<PAGE> 1
Exhibit 3(a) - 1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
OXFORD HEALTH PLANS, INC.
(a Delaware corporation)
OXFORD HEALTH PLANS, INC., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Oxford Health Plans, Inc. The date of
filing of its original Certificate of Incorporation with the Secretary of State
was September 17, 1984, and the name under which it was originally incorporated
was Integrated Health Plans, Inc.
2. This Restated Certificate of Incorporation amends, restates and
integrates the provisions of the Certificate of Incorporation (as previously
amended and restated) and has been duly adopted in accordance with Sections 242
and 245 of the General Corporation Law of the State of Delaware, the written
consent of the stockholders of the Corporation was given in accordance with
Section 228 of the General Corporation Law of the State of Delaware, and written
notice to the stockholders who did not consent in writing was provided as
required by Section 228 of the General Corporation Law of the State of Delaware.
3. The text of the present Amended and Restated Certificate of
Incorporation of the Company is hereby amended and restated in its entirety to
read in full as set forth on the attached Exhibit A.
IN WITNESS WHEREOF, OXFORD HEALTH PLANS, INC. has caused this Second
Amended and Restated Certificate of Incorporation to be signed by Stephen F.
Wiggins, its President, and attested by Donald V. Barrett, its Secretary, this
13th day of August, 1991.
OXFORD HEALTH PLANS, INC.
By: /s/ S.F. WIGGINS
--------------------------
Stephen F. Wiggins
President
ATTESTED:
By: /s/ D.V. BARRETT
--------------------
Donald V. Barrett
Secretary
<PAGE> 2
Exhibit 3(a) - 1
Exhibit A
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
OXFORD HEALTH PLANS, INC.
(a Delaware Corporation)
ARTICLE FIRST
Name
The name of the corporation is OXFORD HEALTH PLANS, INC. (the
"Corporation").
ARTICLE SECOND
Purpose
The purposes for which the Corporation is formed are as follows:
1. To establish a plan or plans under which the Corporation, directly or
through one or more subsidiaries or affiliates, may provide health services
and/or any form of health insurance to subscribers both individually and in
groups; to engage in all of the activities of a health services or health
maintenance or health insurance organization, however designated, as permitted
by applicable law. Health services may include diagnostic services, preventive
medicine and medical treatment in clinics, hospitals, treatment centers, or
other medical facilities or institutions by licensed physicians, nurses and
other health services personnel and the furnishing of drugs and other medical
products and equipment;
2. To establish, operate, and maintain medical service centers, clinics
and other medical facilities;
3. To contract for medical and related services with physicians, hospital
service corporations, medical service corporations and other corporations,
plans, persons and entities;
4. To own or contract with mutual and stock insurance companies,
underwriters and other corporations and persons for and in connection with
health insurance;
5. To contract with agencies of federal, state and local governments;
6. To acquire by purchase, lease or otherwise, and to construct, own,
hold, use maintain, improve, and operate, and to sell, lease, and otherwise
dispose of real and
<PAGE> 3
Exhibit 3(a) - 1
personal property;
7. To form, participate in or acquire other health service or health
maintenance organizations or health insurance companies or other business
entities;
8. In general to perform and do, whether directly or indirectly and
whether alone or in conjunction or cooperation with other persons and
organizations of every kind and nature, all other acts and things incidental to
or in furtherance of the accomplishment of the purposes of the Corporation, and
to sue and exercise all applicable powers conferred from time to time by
applicable law; and
9. To engage in any lawful act or activity for which a corporation may be
organized under the General Corporation Law of Delaware (the "Delaware
Statute").
ARTICLE THIRD
Registered Office
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE FOURTH
Capital Stock
The total authorized capital stock of the Corporation consists of
15,000,000 shares, of which 2,000,000 are shares of Preferred Stock, $.01 par
value ("Preferred Stock"), and 13,000,000 are shares of Common Stock, $.01 par
value, ("Common Stock"). The designations and the powers, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the Preferred Stock and
the Common Stock shall be as follows:
1. The Preferred Stock may be issued, from time to time, in one or more
series, with such designations, voting powers, if any, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as shall be stated and expressed in the resolution or
resolutions providing for the issue of such series adopted by the Board of
Directors. The Board of Directors, in such resolution or resolutions (a copy of
which shall be filed and recorded as required by law), is also expressly
authorized to fix:
(i) the distinctive serial designations and the division of such shares
into series and the number of shares of a particular series, which may be
increased or decreased, but not
<PAGE> 4
Exhibit 3(a) - 1
below the number of shares thereof then outstanding, by a certificate made,
signed, filed and recorded as required by law;
(ii) the annual dividend rate (or method of determining such rate) for
the particular series, the date or dates upon which such dividends shall be
payable, and the date or dates or method of determining the date or dates from
which dividends on all shares of such series shall be cumulative, if dividends
on stock of the particular series shall be cumulative;
(iii) the price or prices at which, the period or periods within which
and the terms and conditions upon which the shares of such series may be
redeemed, in whole or in part, at the option of the Corporation;
(iv) the right, if any, of the holders of a particular series or the
Corporation to convert such stock into other classes or series of stock or to
exchange such stock for shares of any other class of stock or series thereof,
and the terms and conditions, if any, including the price or prices or the rate
or rates of conversion and the terms and conditions of any adjustments thereof,
of such conversion;
(v) the obligation, if any, of the Corporation to purchase and retire
and redeem, in whole or in part, shares of a particular series as a sinking fund
or redemption or purchase account, the terms thereof and the redemption price or
prices per share for such series redeemed pursuant to the sinking fund or
redemption account;
(vi) the voting rights, if any, of the shares of such series in
addition to those required by law, including the number of votes per share and
any requirement for the approval by the holders of up to 66 2/3% of all
Preferred Stock, or of the shares of one or more series, or of both, as a
condition to specified corporate action or amendments to the certificate of
incorporation;
(vii) the ranking of the shares of the series as compared with shares
of other series of the Preferred Stock in respect of the right to receive
payments out of the assets of the Corporation upon voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; and
(viii) any other rights, obligations, or provisions which may be so
determined to the fullest extent permitted by Delaware law.
All shares of any one series of Preferred Stock shall be alike in every
particular and all series shall rank equally and be identical in all respects
except in so far as they may vary with respect to the matters which the Board of
Directors is hereby expressly authorized to determine in the resolution or
resolutions providing for the issue of any series of the Preferred Stock.
<PAGE> 5
Exhibit 3(a) - 1
2. All shares of Preferred Stock shall rank senior to the Common Stock in
respect of the right to receive dividends and the right to receive payments out
of the assets of the Corporation upon voluntary or involuntary liquidation,
dissolution or winding up of the Corporation. The shares of any one series of
Preferred Stock shall be identical with each other in all respects except as to
the dates from and after which dividends thereon shall be cumulative. All shares
of Preferred Stock redeemed, purchased or otherwise acquired by the Corporation
(including shares surrendered for conversion) shall be canceled and thereupon
restored to the status of authorized but unissued Preferred Stock undesignated
as to series.
3. Holders of shares of Common Stock shall be entitled to one vote for
each share of such stock upon all questions presented to shareholders of the
Corporation. The rights of holders of Common Stock shall be subject to the
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, of the Preferred Stock.
ARTICLE FIFTH
Management of the Affairs of the Corporation
Except as otherwise provided by this Certificate of Incorporation or as
may otherwise be provided in the By-Laws of the Corporation, the Board of
Directors of the Corporation is expressly authorized to adopt, amend or repeal
By-Laws of the Corporation.
ARTICLE SIXTH
Election of Directors
Election of Directors of the Corporation need not be by written ballot
except and to the extent provided in the By-Laws of the Corporation.
ARTICLE SEVENTH
Meetings of the Board
The Board of Directors shall have the power to hold its meetings within or
outside the State of Delaware, at such place as from time to time may be
designated by the By-Laws or by resolution of the Board.
ARTICLE EIGHTH
Indemnification
The Corporation shall indemnify its officers and directors to the fullest
extent permitted by law.
<PAGE> 6
Exhibit 3(a) - 1
ARTICLE NINTH
Director's Liability
To the fullest extent permitted by the Delaware General Corporation Law as
the same exists or may hereafter be amended, a Director of this Corporation
shall not be liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director.
ARTICLE TENTH
Stockholder Action
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such holders.
ARTICLE ELEVENTH
Vote Required for Certain Business Transactions
1. In addition to the requirements of the provisions of any series of Preferred
Stock which may be outstanding, and whether or not a vote of the stockholders is
otherwise required, the affirmative vote of the holders of not less than eighty
percent (80%) of the voting power of the Voting Stock shall be required for the
approval or authorization of any Business Transaction with a Related Person, or
any Business Transaction in which a Related Person has an interest (other than
only a proportionate interest as a stockholder of the Corporation); provided,
however, that the eighty percent (80%) voting requirement shall not be
applicable if (i) the Business Transaction is duly approved by the continuing
Directors, or (ii) all of the following conditions are satisfied:
(a) the Business Transaction is a merger or consolidation or sale of
substantially all of the assets of the Corporation, and the
aggregate amount of cash and the fair market value of the
property, securities or other consideration to be received per
share (on the date of effectiveness of such merger or
consolidation or on the date of distribution to stockholders of
the Corporation of the proceeds from such sale of assets) by
holders of Common Stock of the Corporation (other than such
Related Person) in connection with such Business Transaction is
at least equal in value to such Related Person's Highest Common
Stock Purchase Price;
(b) after such Related Person has become the Beneficial Owner of not
less than twenty percent (20%) of the voting power of the Voting
Stock
<PAGE> 7
Exhibit 3(a) - 1
and prior to the consummation of such Business Transaction, such
Related Person shall not have become the Beneficial Owner of any
additional shares of Voting Stock or securities convertible into
Voting Stock, except (x) as a part of the transaction which
resulted in such Related Person becoming the Beneficial Owner of
not less than ten percent (10%) of the voting power of the Voting
Stock or (y) as a result of a pro rata stock dividend or stock
split; and
(c) prior to the consummation of such Business Transaction, such
Related Person shall not have, directly or indirectly, (x)
received the benefit (other than only a proportionate benefit as
a stockholder of the Corporation) of any loans, advances,
guarantees, pledges or other financial assistance or tax credits
provided by the Corporation or any of its subsidiaries, (y)
caused any material change in the Corporation's business or
equity capital structure, including, without limitation, the
issuance of shares of capital stock of the Corporation or (z)
except as duly approved by the Continuing Directors, caused the
Corporation to fail to declare and pay quarterly cash dividends
on the outstanding Common Stock on a per share basis at least
equal to the cash dividends being paid thereon by the Corporation
immediately prior to the date on which the Related Person became
a Related Person.
(2) For the purpose of this Article ELEVENTH:
(i) The term "Business Transaction" shall mean (a) any merger or
consolidation involving the Corporation or a subsidiary of the
Corporation, (b) any sale, lease, exchange, transfer or other
disposition (in one transaction or a series of related
transactions), including, with limitation, a mortgage or any
other security device, of all or any Substantial Part of the
assets either of the Corporation or of a subsidiary of the
Corporation, (c) any sale, lease, exchange, transfer or other
disposition (in one transaction or a series of related
transaction) of all or any Substantial Part of the assets of an
entity to the Corporation or a subsidiary of the Corporation, (d)
the issuance, sale, exchange, transfer or other disposition (in
one transaction or in a series of related transactions) by the
Corporation or a subsidiary of the Corporation of any securities
of the Corporation or any subsidiary of the Corporation having an
aggregate fair market value of $20,000,000 or more, (e) any
recapitalization or reclassification of the securities of the
Corporation (including, without limitation, any reverse stock
split) or other transaction that would have the effect of
increasing the voting power of a Related Person or reducing the
number of shares of each class of Voting Stock outstanding, (f)
any liquidation, spinoff, splitoff, splitup or dissolution of the
Corporation, and (g) any agreement, contract or other arrangement
providing for any of the transactions described in this
definition of Business Transaction.
<PAGE> 8
Exhibit 3(a) - 1
(ii) The term "Related Person" shall mean and include (a) any
individual, corporation, partnership, group, association or other
person or entity which, together with its Affiliates and
Associates, is the Beneficial Owner of not less than ten percent
(10%) of the voting power of the Voting Stock or was the
Beneficial Owner of not less than ten percent (10% ) of the
voting power of the Voting Stock (x) at the time the definitive
agreement providing for the Business Transaction (including any
amendment thereof) was entered into, (y) at the time a resolution
approving the Business Transaction was adopted by the Board of
Directors of the Corporation or (z) as of the record date for the
vote on, or consent to, the Business Transaction, and (b) any
Affiliate or Associate of any such individual, corporation,
partnership, group, association or other person or entity;
provided, however, and notwithstanding anything in the foregoing
to the contrary, the term "Related Person" shall not include the
Corporation, a wholly-owned subsidiary of the Corporation, or any
trustee of, or fiduciary with respect to, any such plan when
acting in such capacity.
(iii) The term "Beneficial Owner" shall be defined by reference to Rule
13d-3 under the Securities Exchange Act of 1934, as in effect on
August 13, 1991; provided, however, that any individual,
corporation, partnership, group, association or other person or
entity which has the right to acquire any Voting Stock at any
time in the future, whether such right is contingent or absolute,
pursuant to any agreement, arrangement or understanding or upon
exercise of conversion rights, warrants or options, or otherwise,
shall be deemed the Beneficial Owner of such Voting Stock.
(iv) The term "Highest Common Stock Purchase Price" shall mean the
highest amount of consideration paid by such Related Person for a
share of Common Stock of the Corporation (including any brokerage
commission, transfer taxes and soliciting dealers' fees) in the
transaction which resulted in such Related Person becoming a
Related Person, at any time while such Related Person was a
Related Person or within one year prior to the date such Related
Person became a Related Person, whichever is higher; provided,
however, that the Highest Common Stock Purchase Price shall be
appropriately adjusted to reflect the occurrence of any
reclassification, recapitalization, stock split, reverse stock
split or other similar corporate readjustment in the number of
outstanding shares of Common Stock of the Corporation between the
last date upon which such Related Person paid the Highest Common
Stock Purchase Price to the effective date of the merger or
consolidation or the date of distribution to stockholders of the
Corporation of the proceeds from the sale of substantially all of
the assets of the Corporation referred to in subparagraph (a) of
Section 1 of this Article ELEVENTH.
(v) The term "Substantial Part" shall mean more than twenty percent
(20%) of the fair market value of the total assets of the entity
in question, as reflected on the most recent consolidation
balance sheet of such entity existing at the time the
<PAGE> 9
Exhibit 3(a) - 1
shareholders of the Corporation would be required to approve or
authorize the Business Transaction involving the assets
constituting any such Substantial Part.
(vi) In the event of a merger in which the Corporation is the
surviving corporation, for the purpose of subparagraph (a) of
Section 1 of this Article ELEVENTH, the phrase "property,
securities or other consideration to be received" shall include,
without limitation, Common Stock of the Corporation retained by
its stockholders (other than such Related Person).
(vii) The term "Voting Stock" shall mean all outstanding shares of
capital stock of the Corporation entitled to vote generally in
the election of Directors, considered for the purpose of this
Article ELEVENTH as one class.
(viii) The term "Preferred Stock" shall mean each class of series of
capital stock which may from time to time be authorized in or by
Article FOURTH of this Certificate of Incorporation which is not
designated as "Common Stock".
(ix) The term "Continuing Director" shall mean a Director who either
was a member of the Board of Directors of the Corporation on
August 13, 1991, or who became a Director of the Corporation
subsequent to such date and whose election, or nomination for
election by the Corporation's stockholders, was Duly Approved by
the Continuing Directors then on the Board, either by a specific
vote or by approval of the proxy statement issued by the
Corporation on behalf of the Board of Directors in which such
person is named as nominee for Director, without due objection to
such nomination; provided, however, that in no event, shall a
Director be considered a "Continuing Director" if such Director
is a Related Person and the Business Transaction to be voted upon
is with such Related Person or is one in which such Related
Person has an interest (other than only a proportionate interest
as a stockholder of the Corporation).
(x) The term "Duly Approved by the Continuing Directors" shall mean
an action approved by the vote of at least a majority of the
Continuing Directors then on the Board, except, if the votes of
such Continuing Directors in favor of such action would be
insufficient to constitute an act of the Board of Directors if a
vote by all of its members were to have been taken, then such
term shall mean an action approved by the unanimous vote of the
Continuing Directors so long as there are at least three
Continuing Directors on the Board at the time of such unanimous
vote.
(xi) The term "Affiliate", used to indicate a relationship to a
specified person, shall mean a person that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such specified
person.
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Exhibit 3(a) - 1
(xii) The term "Associate", used to indicate a relationship with a
specified person, shall mean (a) any corporation, partnership or
other organization of which such specified person is an officer
or partner (b) any trust or other estate in which such specified
person has a substantial beneficial interest or as to which such
specified person serves as trustee or in a similar fiduciary
capacity, (c) any relative or spouse of such specified person, or
any relative of such spouse, who has the same home as such
specified person or who is a Director or officer of the
Corporation or any of its parents or subsidiaries and (d) any
person who is a Director, officer or partner of such specified
person or of any corporation (other than the Corporation or any
wholly-owned subsidiary of the Corporation), partnership or other
entity which is an Affiliate of such specified person.
3. For the purpose of this Article ELEVENTH, so long as Continuing
Directors constitute at least a majority of the entire Board of
Directors, the Board of Directors shall have the power to make a good
faith determination, on the basis of information know to them, of: (i)
the number of shares of Voting Stock of which any person is the
Beneficial Owner, (ii) whether a person is a Related Person or is an
Affiliate or Associate of another, (iii) whether a person has an
agreement, arrangement or understanding with another as to the matters
referred to in the definition of Beneficial Owner herein, (iv) whether
the assets subject to any Business Transaction constitute a Substantial
Part, (v) whether any Business Transaction is with a Related Person or
is one in which a Related Person has an interest (other than only a
proportionate interest as a stockholder of the Corporation), (vi)
whether a Related Person has, directly or indirectly, received the
benefits or caused any of the changes referred to in subparagraph (c)
of Section 1 of this Article ELEVENTH, and (vii) such other matters
with respect to which a determination is required under this Article
ELEVENTH; and such determination by the Board of Directors shall be
conclusive and binding for all purposes of this Article ELEVENTH.
4. Nothing contained in this Article ELEVENTH shall be construed to
relieve any Related Person of any fiduciary obligation imposed by law.
5. The fact that any Business Transaction complies with the provisions of
Section 1 of this Article ELEVENTH shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of Directors,
or any member thereof, to approve such Business Transaction or
recommend its adoption or approval to the stockholders of the
Corporation.
ARTICLE TWELFTH
Board of Directors; Numbers; Qualifications; Classification
<PAGE> 11
Exhibit 3(a) - 1
1. (i) The number of Directors shall be fixed from time to time by or
pursuant to the By-Laws of the Corporation. Directors need not
be stockholders.
(ii) Unless waived by the Board of Directors, no person not already
a director shall be eligible to be elected to or serve as a
director unless such person's candidacy shall have been
notified to the Board of Directors at least seventy-five (75)
days before initiation of solicitation to the stockholders for
election in the event of an election other than at an annual
meeting and seventy-five (75) days before the corresponding
date that had been the record date of the previous year's
annual meeting in the event of an election at an annual
meeting. Any such notification pursuant to this subparagraph
(ii) shall be effective and such person shall be eligible to
be elected or to serve only if the notification contains all
information concerning such person which would be required to
be included in a proxy statement pursuant to the rules and
regulations under the Securities Exchange Act of 1934 or any
successor provisions.
(iii) The Directors shall be divided into three classes, designated
Class I, Class II and Class III. Each class shall consist, as
nearly as may be possible, of one-third of the total number of
Directors constituting the entire Board of Directors. The term
of the initial Class I Directors shall terminate on the date
of the 1992 annual meeting of stockholders; the term of the
initial Class II Directors shall terminate on the date of the
1993 annual meeting of stockholders, and the term of the
initial Class III Directors shall terminate on the date of the
1994 annual meeting of stockholders. At each annual meeting of
stockholders beginning in 1992, successors to the class of
Directors whose term expires at that annual meeting, other
than those Directors elected under particular circumstances by
a separate class vote of the holders of any class or series of
Preferred Stock, shall be elected for a three-year term. If
the number of Directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the
number of Directors in each class as nearly equal as possible,
and any additional Directors of any class elected to fill a
vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term
of that class, but in no case will a decrease in the number of
Directors shorten the term of any incumbent Director.
2. Each Director shall hold office until his or her successor is elected
and qualified or until his or her earlier resignation or removal. Any
Director may resign at any time upon written notice to the Board of
Directors or to the President or the Secretary of the Corporation. Such
written notice shall be necessary to make a Director's resignation
effective. Except as may be provided in the terms of any class or
series of Preferred Stock relating to the rights of the holders of such
class or series to elect, by separate class vote, additional Directors,
any Director or the entire Board of Directors may be removed only for
cause, and only by the holders of 80% of the shares then
<PAGE> 12
Exhibit 3(a) - 1
entitled to vote at an election of Directors. Unless otherwise provided
in this Certificate of Incorporation or in the By-Laws, vacancies and
newly created directorships resulting from any increase in the
authorized number of Directors or from any other cause may be filled by
a majority of the Directors, although less than a quorum, then
remaining in office and elected by the holders of the capital stock of
the Corporation entitled to vote generally in the election of Directors
or, in the event that there is only one such Director, by such sole
remaining Director, and the Directors so chosen shall hold office for a
term that shall coincide with the term of the class to which such
Director shall have been elected.
3. In the event that the holders of any class or series of Preferred Stock
are entitled, by a separate class vote, to elect Directors pursuant to
the terms of such class or series, then the provisions of such class or
series with respect to such rights of election shall apply to the
election of such Directors. The number of Directors that may be elected
by the holders of any such class or series of stock shall be in
addition to the number fixed by or pursuant to the By-Laws. Except as
otherwise expressly provided in the terms of such class or series, the
number of directors that may be so elected by the holders of any such
class or series of stock shall be elected for terms expiring at the
next Annual Meeting of the Stockholders and without regard to the
classification of the remaining members of the Board of Directors, and
vacancies among Directors so elected by the separate class vote of any
such class or series of Preferred Stock shall be filled by the
affirmative vote of a majority of the remaining Directors elected by
such class or series, or, if there are no such remaining Directors, by
the holders of such class or series in the same manner in which such
class or series initially elected a Director.
If at any meeting for the election of Directors, more than one
class of stock, voting separately as classes, shall be a quorum of only
one such class of stock, that class of stock shall be entitled to elect
its quota of Directors notwithstanding absence of a quorum of the other
class or classes of stock.
ARTICLE THIRTEENTH
Amendment of By-Laws
Subject to any limitations imposed by this Certificate of Incorporation,
the Board of Directors shall have power to adopt, amend, or repeal the By-Laws
of the Corporation, Any By-Laws made by the Directors under the powers conferred
hereby may be amended or repealed by the Directors or by the stockholders.
Notwithstanding the foregoing and any other provisions of this Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding that a
lesser percentage may be specified by law), no provisions of the By-Laws shall
be adopted, amended, or repealed by the stockholders without an affirmative vote
of the holders of not less than eighty percent (80%) of the voting power of all
of the outstanding shares of capital stock of the Corporation entitled
<PAGE> 13
to vote generally in the election of Directors, considered for the purposes of
this Article as a single class.
Exhibit 3(a) - 1
ARTICLE FOURTEENTH
Higher Vote Requirement for Amendment
Notwithstanding any other provisions of this Certificate of Incorporation
or the By-Laws of the Corporation (and notwithstanding that a lesser percentage
may be specified by law), the provisions of Articles TENTH, ELEVENTH, TWELFTH,
THIRTEENTH OR FOURTEENTH hereof may not be amended or repealed unless such
action is approved by the affirmative vote of the holders of not less than
eighty percent (80%) of the voting power of all of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
Directors, considered for the purpose of this Article as a single class.
<PAGE> 14
Exhibit 3(a) - 2
CERTIFICATE OF AMENDMENT TO THE
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
OXFORD HEALTH PLANS, INC.
Oxford Health Plans, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies that at a
meeting of the stockholders of the Corporation held on September 17, 1993, it
was resolved by the duly adopted vote of the stockholders in accordance with
Section 242 of the General Corporation Law of the State of Delaware that the
first sentence of the first paragraph of Article Fourth of the Corporation's
Second Amended and Restated Certificate of Incorporation be amended to read as
follows:
ARTICLE FOURTH
CAPITAL STOCK
The total authorized capital stock of the Corporation consists of 27,000,000
shares of which 2,000,000 are shares of Preferred Stock, $.01 par value
("Preferred Stock"), and 25,000,000 are shares of Common Stock, $.01 par value,
("Common Stock").
IN WITNESS WHEREOF, the Corporation has caused this amendment to be signed
by Stephen F. Wiggins, its Chairman of the Board of Directors, and attested by
Donald V. Barrett, its Secretary, this 17th day of September, 1993.
OXFORD HEALTH PLANS, INC.
By: /s/ S.F. WIGGINS
---------------------------------
Stephen F. Wiggins
Chairman of the Board
of Directors
ATTEST:
By: /s/ D.V. BARRETT
-----------------------
Donald V. Barrett
Secretary
<PAGE> 15
Exhibit 3(a)-3
CERTIFICATE OF AMENDMENT TO THE
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION, AS AMENDED,
OF
OXFORD HEALTH PLANS, INC.
Oxford Health Plans, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies that at a
meeting of the stockholders of the Corporation held on March 3, 1995, it was
resolved by the duly adopted vote of the stockholders in accordance with Section
242 of the General Corporation Law of the State of Delaware that the first
sentence of the first paragraph of Article Fourth of the Corporation's Second
Amended and Restated Certificate of Incorporation, as amended, be amended to
read as follows:
ARTICLE FOURTH
CAPITAL STOCK
The total authorized capital stock of the Corporation consists of 202,000,000
shares, of which 2,000,000 are shares of Preferred Stock, $.01 par value
("Preferred Stock"), and 200,000,000 are shares of Common Stock, $.01 par value,
("Common Stock").
IN WITNESS WHEREOF, the Corporation has caused this amendment to be signed
by Stephen F. Wiggins, its Chief Executive Officer, this 6th day of March, 1995.
OXFORD HEALTH PLANS, INC.
By: /s/ S.F. WIGGINS
---------------------------------
Stephen F. Wiggins
Chief Executive Officer
<PAGE> 16
Exhibit 3(a)-4
CERTIFICATE OF AMENDMENT TO THE
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION, AS AMENDED,
OF
OXFORD HEALTH PLANS, INC.
Oxford Health Plans, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies that at a
meeting of the stockholders of the Corporation held on April 22, 1997, it was
resolved by the duly adopted vote of the stockholders in accordance with Section
242 of the General Corporation Law of the State of Delaware that the first
sentence of the first paragraph of Article Fourth of the Corporation's Second
Amended and Restated Certificate of Incorporation, as amended, be amended to
read as follows:
ARTICLE FOURTH
CAPITAL STOCK
The total authorized capital stock of the Corporation consists of 402,000,000
shares, of which 2,000,000 are shares of Preferred Stock, $.01 par value
("Preferred Stock"), and 400,000,000 are shares of Common Stock, $.01 par value,
("Common Stock").
IN WITNESS WHEREOF, the Corporation has caused this amendment to be signed
by Stephen F. Wiggins, its Chief Executive Officer, this 1st day of May, 1997.
OXFORD HEALTH PLANS, INC.
By: /s/ S.F. WIGGINS
--------------------
Stephen F. Wiggins
Chief Executive Officer
<PAGE> 17
Exhibit 3(a)-5
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION, AS AMENDED,
OF
OXFORD HEALTH PLANS, INC.
OXFORD HEALTH PLANS, INC., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The Board of Directors of the Corporation, at a meeting of the Board of
Directors held on March 15, 2000, adopted a resolution (a) setting forth the
amendments set forth below (the "Amendments") to the Corporation's Amended and
Restated Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), including the Certificate of Designations of Series D
Cumulative Preferred Stock, par value $.01 per share, of the Corporation (the
"Series D COD") and the Certificate of Designations of Series E Cumulative
Preferred Stock, par value $.01 per share, of the Corporation (the "Series E
COD"), (b) declaring the advisability of the Amendments and (c) directing that
the Amendments be considered at the next annual meeting of the stockholders of
the Corporation.
2. The stockholders, at the next annual meeting of the stockholders of the
Corporation held on May 11, 2000, adopted a resolution approving the Amendments.
3. The Amendments have been duly adopted in accordance with Section 242 of
the General Corporation Law of the State of Delaware.
4. Article Fourth of the Certificate of Incorporation is amended to
read in its entirety as follows:
"ARTICLE FOURTH
Capital Stock
The total authorized capital stock of the Corporation consists of
402,000,000 shares, of which 2,000,000 are shares of Preferred Stock, par
value $.01 per share ("Preferred Stock"), and 400,000,000 are shares of
Common Stock, par value $.01 per share ("Common Stock"). The designations
and the powers, preferences and relative, participating, option or other
special rights, and the qualifications, limitations or restrictions
thereof, of the Preferred Stock and the Common Stock shall be as follows:
1. The Preferred Stock may be issued, from time to time, in one or
more series, with such designations, voting powers, if any, preferences
and relative, participating, option or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated
and
<PAGE> 18
Exhibit 3(a)-5
expressed in the resolution or resolutions providing for the issue of such
series adopted by the Board of Directors. The Board of Directors, in such
resolution or resolutions (a copy of which shall be filed and recorded as
required by law), is also expressly authorized to fix:
(i) the distinctive serial designations and the division of such
shares into series and the number of shares of a particular series, which
may be increased or decreased, but not below the number of shares thereof
then outstanding, by a certificate made, signed, filed and recorded as
required by law;
(ii) the annual dividend rate (or method of determining such rate)
for the particular series, the date or dates upon which such dividends
shall be payable, and the date or dates or method of determining the date
or dates from and after which dividends on all shares of such series shall
be cumulative, if dividends on stock of the particular series shall be
cumulative;
(iii) the price or prices at which, the period or periods within
which and the terms and conditions upon which the shares of such series
may be redeemed, in whole or in part, at the option of the Corporation;
(iv) the right, if any, of the holders of a particular series or the
Corporation to convert such stock into other classes or series of stock or
to exchange such stock for shares of any other class of stock or series
thereof, and the terms and conditions, if any, including the price or
prices or the rate or rates of conversion and the terms and conditions of
any adjustments thereof, of such conversion;
(v) the obligation, if any, of the Corporation to purchase and
retire and redeem, in whole or in part, shares of a particular series as a
sinking fund or redemption or purchase account, the terms thereof and the
redemption price or prices per share for such series redeemed pursuant to
the sinking fund or redemption account;
(vi) the voting rights, if any, of shares of such series in addition
to those required by law, including the number of votes per share and any
requirement for the approval by the holders of up to 66 2/3% of all
Preferred Stock, or of the shares of one or more series, or of both, as a
condition to specified corporate action or amendments to this Certificate
of Incorporation;
(vii) the ranking of the shares of the series as compared with
shares of other series of the Preferred Stock in respect of the right to
receive payments out of the assets of the Corporation upon voluntary or
involuntary liquidation, dissolution or winding up of the Corporation; and
2
<PAGE> 19
Exhibit 3(a)-5
(viii) any other rights, obligations, or provisions which may be so
determined to the fullest extent permitted by Delaware law.
All shares of any one series of Preferred Stock shall be alike in
every particular and all series shall rank equally and be identical in all
respects except insofar as they may vary with respect to the matters which
the Board of Directors is hereby expressly authorized to determine in the
resolution or resolutions providing for the issue of any series of the
Preferred Stock.
2. All shares of Preferred Stock shall rank senior to the Common
Stock in respect of the right to receive dividends and the right to
receive payments out of the assets of the Corporation upon voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and
the shares of any one series of Preferred Stock shall be identical with
each other in all such respects except as to the dates (if any) from and
after which dividends thereon shall be cumulative. All shares of Preferred
Stock redeemed, purchased or otherwise acquired by the Corporation
(including shares surrendered for conversion) shall be canceled and
thereupon restored to the status of authorized but unissued Preferred
Stock undesignated as to series.
3. Holders of shares of Common Stock shall be entitled to one vote
for each share of such stock upon all questions presented to stockholders
of the Corporation. The rights of holders of Common Stock shall be subject
to the powers, preferences and rights, and the qualifications, limitations
or restrictions thereof, of the Preferred Stock.
4. The voting rights of holders of Common Stock and holders of
Preferred Stock shall be subject to the voting rights set forth in Article
FIFTEENTH hereof of holders of the Corporation's Series D Junior
Subordinated Debentures due May 13, 2008 and holders of the Corporation's
Series E Junior Subordinated Debentures due May 13, 2008, if any;
provided, however, that nothing in Article FIFTEENTH hereof divests or
shall be deemed to divest the holders of capital stock of the Corporation
of any right to vote which they have or may have by reason of the General
Corporation Law of the State of Delaware or this Certificate of
Incorporation."
3
<PAGE> 20
Exhibit 3(a)-5
5. The Certificate of Incorporation is amended to include therein a new
Article Fifteenth which shall read in its entirety as follows:
"ARTICLE FIFTEENTH
Voting Debentures
The holders of the Corporation's Series D Junior Subordinated
Debentures due May 13, 2008 (the "Series D Debentures") and the holders of
the Corporation's Series E Junior Subordinated Debentures due May 13, 2008
(the "Series E Debentures") shall have no voting rights, except as
expressly set forth below.
1. Voting Rights of Series D Debentures. (a) The Investor and its
Affiliates, in their capacity as Holders (as hereinafter defined) of
Series D Debentures, shall be entitled to vote on all matters voted on by
holders of Common Stock, and shall vote together with shares of Common
Stock (and any Series E Securities (as hereinafter defined) entitled to
vote) as a single class; provided, however, that (i) such voting rights
shall apply only to such Series D Debentures issued to the Investor or any
Affiliate of the Investor in exchange for shares of Series D Preferred
that had similar voting rights and (ii) upon transfer of a Series D
Debenture or any portion thereof to any Person other than the Investor or
an Affiliate of the Investor, such Person, and any subsequent transferee,
shall not be entitled to such voting rights with respect to such Series D
Debenture or the transferred portion thereof, regardless of whether any
such Series D Debentures are subsequently acquired by the Investor or its
Affiliates. The term "Series E Securities" means the Series E Debentures
or, if the Series E Preferred has not been exchanged for Series E
Debentures, the Series E Preferred or, if the Series E Preferred has been
exchanged for consideration that includes shares of another series of
Preferred Stock and the Certificate of Designations of such series
expressly provides that such series shall be deemed "Series E Securities"
for purposes of this Section 1, such series of Preferred Stock.
(b) With respect to any such vote provided for in subsection (a)
above, the Investor (together with its Affiliates) shall be entitled with
respect to its Series D Debentures to an aggregate number of votes equal
to the Series D Investor Aggregate Vote Number (as hereinafter defined).
The "Series D Investor Aggregate Vote Number" shall equal the number
of shares of Common Stock that would be issuable upon the exercise of the
Original Series A Warrants (as hereinafter defined) by the holders thereof
(assuming all conditions precedent to such exercise have
4
<PAGE> 21
Exhibit 3(a)-5
been satisfied and that such exercise occurs as of the record date for
such vote), multiplied by the lesser of (x) the quotient of the number of
Original Series A Warrants that are Beneficially Owned by members of the
Investor Group, in the aggregate, as of the record date for such vote
(excluding, however, any Original Series A Warrants that have been
transferred on the books of the Corporation by any member of the Investor
Group to any Person other than a member of the Investor Group, regardless
of whether any such Original Series A Warrants are subsequently acquired
by any member of the Investor Group), divided by the number of Original
Series A Warrants, and (y) the quotient of the aggregate principal amount
of Original Series D Debentures (as hereinafter defined) that are
Beneficially Owned by members of the Investor Group, in the aggregate, as
of the record date for such vote (excluding, however, (i) any Original
Series D Debentures issued in respect of shares of Series D Preferred that
were transferred on the stock records of the Corporation by any member of
the Investor Group to any Person other than a member of the Investor
Group, regardless of whether any such shares of Series D Preferred were
subsequently acquired by any member of the Investor Group, and (ii) any
Original Series D Debentures transferred by any member of the Investor
Group to any Person other than a member of the Investor Group, regardless
of whether any such Original Series D Debentures are subsequently acquired
by any member of the Investor Group), divided by the aggregate principal
amount of the Original Series D Debentures. The term "Series A Warrants"
means the Series A Warrants issued by the Corporation pursuant to the
Investment Agreement or the Warrant Agreement. The term "Original Series A
Warrants" means those Series A Warrants Beneficially Owned by members of
the Investor Group, in the aggregate, as of May 13, 1998. The term
"Original Series D Debentures" means the aggregate of those Series D
Debentures Beneficially Owned by members of the Investor Group as of the
original issue date of the Series D Debentures and, without duplication,
those Series D Debentures issued in respect of shares of Series D
Preferred that were Beneficially Owned by members of the Investor Group on
February 13, 1999 and subsequently transferred on the stock records of the
Corporation by any member of the Investor Group to any Person other than a
member of the Investor Group; provided, however, that "Original Series D
Debentures" shall not include any Series D Debentures issued in respect of
Series D Preferred previously issued as a dividend on Series D Preferred.
(c) If on any date (i) interest due and payable on the Series D
Debentures shall not have been paid in full for four consecutive quarterly
periods or interest due and payable on, or dividends payable on, the
Series E Securities shall not have been paid in full, or shall have been
in arrears and not paid in full, as the case may be, for four consecutive
quarterly
5
<PAGE> 22
Exhibit 3(a)-5
periods or (ii) the Corporation shall have failed to satisfy its
obligation to redeem or repay the principal of either Series D Debentures
in accordance with the indenture relating to the Series D Debentures (the
"Series D Indenture") or Series E Securities in accordance with the
applicable indenture or certificate of designations, as the case may be,
then the number of directors constituting the Board of Directors shall,
without further action, be increased by two, and the holders of Series D
Debentures and Series E Securities representing at least a majority of the
aggregate principal amount of Outstanding Series D Debentures and Series E
Securities shall have, in addition to the other voting rights set forth
herein, the exclusive right, voting together as a single class without
regard to series, to elect the two directors (the "Additional Directors")
of the Corporation to fill such newly-created directorships.
Notwithstanding the foregoing, the Investor and its Affiliates shall not
be permitted to elect, pursuant to the preceding sentence, more than the
number of directors that would result in four directors designated for
nomination or elected by the Investor and its Affiliates then being on the
Board of Directors (including directors that the Investor has a right to
designate for nomination to the Board of Directors pursuant to the
Investment Agreement); provided, that, if at the time Holders of Series D
Debentures and holders of Series E Securities have the right to elect
Additional Directors and (i) the Investor and its Affiliates Beneficially
Own, in the aggregate, Series D Debentures and Series E Securities
representing a majority of the aggregate principal amount of Outstanding
Series D Debentures and Series E Securities, taken together as a single
class, and (ii) the Investor and its Affiliates are not permitted to elect
one or both of the Additional Directors as aforesaid, then the Holders of
Series D Debentures and holders of Series E Securities (other than the
Investor and its Affiliates) shall have the right to elect, voting
together as a single class, one Additional Director pursuant to this
subsection (c). For the purposes of the two preceding sentences, if the
Series E Securities constitute Preferred Stock, one share of such
Preferred Stock shall be deemed to be equal to a principal amount of
$1,000. Additional Directors shall continue as directors and such
additional voting right shall continue until such time as (a) all interest
due and payable on the Series D Debentures and, if applicable, all
interest due and payable on, or dividends accumulated on, the Series E
Securities, as the case may be, shall have been paid in full and (b) any
redemption obligation with respect to, or any obligation to repay the
principal of, the Series D Debentures and the Series E Securities, as the
case may be, that has become due shall have been satisfied or all
necessary funds shall have been set aside for payment, as the case may be,
at which time such Additional Directors shall cease to be directors and
such additional voting right of the Holders shall terminate subject to
revesting in the event of each and every subsequent event of the character
indicated above and subject to any rights as to the election of
6
<PAGE> 23
Exhibit 3(a)-5
directors provided for the holders of any series of preferred stock of the
Corporation.
(d) In the event that one or more of the Investor Nominees required
to be designated for election to the Board of Directors pursuant to the
Investment Agreement are not so designated or are not elected to the Board
of Directors and the Investor or any of its Affiliates Beneficially Owns
Series D Debentures, then the number of directors constituting the Board
of Directors shall, without further action, be increased by the number of
such Investor Nominees not elected to the Board of Directors pursuant to
the Investment Agreement, and such Holder or Holders shall have, in
addition to the other voting rights set forth herein, the exclusive right,
voting separately as a single class, to elect a number of directors to the
Board of Directors equal to the number of such Investor Nominees not
elected to the Board of Directors. Directors elected pursuant to this
subsection shall continue as directors and such additional voting right
shall continue until such time as the requisite number of Investor
Nominees are elected to the Board of Directors pursuant to the Investment
Agreement, at which time the directors elected by the Investor and its
Affiliates pursuant to this subsection shall cease to be directors (unless
elected as Investor Nominees), and such additional voting rights shall
terminate subject to revesting in the event of each and every subsequent
event of the character indicated above.
(e) (i) The foregoing rights of Holders to take any action as
provided in this Section 1 may be exercised at any annual meeting of
stockholders or at a special meeting of Holders held for such purpose as
hereinafter provided or at any adjournment thereof, or by the written
consent, delivered to the Secretary of the Corporation, of the Holders of
Series D Debentures representing the minimum principal amount of
Outstanding Series D Debentures required to take such action. So long as
such right to vote continues (and unless such right has been exercised by
written consent of the Holders of Series D Debentures representing the
minimum principal amount of Outstanding Series D Debentures required to
take such action), the Chairman of the Board of Directors may call, and
upon the written request of Holders of Series D Debentures representing
20% of the aggregate principal amount of the Outstanding Series D
Debentures, addressed to the Secretary of the Corporation at the principal
office of the Corporation, shall call, a special meeting of the Holders
entitled to vote as provided herein. Such meeting shall be held within 60
days after delivery of such request to the Secretary, at the place and
upon the notice provided by law and in the By-laws of the Corporation for
the holding of meetings of stockholders.
7
<PAGE> 24
Exhibit 3(a)-5
(ii) Each director elected pursuant to subsection (c) of this
Section 1 shall serve until the next annual meeting or until his or her
successor shall be elected and shall qualify, unless the director's term
of office shall have terminated pursuant to the provisions of subsection
(c) of this Section 1. In case any vacancy shall occur among the directors
elected pursuant to subsection (c) or (d) of this Section 1, such vacancy
may be filled for the unexpired portion of the term by vote of the
remaining director or directors theretofore elected by such Holders (and,
if applicable, holders of the Series E Securities) (or such director's or
directors' successor in office), if any. If any such vacancy is not so
filled within 20 days after the creation thereof or if all of the
directors so elected shall cease to serve as directors before their term
shall expire, the Holders (and, if applicable, holders of the Series E
Securities) entitled to vote for such director pursuant to the provisions
of subsection (c) or (d) of this Section 1, as the case may be, may elect
successors to hold office for the unexpired terms of any vacant
directorships, by written consent as herein provided, or at a special
meeting of such Holders (and, if applicable, holders of the Series E
Securities) called as provided herein. The Holders of Series D Debentures
(and, if applicable, holders of the Series E Securities) representing a
majority of the aggregate principal amount of Series D Debentures (and, if
applicable, Series E Securities) entitled to vote for directors pursuant
to subsection (c) or (d) of this Section 1, as the case may be, shall have
the right to remove with or without cause at any time and replace any
directors such Holders (and, if applicable, holders of the Series E
Securities) have elected pursuant to such section, by written consent as
herein provided, or at a special meeting of such Holders (and, if
applicable, holders of the Series E Securities) called as provided herein.
For the purposes of the two preceding sentences, if the Series E
Securities constitute Preferred Stock, one share of such Preferred Stock
shall be deemed to be equal to a principal amount of $1,000.
(f) Without the consent or affirmative vote of the Holders of Series
D Debentures, voting separately as a class, representing at least a
majority of the aggregate principal amount of Outstanding Series D
Debentures, the Corporation shall not authorize, create or issue, or
increase the authorized amount of any class or series of capital stock or
any security convertible into or exercisable for any class or series of
capital stock, redeemable mandatorily or redeemable at the option of the
holder thereof at any time on or prior to May 13, 2008 (whether or not
only upon the occurrence of a specified event); provided, however, that no
consent or vote of the Holders shall be required for the creation or
issuance by a trust formed at the direction of the Corporation of any
series of preferred securities of such trust for financing purposes in an
aggregate amount not to exceed $250,000,000 ("Trust Preferred Stock").
8
<PAGE> 25
Exhibit 3(a)-5
(g) Without the consent or affirmative vote of the Holders of Series
D Debentures, voting separately as a class, representing at least a
majority of the aggregate principal amount of Outstanding Series D
Debentures, the Corporation shall not (i) amend, alter or repeal any
provision of the Certificate of Incorporation or the By-laws of the
Corporation, if the amendment, alteration or repeal alters or changes the
rights of the Holders of the Series D Debentures so as to affect them
materially and adversely, or (ii) authorize or take any other action if
such action alters or changes any of the rights of Holders of the Series D
Debentures in any respect or otherwise would be inconsistent with the
provisions of the Series D Indenture and the holders of any class or
series of the capital stock of the Corporation are entitled to vote
thereon.
(h) For the purposes of this Section 1, the term "Holder" means the
person in whose name a Series D Debenture is registered in the
Corporation's debenture register.
2. Voting Rights of Series E Debentures. (a) The Investor and its
Affiliates, in their capacity as Holders (as hereinafter defined) of
Series E Debentures, shall be entitled to vote on all matters voted on by
holders of Common Stock, and shall vote together with shares of Common
Stock (and any Series D Securities (as hereinafter defined) entitled to
vote) as a single class; provided, however, that (i) such voting rights
shall apply only to such Series E Debentures issued to the Investor or any
Affiliate of the Investor in exchange for shares of Series E Preferred
that had similar voting rights and (ii) upon transfer of a Series E
Debenture or any portion thereof to any Person other than the Investor or
an Affiliate of the Investor, such Person, and any subsequent transferee,
shall not be entitled to such voting rights with respect to such Series E
Debenture or the transferred portion thereof, regardless of whether any
such Series E Debentures are subsequently acquired by the Investor or its
Affiliates. The term "Series D Securities" means the Series D Debentures
or, if the Series D Preferred has not been exchanged for Series D
Debentures, the Series D Preferred or, if the Series D Preferred has been
exchanged for consideration that includes shares of another series of
Preferred Stock and the Certificate of Designations of such series
expressly provides that such series shall be deemed "Series D Securities"
for purposes of this Section 2, such series of Preferred Stock.
(b) With respect to any such vote provided for in subsection (a),
the Investor (together with its Affiliates) shall be entitled with respect
to its Series E Debentures to an aggregate number of votes equal to the
Series E Investor Aggregate Vote Number (as hereinafter defined).
9
<PAGE> 26
Exhibit 3(a)-5
The "Series E Investor Aggregate Vote Number" shall equal the number
of shares of Common Stock that would be issuable upon the exercise of the
Original Series B Warrants (as hereinafter defined) by the holders thereof
(assuming all conditions precedent to such exercise have been satisfied
and that such exercise occurs as of the record date for such vote),
multiplied by the lesser of (x) the quotient of the number of Original
Series B Warrants that are Beneficially Owned by members of the Investor
Group, in the aggregate, as of the record date for such vote (excluding,
however, any Original Series B Warrants that have been transferred on the
books of the Corporation by any member of the Investor Group to any Person
other than a member of the Investor Group, regardless of whether any such
Original Series B Warrants are subsequently acquired by any member of the
Investor Group), divided by the number of Original Series B Warrants, and
(y) the quotient of the aggregate principal amount of Original Series E
Debentures (as hereinafter defined) that are Beneficially Owned by members
of the Investor Group, in the aggregate, as of the record date for such
vote (excluding, however, (i) any Original Series E Debentures issued in
respect of shares of Series E Preferred that were transferred on the stock
records of the Corporation by any member of the Investor Group to any
Person other than a member of the Investor Group, regardless of whether
any such shares of Series E Preferred were subsequently acquired by any
member of the Investor Group, and (ii) any Original Series E Debentures
transferred by any member of the Investor Group to any Person other than a
member of the Investor Group, regardless of whether any such Original
Series E Debentures are subsequently acquired by any member of the
Investor Group), divided by the aggregate principal amount of the Original
Series E Debentures. The term "Series B Warrants" means the Series B
Warrants issued by the Corporation pursuant to the Investment Agreement or
the Warrant Agreement. The term "Original Series B Warrants" means those
Series B Warrants Beneficially Owned by members of the Investor Group, in
the aggregate, as of May 13, 1998. The term "Original Series E Debentures"
means the aggregate of those Series E Debentures Beneficially Owned by
members of the Investor Group as of the original issue date of the Series
E Debentures and, without duplication, those Series E Debentures issued in
respect of shares of Series E Preferred that were Beneficially Owned by
members of the Investor Group on February 13, 1999 and subsequently
transferred on the stock records of the Corporation by any member of the
Investor Group to any Person other than a member of the Investor Group;
provided, however, that "Original Series E Debentures" shall not include
any Series E Debentures issued in respect of Series E Preferred previously
issued as a dividend on Series E Preferred.
10
<PAGE> 27
Exhibit 3(a)-5
(c) If on any date (i) interest due and payable on the Series E
Debentures shall not have been paid in full for four consecutive quarterly
periods or interest due and payable on, or dividends payable on, the
Series D Securities shall not have been paid in full, or shall have been
in arrears and not paid in full, as the case may be, for four consecutive
quarterly periods or (ii) the Corporation shall have failed to satisfy its
obligation to redeem or repay the principal of either Series E Debentures
in accordance with the indenture relating to the Series E Debentures (the
"Series E Indenture") or Series D Securities in accordance with the
applicable indenture or certificate of designations, as the case may be,
then the number of directors constituting the Board of Directors shall,
without further action, be increased by two, and the holders of Series E
Debentures and Series D Securities representing at least a majority of the
aggregate principal amount of Outstanding Series E Debentures and Series D
Securities shall have, in addition to the other voting rights set forth
herein, the exclusive right, voting together as a single class without
regard to series, to elect the two Additional Directors of the Corporation
to fill such newly-created directorships. Notwithstanding the foregoing,
the Investor and its Affiliates shall not be permitted to elect, pursuant
to the preceding sentence, more than the number of directors that would
result in four directors designated for nomination or elected by the
Investor and its Affiliates then being on the Board of Directors
(including directors that the Investor has a right to designate for
nomination to the Board of Directors pursuant to the Investment
Agreement); provided, that, if at the time Holders of Series E Debentures
and holders of Series D Securities have the right to elect Additional
Directors and (i) the Investor and its Affiliates Beneficially Own, in the
aggregate, Series E Debentures and Series D Debentures representing a
majority of the aggregate principal amount of Outstanding Series E
Debentures and Series D Securities, taken together as a single class, and
(ii) the Investor and its Affiliates are not permitted to elect one or
both of the Additional Directors as aforesaid, then the Holders of Series
E Debentures and holders of Series D Securities (other than the Investor
and its Affiliates) shall have the right to elect, voting together as a
single class, one Additional Director pursuant to this subsection (c). For
the purposes of the two preceding sentences, if the Series D Securities
constitute Preferred Stock, one share of such Preferred Stock shall be
deemed to be equal to a principal amount of $1,000. Additional Directors
shall continue as directors and such additional voting right shall
continue until such time as (a) all interest due and payable on the Series
E Debentures and, if applicable, all interest due and payable on, or
dividends accumulated on, the Series D Securities, as the case may be,
shall have been paid in full and (b) any redemption obligation with
respect to, or any obligation to repay the principal of, the Series E
Debentures and the Series D Securities, as the case may be, that has
become due shall have been satisfied or all necessary funds shall have
been set aside for payment,
11
<PAGE> 28
Exhibit 3(a)-5
as the case may be, at which time such Additional Directors shall cease to
be directors and such additional voting right of the Holders shall
terminate subject to revesting in the event of each and every subsequent
event of the character indicated above and subject to any rights as to the
election of directors provided for the holders of any series of preferred
stock of the Corporation.
(d) (i) The foregoing rights of Holders to take any action as
provided in this Section 2 may be exercised at any annual meeting of
stockholders or at a special meeting of Holders held for such purpose as
hereinafter provided or at any adjournment thereof, or by the written
consent, delivered to the Secretary of the Corporation, of the Holders of
Series E Debentures representing the minimum principal amount of
Outstanding Series E Debentures required to take such action. So long as
such right to vote continues (and unless such right has been exercised by
written consent of the Holders of Series E Debentures representing the
minimum principal amount of Outstanding Series E Debentures required to
take such action), the Chairman of the Board of Directors may call, and
upon the written request of Holders of Series E Debentures representing
20% of the aggregate principal amount of the Outstanding Series E
Debentures, addressed to the Secretary of the Corporation at the principal
office of the Corporation, shall call, a special meeting of the Holders
entitled to vote as provided herein. Such meeting shall be held within 60
days after delivery of such request to the Secretary, at the place and
upon the notice provided by law and in the By-laws of the Corporation for
the holding of meetings of stockholders.
(ii) Each director elected pursuant to subsection (c) of this
Section 2 shall serve until the next annual meeting or until his or her
successor shall be elected and shall qualify, unless the director's term
of office shall have terminated pursuant to the provisions of subsection
(c) of this Section 2. In case any vacancy shall occur among the directors
elected pursuant to subsection (c) of this Section 2, such vacancy may be
filled for the unexpired portion of the term by vote of the remaining
director or directors theretofore elected by such Holders (and, if
applicable, holders of the Series D Securities) (or such director's or
directors' successor in office), if any. If any such vacancy is not so
filled within 20 days after the creation thereof or if all of the
directors so elected shall cease to serve as directors before their term
shall expire, the Holders (and, if applicable, holders of the Series D
Securities) entitled to vote for such director pursuant to the provisions
of subsection (c) of this Section 2 may elect successors to hold office
for the unexpired terms of any vacant directorships, by written consent as
herein provided, or at a special meeting of such Holders (and, if
applicable, holders of the Series D Securities) called as provided herein.
The Holders of Series E Debentures
12
<PAGE> 29
Exhibit 3(a)-5
(and, if applicable, holders of the Series D Securities) representing a
majority of the aggregate principal amount of Series E Debentures (and, if
applicable, Series D Securities) entitled to vote for directors pursuant
to subsection (c) of this Section 2, shall have the right to remove with
or without cause at any time and replace any directors such Holders (and,
if applicable, holders of the Series D Securities) have elected pursuant
to such section, by written consent as herein provided, or at a special
meeting of such Holders (and, if applicable, holders of the Series D
Securities) called as provided herein. For the purposes of the two
preceding sentences, if the Series D Securities constitute Preferred
Stock, one share of such Preferred Stock shall be deemed to be equal to a
principal amount of $1,000.
(e) Without the consent or affirmative vote of the Holders of Series
E Debentures, voting separately as a class, representing at least a
majority of the aggregate principal amount of Outstanding Series E
Debentures, the Corporation shall not authorize, create or issue, or
increase the authorized amount of any class or series of capital stock or
any security convertible into or exercisable for any class or series of
capital stock, redeemable mandatorily or redeemable at the option of the
holder thereof at any time on or prior to May 13, 2008 (whether or not
only upon the occurrence of a specified event); provided, however, that no
consent or vote of the Holders shall be required for the creation or
issuance by a trust formed at the direction of the Corporation of any
series of Trust Preferred Stock.
(f) Without the consent or affirmative vote of the Holders of Series
E Debentures, voting separately as a class, representing at least a
majority of the aggregate principal amount of Outstanding Series E
Debentures, the Corporation shall not (i) amend, alter or repeal any
provision of the Certificate of Incorporation or the By-laws of the
Corporation, if the amendment, alteration or repeal alters or changes the
rights of the Holders of the Series E Debentures so as to affect them
materially and adversely, or (ii) authorize or take any other action if
such action alters or changes any of the rights of Holders of the Series E
Debentures in any respect or otherwise would be inconsistent with the
provisions of the Series E Indenture and the holders of any class or
series of the capital stock of the Corporation are entitled to vote
thereon.
(g) For the purposes of this Section 2, the term "Holder" means the
person in whose name a Series E Debenture is registered in the
Corporation's debenture register.
3. Definitions. For the purposes of this Article FIFTEENTH, the
following terms shall have the meanings indicated:
13
<PAGE> 30
Exhibit 3(a)-5
"Affiliate" has the meaning set forth in Rule 12b-2 under the
Exchange Act. The term "Affiliated" has a correlative meaning.
Notwithstanding the foregoing, for all purposes hereof, the Investor, and
each Person controlled by, controlling or under common control with the
Investor (each, a "TPG Person"), shall not be deemed an "Affiliate" of any
Designated Purchaser Person (as defined below), and no Designated
Purchaser, and no Person controlled by, controlling or under common
control with such Designated Purchaser (each, a "Designated Purchaser
Person"), shall be deemed an "Affiliate" of any TPG Person or any other
Designated Purchaser Person, in any such case solely as a consequence of
the Investment Agreement and the transactions contemplated thereby.
"Beneficially Own" with respect to any securities means having
"beneficial ownership" of such securities (a determined pursuant to Rule
13d-3 under the Exchange Act as in effect on the date hereof, except that
a Person shall be deemed to Beneficially Own all such securities that such
Person has the right to acquire whether such right is exercisable
immediately or after the passage of time). The terms "Beneficial
Ownership" and "Beneficial Owner" have correlative meanings.
Notwithstanding the foregoing, for all purposes hereof, no TPG Person
shall be deemed to Beneficially Own any securities that are held by any
Designated Purchaser Person, and no Designated Purchaser Person shall be
deemed to Beneficially Own any securities that are held by any TPG Person
or other Designated Purchaser Person, in any such case solely as a
consequence of the Investment Agreement or the transactions contemplated
thereby.
"Designated Purchaser" has the meaning assigned to such term in the
Investment Agreement.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, from time
to time.
"Investment Agreement" means the Investment Agreement, dated as of
February 23, 1998, by and between the Investor and the Corporation, as
amended, supplemented or otherwise modified from time to time.
"Investor" means TPG Partners II, L.P., a Delaware limited
partnership.
"Investor Group" means, collectively, the Investor, the Designated
Purchasers, if any, and the respective Affiliates of such persons.
"Investor Nominee" means a person designated for election to the
Board of Directors by the Investor pursuant to the Investment Agreement.
14
<PAGE> 31
Exhibit 3(a)-5
"Outstanding" means, with respect to the Series D Debentures or the
Series E Debentures, as the case may be, as of the date of determination,
all debentures theretofore authenticated and delivered under the indenture
relating to such debentures, except:
(i) debentures theretofore canceled by the indenture
trustee or delivered to the indenture trustee for
cancellation;
(ii) debentures, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the indenture trustee or any paying agent in trust or
set aside and segregated in trust by the Corporation for the Holders
of such debentures in accordance with the applicable indenture;
provided, that, if the debentures are to be redeemed, notice of such
redemption has been duly given pursuant to the applicable indenture
or provision therefor satisfactory to the indenture trustee has been
made; and
(iii) debentures which have been paid in full pursuant to the
terms hereof or in exchange for or in lieu of which other debentures
have been authenticated and delivered pursuant to the applicable
indenture, other than any such debentures in respect of which there
shall have been presented to the indenture trustee proof
satisfactory to it that such debentures are held by a bona fide
purchaser in whose hands such debentures are valid obligations of
the Corporation.
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding debentures have given any
request, demand, authorization, direction, notice, consent or waiver under
this Article FIFTEENTH or the applicable indenture, debentures owned by
the Corporation or any other obligor upon the debentures or any Affiliate
of the Corporation or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the
indenture trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
debentures which a trust officer of the indenture trustee knows to be so
owned shall be so disregarded. Debentures so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the indenture trustee the pledgee's right so to act
with respect to such debentures and that the pledgee is not the
Corporation or any other obligor upon the debentures or any Affiliate of
the Corporation or of such other obligor.
"Series D Preferred" means the Corporation's Series D Cumulative
Preferred Stock, par value $.01 per share.
15
<PAGE> 32
Exhibit 3(a)-5
"Series E Preferred" means the Corporation's Series E Cumulative
Preferred Stock, par value $.01 per share.
"Warrant Agreement" means the Warrant Agreement, dated as of January
31, 2000, between the Corporation and ChaseMellon Shareholder Services,
L.L.C., a New Jersey limited liability company, as Warrant Agent, as
amended, supplemented or otherwise modified from time to time.
4. No Rights of Stockholders. Holders of the Series D Debentures and
holders of the Series E Debentures shall not be deemed to be stockholders
of the Corporation, and nothing in this Article FIFTEENTH confers or shall
be deemed to confer upon holders of the Series D Debentures or holders of
the Series E Debentures any rights which the stockholders of the
Corporation have or may have by reason of the General Corporation Law of
the State of Delaware or Certificate of Incorporation.
5. Stockholders' Voting Rights Not Divested. Nothing in this Article
FIFTEENTH divests or shall be deemed to divest the holders of capital
stock of the Corporation of any right to vote which they have or may have
by reason of the General Corporation Law of the State of Delaware or this
Certificate of Incorporation."
6. Article VIII of the Series D COD is amended to read in its
entirety as follows:
"VIII. VOTING RIGHTS AND CERTAIN RESTRICTIONS
A. The holders of shares of Series D Preferred Stock shall have no
voting rights except as set forth below or as otherwise from time to time
required by law.
B. So long as any shares of Series D Preferred Stock are
outstanding, each share of Series D Preferred Stock shall entitle the
holder thereof to vote on all matters voted on by holders of Common Stock,
and the shares of Series D Preferred Stock shall vote together with shares
of Common Stock (and any Series E Securities (as defined below) entitled
to vote) as a single class; provided, however, that upon register or
transfer on the stock records of the Corporation of a share of Series D
Preferred Stock to any Person other than the Investor or an Affiliate of
the Investor, such Person, and any subsequent transferee, shall not be
entitled to such voting rights with respect to such shares of Series D
Preferred Stock, regardless
16
<PAGE> 33
Exhibit 3(a)-5
of whether it is subsequently acquired by the Investor or its Affiliates.
The term "Series E Securities" means the Series E Debentures or, if the
Series E Preferred Stock has not been exchanged for Series E Debentures,
the Series E Preferred Stock or, if the Series E Preferred Stock has been
exchanged for consideration that includes shares of another series of
Preferred Stock and the Certificate of Designations of such series
expressly provides that such series shall be deemed "Series E Securities"
for purposes of this Article VIII, such series of Preferred Stock. With
respect to any such vote, the Investor (together with its Affiliates)
shall be entitled to a number of votes per share of Series D Preferred
Stock equal to the quotient of the Investor Aggregate Vote Number, divided
by the number of shares of Series D Preferred Stock held by such Investor
and its Affiliates as of the record date for such vote. The "Investor
Aggregate Vote Number" shall equal the number of Series A Warrant Shares
that would be issuable upon the exercise of Original Warrants (as defined
below) by the holders thereof (assuming all conditions precedent to such
exercise have been satisfied and that such exercise occurs as of the
record date for such vote), multiplied by the lesser of (x) the quotient
of the number of Original Warrants that are Beneficially Owned by members
of the Investor Group, in the aggregate, as of the record date for such
vote (excluding, however, any Original Warrants that have been transferred
on the books of the Corporation by any member of the Investor Group to any
Person other than a member of the Investor Group, regardless of whether
any such Original Warrants are subsequently acquired by any member of the
Investor Group), divided by the number of Original Warrants, and (y) the
quotient of the number of Original Series D Preferred Shares (as defined
below) that are Beneficially Owned by members of the Investor Group, in
the aggregate, as of the record date for such vote (excluding, however,
any Original Series D Preferred Shares transferred on the stock records of
the Corporation by any member of the Investor Group to any Person other
than a member of the Investor Group, regardless of whether any such
Original Series D Preferred Shares are subsequently acquired by any member
of the Investor Group), divided by the number of Original Series D
Preferred Shares. The term "Original Warrants" means those Series A
Warrants Beneficially Owned by members of the Investor Group, in the
aggregate, as of May 13, 1998. The term "Original Series D Preferred
Shares" means those shares of Series D Preferred Stock Beneficially Owned
by members of the Investor Group, in the aggregate, on February 13, 1999.
C. If on any date (i) dividends payable on the Series D Preferred
Stock shall have been in arrears and not paid in full for four consecutive
quarterly periods or interest due and payable on, or dividends payable on,
the Series E Securities shall not have been paid in full, or shall have
been in arrears and not paid in full, as the case may be, for four
17
<PAGE> 34
Exhibit 3(a)-5
consecutive quarterly periods, or (ii) the Corporation shall have failed
to satisfy its obligations to redeem or repay either shares of Series D
Preferred Stock or Series E Securities pursuant to the applicable
certificate of designations or, if applicable, the indenture relating to
the Series E Securities, then the number of directors constituting the
Board of Directors shall, without further action, be increased by two, and
the holders of a majority of the outstanding shares of Series D Preferred
Stock and Series E Securities shall have, in addition to the other voting
rights set forth herein, the exclusive right, voting together as a single
class without regard to series, to elect the two directors (the
"Additional Directors") of the Corporation to fill such newly-created
directorships (provided, that, if the shares of Series E Preferred Stock
have been exchanged for Series E Debentures, then the holders of the
Series E Debentures shall vote together with the holders of Series D
Preferred Stock as a single class, and the holders of Series D Preferred
Stock and Series E Debentures representing at least a majority of the
aggregate principal amount of Outstanding Series E Debentures and Series D
Preferred Stock shall have the exclusive right, voting together as a
single class without regard to series, to elect the two Additional
Directors, and, for this purpose, one share of Series D Preferred Stock
shall be deemed to be equal to a principal amount of $1,000).
Notwithstanding the foregoing, the Investor and its Affiliates shall not
be permitted to elect, pursuant to the preceding sentence, more than the
number of directors that would result in four directors designated for
nomination or elected by the Investor and its Affiliates then being on the
Board of Directors (including directors that the Investor has a right to
designate for nomination to the Board of Directors pursuant to the
Investment Agreement); provided, that if at the time holders of Series D
Preferred Stock and Series E Securities have the right to elect Additional
Directors and (i) the Investor and its Affiliates Beneficially Own, in the
aggregate, a majority of the outstanding shares of Series D Preferred
Stock and Series E Securities (or, if the shares of Series E Preferred
Stock have been exchanged for Series E Debentures, a majority of the
aggregate principal amount of the Series D Preferred Stock and Series E
Debentures), taken together as a single class, and (ii) the Investor and
its Affiliates are not permitted to elect one or both of the Additional
Directors as aforesaid, then the holders of Series D Preferred Stock and
Series E Securities (other than the Investor and its Affiliates) shall
have the right to elect, voting together as a single class, one Additional
Director pursuant to this Section C. For the purposes of the preceding
sentence, if the shares of Series E Preferred Stock have been exchanged
for Series E Debentures, one share of Series D Preferred Stock shall be
deemed to be equal to a principal amount of $1,000. Additional Directors
shall continue as directors and such additional voting right shall
continue until such time as (a) all dividends accumulated on the Series D
Preferred Stock and, if applicable, all interest due and payable on, or
dividends accumulated on,
18
<PAGE> 35
Exhibit 3(a)-5
the Series E Securities, as the case may be, shall have been paid in full
and (b) any redemption obligation with respect to the Series D Preferred
Stock and any redemption obligation with respect to, or any obligation to
repay the principal of, the Series E Securities, as the case may be, that
has become due shall have been satisfied or all necessary funds shall have
been set aside for payment, as the case may be, at which time such
Additional Directors shall cease to be directors and such additional
voting right of the holders of shares of Series D Preferred Stock shall
terminate subject to revesting in the event of each and every subsequent
event of the character indicated above and subject to any rights as to the
election of directors provided for the holders of any other series of
Preferred Stock of the Corporation.
D. In the event that one or more of the Investor Nominees required
to be designated for election to the Board of Directors pursuant to the
Investment Agreement are not so designated or are not elected to the Board
of Directors and the Investor or any of its Affiliates Beneficially Owns
shares of Series D Preferred Stock, then the number of directors
constituting the Board of Directors shall, without further action, be
increased by the number of such Investor Nominees not elected to the Board
of Directors pursuant to the Investment Agreement, and such holder or
holders shall have, in addition to the other voting rights set forth
herein, the exclusive right, voting separately as a single class, to elect
a number of directors to the Board of Directors equal to the number of
such Investor Nominees not elected to the Board of Directors. Directors
elected pursuant to this Section D shall continue as directors and such
additional voting right shall continue until such time as the requisite
number of Investor Nominees are elected to the Board of Directors pursuant
to the Investment Agreement, at which time the directors elected by the
Investor and its Affiliates pursuant to this Section D shall cease to be
directors (unless elected as Investor Nominees), and such additional
voting rights shall terminate subject to revesting in the event of each
and every subsequent event of the character indicated above.
E. (a) The foregoing rights of holders of shares of Series D
Preferred Stock to take any action as provided in this Article VIII may be
exercised at any annual meeting of stockholders or at a special meeting of
stockholders held for such purpose as hereinafter provided or at any
adjournment thereof, or by the written consent, delivered to the Secretary
of the Corporation, of the holders of the minimum number of shares
required to take such action. So long as such right to vote continues (and
unless such right has been exercised by written consent of the minimum
number of shares required to take such action), the Chairman of the Board
of Directors may call, and upon the written request of holders of record
of 20% of the outstanding shares of Series D Preferred Stock, addressed to
19
<PAGE> 36
Exhibit 3(a)-5
the Secretary of the Corporation at the principal office of the
Corporation, shall call, a special meeting of the holders of shares
entitled to vote as provided herein. Such meeting shall be held within 60
days after delivery of such request to the Secretary, at the place upon
the notice provided by law and in the By-laws for the holding of meetings
of stockholders.
(b) Each director elected pursuant to Section C of this Article VIII
shall serve until the next annual meeting or until his or her successor
shall be elected and shall qualify, unless the director's term of office
shall have terminated pursuant to the provisions of Section C of this
Article VIII. In case any vacancy shall occur among the directors elected
pursuant to Section C or D of this Article VIII, such vacancy may be
filled for the unexpired portion of the term by vote of the remaining
director or directors theretofore elected by such holders (and, if
applicable, holders of Series E Securities) (or such director's or
directors' successor in office), if any. If such vacancy is not filled
within 20 days after the creation thereof or if all of the directors so
elected shall cease to serve as directors before their term shall expire,
the holders of the shares then outstanding (and, if applicable, holders of
Series E Securities) and entitled to vote for such director pursuant to
the provisions of Section C or D of this Article VIII, as the case may be,
may elect successors to hold office for the unexpired terms of any vacant
directorships, by written consent as herein provided, or at a special
meeting of such holders (and, if applicable, holders of the Series E
Securities) called as provided herein. The holders of a majority of the
shares entitled to vote for directors pursuant to Section C or D of this
Article VIII (or, if the Series E Preferred Stock has been exchanged for
Series E Debentures, the holders representing a majority of the aggregate
principal amount of Series D Preferred Stock and Series E Debentures
entitled to vote for directors pursuant to Section C or D of this Article
VIII), as the case may be, shall have the right to remove with or without
cause at any time and replace any directors such holders (and, if
applicable, holders of Series E Securities) have elected pursuant to such
section, by written consent as herein provided, or at a special meeting of
such holders (and, if applicable, holders of Series E Securities) called
as provided herein. For the purposes of the two preceding sentences, if
the shares of Series E Preferred Stock have been exchanged for Series E
Debentures, one share of Series D Preferred Stock shall be deemed to be
equal to a principal amount of $1,000.
F. Without the consent or affirmative vote of the holders of at
least a majority of the outstanding shares of Series D Preferred Stock,
voting separately as a class, the Corporation shall not authorize, create
or issue, or increase the authorized amount of, (i) any Senior Securities
or Parity Securities or (ii) any class or series of capital stock or any
security convertible into or exercisable for any class or series of
capital stock,
20
<PAGE> 37
Exhibit 3(a)-5
redeemable mandatorily or redeemable at the option of the holder thereof
at any time on or prior to May 13, 2008 (whether or not only upon the
occurrence of a specified event); provided, however, that no consent or
vote of the holders of the outstanding shares of the Series D Preferred
Stock shall be required for the creation or issuance by a trust formed at
the direction of the Corporation of any series of preferred securities of
such trust for financing purposes in an aggregate amount not to exceed
$250,000,000 ("Trust Preferred Stock"). No consent or vote of the holders
of the outstanding shares of Series D Preferred Stock shall be required to
authorize, create or issue, or increase the authorized amount of, any
class or series of Junior Securities, or any security convertible into a
stock of any class or series of Junior Securities, except to the extent
such action would violate Section H of this Article VIII.
G. Without the consent or affirmative vote of the holders of at
least a majority of the outstanding shares of Series D Preferred Stock,
voting separately as a class, the Corporation shall not (i) amend, alter
or repeal any provision of the Certificate of Incorporation or the
By-laws, if the amendment, alteration or repeal alters or changes the
powers, preferences or special rights of the Series D Preferred Stock so
as to affect them materially and adversely, or (ii) authorize or take any
other action if such action alters or changes any of the rights of the
Series D Preferred Stock in any respect or otherwise would be inconsistent
with the provisions of this Certificate of Designations and the holders of
any class or series of the capital stock of the Corporation are entitled
to vote thereon.
H. Other Securities. The Corporation shall not enter into any
agreement or issue any security that prohibits, conflicts or is
inconsistent with, or would be breached by, the Corporation's
performance of its obligations hereunder."
7. The definition of "Series A Warrants" in Article IX of the Series D COD
is amended to read in its entirety as follows:
""Series A Warrants" means the Series A Warrants issued by the
Corporation pursuant to the Investment Agreement or the Warrant Agreement,
dated as of January 31, 2000, between the Corporation and ChaseMellon
Shareholder Services, L.L.C., a New Jersey limited liability company, as
Warrant Agent, as amended, supplemented or otherwise modified from time to
time."
8. The definition of "Series B Warrants" in Article IX of the Series D
COD is deleted in its entirety.
21
<PAGE> 38
Exhibit 3(a)-5
9. Article VIII of the Series E COD is amended to read in its
entirety as follows:
"VIII. VOTING RIGHTS AND CERTAIN RESTRICTIONS
A. The holders of shares of Series E Preferred Stock shall have no
voting rights except as set forth below or as otherwise from time to time
required by law.
B. So long as any shares of Series E Preferred Stock are
outstanding, each share of Series E Preferred Stock shall entitle the
holder thereof to vote on all matters voted on by holders of Common Stock,
and the shares of Series E Preferred Stock shall vote together with shares
of Common Stock (and any Series D Securities (as defined below) entitled
to vote) as a single class; provided, however, that upon register or
transfer on the stock records of the Corporation of a share of Series E
Preferred Stock to any Person other than the Investor or an Affiliate of
the Investor, such Person, and any subsequent transferee, shall not be
entitled to such voting rights with respect to such shares of Series E
Preferred Stock, regardless of whether it is subsequently acquired by the
Investor or its Affiliates. The term "Series D Securities" means the
Series D Debentures or, if the Series D Preferred Stock has not been
exchanged for Series D Debentures, the Series D Preferred Stock or, if the
Series D Preferred Stock has been exchanged for consideration that
includes shares of another series of Preferred Stock and the Certificate
of Designations of such series expressly provides that such series shall
be deemed "Series D Securities" for purposes of this Article VIII, such
series of Preferred Stock. With respect to any such vote, the Investor
(together with its Affiliates) shall be entitled to a number of votes per
share of Series E Preferred Stock equal to the quotient of the Investor
Aggregate Vote Number, divided by the number of shares of Series E
Preferred Stock held by such Investor and its Affiliates as of the record
date for such vote. The "Investor Aggregate Vote Number" shall equal the
number of Warrant Shares that would be issuable upon the exercise of
Original Warrants (as defined below) by the holders thereof (assuming all
conditions precedent to such exercise have been satisfied and that such
exercise occurs as of the record date for such vote), multiplied by the
lesser of (x) the quotient of the number of Original Warrants that are
Beneficially Owned by members of the Investor Group, in the aggregate, as
of the record date for such vote (excluding, however, any Original
Warrants that have been transferred on the books of the Corporation by any
member of the Investor Group to any Person other than a member of the
Investor Group, regardless of whether any such Original Warrants are
subsequently acquired by any member of the Investor Group), divided by the
number of Original Warrants, and (y) the
22
<PAGE> 39
Exhibit 3(a)-5
quotient of the number of Original Series E Preferred Shares (as defined
below) that are Beneficially Owned by members of the Investor Group, in
the aggregate, as of the record date for such vote (excluding, however,
any Original Series E Preferred Shares transferred on the stock records of
the Corporation by any member of the Investor Group to any Person other
than a member of the Investor Group, regardless of whether any such
Original Series E Preferred Shares are subsequently acquired by any member
of the Investor Group), divided by the number of Original Series E
Preferred Shares. The term "Original Warrants" means those Warrants
Beneficially Owned by members of the Investor Group, in the aggregate, as
of May 13, 1998. The term "Original Series E Preferred Shares" means those
shares of Series E Preferred Stock Beneficially Owned by members of the
Investor Group, in the aggregate, on February 13, 1999.
C. If on any date (i) dividends payable on the Series E Preferred
Stock shall have been in arrears and not paid in full for four consecutive
quarterly periods or interest due and payable on, or dividends payable on,
the Series D Securities shall not have been paid in full, or shall have
been in arrears and not paid in full, as the case may be, for four
consecutive quarterly periods, or (ii) the Corporation shall have failed
to satisfy its obligations to redeem or repay either shares of Series E
Preferred Stock or Series D Securities pursuant to the applicable
certificate of designations or, if applicable, the indenture relating to
the Series D Securities, then the number of directors constituting the
Board of Directors shall, without further action, be increased by two, and
the holders of a majority of the outstanding shares of Series E Preferred
Stock and Series D Securities shall have, in addition to the other voting
rights set forth herein, the exclusive right, voting together as a single
class without regard to series, to elect the two directors (the
"Additional Directors") of the Corporation to fill such newly-created
directorships (provided, that, if the shares of Series D Preferred Stock
have been exchanged for Series D Debentures, then the holders of the
Series D Debentures shall vote together with the holders of Series E
Preferred Stock as a single class, and the holders of Series E Preferred
Stock and Series D Debentures representing at least a majority of the
aggregate principal amount of Outstanding Series D Debentures and Series E
Preferred Stock shall have the exclusive right, voting together as a
single class without regard to series, to elect the two Additional
Directors, and, for this purpose, one share of Series E Preferred Stock
shall be deemed to be equal to a principal amount of $1,000).
Notwithstanding the foregoing, the Investor and its Affiliates shall not
be permitted to elect, pursuant to the preceding sentence, more than the
number of directors that would result in four directors designated for
nomination or elected by the Investor and its Affiliates then being on the
Board of Directors (including directors that
23
<PAGE> 40
Exhibit 3(a)-5
the Investor has a right to designate for nomination to the Board of
Directors pursuant to the Investment Agreement); provided, that if at the
time holders of Series E Preferred Stock and Series D Securities have the
right to elect Additional Directors and (i) the Investor and its
Affiliates Beneficially Own, in the aggregate, a majority of the
outstanding shares of Series E Preferred Stock and Series D Securities
(or, if the shares of Series D Preferred Stock have been exchanged for
Series D Debentures, a majority of the aggregate principal amount of the
Series E Preferred Stock and Series D Debentures), taken together as a
single class, and (ii) the Investor and its Affiliates are not permitted
to elect one or both of the Additional Directors as aforesaid, then the
holders of Series E Preferred Stock and Series D Securities (other than
the Investor and its Affiliates) shall have the right to elect, voting
together as a single class, one Additional Director pursuant to this
Section C. For the purposes of the preceding sentence, if the shares of
Series D Preferred Stock have been exchanged for Series D Debentures, one
share of Series E Preferred Stock shall be deemed to be equal to a
principal amount of $1,000. Additional Directors shall continue as
directors and such additional voting right shall continue until such time
as (a) all dividends accumulated on the Series E Preferred Stock and, if
applicable, all interest due and payable on, or dividends accumulated on,
the Series D Securities, as the case may be, shall have been paid in full
and (b) any redemption obligation with respect to the Series E Preferred
Stock and any redemption obligation with respect to, or any obligation to
repay the principal of, the Series D Securities, as the case may be, that
has become due shall have been satisfied or all necessary funds shall have
been set aside for payment, as the case may be, at which time such
Additional Directors shall cease to be directors and such additional
voting right of the holders of shares of Series E Preferred Stock shall
terminate subject to revesting in the event of each and every subsequent
event of the character indicated above and subject to any rights as to the
election of directors provided for the holders of any other series of
Preferred Stock of the Corporation.
D. [Reserved]
E. (a) The foregoing rights of holders of shares of Series E
Preferred Stock to take any action as provided in this Article VIII may be
exercised at any annual meeting of stockholders or at a special meeting of
stockholders held for such purpose as hereinafter provided or at any
adjournment thereof, or by the written consent, delivered to the Secretary
of the Corporation, of the holders of the minimum number of shares
required to take such action. So long as such right to vote continues (and
unless such right has been exercised by written consent of the minimum
number of shares required to take such action), the Chairman of the Board
of Directors may call, and upon the written request of holders of record
of
24
<PAGE> 41
Exhibit 3(a)-5
20% of the outstanding shares of Series E Preferred Stock, addressed to
the Secretary of the Corporation at the principal office of the
Corporation, shall call, a special meeting of the holders of shares
entitled to vote as provided herein. Such meeting shall be held within 60
days after delivery of such request to the Secretary, at the place upon
the notice provided by law and in the By-laws for the holding of meetings
of stockholders.
(b) Each director elected pursuant to Section C of this Article VIII
shall serve until the next annual meeting or until his or her successor
shall be elected and shall qualify, unless the director's term of office
shall have terminated pursuant to the provisions of Section C of this
Article VIII. In case any vacancy shall occur among the directors elected
pursuant to Section C of this Article VIII, such vacancy may be filled for
the unexpired portion of the term by vote of the remaining director or
directors theretofore elected by such holders (and, if applicable, holders
of Series D Securities) (or such director's or directors' successor in
office), if any. If such vacancy is not filled within 20 days after the
creation thereof or if all of the directors so elected shall cease to
serve as directors before their term shall expire, the holders of the
shares then outstanding (and, if applicable, holders of Series D
Securities) and entitled to vote for such director pursuant to the
provisions of Section C of this Article VIII may elect successors to hold
office for the unexpired terms of any vacant directorships, by written
consent as herein provided, or at a special meeting of such holders (and,
if applicable, holders of the Series D Securities) called as provided
herein. The holders of a majority of the shares entitled to vote for
directors pursuant to Section C of this Article VIII (or, if the Series D
Preferred Stock has been exchanged for Series D Debentures, the holders
representing a majority of the aggregate principal amount of Series E
Preferred Stock and Series D Debentures entitled to vote for directors
pursuant to Section C of this Article VIII) shall have the right to remove
with or without cause at any time and replace any directors such holders
(and, if applicable, holders of Series D Securities) have elected pursuant
to such section, by written consent as herein provided, or at a special
meeting of such holders (and, if applicable, holders of Series D
Securities) called as provided herein. For the purposes of the two
preceding sentences, if the shares of Series D Preferred Stock have been
exchanged for Series D Debentures, one share of Series E Preferred Stock
shall be deemed to be equal to a principal amount of $1,000.
F. Without the consent or affirmative vote of the holders of at
least a majority of the outstanding shares of Series E Preferred Stock,
voting separately as a class, the Corporation shall not authorize, create
or issue, or increase the authorized amount of, (i) any Senior Securities
or Parity Securities or (ii) any class or series of capital stock or any
security
25
<PAGE> 42
Exhibit 3(a)-5
convertible into or exercisable for any class or series of capital stock,
redeemable mandatorily or redeemable at the option of the holder thereof
at any time on or prior to May 13, 2008 (whether or not only upon the
occurrence of a specified event); provided, however, that no consent or
vote of the holders of the outstanding shares of the Series E Preferred
Stock shall be required for the creation or issuance by a trust formed at
the direction of the Corporation of any series of preferred securities of
such trust for financing purposes in an aggregate amount not to exceed
$250,000,000 ("Trust Preferred Stock"). No consent or vote of the holders
of the outstanding shares of Series E Preferred Stock shall be required to
authorize, create or issue, or increase the authorized amount of, any
class or series of Junior Securities, or any security convertible into a
stock of any class or series of Junior Securities, except to the extent
such action would violate Section H of this Article VIII.
G. Without the consent or affirmative vote of the holders of at
least a majority of the outstanding shares of Series E Preferred Stock,
voting separately as a class, the Corporation shall not (i) amend, alter
or repeal any provision of the Certificate of Incorporation or the
By-laws, if the amendment, alteration or repeal alters or changes the
powers, preferences or special rights of the Series E Preferred Stock so
as to affect them materially and adversely, or (ii) authorize or take any
other action if such action alters or changes any of the rights of the
Series E Preferred Stock in any respect or otherwise would be inconsistent
with the provisions of this Certificate of Designations and the holders of
any class or series of the capital stock of the Corporation are entitled
to vote thereon.
H. Other Securities. The Corporation shall not enter
into any agreement or issue any security that prohibits,
conflicts or is inconsistent with, or would be breached by, the
Corporation's performance of its obligations hereunder."
10. The definition of "Warrants" in Article IX of the Series E COD is
amended to read in its entirety as follows:
""Warrants" means the Series B Warrants issued by the Corporation
pursuant to the Investment Agreement or the Warrant Agreement, dated as of
January 31, 2000, between the Corporation and ChaseMellon Shareholder
Services, L.L.C., a New Jersey limited liability company, as Warrant
Agent, as amended, supplemented or otherwise modified from time to time."
26
<PAGE> 43
Exhibit 3(a)-5
IN WITNESS WHEREOF, the Corporation has caused this amendment to be signed
by Jon S. Richardson, its Executive Vice President, General Counsel and
Secretary, this 10th day of August, 2000.
OXFORD HEALTH PLANS, INC.
By: /s/ JON S. RICHARDSON
---------------------------------
Jon S. Richardson
Executive Vice President,
General Counsel and Secretary
[Corporate Seal]
ATTEST:
By: /s/ SCOTT M. SCHWARTZ
----------------------------
Name: Scott M. Schwartz
Title: Vice President
27
