date the shares of Series A
Stock to be redeemed, with irrevocable
instructions and authority to Optional Redemption
Agent, on behalf and at the expense of the
Corporation, to pay, on the Optional Redemption
Date or prior to that date, the full amount of the
consideration (consisting of the Optional
Redemption Price) payable to the holders of the
Series A Stock upon the redemption, upon surrender
(and endorsement, if required by the Corporation )
of their certificates, then, from and after the
close of business on the date of such deposit
(although prior to the Optional Redemption Date)
(the "Deposit Date"), unless the Corporation shall
subsequently default in making, be restrained from
making by a court or other governmental order or
decree, or otherwise fail to make, or the Optional
Redemption Agent is restrained in connection with
legal proceedings in which the Corporation is a
party from making, timely payment of the Optional
Redemption Price on such shares (in which case
this Section E(3)(c) shall be of no effect as to
any shares not timely redeemed), the deposit shall
be deemed to constitute full and final payment for
the shares of Series A Stock to be redeemed to the
holders thereof and, notwithstanding that any
certificates for those share have not been
surrendered for cancellation, on the Optional
Redemption Date dividends shall cease to accrue on
the shares of Series A Stock to be redeemed, and
at the close of business on the Deposit Date the
holders of those shares shall cease to be
stockholders with respect to those shares and
shall have no interest in or claims against the
Corporation by virtue thereof and shall have no
voting or other rights with respect to the shares,
except the right to receive the Optional
Redemption Price, without interest thereon, upon
surrender (and endorsement, if required by the
Corporation) of their certificates, and the shares
evidenced thereby shall no longer be deemed
outstanding for any purpose.
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(4) Election to Convert in Lieu of Redemption.
Notwithstanding the foregoing, if an Optional
Redemption Notice shall have been given pursuant
to this Section E and any holder of shares of
Series A Stock shall, prior to the close of
business on the fifth (5th) day prior to an
Optional Redemption Date, give written notice to
the Corporation of and otherwise comply with the
procedure required pursuant to Section G below for
the conversion of any or all of the shares held by
the holder, then the redemption shall not become
effective as to the shares to be converted and the
conversion shall become effective as provided in
Section G below; provided, however, that if the
Corporation shall default in making, be restrained
from making by a court or other governmental order
or decree, or otherwise fail to make, or the
Optional Redemption Agent, if any, is restrained
in connection with legal proceedings in which the
Corporation is a party from making, timely payment
of the Optional Redemption Price, any notice of
conversion that was given to the Corporation
subsequent to the date of such Optional Redemption
Notice may, at the option of the holder who gave
such conversion notice, be revoked and be of no
effect and the Corporation shall return to such
holder all certificates representing shares of
Series A Stock which were converted by such
holder's revoked conversion notice upon the
holder's surrender of all certificates, if any,
representing Common Stock issued to such holder as
a result of the conversion.
(5) Reversion of Redemption Funds. Subject to
applicable escheat laws, any moneys necessary for
redemption set aside or deposited by the
Corporation and unclaimed at the end of two years
from the Optional Redemption Date shall revert to
the general funds of the Corporation, after which
reversion the holders of such shares so called for
redemption but not surrendered shall look only to
the general funds of the Corporation for payment
of the amounts payable upon such redemption. Any
interest accrued on funds so set aside or
deposited shall belong to the Corporation and
shall be paid to it from time to time. Any funds
which have been deposited by the Corporation, or
on its behalf, with a redemption agent or
segregated and held in trust by the Corporation
for the redemption of shares converted into Common
Stock on or prior to the date fixed for such
redemption shall (subject to any right of the
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holder of such shares to receive the dividend payable thereon as
provided in Section G(3) below) immediately upon such conversion
be returned to the Corporation, or if then held in trust by the
Corporation, shall be discharged from such trust.
F. Redemption by the Holder.
(1) Share Acquisition or Business Combination.
In the event that (i) any "person" (as defined in
Section 13(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") becomes the
"beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act) of all or substantially all of
the Common Stock (a "Share Acquisition"), or (ii)
the Corporation is a party to the sale of all or
substantially all of its assets (a "Sale"), or
(iii) the Corporation is a party to a combination,
merger or consolidation in which the holders of
the Corporation's outstanding Series A Stock
immediately prior to the transaction do not
immediately thereafter (x) if the Corporation is
the surviving entity, continue to hold such
shares, without material change in the rights
preferences or priorities accorded thereto, or (y)
if the Corporation is not the surviving entity,
receive in exchange for such shares preferred
stock in the surviving entity of substantially
equivalent rights, preferences and priorities (a
"Business Combination"), then each holder of
Series A Stock, subject to the conditions set
forth in this Section F, shall have the option to
require the Corporation to redeem all of the
shares of Series A Stock owned by such holder for
an amount equal to $25.00 per share, plus, in the
case of each share, an amount equal to all accrued
but unpaid dividends thereon (whether or not
earned or declared) and any other dividends,
declared but unpaid thereon, computed to the date
fixed for redemption (such amount is hereinafter
referred to as the "Holder Redemption Price").
For the purposes of this Section F, any of the
events described in clauses (i), (ii) and (iii) of
this Subsection F(1) is a "Change of Control".
(2) Holder Redemption Mechanics.
(a) Within five days after the Corporation
has knowledge that Share Acquisition has occurred,
or no later than 50 days prior to the effective
date of a Sale or Business Combination, as
applicable, the Corporation shall send to each
holder of Series A Stock (at such holder's address
as shown by the records of the Corporation) a form
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of written demand to be used by such holder to exercise the
holder's right of redemption (a "Demand Form") and a notice which
shall (i) disclose the occurrence of the Change of Control and
the right of the holder to require the Corporation to redeem all,
but not less than all, of the holder's shares of Series A Stock
pursuant to this Subsection F(2) if the holders of at least
seventy-five percent (75%) of the then outstanding shares of
Series A Stock shall so demand, and (ii) state (A) the date fixed
for redemption (the "Holder Redemption Date"), the amount of the
Holder Redemption Prices and the name and address of any entity
authorized by the Corporation to pay any amounts payable upon
redemption (the "Paying Agent"), (B) that no shares of Series A
Stock will be redeemed unless the holders of at least seventy-
five percent (75%) of the then outstanding Series A Stock elect
to have their shares redeemed, (C) that the shares of Series A
Stock to be redeemed must be surrendered to the Paying Agent, if
any, or to the Corporation to receive the Holder Redemption
Price, and (D) the date by which the holder must notify the
Corporation if such holder elects to require the Corporation to
make the redemption (the "Demand Form Due Date") which date shall
be no later than the close of business on the date that is 30
days from the date the notice of the Change of Control and form
Demand Form is given to holders of Series A Stock pursuant to
this Subsection F(2). For the purposes hereof, the Holder
Redemption Date shall be a date which is no later than 55 days
after the Corporation has knowledge that a Share Acquisition has
occurred, or the day immediately prior to the effective date of a
Sale or Business Combination, as applicable.
(b) By the close of business on the day
prior to the Holder Redemption Date, the
Corporation shall deposit with the Paying Agent,
if any, or set aside, separate and apart from its
other funds, in trust for the pro rata benefit of
the holders of the shares of Series A Stock
subject to redemption, funds sufficient to redeem
on the Holder Redemption Date all of the shares of
Series A Stock outstanding on the date of the
delivery of the notice referred to above.
(c) Each holder of Series A Stock which
elects to require the Corporation to redeem on the
Holder Redemption Date all of the shares of Series
A Stock that such holder owns shall deliver to the
Corporation by the Demand Form Due Date a
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completed Demand Form relating to the shares of Series A Stock to
be redeemed. In the event that, and only in the event that, the
holders of at least seventy-five percent (75%) of the then
outstanding shares of Series A Stock shall have so elected to
redeem their shares, the Corporation shall (i) within five (5)
days after the Demand Form Due Date, give to each holder of
Series A Stock (at such holder's address as shown by the records
of the Corporation) a notice stating that a redemption has been
requested by holders of at least seventy-five percent (75%) of
the then outstanding shares of Series A Stock and providing other
instructions regarding the manner and procedure for surrendering
the Series A Stock share certificates to be redeemed and
receiving the Holder Redemption Price therefor, and (ii) at the
close of business on the Holder Redemption Date, redeem at the
Holder Redemption Price each of the shares of Series A Stock for
which a completed Demand Form has been delivered to the
Corporation by the holder of such shares for redemption pursuant
to this Subsection F(2). Notwithstanding that any certificate of
holders of Series A Stock who have delivered to the Corporation a
Demand Form has not been surrendered for redemption, (unless the
Corporation shall subsequently default in making, be restrained
from making by a court or other governmental order or decree, or
otherwise fail to make, or the Paying Agent is restrained in
connection with legal proceedings in which the Corporation is
party from making, timely payment of the Holder Redemption Price
on such shares surrendered, in which case this sentence shall be
of no effect as to any shares not timely redeemed) on the Holder
Redemption Date pursuant to this Subsection F(2), all dividends
shall cease to accrue on such shares of Series A Stock to be
redeemed, and at the close of business on the Holder Redemption
Date the holders who have delivered to the Corporation a Demand
Form shall cease to be stockholders with respect to the shares
they hold and shall have no interest in or claims against the
Corporation by virtue thereof except the right to receive the
Holder Redemption Price, without interest thereon, upon surrender
(and endorsement, if required by the Corporation) of such
holders' Series A Stock share certificates. Following payment of
the Holder Redemption Price for all shares of Series A Stock
required to be redeemed pursuant to this Subsection F(2), if any,
or if any moneys necessary for the redemption remain deposited or
set aside and unclaimed on the second anniversary
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of the corresponding Holder Redemption Date, or if the
Corporation determines for any reason that the contemplated
Change of Control will not occur, all funds remaining from the
amounts previously deposited with the Paying Agent, if any, or
set aside by the Corporation, and all interest earned thereon,
shall belong and be immediately released to the Corporation as
part of its general funds. If any certificates relating to
shares of Series A Stock shall be surrendered to the Paying
Agent, if any, or the Corporation in connection with a redemption
required to be made under this Subsection F(2) and for any reason
whatsoever the relevant Sale or Business Combination does not
become effective, then the Corporation shall, or shall cause the
Paying Agent, if any, to return the certificates promptly to
their respective original holders.
(d) For the purposes of this Subsection
F(2), any notice required to be given or sent by
the Corporation to the holders of Series A Stock
shall be given or sent by facsimile, personal
delivery or overnight courier and confirmed by
registered or certified mail (return receipt
requested), or by first class mail (postage
prepaid).
(3) Election for Holder Redemption. An election
by a holder of Series A Stock to have the
Corporation redeem the shares of Series A Stock
pursuant to Subsection F(2) above shall become
irrevocable by the holder at the close of business
on the relevant Holder Redemption Date; provided,
however, that if the required number of holders of
Series A Stock do not elect as of the Demand Form
Due Date to have shares redeemed pursuant to this
Section F and maintain such elections in force
through the close of business on the Holder
Redemption Date, then all such elections shall be
deemed cancelled.
(4) Provisions for Holder Redemption. The
Corporation shall not complete any Sale or
Business Combination unless proper provision has
been made to satisfy its obligations under this
Section F.
G. Conversion. The holders of the Series A Stock
shall have conversion rights as follows:
(1) Right to Convert.
(a) Each share of Series A Stock shall be
convertible into Common Stock, at the option of
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the holder thereof, without payment of additional consideration
by such holder except as otherwise provided herein, at any time
after the date of issuance of such share and on or prior to the
fifth (5th) day prior to an Optional Redemption Date, if any, as
may have been fixed in any Optional Redemption Notice, at the
office of the Corporation or any transfer agent for the Series A
Stock, at the initial conversion rate of 2.7548 fully paid and
nonassessable shares of Common Stock for each share of Series A
Stock (calculated as to each conversion to the nearest one
hundredth of a share of Common Stock), subject, however, to the
adjustments described in this Section G. (The number of shares
of Common Stock into which each share of Series A Stock may be
converted is hereinafter referred to as the "Conversion Rate".)
In the event of a call for redemption by the Corporation pursuant
to Section E hereof, with respect to any shares of Series A Stock
which are convertible into Common Stock, the conversion rights
shall terminate as to the shares of Series A Stock designated for
preceding the Optional Redemption Date, unless default is made in
payment of the Optional Redemption Price.
(b) No fractional shares of Common Stock
shall be issued upon conversion of Series A Stock
and any fractional interest in a share of Common
Stock resulting from a conversion of a share or
shares of Series A Stock shall be (i) cancelled if
the resulting fractional interest is equal to or
less than one-half (1/2) of a share of Common
Stock, or (ii) rounded up to the next whole share
of Common Stock if the resulting fraction interest
is greater than one-half (1/2) of a share of
Common Stock. If more than one share of Series A
Stock shall be surrendered for conversion at one
time by the same holder, the number of full shares
of Common Stock issuable upon their conversion
shall be computed on the basis of the aggregate
number of shares of Series A Stock surrendered by
such holder for conversion.
(2) Mechanics of Conversion. Before any holder
of Series A Stock shall be entitled to convert the
same into shares of Common Stock, the holder shall
surrender the certificate or certificates
therefor, duly endorsed, at the principal office
of the Corporation or of any transfer agent for
the Series A Stock, and shall give written notice
to the Corporation at such office that the holder
elects to convert the same, stating therein the
number of shares of Series A Stock being
<PAGE>
converted. The Corporation shall promptly issue and deliver at
such office to such holder, or to such holder's nominee or
nominees, a certificate or certificates for the number of shares
of Common Stock to which the holder shall be entitled. Such
conversion shall be deemed to have been made immediately prior to
the close of business on the date of such surrender of the shares
of Series A Stock to be converted, and the person or persons
entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder
or holders of such shares of Common Stock on such date.
(3) Effect of Conversion on Dividends. The
holders of shares of Series A Stock at the close
of business on a record date prior to the Dividend
Date shall be entitled to receive the dividend
payable on those shares on the corresponding
Dividend Date, notwithstanding the conversion of
the shares after the dividend payment record date
or the Corporation's default in payment of the
dividend due on the Dividend Date. Except as
provided above, the Corporation shall make no
payment or adjustment for accrued and unpaid
dividends on shares of Series A Stock, whether or
not in arrears, on conversion of those shares or
for dividends on the shares of Common Stock issued
upon the conversion.
(4) Adjustments to Conversion Rate. The
Conversion Rate shall be subject to adjustment
from time to time as follows:
(a) In the event the Corporation at any
time or from time to time after the Original Issue
Date (i) pays a dividend or makes a distribution
on its Common Stock in shares of its Common Stock,
or (ii) effects a subdivision or combination of
its outstanding Common Stock into a greater or
lesser number of shares without a proportionate
and corresponding subdivision or combination of
its outstanding Series A Stock, then and in each
such event the Conversion Rate in effect
immediately prior to such event shall be increased
or decreased proportionately so that the holder of
any shares of Series A Stock thereafter
surrendered for conversion shall be entitled to
receive the number of shares of Common Stock which
such holder would have owned or have been entitled
to receive after the happening of such event had
the Series A Stock shares been converted
immediately prior to the happening of such event.
An adjustment made pursuant to this Section
<PAGE>
G(4)(a) shall become effective immediately after the close of
business on the record date in the case of a dividend or
distribution except as provided in Section G(5) below, and shall
become effective immediately after the effective date in the case
of a subdivision or combination. If any dividend or distribution
is not fully paid or made on the date fixed therefor, the
Conversion Rate shall be recomputed accordingly as of the close
of business on such corresponding record date and thereafter the
Conversion Rate shall be adjusted pursuant to this Subsection
G(4)(a) as of the time of actual payment of such dividends or
distributions.
(b) In the event the Corporation at any
time or from time to time after the Original Issue
Date shall issue rights, options or warrants
(other than stock options granted to employees,
officers or directors of the Corporation) to all
holders of its Common Stock entitling them to
subscribe for or purchase Common Stock at a price
per share less than the Current Market Price (as
defined in Subsection G(4)(d) below) of the Common
Stock at the date of pricing of the rights,
options or warrants, the Conversion Rate in effect
immediately prior to the date of pricing of such
rights, options or warrants shall be adjusted by
multiplying such Conversion Rate by a fraction of
which the numerator shall be the number of shares
of Common Stock outstanding on the date of pricing
of the rights, options or warrants plus the number
of additional shares of Common Stock offered for
subscription or purchase, and of which the
denominator shall be the number of shares of
Common Stock outstanding on the date of pricing of
the rights, options or warrants plus the number of
shares of Common stock which the aggregate
offering price of the total number of shares of
Common Stock so offered for subscription or
purchase would purchase at the Current Market
Price at such date of pricing. The adjustment
provided for in this Subsection G(4)(b) shall be
made successively whenever any such rights,
options or warrants are issued, and shall become
effective immediately after the date of issue,
except as provided in Subsection G(5) below. In
determining whether any rights, options or
warrants entitle the holders of the Common Stock
to subscribe for or purchase shares of Common
Stock at less than the Current Market Price, and
in determining whether any rights, options or
warrants entitle the holders of the Common Stock
to subscribe for or purchase shares of Common
<PAGE>
Stock at less than the Current Market Price, and in determining
the aggregate offering price of the shares of Common Stock so
offered, there shall be taken into account any consideration
received by the Corporation for such rights, options or warrants,
the value of such consideration, if other than cash, to be
computed at the then fair market value thereof as determined by
the Board (whose good faith determination shall be conclusive).
If any or all of such rights, options or warrants are not so
issued or expire or terminate without having been exercised, the
Conversion Rate then in effect shall be appropriately readjusted.
(c) In the event the Corporation shall
distribute to all holders of its Common Stock any
shares of capital stock of the Corporation (other
than Common Stock) or evidences of indebtedness or
assets (excluding cash dividends or distributions
paid from retained earnings of the Corporation) or
rights or warrants to subscribe for or purchase
any of its securities (excluding those referred to
in Subsection G(4)(b) above) then, in each such
case, the Conversion Rate in effect immediately
prior to the date of the distribution by a
fraction of which the numerator shall be the
Current Market Price of the Common Stock on the
record date used in determining distributions in
the case of any distribution of stock, evidences
of indebtedness or assets, or on the date of
pricing in the case of any distribution of rights
or warrants, and of which the denominator shall be
the Current Market Price of the Common Stock on
the applicable record date or pricing date
mentioned above less the then fair market value
(as determine by the Board, whose good faith
determination shall be conclusive) of the portion
of the capital stock or assets or evidences of
indebtedness so distributed, or of the rights or
warrants so distributed, with respect to one share
of Common Stock. Such adjustment shall become
effective immediately after the applicable record
date or, in the case of rights or warrants, the
date of issuance, except as provided in Subsection
G(5) below. If any such distribution is not made
or if any or all of such rights or warrants expire
or terminate without having been exercised, the
Conversion Rate then in effect shall be
appropriately readjusted.
(d) For the purpose of any computation
under Subsections G(4)(b) or G(4)(c) above, the
"Current Market Price" of the Common Stock at any
<PAGE>
date shall be the average of the last reported sale prices per
share for the ten consecutive Trading Days (as defined below)
preceding the date of such computation. The last reported sale
price for each day shall be (i) the last reported sale price of
the Common Stock on the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotation
System (the "NASDAQ National Market System"), or any similar
system of automated dissemination of quotations of securities
prices then in common use, if so quoted, or (ii) if not quoted as
described in clause (i), the mean between the high bid and low
asked quotations for the Common Stock as reported by the National
Quotation Bureau Incorporated if at least two securities dealers
have inserted both bid and ask quotations for the Common Stock on
at least five of the then preceding days, or (iii) if the Common
Stock is listed or admitted for trading on any national
securities exchange, the last sale price, or the closing bid
price if no sale occurred, of the Common Stock on the principal
securities exchange on which the Common Stock is listed. If the
Common Stock is quoted on a national securities or central market
system, in lieu of a market or quotation system described above,
the last reported sale price shall be determined in the manner
set forth in clause (ii) of the preceding sentence if bid and ask
quotations are reported but actual transactions are not, and in
the manner set forth in clause (iii) of the preceding sentence if
actual transactions are reported. If none of the conditions set
forth above is met, the last reported sale price of the Common
Stock on any day or the average of such last reported sale prices
for any period shall be the fair market value of such class of
stock as determined by a member firm of the New York Stock
Exchange, Inc. selected by the Corporation. As used herein the
term "Trading Days" means (x) if the Common Stock is quoted on
the NASDAQ National Market System or any similar system of
automated dissemination of quotations of securities prices, days
on which trades may be made on such system, or (y) if not quoted
as described in clause (x), days on which quotations are reported
by the National Quotation Bureau Incorporated, or (z) if the
Common Stock is listed or admitted for trading on any national
securities exchange, days on which such national securities
exchange is open for business.
(e) No adjustment in the Conversion Rate
shall be required unless such adjustment would
require a change of at least one percent (1%) in
<PAGE>
the Conversion Rate; provided, however, that any adjustments
which by reason of this Subsection G(4)(e) are not required to be
made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section G
shall be made to the nearest cent or to the nearest one hundredth
of a share, as the case may be.
(5) Deferred Actions in Event of Adjustment. In
any case in which this Section G provides that an
adjustment shall become effective immediately
after a record date for an event, the Corporation
may defer until the occurrence of the event
issuing to the holder of any share of Series A
Stock converted after the record date and before
the occurrence of the event the additional shares
of Common Stock issuable upon the conversion by
reason of the adjustment required by the event
over and above the Common Stock issuable upon such
conversion before giving effect to the adjustment.
(6) No Impairment. The Corporation will not, by
amendment of its Restated Certificate of
Incorporation or through any reorganization,
transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to
be observed or performed hereunder by Corporation,
but will at all times in good faith assist in the
carrying out of all the provisions of this Section
E and in the taking of all such action as may be
necessary or appropriate in order to protect the
conversion rights of the holders of the Series A
Stock against impairment.
(7) Certificate as to Adjustments. Upon the
occurrence of each adjustment or readjustment of
the Conversion Rate pursuant to this Section G,
the Corporation, at its expense shall promptly
compute such adjustment or readjustment in
accordance with the terms hereof and prepare and
promptly furnish to each holder of Series A Stock
(at such holder's address as then shown on the
records of the Corporation) and any transfer agent
of the Series A Stock a certificate of an
executive officer of the Corporation setting forth
such adjustment or readjustment and the Conversion
Rate in effect after such adjustment or
readjustment, and showing in detail the facts upon
which such adjustment or readjustment is based.
The Corporation shall, upon the written request at
any time of any holder of Series A Stock, furnish
<PAGE>
or cause to be furnished to such holder a like certificate
setting forth (i) such adjustment and readjustments, (ii) the
Conversion Rate at the time in effect, and (iii) the number of
shares of Common Stock and the amount, if any, of other property
which at the time would be received upon the conversion of Series
A Stock.
(8) Notices of Record Date. In the event of any
taking by the Corporation of record of the holders
of any class of securities for the purpose of
determining the holders thereof who are entitled
to receive (i) any dividend (other than a cash
dividend out of retained earnings) or other
distribution, (ii) any other securities, warrants
or rights convertible into or entitling the holder
thereof to receive shares of Common Stock, (iii)
any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any
other securities or property, or (iv) any other
right issued by, or property of, the Corporation
(including, without limitation, rights arising in
connection with the voluntary or involuntary
dissolution, liquidation or winding up of the
Corporation), the Corporation shall deliver by
facsimile, personal delivery or overnight courier
and confirmed by registered or certified mail
(return receipt requested), or by first class mail
(postage prepaid) to each holder of Series A Stock
and to any transfer agent for Series A Stock, at
least twenty (20) days prior to the record date
specified therein, a notice specifying the date on
which any such record is to be taken for the
purpose of such dividend, distribution or rights,
and the amount and character of such dividend,
distribution or rights, and the amount and
character of such dividend, distribution or right
or the date on which the reclassification,
consolidation, merger, statutory share exchange,
sale, transfer, change of control, dissolution,
liquidation or winding up is expected to become
effective, and the date as of which it is expected
that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock
for securities or other property deliverable upon
the reclassification, consolidation, merger,
statutory share exchange, sale, transfer, change
of control, dissolution, liquidation or winding
up. Failure to give any such notice or any defect
in the notice shall not affect the legality or
validity of the proceedings described in this
Subsection G(8).
(9) Reservation of Stock Issuable Upon
Conversion. The Corporation shall at all times
reserve and keep available out of its authorized
<PAGE>
but unissued shares of Common Stock solely for the purpose of
effecting the conversion of the shares of the Series A Stock,
such number of its shares of Common Stock as shall from time to
time be sufficient to effect the conversion of all outstanding
shares of the Series A Stock; and if at any time the number of
authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then outstanding
shares of the Series A Stock, the Corporation will take such
corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient for
such purpose.
(10) Reorganization or Reclassification. In case
of any reclassification or change of outstanding
shares of Common Stock (other than a change in par
value, or as a result of a subdivision or
combination), or in case of any consolidation of
the Corporation with, or merger of the Corporation
with or into, any other entity that results in a
reclassification, change, conversion, exchange or
cancellation of outstanding shares of Common Stock
or any sale or transfer of all or substantially
all of the assets of the Corporation, each holder
of shares of Series A Stock then outstanding shall
have the right thereafter to convert the shares of
Series A Stock held by the holder (in lieu of
receiving the shares of Common Stock immediately
theretofore receivable upon conversion of such
shares of Series A Stock) into the kind and amount
of securities, cash and other property which the
holder would have been entitled to receive upon
such reclassification, change, consolidation,
merger, sale or transfer if the holder had held
the Common Stock issuable upon the conversion of
the shares of Series A Stock immediately prior to
the reclassification, change, consolidation,
merger, sale or transfer.
H. Status of Redeemed or Cancelled Series A Stock.
Upon any conversion or redemption of shares of
Series A Stock, the shares of Series A Stock so
converted or redeemed shall have the status of
authorized and unissued shares of Preferred Stock,
the number of shares of Preferred Stock which the
Corporation shall have authority to issue shall
not be decreased by the conversion or redemption
of shares of Series A Stock. The shares of Series
A Stock not redeemed pursuant to the provisions of
this Article Fourth shall remain outstanding and
entitled to all rights and preferences provided
herein.
<PAGE>
I. Miscellaneous Rights and Restrictions of Series A
Stock.
(1) The Corporation will endeavor to list the
shares of Common Stock required to be delivered
upon conversion of the Series A Stock, prior to
their delivery, upon each national securities
exchange, if any, upon which the outstanding
Common Stock is listed at the time of delivery.
(2) The Corporation will pay any and all
documentary stamp or similar issue or transfer
taxes payable in respect of the issue or delivery
of shares of Common Stock on conversion of the
Series A Stock pursuant hereto; provided, however,
that the Corporation shall not be required to pay
any tax which may be payable in respect of any
transfer involved in the issue or delivery of
shares of Common Stock in a name other than that
of the holder of the Series A Stock to be
converted and no such issue or delivery of shares
of Common Stock in a name other than that of the
holder of the Series A Stock to be converted shall
be made unless and until the person requesting the
issue or delivery has paid to the Corporation the
amount of any such tax or has established to the
satisfaction of the Corporation that the tax has
been paid.
(3) The holders of the Series A Stock will not
have any preemptive right to subscribe for or
purchase any shares or any other securities which
may be issued by the Corporation.
(4) If any right, preference or limitation of
the Series A Stock set forth in this Certificate
of Incorporation is invalid, unlawful or incapable
of being enforced by reason of any rule or law or
public policy, all other rights, preferences and
limitations set forth in this Certificate of
Incorporation which can be given effect without
the invalid, unlawful or unenforceable right,
preference or limitation shall, nevertheless,
remain in full force and effect, and no right,
preference or limitation herein set forth shall be
deemed dependent upon any other such right,
preference or limitation unless so expressed
herein.
J. Non-Voting Common Stock. This Corporation shall
not authorize or issue any non-voting Common
Stock."
<PAGE>
Except as may otherwise be required by law, no
other designations, preferences, limitations or
relative rights, were established for the benefit
of the Series A Stock other than those
specifically set forth in the amendment approved
by the Board of Directors and in the Restated
Certificate of Incorporation.
2. That thereafter, pursuant to resolution of its
Board of Directors, a special meeting of the
stockholders of said Corporation 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.
IN WITNESS WHEREOF, said Maxicare Health Plans,
Inc. has caused this certificate to be made and signed by Peter
J. Ratican, its President, and attested to by Alan D. Bloom, its
Secretary, this 9th day of March, 1992.
MAXICARE HEALTH PLANS, INC.
By: /s/ Peter J. Ratican
Peter J. Ratican
ATTEST:
By: /s/ Alan D. Bloom
Alan D. Bloom, Secretary
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
HCS COMPUTER, INC.
INTO
MAXICARE HEALTH PLANS, INC.
* * * * * *
MAXICARE HEALTH PLANS, INC., a corporation organized
and existing under the laws of Delaware,
DOES HEREBY CERTIFY:
FIRST: That this corporation was incorporated on
the 5th day of January, 1981, pursuant to the Corporation Law of
the State of Delaware.
SECOND: That this corporation owns all of the
outstanding shares of the stock of HCS COMPUTER, INC., a
corporation incorporated on the 14th day of August, 1980,
pursuant to the Corporations Law of the State of California.
THIRD: That this corporation, by the following
resolutions of its Board of Directors, duly adopted at a meeting
held on the 30th day of October, 1992, determined to and did
merge into itself said HCS COMPUTER, INC.:
RESOLVED, that MAXICARE HEALTH PLANS, INC.
merge, and it hereby does merge into itself
said HCS COMPUTER, INC., and assumes all of
its obligations; and
FURTHER RESOLVED, that the merger shall be
effective on October 1, 1992 for tax purposes
only.
<PAGE>
IN WITNESS WHEREOF, said MAXICARE HEALTH PLANS, INC.,
has caused this certificate to be signed by Peter Ratican, its
President, and attested by Alan Bloom, its Secretary, this 30th
day of October, 1992.
MAXICARE HEALTH PLANS, INC.
By: /s/ Peter Ratican
Peter Ratican, President
ATTEST:
By: /s/ Alan Bloom
Alan Bloom, Secretary
<PAGE>
Certificate of Designation
of
Series B Preferred Stock
of
Maxicare Health Plans, Inc.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
Maxicare Health Plans, Inc., a corporation organized and
existing under the General Corporation Law of the State of
Delaware (the "Corporation") hereby certifies that the following
resolution was duly adopted by the Board of Directors of the
Corporation as required by Section 151 of the General Corporation
Law of the State of Delaware at a meeting duly called and held on
February 24, 1998.
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of this Corporation in
accordance with the provisions of the Certificate of Amendment
of Restated Certificate of Incorporation, the Board of Directors
hereby creates a series of Series B Preferred Stock, with a par
value of $0.01 per share, of the Corporation and hereby states
the designation and number of shares, and fixes the relative
rights, preferences and limitations thereof (in addition to the
provisions set forth in the Certificate of Amendment of Restated
Certificate of Incorporation which are applicable to the
Preferred Stock of all classes and series) as follows:
Section 1. Designation, Par Value and Amount. The
shares of such series shall be designated as "Series B Preferred
Stock" (hereinafter referred to as "Series B Preferred Stock"),
the shares of such series shall be with par value of $0.01 per
share, and the number of shares constituting such series shall be
500,000, provided, however, that, if more than a total of 500,000
shares of Preferred Stock shall be issuable upon the exercise of
Rights (the "Rights") issued pursuant to the Rights Agreement,
dated as of February 24, 1998 between the Corporation and
American Stock Transfer and Trust Company, as Rights Agent (as
amended from time to time) (the "Rights Agreement"), the Board of
Directors of the Corporation, pursuant to Section 151 of the
General Corporation Law of the State of Delaware, shall direct by
resolution or resolutions that a certificate be properly
executed, acknowledged and filed providing for the total number
of shares of Series B Preferred Stock authorized to be issued to
be increased (to the extent that the Certificate of Amendment of
Restated Certificate of Incorporation then permits) to the
largest number of whole shares (rounded up to the nearest whole
number) issuable upon exercise of the Rights.
<PAGE>
Section 2. Dividends and Distributions.
(a) Subject to the prior and superior rights of
the holders of any shares of any series of
Preferred Stock ranking prior and superior to the
shares of Series B Preferred Stock with respect to
dividends, the holders of shares of Series B
Preferred Stock shall be entitled to receive, when,
as and if declared by the Board of Directors out of
assets legally available for the purpose,
commencing after the first issuance of a share or a
fraction of a share of Series B Preferred Stock, an
amount per share (rounded to the nearest cent)
equal to 500 times the aggregate per share amount
of all cash dividends, and 500 times the aggregate
per share amount (payable in kind) of all non-cash
dividends or other distributions declared and paid
to each share of Common Stock, par value $0.01 per
share of the Corporation (the "Common Shares')
(other than a dividend payable in shares of Common
Stock or a subdivision, or combination or
consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise). In the
event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding
shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the
amount to which holders of shares of Series B
Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding
immediately after such event and the denominator of
which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as
provided in paragraph (a) above immediately after
it declares a dividend or distribution on the
Common Stock (other than a dividend payable in
shares of Common Stock).
Section 3. Voting Rights. The holders of shares
of Preferred Stock shall have the following voting
rights:
(a) Except as provided in paragraph (c) of this
Section 3 and subject to the provision for
adjustment hereinafter set forth, each share of
Series B Preferred Stock shall entitle the holder
<PAGE>
thereof to 500 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law,
the holders of shares of Series B Preferred Stock
and the holders of shares of Common Stock shall
vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(c) Except as set forth herein (or as otherwise
required by applicable law), holders of Series B
Preferred Stock shall have no general or special
voting rights.
Section 4. Reacquired Shares. Any shares of Series B
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein, in the Certificate
of Amendment of Restated Certificate of Incorporation, in any
other Certificate of Amendment creating a series of Preferred
Stock or as otherwise required by law.
Section 5. Liquidation, Dissolution or Winding Up.
Subject to the prior and superior rights of holders of any shares
of any series of preferred stock ranking prior and superior to
the shares of Series B Preferred Stock with respect to rights
upon liquidation, dissolution or winding up (voluntary or
otherwise), no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up, including but not limited
to the Common Stock) to the Series B Preferred Stock unless,
prior thereto the holders of the Series B Preferred Stock shall
have received $100.00 per share (the "Series B Liquidation
<PAGE>
Preference"). Following, the full amount of the Series B
Liquidation Preference, the holders of Series B Preferred Stock
and holders of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in
the ratio for each share of Preferred Stock an amount 500 times
the amount distributed for each share of Common Stock.
Section 6. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
the shares of Series B Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to
the provision for adjustment hereinafter set forth) equal to 500
times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is changed or exchanged.
In t he event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of
Series B Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
Section 7. Redemption.
(a) The Corporation shall have the right, at any
time, in its absolute and sole discretion to
redeem all but not less than all of Series B
Preferred Stock. The Corporation shall effect each
such redemption by giving notice of its election to
redeem by at least twenty (20) days advance notice,
given by certified or registered mail, to the
holder of shares of Series B Preferred Stock at the
address appearing in the Corporation's register for
the Series B Preferred Stock. The redemption price
per share of Series B Preferred Stock shall be 500
shares of Common Stock, subject to the same
adjustment as provided for in Section 3(a) hereof.
(b) The Common Stock shall be paid to the holder
of shares of Series B Preferred Stock redeemed
within 30 business days of the delivery of the
notice of such redemption to such holders;
provided, however, that the Corporation shall not
be obligated to deliver any portion of such Common
<PAGE>
Stock unless either the certificates evidencing the shares of
Series B Preferred Stock redeemed are delivered to the
Corporation or its transfer agent for the Series B Preferred
Stock, or the holder notifies the Corporation or such transfer
agent that such certificates have been lost, stolen or destroyed
and executes an agreement satisfactory to the Corporation and
such transfer agent to indemnify the Corporation and such
transfer agent from any loss incurred by it in connection with
such certificates.
Section 8. Ranking. The Preferred Stock shall rank
junior to all other series of the Corporation's Preferred Stock
as to the payment of dividends and the distribution of assets,
unless the terms of any such series shall provide otherwise.
IN WITNESS WHEREOF, this Certificate of Designation is
executed on behalf of the Corporation by its Chief Executive
Officer and attested by its Secretary as of the 24th day of
February, 1998.
/s/ Peter J. Ratican
Name: Peter J. Ratican
Title: Chief Executive Officer
Attest:
/s/ Alan D. Bloom
Name: Alan D. Bloom
Title: Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
MAXICARE HEALTH PLANS, INC.
Maxicare Health Plans, Inc. (the "Corporation"), a
corporation organized and existing under and by virtue of the
General Corporation Law of the Sate of Delaware (the "Delaware
Law"), does hereby certify as follows:
FIRST: That the Board of Directors of the Corporation
adopted the following resolutions at a duly noticed meeting of
the Board of Directors at which a quorum was present and voting,
which resolutions set forth proposed amendments to the
Certificate of Incorporation of the Corporation, declaring said
amendments to be advisable and directing that such amendments be
submitted for consideration by the stockholders of the
Corporation in accordance with the requirements of the Delaware
Law. The resolutions setting forth the proposed amendments are
as follows:
RESOLVED, that, the Board of Directors hereby adopts and
recommends to the shareholders of the Corporation for
their approval, as advisable, the following amendments
to the Corporation's Certificate of Incorporation;
RESOLVED FURTHER, that Article FIFTH of the
Corporation's Certificate of Incorporation be amended to
delete the existing Section "A" thereof and to replace
such Section "A" with the following:
"A. Number of Directors. From the effective date of
this amendment until the conclusion of the
Corporation's 1999 Annual Meeting of Stockholders
(the "Amendment Termination Date"), the number of
directors who shall constitute the board of
directors of the Corporation (the "Board") shall be
nine (9); thereafter, the number of directors who
shall constitute the Board shall be fixed in
accordance with the Bylaws of the Corporation.";
RESOLVED FURTHER, that, a new Article THIRTEENTH be
added to the Corporation's Certificate of Incorporation
as follows:
"Article THIRTEENTH: Written Consents and Special
Meetings of Stockholders.
A. Sunset Provision. The provisions of this
Article THIRTEENTH shall terminate and be
of no force and effect after the
Amendment Termination Date.
<PAGE>
B. Written Consents. From the effective
date of this amendment until the
Amendment Termination Date (the "Written
Consent Period"), the stockholders of
this Corporation shall not be able to
take any action by written consent.
During the Written Consent Period,
stockholders may only take action at an
annual or special meeting of
stockholders.
C. Special Meetings of Stockholders. During
the Written Consent Period, stockholders
of this Corporation may not call any
special meetings of stockholders and
special meetings of stockholders may only
be called by the Board as provided for in
the Bylaws of this Corporation."
SECOND: That thereafter, pursuant to resolutions of
its Board of Directors, at the Corporation's duly noticed 1998
Annual Meeting of Stockholders, a majority of the outstanding
stock entitled to vote thereon, consisting of the Corporation's,
$.01 par value per share common stock, voted in favor of the
aforementioned amendments to the Corporation's Certificate of
Incorporation as required by the Delaware Law.
THIRD: That said amendments to the Corporation's
Certificate of Incorporation were duly adopted in accordance with
the provisions of Section 242 of the Delaware Law.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed by Peter J. Ratican, its Chief Executive
Officer, and Alan D. Bloom, its Secretary, this 30th day of July,
1998.
BY: /s/ Peter J. Ratican
Peter J. Ratican
Chief Executive Officer
Attest:
/s/ Alan D. Bloom
Alan D. Bloom
Secretary
<PAGE>
Exhibit 3.4b
BYLAW AMENDMENTS APPROVED AT ANNUAL MEETING OF
SHAREHOLDERS HELD ON JULY 30, 1998
A. Article II, Section 3. SPECIAL MEETINGS, was amended
to add to the end thereof the following:
"Notwithstanding anything to the
contrary contained above from and
after the effective date of this
amendment until the conclusion of the
Corporation's 1999 Annual Meeting of
Stockholders, the stockholders of the
Corporation may not call any special
meeting of stockholders and special
meetings of stockholders may only be
called by the Board of Directors of
the Corporation."
B. A new Section 15 was added to Article II as follows:
"Section 15. 1999 ANNUAL MEETING OF
STOCKHOLDERS. Prior to the
conclusion of the 1999 Annual Meeting
of Stockholders, the Board of
Directors will not adopt any bylaws
or take any other actions that
interfere with the rights of
stockholders to nominate and elect
three directors at such meeting in
accordance with the existing Bylaws,
unless such actions have been
approved by the stockholders."
C. Article III, Section 2. NUMBER OF DIRECTORS was
amended to delete the remainder of the second
sentence after "directors" on the fourth line and
insert in lieu thereof:
"or a majority vote of the
outstanding shares entitled to vote
thereon."
<PAGE>
D. Article IX, Section 1. AMENDMENT BY STOCKHOLDERS was
amended to delete "Sections 3 and 14 of Article II,
Section 2 of Article III and Sections 1 and 2 of
Article IX" commencing on the fifth line thereof and
insert in lieu thereof:
"Section 3 of Article II and Sections
1 and 2 of Article IX"
As Secretary of the Corporation I hereunto fix my signature on
November 12, 1998.
BY:___/s/ Alan D. Bloom______
Alan D. Bloom
Secretary
Exhibit 10.3i
PROMISSORY NOTE
$143,118.00 July 30, 1998
FOR VALUE RECEIVED, PETER J. RATICAN (the "Borrower")
promises to pay to the order of MAXICARE HEALTH PLANS, INC., a
Delaware corporation (the "Lender"), the sum of One Hundred and
Forty Three Thousand One Hundred and Eighteen Dollars and no
Cents ($143,118.00), without interest (the "Principal Balance").
Borrower, hereby authorizes and agrees that the Principal
Balance of this Note shall be payable out of any: (i) payments
(the "Contract Payments") due Borrower pursuant to Sections 4(b),
8(a), 8(c) or 10 of that certain Amended and Restated Employment
and Indemnification Agreement between Lender and Borrower dated
as of April 1, 1996, as amended by Amendment No. 2 dated March
28, 1998 and Amendment No. 3 dated May 8, 1998 thereto
(collectively, the "Agreement") or (ii) any other cash bonuses or
cash awards granted to the Borrower by the Company whether
discretionary or pursuant to any plan after the date hereof
("Company Payments"). Borrower expressly authorizes the Company
to withhold from any and all Contract Payments or Company
Payments due Borrower from and after the date hereof and set-off
such payments against the then outstanding Principal Balance, if
any, until such Principal Balance is paid in full.
Notwithstanding the foregoing, Borrower shall be entitled to
require the Company to deduct from any Contract Payment or
Company Payment, State and Federal withholding taxes at up to,
but not in excess of, the highest applicable tax rates. The
remaining unpaid and outstanding Principal Amount, if any, shall
be fully due and payable on March 31, 2001 (the "Maturity Date").
Any principal balance outstanding after the Maturity Date shall
accrue interest until paid at the highest legal rate.
All payments in respect of this Note shall be made in
lawful money of the United States of America in same day funds to
the office of the Lender located at 1149 South Broadway Street,
Suite 910, Los Angeles, California 90015 or at such other place
as shall be designated in writing by the Lender to the Borrower.
Until notified in writing of the transfer of this Note, the
Borrower shall be entitled to deem the Lender, or such person who
has been so identified by the transferor in writing to the
Borrower as the holder of this Note, as the owner and holder of
this Note. Each of the Lender and any subsequent holder of this
Note agrees that before disposing of this Note or any part hereof
it will make a notation hereon of all payments previously made
hereunder; provided, however, that the failure to make notation
of any payment made on this Note shall not limit or otherwise
affect the obligation of the Borrower hereunder with respect to
payment on this Note.
<PAGE>
This Note shall be governed by the laws of the State of
California with respect to contracts wholly-negotiated and
performed in such State.
The Borrower shall be entitled to prepay all or any portion
of this Note without penalty at any time.
The Borrower promises to pay all costs, expenses, including
reasonable attorneys' fees, incurred in the collection and
enforcement of this Note. The Borrower and endorsers of this
Note hereby consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive
diligence, presentment, protest, demand and notice of every kind.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Note as of the day and year and place first above written.
/s/ Peter J. Ratican
PETER J. RATICAN
Exhibit 4.13a
FIRST AMENDMENT TO RIGHTS AGREEMENT
OF MAXICARE HEALTH PLANS, INC.
This First Amendment to Rights Agreement of Maxicare
Health Plans, Inc. (this "Agreement") is entered into as of
October 9, 1998.
WHEREAS, Maxicare Health Plans, Inc. (the "Company")
entered into a Rights Agreement with American Stock Transfer and
Trust dated February 24, 1998; and
WHEREAS, at a meeting of the Shareholders of the Company
held on July 30, 1998 it was resolved to amend the Rights
Agreement as set forth below.
NOW, THEREFORE, the parties hereby agree to amend the
Rights Agreement as follows:
1. Section 1(h) of the Rights Agreement is hereby
amended to read as follows:
"(h) "Continuing Directors" shall have the same
meaning as "Disinterested Directors" as
defined in Section 1(i) hereof."
2. Section 1(i) of the Rights Agreement is hereby
amended to read as follows:
"(i)" "Disinterested Directors" shall mean the
members of the Board of Directors who are
not (i) officers or employees of the
corporation, (ii) Acquiring Persons or their
Affiliates or Associates or representatives
of any of them, or (iii) any Person who was
directly or indirectly proposed or nominated
as a director of the Corporation by an
Acquiring Person or a Transaction Person."
3. Amendments. Except as amended herein, the Rights
Agreement shall remain in full force and effect.
<PAGE>
IN WITNESS WHEREOF, the undersigned parties have
executed this First Amendment of the Rights Agreement as of the
9th day of October, 1998.
MAXICARE HEALTH PLANS, INC.
a Delaware corporation
/s/ Peter J. Ratican
By: Peter J. Ratican, President
AMERICAN STOCK TRANSFER &
TRUST COMPANY
/s/ Herbert J. Lemmer
By: Herbert J. Lemmer
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> This schedule contains summary financial
information extracted from the September
30, 1998 financial statements and is
qualified in its entirety by reference to
such financial statements.
<MULTIPLIER> 1,000
<S> <C>
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<PERIOD-TYPE> 9-MOS
<CASH> 38,676
<SECURITIES> 21,459
<RECEIVABLES> 46,290
<ALLOWANCES> 6,477
<INVENTORY> 0
<CURRENT-ASSETS> 126,252
<PP&E> 23,143
<DEPRECIATION> 21,804
<TOTAL-ASSETS> 141,993
<CURRENT-LIABILITIES> 82,812
<BONDS> 0
0
0
<COMMON> 179
<OTHER-SE> 58,755
<TOTAL-LIABILITY-AND-EQUITY> 141,993
<SALES> 553,462
<TOTAL-REVENUES> 557,715
<CGS> 522,427
<TOTAL-COSTS> 579,495
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 64
<INCOME-PRETAX> (21,844)
<INCOME-TAX> 0
<INCOME-CONTINUING> (21,844)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (21,844)
<EPS-PRIMARY> (1.22)
<EPS-DILUTED> (1.22)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> This schedule contains summary financial
information extracted from the restated
September 30, 1997 financial statements and
is qualified in its entirety by reference
to such restated financial statements. EPS
has been restated as required by SFAS 128.
<MULTIPLIER> 1,000
<S> <C>
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<PERIOD-TYPE> 9-MOS
<CASH> 40,434
<SECURITIES> 58,633
<RECEIVABLES> 32,350
<ALLOWANCES> 5,788
<INVENTORY> 0
<CURRENT-ASSETS> 149,139
<PP&E> 23,482
<DEPRECIATION> 22,228
<TOTAL-ASSETS> 165,451
<CURRENT-LIABILITIES> 73,090
<BONDS> 0
0
0
<COMMON> 180
<OTHER-SE> 91,904
<TOTAL-LIABILITY-AND-EQUITY> 165,451
<PAGE>
<SALES> 489,282
<TOTAL-REVENUES> 495,030
<CGS> 460,750
<TOTAL-COSTS> 508,650
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 48
<INCOME-PRETAX> (13,668)
<INCOME-TAX> 0
<INCOME-CONTINUING> (13,668)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (13,668)
<EPS-PRIMARY> (.76)
<EPS-DILUTED> (.76)
</TABLE>
