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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 24, 1998
REGISTRATION NO. 333-47409
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MEDAPHIS CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 7374 58-1651222
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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2700 CUMBERLAND PARKWAY, SUITE 300
ATLANTA, GEORGIA 30339
(770) 444-5300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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RANDOLPH L.M. HUTTO COPY TO:
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL PAUL T. SCHNELL
MEDAPHIS CORPORATION SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
2700 CUMBERLAND PARKWAY, SUITE 300 919 THIRD AVENUE
ATLANTA, GEORGIA 30339 NEW YORK, NEW YORK 10022
(770) 444-5300 (312) 735-3000
(Name, address, including zip code, and
telephone number,
including area code, of agent for service)
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JURISDICTION PRIMARY STANDARD I.R.S. EMPLOYER
OF INDUSTRIAL IDENTIFICATION
EXACT NAME OF ADDITIONAL REGISTRANTS* INCORPORATION CLASSIFICATION CODE NUMBER NUMBER
- ------------------------------------- ------------- -------------------------- ---------------
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Medaphis Physician Services Corporation............ Georgia 7374 58-1953146
Gottlieb's Financial Services, Inc. ............... Georgia 7374 58-2062951
Medical Management Sciences, Inc. ................. Maryland 7374 52-1068115
Medaphis Services Corporation...................... Georgia 7374 58-1996009
Medaphis Healthcare Information Technology
Company.......................................... Georgia 7371 58-2195433
Automation Atwork.................................. California 7371 94-2895826
Consort Technologies, Inc. ........................ Georgia 7371 58-1769437
Health Data Sciences Corporation................... Delaware 7371 95-3846477
BSG Corporation.................................... Delaware 7373 51-0333775
AssetCare, Inc. ................................... Georgia 7322 58-1893956
National Healthcare Technologies, Inc. ............ Indiana 7374 35-1865406
BSG Alliance/IT, Inc. ............................. Delaware 7373 51-0333999
BSG Government Solutions, Inc. .................... Maryland 7373 52-1726810
</TABLE>
* Address and telephone number of principal executive offices are the same as
those of Medaphis Corporation.
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] __________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
THE REGISTRANTS HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Each of Medaphis Corporation's, Health Data Sciences Corporation's and BSG
Alliance/IT, Inc.'s bylaws provide that each person who was or is made a party
to, is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director, officer, employee or agent of
either Medaphis Corporation, Health Data Sciences Corporation, or BSG
Alliance/IT(or is or was serving at the request of either Medaphis Corporation,
Health Data Sciences Corporation, or BSG Alliance/IT as a director, officer,
employee or agent of another entity), will be indemnified and held harmless by
Medaphis Corporation, Health Data Science Corporation or BSG Alliance/IT, Inc.,
as the case may be, to the fullest extent permitted by the Delaware General
Corporation Law as it currently exists or is later amended. BSG Corporation's
bylaws provide that directors and officers will be indemnified to the fullest
extent not prohibited by law.
Under Section 145 of the Delaware General Corporation Law, a corporation
may indemnify a director, officer, employee or agent of the corporation (or
other entity if such person is serving in such capacity at the corporation's
request) against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. In the case of an action brought by or in the right of a corporation,
the corporation may indemnify a director, officer, employee or agent of the
corporation (or other entity if such person is serving in such capacity at the
corporation's request) against expenses (including attorneys' fees) actually and
reasonably incurred by him if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless a court determines that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnification for such expense as
the court shall deem proper. Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation.
Each of Medaphis Corporation's, Health Data Sciences Corporation's, BSG
Corporation's and BSG Alliance/IT, Inc.'s (collectively, the "Delaware
Corporations") certificate of incorporation provides that a director of any of
the Delaware Corporations shall not be personally liable to such Delaware
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to such Delaware Corporation or its stockholders, (ii) for any
acts or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law or (iv) for any transaction in which the director derived an
improper personal benefit.
Medaphis Corporation maintains directors and officers liability insurance
coverage. Such policies have a deductible of $150,000, and an annual per
occurrence and aggregate cap on coverage of $50 million.
The foregoing summary is qualified in its entirety by reference to the
complete text of the statute, the certificates of incorporation and bylaws
referred to above.
The Maryland General Corporation Law (the "MGCL") permits a Maryland
corporation to include in its charter a provision limiting the liability of its
directors and officers to the corporation and its stockholders for money damages
except for liability resulting from (a) actual receipt of an improper benefit or
profit in money, property or services or (b) active and deliberate dishonesty
established by a final judgment as being material to the cause of action. The
charter of BSG Government Solutions, Inc. ("BSG") and the by-laws of
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Medical Management Sciences, Inc. (together with BSG, the "Maryland
Corporations") contain a provision which eliminates liabilities for the payment
of money damages to the maximum extent permitted by Maryland law.
The BSG by-laws authorize it, to the maximum extent permitted by Maryland
law, to obligate itself to indemnify and to pay or reimburse reasonable expenses
in advance of final disposition of a proceeding to (a) any present or former
director or officer or (b) any individual who, while a director of BSG and at
the request of BSG, serves or has served another corporation, real estate
investment trust, partnership, joint venture, trust, employee benefit plan or
any other enterprise as a director, officer, partner or trustee of such
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or other enterprise from and against any claim or
liability to which such person may become subject or which such person may incur
by reason of BSG status. The bylaws of BSG obligate it, to the maximum extent
permitted by Maryland law, to indemnify and to pay or reimburse expenses in
advance of final disposition.
The MGCL requires a corporation (unless its charter provides otherwise,
which neither of the Maryland Corporations' charters do) to indemnify a director
or officer who has been successful, on the merits or otherwise, in the defense
of any proceeding to which he is made a party by reason of his service in that
capacity. The MGCL permits a corporation to indemnify its present and former
directors and officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in connection with
any proceeding to which they may be made a party by reason of their service in
those or other capacities unless it is established that (a) the act or omission
of the director or officer was material to the matter giving rise to the
proceeding and (i) was committed in bad faith or (ii) was the result of active
and deliberate dishonesty, (b) the director or officer actually received an
improper personal benefit in money, property or services or (c) in the case of
any criminal proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful. However, under the MGCL, a Maryland
corporation may not indemnify for an adverse judgment in a suit by or in the
right of the corporation or for a judgment of liability on the basis that
personal benefit was improperly received, unless in either case a court orders
indemnification and then only for expenses. In addition, the MGCL permits a
corporation to advance reasonable expenses to a director or officer upon the
corporation's receipt of (a) a written affirmation by the director or officer of
his good faith belief that he has met the standard of conduct necessary for
indemnification by the corporation and (b) a written undertaking by or on his
behalf to repay the amount paid or reimbursed by the corporation if it shall
ultimately be determined that the standard of conduct was not met.
The foregoing statements are subject to the detailed provisions of the MGCL
and the Maryland Companies' charters and by-laws.
Section 317 of the California General Corporations Law (the "CGCL")
authorizes a court to award, or a corporation's board of directors to grant,
indemnity to directors and officers who are parties or are threatened to be made
parties to any proceeding (with certain exceptions) by reason of the fact that
the person is or was an agent of the corporation, against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with the proceeding if that person acted in good faith and in a
manner the person reasonably believed to be in the best interests of the
corporation. Section 204 of the CGCL provides that this limitation on liability
has no effect on a director's liability (i) for acts or omissions that involve
intentional misconduct or a knowing and culpable violation of law, (ii) for acts
or omissions that a director believes to be contrary to the best interests of
the corporation or its shareholders or that involve the absence of good faith on
the part of the director, (iii) for any transaction from which a director
derived an improper personal benefit, (iv) for acts or omissions that show a
reckless disregard for the director's duty to the corporation or its
shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing a director's duties, of a risk
of a serious injury to the corporation or its shareholders, (v) for acts or
omissions that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the corporation or its shareholders, (vi)
under Section 310 of the CGCL (concerning contracts or transactions between the
corporation and a director) or (vii) under Section 316 of the CGCL (directors'
liability for improper dividends, loans and guarantees). Section 317 does not
extend to acts or omissions of a director in his capacity as an officer.
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Further, Section 317 has no effect on claims arising under federal or state
securities laws and does not affect the availability of injunctions and other
equitable remedies available to the Company's shareholders for any violation of
a director's fiduciary duty to the Company or its shareholders. Although the
validity and scope of the legislation underlying Section 317 have not yet been
interpreted to any significant extent by the California courts, Section 317 may
relieve directors of monetary liability to the Company for grossly negligent
conduct, including conduct in situations involving attempted takeovers of the
Company.
The bylaws of Automation Atwork obligate Automation Atwork to indemnify its
agents against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with such proceeding, subject to
certain exceptions in connection with an action by or in right of Automation
Atwork to procure a judgment in its favor, if such person acted in good faith
and in a manner reasonably believed to be in the best interests of the
corporation, and, in the case of a criminal proceeding had no reason to believe
the conduct of such person was unlawful; provided that the directors,
shareholders or the court in which such case was pending approved the
indemnification or, such agent was successful on the merits in a defense.
The foregoing summaries are necessarily subject to the complete text of the
statute, the articles and the bylaws of Automation Atwork and are qualified in
their entirety by reference thereto.
National Healthcare Technologies, Inc. is empowered by Chapter 37 of the
Indiana Business Corporation Law (the "IBCL"), subject to the procedures and
limitations therein, to indemnify any person against expenses (including counsel
fees) and the obligation to pay a judgment, settlement, penalty, fine or
reasonable expenses incurred with respect to a threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal, in which such person is made a
party by reason of such person's being or having been a director, officer,
employee or agent of National Healthcare Technologies, Inc. The statute provides
that indemnification pursuant to its provisions is not exclusive of other rights
of indemnification to which a person may be entitled under a corporation's
articles of incorporation or bylaws, vote of directors or stockholders, or
otherwise.
Article VII of National Healthcare Technologies, Inc.'s articles of
incorporation allows National Healthcare Technologies, Inc. to indemnify past or
present directors in connection with any liability arising by reason of such
person's status as a past or present director of National Healthcare
Technologies, Inc. if such person is determined to have met the standard of
conduct specified in Chapter 37 of the IBCL.
The foregoing statements are subject to the detailed provisions of the IBCL
and National Healthcare Technologies, Inc.'s articles of incorporation.
The Georgia Business Corporation Code (the "GBCC") permits a corporation to
eliminate or limit the personal liability of a director to the corporation or
its shareholders for monetary damages for breach of duty of care or other duty
as a director, provided that no provision shall eliminate or limit the liability
of a director: (A) for an appropriation, in violation of his duties, of any
business opportunity of the corporation; (B) for acts or omissions which involve
intentional misconduct or a knowing violation of law; (C) for unlawful corporate
distributions; or (D) for any transaction from which the director received an
improper personal benefit. This provision pertains only to breaches of duty by
directors in their capacity as directors (and not in any other corporate
capacity, such as officers) and limits liability only for breaches of fiduciary
duties under Georgia corporate law (and not for violation of other laws, such as
the federal securities laws). Gottlieb Financial Services, Inc.'s, Medaphis
Healthcare Information Technology Company's, Medaphis Physician Services
Corporation's and Medical Services Corporation's articles of incorporation
exonerate such corporation's directors from monetary liability to the extent
permitted by this statutory provision.
The bylaws of AssetCare, Inc., ("AssetCare") provide that AssetCare shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (including any action by or in
the right of AssetCare), by reason of the fact that such person is or was a
director or officer of AssetCare, or is or was serving at the request of Asset
Care as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including reasonable
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
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suit or proceeding, if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of
AssetCare (and with respect to any criminal action or proceeding, if such person
had no reasonable cause to believe such person's conduct was unlawful), to the
maximum extent permitted by, and in the manner provided by, the GBCC.
Each of the bylaws of Gottlieb Financial Services, Inc., Medaphis
Healthcare Information Technology Company, Medaphis Physician Services
Corporation and Medaphis Services Corporation provide that each person who is or
was a director or officer of such corporation, and each person who is or was a
director or officer of such corporation who at the request of such corporation
is serving or has served as an officer, director, partner, joint venturer or
trustee of another corporation, partnership, joint venture, trust or other
enterprise shall be indemnified by such corporation against those expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
which are allowed to be paid or reimbursed by the corporation under the laws of
the State of Georgia and which are actually and reasonably incurred in
connection with any action, suit, or proceeding, pending or threatened, whether
civil, criminal, administrative or investigative, in which such person may be
involved by reason of his being or having been a director or officer of such
corporation or of such other enterprises. Such indemnification shall be made
only in accordance with the laws of the State of Georgia and subject to the
conditions prescribed therein. In any instance where the laws of the State of
Georgia permit indemnification to be provided to persons who are or have been an
officer or director of the corporation or who are or have been an officer,
director, partner, joint venturer or trustee of any such other enterprise only
on a determination that certain specified standards of conduct have been met,
upon application for indemnification by any such person the corporation shall
promptly cause such determination to be made by the shareholders of such
corporation, but shares owned by or voted under the control of directors who are
at the time parties to the proceeding may not be voted on the determination.
The foregoing summary is qualified in its entirety by reference to the
complete text of the GBCC, the certificates of incorporation and bylaws referred
to above.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
a. Exhibits
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EXHIBIT
NO. DOCUMENT
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3.1 -- Amended and Restated Certificate of Incorporation of
Registrant (incorporated by reference to Exhibit 3.1 to
Registration Statement on Form S-1, File No. 33-42216).
3.2 -- Certificate of Amendment of Certificate of Incorporation of
Registrant (incorporated by reference to Exhibit 3 to
Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1993).
3.3 -- Certificate of Amendment of Certificate of Incorporation of
Registrant (incorporated by reference to Exhibit 3.3 to
Registration Statement on Form 8-A/A, filed on March 28,
1995).
3.4 -- Certificate of Amendment of Amended and Restated Certificate
of Incorporation of Registrant (incorporated by reference to
Exhibit 4.4 to Registration Statement on Form S-8,
Registration No. 333-03213).
3.5 -- Certificate of Amendment of Amended and Restated Certificate
of Incorporation of Registrant (incorporated by reference to
Exhibit 3.5 to Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1997).
3.6 -- Amended and Restated By-laws of Registrant (incorporated by
reference to Exhibit 3.6 to Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 1997).
3.7 -- Articles of Incorporation of Medaphis Physician Services
Corporation.
3.8 -- By-laws of Medaphis Physician Services Corporation.
3.9 -- Articles of Incorporation of Gottlieb's Financial Services,
Inc.
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EXHIBIT
NO. DOCUMENT
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3.10 -- By-laws of Gottlieb's Financial Services, Inc.
3.11 -- Articles of Incorporation of Medical Management Sciences,
Inc.
3.12 -- By-laws of Medical Management Sciences, Inc.**
3.13 -- Articles of Incorporation of Medaphis Services Corporation.
3.14 -- By-laws of Medaphis Services Corporation.
3.15 -- Articles of Incorporation of Medaphis Healthcare Information
Technology Company.
3.16 -- By-laws of Medaphis Healthcare Information Technology
Company.
3.17 -- Articles of Incorporation of Automation Atwork.
3.18 -- By-laws of Automation Atwork.
3.19 -- Articles of Incorporation of Consort Technologies, Inc.
3.20 -- By-laws of Consort Technologies, Inc.
3.21 -- Certificate of Incorporation of Health Data Sciences
Corporation.
3.22 -- By-laws of Health Data Sciences Corporation.
3.23 -- Certificate of Incorporation of BSG Corporation.
3.24 -- By-laws of BSG Corporation.
3.25 -- Articles of Incorporation of AssetCare, Inc.
3.26 -- By-laws of AssetCare, Inc.
3.27 -- Articles of Incorporation of National Healthcare
Technologies, Inc.
3.28 -- By-laws of National Healthcare Technologies, Inc.
3.29 -- Certificate of Incorporation of BSG Alliance/IT, Inc.
3.30 -- By-laws of BSG Alliance/IT, Inc.
3.31 -- Articles of Incorporation of BSG Government Solutions, Inc.
3.32 -- By-laws of BSG Government Solutions, Inc.
4.1 -- Specimen Common Stock Certificate (incorporated by reference
to Exhibit 4.1 to Annual Report on Form 10-K for the year
ended December 31, 1995, File No. 000-19480 (the "1995 Form
10-K").
4.2 -- Form of Option Agreement relating to Registrant's Stock
Option Plan (incorporated by reference to Exhibit 4.2 to
Registration Statement on Form S-1, File No. 33-42216).
4.3 -- Form of Option Agreement relating to Registrant's Executive
Performance Plan (incorporated by reference to Exhibit 4.3
to Registration Statement on Form S-1, File No. 33-42216).
4.4 -- Form of Option Agreement relating to Registrant's Stock
Option Plan for Employees of Acquired Companies
(incorporated by reference to Exhibit 4.4 to Registration
Statement on Form S-3, File No. 33-71552).
4.5 -- Form of Option Agreement relating to Registrant's Restricted
Stock Plan (incorporated by reference to Exhibit 4.5 to the
1995 Form 10-K).
4.6 -- Form of Option Agreement relating to Registrant's
Non-Employee Director Stock Option Plan (incorporated by
reference to Exhibit 4.6 to the 1995 Form 10-K).
4.7 -- Registration Rights Agreement, dated as of March 17, 1995,
by and among Registrant, David Michael Warner and John P.
Holton (incorporated by reference to Exhibit 4.10 to Annual
Report on Form 10-K for the year ended December 31, 1994,
File No. 000-19480 (the "1994 Form 10-K")).
4.8 -- Form of Common Stock Purchase Warrant issued to Fredrica
Morf and Ursula Nelson (incorporated by reference to Exhibit
4.19 to the 1994 Form 10-K).
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EXHIBIT
NO. DOCUMENT
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4.9 -- Form of Warrant issued to one or more lenders pursuant to
Registrant's Second Amended and Restated Credit Agreement,
dated as of February 4, 1997 (incorporated by reference to
Exhibit 4.1 to Current Report on Form 8-K filed on February
18, 1997).
4.10 -- Form of Registration Rights Agreement among Registrant,
Mahmoud R. Ghavi, Barry G. Wahlig, William L. McCready, and
Kimberly D. Elkins (incorporated by reference to Exhibit 4.1
to Current Report on Form 8-K filed on December 5, 1995).
4.11 -- Form of Registration Rights Agreement among Registrant,
William J. DeZonia, Lori T. Caudill, Carol T. Shumaker,
Alyson T. Stinson, James F. Thacker, James F. Thacker
Retained Annuity Trust and Paulanne H. Thacker Retained
Annuity Trust (incorporated by reference to Exhibit 4.1 to
Current Report on Form 8-K filed on January 19, 1996).
4.12 -- Form of Registration Rights Agreement among Registrant,
Raymond J. Noorda and Steven G. Papermaster (incorporated by
reference to Exhibit 4.17 to Registration Statement on Form
S-4, File No. 33-2506).
4.13 -- Form of Registration Rights Agreement among Registrant,
Michael Clark, Andrei Mitran, and Steven Theidke
(incorporated by reference to Exhibit 4.18 to Registration
Statement on Form S-4, File No. 33-2506).
4.14 -- Notice of Redemption for 6.5% Convertible Subordinated
Debentures Due 2000 (incorporated by reference to Exhibit
4.21 to the 1995 Form 10-K).
4.15 -- Registration Rights Agreement dated as of February 20, 1998
among the Registrant, the Subsidiary Guarantors, and
Donaldson Lufkin & Jenrette Securities Corporation.*
4.16 -- Credit Agreement dated as of February 13, 1998 among the
Registrant, as the Borrower, Various Financial Institutions
From Time to Time Parties Thereto, as the Lenders, DLJ
Capital Funding, Inc. as Syndication Agent for the Lenders,
and Wachovia Bank N.A. as Administrative Agent for the
Lenders, (incorporated by reference to Exhibit 10.1 to
Current Report on Form 8-K filed on March 2, 1998)
(including form of note).
4.17 -- Subsidiary Guaranty dated February 20, 1998, among the
domestic subsidiaries of the Registrant and Wachovia Bank,
N.A., as Administrative Agent (incorporated by reference to
Exhibit 10.2 to Current Report on Form 8-K filed on March 2,
1998).
4.18 -- Indenture dated as of February 20, 1998 among the Registrant
as Issuer, the Subsidiary Guarantors named in the Indenture
and State Street Bank and Trust Company, as trustee
(incorporated by reference to Exhibit 10.3 to Current Report
on Form 8-K Filed on March 2, 1998) (including form of
note).
4.19 -- Form of Option Agreement relating to Registrant's
Non-Qualified Stock Option Plan for Non-Executive Employees
(incorporated by reference to Exhibit 4.17 to Annual Report
on Form 10-K for the fiscal year ended December 31, 1996,
File No. 000-19480).
5.1 -- Opinion of Randolph L. M. Hutto.
5.2 -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
12.1 -- Statement re: Computation of Ratios.*
23.1 -- Consent of Price Waterhouse.*
23.2 -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.2).
24.1 -- Powers of Attorney (included in signature page to
registration statement).*
25.1 -- Statement of Eligibility of Trustee on Form T-1.*
</TABLE>
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EXHIBIT
NO. DOCUMENT
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99.1 -- Form of Letter of Transmittal.*
99.2 -- Form of Notice of Guaranteed Delivery.*
99.3 -- Form of Tender Instruction.*
</TABLE>
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* Previously filed.
** To be filed by amendment.
ITEM 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
The registrant undertakes that every prospectus (i) that is filed pursuant
to the immediately preceding paragraph, or (ii) that purports to meet the
requirements of section 10(a)(3) of the Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-7
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Atlanta,
State of Georgia, on March 24, 1998.
MEDAPHIS CORPORATION
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman and Chief Executive Officer
MEDAPHIS PHYSICIAN SERVICES
CORPORATION
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman and Chief Executive Officer
GOTTLIEB'S FINANCIAL SERVICES, INC.
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman and Chief Executive Officer
MEDICAL MANAGEMENT SCIENCES, INC.
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman and Chief Executive Officer
MEDAPHIS SERVICES CORPORATION
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman and Chief Executive Officer
MEDAPHIS HEALTHCARE INFORMATION
TECHNOLOGY COMPANY
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman and Chief Executive Officer
AUTOMATION ATWORK
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman
II-8
<PAGE> 10
CONSORT TECHNOLOGIES, INC.
By: /s/ DAVID E. MCDOWELL
----------------------------------
David E. McDowell
Chairman
HEALTH DATA SCIENCES CORPORATION
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman
BSG CORPORATION
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman and Chief Executive Officer
ASSETCARE, INC.
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman and Chief Executive Officer
NATIONAL HEALTHCARE
TECHNOLOGIES, INC.
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman and Chief Executive Officer
BSG ALLIANCE/IT, INC.
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
Chairman and Chief Executive Officer
BSG GOVERNMENT SOLUTIONS, INC.
By: /s/ DAVID E. MCDOWELL
------------------------------------
David E. McDowell
President
II-9
<PAGE> 11
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities indicated below on March 24, 1998.
MEDAPHIS CORPORATION
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ ALLEN W. RITCHIE* Executive Vice President and Chief Financial
- ----------------------------------------------------- Officer
Allen W. Ritchie
/s/ MARK P. COLONNESE* Vice President, Corporate Controller and
- ----------------------------------------------------- Principal Accounting Officer
Mark P. Colonnese
/s/ ROBERT C. BELLAS, JR.* Director
- -----------------------------------------------------
Robert C. Bellas, Jr.
/s/ JOHN C. POPE* Director
- -----------------------------------------------------
John C. Pope
/s/ DAVID R. HOLBROOKE, M.D.* Director
- -----------------------------------------------------
David R. Holbrooke, M.D.
/s/ DENNIS A. PRYOR* Director
- -----------------------------------------------------
Dennis A. Pryor
/s/ C. CHRISTOPHER TROWER* Director
- -----------------------------------------------------
C. Christopher Trower
</TABLE>
MEDAPHIS PHYSICIAN SERVICES CORPORATION
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ ALLEN W. RITCHIE* Executive Vice President, Chief Financial
- ----------------------------------------------------- Officer and Principal Accounting Officer
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
GOTTLIEB'S FINANCIAL SERVICES, INC.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ ALLEN W. RITCHIE* Executive Vice President, Chief Financial
- ----------------------------------------------------- Officer and Principal Accounting Officer
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
II-10
<PAGE> 12
MEDICAL MANAGEMENT SCIENCES, INC.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ ALLEN W. RITCHIE* Executive Vice President, Chief Financial
- ----------------------------------------------------- Officer and Principal Accounting Officer
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
MEDAPHIS SERVICES CORPORATION
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ ALLEN W. RITCHIE* Executive Vice President, Chief Financial
- ----------------------------------------------------- Officer and Principal Accounting Officer
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
MEDAPHIS HEALTHCARE INFORMATION TECHNOLOGY COMPANY
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ CARL D. BLANDINO* Chief Financial Officer
- -----------------------------------------------------
Carl D. Blandino
/s/ ALLEN W. RITCHIE* Principal Accounting Officer
- -----------------------------------------------------
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
AUTOMATION ATWORK
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ CARL D. BLANDINO* Chief Financial Officer
- -----------------------------------------------------
Carl D. Blandino
/s/ ALLEN W. RITCHIE* Principal Accounting Officer
- -----------------------------------------------------
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
II-11
<PAGE> 13
CONSORT TECHNOLOGIES, INC.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive
- -----------------------------------------------------
David E. McDowell
/s/ CARL D. BLANDINO* Chief Financial Officer
- -----------------------------------------------------
Carl D. Blandino
/s/ ALLEN W. RITCHIE* Principal Accounting Officer
- -----------------------------------------------------
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
HEALTH DATA SCIENCES CORPORATION
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ KAREN C. MILLER* Chief Financial Officer
- -----------------------------------------------------
Karen C. Miller
/s/ ALLEN W. RITCHIE* Principal Accounting Officer
- -----------------------------------------------------
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
BSG CORPORATION
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ CARL D. BLANDINO* Chief Financial Officer
- -----------------------------------------------------
Carl D. Blandino
/s/ ALLEN W. RITCHIE* Principal Accounting Officer
- -----------------------------------------------------
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
II-12
<PAGE> 14
ASSETCARE, INC.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ ALLEN W. RITCHIE* Executive Vice President, Chief Financial
- ----------------------------------------------------- Officer and Principal Accounting Officer
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
NATIONAL HEALTHCARE TECHNOLOGIES, INC.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ ALLEN W. RITCHIE* Executive Vice President, Chief Financial
- ----------------------------------------------------- Officer and Principal Accounting Officer
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
BSG ALLIANCE/IT, INC.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman, Chief Executive Officer and Director
- -----------------------------------------------------
David E. McDowell
/s/ ALLEN W. RITCHIE* Executive Vice President, Chief Financial
- ----------------------------------------------------- Officer and Principal Accounting Officer
Allen W. Ritchie
/s/ RANDOLPH L. M. HUTTO* Director
- -----------------------------------------------------
Randolph L. M. Hutto
</TABLE>
II-13
<PAGE> 15
BSG GOVERNMENT SOLUTIONS, INC.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DAVID E. MCDOWELL Chairman and Chief Executive Officer
- -----------------------------------------------------
David E. McDowell
/s/ CARL D. BLANDINO* Chief Financial Officer
- -----------------------------------------------------
Carl D. Blandino
/s/ ALLEN W. RITCHIE* Principal Accounting Officer
- -----------------------------------------------------
Allen W. Ritchie
/s/ LEWIS E. LARSON* Director
- -----------------------------------------------------
Lewis E. Larson
/s/ JAMES A. LONG* Director
- -----------------------------------------------------
James A. Long
*By /s/ DAVID E. MCDOWELL
------------------------------------------------
David E. McDowell
Attorney-in-fact
</TABLE>
II-14
<PAGE> 1
EXHIBIT 3.7
CERTIFICATE OF MERGER OF
ADVACARE, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. ADVACARE, INC.,a Delaware corporation ("ADVACARE"), is merging with
and into MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation ("MPSC")
(the "Merger"), and MPSC will be the surviving corporation following the Merger,
using the name "Medaphis Physician Services Corporation".
2. The Articles of Incorporation of MPSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation.
3. The Agreement and Plan of Merger pursuant to which the Merger is
being consummated has been approved, adopted, certified, executed and
acknowledged by MPSC and ADVACARE in accordance with Section 14-2-1101 and -1103
of the Code and Section 252 of the Delaware General Corporation Laws (the
"Delaware Code"), and is on file at the principal place of business of the
surviving corporation. The address of the principal place of business of the
surviving corporation is Medaphis Physician Services Corporation, 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. MPSC hereby agrees that it may be served with process in the State
of Delaware in any proceeding for enforcement of any obligation of ADVACARE, as
well as for enforcement of any obligation of MPSC arising from the Merger,
including any suit or other proceeding to enforce the right of any shareholder
of ADVACARE as and when determined in appraisal proceeding pursuant to the
provisions of Section 262 of the Delaware Code; hereby irrevocably appoints the
Secretary of State of the State of Delaware as its agent to accept service of
process in any such suit or other proceedings; and hereby specifies the
following address without the State of Delaware to which a copy of such process
shall be mailed by the Secretary of State of the State of Delaware:
MEDAPHIS PHYSICIAN SERVICES CORPORATION
2700 Cumberland Parkway, Suite 300
Atlanta, Georgia 30339
6. The effective date of the Merger is December 31, 1995.
<PAGE> 2
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to
execute and deliver this Certificate of Merger as of the 14th day of December
1995.
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ GENE KACZMARSKI
-----------------------------
Gene P. Kaczmarski, President
[CORPORATE SEAL]
ATTEST:
By: /s/ PEGGY B. SHERMAN
-------------------------------------
Peggy B. Sherman, Assistant Secretary
<PAGE> 3
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
ADVACARE, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of forty dollars ($40.00) have been mailed or delivered to an
authorized newspaper, as required by O.C.G.A., Section 14-2-1105.1(b).
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ PEGGY B. SHERMAN
-------------------------------------
Peggy B. Sherman, Assistant Secretary
<PAGE> 4
SECRETARY OF STATE
BUSINESS INFORMATION AND SERVICES
SUITE 315, WEST TOWER DOCKET NUMBER : 953620720
2 MARTIN LUTHER KING JR. DR. CONTROL NUMBER : 9000830
ATLANTA, GEORGIA 30334-1530 EFFECTIVE DATE : 12/31/1995
REFERENCE : 0069
PRINT DATE : 12/28/1995
FORM NUMBER : 411
PRENTICE HALL LEGAL & FINANCIAL SERVICES
ELLEN MELNICK
66 LUCKIE STREET
ATLANTA, GEORGIA 30303
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Non-Surviving Entity:
MEDICAL MANAGEMENT OF NEW ENGLAND, INC., a Massachusetts corporation
/s/ Max Cleland
------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL]
CORPORATIONS 656-2817-CORPORATIONS HOT-LINE 404-656-2222 (Outside Metro-Atlanta)
<PAGE> 5
CERTIFICATE OF MERGER OF
MEDICAL MANAGEMENT OF NEW ENGLAND, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. MEDICAL MANAGEMENT OF NEW ENGLAND, INC., a Massachusetts corporation
("MMNE"), is merging with and into Medaphis Physician Services Corporation, a
Georgia corporation (MPSC") (the "Merger"), and MPSC will be the surviving
corporation following the Merger, using the name "Medaphis Physician Services
Corporation".
2. The Articles of Incorporation of MPSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation.
3. The executed Agreement and Plan of Merger pursuant to which the
Merger is being consummated is on file at the principal place of business of
the surviving corporation. The address of the principal place of business of
the surviving corporation is Medaphis Physician Services Corporation, 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Agreement and Plan of Merger did not require approval by the
shareholders of MPSC or MMNE pursuant to Section 14-2-1104 of the Code and
Section 82 of the Massachusetts Business Corporation Laws.
6. The effective date of the Merger is December 31, 1995.
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 21st day of December 1995.
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By:/s/ Gene Kaczmarski
------------------------------------
Gene P. Kaczmarski, President
<PAGE> 6
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
MEDICAL MANAGEMENT OF NEW ENGLAND, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of forty dollars ($40.00) have been mailed or delivered to an
authorized newspaper, as required by O.C.G.A., Section 14-2-1105.1(b).
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Peggy Sherman
-------------------------------------
Peggy B. Sherman, Assistant Secretary
<PAGE> 7
SECRETARY OF STATE
BUSINESS INFORMATION AND SERVICES
SUITE 315, WEST TOWER
2 MARTIN LUTHER KING JR. DR.
ATLANTA, GEORGIA 30334-1530 DOCKET NUMBER : 953620709
CONTROL NUMBER: 9000830
EFFECTIVE DATE: 12/31/1995
REFERENCE : 0069
PRINT DATE : 12/28/1995
FORM NUMBER : 411
PRENTICE HALL LEGAL & FINANCIAL SERVICES
ELLEN MELNICK
66 LUCKIE STREET
ATLANTA, GEORGIA 30303
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Non-Surviving Entity:
MEDICAL OFFICE CONSULTANTS, INC., a California corporation
/s/ Max Cleland
-------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL]
CORPORATIONS 656-2817 CORPORATIONS HOT-LINE 404-656-2222 (Outside Metro-Atlanta)
<PAGE> 8
CERTIFICATE OF MERGER OF
MEDICAL OFFICE CONSULTANTS INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. Medical Office Consultants, Inc., a California corporation
("MOC"), is merging with and into Medaphis Physician Services Corporation, a
Georgia corporation (MPSC") (the "Merger"), and MPSC will be the surviving
corporation following the Merger, using the name "Medaphis Physician Services
Corporation".
2. The Articles of Incorporation of MPSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation.
3. The executed Agreement and Plan of Merger pursuant to which the
Merger is being consummated is on file at the principal place of business of
the surviving corporation. The address of the principal place of business of
the surviving corporation is Medaphis Physician Services Corporation, 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Agreement and Plan of Merger did not require approval by the
shareholders of MPSC or MOC pursuant to Section 14-2-1104 of the Code.
6. The effective date of the Merger is December 31, 1995.
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 21st day of December 1995.
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By:/s/ Gene Kaczmarski
------------------------------------
Gene P. Kaczmarski, President
<PAGE> 9
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
MEDICAL OFFICE CONSULTANTS, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of forty dollars ($40.00) have been mailed or delivered to an
authorized newspaper, as required by O.C.G.A., Section 14-2-1105(b).
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Peggy Sherman
-------------------------------------
Peggy B. Sherman, Assistant Secretary
<PAGE> 10
SECRETARY OF STATE
BUSINESS INFORMATION AND SERVICES
SUITE 315, WEST TOWER
MARTIN LUTHER KING JR. DR.
ATLANTA, GEORGIA 30334-1530
DOCKET NUMBER : 953620696
CONTROL NUMBER: 9000830
EFFECTIVE DATE: 12/31/1995
REFERENCE : 0069
PRINT DATE : 12/28/1995
FORM NUMBER : 411
PRENTICE HALL LEGAL & FINANCIAL SERVICES
ELLEN MELNICK
66 LUCKIE STREET
ATLANTA, GEORGIA 30303
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Non-Surviving Entity:
BILLING AND PROFESSIONAL SERVICES, INC., a Georgia corporation
[SEAL] /s/ Max Cleland
------------------
MAX CLELAND
SECRETARY OF STATE
<PAGE> 11
CERTIFICATE OF MERGER OF
BILLING AND PROFESSIONAL SERVICES, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. Billing and Professional Services, Inc., a Georgia corporation
("BPS"), is merging with and into Medaphis Physician Services Corporation, a
Georgia corporation ("MPSC") (the "Merger"), and MPSC will be the surviving
corporation following the Merger, using the name "Medaphis Physician Services
Corporation".
2. The Articles of Incorporation of MPSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation.
3. The executed Agreement and Plan of Merger pursuant to which the
Merger is being consummated is on file at the principal place of business of
the surviving corporation. The address of the principal place of business of
the surviving corporation is Medaphis Physician Services Corporation, 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Agreement and Plan of Merger did not require approval by the
shareholders of MPSC or BPS pursuant to Section 14-2-1104 of the Code.
6. The effective date of the Merger is December 31, 1995.
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 21st day of December 1995.
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Gene P. Kaczmarski
-----------------------------------
Gene P. Kaczmarski, President
<PAGE> 12
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
BILLING AND PROFESSIONAL SERVICES, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of forty dollars ($40.00) have been mailed or delivered to an
authorized newspaper, as required by O.C.G.A., Section 14-2-1105.1(b).
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Peggy B. Sherman
-------------------------------------
Peggy B. Sherman, Assistant Secretary
<PAGE> 13
Secretary of State DOCKET NUMBER : 953620709
Business Information and Services CONTROL NUMBER: 9000830
Suite 315, West Tower EFFECTIVE DATE: 12/31/1995
2 Martin Luther King Jr. Dr. REFERENCE : 0069
Atlanta, Georgia 30334-1530 PRINT DATE : 12/28/1995
FORM NUMBER : 411
PRENTICE HALL LEGAL & FINANCIAL SERVICES
ELLEN MELNICK
66 LUCKIE STREET
ATLANTA, GEORGIA 30303
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Non-Surviving Entity:
MEDICAL OFFICE CONSULTANTS, INC., a California corporation
/s/ Max Cleland
----------------------------------
[SEAL] MAX CLELAND
SECRETARY OF STATE
<PAGE> 14
CERTIFICATE OF MERGER OF
MEDICAL OFFICE CONSULTANTS, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. Medical Office Consultants, Inc., a California corporation ("MOC"), is
merging with and into Medaphis Physician Services Corporation, a Georgia
corporation ("MPSC") (the "Merger"), and MPSC will be the surviving corporation
following the Merger, using the name "Medaphis Physician Services Corporation".
2. The Articles of Incorporation of MPSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation.
3. The executed Agreement and Plan of Merger pursuant to which the Merger
is being consummated is on file at the principal place of business of the
surviving corporation. The address of the principal place of business of the
surviving corporation is Medaphis Physician Services Corporation, 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Agreement and Plan of Merger did not require approval by the
shareholders of MPSC or MOC pursuant to Section 14-2-1104 of the Code.
6. The effective date of the Merger is December 31, 1995.
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 21st day of December 1995.
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Gene P. Kaczmarski
--------------------------------------
Gene P. Kaczmarski, President
<PAGE> 15
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
MEDICAL OFFICE CONSULTANTS, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of forty dollars ($40.00) have been mailed or delivered to an
authorized newspaper, as required by O.C.G.A., Section 14-2-1105.1(b).
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Peggy B. Sherman
-------------------------------------
Peggy B. Sherman, Assistant Secretary
<PAGE> 16
Secretary of State DOCKET NUMBER : 953620720
Business Information and Services CONTROL NUMBER : 9000830
Suite 315, West Tower EFFECTIVE DATE : 12/31/1995
2 Martin Luther King, Jr. Dr. REFERENCE : 0069
Atlanta, Georgia 30334-1530 PRINT DATE : 12/28/1995
FORM NUMBER : 411
PRENTICE HALL LEGAL & FINANCIAL SERVICES
ELLEN MELNICK
66 LUCKIE STREET
ATLANTA, GEORGIA 30303
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Non-Surviving Entity:
MEDICAL MANAGEMENT OF NEW ENGLAND, INC., a Massachusetts corporation
/s/ Max Cleland
[SEAL] --------------------------
MAX CLELAND
SECRETARY OF STATE
<PAGE> 17
CERTIFICATE OF MERGER OF
MEDICAL MANAGEMENT OF NEW ENGLAND, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. MEDICAL MANAGEMENT OF NEW ENGLAND, INC., a Massachusetts corporation
("MMNE"), is merging with and into Medaphis Physician Services Corporation, a
Georgia corporation ("MPSC")(the "Merger"), and MPSC will be the surviving
corporation following the Merger, using the name "Medaphis Physician Services
Corporation".
2. The Articles of Incorporation of MPSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation.
3. The executed Agreement and Plan of Merger pursuant to which the Merger
is being consummated is on file at the principal place of business of the
surviving corporation. The address of the principal place of business of the
surviving corporation is Medaphis Physician Services Corporation, 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Agreement and Plan of Merger did not require approval by the
shareholders of MPSC or MMNE pursuant to Section 14-2-1104 of the Code and
Section 82 of the Massachusetts Business Corporation Laws.
6. The effective date of the Merger is December 31, 1995.
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 21st day of December 1995.
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Gene P. Kaczmarski
-----------------------------------
Gene P. Kaczmarski, President
<PAGE> 18
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
MEDICAL MANAGEMENT OF NEW ENGLAND, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of forty dollars ($40.00) have been mailed or delivered to an
authorized newspaper, as required by O.C.G.A., Section 14-2-1105.1(b).
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Peggy B. Sherman
-------------------------------------
Peggy B. Sherman, Assistant Secretary
<PAGE> 19
Secretary of State DOCKET NUMBER : 953620754
Business Information and Services CONTROL NUMBER : 9000830
Suite 315, West Tower EFFECTIVE DATE : 12/31/1995
Martin Luther King Jr. Dr. REFERENCE : 0069
Atlanta, Georgia 30334-1530 PRINT DATE : 12/28/1995
FORM NUMBER : 411
PRENTICE HALL LEGAL & FINANCIAL SERVICES
ELLEN MELNICK
66 LUCKIE STREET
ATLANTA, GEORGIA 30303
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Non-Surviving Entity:
ADVACARE, INC., a Delaware corporation
/s/ Max Cleland
-------------------------------
MAX CLELAND
[SEAL] SECRETARY OF STATE
<PAGE> 20
CERTIFICATE OF MERGER OF
ADVACARE, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. ADVACARE, INC., a Delaware corporation ("ADVACARE"), is merging with
and into MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
("MPSC") (the "Merger"), and MPSC will be the surviving corporation following
the Merger, using the name "Medaphis Physician Services Corporation".
2. The Articles of Incorporation of MPSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation.
3. The Agreement and Plan of Merger pursuant to which the Merger is being
consummated has been approved, adopted, certified, executed and acknowledged by
MPSC and ADVACARE in accordance with Sections 14-2-1101 and -1103 of the Code
and Section 252 of the Delaware General Corporation Laws (the "Delaware Code"),
and is on file at the principal place of business of the surviving corporation.
The address of the principal place of business of the surviving corporation is
Medaphis Physician Services Corporation, 2700 Cumberland Parkway, Suite 300,
Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. MPSC hereby agrees that it may be served with process in the State of
Delaware in any proceeding for enforcement of any obligation of ADVACARE, as
well as for enforcement of any obligation of MPSC arising from the Merger,
including any suit or other proceeding to enforce the right of any shareholder
of ADVACARE as and when determined in appraisal proceeding pursuant to the
provisions of Section 262 of the Delaware Code; hereby irrevocably appoints the
Secretary of State of the State of Delaware as its agent to accept service of
process in any such suit or other proceedings; and hereby specifies the
following address without the State of Delaware to which a copy of such process
shall be mailed by the Secretary of State of the State of Delaware:
MEDAPHIS PHYSICIAN SERVICES CORPORATION
2700 Cumberland Parkway, Suite 300
Atlanta, Georgia 30339
6. The effective date of the Merger is December 31, 1995.
<PAGE> 21
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 14th day of December 1995.
MEDAPHIS PHYSICIAN SERVICES
CORPORATION
By: /s/ Gene P. Kaczmarski
---------------------------------
Gene P. Kaczmarski, President
[CORPORATE SEAL]
ATTEST:
By: /s/ Peggy B. Sherman
-------------------------------------
Peggy B. Sherman, Assistant Secretary
<PAGE> 22
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
ADVACARE, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of forty dollars ($40.00) have been mailed or delivered to an
authorized newspaper, as required by O.C.G.A., Section 14-2-1105.1(b).
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Peggy B. Sherman
-------------------------------------
Peggy B. Sherman, Assistant Secretary
<PAGE> 23
Secretary of State
Corporations Division DOCKET NUMBER : 951640622
Suite 315, West Tower CONTROL NUMBER: 9000830
2 Martin Luther King, Jr. Dr. EFFECTIVE DATE: 06/13/1995
Atlanta, Georgia 30334-1530 REFERENCE : 0069
PRINT DATE : 06/13/1995
FORM NUMBER : 411
PARANET CORPORATION SERVICES, INC.
KATHY SLAYMAN
3761 VENTURE DRIVE, STE 260
DULUTH, GEORGIA 30136
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Non-Surviving Entity:
MEDICAL MANAGEMENT, INC., an Alabama corporation
[SEAL]
/s/ Max Cleland
------------------------
MAX CLELAND
SECRETARY OF STATE
CORPORATIONS 656-2817-CORPORATIONS HOT-LINE 404-656-2222 (Outside Metro-Atlanta)
<PAGE> 24
CERTIFICATE OF MERGER
OF
MEDICAL MANAGEMENT, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. Medical Management, Inc., an Alabama corporation ("MMI"), is merging
with and into Medaphis Physician Services Corporation, a Georgia corporation
("MPSC") (the "Merger"), and MPSC will be the surviving Georgia corporation
following the Merger, using the name "Medaphis Physician Services Corporation."
2. The Articles of Incorporation of MPSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation until thereafter
duly amended in accordance with their terms and Code.
3. The executed Plan of Merger pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is Medaphis Physician Services Corporation, 2700 Cumberland Parkway,
Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Merger has been duly approved by the written consent of the sole
shareholder of MMI and by the written consent of the sole shareholder of MPSC.
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 9th day of June, 1995.
MEDAPHIS PHYSICIAN
SERVICES CORPORATION
By: /s/ Michael R. Cote
------------------------------
Michael R. Cote
Senior Vice President-
Finance and Administration
and Chief Financial Officer
<PAGE> 25
MEDAPHIS PHYSICIAN SERVICES CORPORATION
CERTIFICATE OF VERIFICATION OF
REQUEST FOR PUBLICATION
Pursuant to Section 14-2-1105.1(a) of the Georgia Business Corporation
Code, Medaphis Physician Services Corporation, a Georgia corporation, hereby
verifies that a request for publication of a notice of merger to merge Medical
Management, Inc. with and into Medaphis Physician Services Corporation and
payment therefor have been made, as required by Section 14-2-1105.1(b) of the
Georgia Business Corporation Code.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this 9th
day of June, 1995.
MEDAPHIS PHYSICIAN
SERVICES CORPORATION
By: /s/ Pamela S. Topper
-------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 26
Secretary of State DOCKET NUMBER : 951180711
Corporations Division CONTROL NUMBER: 9000830
Suite 315, West Tower EFFECTIVE DATE: 04/28/1995
2 Martin Luther King, Jr. Dr. REFERENCE : 0091
Atlanta, Georgia 30334-1530 PRINT DATE : 04/28/1995
FORM NUMBER : 411
MEDAPHIS CORPORATION
2700 CUMBERLAND PARKWAY
SUITE 300
ATLANTA, GA 30339
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, A GEORGIA CORPORATION
Nonsurviving Entity/Entities:
MEDICAL BILLING SERVICE, INC., A MICHIGAN CORPORATION
[SEAL] /s/ MAX CLELAND
----------------------------
MAX CLELAND
SECRETARY OF STATE
CORPORATIONS 656-2817-CORPORATIONS HOT-LINE 404-656-2222 (Outside Metro-Atlanta)
<PAGE> 27
CERTIFICATE OF MERGER
OF
MEDICAL BILLING SERVICE, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue
of the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. Medical Billing Service, Inc., a Michigan corporation ("MBS"), is
merging with and into Medaphis Physician Services Corporation, a Georgia
corporation ("MPSC") (the "Merger"), and MPSC will be the surviving Georgia
corporation following the Merger, using the name "Medaphis Physician Services
Corporation."
2. The Articles of Incorporation of MPSC (the "Articles") will
continue after the Merger as the Articles of the surviving corporation until
thereafter duly amended in accordance with their terms and Code.
3. The executed Plan of Merger pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is Medaphis Physician Services Corporation, 2700 Cumberland Parkway,
Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Merger has been duly approved by unanimous written consent of
the stockholders of MBS and by the written consent of the sole shareholder of
MPSC.
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to
execute and deliver this Certificate of Merger as of the 28th day of April,
1995.
MEDAPHIS PHYSICIAN
SERVICES CORPORATION
By: /s/ Michael R. Cote
-----------------------------
Michael R. Cote
Senior Vice President-Finance
and Administration and Chief
Financial Officer
<PAGE> 28
MEDAPHIS PHYSICIAN SERVICES CORPORATION
CERTIFICATE OF VERIFICATION OF
REQUEST FOR PUBLICATION
Pursuant to Section 14-2-1105.1(a) of the Georgia Business Corporation
Code, Medaphis Physician Services Corporation, a Georgia corporation, hereby
verifies that a request for publication of a notice of merger to merge Medical
Billing Service, Inc. with and into Medaphis Physician Services Corporation and
payment therefor have been made, as required by Section 14-2-1105.1(b) of the
Georgia Business Corporation Code.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
28th day of April, 1995.
MEDAPHIS PHYSICIAN
SERVICES CORPORATION
By: /s/ Pamela S. Topper
--------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 29
Secretary of State DOCKET NUMBER : 943630012
Business Services and Regulation CONTROL NUMBER: 9000830
Suite 315, West Tower EFFECTIVE DATE: 12/31/1994
2 Martin Luther King, Jr. Dr. REFERENCE : 0069
Atlanta, Georgia 30334-1530 PRINT DATE : 12/28/1994
FORM NUMBER : 411
PARANET CORPORATION SERVICES, INC.
DOUGLAS W. JUNKER
3761 VENTURE DRIVE, STE 260
DULUTH, GEORGIA 30136
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, INC., a Georgia corporation
Non Surviving Entity:
JOHN REX, INC., a California corporation
/s/ Max Cleland
------------------------------
MAX CLELAND
[SEAL] SECRETARY OF STATE
/s/ Verley J. Spivey
------------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOTLINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro Atlanta
<PAGE> 30
CERTIFICATE OF MERGER OF
JOHN REX, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION, INC.
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. John Rex, Inc., a California corporation ("JRI"), is merging with and
into Medaphis Physician Services Corporation, a Georgia corporation ("MPSC")
(the "Merger"), and MPSC will be the surviving corporation following the
Merger, using the name "Medaphis Physician Services Corporation".
2. The Articles of Incorporation of MPSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation.
3. The executed Agreement and Plan of Merger pursuant to which the Merger
is being consummated is on file at the principal place of business of the
surviving corporation. The address of the principal place of business of the
surviving corporation is Medaphis Physician Services Corporation, 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Agreement and Plan of Merger did not require approval by the
shareholders of MPSC or JRI pursuant to Section 14-2-1104 of the Code.
6. The effective date of the Merger is December 31, 1994.
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the day of December .
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/
-----------------------------------
Title: /s/
--------------------------------
<PAGE> 31
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
JOHN REX, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by O.C.G.A., Section: 14-2-1105.1(b).
Medaphis Physician Services Corporation
By: /s/ Pamela S. Topper
-----------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 32
Secretary of State CONTROL NUMBER : 9000830
Business Services And Regulation EFFECTIVE DATE : 09/30/1994
Suite 315, West Tower REFERENCE : 0045
2 Martin Luther King, Jr., Dr. PRINT DATE : 10/05/1994
Atlanta, Georgia 30334-1530 FORM NUMBER : 411
NANCY SLAUGHTER
MEDAPHIS CORPORATION
2700 CUMBERLAND PKWY., STE. 300
ATLANTA, GA 30339
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Georgia Law certifying that articles or a
certificate of merger and fees have been filed regarding the merger of the
below entities, effective as of the date shown above. Attached is a true and
correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Nonsurviving Entity/Entities:
MARMAC MANAGEMENT, INC., an Arizona corporation
/s/ Max Cleland
---------------------------
MAX CLELAND
SECRETARY OF STATE
/s/ Verley J. Spivey
---------------------------
[SEAL] VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOTLINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro Atlanta
<PAGE> 33
CERTIFICATE OF MERGER
OF
MARMAC MANAGEMENT, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. Marmac Management, Inc. an Arizona corporation ("Marmac"), is merging
with and into Medaphis Physician Services Corporation, a Georgia corporation
("MPSC") (the "Merger"), and MPSC will be the surviving Georgia corporation
following the Merger, using the name "Medaphis Physician Services Corporation".
2. The Articles of Incorporation of MPSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation until thereafter
duly amended in accordance with their terms and the Code.
3. The executed Plan of Merger pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is Medaphis Physician Services Corporation, c/o Medaphis
Corporation, 2700 Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Merger has been duly approved by unanimous written consent of the
stockholders of Marmac and by the written consent of the sole shareholder of
MPSC.
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 30th day of September, 1994.
MEDAPHIS PHYSICIAN SERVICES
CORPORATION
By:/s/ Randolph G. Brown
-------------------------
Randolph G. Brown
Chairman
<PAGE> 34
MEDAPHIS PHYSICIAN SERVICES CORPORATION
CERTIFICATE OF VERIFICATION OF
REQUEST FOR PUBLICATION
Pursuant to Section 14-2-1105.1(a) of the Georgia Business Corporation
Code, Medaphis Physician Services Corporation, a Georgia corporation, hereby
verifies that a request for publication of a notice of merger to merge Marmac
Management, Inc. with and into Medaphis Physician Services Corporation and
payment thereof have been made, as required by Section 14-2-1105.1(b) of the
Georgia Business Corporation Code.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
30th day of September, 1994.
Medaphis Physician Services Corporation
By:/s/ Pamela S. Topper
--------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 35
Secretary of State DOCKET NUMBER : 942290234
Business Services and Regulation CONTROL NUMBER: 9000830
Suite 315, West Tower EFFECTIVE DATE: 08/17/1994
2 Martin Luther King Jr. Dr. REFERENCE : 0091
Atlanta, Georgia 30334-1530 PRINT DATE : 08/17/1994
FORM NUMBER : 411
MEDAPHIS CORPORATION
MICHELE A. SCOLLARD
2700 CUMBERLAND PARKWAY
SUITE 300
ATLANTA, GEORGIA 30339
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Nonsurviving Entity/Entities:
CONSOLIDATED MEDICAL SERVICES, INC., a Florida corporation
/s/ Max Cleland
-----------------------------
[SEAL] MAX CLELAND
SECRETARY OF STATE
/s/ Verley J. Spivey
-----------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
556-2894 656-3079 656-2817 404-656-2222
Outside Metro-Atlanta
<PAGE> 36
ARTICLES OF MERGER OF
CONSOLIDATED MEDICAL SERVICES, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
1. Medaphis Physician Services Corporation, a Georgia corporation ("MPSC"),
owns one hundred percent (100%) of the outstanding stock of Consolidated
Medical Services, Inc., a Florida corporation ("CMS").
2. The Agreement and Plan of Merger attached hereto as Exhibit "A" and
incorporated by reference herein was duly approved by the Board of Directors of
MPSC.
3. Pursuant to Section 14-2-1104(a) of the Georgia Business Corporation Code,
the Agreement and Plan of Merger does not require approval by the shareholders
of CMS or MPSC.
4. The name of the surviving corporation is Medaphis Physician Services
Corporation, a Georgia corporation.
MEDAPHIS PHYSICIAN SERVICES
CORPORATION
By: /s/ Randolph G. Brown
-------------------------------
[CORPORATE SEAL]
Title: Chairman
----------------------------
ATTEST:
By: /s/ Pamela Topper
-------------------------------
Title: Secretary
----------------------------
CONSOLIDATED MEDICAL SERVICES, INC.
By: /s/ Randolph G. Brown
-------------------------------
[CORPORATE SEAL]
Title: Chairman
----------------------------
ATTEST:
By: /s/ Pamela Topper
-------------------------------
Title: Secretary
----------------------------
<PAGE> 37
EXHIBIT A
AGREEMENT AND PLAN OF MERGER OF
CONSOLIDATED MEDICAL SERVICES, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
This Agreement and Plan of Merger (the "Agreement") is made and entered
into this 17th day of August, 1994 by and between Consolidated Medical Services,
Inc., a Florida corporation ("CMS"), and Medaphis Physician Services
Corporation, a Georgia corporation ("MPSC") and the sole shareholder of CMS
(CMS and MPSC being hereinafter sometimes collectively referred to as the
"Constituent Corporations").
Section 1
Merger
1.1 On the Effective Date, CMS shall be merged with and into MPSC, and
MPSC (the "Surviving Corporation") shall continue in existence and the merger
shall in all respects have the effect provided for in Section 14-2-1106 of the
Georgia Business Corporation Code and Section 607.1106 of the Florida Business
Corporation Act.
1.2 Without limiting the foregoing, on and after the Effective Date, the
separate existence of CMS shall cease, and, in accordance with the terms of this
Agreement, the title to all real estate and other property owned by each of the
Constituent Corporations shall be vested in the Surviving Corporation without
reversion or impairment; the Surviving Corporation shall have all liabilities of
each of the Constituent Corporations; and any proceeding pending against any
Constituent Corporation may be continued as if the merger did not occur or the
Surviving Corporation may be substituted in its place.
1.3 Since MPSC is the sole shareholder of CMS, there are no dissenting
shareholders.
Section 2
Terms of the Transaction
2.1 Upon the Effective Date, each share of CMS Common Stock issued and
outstanding immediately prior to the Effective Date or held in the treasury of
CMS shall, by virtue of the merger and without any action on the part of the
holder thereof, thereupon be canceled and retired and cease to exist.
2.2 After the Effective Date, each holder of an outstanding certificate
or certificates which immediately prior thereto represented shares of CMS Common
Stock will, upon surrender of such certificate or certificates, be entitled to
be paid in cash the sum of $1.00 per share.
<PAGE> 38
Section 3
Directors and Officers
The persons who are directors of MPSC immediately prior to the Effective
Date shall continue as the directors of the Surviving Corporation and shall
continue to hold office as provided in the bylaws of the Surviving Corporation.
Section 4
Articles of Incorporation and Bylaws
4.1 From and after the Effective Date, the Articles of Incorporation of
MPSC, as in effect at such date, shall be the Articles of Incorporation of the
Surviving Corporation and shall continue in effect until the same shall be
altered, amended or repealed as therein provided or as provided by law.
4.2 From and after the Effective Date, the bylaws of MPSC, in effect at
such date, shall be the bylaws of the Surviving Corporation and shall continue
in effect until the same shall be altered, amended or repealed as therein
provided or as provided by law.
Section 5
Board Approval, Shareholder Approval, Effectiveness of Merger
This Agreement has been approved by the Board of Directors of MPSC as
provided by the Georgia Business Corporation Code and the Florida Business
Corporation Act. The merger shall become effective upon the date of filing of
the Articles of Merger with the Department of State of the State of Florida and
with the Secretary of State of the State of Georgia (said date is herein
referred to as the "Effective Date").
Section 6
Miscellaneous
6.1 This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
6.2 This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Georgia with respect to the filing of this
2
<PAGE> 39
Agreement with the Georgia Secretary of State and with the laws of the State of
Florida with respect to the filing of this Agreement with the Florida Department
of State.
IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed, their respective corporate seals to be affixed and the
foregoing attested, all by their respective duly authorized officers, as of the
date hereinabove first written.
Consolidated Medical Services, Inc.
By: /s/ Randolph G. Brown
-------------------------------
Title: Chairman
----------------------------
[CORPORATE SEAL]
ATTEST:
By: /s/ Pamela Topper
----------------------------
Title: Secretary
--------------------------
Medaphis Physician Services Corporation
By: /s/ Randolph G. Brown
-------------------------------
Title: Chairman
----------------------------
[CORPORATE SEAL]
ATTEST:
By: /s/ Pamela Topper
-----------------------------
Title: Secretary
--------------------------
3
<PAGE> 40
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
CONSOLIDATED MEDICAL SERVICES, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by O.C.G.A., Section 14-2-1105.1(b).
Medaphis Physician Services Corporation
By: /s/ Pamela S. Topper
---------------------------------------------
Pamela S. Topper
Vice President, General Counsel and Secretary
<PAGE> 41
SECRETARY OF STATE
BUSINESS SERVICES AND REGULATION
SUITE 315, WEST TOWER
2 MARTIN LUTHER KING, JR. DR.
ATLANTA, GEORGIA 30334-1530
DOCKET NUMBER : 942150249
CONTROL NUMBER : 9000830
EFFECTIVE DATE : 08/02/1994
REFERENCE : 0045
PRINT DATE : 08/04/1994
FORM NUMBER : 411
NANCY L. SLAUGHTER
MEDAPHIS CORPORATION
2700 CUMBERLAND PKWY., STE. 300
ATLANTA, GEORGIA 30339
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Georgia Law certifying that articles or a
certificate of merger and fees have been filed regarding the merger of the
below entities, effective as of the date shown above. Attached is a true
and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Nonsurviving Entity/Entities:
OMNI MEDICAL SYSTEMS, INC., a Louisiana corporation
/s/ Max Cleland
-------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL] /s/ Verley J. Spivey
-------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro-Atlanta
<PAGE> 42
CERTIFICATE OF MERGER
OF
OMNI MEDICAL SYSTEMS, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. OMNI Medical Systems, Inc., a Louisiana corporation ("OMNI"), is
merging with and into Medaphis Physician Services Corporation, a Georgia
corporation ("MPSC") (the "Merger"), and MPSC will be the surviving corporation
following the Merger, using the name "Medaphis Physician Services Corporation".
2. The Articles of Incorporation of MPSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation.
3. The executed Plan of Merger pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is Medaphis Physician Services Corporation, 2700 Cumberland
Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Merger has been duly approved by unanimous written consent of the
stockholders of OMNI and by the written consent of the sole shareholder of MPSC.
IN WITNESS WHEREOF, MPSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 31st day of July, 1994.
MEDAPHIS PHYSICIAN SERVICES
CORPORATION
By: /s/ Randolph G. Brown
---------------------------
[Name]
[Title] Chairman
<PAGE> 43
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
OMNI MEDICAL SYSTEMS, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by O.C.C.A., Section 14-2-1105.1(b).
Medaphis Physician Services Corporation
By: /s/ Pamela S. Topper
------------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 44
SECRETARY OF STATE
BUSINESS SERVICES AND REGULATION
SUITE 315, WEST TOWER
2 MARTIN LUTHER KING, JR. DR.
ATLANTA, GEORGIA 30334-1530 DOCKET NUMBER : 941920616
CONTROL NUMBER: 9000830
EFFECTIVE DATE: 07/11/1994
REFERENCE : 0069
PRINT DATE : 07/11/1994
FORM NUMBER : 411
PARANET CORPORATION SERVICES, INC.
DOUGLAS W. JUNKER
3761 VENTURE DRIVE, STE 260
DULUTH, GEORGIA 30136
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Non-Surviving Entity:
MEDICAL MANAGEMENT RESOURCES, INC., a Delaware corporation
/s/ Max Cleland
-------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL] /S/ Verley J. Spivey
-------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 (404) 656-2222
Outside Metro Atlanta
<PAGE> 45
CERTIFICATE OF MERGER
OF
MEDICAL MANAGEMENT RESOURCES, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
---------------------------------------
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. Medical Management Resources, Inc., a Delaware corporation, is
merging with and into Medaphis Physician Services Corporation Inc., a Georgia
corporation (the "Merger"), and Medaphis Physician Services Corporation will be
the surviving Georgia corporation following the Merger, using the name
"Medaphis Physician Services Corporation."
2. The Articles of Incorporation of Medaphis Physician Services
Corporation (the "Articles"), will continue after the Merger as the Articles of
Incorporation of the surviving corporation until thereafter duly amended in
accordance with their terms and the Code.
3. The executed Plan of Merger pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is Medaphis Physician Services Corporation c/o Medaphis
Corporation, 2700 Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Merger has been duly approved by unanimous written consent of the
shareholders of Medical Management Resources, Inc., and by the written consent
of the sole shareholder of Medaphis Physician Services Corporation.
<PAGE> 46
6. The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by law.
IN WITNESS WHEREOF, Medaphis Physician Services Corporation has caused its
duly authorized officer to execute and deliver this Certificate of Merger as of
the 11th day of July, 1994.
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Michael R. Cote
-----------------------------------
Michael R. Cote
Senior Vice President and
Assistant Secretary
-2-
<PAGE> 47
SECRETARY OF STATE
BUSINESS SERVICES AND REGULATION
SUITE 315, WEST TOWER
2 MARTIN LUTHER KING, JR. DR.
ATLANTA, GEORGIA 30334-1530 DOCKET NUMBER : 940060107
CONTROL NUMBER: 9000830
EFFECTIVE DATE: 12/31/1993
REFERENCE : 0045
PRINT DATE : 01/07/1994
FORM NUMBER : 411
C T CORPORATION SYSTEM
JENNIFER F. AULTMAN
1201 PEACHTREE ST., N.E.
ATLANTA, GEORGIA 30361
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Georgia Law certifying that articles or a certificate of
merger and fees have been filed regarding the merger of the below entities,
effective as of the date shown above. Attached is a true and correct copy of
said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Nonsurviving Entity/Entities:
COMPMED, INC., a Georgia corporation
/s/ Max Cleland
-------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL] /S/ Verley J. Spivey
-------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
CORPORATIONS HOT-LINE
SECURITIES CEMETERIES CORPORATIONS (404) 656-2222
656-2894 656-3079 656-2817 Outside Metro Atlanta
<PAGE> 48
ARTICLES OF MERGER OF
MEDAPHIS PHYSICIAN SERVICES CORPORATION
AND
COMPMED, INC.
1. CompMed, Inc., a Georgia corporation ("CompMed"), will merge with and into
Medaphis Physician Services Corporation, a Georgia corporation ("MPSC")
(the "Merger") and MPSC will be the surviving corporation, pursuant to the
Agreement and Plan of Merger attached hereto as Exhibit "A" and
incorporated by reference herein.
2. The Merger was duly approved by the shareholders of CompMed and MPSC.
3. The effective date of the merger is December 31, 1993.
MEDAPHIS PHYSICIAN
SERVICES CORPORATION
By: /s/ Pamela S. Topper
[CORPORATE SEAL] -----------------------------
Title: Vice President
ATTEST: --------------------------
By: /s/ Peggy Sherman
-----------------------------
Title: Assistant Secretary
--------------------------
COMPMED, INC.
By: /s/ Pamela S. Topper
[CORPORATE SEAL] -----------------------------
Title: Vice President
ATTEST: --------------------------
By: /s/ Peggy Sherman
-----------------------------
Title: Assistant Secretary
--------------------------
<PAGE> 49
AGREEMENT AND PLAN OF MERGER OF
COMPMED, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
This Agreement and Plan of Merger (the "Agreement") is made and entered
into this 30th day of December, 1993 by and between CompMed, Inc., a Georgia
corporation ("CompMed"), and Medaphis Physician Services Corporation, a Georgia
corporation ("MPSC") (CompMed and MPSC being hereinafter sometimes collectively
referred to as the "Constituent Corporations").
Section 1
Merger
1.1 On the Effective Date, CompMed shall be merged with and into MPSC, and
MPSC (the "Surviving Corporation") shall continue in existence and the merger
shall in all respects have the effect provided for in Section 14-2-1106 of the
Georgia Business Corporation Code.
1.2 Without limiting the foregoing, on and after the Effective Date, the
separate existence of CompMed shall cease, and, in accordance with the terms of
this Agreement, the title to all real estate and other property owned by each
of the Constituent Corporations shall be vested in the Surviving Corporation
without reversion or impairment; the Surviving Corporation shall have all
liabilities of each of the Constituent Corporations; and any proceeding pending
against any Constituent Corporation may be continued as if the merger did not
occur or the Surviving Corporation may be substituted in its place.
Section 2
Terms of the Transaction
2.1 Upon the Effective Date, each share of CompMed Common Stock issued and
outstanding immediately prior to the Effective Date or held in the treasury of
CompMed shall, by virtue of the merger and without any action on the part of the
holder thereof, thereupon be canceled and retired and cease to exist.
2.2 After the Effective Date, each holder of an outstanding certificate or
certificates which immediately prior thereto represented shares of CompMed
Common Stock will, upon surrender of such certificate or certificates, be
entitled to be paid in cash the sum of $1.00 per share.
1
<PAGE> 50
Section 3
Directors and Officers
The persons who are directors of MPSC immediately prior to the Effective
Date shall continue as the directors of the Surviving Corporation and shall
continue to hold office as provided in the bylaws of the Surviving Corporation.
The following persons are hereby elected as officers of the Corporation as
of the Effective Date to serve pursuant to the Bylaws of the Corporation until
their respective successors are duly elected and qualified, and any and all
previous officers are hereby removed:
<TABLE>
<CAPTION>
Name Office
- ---- ------
<S> <C>
Martin L. Brill Chairman
Gene P. Kaczmarski President
Timothy J. Kilgallon Executive Vice President and
Chief Operations Officer
Lonnie W. Johnson Executive Vice President - Operations
Mark S. Martin Executive Vice President - Financial
Services
Douglas W. Esbach Executive Vice President - Sales
Michael R. Cote Senior Vice President and
Assistant Secretary
G. Edward Alexander, Jr. Vice President and Treasurer
Pamela S. Topper Vice President, General Counsel and
Secretary
Peggy B. Sherman Associate General Counsel and
Assistant Secretary
</TABLE>
Section 4
Articles of Incorporation and Bylaws
4.1 From and after the Effective Date, the Articles of Incorporation of
MPSC, as in effect at such date, shall be the Articles of Incorporation of the
Surviving Corporation and shall continue in effect until the same shall be
altered, amended or repealed as therein provided or as provided by law.
2
<PAGE> 51
4.2 From and after the Effective Date, the bylaws of MPSC, in effect
at such date, shall be the bylaws of the Surviving Corporation and shall
continue in effect until the same shall be altered, amended or repealed as
therein provided or as provided by law.
Section 5
Board Approval, Effectiveness of Merger
This Agreement has been approved by the Board of Directors of MPSC as
provided by the Georgia Business Corporation Code. The merger shall become
effective on December 31, 1993 (said date is herein referred to as the
"Effective Date").
Section 6
Miscellaneous
6.1 This Agreement may be executed in counterparts, each of which
when so executed shall be deemed to be an original and all of which together
shall constitute one and the same agreement.
6.2 This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Georgia.
3
<PAGE> 52
IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed, their respective corporate seals to be affixed and
the foregoing attested, all by their respective duly authorized officers, as of
the date hereinabove first written.
Medaphis Physician
Services Corporation
By: /s/ Pamela S. Topper
[CORPORATE SEAL] --------------------------
Title: Vice President
ATTEST: ------------------------
By: /s/ Peggy Sherman
--------------------
Title: Assistant Secretary
------------------
CompMed, Inc.
By: /s/ Pamela S. Topper
[CORPORATE SEAL] --------------------------
Title: Vice President
ATTEST: ------------------------
By: /s/ Peggy Sherman
--------------------
Title: Assistant Secretary
------------------
4
<PAGE> 53
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
COMPMED, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by O.C.G.A., Section 14-2-1105.1(b).
MEDAPHIS PHYSICIAN SERVICES CORPORATION
By: /s/ Pamela S. Topper
------------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 54
SECRETARY OF STATE
BUSINESS SERVICES AND REGULATION
SUITE 315, WEST TOWER
2 MARTIN LUTHER KING JR. DR.
ATLANTA, GEORGIA 30334-1530 DOCKET NUMBER : 940040286
CONTROL NUMBER: 9000830
EFFECTIVE DATE: 12/31/1993
REFERENCE : 0045
PRINT DATE : 01/05/1994
FORM NUMBER : 411
C T CORPORATION SYSTEM
JENNIFER F. AULTMAN
1201 PEACHTREE ST., N.E.
ATLANTA, GEORGIA 30361
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Georgia Law certifying that articles or a certificate of
merger and fees have been filed regarding the merger of the below entities,
effective as of the date shown above. Attached is a true and correct copy of
said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Non-Surviving Entity/Entities:
MEDAPHIS MEDICAL ASSOCIATES, INC., a Georgia corporation
/s/ Max Cleland
-------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL] /s/ Verley J. Spivey
-------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
CORPORATIONS HOTLINE
SECURITIES CEMETERIES CORPORATIONS (404) 656-2222
656-2894 656-3079 656-2817 Outside Metro Atlanta
<PAGE> 55
ARTICLES OF MERGER OF
MEDAPHIS PHYSICIAN SERVICES CORPORATION
AND
MEDAPHIS MEDICAL ASSOCIATES, INC.
1. Medaphis Physician Services Corporation, a Georgia corporation ("MPSC"),
owns one hundred percent (100%) of the outstanding stock of Medaphis
Medical Associates, Inc., a Georgia corporation ("MMA").
2. The Agreement and Plan of Merger attached hereto as Exhibit "A" and
incorporated by reference herein was duly approved by the Board of
Directors of MPSC.
3. The Agreement and Plan of Merger did not require approval by the
shareholders of MMA or MPSC.
4. The effective date of the merger is December 31, 1993.
5. The name of the surviving corporation is Medaphis Physician Services
Corporation, a Georgia corporation.
MEDAPHIS PHYSICIAN
SERVICES CORPORATION
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
MEDAPHIS MEDICAL
ASSOCIATES, INC.
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
<PAGE> 56
AGREEMENT AND PLAN OF MERGER OF
MEDAPHIS MEDICAL ASSOCIATES, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
This Agreement and Plan of Merger (the "Agreement") is made and entered
into this 22nd day of December, 1993 by and between Medaphis Medical
Associates, Inc., a Georgia corporation ("MMA"), and Medaphis Physician
Services Corporation, a Georgia corporation ("MPSC") and the sole shareholder
of MMA (MMA and MPSC being hereinafter sometimes collectively referred to as
the "Constituent Corporations").
Section 1
Merger
1.1 On the Effective Date, MMA shall be merged with and into MPSC, and
MPSC (the "Surviving Corporation") shall continue in existence and the merger
shall in all respects have the effect provided for in Section 14-2-1106 of the
Georgia Business Corporation Code.
1.2 Without limiting the foregoing, on and after the Effective Date, the
separate existence of MMA shall cease, and, in accordance with the terms of
this Agreement, the title to all real estate and other property owned by each
of the Constituent Corporations shall be vested in the Surviving Corporation
without reversion or impairment; the Surviving Corporation shall have all
liabilities of each of the Constituent Corporations; and any proceeding pending
against any Constituent Corporation may be continued as if the merger did not
occur or the Surviving Corporation may be substituted in its place.
Section 2
Terms of the Transaction
2.1 Upon the Effective Date, each share of MMA Common Stock issued and
outstanding immediately prior to the Effective Date or held in the treasury of
MMA shall, by virtue of the merger and without any action on the part of the
holder thereof, thereupon be canceled and retired and cease to exist.
2.2 After the Effective Date, each holder of an outstanding certificate or
certificates which immediately prior thereto represented shares of MMA
Common Stock will, upon surrender of such certificate or certificates, be
entitled to be paid in cash the sum of $1.00 per share.
1
<PAGE> 57
Section 3
Directors and Officers
The persons who are directors and officers of MPSC immediately prior to the
Effective Date shall continue as the directors and officers of the Surviving
Corporation and shall continue to hold office as provided in the bylaws of the
Surviving Corporation.
Section 4
Articles of Incorporation and Bylaws
4.1 From and after the Effective Date, the Articles of Incorporation of
MPSC, as in effect at such date, shall be the Articles of Incorporation of the
Surviving Corporation and shall continue in effect until the same shall be
altered, amended or repealed as therein provided or as provided by law.
4.2 From and after the Effective Date, the bylaws of MPSC, in effect at
such date, shall be the bylaws of the Surviving Corporation and shall continue
in effect until the same shall be altered, amended or repealed as therein
provided or as provided by law.
Section 5
Board Approval, Effectiveness of Merger
This Agreement has been approved by the Board of Directors of MPSC as
provided by Section 14-2-1104 of the Georgia Business Corporation Code. The
merger shall become effective on December 31, 1993 (said date is herein referred
to as the "Effective Date").
Section 6
Miscellaneous
6.1 This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
6.2 This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Georgia.
2
<PAGE> 58
IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed, their respective corporate seals to be affixed and the
foregoing attested, all by their respective duly authorized officers, as of the
date hereinabove first written.
Medaphis Physician
Services Corporation
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
MEDAPHIS MEDICAL
ASSOCIATES, INC.
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
3
<PAGE> 59
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
MEDICAL MANAGEMENT ASSOCIATES, INC. WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by O.C.G.A., Section 14-2-1105.1(b).
Medaphis Physician Services Corporation
By: /s/ Pamela S. Topper
-------------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 60
NOTICE OF MERGER
Notice is given that a certificate of merger which will effect a merger by and
between Medaphis Medical Associates, Inc., a Georgia corporation, and Medaphis
Physician Services Corporation, a Georgia corporation, will be delivered to the
Secretary of State for filing in accordance with the Georgia Business
Corporation Code. The name of the surviving corporation in the merger will be
Medaphis Physician Services Corporation, a corporation incorporated in the
State of Georgia. The registered office of such corporation is located at 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339 and its registered agent
at such address is Pamela S. Topper.
<PAGE> 61
Secretary of State DOCKET NUMBER : 940040283
Business Services and Regulation CONTROL NUMBER : 9000830
Suite 315, West Tower EFFECTIVE DATE : 12/31/1993
2 Martin Luther King, Jr. Dr. REFERENCE : 0045
Atlanta, Georgia 30334-1330 PRINT DATE : 01/05/1994
FORM NUMBER : 411
C T CORPORATION SYSTEM
JENNIFER F. AULTMAN
1201 PEACHTREE ST., N.E.
ATLANTA, GA 30361
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Georgia Law certifying that articles or a
certificate of merger and fees have been filed regarding the merger of the
below entities, effective as of the date shown above. Attached is a true and
correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Nonsurviving Entity/Entities:
BAULD INVESTMENT CORPORATION, a Florida corporation
/s/ Max Cleland
--------------------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL]
/s/ Verley J. Spivey
--------------------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro-Atlanta
<PAGE> 62
ARTICLES OF MERGER OF
BAULD INVESTMENT CORPORATION
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
1. Medaphis Physician Services Corporation, a Georgia corporation ("MPSC"),
owns one hundred percent (100%) of the outstanding stock of Bauld
Investment Corporation, a Florida corporation ("BIC").
2. The Agreement and Plan of Merger attached hereto as Exhibit "A" and
incorporated by reference herein was duly approved by the Board of
Directors of MPSC.
3. Pursuant to Section 14-2-1104(a) of the Georgia Business Corporation Code,
the Agreement and Plan of Merger does not require approval by the
shareholders of BIC or MPSC.
4. The effective date of the merger is December 31, 1993.
5. The name of the surviving corporation is Medaphis Physician Services
Corporation, a Georgia corporation.
MEDAPHIS PHYSICIAN
SERVICES CORPORATION
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
MEDAPHIS MEDICAL
ASSOCIATES, INC.
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
<PAGE> 63
AGREEMENT AND PLAN OF MERGER OF
BAULD INVESTMENT CORPORATION
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
This Agreement and Plan of Merger (the "Agreement") is made and entered
into this 22nd day of December, 1993 by and between Bauld Investment
Corporation, a Florida corporation ("BIC"), and Medaphis Physician Services
Corporation, a Georgia corporation ("MPSC") and the sole shareholder of BIC
(BIC and MPSC being hereinafter sometimes collectively referred to as the
"Constituent Corporations").
Section 1
Merger
1.1 On the Effective Date, BIC shall be merged with and into MPSC, and
MPSC (the "Surviving Corporation") shall continue in existence and the merger
shall in all respects have the effect provided for in Section 14-2-1106 of the
Georgia Business Corporation Code and Section 607.1106 of the Florida Business
Corporation Act.
1.2 Without limiting the foregoing, on and after the Effective Date, the
separate existence of BIC shall cease, and, in accordance with the terms of this
Agreement, the title to all real estate and other property owned by each of the
Constituent Corporations shall be vested in the Surviving Corporation without
reversion or impairment; the Surviving Corporation shall have all liabilities of
each of the Constituent Corporations; and any proceeding pending against any
Constituent Corporation may be continued as if the merger did not occur or the
Surviving Corporation may be substituted in its place.
1.3 Since MPSC is the sole shareholder of BIC, there are no dissenting
shareholders.
Section 2
Terms of the Transaction
2.1 Upon the Effective Date, each share of BIC Common Stock issued and
outstanding immediately prior to the Effective Date or held in the treasury of
BIC shall, by virtue of the merger and without any action on the part of the
holder thereof, thereupon be canceled and retired and cease to exist.
2.2 After the Effective Date, each holder of an outstanding certificate
or certificates which immediately prior thereto represented shares of BIC
Common Stock will, upon surrender of such certificate or certificates, be
entitled to be paid in cash the sum of $1.00 per share.
1
<PAGE> 64
Section 3
Directors and Officers
The persons who are directors and officers of MPSC immediately prior to
the Effective Date shall continue as the directors and officers of the
Surviving Corporation and shall continue to hold office as provided in the
bylaws of the Surviving Corporation.
Section 4
Articles of Incorporation and Bylaws
4.1 From and after the Effective Date, the Articles of Incorporation of
MPSC, as in effect at such date, shall be the Articles of Incorporation of the
Surviving Corporation and shall continue in effect until the same shall be
altered, amended or repealed as therein provided or as provided by law.
4.2 From and after the Effective Date, the bylaws of MPSC, in effect at
such date, shall be the bylaws of the Surviving Corporation and shall continue
in effect until the same shall be altered, amended or repealed as therein
provided or as provided by law.
Section 5
Board Approval, Effectiveness of Merger
This Agreement has been approved by the board of directors of MPSC as
provided by the Georgia Business Corporation Code and the Florida Business
Corporation Act. The merger shall become effective on December 31, 1993 (said
date is herein referred to as the "Effective Date").
Section 6
Miscellaneous
6.1 This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
6.2 This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Georgia with respect to the filing of this Agreement with the Georgia Secretary
of State and with the laws of Florida with respect to the filing of this
Agreement with the Florida Secretary of State.
2
<PAGE> 65
IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed, their respective corporate seals to be affixed and
the foregoing attested, all by their respective duly authorized officers, as of
the date hereinabove first written.
Medaphis Physician
Services Corporation
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
MEDAPHIS MEDICAL
ASSOCIATES, INC.
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
<PAGE> 66
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
BAULD INVESTMENT CORPORATION WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by O.C.G.A. 14-2-1105.1(b).
Medaphis Physician Services Corporation
By:/s/ Pamela S. Topper
-----------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 67
NOTICE OF MERGER
Notice is given that a certificate of merger which will effect a merger by and
between Bauld Investment Corporation, a Florida corporation, and Medaphis
Physician Services Corporation, a Georgia corporation, will be delivered to the
Secretary of State for filing in accordance with the Georgia Business
Corporation Code. The name of the surviving corporation in the merger will be
Medaphis Physician Services Corporation, a corporation incorporated in the
State of Georgia. The registered office of such corporation is located at 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339 and its registered agent
at such address is Pamela S. Topper.
<PAGE> 68
Secretary of State DOCKET NUMBER : 940040281
Business Services and Regulation CONTROL NUMBER : 9000830
Suite 315, West Tower EFFECTIVE DATE : 12/31/1993
2 Martin Luther King Jr., Dr. REFERENCE : 0045
Atlanta, GA 30334-1530 PRINT DATE : 01/05/1994
FORM NUMBER : 411
C T CORPORATION SYSTEM
JENNIFER F. AULTMAN
1201 PEACHTREE ST., N.E.
ATLANTA, GA 30361
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Georgia Law certifying that articles or a
certificate of merger and fees have been filed regarding the merger of the
below entities, effective as of the date shown above. Attached is a true and
correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES, a Georgia corporation
Nonsurviving Entity/Entities:
KING MANAGEMENT CORPORATION, a Georgia corporation
/s/ Max Cleland
--------------------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL]
/s/ Verley J. Spivey
--------------------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOTLINE
655-2894 656-3079 656-2817 404-656-2222
Outside Metro-Atlanta
<PAGE> 69
ARTICLES OF MERGER OF
MEDAPHIS PHYSICIAN SERVICES CORPORATION
AND
KING MANAGEMENT CORPORATION
1. Medaphis Physician Services Corporation, a Georgia corporation ("MPSC"),
owns one hundred percent (100%) of the outstanding stock of King
Management Corporation, a Georgia corporation ("King").
2. The Agreement and Plan of Merger attached hereto as Exhibit "A" and
incorporated by reference herein was duly approved by the Board of
Directors of MPSC.
3. The Agreement and Plan of Merger did not require approval by the
shareholders of King or MPSC.
4. The effective date of the merger is December 31, 1993.
5. The name of the surviving corporation is Medaphis Physician Services
Corporation, a Georgia corporation.
MEDAPHIS PHYSICIAN
SERVICES CORPORATION
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
MEDAPHIS MEDICAL
ASSOCIATES, INC.
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
<PAGE> 70
AGREEMENT AND PLAN OF MERGER OF
KING MANAGEMENT CORPORATION
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
This Agreement and Plan of Merger (the "Agreement") is made and entered
into this 22nd day of December, 1993 by and between King Management Corporation,
a Georgia corporation ("King"), and Medaphis Physician Services Corporation, a
Georgia corporation ("MPSC") and sole shareholder of King (King and MPSC being
hereinafter sometimes collectively referred to as the "Constituent
Corporations").
Section 1
Merger
1.1 On the Effective Date, King shall be merged with and into MPSC, and
MPSC (the "Surviving Corporation") shall continue in existence and the merger
shall in all respects have the effect provided for in Section 14-2-1106 of the
Georgia Business Corporation Code.
1.2 Without limiting the foregoing, on and after the Effective Date, the
separate existence of King shall cease, and, in accordance with the terms of
this Agreement, the title to all real estate and other property owned by each of
the Constituent Corporations shall be vested in the Surviving Corporation
without reversion or impairment; the Surviving Corporation shall have all
liabilities of each of the Constituent Corporations; and any proceeding pending
against any Constituent Corporation may be continued as if the merger did not
occur or the Surviving Corporation may be substituted in its place.
Section 2
Terms of the Transaction
2.1 Upon the Effective Date, each share of King Common Stock issued and
outstanding immediately prior to the Effective Date or held in the treasury of
King shall, by virtue of the merger and without any action on the part of the
holder thereof, thereupon be canceled and retired and cease to exist.
2.2 After the Effective Date, each holder of an outstanding certificate or
certificates which immediately prior thereto represented shares of King Common
Stock will, upon surrender of such certificate or certificates, be entitled to
be paid in cash the sum of $1.00 per share.
1
<PAGE> 71
Section 3
Directors and Officers
The persons who are directors and officers of MPSC immediately prior to
the Effective Date shall continue as the directors and officers of the
Surviving Corporation and shall continue to hold office as provided in the
bylaws of the Surviving Corporation.
Section 4
Articles of Incorporation and Bylaws
4.1 From and after the Effective Date, the Articles of Incorporation of
MPSC, as in effect at such date, shall be the Articles of Incorporation of the
Surviving Corporation and shall continue in effect until the same shall be
altered, amended or repealed as therein provided or as provided by law.
4.2 From and after the Effective Date, the bylaws of MPSC, in effect at
such date, shall be the bylaws of the Surviving Corporation and shall continue
in effect until the same shall be altered, amended or repealed as therein
provided or as provided by law.
Section 5
Board Approval, Effectiveness of Merger
This Agreement has been approved by the Board of Directors of MPSC as
provided by Section 14-2-1104 of the Georgia Business Corporation Code. The
merger shall become effective on December 31, 1993 (said date is herein
referred to as the "Effective Date").
Section 6
Miscellaneous
6.1 This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
6.2 This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Georgia.
2
<PAGE> 72
IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed, their respective corporate seals to be affixed and the
foregoing attested, all by their respective duly authorized officers, as of the
date hereinabove first written.
Medaphis Physician
Services Corporation
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
MEDAPHIS MEDICAL
ASSOCIATES, INC.
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
3
<PAGE> 73
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
KING MANAGEMENT CORPORATION WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by O.C.G.A., Section 14-2-1105.1(b).
Medaphis Physician Services Corporation
By: /s/ Pamela S. Topper
-----------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 74
NOTICE OF MERGER
Notice is given that a certificate of merger which will effect a merger by and
between King Management Corporation, a Georgia corporation, and Medaphis
Physician Services Corporation, a Georgia corporation, will be delivered to the
Secretary of State for filing in accordance with the Georgia Business
Corporation Code. The name of the surviving corporation in the merger will be
Medaphis Physician Services Corporation, a corporation incorporated in the State
of Georgia. The registered office of such corporation is located at 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339 and its registered agent
at such address is Pamela S. Topper.
<PAGE> 75
Secretary of State DOCKET NUMBER : 922950217
Business Services and Regulation CONTROL NUMBER : 9000830
Suite 315, West Tower EFFECTIVE DATE : 10/20/1992
2 Martin Luther King, Jr. Dr. REFERENCE : 0045
Atlanta, Georgia 30334-1530 PRINT DATE : 11/09/1992
FORM NUMBER : 411
MEDAPHIS CORPORATION
MICHELE SCOLLARD
2700 CUMBERLAND PKWY. #300
ATLANTA, GA 30339
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Georgia Law certifying that articles or a
certificate of merger and fees have been filed regarding the merger of the
below entities, effective as of the date shown above. Attached is a true and
correct copy of said filing.
Surviving Corporation:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia Corporation
Nonsurviving Corporation(s):
FIRST MEDCORP, a California Corporation
/s/ Max Cleland
---------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL] /s/ Verley J. Spivey
---------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro-Atlanta
<PAGE> 76
ARTICLES OF MERGER OF
MEDAPHIS PHYSICIAN SERVICES CORPORATION
AND FIRST MEDCORP
I. Medaphis Physician Services Corporation, a Georgia corporation
("MPSC"), owns one hundred percent (100%) of the issued and outstanding
stock of First MedCorp, a California corporation ("First MedCorp")
II. The Agreement and Plan of Merger attached hereto as Exhibit A and
incorporated by reference herein was duly approved by the Board of
Directors of MPSC and First MedCorp.
III. The Agreement and Plan of Merger did not require approval by the
shareholders of First MedCorp or MPSC.
IV. The name of the surviving corporation is Medaphis Physician
Services Corporation, a Georgia corporation.
V. Attached hereto as Exhibit B is a certificate of the California
Franchise Tax Board certifying that all taxes imposed by the California
Bank and Corporation Tax Law upon First MedCorp have been paid.
FIRST MEDCORP
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
MEDAPHIS MEDICAL
ASSOCIATES, INC.
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
<PAGE> 77
EXHIBIT A
AGREEMENT AND PLAN OF MERGER OF
FIRST MEDCORP
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
This Agreement and Plan of Merger (the "Agreement") is made and entered
into this 1st day of October, 1992 by and between First MedCorp, a California
corporation ("First MedCorp"), and Medaphis Physician Services Corporation, a
Georgia corporation ("MPSC") (First MedCorp and MPSC being hereinafter sometimes
collectively referred to as the "Constituent Corporations").
Section 1
Merger
1.1 On the Effective Date (defined in Section 5 below), First MedCorp
shall be merged with and into MPSC, and MPSC (the "Surviving Corporation")
shall continue in existence and the merger shall in all respects have the
effect provided for in Section 1107 of the California Corporations Code (the
"California Code") and Section 14-2-1106 of the Georgia Business Corporation
Code (the "Georgia Code").
1.2 Without limiting the foregoing, on and after the Effective Date, the
separate existence of First MedCorp shall cease, and, in accordance with the
terms of this Agreement, the title to all real estate and other property owned
by each of the Constituent Corporations shall be vested in the Surviving
Corporation without reversion or impairment; the Surviving Corporation
shall have all liabilities of each of the Constituent Corporations; and any
proceeding pending against any Constituent Corporation may be continued as if
the merger did not occur or the Surviving Corporation may be substituted in its
place.
Section 2
Terms of the Transaction
2.1 Upon the Effective Date, each share of First MedCorp stock, common
and preferred, either issued and outstanding immediately prior to the Effective
Date or held in the treasury of First MedCorp shall, by virtue of the merger
and without any action on the part of the holder thereof, thereupon be canceled
and retired and cease to exist.
2.2 After the Effective Date, each holder of an outstanding certificate
or certificates which immediately prior thereto represented shares of First
MedCorp stock, common or preferred, will, upon surrender of such certificate or
certificates, be entitled to be paid in cash the sum of $.01 per share.
1
<PAGE> 78
Section 3
Directors and Officers
The persons who are directors and officers of MPSC immediately prior to
the Effective Date shall continue as the directors and officers of the Surviving
Corporation and shall continue to hold office as provided in the bylaws of the
Surviving Corporation.
Section 4
Articles of Incorporation and Bylaws
4.1 From and after the Effective Date, the Articles of Incorporation of
MPSC, as in effect at such date, shall be the Articles of Incorporation of the
Surviving Corporation and shall continue in effect until the same shall be
altered, amended or repealed as therein provided or as provided by law.
4.2 From and after the Effective Date, the bylaws of MPSC, in effect at
such date, shall be the bylaws of the Surviving Corporation and shall continue
in effect until the same shall be altered, amended or repealed as therein
provided or as provided by law.
Section 5
Board Approval, Effectiveness of Merger
This Agreement has been approved by the board of directors of MPSC and
First MedCorp as provided by the Georgia and California Codes. The merger
shall become effective on the date on which the Articles of Merger
incorporating this Agreement are filed by the Secretary of State of Georgia
(said date is herein referred to as the "Effective Date").
Section 6
Miscellaneous
6.1 This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
6.2 This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Georgia.
IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed, their respective corporate
2
<PAGE> 79
seals to be affixed and the foregoing attested, all by their respective duly
authorized officers, as of the date hereinabove first written.
FIRST MEDCORP
By: /s/ Randolph G. Brown
---------------------------
[CORPORATE SEAL] Title: Chairman
------------------------
ATTEST
By:/s/ Pamela S. Topper
---------------------
Title: Secretary
------------------ MEDAPHIS PHYSICIAN
SERVICES CORPORATION
By: /s/ Randolph G. Brown
-----------------------
Title: Chairman
---------------------
[CORPORATE SEAL]
ATTEST
By:/s/ Pamela S. Topper
---------------------
Title: Secretary
------------------
3
<PAGE> 80
EXHIBIT B
STATE OF CALIFORNIA
OFFICE OF THE SECRETARY OF STATE
CORPORATION DIVISION
I, MARCH FONG EU, Secretary of State of the State of California, hereby
certify:
That the annexed transcript has been compared with the corporate record on
file in this office, of which it purports to be a copy, and that same is full,
true and correct.
IN WITNESS WHEREOF, I execute
this certificate and affix the Great
Seal of the State of California this
OCT 9 1992
------------
[SEAL]
<PAGE> 81
CERTIFICATE OF OWNERSHIP
OF
FIRST MEDCORP
Randolph G. Brown and Pamela S. Topper hereby certify that:
I. They are the president and the secretary, respectively, of Medaphis
Physician Services Corporation, a Georgia corporation ("MPSC").
II. MPSC owns all the outstanding shares of all classes of First MedCorp,
a California corporation.
III. The Board of Directors of MPSC duly adopted the following resolution:
RESOLVED, that the Corporation merge First MedCorp, its wholly-owned
subsidiary corporation, into itself and assume all its obligations pursuant
to Section 1110 of the California Corporation Code.
/s/ Randolph G. Brown
--------------------------------
Randolph G. Brown, President
/s/ Pamela S. Topper
--------------------------------
Pamela S. Topper, Secretary
The undersigned declare under penalty of perjury that the matters set forth in
the foregoing certificate are true of their own knowledge. Executed at Atlanta,
Georgia on July 16, 1992.
/s/ Randolph G. Brown
--------------------------------
Randolph G. Brown
/s/ Pamela S. Topper
--------------------------------
Pamela S. Topper
<PAGE> 82
October 19, 1992
Secretary of State
2 Martin Luther King, Jr., Drive, S.E.
Suite 315, West Tower
Atlanta, Georgia 30334
Attn: Corporate Division
RE: First MedCorp merger with and into
Medaphis Physician Services Corporation
Ladies and Gentlemen:
The undersigned, as Secretary of Medaphis Physician Services Corporation,
hereby certifies that she has requested a notice of merger to be published and
payment therefore has been made as required by O.C.G.A., Section 14-2-201 (b).
Medaphis Physician Services Corporation
/s/ Pamela S. Topper
---------------------------------------
Pamela S. Topper
Secretary
<PAGE> 83
SECRETARY OF STATE
BUSINESS SERVICES AND REGULATION
SUITE 315, WEST TOWER
2 MARTIN LUTHER KING JR. DR.
ATLANTA, GEORGIA 30334-1530 DOCKET NUMBER : 920700698
CONTROL NUMBER: 9000830
EFFECTIVE DATE: 02/28/1992
REFERENCE : 0077
PRINT DATE : 04/20/1992
FORM NUMBER : 411
MEDAPHIS CORPORATION
MICHELE SCOLLARD
STE 300, 2700 CUMBERLAND PKWY
ATLANTA, GEORGIA 30339
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Georgia Law certifying that articles or a certificate of
merger and fees have been filed regarding the merger of the below entities,
effective as of the date shown above. Attached is a true and correct copy of
said filing.
Surviving Corporation:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Non Surviving Corporation(s):
MEDICAL MANAGEMENT AND CONSULTANTS, INC., a Georgia corporation
/s/ Max Cleland
-------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL] /S/ Verley J. Spivey
-------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
CORPORATIONS HOTLINE
SECURITIES CEMETERIES CORPORATIONS (404) 656-2222
656-2894 656-3079 656-2817 Outside Metro Atlanta
<PAGE> 84
ARTICLES OF MERGER OF
MEDAPHIS PHYSICIAN SERVICES CORPORATION
AND
MEDICAL MANAGEMENT AND CONSULTANTS, INC.
I. Medaphis Physician Services Corporation, a Georgia corporation
("MPSC"), owns one hundred percent (100%) of the outstanding stock of
Medical Management and Consultants, Inc., a Georgia corporation ("MMC").
II. The Agreement and Plan of Merger attached hereto as Exhibit "A" and
incorporated by reference herein was duly approved by the Board of
Directors of MMC and MPSC.
III. The Agreement and Plan of Merger did not require approval by the
shareholders of MMC or MPSC.
IV. The name of the surviving corporation is Medaphis Physician Services
Corporation, a Georgia corporation.
MEDAPHIS PHYSICIAN
SERVICES CORPORATION
By: /s/ Randolph G Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
MEDICAL MANAGEMENT AND
CONSULTANTS, INC.
By: /s/ Randolph G. Brown
[CORPORATE SEAL] -----------------------------
Title: Chairman
ATTEST: --------------------------
By: /s/ Pamela S. Topper
-----------------------------
Title: Secretary
--------------------------
<PAGE> 85
EXHIBIT A
AGREEMENT AND PLAN OF MERGER OF
MEDICAL MANAGEMENT AND CONSULTANTS, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
This Agreement and Plan of Merger (the "Agreement") is made and entered
into this 28th day of February, 1992 by and between Medical Management and
Consultants, Inc., a Georgia corporation ("MMC"), and Medaphis Physician
Services Corporation, a Georgia corporation ("MPSC") (MMC and MPSC being
hereinafter sometimes collectively referred to as the "Constituent
Corporations").
Section 1
Merger
1.1 On the Effective Date, MMC shall be merged with and into MPSC, and
MPSC (the "Surviving Corporation") shall continue in existence and the merger
shall in all respects have the effect provided for in Section 14-2-1106 of the
Georgia Business Corporation Code.
1.2 Without limiting the foregoing, on and after the Effective Date, the
separate existence of MMC shall cease, and, in accordance with the terms of this
Agreement, the title to all real estate and other property owned by each of the
Constituent Corporations shall be vested in the Surviving Corporation without
reversion or impairment; the Surviving Corporation shall have all liabilities of
each of the Constituent Corporations; and any proceeding pending against any
Constituent Corporation may be continued as if the merger did not occur or the
Surviving Corporation may be substituted in its place.
Section 2
Terms of the Transaction
2.1 Upon the Effective Date, each share of MMC Common Stock issued and
outstanding immediately prior to the Effective Date or held in the treasury of
MMC shall, by virtue of the merger and without any action on the part of the
holder thereof, thereupon be canceled and retired and cease to exist.
2.2 After the Effective Date, each holder of an outstanding certificate or
certificates which immediately prior thereto represented shares of MMC Common
Stock will, upon surrender of such certificate or certificates, be entitled to
be paid in cash the sum of $1.00 per share.
1
<PAGE> 86
Section 3
Directors and Officers
The persons who are directors and officers of MPSC immediately prior to
the Effective Date shall continue as the directors and officers of the Surviving
Corporation and shall continue to hold office as provided in the bylaws of the
Surviving Corporation.
Section 4
Articles of Incorporation and Bylaws
4.1 From and after the Effective Date, the Articles of Incorporation of
MPSC, as in effect at such date, shall be the Articles of Incorporation of the
Surviving Corporation and shall continue in effect until the same shall be
altered, amended or repealed as therein provided or as provided by law.
4.2 From and after the Effective Date, the bylaws of MPSC, in effect at
such date, shall be the bylaws of the Surviving Corporation and shall continue
in effect until the same shall be altered, amended or repealed as therein
provided or as provided by law.
Section 5
Board Approval, Effectiveness of Merger
This Agreement has been approved by the board of directors of MPSC and MMC
as provided by the Georgia Business Corporation Code. The merger shall become
effective on the date on which the Articles of Merger incorporating this
Agreement are filed by the Secretary of State of Georgia (said date is herein
referred to as the "Effective Date").
Section 6
Miscellaneous
6.1 This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
6.2 This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Georgia.
IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed, their respective corporate
2
<PAGE> 87
seals to be affixed and the foregoing attested, all by their respective duly
authorized officers, as of the date hereinabove first written.
Medaphis Physician
Services Corporation
By: /s/ R.G. Brown
---------------------------
[CORPORATE SEAL] Title: Chairman
------------------------
ATTEST:
By:/s/ Pamela S. Topper
---------------------
Title: Secretary
------------------ Medical Management and
Consultants, Inc.
By: /s/ R.G. Brown
-----------------------
Title: Chairman
--------------------
[CORPORATE SEAL]
ATTEST:
By:/s/ Pamela S. Topper
---------------------
Title: Secretary
------------------
3
<PAGE> 88
February 26, 1992
Secretary of State
2 Martin Luther King, Jr, Drive, SE
Suite 315, West Tower
Atlanta, GA 30334
ATTN: Corporate Division
Re: Medaphis Physician Services Corporation Merger
With Medical Management & Consultants, Inc.
Gentlemen:
The undersigned, as Secretary of Medaphis Physician Services Corporation,
hereby certifies that she has requested a notice of merger to be published and
payment therefor has been made as required by O.C.G.A., Section 14-2-201.1(b).
Medaphis Physician Services Corporation
/s/ Pamela S. Topper
--------------------
Pamela S. Topper
Secretary
<PAGE> 89
Secretary of State DOCKET NUMBER : 920700554
Business Services and Regulation CONTROL NUMBER : 9000830
Suite 315, West Tower EFFECTIVE DATE : 02/28/1989
3 Martin Luther King, Jr. Dr. REFERENCE : 0069
Atlanta, Georgia 30334-1530 PRINT DATE : 03/16/1992
FORM NUMBER : 411
MEDAPHIS CORPORATION
MICHELE SCOLLARD
2700 CUMBERLAND PARKWAY, STE 300
ATLANTA, GEORGIA 30339
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Georgia Law certifying that articles or a
certificate of merger and fees have been filed regarding the merger of the
below entities, effective as of the date shown above. Attached is a true and
correct copy of said filing.
Surviving Entity:
MEDAPHIS PHYSICIAN SERVICES CORPORATION, a Georgia corporation
Nonsurviving Corporation(s):
PRACTICE MANAGEMENT GROUP, INC., a Tennessee corporation
/s/ Max Cleland
---------------------------
MAX CLELAND
SECRETARY OF STATE
/s/ Verley J. Spivey
---------------------------
[SEAL] VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOTLINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro Atlanta
<PAGE> 90
ARTICLES OF MERGER OF PRACTICE MANAGEMENT GROUP, INC.
AND MEDAPHIS PHYSICIAN SERVICES CORPORATION
I. Medaphis Physician Services Corporation, a Georgia corporation
("MPSC"), owns one hundred percent (100%) of the outstanding stock of
Practice Management Group, Inc., a Tennessee corporation ("PMG").
II. The Agreement and Plan of Merger attached hereto as Exhibit A and
incorporated by reference herein was duly approved by the Board of
Directors of MPSC and of PMG.
III. The Agreement and Plan of Merger did not require approval by the
shareholders of PMG or MPSC.
IV. The name of the surviving corporation is Medaphis Physician
Services Corporation, a Georgia corporation.
V. Medaphis Corporation, the sole shareholder of MPSC, has waived in
writing its right pursuant to Section 48-21-104(e) of the Tennessee
Corporation Act to receive a copy of the Agreement and Plan of Merger
thirty (30) days prior to its filing with the Secretary of State of
Tennessee.
PRACTICE MANAGEMENT GROUP, INC.
By: /s/ R. G. Brown
[CORPORATE SEAL] -----------------------------------------
Title: Chairman
---------------------------------------
By: /s/ Pamela S. Topper
---------------------
Pamela S. Topper
Secretary
MEDAPHIS PHYSICIAN
SERVICES CORPORATION
By:
/s/ R. G. Brown
[CORPORATE SEAL] -----------------------------------------
Title: Chairman
---------------------------------------
ATTEST:
By: /s/ Pamela S. Topper
---------------------
Pamela S. Topper
Secretary
<PAGE> 91
AGREEMENT AND PLAN OF MERGER OF
PRACTICE MANAGEMENT GROUP, INC.
WITH AND INTO
MEDAPHIS PHYSICIAN SERVICES CORPORATION
This Agreement and Plan of Merger (the "Agreement") is made and entered
into this 28th day of February, 1992 by and between Practice Management Group,
Inc., a Tennessee corporation ("PMG"), and Medaphis Physician Services
Corporation, a Georgia corporation ("MPSC") (PMG and MPSC being hereinafter
sometimes collectively referred to as the "Constituent Corporations").
Section 1
Merger
1.1 On the Effective Date (as hereinafter defined), PMG shall be merged
with and into MPSC, and MPSC (the "Surviving Corporation") shall continue in
existence and the merger shall in all respects have the effect provided for in
Section 14-2-1106 of the Georgia Business Corporation Code and Section
48-21-106 of the Tennessee Business Corporation Act.
1.2 Without limiting the foregoing, on and after the Effective Date, the
separate existence of PMG shall cease, and, in accordance with the terms of this
Agreement, the title to all real estate and other property owned by each of the
Constituent Corporations shall be vested in the Surviving Corporation without
reversion or impairment; the Surviving Corporation shall have all liabilities of
each of the Constituent Corporations; and any proceeding pending against any
Constituent Corporation may be continued as if the merger did not occur or the
Surviving Corporation may be substituted in its place.
Section 2
Terms of the Transaction
2.1 Upon the Effective Date, each share of PMG Common Stock issued and
outstanding immediately prior to the Effective Date or held in the treasury of
PMG shall, by virtue of the merger and without any action on the part of the
holder thereof, thereupon be canceled and retired and cease to exist.
2.2 After the Effective Date, each holder of an outstanding certificate
or certificates which immediately prior thereto represented shares of PMG Common
Stock will, upon surrender of such certificate or certificates, be entitled to
be paid in cash the sum of $1.00 per share.
1
<PAGE> 92
Section 3
Directors and Officers
The persons who are directors and officers of MPSC immediately prior to
the Effective Date shall continue as the directors and officers of the
Surviving Corporation and shall continue to hold office as provided in the
bylaws of the Surviving Corporation.
Section 4
Articles of Incorporation and Bylaws
4.1 From and after the Effective Date, the Articles of Incorporation of
MPSC, as in effect at such date, shall be the Articles of Incorporation of the
Surviving Corporation and shall continue in effect until the same shall be
altered, amended or repealed as therein provided by law.
4.2 From and after the Effective date, the bylaws of MPSC, in effect at
such date, shall be the bylaws of the Surviving Corporation and shall continue
in effect until the same shall be altered, amended or repealed as therein
provided or as provided by law.
Section 5
Board Approval Effectiveness of Merger
This Agreement has been approved by the board of directors of MPSC and of
PMG as provided by the Georgia Business Corporation Code and Tennessee Business
Corporation Act. The merger shall become effective on the date on which the
Articles of Merger incorporating this Agreement are filed by the Secretary of
State of Georgia (said date is herein referred to as the "Effective Date."
Section 6
Miscellaneous
6.1 This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
6.2 This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Georgia.
IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed, their respective corporate
2
<PAGE> 93
seals to be affixed and the foregoing attested, all by their respective duly
authorized officers, as of the date hereinabove first written.
PRACTICE MANAGEMENT GROUP, INC.
(CORPORATE SEAL) BY: /s/ R. G. Brown
-------------------------------------
TITLE: Chairman
----------------------------------
ATTEST:
BY: /s/Pamela S. Topper
-------------------------------------
TITLE: SECRETARY
----------------------------------
MEDAPHIS PHYSICIAN
SERVICES CORPORATION
(CORPORATE SEAL) BY: /s/ R. G. Brown
-------------------------------------
TITLE: Chairman
----------------------------------
ATTEST:
BY: /s/Pamela S. Topper
- -------------------------------------
TITLE: SECRETARY
- ----------------------------------
3
<PAGE> 94
February 28, 1992
Secretary of State
2 Martin Luther King, Jr., Drive, SE
Suite 315, West Tower
Atlanta, GA 30334
ATTN: Corporate Division
Re: Medaphis Physician Services Corporation
Merger with Practice Management Group, Inc.
Gentlemen:
The undersigned, as Secretary of Medaphis Physician Services Corporation,
hereby certifies that she has requested a notice of merger to be published and
payment therefor has been made as required by O.C.G.A., Section 14-2-201.1(b).
Medaphis Physician Services Corporation
/s/ Pamela S. Topper
---------------------------------------------
Pamela S. Topper
Secretary
<PAGE> 95
Secretary of State TRANSACTION NUMBER : 90046114
Business Services And Regulation CHARTER NUMBER : 9000830
Suite 306, West Tower DATE INCORPORATED : 01/16/90
2 Martin Luther King, Jr., Dr. EFFECTIVE DATE : 02/15/90
Atlanta, Georgia 30334-1530 EXAMINER : JACKIE SLATE
TELEPHONE : 404-656-2821
REQUESTED BY:
MEDAPHIS CORPORATION
MICHAEL P. KENNEDY
210 INTERSTATE NORTH, STE 601
ATLANTA, GA 30339
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State and the Corporations Commissioner of
the State of Georgia do hereby certify, under the seal of my office, that
articles of merger have been duly filed on the effective date set forth above,
merging
- -------------------------------------------------------------------------------
"MEDICAL DATA SERVICES CORPORATION," a Virginia corp.
merged into
"MEDAPHIS PHYSICIAN SERVICES CORPORATION," a Georgia corp.
- -------------------------------------------------------------------------------
and the fees therefor paid as provided by law, and that attached hereto is a
true and correct copy of said articles of merger.
WITNESS, my hand and official seal, in the City of Atlanta and the State
of Georgia on the date set forth below.
DATE: FEBRUARY 16, 1990
FORM A6 (JULY 1989)
/s/Max Cleland
MAX CLELAND
SECRETARY OF STATE
/s/H. Wayne Howell
H. WAYNE HOWELL
DEPUTY SECRETARY OF STATE
[SEAL]
<TABLE>
<S> <C> <C> <C>
SECURITIES CEMETERIES CORPORATIONS CORPORATION HOT-LINE
656-2894 656-3079 656-2817 404-656-2222
</TABLE>
<PAGE> 96
CERTIFICATE OF MERGER
OF MEDICAL DATA SERVICES CORPORATION
INTO MEDAPHIS PHYSICIAN SERVICES CORPORATION
The undersigned, duly authorized officers of their respective
corporations, pursuant to Section 14-2-1105(b) of the Georgia Business
Corporation Code, hereby execute the following Certificate of Merger:
I. Names of Corporations
The names of the corporations proposing to merge are Medical Data
Services Corporation, a Virginia corporation ("MDS") and Medaphis Physician
Services Corporation, a Georgia corporation ("MPSC"). The name of the
surviving corporation shall be "Medaphis Physician Services Corporation."
II. Plan of Merger
MDS shall be merged into MPSC, which will be the surviving corporation,
in accordance with the provisions of the Agreement and Plan of Merger which is
on file at the principal place of business of MPSC at 210 Interstate North
Parkway, Suite 601, Atlanta, Georgia 30339.
III. Inspection of Plan of Merger.
MPSC shall furnish a copy of the Agreement and Plan of Merger on request
and without charge to any shareholder of MDS or MPSC.
IN WITNESS WHEREOF, each of the corporations has caused this Certificate
of Merger to be executed in their respective name by their respective duly
authorized officers on the 12th day of February, 1990.
MEDICAL DATA SERVICES MEDAPHIS PHYSICIAN
CORPORATION SERVICES CORPORATION
BY: /s/Randolph G. Brown BY: /s/Gene P. Kaczmarski
-------------------------------- -------------------------------------
Randolph G. Brown Gene P. Kaczmarski
President and Chief President
Executive Officer
Attest: /s/Michael P. Kennedy Attest: /s/ Michael P. Kennedy
---------------------------- ----------------------------------
Title: Assistant Secretary Assistant Secretary
----------------------------- ----------------------------------
(AFFIX CORPORATE SEAL) (AFFIX CORPORATE SEAL)
<PAGE> 97
CERTIFICATE OF OFFICER REGARDING
REQUEST FOR PUBLICATION OF NOTICE OF
INTENT TO FILE CERTIFICATE OF MERGER
The undersigned officer of Medaphis Physician Services Corporation, the
surviving corporation in the proposed merger pursuant to the Georgia Business
Corporation Code with Medical Data Services Corporation, a Virginia
corporation, hereby certifies that the request for publication of a notice of
intent to file the Certificate of Merger and payment therefor, have been made
as required by Section 14-2-1105.1(b) of the Georgia Business Corporation Code.
This 6th day of February, 1990.
/s/Gene P. Kaczmarski
-------------------------------------------
Gene P. Kaczmarski, President
<PAGE> 98
CERTIFICATE OF OFFICER REGARDING
REQUEST FOR PUBLICATION OF NOTICE OF
INTENT TO FILE CERTIFICATE OF MERGER
The undersigned officer of Medaphis Physician Services Corporation, the
surviving corporation in the proposed merger pursuant to the Georgia Business
Corporation Code with Medical Data Services Corporation, a Virginia
corporation, hereby certifies that the request for publication of a notice of
intent to file the Certificate of Merger and payment therefor, have been made
as required by Section 14-2-1105.1(b) of the Georgia Business Corporation Code.
This 6th day of February, 1990.
/s/Gene P. Kaczmarski
-------------------------------------------
Gene P. Kaczmarski, President
<PAGE> 99
Secretary of State CHARTER NUMBER : 9000830 DP
Business Services And Regulation DATE INCORPORATE 01/16/1990
Suite 306, West Tower COUNTY : FULTON
2 Martin Luther King, Jr., Dr. EXAMINER : PAM E. NEAL
Atlanta, Georgia 30334-1530 TELEPHONE : 404-636-2968
MAILED TO:
MICHAEL P. KENNEDY
210 INTERSTATE NORTH PKWY #601
ATLANTA, GA 30339
CERTIFICATE OF INCORPORATION
I, MAX CLELAND, SECRETARY OF STATE AND THE CORPORATIONS COMMISSIONER OF THE
STATE OF GEORGIA DC HEREBY CERTIFY, UNDER THE SEAL OF MY OFFICE THAT
- -----------------------------------------------------------------------------
"MEDAPHIS PHYSICIAN SERVICES CORPORATION"
- -----------------------------------------------------------------------------
HAS BEEN DULY INCORPORATED UNDER THE LAWS OF THE STATE OF GEORGIA ON THE DATE
SET FORTH ABOVE, BY THE FILING OF ARTICLES OF INCORPORATION IN THE OFFICE OF THE
SECRETARY OF STATE AND THE FEES THEREFOR PAID, AS PROVIDED BY LAW, AND THAT
ATTACHED HERETO IS A TRUE COPY OF SAID ARTICLES OF INCORPORATION.
WITNESS MY HAND AND OFFICIAL SEAL, IN THE CITY OF ATLANTA AND THE STATE OF
GEORGIA ON THE DATE SET FORTH BELOW.
DATE:
/s/ Max Cleland
---------------------------
MAX CLELAND
SECRETARY OF STATE
/s/ H. WAYNE HOWELL
---------------------------
[SEAL] H. WAYNE HOWELL
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOTLINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro Atlanta
<PAGE> 100
ARTICLES OF INCORPORATION
OF
MEDAPHIS PHYSICIAN SERVICES CORPORATION
I.
The name of the Corporation is:
Medaphis Physician Services Corporation
II.
The Corporation shall have authority to issue 1,000 shares of common stock,
and the par value of each share shall be one dollar ($1.00).
III.
The initial registered office of the Corporation shall be at 2 Peachtree
Street N.W., Atlanta, Georgia 30383, in Fulton County. The initial registered
agent of the Corporation at such address shall be CT Corporation System.
IV.
The name and address of the incorporator are:
Michael P. Kennedy
210 Interstate North Parkway
Suite 601
Atlanta, Georgia 30339
V.
The mailing address of the initial principal office of the Corporation is
210 Interstate North Parkway, Suite 601, Atlanta, Georgia 30339.
VI.
The initial Board of Directors shall consist of three (3) members who
shall be and whose addresses are:
Randolph G. Brown
210 Interstate North Parkway
Suite 601
Atlanta, Georgia 30339
Gene P. Kaczmarski
210 Interstate North Parkway
Suite 601
Atlanta, Georgia 30339
<PAGE> 101
Timothy J. Kilgallon
210 Interstate North Parkway
Suite 601
Atlanta, Georgia 30339
VII.
No director shall have any personal liability to the Corporation or to its
shareholders for monetary damages for breach of duty of care or other duty as a
director, by reason of any act or omission occurring subsequent to the date
when this provision becomes effective, except that this provision shall not
eliminate or limit the liability of a director for (a) any appropriation, in
violation of his duties, of any business opportunity of the Corporation; (b)
acts or omissions which involve intentional misconduct or a knowing violation
of law; (c) liabilities of a director imposed by Section 14-2-832 of the
Georgia Business Corporation Code; or (d) any transaction from which the
director derived an improper personal benefit.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation this 12th day of January 1990.
/s/ Michael P. Kennedy
----------------------
Michael P. Kennedy
Incorporator
<PAGE> 102
Secretary of State FORM NUMBER : NR
Business Services And Regulation EFFECTIVE DATE : 12/13/89
Suite 306, West Tower REFERENCE : 89346527
2 Martin Luther King, Jr., Dr. PRINT DATE : STACY GILLEY
Atlanta, Georgia 30334-1530 FORM NUMBER : 404-656-3173
REQUESTED BY:
MEDAPHIS CORPORATION / M. KENNEDY
#601 210 INTERSTATE NORTH
ATLANTA, GA 30339
NAME RESERVATION CERTIFICATE
THE RECORDS OF THE SECRETARY OF STATE HAVE BEEN REVIEWED AND THE FOLLOWING
NAME IS NOT IDENTICAL TO, AND APPEARS TO BE DISTINGUISHABLE FROM, THE NAME OF
ANY OTHER EXISTING CORPORATION PROFESSIONAL ASSOCIATION, OR LIMITED PARTNERSHIP
ON FILE PURSUANT TO THE APPLICABLE PROVISIONS OF GEORGIA LAW. (TITLE 14 OF THE
OFFICIAL CODE OF GEORGIA ANNOTATED).
- -----------------------------------------------------------------------------
"MEDAPHIS PHYSICIAN SERVICES CORPORATION"
- -----------------------------------------------------------------------------
THIS CERTIFICATE SHALL BE VALID FOR A PERIOD OF TWO CALENDAR MONTHS FOR
PROFIT AND NONPROFIT CORPORATIONS AND PROFESSIONAL ASSOCIATES (DP, FP, DH, FM, &
PA), OR SIXTY (60) DAYS FOR LIMITED PARTNERSHIP (7D OR 7F), FROM THE DATE OF
THIS CERTIFICATE. PLEASE SUBMIT THE ORIGINAL CERTIFICATE (WHITE COPY) WITH THE
ARTICLES OF INCORPORATION, CERTIFICATE OF LIMITED PARTNERSHIP, APPLICATION FOR
PROFESSIONAL ASSOCIATION OR CERTIFICATE OF AUTHORITY TO TRANSACT BUSINESS.
NAME RESERVATIONS ARE NOT RENEWABLE AFTER EXPIRATION OF THE STATUTORY
RESERVATION PERIOD SET OUT ABOVE.
/s/ Max Cleland
---------------------------
MAX CLELAND
SECRETARY OF STATE
/s/ H. Wayne Howell
---------------------------
[SEAL] H. WAYNE HOWELL
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOTLINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro Atlanta
<PAGE> 103
MEDAPHIS PHYSICIAN SERVICES CORPORATION
CERTIFICATE OF INCORPORATION
REGARDING
REQUEST FOR PUBLICATION OF NOTICE
OF
INTENT TO INCORPORATE
The undersigned incorporator of Medaphis Physician Services Corporation, a
corporation to be formed pursuant to the Georgia Business Corporation Code,
hereby certifies that the request for publication of a notice of intent to
file the Articles of Incorporation of Medaphis Physician Services Corporation,
and payment therefor, have been made as required by Section 14-2-201.1(b) of
the Georgia Business Corporation Code.
This 12th day of January, 1990.
/s/ Michael P. Kennedy
--------------------------------
Michael P. Kennedy, Incorporator
<PAGE> 1
EXHIBIT 3.8
BYLAWS
OF
MEDAPHIS PHYSICIAN SERVICES CORPORATION
ARTICLE I
OFFICES
The Corporation will at all times maintain a registered office in the
State of Georgia and a registered agent at that address but may have other
offices located within or outside the State of Georgia as the Board of
Directors may determine.
ARTICLE II
SHAREHOLDERS' MEETINGS
2.1 Annual Meeting. A meeting of shareholders of the Corporation shall be
held annually. The annual meeting shall be held at such time and place and on
such date as the Directors shall determine from time to time and as shall be
specified in the notice of the meeting.
2.2 Special Meeting. Special meetings of the shareholders may be called
at any time by the Board of Directors, the President or any holder or holders
of at least twenty-five percent (25%) of the outstanding capital stock of the
Corporation. Special meetings shall be held at such a time and place and on
such date as shall be specified in the notice of the meeting.
2.3 Place. Annual or special meetings of shareholders may be held within
or without the State of Georgia.
2.4 Notice. Notice of annual or special shareholders meetings stating the
place, day and hour of the meeting shall be given in writing not less than ten
(10) nor more than sixty (60) days before the date of the meeting, either
mailed to the last known address or personally given to each shareholder.
Notice of a meeting may be waived by an instrument in writing executed before
or after the meeting. The waiver need not specify the purpose of the meeting or
the business transacted, unless one of the purposes of the meeting concerns a
plan of merger or consolidation, in which event the waiver shall comply with
the further requirements of law concerning such waivers. Attendance at such
meeting in person or by proxy shall constitute a waiver of notice thereof.
Notice of any special meeting of shareholders shall state the purpose or
purposes for which the meeting is called. The notice of any meeting at which
amendments to or
1
<PAGE> 2
restatements of the articles of incorporation, merger or consolidation of the
corporation, or the disposition of corporate assets requiring shareholder
approval are to be considered shall state such purposes, and further comply
with all requirements of law.
2.5 Quorum. At all meetings of shareholders a majority of the outstanding
shares of stock shall constitute a quorum for the transaction of business, and
no resolution or business shall be transacted without the favorable vote of the
holders of a majority of the shares represented at a meeting where a quorum is
present and entitled to vote. When a quorum is once present to organize a
meeting the shareholders may continue to do business at the meeting or at any
adjournment thereof notwithstanding the withdrawal of enough shareholders to
leave less than a quorum. The holders of a majority of the voting shares
represented at a meeting, whether or not a quorum is present, may adjourn such
meeting from time to time.
2.6 Action in Lieu of Meeting. Any action to be taken at a meeting of the
shareholders of the corporation, or any action that may be taken at a meeting
of the shareholders, may be taken without a meeting if a consent in writing
setting forth the action so taken shall be signed by the holders of all of the
shares entitled to vote with respect to the subject matter thereof, or by the
holders of such lesser number of shares as may be required in accordance with
any lawful provision of the Articles of Incorporation, and any further
requirements of law pertaining to such consents have been complied with.
ARTICLE III
DIRECTORS
3.1 Management. Subject to these by-laws, the Articles of Incorporation,
any restrictions imposed by law or any lawful agreement between the
shareholders, the full and entire management of the affairs and business of the
corporation shall be vested in the Board of Directors, which shall have and may
exercise all of the powers that may be exercised or performed by the
corporation.
3.2 Number of Directors; Quorum. The shareholders shall fix by resolution
the precise number of members of the Board of Directors, provided that the
Board of Directors shall consist of not fewer than one (1) nor more than ten
(10) members. Directors shall be elected at each annual meeting of the
shareholders and shall serve for a term of one (1) year and until their
successors are elected. A majority of Directors shall constitute a quorum for
the transaction of business. All resolutions adopted and all business
transacted by the Board of Directors shall require the
2
<PAGE> 3
affirmative vote of a majority of the Directors present at a meeting where a
quorum is present.
3.3 Vacancies. The Directors may fill the place of any Director which may
become vacant prior to the expiration of his term, such appointment by the
Directors to continue until the expiration of the term of the Director whose
place has become vacant, or may fill any directorship created by reason of an
increase in the number of directors, such appointment by the Directors to
continue for a term of office until the next election of directors by the
Shareholders and until the election of the successor.
3.4 Meetings. The Directors shall meet annually, without notice,
following the annual meeting of the shareholders. Special meetings of the
Directors may be called at any time by the Chairman of the Board, the President
or by any two Directors if the Board has three or more directors, or by any
Director if the Board has less than three members, on two days' written notice
to each Director, which notice shall specify the time and place of the meeting.
Notice of any such meeting may be waived by an instrument in writing executed
before or after the meeting. Directors may attend and participate in meetings
either in person or by means of conference telephones or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting by means of such communication
equipment shall constitute presence in person at any meeting. Attendance in
person at such meeting shall constitute a waiver of notice thereof.
3.5 Action in Lieu of Meeting. Any action to be taken at a meeting of the
Directors, or any action that may be taken at a meeting of the Directors, may
be taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the Directors and any further requirements of
law pertaining to such consents have been complied with.
3.6 Removal. Any Director may be removed from office, with or without
cause, upon the majority vote of the shareholders, at a meeting with respect to
which notice of such purpose is given.
ARTICLE IV
OFFICERS
4.1 General Provisions. The officers of the Corporation shall consist
of a Chairman of the Board, a President, a Secretary and a Treasurer who shall
be elected by the Board of Directors, and such other officers as may be elected
by the board of Directors or appointed as provided in these Bylaws. Each
officer shall be elected or appointed for a term of office running until the
meeting of the Board of Directors following the
3
<PAGE> 4
next annual meeting of the shareholders of the Corporation, or such other term
as provided by resolution of the Board of Directors or the appointment to
office. Each officer shall serve for the term of office for which he is elected
or appointed and until his successor has been elected or appointed and has
qualified or his earlier resignation, removal from office or death. Any two or
more offices may be held by the same person.
4.2 Chairman of the Board. The Chairman of the Board of Directors if
elected, shall preside, if present, at all meetings of the Board of Directors,
shall be the chief executive officer of the Corporation and shall be
responsible for the general supervision, direction and control of the business
of the Corporation, and shall have and perform such other duties as from time
to time may be assigned by the Board of Directors.
4.3 President. The President shall have the powers and duties of
supervision and management usually vested in the office of President of a
corporation. He shall preside at all meetings of the stockholders if present
thereat, and in the absence or non-election of the Chairman of the Board of
Directors, at all meetings of the Board of Directors, and shall have general
supervision, direction and control of the business of the Corporation. Except
as the Board of Directors shall authorize the execution thereof in some other
manner, he shall execute bonds, mortgages, and other contracts on behalf of the
Corporation, and shall cause the seal to be affixed to any instrument requiring
it and when so affixed the seal shall be attested by the signature of the
Secretary, an Assistant Secretary or the Treasurer.
4.4 Secretary. The Secretary shall keep minutes of all meetings of the
shareholders and Directors and have charge of the minute books, stock books and
seal of the corporation and shall perform such other duties and have such other
powers as may from time to time be delegated to him by the President or the
Board of Directors.
4.5 Treasurer. The Treasurer shall be charged with the management of the
financial affairs of the corporation, shall have the power to recommend action
concerning the corporation's affairs to the President, and shall perform such
other duties and have such other powers as may from time to time be delegated
to him by the President or Board of Directors.
4.6 Assistant Secretaries and Treasurers. Assistants to the Secretary
and Treasurer may be appointed by the President or elected by the Board of
Directors and shall perform such duties and have such powers as shall be
delegated to them by the President or the Board of Directors.
4
<PAGE> 5
4.7 Vice Presidents. The corporation may have one or more Vice
Presidents, elected by the Board of Directors, who shall perform such duties and
have such powers as may be delegated by the President or the Board of Directors.
ARTICLE V
CAPITAL STOCK
5.1 Share Certificates. Share certificates shall be numbered in the
order in which they are issued. They shall be signed by the Chairman of the
Board, the President or any Vice President and Secretary or an Assistant
Secretary and the seal of the corporation shall be affixed thereto. Share
certificates shall be kept in a book and shall be issued in consecutive order
therefrom. The name of the person owning the shares, the number of shares, and
the date of issue shall be entered on the stub of each certificate. Share
certificates exchanged or returned shall be cancelled by the Secretary or an
Assistant Secretary and placed in their original place in the stock book.
5.2 Transfer of Shares. Transfers of shares shall be made on the
stock books of the corporation by the holders in person or by power of attorney,
on surrender of the old certificates for such shares, duly assigned.
5.3 Voting. The holders of the capital stock shall be entitled to one
vote for each share of stock standing in their name.
ARTICLE VI
SEAL
The seal of the Corporation shall be in such form as the Board of
Directors may from time to time determine. In the event it is inconvenient to
use such a seal at any time, the signature of the Corporation followed by the
word "Seal" enclosed in parentheses or scroll shall be deemed the seal of the
corporation. The seal shall be in the custody of the Secretary and affixed by
him or by his assistants on the certificates of stock and other appropriate
papers.
ARTICLE VII
AMENDMENT
These Bylaws may be amended by majority vote of the Board of Directors
of the Corporation or by majority vote of the shareholders, provided that the
shareholders may provide by resolution that any Bylaw provision repealed,
amended, adopted or
5
<PAGE> 6
altered by them may not be repealed, amended, adopted or altered by the Board
of Directors.
ARTICLE VIII
INDEMNIFICATION
Each person who is or was a director or officer of the Corporation, and
each person who is or was a director or officer of the corporation who at the
request of the Corporation is serving or has served as an officer, director,
partner, joint venturer or trustee of another corporation, partnership, joint
venture, trust or other enterprise shall be indemnified by the corporation
against those expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement which are allowed to be paid or reimbursed by the corporation
under the laws of the State of Georgia and which are actually and reasonably
incurred in connection with any action, suit, or proceeding, pending or
threatened, whether civil, criminal, administrative or investigative, in which
such person may be involved by reason of his being or having been a director or
officer of this corporation or of such other enterprises. Such indemnification
shall be made only in accordance with the laws of the State of Georgia and
subject to the conditions prescribed therein.
In any instance where the laws of the State of Georgia permit
indemnification to be provided to persons who are or have been an officer of
director of the Corporation or who are or have been an officer, director,
partner, joint venture or trustee of any such other enterprise only on a
determination that certain specified standards of conduct have been met, upon
application for indemnification by any such person the corporation shall
promptly cause such determination to be made by the shareholders, but shares
owned by or voted under the control of directors who are at the time parties to
the proceeding may not be voted on the determination.
As a condition to any such right of indemnification, the Corporation may
require that it be permitted to participate in the defense of any such action
or proceeding through legal counsel designated by the Corporation and at the
expense of the Corporation.
The Corporation may purchase and maintain insurance on behalf of any such
persons whether or not the Corporation would have the power to indemnify such
officers and directors against any liability under the laws of the State of
Georgia. If any expenses or other amounts are paid by way of indemnification,
other than by court order, action by shareholders or by an insurance carrier,
the Corporation shall provide notice of such
6
<PAGE> 7
payment to the shareholders in accordance with the provisions of the laws of
the State of Georgia.
Approved this 12th day of February, 1990.
/s/ Randolph G. Brown
- ------------------------
Randolph G. Brown
/s/ Gene P. Kaczmarski
- ------------------------
Gene P. Kaczmarski
/s/ Timothy J. Kilgallon
- ------------------------
Timothy J. Kilgallon
7
<PAGE> 1
EXHIBIT 3.9
ARTICLES OF INCORPORATION
OF
MEDSUB, INC.
I.
The name of the Corporation is:
MedSub, Inc.
II.
The Corporation shall have authority to issue 1,000 shares of common
stock, and the par value of each share shall be one cent ($.01).
III.
The initial registered office of the Corporation shall be at 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339, in Cobb County. The
initial registered agent of the Corporation shall be Pamela S. Topper, whose
address is 2700 Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
IV.
The name and address of the incorporator is:
Pamela S. Topper
2700 Cumberland Parkway
Suite 300
Atlanta, Georgia 30339
V.
The mailing address of the initial principal office of the Corporation is
2700 Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
VI.
The initial Board of Directors shall consist of three (3) members who
shall be and whose addresses are:
Randolph G. Brown
2700 Cumberland Parkway
Suite 300
Atlanta, Georgia 30339
<PAGE> 2
Gene P. Kaczmarski
2700 Cumberland Parkway
Suite 300
Atlanta, Georgia 30339
Michael R. Cote
2700 Cumberland Parkway
Suite 300
Atlanta, Georgia 30339
VII.
No Director shall have any personal liability to the Corporation or to
its Shareholders for monetary damages for breach of the duty of care or any
other duty as a Director, by reason of any act or omission occurring subsequent
to the date when this provision becomes effective, except that this provision
shall not eliminate or limit the liability of a Director for (a) any
appropriation, in violation of his duties, of any business opportunity of the
Corporation; (b) acts or omissions which involve intentional misconduct or a
knowing violation of law; (c) liabilities of a Director imposed by Section
14-2-832 of the Georgia Business Corporation Code; or (d) any transaction from
which the Director derived an improper personal benefit.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation this 3rd day of August, 1993.
/s/ Pamela S. Topper
-------------------------------
Pamela S. Topper
Incorporator
<PAGE> 3
Secretary of State DOCKET NUMBER : 932440042
Business Services and Regulation CONTROL NUMBER : 9317650
Suite 315, West Tower EFFECTIVE DATE : 09/01/1993
2 Martin Luther King Jr. Dr. REFERENCE : 0094
Atlanta, Georgia 30334-1330 PRINT DATE : 09/01/1993
FORM NUMBER : 412
PARANET CORPORATION SERVICES, INC.
DOUGLAS W. JUNKER
3790 SATELLITE BLVD/ SUITE 102
DULUTH, GA 30136
CERTIFICATE OF MERGER AND NAME CHANGE
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Georgia Law certifying that articles or a certificate of
merger and fees have been filed regarding the merger of the below entities,
effective as of the date shown above. Attached is a true and correct copy of
said filing.
Surviving Entity::
MEDSUB, INC., a Georgia corporation
Changing its name to:
GOTTLIEB'S FINANCIAL SERVICES, INC.
Nonsurviving Entity/Entities:
GOTTLIEB'S FINANCIAL SERVICES, INC., a Florida corporation
ASSET MANAGEMENT OF JACKSONVILLE, INC., a Florida corporation
/s/ Max Cleland
-------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL]
/s/ Verley J. Spivey
-------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro-Atlanta
<PAGE> 4
CERTIFICATE OF MERGER
OF
GOTTLIEB'S FINANCIAL SERVICES, INC. AND
ASSET MANAGEMENT OF JACKSONVILLE, INC.
WITH AND INTO
MEDSUB, INC.
- - - - - - - - - - - - - - -
The undersigned corporation, organized and existing under and by
virtue of the Georgia Business Corporation Code (the "Code"), DOES HEREBY
CERTIFY:
1. Gottlieb's Financial Services, Inc., a Florida corporation, and
Asset Management of Jacksonville, Inc., a Florida corporation, are merging with
and into MedSub, Inc., a Georgia corporation (the "Merger"), and MedSub, Inc.
will be the surviving Georgia corporation following the Merger, using the name
"Gottlieb's Financial Services, Inc."
2. The Articles of incorporation of MedSub, Inc. (the "Articles"), as
amended hereby, will continue after the Merger as the Articles of Incorporation
of the surviving corporation. The Articles are hereby amended by deleting
Article I of the Articles in its entirety and substituting in lieu thereof the
following:
"The name of the Corporation is:
Gottlieb's Financial Services, Inc.
3. The executed Plan of Merger pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is Gottlieb's Financial Services, Inc., c/o Medaphis Corporation,
2700 Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Merger has been duly approved by unanimous written consent of
the shareholders of Gottlieb's Financial Services,
<PAGE> 5
Inc., by the written consent of the sole shareholder of Asset Management of
Jacksonville, Inc. and by the written consent of the sole shareholder of MedSub,
Inc.
IN WITNESS WHEREOF, MedSub, Inc. has caused its duly authorized officer to
execute and deliver this Certificate of Merger as of the 1st day of September,
1993.
MEDSUB, INC.
By: /s/ Michael R. Cote
------------------------------
Michael R. Cote
Senior Vice President and
Assistant Secretary
- 2 -
<PAGE> 6
CERTIFICATE OF PUBLICATION
OF
CERTIFICATE OF MERGER
OF
GOTTLIEB'S FINANCIAL SERVICES, INC. AND
ASSET MANAGEMENT OF JACKSONVILLE, INC.
WITH AND INTO
MEDSUB, INC.
The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by law.
MEDSUB, INC.
By: /s/ G. Edward Alexander, Jr.
------------------------------
G. Edward Alexander, Jr.
Vice President and Treasurer
<PAGE> 7
Secretary of State RESERVATION NUMBER : 932350834
Business Services and Regulation EFFECTIVE DATE : 08/23/1993
Suite 315, West Tower EXPIRATION DATE : 11/21/1993
2 Martin Luther King Jr. Dr. LICENSE NO. : N/A
Atlanta, Georgia 30334-1330 CONSENT ON FILE : N/A
PRINT ON FILE : 08/24/1993
FORM NUMBER : 506
MEDAPHIS CORPORATION
ATTN: MICHELE SCOLLARD
2700 CUMBERLAND AND PKWY., STE. 300
ATLANTA, GA 30339
NAME RESERVATION CERTIFICATE
I, MAX CLELAND, Secretary of State and the Corporation Commissioner of the
State of Georgia, do hereby certify under the seal of my office that the
records of the Secretary of State have been reviewed and the name
GOTTLIEB'S FINANCIAL SERVICES, INC.
is not identical to, and appears to be distinguishable from, the name of any
other existing corporation, limited partnership or professional association on
file pursuant to Title 14 of the Official Code of Georgia Annotated.
This certificate shall be valid for a nonrenewable period of ninety days from
the date of this certificate for profit and nonprofit corporations,
professional associations or limited partnerships. Please submit this original
certificate with any subsequent formation filing for a corporation, limited
partnership or professional association.
Name reservations are not renewable after expiration of the statutory
reservation period stated above.
/s/ Max Cleland
--------------------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL]
/s/ Verley J. Spivey
---------------------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro-Atlanta
<PAGE> 8
Secretary of State DOCKET NUMBER : 942080831
Business Services and Regulation CONTROL NUMBER : 9317650
Suite 315, West Tower EFFECTIVE DATE : 07/27/1994
2 Martin Luther King Jr. Dr. REFERENCE : 0069
Atlanta, Georgia 30334-1530 PRINT DATE : 07/27/1994
FORM NUMBER : 411
MEDAPHIS CORPORATION
MICHELE A. SCOLLARD
2700 CUMBERLAND PARKWAY, STE 300
ATLANTA, GEORGIA 30339
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
GOTTLIEB'S FINANCIAL SERVICES, INC., a Georgia corporation
Non-Surviving Entity:
SUNMED, INC., a Georgia corporation
/s/ Max Cleland
-------------------------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL]
/s/ Verley J. Spivey
-------------------------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro Atlanta
<PAGE> 9
ARTICLES OF MERGER OF
GOTTLIEB'S FINANCIAL SERVICES, INC.
AND
SUNMED, INC.
1. SunMed, Inc., a Georgia corporation ("SunMed"), will merge with and into
Gottlieb's Financial Services, Inc., a Georgia corporation ("GFS"), (the
"Merger"), and GFS will be the surviving corporation, pursuant to the
Agreement and Plan of Merger attached hereto as Exhibit "A" and
incorporated by reference herein.
2. The Merger was duly approved by the shareholders of SunMed and GFS.
3. The effective date of the merger is July 27, 1994.
GOTTLIEB'S FINANCIAL SERVICES, INC.
By: /s/ Pamela Topper
---------------------------------
[CORPORATE SEAL]
Title: Chairman
--------------------------------
ATTEST:
By: /s/ Pamela Topper
-------------------------------
Title: Secretary
----------------------------
SUNMED, INC.
By: /s/ Pamela Topper
--------------------------------
[CORPORATE SEAL]
Title: Chairman
--------------------------------
ATTEST:
By: /s/ Pamela Topper
-------------------------------
Title: Secretary
----------------------------
<PAGE> 10
AGREEMENT AND PLAN OF MERGER OF
SUNMED, INC.
WITH AND INTO
GOTTLIEB'S FINANCIAL SERVICES, INC.
This Agreement and Plan of Merger (the "Agreement") is made and entered
into this 27th day of July, 1994 by and between SunMed, Inc., a Georgia
corporation ("SunMed"), and Gottlieb's Financial Services, Inc., a Georgia
corporation ("GFS") (SunMed and GFS being hereinafter sometimes collectively
referred to as the "Constituent Corporations").
Section 1
Merger
1.1 On the Effective Date, SunMed shall be merged with and into GFS, and
GFS (the "Surviving Corporation") shall continue in existence and the merger
shall in all respects have the effect provided for in Section 14-2-1106 of the
Georgia Business Corporation Code.
1.2 Without limiting the foregoing, on and after the Effective Date, the
separate existence of SunMed shall cease, and, in accordance with the terms of
this Agreement, the title to all real estate and other property owned by each
of the Constituent Corporations shall be vested in the Surviving Corporation
without reversion or impairment; the Surviving Corporation shall have all
liabilities of each of the Constituent Corporations; and any proceeding pending
against any Constituent Corporation may be continued as if the merger did not
occur or the Surviving Corporation may be substituted in its place.
Section 2
Terms of the Transaction
2.1 Upon the Effective Date, each share of SunMed Common Stock issued and
outstanding immediately prior to the Effective Date or held in the treasury of
SunMed shall, by virtue of the merger and without any action on the part of the
holder thereof, thereupon be canceled and retired and cease to exist.
2.2 After the Effective Date, each holder of an outstanding certificate
or certificates which immediately prior thereto represented shares of SunMed
Common Stock will, upon surrender of such certificate or certificates, be
entitled to be paid in cash the sum of $1.00 per share.
1
<PAGE> 11
Section 3
Directors and Officers
The persons who are directors of GFS immediately prior to the Effective
Date shall continue as the directors of the Surviving Corporation and shall
continue to hold office as provided in the bylaws of the Surviving Corporation.
Section 4
Articles of Incorporation and Bylaws
4.1 From and after the Effective Date, the Articles of Incorporation of
GFS, as in effect at such date, shall be the Articles of Incorporation of the
Surviving Corporation and shall continue in effect until the same shall be
altered, amended or repealed as therein provided or as provided by law.
4.2 From and after the Effective Date, the bylaws of GFS, in effect at
such date, shall be the bylaws of the Surviving Corporation and shall continue
in effect until the same shall be altered, amended or repealed as therein
provided or as provided by law.
Section 5
Board Approval, Shareholder Approval, Effectiveness of Merger
This Agreement has been approved by the Board of Directors and the
shareholders of SunMed and GFS as provided by the Georgia Business Corporation
Code. The merger shall become effective upon the date of delivery of the
Articles of Merger to the Secretary of State of Georgia (said date is herein
referred to as the "Effective Date").
Section 6
Miscellaneous
6.1 This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
6.2 This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Georgia.
2
<PAGE> 12
IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed, their respective corporate seals to be affixed and the
foregoing attested, all by their respective duly authorized officers, as of the
date hereinabove first written.
Gottlieb's Financial Services, Inc.
By: /s/ Pamela Topper
--------------------------------
(CORPORATE SEAL)
Title: Chairman
ATTEST: -----------------------------
By: /s/ Pamela Topper
--------------------------
Title: Secretary
-----------------------
SunMed, Inc.
By: /s/ Pamela Topper
-------------------------------
(CORPORATE SEAL)
Title: Chairman
ATTEST: -----------------------------
By: /s/ Pamela Topper
--------------------------
Title: Secretary
-----------------------
3
<PAGE> 13
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
SUNMED, INC. WITH AND INTO
GOTTLIEB'S FINANCIAL SERVICES, INC.
The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newpaper, as required by O.C.G.A., Section 14-2-1105.1(b).
GOTTLIEB'S FINANCIAL SERVICES, INC.
By: /s/ Pamela Topper
--------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 14
Secretary of State DOCKET NUMBER : 961240469
Business Information and Services CONTROL NUMBER : 9317650
Suite 315, West Tower EFFECTIVE DATE : 05/03/1996
2 Martin Luther King Jr. Dr. REFERENCE : 0045
Atlanta, Georgia 30334-1530 PRINT DATE : 05/03/1996
FORM NUMBER : 401
KATHY L. SLAYMAN
PARANET CORPORATION SERVICES, INC.
3761 VENTURE DR., STE. 260
DULUTH, GA 30136
CERTIFICATE OF MERGER
I, the Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Georgia Law certifying the filing of articles of
merger, fees and required statutory approval regarding the merger of the below
entities, effective as of the date shown above.
Surviving Entity:
GOTTLIEB'S FINANCIAL SERVICES, INC., a Georgia corporation
Nonsurviving Entity/Entities:
MEDICAL MANAGEMENT-COMPUTER SERVICES, INC.
a Michigan corporation
/s/ Lewis A. Massey
--------------------------------------
[SEAL] LEWIS A. MASSEY
SECRETARY OF STATE
<PAGE> 15
CERTIFICATE OF MERGER
OF
MEDICAL MANAGEMENT-COMPUTER SERVICES, INC.
WITH AND INTO
GOTTLIEB'S FINANCIAL SERVICES, INC.
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. Medical Management-Computer Services, Inc., a Michigan corporation
("MMCS"), is merging with and into Gottlieb's Financial Services, Inc., a
Georgia corporation ("GFS") (the "Merger"), and GFS will be the surviving
Georgia corporation following the Merger, using the name "Gottlieb's Financial
Services, Inc."
2. The Articles of Incorporation of GFS (the "Articles") will continue
after the Merger as the Articles of the surviving corporation until thereafter
duly amended in accordance with their terms and the Code.
3. The executed Plan of Merger pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is Gottlieb's Financial Services, Inc., 2700 Cumberland Parkway,
Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any shareholder of any corporation
that is a party to the Merger.
5. The Merger has been duly approved by the written consent of the sole
shareholder of MMCS and by the written consent of the sole shareholder of GFS.
IN WITNESS WHEREOF, GFS has caused its duly authorized offer to execute and
deliver this Certificate of Merger as of the 3rd day of May, 1996.
GOTTLIEB'S FINANCIAL SERVICES, INC.
By: /s/ Michael R. Cote
--------------------------------
Michael R. Cote
Senior Vice President - Finance
and Chief Financial Officer
<PAGE> 16
GOTTLIEB'S FINANCIAL SERVICES, INC.
CERTIFICATE OF VERIFICATION OF
REQUEST FOR PUBLICATION
Pursuant to Section 14-2-1105.1(a) of the Georgia Business Corporation
Code, Gottlieb's Financial Services, Inc., a Georgia corporation, hereby
verifies that a request for publication of a notice of merger to merge Medical
Management-Computer Services, Inc. with and into Gottlieb's Financial Services,
Inc. and payment therefor have been made, as required by Section 14-2-1105.1(b)
of the Georgia Business Corporation Code.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
3rd day of May, 1996.
GOTTLIEB'S FINANCIAL SERVICES, INC.
By: /s/ Peggy Sherman
----------------------------------
Peggy P. Sherman
Vice President, Associate General
and Assistant Secretary
<PAGE> 1
EXHIBIT 3.10
BYLAWS
OF
MEDSUB, INC.
ARTICLE I
OFFICES
The Corporation will at all times maintain a registered office in the
State of Georgia and a registered agent at that address but may have other
offices located within or outside the State of Georgia as the Board of Directors
may determine.
ARTICLE II
SHAREHOLDERS' MEETINGS
2.1 Annual Meeting. A meeting of Shareholders of the Corporation
shall be held annually. The annual meeting shall be held at such time and place
and on such date as the Directors shall determine from time to time and as shall
be specified in the notice of the meeting.
2.2 Special Meeting. Special meetings of the Shareholders may be
called at any time by the Board of Directors, the President or any holder or
holders of at least twenty-five percent (25%) of the outstanding capital stock
of the Corporation. Special meetings shall be held at such a time and place and
on such date as shall be specified in the notice of the meeting.
2.3 Place. Annual or special meetings of Shareholders may be held
within or without the State of Georgia.
2.4 Notice. Notice of annual or special Shareholders meetings stating
the place, day and hour of the meeting shall be given in writing not less than
ten (10) nor more than sixty (60) days before the date of the meeting, either
mailed to the last known address or personally given to each Shareholder. Notice
of a meeting may be waived by an instrument in writing executed before or after
the meeting. The waiver need not specify the purpose of the meeting or the
business transacted, unless one of the purposes of the meeting concerns a plan
of merger or consolidation, in which event the waiver shall comply with the
further requirements of law concerning such waivers. Attendance at such meeting
in person or by proxy shall constitute a waiver of notice thereof. Notice of any
special meeting of Shareholders shall state the purpose or purposes for which
the meeting is called. The notice of any meeting at which amendments to or
restatements of the articles of incorporation, merger or consolidation of the
Corporation, or the
1
<PAGE> 2
disposition of corporate assets requiring Shareholder approval are to be
considered shall state such purposes, and further comply with all requirements
of law.
2.5 Quorum. At all meetings of Shareholders a majority of the outstanding
shares of stock shall constitute a quorum for the transaction of business, and
no resolution or business shall be transacted without the favorable vote of the
holders of a majority of the shares represented at a meeting where a quorum is
present and entitled to vote. When a quorum is once present to organize a
meeting of the Shareholders, the Shareholders may continue to do business at the
meeting or at any adjournment thereof notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum. The holders of a majority of the
voting shares represented at a meeting, whether or not a quorum is present, may
adjourn such meeting form time to time.
2.6 Action in Lieu of Meeting. Any action to be taken at a meeting of the
Shareholders of the Corporation, or any action that may be taken at a meeting of
the Shareholders, may be taken without a meeting if a consent in writing setting
forth the action so taken shall be signed by the holders of all of the shares
entitled to vote with respect to the subject matter thereof, or by the holders
of such lesser number of shares as may be required in accordance with any lawful
provision of the Articles of Incorporation, and any further requirements of law
pertaining to such consents have been complied with.
ARTICLE III
DIRECTORS
3.1 Management. Subject to these by-laws, the Articles of Incorporation,
any restrictions imposed by law or any lawful agreement between the
Shareholders, the full and entire management of the affairs and business of the
Corporation shall be vested in the Board of Directors, which shall have and may
exercise all of the powers that may be exercised or performed by the
Corporation.
3.2 Number of Directors; Quorum. The Shareholders shall fix by resolution
the precise number of members of the Board of Directors, provided that the Board
of Directors shall consist of not fewer than one (1) nor more than ten (10)
members. Directors shall be elected at each annual meeting of the Shareholders
and shall serve for a term of one (1) year and until their successors are
elected. A majority of Directors shall constitute a quorum for the transaction
of business. All resolutions adopted and all business transacted by the Board of
Directors shall require the affirmative vote of a majority of the Directors
present at a meeting where a quorum is present.
2
<PAGE> 3
3.3 Vacancies. The Directors may fill the place of any Director
which may become vacant prior to the expiration of his term, such appointment
by the Directors to continue until the expiration of the term of the Director
whose place has become vacant, or may fill any directorship created by reason
of an increase in the number of Directors, such appointment by the Directors to
continue for a term of office until the next election of Directors by the
Shareholders and until the election of the successor.
3.4 Meetings. The Directors shall meet annually, without notice,
following the annual meeting of the Shareholders. Special meetings of the
Directors may be called at any time by the President or by any two Directors if
the Board has three or more Directors, or by any Director if the Board has less
than three members, on two days' written notice to each Director, which notice
shall specify the time and place of the meeting. Notice of any such meeting may
be waived by an instrument in writing executed before or after the meeting.
Directors may attend and participate in meetings either in person or by means
of conference telephones or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation
in a meeting by means of such communication equipment shall constitute presence
in person at any meeting. Attendance in person at such meeting shall constitute
a waiver of notice thereof.
3.5 Action in Lieu of Meeting. Any action to be taken at a meeting of
the Directors, or any action that may be taken at a meeting of the Directors,
may be taken without a meeting if a consent in writing, setting forth the
action so taken, shall be signed by all of the Directors and any further
requirements of law pertaining to such consents have been complied with.
3.6 Removal. Any Director may be removed from office, with or without
cause, upon the majority vote of the Shareholders, at a meeting with respect to
which notice of such purpose is given.
ARTICLE IV
OFFICERS
4.1 General Provisions. The officers of the Corporation shall consist of
a President, a Secretary and a Treasurer who shall be elected by the Board of
Directors, and such other officers as may be elected by the Board of Directors
or appointed as provided in these Bylaws. Each officer shall be elected or
appointed for a term of office running until the meeting of the Board of
Directors following the next annual meeting of the Shareholders of the
Corporation, or such other term as provided by resolution of the Board of
Directors or the appointment of office. Each officer shall serve for the term
of his office for which he is elected or
3
<PAGE> 4
appointed and until his successor has been elected or appointed and is
qualified or his earlier resignation, removal from office or death. Any two or
more offices may be held by the same person.
4.2 President. The President shall have the powers and duties of
supervision and management usually vested in the office of President of a
corporation. He shall preside at all meetings of the stockholders if present
thereat, at all meetings of the Board of Directors, and shall have general
supervision, direction and control of the business of the Corporation. Except
as the Board of Directors shall authorize the execution thereof in some other
manner, he shall execute bonds, mortgages, and other contracts on behalf of the
Corporation, and shall cause the seal to be affixed to any instrument
requiring it and when so affixed the seal shall be attested by the signature of
the Secretary, an Assistant Secretary or the Treasurer.
4.3 Secretary. The Secretary shall keep minutes of all meetings of the
Shareholders and Directors and have charge of the minute books, stock books and
seal of the Corporation and shall perform such other duties and have such other
powers as may from time to time be delegated to him by the President or the
Board of Directors.
4.4 Treasurer. The Treasurer shall be charged with the management of the
financial affairs of the Corporation, shall have the power to recommend action
concerning the Corporation's affairs to the President, and shall perform such
other duties and have such other powers as may from time to time be delegated
to him by the President or Board of Directors.
4.5 Assistant Secretaries and Treasurer. Assistants to the Secretary and
Treasurer may be appointed by the President or elected by the Board of
Directors and shall perform such duties and have such powers as shall be
delegated to them by the President or the Board of Directors.
4.6 Vice Presidents. The Corporation may have one or more Vice
Presidents, elected by the Board of Directors, who shall perform such duties
and have such powers as may be delegated by the President or the Board of
Directors.
ARTICLE V
CAPITAL STOCK
5.1 Share Certificates. Share certificates shall be numbered in the
order in which they are issued. They shall be signed by the President or any
Vice President and the Secretary or an Assistant Secretary and the seal of the
Corporation shall be affixed thereto. Share certificates shall be kept in a book
and shall be issued in
4
<PAGE> 5
consecutive order therefrom. The name of the person owning the shares, the
number of shares, and the date of issue shall be entered on the stub of each
certificate. Share certificates exchanged or returned shall be canceled by the
Secretary or an Assistant Secretary and placed in their original place in the
stock book.
5.2 Transfer of Shares. Transfers of shares shall be made on the stock
books of the Corporation by the holders in person or by power of attorney, on
surrender of the old certificates for such shares, duly assigned.
5.3 Voting. The holders of the capital stock shall be entitled to one
vote for each share of stock in their name.
ARTICLE VI
SEAL
The seal of the Corporation shall be in such form as the Board of Directors
may from time to time determine. In the event it is inconvenient to use such a
seal at any time, the signature of the Corporation followed by the word "Seal"
enclosed in parentheses or scroll shall be deemed the seal of the Corporation.
The seal shall be in the custody of the Secretary and affixed by him or by his
assistants on the certificates of stock and other appropriate papers.
ARTICLE VII
AMENDMENT
These Bylaws may be amended by majority vote of the Board of Directors of
the Corporation or by majority vote of the Shareholders, provided that the
Shareholders may provide by resolution that any Bylaw provision repealed,
amended, adopted or altered by them may not be repealed, amended, adopted or
altered by the Board of Directors.
ARTICLE VIII
INDEMNIFICATION
Each person who is or was a Director or officer of the Corporation, and
each person who is or was a Director or officer of the Corporation who at the
request of the Corporation is serving or has served as an officer, director,
partner, joint venturer or trustee of another corporation, partnership, joint
venture, trust or other enterprise shall be indemnified by the Corporation
against
5
<PAGE> 6
those expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement which are allowed to be paid or reimbursed by the Corporation
under the laws of the State of Georgia and which are actually and reasonably
incurred in connection with any action, suit, or proceeding, pending or
threatened, whether civil, criminal, administrative or investigative, in which
such person may be involved by reason of his being or having been a director or
officer of this Corporation or of such other enterprises. Such indemnification
shall be made only in accordance with the laws of the State of Georgia and
subject to the conditions prescribed therein.
In any instance where the laws of the State of Georgia permit
indemnification to be provided to persons who are or have been an officer or
Director of the Corporation or who are or have been an officer, director,
partner, joint venturer or trustee of any such other enterprise only on a
determination that certain specified standards of conduct have been met, upon
application for indemnification by any such person the Corporation shall
promptly cause such determination to be made by the Shareholders, but shares
owned by or voted under the control of Directors who are at the time parties to
the proceeding may not be voted on the determination.
As a condition to any such right of indemnification, the Corporation may
require that it be permitted to participate in the defense of any such action
or proceeding through legal counsel designated by the Corporation and at the
expense of the Corporation.
The Corporation may purchase and maintain insurance on behalf of any such
persons whether or not the Corporation would have the power to indemnify such
officers and Directors against any liability under the laws of the State of
Georgia. If any expenses or other amounts are paid by way of indemnification,
other than by court order, action by Shareholders or by an insurance carrier,
the Corporation shall provide notice of such payment to the Shareholders in
accordance with the provisions of the laws of the State of Georgia.
6
<PAGE> 1
EXHIBIT 3.11
ARTICLES OF INCORPORATION
OF
TPAC, INC.
(a close corporation under Title 4 of the
Corporations and Associations Article of the
Annotated Code of Maryland)
FIRST: The undersigned, Charles E. Fenton, whose post office address
is 10 light Street, Baltimore, Maryland, 21202 being at least eighteen (18)
years of age, does hereby form a corporation under the general laws of the State
of Maryland.
SECOND: The name of the corporation (hereinafter called the
"Corporation") is
TPAC, INC.
THIRD: The Corporation shall be a "Close Corporation" as defined and
authorized by Title 4 of the Corporations and Associations Article of the
Annotated Code of Maryland.
FOURTH: The purposes for which the Corporation is formed are to carry
out and conduct accounts receivable management services and related services and
to exercise all the powers, rights and privileges granted to corporations under
the general laws of Maryland, including, but not limited to, anything permitted
in Section 2-103 of the Corporations and Associations Article of the Annotated
Code of Maryland, as amended from time to time; and to engage in such business
and transactions which the stockholders shall deem advisable.
FIFTH: The post office address of the principal office of the
Corporation in Maryland is 1900 Sulphur Spring Road, Baltimore, Maryland, 21227.
The name and post office address
<PAGE> 2
of the resident agent of the Corporation in Maryland are Dennis A. Pryor, 1900
Sulphur Spring Road, Baltimore, Maryland, 21227. Said agent is a citizen of
Maryland and actually resides therein.
SIXTH: The total number of shares of stock which the Corporation has
authority to issue is 100,000 shares of the par value of one dollar a share, all
of one class designated as Common Stock, and with an aggregate par value of
100,000 dollars.
SEVENTH: Conditions of and restrictions in the transfer of any share
or shares of stock in this Corporation shall be governed by those provisions set
forth in Section 4-503 of the said Corporations and Associations Article and
related sections of said Article, as amended from time to time.
EIGHTH: After completion of the organization meeting of the director
and the issuance of one or more shares of the stock of the Corporation, the
Corporation shall have no board of directors. Until such time, the Corporation
shall have one director whose name is Dennis A. Pryor.
NINTH: The following provisions are hereby adopted for the purposes of
defining, limiting and regulating the powers of the Corporation and
stockholders:
(1) The Corporation and its stockholder shall be empowered and
authorized to exercise all the rights and privileges conferred
upon a close corporation under Title 4 of the Corporations and
Associations Article of the Annotated Code of Maryland or as the
same may be amended from time to time, including without
limitation the authority to enter into one or more unanimous
stockholders' agreements as authorized by Section 401 under said
Title.
- 2 -
<PAGE> 3
(2) Upon the dissolution of the board of directors pursuant to Article
EIGHTH of these Articles of Incorporation, the stockholders, by
their direct action, shall manage the business and affairs of the
corporations and otherwise assume those powers and
responsibilities of directors as provided under Section 4-303 of
the said Corporations and Associations Article.
TENTH: The duration of this Corporation shall be perpetual.
IN WITNESS WHEREOF, I do hereby acknowledge these Articles of
Incorporation to be my act this 6th day of October, 1976.
/s/ CHARLES E. FENTON
-------------------------
Charles E. Fenton
- 3 -
<PAGE> 4
ARTICLES OF AMENDMENT
OF THE ARTICLES OF INCORPORATION
OF
MEDICAL MANAGEMENT SCIENCES, INC.
On December 16, 1985, all of the Directors and all of the Shareholders of
the Corporation found that the following proposed amendment of its Articles of
Incorporation was in the best interests of the Corporation, and all of said
Directors and Shareholders unanimously consented to the following proposed
amendment pursuant to Title I of the Code of Maryland.
ARTICLE SIX
The total number of shares of stock which the Corporation has authority to
issue is 10,000 shares of the par value of one dollar a share, all of one class
designated as Common Stock, and with an aggregate par value of 10,000 dollars.
The number of shares of stock which the Corporation has outstanding on
December 16, 1985, the number of shares entitled to vote on the proposed
amendment, and the number of shares that voted for and against the amendment
are as follows:
<TABLE>
<S> <C>
Common shares outstanding................................. 10,000
Common shares entitled to vote............................ 10,000
Common shares voting, FOR................................. 10,000
Common shares voting, AGAINST............................. 0
</TABLE>
Executed in the name of the Corporation by its President and Secretary who
declare under the penalties of perjury that the facts herein are true.
<PAGE> 5
Dated: December 16, 1985 Medical Management Sciences, Inc.
By:/S/
------------------------------
President
By:/S/
------------------------------
Secretary
<PAGE> 6
AGREEMENT AND ARTICLES OF MERGER
MERGING
MANAGED IMAGING, INC.
(a Corporation of the State of Delaware)
Into
MEDICAL MANAGEMENT SCIENCES, INC.
(a Close Corporation which has no Board of Directors
under Title 4 of the Corporations and Associations
Article of the Annotated Code of the State of Maryland)
AGREEMENT AND ARTICLES OF MERGER, dated as of December 29, 1995, made by
and between Medical Management Sciences, Inc., a close corporation organized and
existing under the laws of the State of Maryland ("MMS"), and Managed Imaging,
Inc., a corporation organized and existing under the laws of the State of
Delaware ("MII").
The parties agree as follows:
FIRST: MII shall be merged into MMS. Following the merger the separate
corporate existence of MII shall cease and MMS shall continue as the surviving
corporation (the "Surviving Corporation"). The terms and conditions of the
merger and the mode of carrying the same into effect are as herein set forth in
this Agreement and Articles of Merger.
SECOND: The parties to this Agreement and Articles of Merger are Medical
Management Sciences, Inc., a close corporation organized and existing under the
laws of the State of Maryland and Managed Imaging, Inc., a corporation
incorporated on the 20th day of October, 1993, under the General Corporation
Law of the State of Delaware, which corporation was qualified to do business in
the State of Maryland on the 3rd day of December, 1993.
THIRD: The articles of incorporation and by-laws of MMS as in effect on
the ????? date of the merger shall be the charter and by-laws of the Surviving
Corporation. The officers of MMS on the effective date of the merger shall be
the officers of the Surviving Corporation and the ????? of their resignation
or removal or until their successors are duly elected and qualified.
FOURTH: The total number of shares of capital stock of all classes which
MMS has authority to issue is 10,000 shares of common stock, par value $1.00 per
share (aggregate par value of $10,000). The total number of shares of capital
stock of all classes which MII has authority to issue is 1,500 shares of common
stock with no par value.
FIFTH: The manner and basis of converting or exchanging the outstanding
shares of the capital stock of the constituent corporations into the shares or
other securities of the Surviving Corporation shall be as follows:
Each issued and outstanding share of the capital stock of MII shall be
converted into and become one-hundredth of one fully paid and nonassessable
share of common stock, par value $1.00 per share, of the Surviving Corporation.
<PAGE> 7
(b) Each issued and outstanding share of common stock, par value
$1.00 per share of MMS shall remain outstanding as one share of common
stock, par value $1.00 par share, of the Surviving Corporation.
SIXTH: The principal office of MMS is located in the County of Baltimore,
State of Maryland. The principal office of MII is located in the County of
Baltimore, State of Maryland. MII owns no real property in the State of
Maryland.
SEVENTH: The terms and conditions of the transaction set forth in this
Agreement and Articles of Merger were duly advised, authorized, and approved by
MMS and MII in the manner and by the vote required by its charter and the laws
of the state where it is organized. The manner in which the merger was approved
is set forth below.
EIGHTH: The merger was duly approved by the stockholders of MMS by
unanimous written consent signed in accordance with Section 2-505 of the
Corporations and Associations Article of the Annotated Code of Maryland,
effective as of December 28, 1995.
NINTH: The terms and conditions of the transaction of merger as set forth
in this Agreement and Articles of Merger were approved by MII in the following
manner.
The merger to be effected by this Agreement and Articles of Merger was duly
advised, authorized and approved by MII, in the manner and by the vote required
by the laws of the State of Delaware and by the certificate of incorporation of
MII.
TENTH: The merger is intended to be a reorganization within the meaning of
Section 368 of the Internal Revenue Code of 1986, as amended (the "Code"), and
this Agreement and Articles of Merger is intended to be a "plan of
reorganization" within the meaning of the regulations promulgated under Section
368 of the Code.
ELEVENTH: The Surviving Corporation may be served with process in the
State of Delaware in any proceeding for enforcement of any obligation of MII, as
????? for enforcement of any obligations of the Surviving Corporation arising
from the merger, including any suit or other proceeding to enforce the right of
any stockholder as determined in appraisal proceedings pursuant to the
provisions of Section 262 of the General Corporation Law of the State of
Delaware, and it does hereby irrevocably appoint the Secretary of State of the
State of Delaware as its agent to accept service of process in any such suit or
other proceeding. The address to which a copy of such process shall be mailed by
the Secretary of State is Medical Management Sciences, Inc., 7135 Windsor
Boulevard, Baltimore, Maryland 21244, Attention: Corporate Secretary.
TWELFTH: This Agreement and Articles of Merger shall be filed in the
office of the State Department of Assessments and Taxation, State of Maryland,
and in the office of the Secretary of State of the State of Delaware, and a copy
duly certified by the Secretary of State of the State of Delaware shall be
recorded in the office of the recorder of deeds for Sussex County and upon
filing of this Agreement and Articles of Merger in the office of the State
Department of Assessments and Taxation, State of Maryland, and in the office of
the Secretary of State of Delaware, the merger herein provided for shall be
effective.
- 2 -
<PAGE> 8
IN WITNESS WHEREOF, Managed Imaging, Inc. and Medical Management
Sciences, Inc., the corporation parties to the merger, have caused this
Agreement and Articles of Merger to be signed in their respective corporate
names and on their behalf by their respective presidents or vice-presidents and
witnesses or attested by their respective secretaries or assistant secretaries
as of the day and year first written.
MANAGED IMAGING, INC.
By /s/ Darcy P. Pollack
----------------------
Name: Darcy P. Pollack
Title: President
Attest,
/s/ James F. Thacker
- ------------------------------
Name: James F. Thacker
Title: Secretary and Treasurer
MEDICAL MANAGEMENT SCIENCES, INC.
By /s/ William J. DeZonia
--------------------------
Name: William J. DeZonia
Title: President
Attest,
/s/ James F. Thacker
- ------------------------------
Name: James F. Thacker
Title: Secretary and Treasurer
- 3 -
<PAGE> 9
THE UNDERSIGNED, President of Managed Imaging, Inc., who executed on
behalf of said corporation the foregoing Agreement and Articles of Merger, of
which this certificate is made a part, hereby acknowledges, in the name on
behalf of said corporation, the foregoing Agreement and Articles of Merger to be
the corporate act of said corporation and further certifies that, to the best of
the undersigned's knowledge, information and belief, the matters and facts set
forth therein with respect to the approval thereof are true in all material
respects, under the penalties of perjury.
/s/ Darcy P. Pollack
--------------------
Darcy P. Pollack
THE UNDERSIGNED, President of Medical Management Sciences Inc., who
executed on behalf of said corporation the foregoing Agreement and Articles of
Merger, of which this certificate is made a part, hereby acknowledges, in the
name and on behalf of said corporation, the foregoing Agreement and Articles of
Merger to be the corporate act of said corporation and further certifies that to
the best of the undersigned's knowledge, information and belief, the matters and
facts set forth therein with respect to the approval thereof are true in all
material respects, under the penalties of perjury.
/s/ William J. DeZonia
-----------------------
William J. DeZonia
- 4 -
<PAGE> 10
I, James F. Thacker, Secretary of Managed Imaging, Inc., a corporation
organized and existing under the laws of the State of Delaware, hereby certify,
as such Secretary, and under the seal of the corporation, that the Agreement
and Articles of Merger to which this certificate is attached was duly submitted
to the stockholders of said corporation, for the purpose of considering and
taking action upon the proposed Agreement and Articles of Merger; that 100
shares of stock of said corporation were on said date issued and outstanding;
that the holders of 100 shares voted by unanimous written consent in favor of
the approval, no shares voted against the same, the said affirmative vote
representing 100% of the shares of each class of the outstanding capital stock
of said corporation, and that thereby the Agreement and Articles of Merger was
duly adopted as the act of the stockholders of said corporation and the duly
adopted agreement of said corporation.
/s/ James F. Thacker
--------------------------------------
JAMES F. THACKER
-5-
<PAGE> 11
ARTICLES OF MERGER
OF
CARSUB, INC.
WITH AND INTO
MEDICAL MANAGEMENT SCIENCES, INC.
Pursuant to Section 3-109 of the Maryland General Corporation Law (the
"MGCL"), each of the undersigned corporations adopts the following Articles of
Merger for the purpose of merging into a single corporation:
ARTICLE 1.
PARTIES TO THE MERGER; SURVIVING CORPORATION
Pursuant to that certain Merger Agreement, dated as of the 29th day of
December, 1995 (the "Merger Agreement"), by and among Medical Management
Sciences, Inc., a Maryland corporation ("MMS"), Medaphis Corporation, a Delaware
corporation ("Medaphis"), and CarSub, Inc., a Georgia corporation and a wholly
owned subsidiary of Medaphis ("CarSub"), each of the parties to these Articles
of Merger herewith agrees to merge into a single corporation.
(a) MMS was incorporated as a close corporation which has no Board of
Directors under Title 4 of the Corporations and Associations Article of the
Annotated Code.
(b) CarSub was incorporated under the general laws of the State of
Georgia on December 21, 1995 and is not qualified to do business in
Maryland.
(c) The surviving corporation upon completion of the merger (the
"Surviving Corporation") shall be MMS.
ARTICLE 2.
PRINCIPAL OFFICE; MARYLAND REAL PROPERTY
Section 2.1. CarSub has its principal office in the State of Georgia and
owns no interest in any land located in the State of Maryland.
<PAGE> 12
Section 2.2. MMS has its principal office in the County of Baltimore in
the State of Maryland. MMS owns no interest in any land located in the State of
Maryland.
Section 2.3. The name and address of the resident agent in the State of
Maryland of the Surviving Corporation is Corporation Trust Incorporated, 32
South Street, Baltimore, Maryland 21202.
ARTICLE 3.
APPROVAL OF THE MERGER
The terms and conditions of the merger set forth in these Articles of
Merger were duly advised, authorized and approved by each of the parties to the
merger in the manner and by the vote required by the Charter of each party and
by the laws of the State where each party is organized.
(a) The Merger Agreement was duly adopted and approved by the unanimous
written consent of the stockholders of MMS on December 29, 1995.
(b) The Merger Agreement was duly adopted and approved by the unanimous
written consent of the Board of Directors of CarSub on December 29,
1995. The Merger Agreement was duly adopted and approved by the
unanimous written consent of the sole shareholder of CarSub on
December 29, 1995.
ARTICLE 4.
STOCK
Section 4.1. MMS is authorized to issue 10,000 shares of Common Stock,
par value $1.00 per share ("MMS Stock"), with aggregate par value of $10,000.
Section 4.2. CarSub is authorized to issue 1,000 shares of Common Stock,
par value $.01 per share ("CarSub Stock"), with an aggregate par value of
$10.00.
-2-
<PAGE> 13
ARTICLE 5
PLAN OF MERGER
--------------
Section 5.1. Surviving Corporation. Subject to the provisions of the
Merger Agreement, the Georgia Business Corporation Code (the "GBCC") and the
MGCL, at the Effective Time (as hereinafter defined), CarSub shall be merged
with and into MMS and the separate corporate existence of CarSub shall cease.
MMS shall be the surviving corporation in the Merger (hereinafter sometimes
called the "Surviving Corporation") and shall continue its corporate existence
under the laws of the State of Maryland. The Merger shall have the effects set
forth in Section 3-114 of the MGCL.
Section 5.2. Effective Time. If all the conditions set forth in Article
6 of the Merger Agreement shall have been fulfilled or waived in accordance
with the terms thereof and the Merger Agreement shall not have been terminated
in accordance with Article 8 thereof, the parties thereto shall cause the
Georgia Certificate of Merger to be properly executed and filed with the
Secretary of State of the State of Georgia and these Maryland Articles of
Merger to be properly executed and filed with the Maryland Department of
Assessments and Taxation and the Merger shall become effective thereupon. The
date and time when the Merger becomes effective is herein referred to as the
"Effective Time."
Section 5.3. Effect of Merger. As of the Effective Time, by virtue of
the Merger and without any action on the part of any holder thereof, each share
of MMS Stock issued and outstanding immediately prior to the Effective Time
shall be converted into the right to receive 601.3229104 shares of common
stock, par value $.01 per share, of Medaphis ("Medaphis Stock"), each share of
MMS Stock that is held in the treasury of MMS shall be cancelled and retired
and all rights in respect thereof shall cease to exist without any conversion
thereof or payment of any consideration therefor and thereafter, each share of
CarSub Stock shall be converted into one share of MMS Stock.
Section 5.4. Method of Exchange. As of the Effective Time Medaphis will
make available to each MMS stockholder who, as of the Effective Time, was a
holder of an outstanding certificate or certificates which immediately prior to
the Effective Time represented shares of MMS Stock (the "Certificates"), a form
of letter of transmittal and instructions for use in effecting the surrender of
the Certificates for payment therefor. Delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon proper delivery of the
Certificates to Medaphis and the form of letter of transmittal shall so reflect.
Upon surrender to Medaphis of a Certificate, together with such letter of
transmittal duly executed, Medaphis shall deliver to the holder of such
Certificate 601.3229104 shares of Medaphis Stock
-3-
<PAGE> 14
for each share of MMS Stock represented by such Certificate, and the
Certificate so surrendered shall forthwith be canceled. No interest will be
paid or accrued on the purchase price payable upon the surrender of the
Certificates. From the Effective Time until surrender in accordance with the
provisions of Section 5.4 of the Merger Agreement, each Certificate shall
represent for all purposes only the right to receive the consideration provided
for in the Merger Agreement.
Section 5.5. Counterparts. These Articles of Merger may be executed in
any number of counterparts, each of which shall constitute an original but all
of which together shall constitute one and the same instrument.
-4-
<PAGE> 15
IN WITNESS WHEREOF, the parties hereto have caused these Articles of
Merger to be signed and sealed in their respective names and on their
respective behalf, this the 29th day of December, 1995.
CARSUB, INC.
[Corporate Seal] By: /s/ Michael R. Cote
---------------------------------
Michael R. Cote
Senior Vice President -- Finance,
Attest: Chief Financial Officer and
Secretary
By: /s/
--------------------------------
Title: Senior Vice President --
Administration, General
Counsel and Secretary
MEDICAL MANAGEMENT SCIENCES, INC.
[Corporate Seal] By: /s/ William DeZonia
---------------------------------
William DeZonia
President
Attest:
By: /s/
--------------------------------
Title:
-------------------------
- 5 -
<PAGE> 16
VERIFICATION
THE UNDERSIGNED, Co-Chairman of CarSub, Inc., a Georgia corporation, who
executed on behalf of said corporation the foregoing Articles of Merger, of
which this Certificate is made a part, to be the corporate act of said
corporation and further certifies that, to the best of his knowledge,
information and belief, the matters set forth therein are true in all material
respects, under the penalties of perjury.
/s/ RANDOLPH G. BROWN
-------------------------
Co-Chairman, Randolph G. Brown
THE UNDERSIGNED, President of Medical Management Sciences, Inc., a
Maryland corporation, who executed on behalf of said corporation the foregoing
Articles of Merger, of which this Certificate is made a part, to be the
corporate act of said corporation and further certifies that, to the best of his
knowledge, information and belief, the matters set forth therein are true in all
material respects, under the penalties of perjury.
/s/ WILLIAM DEZONIA
--------------------------
President, William DeZonia
<PAGE> 17
EXHIBIT A
ARTICLES OF MERGER
BETWEEN
EXECUTIVE FINANCIAL RESOURCES, INC. (VA. CORP)
AND
CONVENIENT CARE MANAGEMENT INC. (VA. CORP)
MERGING INTO
MEDICAL MANAGEMENT SCIENCES, INC. (MD. CORP) SURVIVOR
approved and received for record by the State Department of Assessments and
Taxation of Maryland December 27, 1983 at 9:05 o'clock AM, as in conformity with
law and ordered recorded.
002242
----------------
Recorded in Liber 2629, folio, one of the Charter Records of the State
Department of Assessments and Taxation of Maryland
----------------
Bonus tax paid $____________ Recording fee paid $20.00 Special Fee paid
$_________
----------------
To the clerk of the circuit Court of Baltimore County
IT IS HEREBY CERTIFIED, that the within instrument, together with all
endorsements thereon, has been received, approved and recorded by the State
Department of Assessments and Taxation of Maryland.
AS WITNESS my hand and seal of the said Department at Baltimore.
[SEAL]
<PAGE> 18
ARTICLES OF MERGER
MERGING
EXECUTIVE FINANCIAL RECOURSE, INC.
AND
CONVENIENT CARE MANAGEMENT, INC.
INTO
MEDICAL MANAGEMENT SCIENCES, INC.
(a close corporation under Title 4 of the Corporations, and Associations Article
of the Annotated code of Maryland)
Section 1 Executive Financial Resources, Inc., and Convenient Care
Management, Inc., (Corporations of the State of Virginia) both wholly owned
subsidiaries of Medical Management Sciences, Inc., and Medical Management
Sciences, Inc., (a close corporation under Title 4 of the Corporations and
Associations Article of the Annotated Code of Maryland), agree that Executive
Financial Resources, Inc., and Convenient Care Management, Inc., shall be merged
into Medical Management Sciences, Inc., upon and subject to the terms and
conditions and in the manner set forth in these Articles of Merger.
Section 2. Executive Financial Resources, Inc., and Convenient Care
Management, Inc., shall be merged into Medical Management Sciences, Inc., and
such merger shall become effective as of the date of the filing of these
Articles, the separate existence of Executive Financial Resources, Inc., and
Convenient Care Management, Inc., (hereinafter referred to collectively as the
Merged Corporations) shall cease and Medical Management Sciences, Inc.,
(hereinafter referred to collectively as the Merged Corporations) shall cease
and Medical Management Sciences, Inc., (hereinafter referred to as the Surviving
Corporation) shall continue in existence as the surviving corporation under the
charter and by-laws of the surviving
<PAGE> 19
Corporation without amendment thereof and shall continue to be governed by the
laws of Maryland under which it was formed.
Section 3. Executive Financial Resources, Inc., was incorporated under the
general laws of the Commonwealth of Virginia on July 23, 1982 and was qualified
to do business in the State of Maryland on May 9, 1983. Convenient Care
Management, Inc., was incorporated under the general laws of the Commonwealth of
Virginia on August 31, 1983. The Surviving Corporation was incorporated under
the general laws of the State of Maryland on October 6, 1976.
Section 4. The total number of shares of all classes of stock which
Executive Financial Resources, Inc., has authority to issue is 15,000 shares of
capital stock of the par value of $1.00 each, having an aggregate par value of
$15,000. The total number of shares of all classes of stock which Convenient
Care Management, Inc., has authority to issue is 25,000 shares of capital stock
of the par value of $1.00 each, having an aggregate par value of $25,000. The
total number of shares of all classes of stock which the Surviving Corporation
has authority to issue 100,000 shares of Common Stock of the par value of $1.00
each, having an aggregate value of $100,000.00.
Section 5. The manner and basis of converting or exchanging issued stock
of the Merged Corporations shall be as follows:
(a) Each share of the Common Stock, par value $1.00 per share of the
Surviving Corporation issued and outstanding shall remain outstanding as one
share of the Common Stock of the surviving corporation.
(2)
<PAGE> 20
(b) Each share of the Merged Corporations issued and outstanding shall be
retired and cancelled.
Section 6. The principal offices of Executive Financial Resources, Inc.,
is located in the City of Richmond, Virginia and the County of Baltimore, State
of Maryland. The principal office of Convenient Care Management, Inc., is
located in the City of Richmond, Virginia. The principal office of the
Surviving Corporation is located in the County of Baltimore, State of Maryland.
The merged corporations own no real property in the State of Maryland.
Section 7. The terms and conditions of the transaction set forth in these
articles were duly advised by the Board of Directors and authorized and approved
by the sole stockholder of the Merger Corporations and were authorized and
approved by the stockholders of the Surviving Corporation (a close corporation
which has no Board of Directors) in the manner and by the vote required by the
Corporations and Associations Article of the Annotated Code of Maryland.
IN WITNESS WHEREOF, the Merger Corporations and the Surviving Corporation,
the corporations parties to the merger, have caused these Articles to be signed
in their respective corporate names and on their behalf by their respective
Presidents who hereby acknowledge these Articles to be the corporate acts of
their respective corporation as of the 12th day of December, 1983, and under
penalty of perjury, acknowledge all material facts herein are true.
(3)
<PAGE> 21
ATTEST: MEDICAL MANAGEMENT SCIENCES, INC.
/s/ By /s/ (SEAL)
- ----------------------------- ------------------------------
Secretary President
ATTEST: EXECUTIVE FINANCIAL RESOURCES, INC.
/s/ By /s/ (SEAL)
- ------------------------------ ------------------------------
Secretary President
ATTEST: CONVENIENT CARE MANAGEMENT, INC.
/s/ By /s/ (SEAL)
- ------------------------------ ------------------------------
Secretary President
(4)
<PAGE> 22
ARTICLES OF MERGER
MERGING
MEDICAL MANAGEMENT SCIENCES, INC. (MD. CORP.)
INTO
TPAC, INC. (MD. CORP.) Survivor
Changing its name to:
MEDICAL MANAGEMENT SCIENCES, INC.
approved and received for record by the State Department of Assessments and
Taxation of Maryland June 23, 1997 at 11:00 o'clock A. M. as in conformity with
law and ordered recorded.
Recorded in Liber 2388, folio 002338, one of the Charter Records of the State
Department Assessments and Taxation of Maryland
Bonus tax paid $_________Recording fee paid $15.00 Specific fee paid $________
To the clerk of the Circuit Court of Baltimore County
IT IS HEREBY CERTIFIED, that within instrument, together with all
endorsements thereon, has been received, approved and recorded by the
State Department of Assessments and Taxation of Maryland.
AS WITNESS my hand and seal of the said Department of Baltimore.
[SEAL]
<PAGE> 23
ARTICLES OF MERGER AND AMENDMENT
MERGING
MEDICAL MANAGEMENT SCIENCES, INC.
INTO
TPAC, INC.
(a close corporation under Title 4 of the
Corporations and Associations Article of the
Annotated Code of Maryland)
AND
CHANGING THE NAME OF
TPAC, INC.
TO
MEDICAL MANAGEMENT SCIENCES, INC.
Section 1. Medical Management Sciences, Inc., a wholly owned subsidiary
of TPAC, Inc., and TPAC, Inc., (a close corporation under Title 4 of the
Corporations and Associations Article of the Annotated Code of Maryland),
corporations of the State of Maryland agree that Medical Management Sciences,
Inc., shall be merged into TPAC, Inc., upon and subject to the terms and
conditions and in the manner set forth in these Articles of Merger.
Section 2. Medical Management Sciences, Inc., shall be merged into TPAC,
Inc., and such merger shall become effective as of as of the date of filing of
these Articles of Merger. When the merger becomes effective, the separate
existence of Medical Management Sciences, Inc., (hereinafter referred to as the
Merged Corporation) shall cease and TPAC, Inc., (hereinafter referred to as the
Surviving Corporation) shall continue in existence as the surviving corporation
under the charter and by-laws
<PAGE> 24
of the Surviving Corporation without amendment thereof except as provided herein
and shall continue to be governed by the laws of Maryland under which it was
formed.
Section 3. The Merged Corporation was incorporated under the general laws
of the State of Maryland on February 22, 1977. The Surviving Corporation was
incorporated under the general laws of the State of Maryland on October 6, 1976.
Section 4. The total number of shares of all classes of stock which the
Merged Corporation has authority to issue is 100,000 shares of capital stock of
the par value of $1.00 each, having a aggregate par value of $100,000. The
total number of shares of all classes of stock which the Surviving Corporation
has authority to issue is 100,000 shares of Common Stock of the par value of
$1.00 each, having an aggregate par value of $100,000.
Section 5. The manner and basis of converting or exchanging issued stock
of the Merged Corporation shall be as follows:
(a) Each share of the Common Stock, par value $1.00 per share of the
Surviving Corporation issued and outstanding shall remain outstanding as one
share of the Common Stock of the surviving corporation.
(b) Each share of the Merged Corporation issued and outstanding shall be
retired and cancelled.
Section 6. The principal office of the Merged Corporation is located in
the County of Baltimore, State of Maryland. The principal office of the
Surviving Corporation is located in the
-2-
<PAGE> 25
County of Baltimore, State of Maryland. The merged corporation owns no real
property in the State of Maryland.
Section 7. The terms and conditions of the transaction set forth in these
articles were duly advised by the Board of Directors and authorized and
approved by the sole stockholder of the Merged Corporation and were authorized
and approved by the sole stockholder of the Surviving Corporation (a close
corporation which has no board of directors) in the manner and by the vote
required by the Corporations and Associations Article of the Annotated Code of
Maryland.
Section 8. The charter of the Surviving Corporation is hereby amended by
adding a new Article Eleventh set forth below and by striking out Articles
Second, Fourth and Fifth thereof
"SECOND: The name of the Corporation (hereinafter called the
"Corporation") is
MEDICAL MANAGEMENT SCIENCES, INC.
"FOURTH: The Corporation is formed for the purposes of providing
facilities management and related services for physicians, health care
organizations and other professional organizations and to engage in any
other lawful trades, business or activities as the stockholders may from
time to time determine and the Corporation shall have all the general
powers granted by law to corporations of the State of Maryland and all
other powers necessary or appropriate to such purposes not specifically
prohibited by law.
"FIFTH: The post office address of the principal office of the
Corporation in Maryland is The Beltway Landmark Building, 913D Landsdowne
Road, Baltimore, Maryland 21227. The name and post office address of the
resident agent of the Corporation in Maryland are Charles F. Fenton, 10
Light Street, Baltimore, Maryland 21202. Said resident agent is a citizen
of Maryland and actually resides therein.
"ELEVENTH: The corporation shall indemnify all persons permitted to
be indemnified by Section 2-418 of the Corporations and Associations
Article of the Maryland Annotated.
-3-
<PAGE> 26
code to the fullest extent now (or hereafter) permitted therein except that
the Corporation may but shall not be required to purchase or maintain
insurance on behalf of such persons as permitted in Subsection (h) of
Section 2-418 of the Corporations and Associations Article.
The amendments set forth above were approved by the sole stockholder of the
Surviving Corporation (a close corporation which has no board of directors).
IN WITNESS WHEREOF, the Merged Corporation and the Surviving Corporation,
the corporations parties to the merger have caused these Articles to be signed
in their respective corporate names and on their behalf by their respective
Presidents who hereby acknowledge these Articles to be the corporate acts of
their respective corporation as of the 21st day of June, 1997, herein are true.
ATTEST: MEDICAL MANAGEMENT SCIENCES, INC.
/s/ By /s/ (SEAL)
- -------------------------------- ------------------------------
Secretary President
ATTEST: TPAC, INC.
/s/ By /s/ (SEAL)
- -------------------------------- ------------------------------
Secretary President
-4-
<PAGE> 1
EXHIBIT 3.13
ARTICLES OF INCORPORATION
OF
MEDAPHIS ACQUISITION HOLDING CORPORATION
I.
The name of the Corporation is:
Medaphis Acquisition Holding Corporation
II.
The Corporation shall have authority to issue 1,000 shares of common stock,
and the par value of each share shall be one dollar ($1.00).
III.
The initial registered office of the Corporation shall be at 2 Peachtree
Street, N.W., Atlanta, Georgia 30383, in Fulton County. The initial registered
agent of the corporation at such address shall be CT Corporation System.
IV.
The name and address of the incorporator are:
Pamela S. Topper
210 Interstate North Parkway
Suite 601
Atlanta, Georgia 30339
V.
The mailing address of the initial principal office of the Corporation is
210 Interstate North Parkway, Suite 601, Atlanta, Georgia 30339.
VI.
The initial Board of Directors shall consist of three (3) members who
shall be and whose addresses are:
Randolph G. Brown
210 Interstate North Parkway
Suite 601
Atlanta, Georgia 30339
<PAGE> 2
Dennis R. Byerly
5990 Oakbrook Parkway
Norcross, Georgia 30093
Timothy J. Kilgallon
210 Interstate North Parkway
Suite 601
Atlanta, Georgia 30093
VII.
No director shall have any personal liability to the Corporation or to its
shareholders for monetary damages for breach of duty of care or other duty as a
director, by reason of any act or omission occurring subsequent to the date when
this provision becomes effective, except that this provision shall not eliminate
or limit the liability of a director for (a) any appropriation, in violation of
his duties, of any business opportunity of the Corporation; (b) acts or
omissions which involve intentional misconduct or a knowing violation of law;
(c) liabilities of a director imposed by Section 14-2-832 of the Georgia
Business Corporation Code; or (d) any transaction from which the director
derived an improper personal benefit.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation this 23rd day of July, 1991.
/s/ Pamela S. Topper
--------------------
Pamela S. Topper
Incorporator
<PAGE> 3
Secretary of State
Business Services and Regulation
Suite 315, West Tower FORM NUMBER : NR
2 Martin Luther King Jr. Dr. CERTIFICATE DATE : 07/17/91
Atlanta, Georgia 30334-1530 DOCKET NUMBER : 91192344
EXAMINER : STACY GILLEY
TELEPHONE : 404-656-3173
REQUESTED BY:
PAMELA TOPPER
210 INTERSTATE PKWY., #601
ATLANTA GA 30339
NAME RESERVATION CERTIFICATE
THE RECORDS OF THE SECRETARY OF STATE HAVE BEEN REVIEWED AND THE FOLLOWING
NAME IS NOT IDENTICAL TO, AND APPEARS TO BE DISTINGUISHABLE FROM, THE NAME OF
ANY OTHER EXISTING CORPORATION PROFESSIONAL ASSOCIATION, OR LIMITED PARTNERSHIP
ON FILE PURSUANT TO THE APPLICABLE PROVISIONS OF GEORGIA LAW. (TITLE 14 OF THE
OFFICIAL CODE OF GEORGIA ANNOTATED).
- -------------------------------------------------------------------------------
"MEDAPHIS ACQUISITION HOLDING CORPORATION"
- -------------------------------------------------------------------------------
THIS CERTIFICATE SHALL BE VALID FOR A NONRENEWABLE PERIOD OF NINETY (90)
DAYS FOR PROFIT AND NONPROFIT CORPORATIONS, PROFESSIONAL ASSOCIATIONS (DP, FP,
DM, FN, & PA), OR LIMITED PARTNERSHIPS (7D OR 7F), FROM THE DATE OF THIS
CERTIFICATE. PLEASE SUBMIT THE ORIGINAL CERTIFICATE (WHITE COPY) WITH THE
ARTICLES OF INCORPORATION, CERTIFICATE OF LIMITED PARTNERSHIP, APPLICATION FOR
PROFESSIONAL ASSOCIATION OR CERTIFICATE OF AUTHORITY TO TRANSACT BUSINESS
NAME RESERVATIONS ARE NOT RENEWABLE AFTER EXPIRATION OF THE STATUTORY
RESERVATION PERIOD SET OUT ABOVE.
/s/ Max Cleland
[SEAL] -------------------------
MAX CLELAND
SECRETARY OF STATE
/s/ Verley J. Spivey
-------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 404 656-2222
Outside Metro-Atlanta
<PAGE> 4
(MEDAPHIS LOGO)
Medaphis Corporation
210 Interstate North
Suite 601
Atlanta, GA 30339
(404) 988-9494
(404) 951-0670 Fax
July 10, 1991
Secretary of State
2 Martin Luther King, Jr. Drive, SE
Suite 315, West Tower
Atlanta, GA 30334
ATTN: Corporate Division
Re: Medaphis Acquisition Holding Corporation
Gentlemen:
The undersigned, as incorporator of Medaphis Acquisition Holding
Corporation, hereby certifies that she has requested a notice of
intent to file the articles of incorporation to be published and
payment therefor has been made as required by O.C.G.A., Section
14-2-201.1(b).
/s/ Pamela S. Topper
----------------------------------
Pamela S. Topper, Incorporator of
Medaphis Acquisition Holding
Corporation
<PAGE> 5
SECRETARY OF STATE TRANSACTION NUMBER: 91246006 (008)
BUSINESS SERVICES AND REGULATION CONTROL NUMBER : 9112853
SUITE 315, WEST TOWER DATE INCORPORATED : 07/25/91
2 MARTIN LUTHER KING JR. DR. DATE AMENDED : 08/30/91
ATLANTA, GEORGIA 30334-1530 EXAMINER : DONNA HYDE
TELEPHONE : 404-656-0624
REQUESTED BY:
MEDAPHIS CORPORATION
CINDY GILMORE
210 INTERSTATE NORTH, STE 601
ATLANTA, GEORGIA 30339
CERTIFICATE OF AMENDMENT
I, MAX CLELAND, Secretary of State and Corporations Commissioner of the
State of Georgia do hereby certify, under the seal of my office, that the
articles of incorporation of
- ----------------------------------------------------------------------------
"MEDAPHIS ACQUISITION HOLDING CORPORATION"
- ----------------------------------------------------------------------------
have been duly amended under the laws of the State of Georgia, changing its
name to
- ---------------------------------------------------------------------------
"MEDAPHIS HOSPITAL SERVICES CORPORATION"
- ---------------------------------------------------------------------------
by the filing of articles of amendment in the office of the Secretary of State
and the fees therefor paid, as provided by law, and that attached hereto is a
true and correct copy of said articles of amendment.
WITNESS, my hand and official seal, in the City of Atlanta and the State
of Georgia on the date set forth below.
DATE: AUGUST 30, 1991
FORM A3 (JULY 1989)
/s/ Max Cleland
------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL] /s/ Verley J. Spivey
------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro-Atlanta
<PAGE> 6
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
MEDAPHIS ACQUISITION HOLDING CORPORATION
1.
The name of the Corporation is Medaphis Acquisition Holding Corporation.
2.
The amendment to the Corporation's Articles of Incorporation is to amend
Article 1 of the Articles of Incorporation so that Article 1 shall hereafter
be as follows:
"1.
The name of the Corporation is Medaphis Hospital Services Corporation."
3.
Said amendment was adopted by the Board of Directors of the Corporation as
of August 20, 1991.
4.
Said amendment was duly adopted by the Board of Directors without
shareholder action in accordance with Code Section 14-2-1002(6) of the Georgia
Business Corporation Code.
IN WITNESS WHEREOF, Medaphis Acquisition Holding Corporation has caused
these Articles of Amendment to be executed, its
<PAGE> 7
corporate seal to be affixed, and its seal and the execution hereof to be
attested by its duly authorized officers, this _____ day of August, 1991.
MEDAPHIS ACQUISITION
HOLDING CORPORATION
By: /s/ Randolph G. Brown
-----------------------
Randolph G. Brown
Chairman
[CORPORATE SEAL]
Attest:
By: /s/ Pamela S. Topper
---------------------
Pamela S. Topper
Secretary
<PAGE> 8
SECRETARY OF STATE
BUSINESS SERVICES AND REGULATION
SUITE 315, WEST TOWER FORM NUMBER = NR
2 MARTIN LUTHER KING JR. DR. CERTIFICATE DATE = 08/07/91
ATLANTA, GEORGIA 30334-1530 DOCKET NUMBER = 91217607
EXAMINER = STACY GILLEY
TELEPHONE = 404-656-3173
REQUESTED BY:
PAMELA TOPPER
210 INTERSTATE N STE 601
ATLANTA GA 30339
NAME RESERVATION CERTIFICATE
THE RECORDS OF THE SECRETARY OF STATE HAVE BEEN REVIEWED AND THE FOLLOWING
NAME IS NOT IDENTICAL TO, AND APPEARS TO BE DISTINGUISHABLE FROM, THE NAME OF
ANY OTHER EXISTING CORPORATION PROFESSIONAL ASSOCIATION, OR LIMITED PARTNERSHIP
ON FILE PURSUANT TO THE APPLICABLE PROVISIONS OF GEORGIA LAW. (TITLE 14 OF THE
OFFICIAL CODE OF GEORGIA ANNOTATED).
- -------------------------------------------------------------------------------
"MEDAPHIS HOSPITAL SERVICES CORPORATION"
- -------------------------------------------------------------------------------
THIS CERTIFICATE SHALL BE VALID FOR A NONRENEWABLE PERIOD OF NINETY (90)
DAYS FOR PROFIT AND NONPROFIT CORPORATIONS, PROFESSIONAL ASSOCIATIONS (DP, FP,
DN, FN, & PA), OR LIMITED PARTNERSHIPS (7D OR 7F), FROM THE DATE OF THIS
CERTIFICATE. PLEASE SUBMIT THE ORIGINAL CERTIFICATE (WHITE COPY) WITH THE
ARTICLES OF INCORPORATION, CERTIFICATE OF LIMITED PARTNERSHIP, APPLICATION FOR
PROFESSIONAL ASSOCIATION OR CERTIFICATE OF AUTHORITY TO TRANSACT BUSINESS
NAME RESERVATIONS ARE NOT RENEWABLE AFTER EXPIRATION OF THE STATUTORY
RESERVATION PERIOD SET OUT ABOVE.
/s/ MAX CLELAND
-----------------------------
MAX CLELAND
SECRETARY OF STATE
[SEAL] /s/ VERLEY J. SPIVEY
-----------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
<TABLE>
<S> <C> <C> <C>
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 656-3173
</TABLE>
<PAGE> 9
SECRETARY OF STATE
BUSINESS INFORMATION AND SERVICES
SUITE 315, WEST TOWER DOCKET NUMBER = 970130723
2 MARTIN LUTHER KING JR. DR. CONTROL NUMBER = 9112853
ATLANTA, GEORGIA 30334-1530 EFFECTIVE DATE = 01/13/1997
REFERENCE = 0091
PRINT DATE = 01/13/1997
FORM NUMBER = 0611
PARANET CORPORATION SERVICES, INC.
DONNA HYDE
3761 VENTURE DRIVE, STE 260
DULUTH, GA 30136
CERTIFICATE OF NAME CHANGE AMENDMENT
I, the Secretary of State and the Corporation Commissioner of the State of
Georgia, do hereby certify under the seal of my office that
MEDAPHIS HOSPITAL SERVICES CORPORATION
A DOMESTIC PROFIT CORPORATION
has filed articles of amendment in the office of the Secretary of State
changing its name to
MEDAPHIS SERVICES CORPORATION
and has paid the required fees as provided by Title 14 of the Official Code of
Georgia Annotated. Attached hereto is a true and correct copy of said articles
of amendment.
WITNESS my hand and official seal in the City of Atlanta and the State of
Georgia on the date set forth above.
[SEAL] /s/ Lewis A. Massey
-----------------------------
Lewis A. Massey
Secretary of State
<PAGE> 10
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
MEDAPHIS HOSPITAL SERVICES CORPORATION
I.
The name of the corporation is Medaphis Hospital Services Corporation.
II.
The amendment to the corporation Articles of Incorporation is to amend
Article I of the Articles of Incorporation so that Article I shall hereafter be
as follows:
"I.
The name of the corporation is Medaphis Services Corporation."
III.
Said amendment was adopted by the Board of Directors of the Corporation
effective as of January 8, 1997.
IV.
Said amendment was duly adopted by the Board of Directors without
shareholder action in accordance with Code Section 14-2-1002(6) of the Georgia
Business Corporation Code.
V.
The Corporation certifies that a notice of intent to file Articles of
Amendment to change the name of the Corporation and a publishing fee of $40.00
have been mailed or otherwise delivered to an authorized newspaper, as required
by law.
<PAGE> 11
IN WITNESS WHEREOF, Medaphis Hospital Services Corporation has caused these
Articles of Amendment to be executed, its corporate seal to be affixed, and its
seal and the execution hereof to be attested to by its duly authorized officers,
this 8th day of January, 1997.
MEDAPHIS HOSPITAL
SERVICES CORPORATION
By: /s/ Michael R. Cote
-----------------------------------
Michael R. Cote
Senior Vice President - Finance and
Chief Financial Officer
[Corporate Seal]
Attest:
By: /s/ Peggy B. Sherman
-----------------------
Peggy B. Sherman
Assistant Secretary
<PAGE> 12
SECRETARY OF STATE
CORPORATIONS DIVISION
SUITE 315, WEST TOWER DOCKET NUMBER = 971040741
2 MARTIN LUTHER KING JR. DR. CONTROL NUMBER = 9112853
ATLANTA, GEORGIA 30334-1530 EFFECTIVE DATE = 04/14/1997
REFERENCE = 0045
PRINT DATE = 04/29/1997
FORM NUMBER = 411
PARANET CORPORATION SERVICES, INC.
DONNA HYDE
3761 VENTURE DRIVE, STE 260
DULUTH, GA 30136
CERTIFICATE OF MERGER
I, Lewis A. Massey, the Secretary of State of the State of Georgia, do hereby
issue this certificate pursuant to Title 14 of the Official Code of Georgia
Annotated certifying that articles or a certificate of merger and fees have
been filed regarding the merger of the below entities, effective as of the date
shown above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS SERVICES CORPORATION, a Georgia corporation
Nonsurviving Entity/Entities:
ARTRAC HEALTHCARE RESOURCES, INC., a Georgia corporation
ARTRAC CORPORATION, a Georgia corporation
CENTRAL HEALTHCARE SERVICES, INC., a Georgia corporation
[SEAL] /s/ Lewis A. Massey
Lewis A. Massey
Secretary of State
<PAGE> 13
CERTIFICATE OF MERGER
OF
ARTRAC HEALTHCARE RESOURCES, INC., ARTRAC CORPORATION AND
CENTRAL HEALTHCARE SERVICES, INC.
WITH AND INTO
MEDAPHIS SERVICES CORPORATION
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. ARTRAC Healthcare Resources, Inc., a Georgia corporation ("ARTRAC
Healthcare"), ARTRAC Corporation, a Georgia corporation ("ARTRAC"), and Central
Healthcare Services, Inc., a Georgia corporation ("Central Healthcare"), are
merging with and into Medaphis Services Corporation, a Georgia corporation
("MSC") (the "Mergers"), and MSC will be the surviving Georgia corporation
following the Mergers, using the name "Medaphis Services Corporation."
2. The Articles of Incorporation of MSC (the "Articles") will continue
after the Mergers as the Articles of the surviving corporation until thereafter
duly amended in accordance with their terms and the Code.
3. The executed Plan of Merger pursuant to which the Mergers are being
effected is on file at the principal place of business of the surviving
corporation, the address of which is 5300 Oakbrook Parkway, Bldg. 300, Suite
300, Norcross, Georgia 30093.
4. A copy of the Plan of Mergers will be furnished by the surviving
corporation, on request and without cost, to any shareholder of any corporation
that is a party to the Mergers.
5. ARTRAC Healthcare, ARTRAC, and Central Healthcare are each
wholly-owned subsidiaries of MSC and, pursuant to Section 14-2-1104 of the
Code, shareholder approval of the Mergers was not required.
IN WITNESS WHEREOF, MSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 9th day of April, 1997.
MEDAPHIS SERVICES
CORPORATION
By: /s/ William R. Spalding
-----------------------
William R. Spalding
Senior Vice President, General
Counsel and Secretary
<PAGE> 14
MEDAPHIS SERVICES
CORPORATION
CERTIFICATE OF VERIFICATION OF
REQUEST FOR PUBLICATION
Pursuant to Section 14-2-1105.1(a) and Section 14-2-1006.1 of the Georgia
Business Corporation Code, Medaphis Services Corporation, a Georgia
corporation, hereby verifies that a request for publication of a notice of
merger of ARTRAC Healthcare Resources, Inc., ARTRAC Corporation and Central
Healthcare Services, Inc., with and into Medaphis Services Corporation, and
payment therefor have been made, as required by Section 14-2-1105.1(b) and
Section 14-2-1006.1 of Georgia Business Corporation Code.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
11th day of April, 1997.
MEDAPHIS SERVICES
CORPORATION
By: /s/ Peggy B. Sherman
-------------------------------------------
Peggy B. Sherman
Vice President, Associate General Counsel -
Operations and Assistant Secretary
<PAGE> 1
EXHIBIT 3.14
BYLAWS
OF
MEDAPHIS ACQUISITION HOLDING CORPORATION
ARTICLE I
OFFICES
The Corporation will at all times maintain a registered office in the
State of Georgia and a registered agent at that address but may have other
offices located within or outside the State of Georgia as the Board of
Directors may determine.
ARTICLE II
SHAREHOLDERS' MEETINGS
2.1 Annual Meeting. A meeting of shareholders of the Corporation shall be
held annually. The annual meeting shall be held at such time and place and on
such date as the Directors shall determine from time to time and as shall be
specified in the notice of the meeting.
2.2 Special Meeting. Special meetings of the shareholders may be called
at any time by the Board of Directors, the President or any holder or holders of
at least twenty-five percent (25%) of the outstanding capital stock of the
Corporation. Special meetings shall be held at such a time and place and on
such date as shall be specified in the notice of the meeting.
2.3 Place. Annual or special meetings of shareholders may be held within
or without the State of Georgia.
2.4 Notice. Notice of annual or special shareholders meetings stating the
place, day and hour of the meeting shall be given in writing not less than ten
(10) nor more than sixty (60) days before the date of the meeting, either mailed
to the last known address or personally given to each shareholder. Notice of a
meeting may be waived by an instrument in writing executed before or after the
meeting. The waiver need not specify the purpose of the meeting or the business
transacted, unless one of the purposes of the meeting concerns a plan of merger
or consolidation, in which event the waiver shall comply with the further
requirements of law concerning such waivers. Attendance at such meeting in
person or by proxy shall constitute a waiver of notice thereof. Notice of any
special meeting of shareholders shall state the purpose or purposes for which
the meeting is called. The notice of any
1
<PAGE> 2
meeting at which amendments to or restatements of the articles of
incorporation, merger or consolidation of the corporation, or the disposition
of corporate assets requiring shareholder approval are to be considered shall
state such purposes, and further comply with all requirements of law.
2.5 Quorum. At all meetings of shareholders a majority of the outstanding
shares of stock shall constitute a quorum for the transaction of business, and
no resolution or business shall be transacted without the favorable vote of the
holders of a majority of the shares represented at a meeting where a quorum is
present and entitled to vote. When a quorum is once present to organize a
meeting of the shareholders may continue to do business at the meeting or at any
adjournment thereof notwithstanding the withdrawal of enough shareholders to
leave less than a quorum. The holders of a majority of the voting shares
represented at a meeting, whether or not a quorum is present, may adjourn such
meeting from time to time.
2.6 Action in Lieu of Meeting. Any action to be taken at a meeting of
the shareholders of the corporation, or any action that may be taken at a
meeting of the shareholders, may be taken without a meeting if a consent in
writing setting forth the action so taken shall be signed by the holders of all
of the shares entitled to vote with respect to the subject matter thereof, or
by the holders of such lesser number of shares as may be required in accordance
with any lawful provision of the Articles of Incorporation, and any further
requirements of law pertaining to such consents have been complied with.
ARTICLE III
DIRECTORS
3.1 Management. Subject to these by-laws, the Articles of
Incorporation, any restrictions imposed by law or any lawful agreement between
the shareholders, the full and entire management of the affairs and
business of the corporation shall be vested in the Board of Directors, which
shall have and may exercise all of the powers that may be exercised or performed
by the corporation.
3.2 Number of Directors; Quorum. The shareholders shall fix by
resolution the precise number of members of the Board of Directors, provided
that the Board of Directors shall consist of not fewer than one (1) nor more
than ten (10) members. Directors shall be elected at each annual meeting of
the shareholders and shall serve for a term of one (1) year and until their
successors are elected. A majority of Directors shall constitute a quorum for
2
<PAGE> 3
the transaction of business. All resolutions adopted and all business transacted
by the Board of Directors shall require the affirmative vote of a majority of
the Directors present at a meeting where a quorum is present.
3.3 Vacancies. The Directors may fill the place of any Director which may
become vacant prior to the expiration of his term, such appointment by the
Directors to continue until the expiration of the term of the Director whose
place has become vacant, or may fill any directorship created by reason of an
increase in the number of directors, such appointment by the Directors to
continue for a term of office until the next election of directors by the
Shareholders and until the election of the successor.
3.4 Meetings. The Directors shall meet annually, without notice,
following the annual meeting of the shareholders. Special meetings of the
Directors may be called at any time by the Chairman of the Board, the President
or by any two Directors if the Board has three or more directors, or by any
Director if the Board has less than three members, on two days' written notice
to each Director, which notice shall specify the time and place of the meeting.
Notice of any such meeting may be waived by an instrument in writing executed
before or after the meeting. Directors may attend and participate in meetings
either in person or by means of conference telephones or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting by means of such communication
equipment shall constitute presence in person at any meeting. Attendance in
person at such meeting shall constitute a waiver of notice thereof.
3.5 Action in Lieu of Meeting. Any action to be taken at a meeting of the
Directors, or any action that may be taken at a meeting of the Directors, may be
taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the Directors and any further requirements of
law pertaining to such consents have been complied with.
3.6 Removal. Any Director may be removed from office, with or without
cause, upon the majority vote of the shareholders, at a meeting with respect
to which notice of such purpose is given.
ARTICLE IV
OFFICERS
4.1 General Provisions. The officers of the Corporation shall consist of
a Chairman of the Board, a President, a Secretary and a Treasurer who shall be
elected by the Board of Directors, and
3
<PAGE> 4
such other officers as may be elected by the Board of Directors or appointed as
provided in these Bylaws. Each officer shall be elected or appointed for a term
of office running until the meeting of the Board of Directors following the next
annual meeting of the shareholders of the Corporation, or such other term as
provided by resolution of the Board of Directors or the appointment to office.
Each officer shall serve for the term of his office for which he is elected or
appointed and until his successor has been elected or appointed and has
qualified or his earlier resignation, removal from office or death. Any two
or more offices may be held by the same person.
4.2 Chairman of the Board. The Chairman of the Board of Directors if
elected, shall preside, if present, at all meetings of the Board of Directors,
shall be the chief executive officer of the Corporation and shall be
responsible for the general supervision, direction and control of the business
of the Corporation, and shall have and perform such other duties as from time
to time may be assigned by the Board of Directors.
4.3 President. The President shall have the powers and duties of
supervision and management usually vested in the office of President of a
corporation. He shall preside at all meetings of the stockholders if present
thereat, and in the absence or non-election of the Chairman of the Board of
Directors, at all meetings of the Board of Directors, and shall have general
supervision, direction and control of the business of the Corporation. Except
as the Board of Directors shall authorize the execution thereof in some other
manner, he shall execute bonds, mortgages, and other contracts on behalf of the
Corporation, and shall cause the seal to be affixed to any instrument requiring
it and when so affixed the seal shall be attested by the signature of the
Secretary, an Assistant Secretary or the Treasurer.
4.4 Secretary. The Secretary shall keep minutes of all meetings of
the shareholders and Directors and have charge of the minute books, stock books
and seal of the corporation and shall perform such other duties and have such
other powers as may from time to time be delegated to him by the President or
the Board of Directors.
4.5 Treasurer. The Treasurer shall be charged with the management of
the financial affairs of the corporation, shall have the power to recommend
action concerning the corporation's affairs to the President, and shall perform
such other duties and have such other powers as may from time to time be
delegated to him by the President or Board of Directors.
4.6 Assistant Secretaries and Treasurers. Assistants to the Secretary
and Treasurer may be appointed by the President or
4
<PAGE> 5
elected by the Board of Directors and shall perform such duties and have such
powers as shall be delegated to them by the President or the Board of Directors.
4.7 Vice Presidents. The corporation may have one or more Vice
Presidents, elected by the Board of Directors, who shall perform such duties
and have such powers as may be delegated by the President or the Board of
Directors.
ARTICLE V
CAPITAL STOCK
5.1 Share Certificates. Share certificates shall be numbered in the
order in which they are issued. They shall be signed by the Chairman of the
board, the President or any Vice President and the Secretary or an Assistant
Secretary and the seal of the corporation shall be affixed thereto. Share
certificates shall be kept in a book and shall be issued in consecutive order
therefrom. The name of the person owning the shares, the number of shares, and
the date of issue shall be entered on the stub of each certificate. Share
certificates exchanged or returned shall be cancelled by the Secretary or an
Assistant Secretary and placed in their original place in the stock book.
5.2 Transfer of Shares. Transfers of shares shall be made on the stock
books of the corporation by the holders in person or by power of attorney, on
surrender of the old certificates for such shares, duly assigned.
5.3 Voting. The holders of the capital stock shall be entitled to one
vote for each share of stock standing in their name.
ARTICLE VI
SEAL
The seal of the Corporation shall be in such form as the Board of
Directors may from time to time determine. In the event it is inconvenient to
use such a seal at any time, the signature of the Corporation followed by the
word "Seal" enclosed in parentheses or scroll shall be deemed the seal of the
Corporation. The seal shall be in the custody of the Secretary and affixed by
him or by his assistants on the certificates of stock and other appropriate
papers.
5
<PAGE> 6
ARTICLE VII
AMENDMENT
These Bylaws may be amended by majority vote of the Board of Directors of
the Corporation or by majority vote of the shareholders, provided that the
shareholders may provide by resolution that any Bylaw provision repealed,
amended, adopted or altered by them may not be repealed, amended, adopted or
altered by the Board of Directors.
ARTICLE VIII
INDEMNIFICATION
Each person who is or was a director or officer of the Corporation, and
each person who is or was a director or officer of the Corporation who at the
request of the Corporation is serving or has served as an officer, director,
partner, joint venturer or trustee of another corporation, partnership, joint
venture, trust or other enterprise shall be indemnified by the corporation
against those expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement which are allowed to be paid or reimbursed by the
corporation under the laws of the State of Georgia and which are actually and
reasonably incurred in connection with any action, suit, or proceeding, pending
or threatened, whether civil, criminal, administrative or investigative, in
which such person may be involved by reason of his being or having been a
director or officer of this corporation or of such other enterprises. Such
indemnification shall be made only in accordance with the laws of the State of
Georgia and subject to the conditions prescribed therein.
In any instance where the laws of the State of Georgia permit
indemnification to be provided to persons who are or have been an officer or
director of the Corporation or who are or have been an officer, director,
partner, joint venturer or trustee of any such other enterprise only on a
determination that certain specified standards of conduct have been met, upon
application for indemnification by any such person the corporation shall
promptly cause such determination to be made by the shareholders, but shares
owned by or voted under the control of directors who are at the time parties to
the proceeding may not be voted on the determination.
As a condition to any such right of indemnification, the Corporation may
require that it be permitted to participate in the defense of any such action
or proceeding through legal counsel designated by the Corporation and at the
expense of the Corporation.
6
<PAGE> 7
The Corporation may purchase and maintain insurance on behalf of any such
persons whether or not the Corporation would have the power to indemnify such
officers and directors against any liability under the laws of the State of
Georgia. If any expenses or other amounts are paid by way of indemnification,
other than by court order, action by shareholders or by an insurance carrier,
the Corporation shall provide notice of such payment to the shareholders in
accordance with the provisions of the laws of the State of Georgia.
Approved by the Board of Directors this 5th day of August, 1991.
/s/ Randolph G. Brown
- ----------------------
Randolph G. Brown
Chairman
7
<PAGE> 1
EXHIBIT 3.15
ARTICLES OF INCORPORATION
OF
MEDAPHIS SYSTEMS INNOVATION CORPORATION
I.
The name of the Corporation is Medaphis Systems Innovation Corporation.
II.
The aggregate number of shares that the Corporation shall have authority
to issue is 1,000, all of which shall be shares of common stock, par value
$0.01 per share.
III.
The initial Board of Directors of the Corporation shall consist of four
(4) members, whose names and addresses are as follows:
Randolph G. Brown Timothy J. Kilgallon
2700 Cumberland Parkway, Suite 300 2700 Cumberland Parkway, Suite 300
Atlanta, Georgia 30339 Atlanta, Georgia 30339
Michael R. Cote Glen Lang
2700 Cumberland Parkway, Suite 300 2700 Cumberland Parkway, Suite 300
Atlanta, Georgia 30339 Atlanta, Georgia 30339
<PAGE> 2
IV.
No Director shall have any personal liability to the Corporation or to its
shareholders for monetary damages for breach of the duty of care or any other
duty as a Director, by reason of any act or omission occurring subsequent to
the date when this provision becomes effective, except that this provision
shall not eliminate or limit the liability of a Director for (a) any
appropriation, in violation of his duties, of any business opportunity of the
Corporation; (b) acts or omissions which involve intentional misconduct or a
knowing violation of law; (c) liabilities of a Director imposed by Section
14-2-832 of the Georgia Business Corporation Code; or (d) any transaction from
which the Director derived an improper personal benefit.
V.
The address of the initial registered office of the Corporation shall be
2700 Cumberland Parkway, Suite 300, Atlanta, Georgia 30339. The initial
registered agent of the Corporation at such address shall be Pamela S. Topper.
VI.
The name and address of the Incorporator is Pamela S. Topper, 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
VII.
The mailing address of the initial principal office of the Corporation is
2700 Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
<PAGE> 3
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation this 15th day of August, 1995.
/s/ Pamela S. Topper
-------------------------------
Pamela S. Topper
Incorporator
<PAGE> 4
DOCKET NUMBER : 952700379
Secretary of State CONTROL NUMBER : 9524379
Business Information and Services EFFECTIVE DATE : 09/27/1995
Suite 315, West Tower REFERENCE : 0097
2 Martin Luther King Jr. Dr. PRINT DATE : 09/27/1995
Atlanta, Georgia 30334-1530 FORM NUMBER : 0611
PARANET CORPORATION SERVICES INC.
KATHY SLAYMAN
3761 VENTURE DRIVE, STE 260
DULUTH, GA 30136
CERTIFICATE OF NAME CHANGE AMENDMENT
I, MAX CLELAND, Secretary of State and the Corporation Commissioner of the
State of Georgia, do hereby certify under the seal of my office that
MEDAPHIS SYSTEMS INNOVATION CORPORATION
A DOMESTIC PROFIT CORPORATION
has filed articles of amendment in the office of the Secretary of State
changing its name to
MEDAPHIS SYSTEMS CORPORATION
and has paid the required fees as provided by Title 14 of the Official Code of
Georgia Annotated. Attached hereto is a true and correct copy of said articles
of amendment.
WITNESS my hand and official seal in the City of Atlanta and the State of
Georgia on the date set forth above.
/s/ Max Cleland
---------------------------
[SEAL] MAX CLELAND
SECRETARY OF STATE
CORPORATIONS 656-2817; CORPORATIONS HOT-LINE 404-656-2222 (Outside
Metro-Atlanta)
<PAGE> 5
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
MEDAPHIS SYSTEMS INNOVATION CORPORATION
I.
The name of the Corporation is Medaphis Systems Innovation Corporation.
II.
The amendment to the Corporation's Articles of Incorporation is to amend
Article I of the Articles of Incorporation so that Article I shall hereafter be
as follows:
"I.
The name of the Corporation is Medaphis Systems Corporation."
III.
Said amendment was adopted by the Board of Directors of the Corporation as
of September 25, 1995.
IV.
Said amendment was duly adopted by the Board of Directors without
shareholder action in accordance with Code Section 14-2-1002(6) of the Georgia
Business Corporation Code.
V.
The Corporation certifies that a notice of intent to file Articles of
Amendment to change the name of the Corporation and a publishing fee of $40.00
have been mailed or otherwise delivered to an authorized newspaper, as required
by law.
<PAGE> 6
IN WITNESS WHEREOF, Medaphis Systems Innovation Corporation has caused
these Articles of Amendment to be executed, its corporate seal to be affixed,
and its seal and the execution hereof to be attested to by its duly authorized
officers, this 25th day of September, 1995.
MEDAPHIS SYSTEMS
INNOVATION CORPORATION
By: /s/ Michael R. Cote
-----------------------------------
Michael R. Cote
Senior Vice President - Finance and
Administration and Chief Financial
Officer
(Corporate Seal)
Attest:
By: /s/ Peggy B. Sherman
--------------------
Peggy B. Sherman
Assistant Secretary
<PAGE> 7
Secretary of State DOCKET NUMBER : 953550175
Business Information and Services CONTROL NUMBER : 9524379
Suite 315, West Tower EFFECTIVE DATE : 12/20/1995
2 Martin Luther King Jr. Dr. REFERENCE : 0069
Atlanta, Georgia 30334-1530 PRINT DATE : 12/21/1995
FORM NUMBER : 411
PARANET CORPORATION SERVICES, INC.
KATHY L. SLAYMAN
3761 VENTURE DRIVE, STE. 260
DULUTH, GA 30136
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
MEDAPHIS SYSTEMS CORPORATION, a Georgia corporation
Nonsurviving Entity:
THE HALLEY EXCHANGE, INC., an Illinois corporation
/s/ Max Cleland
---------------------------
[SEAL] MAX CLELAND
SECRETARY OF STATE
CORPORATIONS 656-2817; CORPORATIONS HOT-LINE 404-656-2222 (Outside
Metro-Atlanta)
<PAGE> 8
CERTIFICATE OF MERGER
OF
THE HALLEY EXCHANGE, INC.
WITH AND INTO
MEDAPHIS SYSTEMS CORPORATION
The undersigned corporation, organized and existing under and by virtue
of the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. The Halley Exchange, Inc., an Illinois corporation ("Halley"), is
merging with and into Medaphis Systems Corporation, a Georgia corporation
("MSC")(the "Merger"), and MSC will be the surviving Georgia corporation
following the Merger, using the name "Medaphis Systems Corporation."
2. The Articles of Incorporation of MSC (the "Articles") will continue
after the Merger as the Articles of the surviving corporation until thereafter
duly amended in accordance with their terms and Code.
3. The executed Plan of Merger pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is Medaphis Systems Corporation, c/o Medaphis Corporation, 2700
Cumberland Parkway, Suite 300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Merger has been duly approved by unanimous written consent of
the stockholders of Halley and by the written consent of the sole shareholder
of MSC.
IN WITNESS WHEREOF, MSC has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 20th day of December, 1995.
MEDAPHIS SYSTEMS CORPORATION
BY: /s/ T. Kilgallon
----------------------------------------
Timothy J. Kilgallon
Chairman and Chief
Executive Officer
<PAGE> 9
MEDAPHIS SYSTEMS CORPORATION
CERTIFICATE OF VERIFICATION OF
REQUEST FOR PUBLICATION
Pursuant to Section 14-2-1105.1(a) of the Georgia Business Corporation
Code, Medaphis Systems Corporation, a Georgia corporation, hereby verifies that
a request for publication of a notice of merger to merger The Halley Exchange,
Inc. with and into Medaphis Systems Corporation and payment therefor have been
made, as required by Section 14-2-1105.1(b) of the Georgia Business Corporation
Code.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
20th day of December, 1995.
MEDAPHIS SYSTEMS CORPORATION
BY: /s/Peggy Sherman
----------------------------------------
Peggy B. Sherman
Vice President, Associate General
Counsel and Assistant Secretary
<PAGE> 10
Secretary of State DOCKET NUMBER : 963190468
Business Information and Services CONTROL NUMBER : 9524379
Suite 315, West Tower EFFECTIVE DATE : 11/14/1996
2 Martin Luther King Jr. Dr. REFERENCE : 0091
Atlanta, Georgia 30334-1530 PRINT DATE : 11/14/1996
FORM NUMBER : 0611
PARANET CORPORATION SERVICES, INC.
DONNA HYDE
3761 VENTURE DRIVE, STE 260
DULUTH, GA 30136
CERTIFICATE OF NAME CHANGE AMENDMENT
I, the Secretary of State and the Corporation Commissioner of the State of
Georgia, do hereby certify under the seal of my office that
MEDAPHIS SYSTEMS CORPORATION
A DOMESTIC PROFIT CORPORATION
has filed articles of amendment in the office of the Secretary of State
changing its name to
MEDAPHIS HEALTHCARE INFORMATION TECHNOLOGY COMPANY
and has paid the required fees as provided by Title 14 of the Official Code of
Georgia Annotated. Attached hereto is a true and correct copy of said articles
of amendment.
WITNESS my hand and official seal in the City of Atlanta and the State of
Georgia on the date set forth above.
/s/ Lewis A. Massey
---------------------------
[SEAL] Lewis A. Massey
Secretary of State
<PAGE> 11
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
MEDAPHIS SYSTEMS CORPORATION
I.
The name of the Corporation is Medaphis Systems Corporation.
II.
The amendment to the Corporation's Articles of Incorporation is to amend
Article I of the Articles of Incorporation so that Article I shall hereafter be
as follows:
"I.
The name of the Corporation is Medaphis Healthcare Information Technology
Company."
III.
Said amendment was adopted by the Board of Directors of the Corporation
effective as of August 20, 1996.
IV.
Said amendment was duly adopted by the Board of Directors without
shareholder action in accordance with Code Section 14-2-1002(6) of the Georgia
Business Corporation Code.
V.
The Corporation certifies that a notice of intent to file Articles of
Amendment to change the name of the Corporation and a publishing fee of $40.00
have been mailed or otherwise delivered to an authorized newspaper, as required
by law.
<PAGE> 12
IN WITNESS WHEREOF, Medaphis Systems Corporation has caused these Articles
of Amendment to be executed, its corporate seal to be affixed, and its seal and
the execution hereof to be attested to by its duly authorized officers, this
13th day of November, 1996.
MEDAPHIS SYSTEMS CORPORATION
[CORPORATE SEAL] By: /s/ Michael R. Cote
---------------------------------------
Name: Michael R. Cote
Title: Senior Vice President - Finance,
CFO and Assistant Secretary
ATTEST:
By: /s/ Peggy Sherman
--------------------------
Name: Peggy B. Sherman
Title: Assistant Secretary
<PAGE> 1
EXHIBIT 3.16
BY-LAWS
OF
MEDAPHIS SYSTEMS CORPORATION
ARTICLE I
OFFICES
The Corporation will at all times maintain a registered office in the
State of Georgia and a registered agent at that address but may have other
offices located within or outside the State of Georgia as the Board of
Directors may determine.
ARTICLE II
SHAREHOLDERS' MEETINGS
2.1 Annual Meeting. A meeting of Shareholders of the Corporation
shall be held annually. The annual meeting shall be held at such time and place
and on such date as the Directors shall determine from time to time and as
shall be specified in the notice of the meeting.
2.2 Special Meeting. Special meetings of the Shareholders may be
called at any time by the Board of Directors, the President or any holder or
holders of at least twenty-five percent (25%) of the outstanding capital stock
of the Corporation. Special meetings shall be held at such a time and place and
on such date as shall be specified in the notice of the meeting.
2.3 Place. Annual or special meetings of Shareholders may be held
within or without the State of Georgia.
2.4 Notice. Notice of annual or special Shareholders meetings stating
the place, day and hour of the meeting shall be given in writing not less than
ten (10) nor more than sixty (60) days before the date of the meeting, either
mailed to the last known address or personally given to each Shareholder. Notice
of a meeting may be waived by an instrument in writing executed before or after
the meeting. The waiver need not specify the purpose of the meeting or the
business transacted, unless one of the purposes of the meeting concerns a plan
of merger or consolidation, in which event the waiver shall comply with the
further requirements of law concerning such waivers. Attendance at such meeting
in person or by proxy shall constitute a waiver of notice thereof. Notice of any
special meeting of Shareholders shall state the purpose or purposes for which
the meeting is called. The notice of any meeting at which amendments to or
restatements of the articles of incorporation, merger or consolidation of the
Corporation, or the disposition of corporate assets requiring
1
<PAGE> 2
Shareholder approval are to be considered shall state such purposes, and
further comply with all requirements of law.
2.5 Quorum. At all meetings of Shareholders a majority of the
outstanding shares of stock shall constitute a quorum for the transaction of
business, and no resolution or business shall be transacted without the
favorable vote of the holders of a majority of the shares represented at a
meeting where a quorum is present and entitled to vote. When a quorum is once
present to organize a meeting of the Shareholders, the Shareholders may
continue to do business at the meeting or at any adjournment thereof
notwithstanding the withdrawal of enough Shareholders to leave less than a
quorum. The holders of a majority of the voting shares represented at a
meeting, whether or not a quorum is present, may adjourn such meeting from time
to time.
2.6 Action in Lieu of Meeting. Any action to be taken at a meeting of
the Shareholders of the Corporation, or any action that may be taken at a
meeting of the Shareholders, may be taken without a meeting if a consent in
writing setting forth the action so taken shall be signed by the holders of all
the shares entitled to vote with respect to the subject matter thereof, or by
the holders of such lesser number of shares as may be required in accordance
with any lawful provision of the Articles of Incorporation, and any further
requirements of law pertaining to such consents have been complied with.
ARTICLE III
DIRECTORS
3.1 Management. Subject to these by-laws, the Articles of
Incorporation, any restrictions imposed by law or any lawful agreement between
the Shareholders, the full and entire management of the affairs and business of
the Corporation shall be vested in the Board of Directors, which shall have and
may exercise all of the powers that may be exercised or performed by the
Corporation.
3.2 Number of Directors; Quorum. The Shareholders shall fix by
resolution the precise number of members of the Board of Directors, provided
that the Board of Directors shall consist of not fewer than one (1) nor more
than ten (10) members. Directors shall be elected at each annual meeting of the
Shareholders and shall serve for a term of one (1) year and until their
successors are elected. A majority of Directors shall constitute a quorum for
the transaction of business. All resolutions adopted and all business
transacted by the Board of Directors shall require the affirmative vote of a
majority of the Directors present at a meeting where a quorum is present.
3.3 Vacancies. The Directors may fill the place of any Director which
may become vacant prior to the expiration of his term, such appointment by the
Directors to continue until the expiration of the term of the Director whose
place has become vacant, or may fill any directorship created by reason of an
increase in the number of Directors, such appointment by the Directors to
continue for
2
<PAGE> 3
a term of office until the next election of Directors by the Shareholders and
until the election of the successor.
3.4 Meetings. The Directors shall meet annually, without notice,
following the annual meeting of the Shareholders. Special meetings of the
Directors may be called at any time by the President or by any two Directors if
the Board has three or more Directors, or by any Director if the Board has less
than three members, on two days' written notice to each Director, which notice
shall specify the time and place of the meeting. Notice of any such meeting may
be waived by an instrument in writing executed before or after the meeting.
Directors may attend and participate in meetings either in person or by means
of conference telephones or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation
in a meeting by means of such communication equipment shall constitute presence
in person at any meeting. Attendance in person at such meeting shall constitute
a waiver of notice thereof.
3.5 Action in Lieu of Meeting. Any action to be taken at a meeting of
the Directors, or any action that may be taken at a meeting of the Directors,
may be taken without a meeting if a consent in writing, setting forth the
action so taken, shall be signed by all of the Directors and any further
requirements of law pertaining to such consents have been complied with.
3.6 Removal. Any Director may be removed from office, with or without
cause, upon the majority vote of the Shareholders, at a meeting with respect to
which notice of such purpose is given.
ARTICLE IV
OFFICERS
4.1 General Provisions. The officers of the Corporation shall consist
of a President, a Secretary and a Treasurer who shall be elected by the Board of
Directors, and such other officers as may be elected by the Board of Directors
or appointed as provided in these Bylaws. Each officer shall be elected or
appointed for a term of office running until the meeting of the Board of
Directors following the next annual meeting of the Shareholders of the
Corporation, or such other term as provided by resolution of the Board of
Directors or the appointment to office. Each officer shall serve for the term of
his office for which he is elected or appointed and until his successor has been
elected or appointed and is qualified or his earlier resignation, removal from
office or death. Any two or more offices may be held by the same person.
4.2 President. The President shall have the powers and duties of
supervision and management usually vested in the office of President of a
corporation. He shall preside at all meetings of the stockholders if present
thereat, at all meetings of the Board of Directors, and shall have general
supervision, direction and control of the business of the Corporation. Except
as the
3
<PAGE> 4
Board of Directors shall authorize the execution thereof in some other manner,
he shall execute bonds, mortgages, and other contracts on behalf of the
Corporation, and shall cause the seal to be affixed to any instrument requiring
it and when so affixed the seal shall be attested by the signature of the
Secretary, an Assistant Secretary or the Treasurer.
4.3 Secretary. The Secretary shall keep minutes of all meetings of
the Shareholders and Directors and have charge of the minute books, stock books
and seal of the Corporation and shall perform such other duties and have such
other powers as may from time to time be delegated to him by the President or
the Board of Directors.
4.4 Treasurer. The Treasurer shall be charged with the management of
the financial affairs of the Corporation, shall have the power to recommend
action concerning the Corporation's affairs to the President, and shall perform
such other duties and have such other powers as may from time to time be
delegated to him by the President or Board of Directors.
4.5 Assistant Secretaries and Treasurer. Assistants to the Secretary
and Treasurer may be appointed by the President or elected by the Board of
Directors and shall perform such duties and have such powers as shall be
delegated to them by the President or the Board of Directors.
4.6 Vice Presidents. The Corporation may have one or more Vice
Presidents, elected by the Board of Directors, who shall perform such duties
and have such powers as may be delegated by the President or the Board of
Directors.
ARTICLE V
CAPITAL STOCK
5.1 Share Certificates. Share certificates shall be numbered in the
order in which they are issued. They shall be signed by the President or any
Vice Present and the Secretary or an Assistant Secretary and the seal of the
Corporation shall be affixed thereto. Share certificates shall be kept in a
book and shall be issued in consecutive order therefrom. The name of the person
owning the shares, the number of shares, and the date of issue shall be entered
on the stub of each certificate. Share certificates exchanged or returned shall
be canceled by the Secretary or an Assistant Secretary and placed in their
original place in the stock book.
5.2 Transfer of Shares. Transfers of shares shall be made on the stock
books of the Corporation by the holders in person or by power of attorney, on
surrender of the old certificates for such shares, duly assigned.
5.3 Voting. The holders of the capital stock shall be entitled to vote
for each share of stock in their name.
4
<PAGE> 5
ARTICLE VI
SEAL
The seal of the Corporation shall be in such form as the Board of
Directors may from time to time determine. In the event it is inconvenient to
use such a seal at any time, the signature of the Corporation followed by the
word "Seal" enclosed in parentheses or scroll shall be deemed the seal of the
Corporation. The seal shall be in the custody of the Secretary and affixed by
him or by his assistants on the certificates of stock or other appropriate
papers.
ARTICLE VII
AMENDMENT
These Bylaws may be amended by majority vote of the Board of Directors of
the Corporation or by majority vote of the Shareholders, provided that the
Shareholders may provide by resolution that any Bylaw provision repealed,
amended, adopted or altered by them may not be repealed, amended, adopted or
altered by the Board of Directors.
ARTICLE VIII
INDEMNIFICATION
Each person who is or was a Director or officer of the Corporation, and
each person who is or was a Director or officer of the Corporation who at the
request of the Corporation is serving or has served as an officer, director,
partner, joint venturer or trustee of another corporation, partnership, joint
venture, trust or other enterprise shall be indemnified by the Corporation
against those expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement which are allowed to be paid or reimbursed by the
Corporation under the laws of the State of Georgia and which are actually and
reasonably incurred in connection with any action, suit, or proceeding, pending
or threatened, whether civil, criminal, administrative or investigative, in
which such person may be involved by reason of his being or having been a
director or officer of this Corporation or of such other enterprises. Such
indemnification shall be made only in accordance with the laws of the State of
Georgia and subject to the conditions prescribed therein.
In any instance where the laws of the State of Georgia permit
indemnification to be provided to persons who are or have been an officer or
Director of the Corporation or who are or have been an officer, director,
partner, joint venturer or trustee of any such other enterprise only on a
5
<PAGE> 6
determination that certain specified standards of conduct have been met, upon
application for indemnification by any such person the Corporation shall
promptly cause such determination to be made by the Shareholders, but shares
owned by or voted under the control of Directors who are at the time parties to
the proceeding may not be voted on the determination.
As a condition to any such right of indemnification, the Corporation may
require that it be permitted to participate in the defense of any such action
or proceeding through legal counsel designated by the Corporation and at the
expense of the Corporation.
The Corporation may purchase and maintain insurance on behalf of any such
persons whether or not the Corporation would have the power to indemnify such
officers and Directors against any liability under the laws of the State of
Georgia. If any expenses or other amounts are paid by way of indemnification,
other than by court order, action by Shareholders or by an insurance carrier,
the Corporation shall provide notice of such payment to the Shareholders in
accordance with the provisions of the laws of the State of Georgia.
6
<PAGE> 1
EXHIBIT 3.17
ARTICLES OF INCORPORATION
OF
AUTOMATION ATWORK
I
The name of the corporation is: AUTOMATION ATWORK.
II
The purpose of the corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
III
The name and address in the State of California of the corporation's
initial agent for the service of process, is:
Lee D. Stimmel
100 Bush Street, Suite 2712
San Francisco, CA 94104
IV
The corporation is authorized to issue only one class of shares of stock
and the total number of shares which the corporation is authorized to issue is
10,000.
Dated this 8th day of April, 1983.
/s/ Lee D. Stimmel
--------------------------------------
Lee D. Stimmel
I hereby declare that I am the person who executed the foregoing Articles
of Incorporation which execution is my act and deed.
/s/ Lee D. Stimmel
--------------------------------------
Lee D. Stimmel
<PAGE> 2
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER is made as of this 17th day of March, 1995, among
MEDAPHIS CORPORATION, a Delaware corporation ("Med"), BULLSUB, INC., a Georgia
corporation and a wholly owned subsidiary of Med ("BullSub"), and AUTOMATION
ATWORK, a California corporation ("Atwork") (BullSub and Atwork hereinafter
collectively referred to as the "Constituent Corporations").
RECITALS
A. BullSub was duly incorporated as a Georgia corporation on January 24,
1995. The authorized capital of BullSub consists of 1,000 shares of common
stock, $.01 par value ("BullSub Capital Stock"), of which 100 shares are issued
and outstanding and owned by Med.
B. Atwork was duly incorporated as a California corporation on April 11,
1983. The authorized capital of Atwork consists of 10,000 shares of capital
stock ("Atwork Capital Stock"), of which 200 shares are issued and outstanding.
C. The Constituent Corporations and others have entered into a Merger
Agreement dated as of January 29, 1995 (the "Merger Agreement"), setting forth
certain representations, warranties and agreements relating to the merger of
BullSub with and into Atwork (the "Merger"), with Atwork surviving the Merger
(the "Surviving Corporation").
D. The Boards of Directors of Med, BullSub and Atwork deem the Merger
desirable and in the best interests of their respective corporations and
shareholders or stockholders, as the case may be, and have approved the Merger.
E. The approval of the Merger also requires the approval of the holders
of more than 50% of the shares of Atwork Capital Stock entitled to vote, and of
Med, as the sole shareholder of BullSub. The Boards of Directors of the
Constituent Corporations have submitted the principal terms of the Merger to
their respective shareholders and received the requisite shareholder approval.
Accordingly, in consideration of the mutual covenants contained herein,
the parties agree as follows:
ARTICLE I
1.1 The Merger. At the Effective Time (as hereinafter defined),
BullSub shall be merged with and into Atwork, and Atwork shall be the Surviving
Corporation and the separate corporate existence of BullSub shall cease. The
Surviving Corporation shall thereupon succeed, without other transfer, to all
the rights and property of BullSub and shall be subject to all the debts and
liabilities of BullSub in the same manner as if the Surviving Corporation had
itself incurred them. All rights of creditors and all liens upon the property
of each of the
<PAGE> 3
Constituent Corporations shall be preserved unimpaired, provided that such
liens upon property of BullSub shall be limited to the property affected
thereby immediately prior to the Effective Time. Any action or proceeding
pending by or against BullSub may be prosecuted to judgment, which shall bind
the Surviving Corporation, or the Surviving Corporation may be proceeded
against or substituted in its place.
1.2 Effective Time. The date when the Merger becomes effective is
referred to in this Agreement as the "Effective Time" of the Merger. The
Effective Time shall be the date of the filing of this Agreement with the
California Secretary of State.
ARTICLE II
2.1 Articles of Incorporation and Bylaws. The Articles of Incorporation
and Bylaws of Atwork, as amended to and including the Effective Time, shall be
the Articles of Incorporation and Bylaws of the Surviving Corporation following
the Effective Time, until changed as provided by law and their respective
provisions. The name of the Surviving Corporation shall, from and after the
Effective Time, be and continue to be AUTOMATION ATWORK until changed in
accordance with applicable law.
ARTICLE III
3.1 Conversion of Securities.
(a) Atwork Capital Stock. As of the Effective Time, by virtue of
the Merger and without any action on the part of any holder thereof:
(1) Subject to Section 3.1(b), each share of Atwork Capital
Stock issued and outstanding immediately prior to the Effective Time shall be
converted into the right to receive the number of shares of voting common
stock, par value $.01 per share, of Med ("Med Stock") as are equal to the
Atwork Conversion Amount (as hereinafter defined).
(2) Each share of BullSub Capital Stock that is issued and
outstanding immediately prior to the Effective Time shall be converted into one
share of common stock, no par value, of the Surviving Corporation.
(b) Fractional Share. No scrip or fractional shares of Med Stock
will be issued, but the holder who would otherwise be entitled to such
fractional share shall be entitled to receive in cash an amount equal to the
value of such fractional interest determined in the manner set forth in the
Merger Agreement.
(c) Exchange of Atwork Capital Stock.
(1) On or prior to the Closing Date (as defined in the Merger
Agreement), Med shall make available to each record holder who, as of the
Effective Time, was a holder of an outstanding certificate or certificates
which immediately prior to the Effective Time represented shares of Atwork
Capital Stock (the "Certificate" or "Certificates"), a form
-2-
<PAGE> 4
of letter of transmittal and instructions for use in effecting the surrender of
the Certificates for payment therefor and conversion thereof. Delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
proper delivery of the Certificates to Med and the form of letter of
transmittal shall so reflect. Upon surrender to Med of a Certificate, together
with such letter of transmittal duly executed, the holder of such Certificate
shall be entitled to receive in exchange therefor (i) one or more certificates
as requested by the holder (properly issued, executed and countersigned, as
appropriate) representing that number of whole shares of Med Stock to which
such holder of Atwork Capital Stock shall have become entitled pursuant to the
provisions of Section 3.1(a), and (ii) as to any fractional share, a check
representing the cash consideration to which such holder shall have become
entitled pursuant to Section 3.1(b), and the Certificate so surrendered shall
forthwith be cancelled. No interest will be paid or accrued on the cash payable
upon the surrender of the Certificates. If any portion of the consideration to
be received pursuant to Sections 3.1(a) and 3.1(b) upon exchange of a
Certificate (whether a certificate representing shares of Med Stock or by check
representing cash for a fractional share) is to be issued or paid to a person
other than the person in whose name the Certificate surrendered in exchange
therefor is registered, it shall be a condition of such issuance and payment
that the Certificate so surrendered shall be properly endorsed or otherwise in
proper form for transfer and that the person requesting such exchange shall pay
in advance any transfer or other taxes required by reason of the issuance of a
certificate representing shares of Med Stock or a check representing cash for a
fractional share to such other person or establish to the satisfaction of Med
that such tax has been paid or that such tax is not applicable. From the
Effective Time until surrender in accordance with the provisions of this
Section 3.1(c), each Certificate shall represent for all purposes only the
right to receive the consideration provided in Sections 3.1(a) and 3.1(b). All
payments in respect of shares of Atwork Capital Stock that are made in
accordance with the terms hereof shall be deemed to have been made in full
satisfaction of all rights pertaining to such securities.
(2) In the case of any lost, mislaid, stolen or destroyed
Certificate, the holder thereof may be required, as a condition precedent to
delivery to such holder of the consideration described in Sections 3.1(a) and
3.1(b), to deliver to Med a bond in such reasonable sum or a satisfactory
indemnity agreement as Med may direct as indemnity against any claim that may
be made against Med or the Surviving Corporation with respect to the
Certificate alleged to have been lost, mislaid, stolen or destroyed.
(3) After the Effective Time, there shall be no transfers on
the stock transfer books of the Surviving Corporation of the shares of Atwork
Capital Stock that were outstanding immediately prior to the Effective Time.
If, after the Effective Time, Certificates are presented to the Surviving
Corporation for transfer, they shall be cancelled and exchanged for the
consideration described in Sections 3.1(a) and 3.1(b).
(4) Any shares of Med Stock or cash due former shareholders of
Atwork pursuant to Sections 3.1(a) and 3.1(b) that remains unclaimed by such
former shareholders for six months after the Effective Time shall be held by
Med and any former holder of Atwork Capital Stock who has not theretofore
complied with Section 3.1(c)(1) shall thereafter look only to Med for issuance
of the number of shares of Med Stock and other consideration to which such
holder has become entitled pursuant to the provisions of Sections 3.1(a) and
3.1(b);
-3-
<PAGE> 5
provided, however, that neither Med nor any party hereto shall be liable to a
former holder of shares of Atwork Capital Stock for any amount required to be
paid to a public official pursuant to any applicable abandoned property,
escheat or similar law.
(d) Conversion Amount and Adjustment Event.
(1) The "Atwork Conversion Amount" shall be equal to the number
obtained by dividing (i) 3,994,000 by (ii) the number of shares of Atwork
Capital Stock issued and outstanding immediately prior to the Effective Time.
(2) In the event of any change in Med Stock or Atwork Capital
Stock between the date of this Agreement and the Effective Time by reason of
any stock dividend, stock split, subdivision, reclassification,
recapitalization, combination, exchange of shares or the like (an "Adjustment
Event"), the Atwork Conversion Amount shall be appropriately adjusted so that
each holder of Atwork Capital Stock will receive in the Merger the same
proportionate amount of Med Stock such holder would have been entitled to
receive if the Effective Time had been immediately prior to such Adjustment
Event.
ARTICLE IV
4.1 Governing Law. This Agreement shall be governed in all respects,
including, but not limited to, validity, interpretation, effect and performance,
by the laws of the State of California.
4.2 Section Headings. The Section headings contained in this Agreement
have been inserted for convenience of reference only and shall not affect the
meaning or interpretation of this Agreement.
4.3 Counterparts. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original but all of which shall be considered
one and the same agreement.
4.4 Further Assurances. If, at any time after the Merger, any further
action is necessary or desirable to carry out the purposes of this Agreement
and to vest the Surviving Corporation with full right, title and possession to
all assets, property, rights, privileges, powers and franchises of BullSub, the
officers of the Surviving Corporation are fully authorized in the name of
BullSub or otherwise to take, and will take, all such necessary or desirable
action.
4.5 Dispute Resolution. Any controversy or claim arising out of or
relating to this Agreement shall be handled in the manner contemplated in the
Merger Agreement.
4.6 Abandonment of Merger. The respective Boards of Directors of the
Constituent Corporations will have the power in their discretion to abandon the
Merger provided
-4-
<PAGE> 6
for herein prior to the filing of this Agreement and the Georgia Certificate of
Merger with the California and Georgia Secretaries of State, respectively.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
MEDAPHIS CORPORATION, a Delaware corporation
By /s/ Randolph G. Brown
----------------------------------------
Randolph G. Brown
President
By /s/ Michael Cote
----------------------------------------
Michael Cote
Assistant Secretary
BULLSUB, INC., a Georgia corporation
By /s/ Randolph G. Brown
----------------------------------------
Randolph G. Brown
President
By /s/ Michael Cote
----------------------------------------
Michael Cote
Assistant Secretary
AUTOMATION ATWORK, a California corporation
By /s/ Michael Warner
----------------------------------------
Michael Warner
President
By /s/ John Holton
----------------------------------------
John Holton
Secretary
-5-
<PAGE> 7
BULLSUB, INC.
MERGER CERTIFICATE
Randolph G. Brown and Michael R. Cote certify that:
1. They are the duly elected and acting President and Assistant
Secretary, respectively, of BullSub, Inc., a Georgia corporation.
2. The principal terms of the Agreement of Merger in the form
attached were duly approved by the Board of Directors of this
corporation.
3. The principal terms of the Agreement of Merger in the form
attached were duly approved by this corporation's shareholders by the
vote of a number of shares which equalled or exceeded the vote required.
4. This corporation has only one class of shares and the total number
of outstanding shares is 100.
5. The shareholder approval was by the holders of 100% of the
outstanding capital stock of the corporation entitled to vote.
6. The vote required of the stockholders of Medaphis Corporation (a
parent party in this transaction) was obtained.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are true
and correct of our own knowledge.
DATE: March 17, 1995
/s/ Randolph G. Brown
----------------------------------------
Randolph G. Brown, President
/s/ Michael R. Cote
----------------------------------------
Michael R. Cote, Assistant Secretary
<PAGE> 8
AUTOMATION ATWORK
MERGER CERTIFICATE
Michael Warner and John Holton certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of AUTOMATION ATWORK, a California corporation.
2. The Agreement of Merger in the form attached was duly approved by
the Board of Directors of this corporation.
3. The principal terms of the Agreement of Merger in the form
attached were duly approved by this corporation's shareholders by the vote
of a number of shares which equalled or exceeded the vote required.
4. This corporation has only one class of shares and the total
number of outstanding shares is 200.
5. The shareholder approval was by the holders of 100% of the
outstanding capital stock of the corporation entitled to vote.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth is this certificate are
true and correct of our own knowledge.
DATE: March 17, 1995
/s/ Michael Warner
-----------------------------
Michael Warner, President
/s/ John Holton
-----------------------------
John Holton, Secretary
<PAGE> 9
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER is made as of this 17th day of March, 1995, among
MEDAPHIS CORPORATION, a Delaware corporation ("Med"), AUTOMATION ATWORK, a
California corporation and a wholly owned subsidiary of Med ("Atwork"), ATWORK
AUSTRALIA, a California corporation ("Atwork Australia"), ATWORK CANADA CORP.,
a California corporation ("Atwork Canada"), ATWORK-EUROPE, a California
corporation ("Atwork Europe"), and ATWORK U.K., a California corporation
("Atwork U.K.") (Atwork, Atwork Australia, Atwork Canada, Atwork Europe and
Atwork U.K. hereinafter collectively referred to as the "Constituent
Corporations").
RECITALS
A. Atwork was duly incorporated as a California corporation on April 11,
1983. The authorized capital of Atwork consists of 10,000 shares of capital
stock ("Atwork Capital Stock"), of which 200 shares are issued and outstanding.
B. Atwork Australia was duly incorporated as a California corporation on
August 9, 1991. The authorized capital of Atwork Australia consists of 30,000
shares of capital stock ("Atwork Australia Capital Stock"), of which 200 shares
are issued and outstanding.
C. Atwork Europe was duly incorporated as a California corporation on
November 1, 1989. The authorized capital of Atwork consists of 30,000 shares of
capital stock ("Atwork Europe Capital Stock"), of which 200 shares are issued
and outstanding.
D. Atwork Canada was duly incorporated as a California corporation on
April 26, 1993. The authorized capital of Atwork Canada consists of 1,000 shares
of capital stock ("Atwork Canada Capital Stock"), of which 1,000 shares are
issued and outstanding.
E. Atwork U.K. was duly incorporated as a California corporation on
February 13, 1987. The authorized capital of Atwork U.K. consists of 30,000
shares of capital stock ("Atwork U.K. Capital Stock"), of which 20,000 shares
are issued and outstanding.
F. The Constituent Corporations and others have entered into a Merger
Agreement dated as of January 29, 1995 (the "Merger Agreement"), setting forth
certain representations, warranties and agreements relating to the merger of
Atwork Australia, Atwork Europe, Atwork Canada and Atwork U.K. (Atwork
Australia, Atwork Europe, Atwork Canada and Atwork U.K. hereinafter
collectively referred to as the "Atwork Affiliates"), with and into Atwork (the
"Mergers"), with Atwork surviving the Mergers (the "Surviving Corporation").
G. The Boards of Directors of Med, Atwork, Atwork Australia, Atwork
Europe, Atwork Canada and Atwork U.K. deem their respective Mergers to be
desirable and in the best interests of their respective corporations and
shareholders or stockholders, as the case may be, and have approved the Mergers.
<PAGE> 10
H. The approval of the Mergers also requires the approval of the holders
of more than 50% of the shares of the Constituent Corporations. The Boards of
Directors of the Constituent Corporations have submitted the principal terms of
the Mergers to their respective shareholders and received the requisite
shareholder approval.
Accordingly, in consideration of the mutual covenants contained herein,
the parties agree as follows:
ARTICLE I
1.1 The Mergers. At the Effective Time (as hereinafter defined), each
of the Atwork Affiliates shall be merged with and into Atwork, and Atwork shall
be the Surviving Corporation and the separate corporate existence of each of
the Atwork Affiliates shall cease. The Surviving Corporation shall thereupon
succeed, without other transfer, to all the rights and property of the Atwork
Affiliates and shall be subject to all the debts and liabilities of the Atwork
Affiliates in the same manner as if the Surviving Corporation had itself
incurred them. All rights of creditors and all liens upon the property of each
of the Constituent Corporations shall be preserved unimpaired, provided that
such liens upon property of the Atwork Affiliates shall be limited to the
property affected thereby immediately prior to the Effective Time. Any action
or proceeding pending by or against any of the Atwork Affiliates may be
prosecuted to judgment, which shall bind the Surviving Corporation, or the
Surviving Corporation may be proceeded against or substituted in place of the
Atwork Affiliate.
1.2 Effective Time. The date when the Mergers become effective is
referred to in this Agreement as the "Effective Time" of the Mergers. The
Effective Time shall be the date of filing of this Agreement with the
California Secretary of State.
ARTICLE II
2.1 Articles of Incorporation and Bylaws. The Articles of Incorporation
and Bylaws of Atwork, as amended to and including the Effective Time, shall be
the Articles of Incorporation and Bylaws of the Surviving Corporation following
the Effective Time, until changed as provided by law and their respective
provisions. The name of the Surviving Corporation shall, from and after the
Effective Time, be and continue to be AUTOMATION ATWORK until changed in
accordance with applicable law.
ARTICLE III
3.1 Conversion of Securities
(a) Atwork Affiliates Capital Stock. As of the Effective Time, by
virtue of the Mergers and without any action on the part of any holder thereof:
(1) Subject to Section 3.1(b), each share of Atwork Australia
Capital Stock issued and outstanding immediately prior to the Effective Time
shall be converted into the right to receive the number of shares of voting
common stock, par value $.01 per share,
-2-
<PAGE> 11
of Med ("Med Stock") as are equal to the Atwork Australia Conversion Amount (as
hereinafter defined).
(2) Subject to Section 3.1(b), each share of Atwork Canada
Capital Stock issued and outstanding immediately prior to the Effective Time
shall be converted into the right to receive the number of shares of Med Stock
as are equal to the Atwork Canada Conversion Amount (as hereinafter defined).
(3) Subject to Section 3.1(b), each share of Atwork Europe
Capital Stock issued and outstanding immediately prior to the Effective Time
shall be converted into the right to receive the number of shares of Med Stock
as are equal to the Atwork Europe Conversion Amount (as hereinafter defined).
(5) Subject to Section 3.1(b), each share of Atwork U.K. Capital
Stock issued and outstanding immediately prior to the Effective Time shall be
converted into the right to receive the number of shares of Med Stock as are
equal to the Atwork U.K. Conversion Amount (as hereinafter defined). (The
Atwork Australia Capital Stock, Atwork Canada Capital Stock, Atwork Europe
Capital Stock and Atwork U.K. Capital Stock hereinafter collectively referred
to as the "Atwork Affiliates Capital Stock".)
(5) Each share of Atwork Capital Stock that is issued and
outstanding immediately prior to the Effective Time shall remain outstanding
and shall not be affected by the Mergers.
(b) Fractional Share. No scrip or fractional shares of Med Stock
will be issued, but the holder who would otherwise be entitled to such
fractional share shall be entitled to receive in cash an amount equal to the
value of such fractional interest determined in the manner set forth in the
Merger Agreement.
(c) Exchange of Atwork Affiliates Capital Stock.
(1) On or prior to the Closing Date (as defined in the Merger
Agreement), Med shall make available to each record holder who, as of the
Effective Time, was a holder of an outstanding certificate or certificates
which immediately prior to the Effective Time represented shares of Atwork
Affiliates Capital Stock (the "Certificate" or "Certificates"), a form of
letter of transmittal and instructions for use in effecting the surrender of
the Certificates for payment therefor and conversion thereof. Delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
proper delivery of the Certificates to Med and the form of letter of
transmittal shall so reflect. Upon surrender to Med of a Certificate, together
with such letter of transmittal duly executed, the holder of such Certificate
shall be entitled to receive in exchange therefor (i) one or more certificates
as requested by the holder (properly issued, executed and countersigned, as
appropriate) representing that number of whole shares of Med Stock to which such
holder of Atwork Affiliates Capital Stock shall have become entitled pursuant to
the provisions of Section 3.1(a), and (ii) as to any fractional share, a check
representing the cash consideration to which such holder shall have become
entitled pursuant to Section 3.1(b), and the Certificate so surrendered shall
forthwith be cancelled. No interest will be paid or accrued on the cash payable
upon the surrender of the Certificates. If
-3-
<PAGE> 12
any portion of the consideration to be received pursuant to Sections 3.1(a) and
3.1(b) upon exchange of a Certificate (whether a certificate representing shares
of Med Stock or by check representing cash for a fractional share) is to be
issued or paid to a person other than the person in whose name the Certificate
surrendered in exchange therefor is registered, it shall be a condition of such
issuance and payment that the Certificate so surrendered shall be properly
endorsed or otherwise in proper form for transfer and that the person requesting
such exchange shall pay in advance any transfer or other taxes required by
reason of the issuance of a certificate representing shares of Med Stock or a
check representing cash for a fractional share to such other person or establish
to the satisfaction of Med that such tax has been paid or that such tax is not
applicable. From the Effective Time until surrender in accordance with the
provisions of this Section 3.1(c), each Certificate shall represent for all
purposes only the right to receive the consideration provided in Sections 3.1(a)
and 3.1(b). All payments in respect of shares of Atwork Affiliates Capital Stock
that are made in accordance with the terms hereof shall be deemed to have been
made in full satisfaction of all rights pertaining to such securities.
(2) In the case of any lost, mislaid, stolen or destroyed
Certificate, the holder thereof may be required, as a condition precedent to
delivery to such holder of the consideration described in Sections 3.1(a) and
3.1(b), to deliver to Med a bond in such reasonable sum or a satisfactory
indemnity agreement as Med may direct as indemnity against any claim that may
be made against Med or the Surviving Corporation with respect to the
Certificate alleged to have been lost, mislaid, stolen or destroyed.
(3) After the Effective Time, there shall be no transfers on
the stock transfer books of the Surviving Corporation of the shares of Atwork
Affiliates Capital Stock that were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are presented to the
Surviving Corporation for transfer, they shall be cancelled and exchanged for
the consideration described in Sections 3.1(a) and 3.1(b).
(4) Any shares of Med Stock or cash due former shareholders of
the Atwork Affiliates pursuant to Sections 3.1(a) and 3.1(b) that remains
unclaimed by such former shareholders for six months after the Effective Time
shall be held by Med and any former holder of Atwork Affiliates Capital Stock
who has not theretofore complied with Section 3.1(c)(1) shall thereafter look
only to Med for issuance of the number of shares of Med Stock and other
consideration to which such holder has become entitled pursuant to the
provisions of Sections 3.1(a) and 3.1(b); provided, however, that neither Med
nor any party hereto shall be liable to a former holder of shares of Atwork
Affiliates Capital Stock for any amount required to be paid to a public
official pursuant to any applicable abandoned property, escheat or similar law.
(d) Conversion Amount and Adjustment Event.
(1) The "Atwork Australia Conversion Amount" shall be equal to
the number obtained by dividing (i) 750 by (ii) the number of shares of Atwork
Australia Capital Stock issued and outstanding immediately prior to the
Effective Time. The "Atwork Canada Conversion Amount" shall be equal to the
number obtained by dividing (i) 1,500 by (ii) the number of shares of Atwork
Canada Capital Stock issued and outstanding immediately prior to the Effective
Time. The "Atwork Europe Conversion Amount" shall be equal to the number
- 4 -
<PAGE> 13
obtained by dividing (i) 750 by (ii) the number of shares of Atwork Europe
Capital Stock issued and outstanding immediately prior to the Effective Time.
The "Atwork U.K. Conversion Amount" shall be equal to the number obtained by
dividing (i) 3,000 by (ii) the number of shares of Atwork U.K. Capital Stock
issued and outstanding immediately prior to the Effective Time. The Atwork
Australia Conversion Amount, Atwork Canada Conversion Amount, Atwork Europe
Conversion Amount and Atwork U.K. Conversion Amount are hereinafter collectively
referred to as the "Atwork Affiliates Conversion Amounts" and individually as
an "Atwork Affiliate Conversion Amount."
(2) In the event of any change in Med Stock or Atwork
Affiliates Capital Stock between the date of this Agreement and the Effective
Time by reason of any stock dividend, stock split, subdivision,
reclassification, recapitalization, combination, exchange of shares or the like
(an "Adjustment Event"), the applicable Atwork Affiliate Conversion Amount
shall be appropriately adjusted so that each holder of Atwork Affiliates
Capital Stock will receive in the Mergers the same proportional amount of Med
Stock such holder would have been entitled to receive if the Effective Time had
been immediately prior to such Adjustment Event.
ARTICLE IV
4.1 Governing Law. This Agreement shall be governed in all respects,
including, but not limited to, validity, interpretation, effect and
performance, by the laws of the State of California.
4.2 Section Headings. The Section headings contained in this Agreement
have been inserted for convenience of reference only and shall not affect the
meaning or interpretation of this Agreement.
4.3 Counterparts. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original but all of which shall be considered
one and the same agreement.
4.4 Further Assurances. If, at any time after the Mergers, any further
action is necessary or desirable to carry out the purposes of this Agreement and
to vest the Surviving Corporation with full right, title and possession to all
assets, property, rights, privileges, powers and franchises of Atwork Australia,
Atwork Europe, Atwork Canada and Atwork U.K., the officers of the Surviving
Corporation are fully authorized in the name of Atwork Australia, Atwork Europe,
Atwork Canada and Atwork U.K. or otherwise to take, and will take, all such
necessary or desirable action.
4.5 Dispute Resolution. Any controversy or claim arising out of or
relating to this Agreement shall be handled in the manner contemplated in the
Merger Agreement.
4.6 Abandonment of Mergers. The respective Boards of Directors of the
Constituent Corporations will have the power in their discretion to abandon the
Mergers provided for herein prior to the filing of this Agreement with the
California Secretary of State.
-5-
<PAGE> 14
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
MEDAPHIS CORPORATION, a Delaware
corporation
By /s/ Randolph G. Brown
--------------------------------
Randolph G. Brown
President
By /s/ Michael Cote
--------------------------------
Michael Cote
Assistant Secretary
AUTOMATION ATWORK, a California
corporation
By /s/ Michael Warner
--------------------------------
Michael Warner
President
By /s/ John Holton
--------------------------------
John Holton
Secretary
ATWORK AUSTRALIA, a California
corporation
By /s/ Michael Warner
--------------------------------
Michael Warner
President
By /s/ John Holton
--------------------------------
John Holton
[SIGNATURES CONTINUED ON NEXT PAGE]
-6-
<PAGE> 15
ATWORK CANADA CORP., a California
corporation
By /s/ Michael Warner
--------------------------------
Michael Warner
President
By /s/ John Holton
--------------------------------
John Holton
Secretary
ATWORK-EUROPE, a California
corporation
By /s/ Michael Warner
--------------------------------
Michael Warner
President
By /s/ John Holton
--------------------------------
John Holton
Secretary
ATWORK U.K., a California
corporation
By /s/ Michael Warner
--------------------------------
Michael Warner
President
By /s/ John Holton
--------------------------------
John Holton
Secretary
-7-
<PAGE> 16
AUTOMATION ATWORK
MERGER CERTIFICATE
Michael Warner and John Holton certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of AUTOMATION ATWORK, a California corporation.
2. The Agreement of Merger in the form attached was duly approved by
the Board of Directors of this corporation.
3. The principal terms of the Agreement of Merger in the form
attached were duly approved by this corporation's shareholders by the vote
of a number of shares which equalled or exceeded the vote required.
4. This corporation has only one class of shares and the total
number of outstanding shares is 100.
5. The shareholder approval was by the holders of 100% of the
outstanding capital stock of the corporation entitled to vote.
6. The vote required of the stockholders of Medaphis Corporation (a
parent party in this transaction) was obtained.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are
true and correct of our own knowledge.
DATE: March 17, 1995
/s/ Michael Warner
-----------------------------
Michael Warner, President
/s/ John Holton
-----------------------------
John Holton, Secretary
<PAGE> 17
ATWORK AUSTRALIA
MERGER CERTIFICATE
Michael Warner and John Holton certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of ATWORK AUSTRALIA, a California corporation.
2. The Agreement of Merger in the form attached was duly approved by
the Board of Directors of this corporation.
3. The principal terms of the Agreement of Merger in the form
attached were duly approved by this corporation's shareholders by the vote
of a number of shares which equalled or exceeded the vote required.
4. This corporation has only one class of shares and the total
number of outstanding shares is 200.
5. The shareholder approval was by the holders of 100% of the
outstanding capital stock of the corporation entitled to vote.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are
true and correct of our own knowledge.
DATE: March 17, 1995
/s/ Michael Warner
-----------------------------
Michael Warner, President
/s/ John Holton
-----------------------------
John Holton, Secretary
<PAGE> 18
ATWORK CANADA CORP.
MERGER CERTIFICATE
Michael Warner and John Holton certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of ATWORK CANADA CORP., a California corporation.
2. The Agreement of Merger in the form attached was duly approved by
the Board of Directors of this corporation.
3. The principal terms of the Agreement of Merger in the form
attached were duly approved by this corporation's shareholders by the vote
of a number of shares which equalled or exceeded the vote required.
4. This corporation has only one class of shares and the total
number of outstanding shares is 1,000.
5. The shareholder approval was by the holders of 100% of the
outstanding capital stock of the corporation entitled to vote.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth is this certificate are
true and correct of our own knowledge.
DATE: March 17, 1995
/s/ Michael Warner
-----------------------------
Michael Warner, President
/s/ John Holton
-----------------------------
John Holton, Secretary
<PAGE> 19
ATWORK EUROPE
MERGER CERTIFICATE
Michael Warner and John Holton certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of ATWORK EUROPE, a California corporation.
2. The Agreement of Merger in the form attached was duly approved by
the Board of Directors of this corporation.
3. The principal terms of the Agreement of Merger in the form
attached were duly approved by this corporation's shareholders by the vote
of a number of shares which equalled or exceeded the vote required.
4. This corporation has only one class of shares and the total
number of outstanding shares is 200.
5. The shareholder approval was by the holders of 100% of the
outstanding capital stock of the corporation entitled to vote.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth is this certificate are
true and correct of our own knowledge.
DATE: March 17, 1995
/s/ Michael Warner
-----------------------------
Michael Warner, President
/s/ John Holton
-----------------------------
John Holton, Secretary
<PAGE> 20
ATWORK U.K.
MERGER CERTIFICATE
Michael Warner and John Holton certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of ATWORK U.K., a California Corporation.
2. The Agreement of Merger in the form attached was duly approved by
the Board of Directors of this corporation.
3. The principal terms of the Agreement of Merger in the form
attached were duly approved by this corporation's shareholders by the vote
of a number of shares which equalled or exceeded the vote required.
4. This corporation has only one class of shares and the total
number of outstanding shares is 20,000.
5. The shareholder approval was by the holders of 100% of the
outstanding capital stock of the corporation entitled to vote.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth is this certificate are
true and correct of our own knowledge.
DATE: March 17, 1995
/s/ Michael Warner
-----------------------------
Michael Warner, President
/s/ John Holton
-----------------------------
John Holton, Secretary
[SEAL]
<PAGE> 1
EXHIBIT 3.18
BYLAWS
OF
AUTOMATION ATWORK
<PAGE> 2
BYLAWS
OF
AUTOMATION ATWORK
(a California corporation)
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Page
----
ARTICLE I - Offices
Section 1.01 Principal Executive Office 1
ARTICLE II - Shareholders
Section 2.01 Annual Meetings 1
Section 2.02 Special Meetings 2
Section 2.03 Adjourned Meetings 2
Section 2.04 Place of Meetings 3
Section 2.05 Notice of Shareholder Meetings 3
Section 2.06 Quorum of the Shareholders 6
Section 2.07 Conduct of Meetings 6
Section 2.08 Proxies 7
Section 2.09 Voting 8
Section 2.10 Inspectors of Election 10
Section 2.11 Validation of Defectively
Called or Noticed Meetings 11
Section 2.12 Action Without Meeting 13
ARTICLE III - Directors
Section 3.01 Powers 15
</TABLE>
(i)
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 3.02 Number of Directors 15
Section 3.03 Election and Term of Office 16
Section 3.04 Creation and Filling of
Vacancies on the Board 16
Section 3.05 Fees and Compensation 18
Section 3.06 Organization Meeting 18
Section 3.07 Other Regular Meetings 18
Section 3.08 Special Meetings 19
Section 3.09 Place of Meetings 20
Section 3.10 Action at a Meeting:
Quorum and Required Vote 20
Section 3.11 Adjournment 21
Section 3.12 Action Without Meeting 21
Section 3.13 Committees of the Board 22
ARTICLE IV - Officers
Section 4.01 Officers 23
Section 4.02 Election and Term of Office 24
Section 4.03 Removal and Resignation 24
Section 4.04 Vacancies 25
Section 4.05 Duties and Compensation 25
ARTICLE V - Indemnification of Agents of the
Corporation; Purchase of Liability
Insurance
Section 5.01 Indemnification of Agents 25
Section 5.02 Purchase of Liability Insurance 30
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE VI - Miscellaneous
Section 6.01 Record Date 31
Section 6.02 Maintenance of Books and Records 32
Section 6.03 Inspection of Corporate Records 33
Section 6.04 Annual and Other Reports 35
Section 6.05 Certificates for Shares 38
Section 6.06 Representation of Shares of
This and Other Corporations 39
Section 6.07 Construction of these Bylaws 40
ARTICLE VII - Amendments
Section 7.01 Power of Shareholders 41
Section 7.02 Power of Directors 41
CERTIFICATE OF SECRETARY 42
</TABLE>
(iii)
<PAGE> 5
BYLAWS
OF
AUTOMATION ATWORK
(a California corporation)
ARTICLE I
Offices
Section 1.01 Principal Executive Office. The principal executive
office of the corporation is located at 2150 Trade Zone Boulevard, Suite 201,
San Jose, California 95131. The Board of Directors shall have full power and
authority to, and to authorize appropriate officers of the corporation to,
change the location of the principal executive office and to establish other
offices of the corporation.
ARTICLE II
Shareholders
Section 2.01 Annual Meetings. An annual meeting of shareholders shall
be held for the election of directors on the second Tuesday in May of each year
(or, should such day fall upon a legal holiday, then at the same time on the
first day thereafter which is not a legal holiday) at 10:00 A.M. of such day;
or at such other time and/or date as the Board of Directors shall determine,
provided, however, that such meeting shall be held not more than 15 months
after the last preceding annual meeting (or, in the case of the first annual
meeting, after the organization of the corporation)- Any other proper business
may be transacted at the annual meeting.
<PAGE> 6
Section 2.02 Special Meetings. Special meetings of the shareholders, for
the purpose of taking any action permitted by the shareholders under the
General Corporation Law and the Articles of Incorporation, may be called at any
time by the Chairman of the Board or the President, or by the Board of
Directors, or by one or more shareholders entitled to cast not less than ten
percent (10%) of the votes at the meeting. Upon request in writing directed to
the Chairman of the Board, President, Vice President or Secretary by any person
(other than the Board) entitled to call a special meeting of shareholders that
a special meeting of shareholders be called for any proper purpose, the officer
forthwith shall cause notice to be given to shareholders entitled to vote that
a meeting will be held at a time requested by the person or persons calling the
meeting, but not less than 35 days, nor more than 60 days, after receipt of the
request.
Section 2.03 Adjourned Meetings. Any shareholders' meeting, annual or
special, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares, the holders of which are either
present in person or represented by proxy thereat, but in the absence of a
quorum no other business may be transacted at such meeting, except as provided
in Section 2.06.
When a shareholders' meeting is adjourned to another time or place,
except as provided below, notice need not be given of the time and place of or
of the business to be conducted at the adjourned meeting if the time and place
thereof are announced at
2
<PAGE> 7
the meeting at which such adjournment is taken. When any shareholders' meeting
is adjourned for 45 days or more, or if after adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting shall be given
to each shareholder of record entitled to vote at the meeting.
At the adjourned meeting, provided that the quorum requirements of
Section 2.06 are satisfied, the corporation may transact any business which
might have been transacted at the original meeting.
Section 2.04 Place of Meetings. All annual or other meetings of
shareholders shall be held at the principal executive office of the
corporation, or at any other place within or without the State of California
which may be designated, either by the Board of Directors or by the written
consent of all persons entitled to vote thereat and not present at the meeting,
given either before or after the meeting and filed with the Secretary of the
corporation.
Section 2.05 Notice of Shareholder Meetings. Written notice of any
meeting of shareholders shall be given to each shareholder entitled to vote,
either personally or by first-class mail, or, if the outstanding shares of the
corporation are held of record by 500 or more persons (determined as provided by
Section 605 of the General Corporation Law) on the record date for the
shareholders' meeting, by third-class mail, or other means of written
communication, charges prepaid, addressed to such shareholder at such
shareholder's address appearing on the books
3
<PAGE> 8
of the corporation or given by such shareholder to the corporation for the
purpose of notice. If no such address appears on the books of the corporation
and a shareholder has given no address for the purpose of notice, then notice
shall be deemed to have been given to such shareholder if it is (i) sent by
mail or other means of written communication addressed to the place where the
principal executive office of the corporation is located, or (ii) published at
least once in a newspaper of general circulation in the county in which the
principal executive office is located.
Any such notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by other means of
written communication. An affidavit of mailing of any such notice in
accordance with the foregoing provisions, executed by the Secretary, Assistant
Secretary or any transfer agent of the corporation shall be prima facie
evidence of the giving of the notice.
If any notice addressed to the shareholder at the address of such
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the shareholder
at such address, all future notices shall be deemed to have been duly given to
such shareholder without further mailing if the same shall be available for the
shareholder upon written demand of the shareholder at the principal executive
office of the corporation for a period of one
4
<PAGE> 9
year from the date of the giving of the notice to all other shareholders.
Such written notice shall be given to each shareholder entitled to vote
at the meeting not less than ten days (or, if sent by third-class mail, 30
days) nor more than 60 days before the date of the meeting. Such notice shall
state:
(a) the place, the date, and the hour of such meeting; and
(b) in the case of a special meeting, the general nature of the
business to be transacted (and no other business may be transacted at such
meeting); and
(c) in the case of the annual meeting, those matters which the Board,
at the time of the mailing of the notice, intends to present for action by the
shareholders, but subject to the requirements of (d), (e) and (f) below, any
proper matter may be presented at the meeting for action by the shareholders;
and
(d) if directors are to be elected, the names of nominees intended at
the time of the notice to be presented by management for election; and
(e) the general nature of any proposal to take action with respect to
approval of, (i) a contract or other transaction between the corporation and
one or more of its directors or other persons described in Section 310 of the
General Corporation Law, (ii) amendment of the Articles of Incorporation, (iii)
a reorganization of the corporation as defined in Section 181 of the General
Corporation Law, (iv) voluntary dissolution of the
5
<PAGE> 10
corporation, or (v) a plan of distribution in the course of dissolution of the
corporation other than in accordance with the liquidation rights of outstanding
preferred shares, if any, pursuant to Section 2007 of the General Corporation
Law; and
(f) such other matters, if any, as may be expressly required by
applicable law.
Section 2.06 Quorum of the Shareholders. Unless otherwise provided in the
Articles of Incorporation, a majority of the shares entitled to vote at the
meeting, represented by holders in person or by proxy at the meeting, shall
constitute a quorum for the transaction of business at the meeting. Whenever
under the General Corporation Law any shares are disqualified from voting on
any matter, they shall not be considered outstanding for purposes of
determining the quorum required at a meeting held to act upon that matter.
The shareholders present at a duly called or held meeting at which a
quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum, and by any greater
number of shares otherwise required to take such action by applicable law or the
Articles of Incorporation.
Section 2.07 Conduct of Meetings. Subject to the requirements of
applicable law, and the express provisions of the Articles of Incorporation and
these bylaws, all annual and special
6
<PAGE> 11
meetings of shareholders shall be conducted in accordance with such rules and
procedures as the Board of Directors may determine and, as to matters not
governed by such rules and procedures, as the Chairman of such meeting shall
determine. The Chairman of any annual or special meeting of shareholders shall
be designated by the Board of Directors and, in the absence of any such
designation, shall be the President of the corporation.
Section 2.08 Proxies. Every person entitled to vote shares of this
corporation shall have the right to do so in person or by a written proxy
executed by such person or his duly authorized agent and filed with the
Secretary of the corporation, authorizing another person or persons to
vote or execute consents with respect to such shares. Subject to the
provisions of this Section and applicable law, any proxy duly executed
continues in full force and effect until revoked by the person executing it
prior to the vote pursuant thereto.
A proxy (other than a proxy which states that it is irrevocable and
otherwise meets the requirements of Section 705(e) of the General Corporation
Law) is revoked by:
(a) a written instrument revoking it, or a duly executed proxy bearing
a later date, executed by the person executing the proxy being revoked, filed
with the Secretary of the corporation prior to the vote pursuant thereto; or
(b) as to any meeting by attendance at such meeting and voting of the
shares subject thereto by the person executing the proxy; or
7
<PAGE> 12
(c) written notice of the death or incapacity of the maker of such
proxy received by the corporation before the vote pursuant thereto is counted
(but the death or incapacity of the maker of the proxy does not revoke the
proxy prior to the receipt by the corporation of such written notice); or
(d) the expiration of eleven (11) months from the date of the
execution of the proxy, unless the person executing it specifies therein the
length of time for which such proxy is to continue in force.
Section 2.09 Voting. The Board of Directors may fix a record date for
the determination of the shareholders entitled to vote at any meeting of
shareholders, and if a record date for voting purposes is not fixed by the
Board, it shall be determined as provided in Section 6.01 below.
Unless the Articles of Incorporation provide for more or less than one
vote per share, and subject to the following provisions with respect to voting
on election of directors, each outstanding share, regardless of class, shall be
entitled to one vote on each matter on which such share is entitled to be
voted. Subject to the requirements of the next sentence, every shareholder
entitled to vote at any election for directors shall have the right to cumulate
such shareholder's votes and to give one candidate a number of votes equal to
the number of directors to be elected by the class of shares such shareholder
is entitled to vote multiplied by the number of votes to which such
shareholder's shares are normally entitled, or to distribute such shareholder's
votes on the
8
<PAGE> 13
same principle among as many candidates as the shareholder thinks fit. No
shareholder shall be entitled to cumulate votes in accordance with the preceding
sentence unless the name of the candidate or candidates for whom such votes
would be cast has been placed in nomination prior to the voting and any
shareholder has given notice at the meeting, prior to the voting, of such
shareholder's intention to cumulate such shareholder's votes. Any holder of
shares entitled to vote on any matter may vote part of the shares in favor of
the proposal and refrain from voting the remaining shares or (except in voting
upon election of directors) vote them against the proposal, but, if the
shareholder fails to specify the number of shares such shareholder is voting
affirmatively, it will be conclusively presumed that the shareholder's approving
vote is with respect to all shares such shareholder is entitled to vote. Voting
by the shareholders may be a voice vote or by ballot; provided, however, that
all elections for directors must be by ballot upon demand made by a shareholder
at the meeting and before the voting begins.
Except as provided in the second paragraph of Section 2.06:
(a) the affirmative vote of a majority of the shares represented and
voting at a duly held meeting at which a quorum is present (which shares voting
affirmatively also constitute at least a majority of the required quorum) shall
be the act of the shareholders, unless the vote of a greater number or voting
by classes is required for such act by the General
9
<PAGE> 14
Corporation Law or the Articles of Incorporation, provided that whenever under
the General Corporation Law any shares are disqualified from voting on any
matter, such shares shall not be considered outstanding for purposes of
determining the required vote to approve such matter; and
(b) in the election of directors, the candidates receiving the
highest number of votes of shares entitled to be voted for them, up to the
number of directors to be elected by such shares, are elected.
Section 2.10 Inspectors of Election. In advance of any meeting of
shareholders, the Board of Directors may appoint inspectors of election to act
at such meeting and any adjournment thereof. If inspectors of election are not
so appointed, or if any persons so appointed fail to appear or refuse to act,
then unless other persons are appointed by the Board of Directors prior to the
meeting, the Chairman of any such meeting may, and on the request of any
shareholder or a shareholder's proxy shall, appoint inspectors of election (or
persons to replace those who fail to appear or refuse to act) at the meeting.
The number of inspectors shall be either one or three. If inspectors of
election are to be appointed at a meeting on the request of one or more
shareholders or proxies, the majority of shares represented in person or by
proxy shall determine whether one or three inspectors are to be appointed.
The duties of such inspectors shall be as prescribed by Section 707 of the
General Corporation Law and shall include:
10
<PAGE> 15
(a) determining the number of shares outstanding and the voting power of each,
the shares represented at the meeting, the existence of a quorum, and the
authenticity, validity and effect of proxies; (b) receiving votes, ballots or
consents; (c) hearing and determining all challenges and questions in any way
arising in connection with the right to vote; (d) counting and tabulating all
votes or consents and determining the result; and (e) taking such other action
as may be proper to conduct the election or vote with fairness to all
shareholders. In the determination of the validity and effect of proxies the
dates contained on the forms of proxy shall presumptively determine the order
of execution of the proxies, regardless of the postmark dates on the envelopes
in which they are mailed.
The inspectors of election shall perform their duties impartially, in good
faith, to the best of their ability and as expeditiously as is practical. If
there are three inspectors of election, the decision, act or certificate of a
majority is effective in all respects as the decision, act or certificate of
all. Any report or certificate made by the inspectors of election is prima
facie evidence of the facts stated therein.
Section 2.11 Validation of Defectively Called or Noticed Meetings. The
transactions of any meeting of shareholders, however called and noticed and
wherever held, are as valid as though had at a meeting duly held after regular
call and notice, if the quorum requirements of Section 2.06 are satisfied and
if, either before or after the meeting, each of the following persons signs a
written
11
<PAGE> 16
waiver of notice, or a consent to the holding of such meeting, or an approval
of the minutes thereof:
(a) any person entitled to vote at the meeting not present at the
meeting in person or by proxy;
(b) any person who, though present, has, at the beginning of the
meeting, properly objected to the transaction of any business because the
meeting was not lawfully called or convened; or
(c) any person who, though present, has, during the meeting,
properly objected to the consideration of particular matters of business
required by the General Corporation Law to be included in the notice of the
meeting, but not so included. All such waivers, consents or approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
Except as otherwise provided in the Articles of Incorporation and subject
to the next sentence, neither the business to be transacted at, nor the purpose
of any annual or special meeting of shareholders need be specified in any
written waiver of notice, consent to the holding of the meeting or approval of
the minutes thereof. Any such waiver of notice of or consent to the holding of
a meeting at which a proposal described in Section 2.05(e) was or is to be
acted upon shall contain a statement of the general nature of such proposal.
12
<PAGE> 17
Section 2.12 Action Without Meeting. Unless otherwise provided in the
Articles of Incorporation:
Directors may be elected without a meeting only by unanimous written
consent of all of the persons who would be entitled to vote for the election of
such directors, provided that, if a vacancy occurs for any reason other than
the removal of a director, and if such vacancy is not filled by the remaining
directors, then such vacancy may be filled by the written consent of holders of
a majority of the outstanding shares entitled to vote for the election of the
director whose vacancy has occurred.
Any other action which, under any provision of the General Corporation
Law, may be taken at a meeting of the shareholders, may be taken without a
meeting, upon notice as hereinafter set forth, if a consent in writing, setting
forth the action so taken, is signed by the holders of outstanding shares
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted.
All such written consents shall be filed with the Secretary of the
corporation.
The Board of Directors may fix a record date for the determination of
shareholders entitled to give such written consent, and if the record date for
such determination is not fixed by the Board, it shall be determined as
provided in Section 6.01 below.
13
<PAGE> 18
Unless the consents of all shareholders entitled to vote have been
solicited in writing, the following notices shall be given to each shareholder
entitled to vote who has not consented in writing:
(a) Written notice of any proposed shareholder approval, without a
meeting and by less than unanimous written consent, of any of the following
proposals shall be given at least ten (10) days before the consummation of the
action authorized by such approval: (i) a contract or other transaction between
the corporation and one or more of its directors or other persons described in
Section 310 of the General Corporation Law; (ii) indemnification of an agent of
the corporation as authorized by Article V of these bylaws; (iii) a
reorganization of the corporation as defined in Section 181 of the General
Corporation Law or (iv) a plan of distribution in the course of dissolution of
the corporation other than in accordance with the liquidation rights of
outstanding preferred shares, if any, pursuant to Section 2007 of the General
Corporation Law and
(b) Prompt written notice shall be given of the taking of any other
corporate action approved by shareholders without a meeting by less than
unanimous written consent. Such notices shall be given in the manner and shall
be deemed to have been given as provided in the first three paragraphs of
Section 2.05 of these bylaws.
Any shareholder giving a written consent, or the shareholder's
proxyholders, or a transferee of the shares or a
14
<PAGE> 19
personal representative of the shareholder, or their respective proxyholders,
may revoke the consent by a writing received by the corporation prior to the
time that written consents of the number of shares required to authorize the
proposed action have been filed with the Secretary of the corporation, but may
not do so thereafter. Such revocation, if timely, is effective upon its
receipt by the Secretary of the corporation.
ARTICLE III
Directors
Section 3.01 Powers. Subject to limitations of the General Corporation
Law and any limitations in the Articles of Incorporation as to action required
to be authorized or approved by the shareholders, the business and affairs of
the corporation shall be managed and all corporate powers shall be exercised by
or under the direction of the Board of Directors. Subject to the foregoing,
the Board may delegate the management of the day-to-day operation of the
business of the corporation to officers, agents and employees of the
corporation.
Section 3.02 Number of Directors. The authorized number of directors
shall be two (2) until changed by a duly adopted amendment of the Articles of
Incorporation or by an amendment of this Section 3.02 duly adopted by the vote
or written consent of holders of a majority of the outstanding shares entitled
to vote on such amendment; provided, however, that an amendment reducing the
number of directors to a number less than five (5) cannot be adopted if the
votes cast against its adoption at a meeting of the
15
<PAGE> 20
shareholders, or the shares not consenting in the case of action by written
consent, are equal to more than sixteen and two-thirds percent (16-2/3%) of
the outstanding shares entitled to vote.
Section 3.03 Election and Term of Office. At each annual meeting of
shareholders the directors shall be elected to hold office until the next annual
meeting. Each director, including a director elected to fill a vacancy, shall
hold office until expiration of the term for which such director was elected,
and until a successor has been elected and qualified, subject to the General
Corporation Law and the provisions of these bylaws with respect to vacancies on
the Board.
Section 3.04 Creation and Filling of Vacancies on the Board. A vacancy or
vacancies on the Board of Directors shall be deemed to exist in case of the
death, removal or resignation of any director, if the authorized number of
directors is increased, or if the shareholders fail, at any annual or special
meeting of shareholders at which any director or directors are to be elected,
to elect the full authorized number of directors to be elected at that meeting.
The Board of Directors may remove any director who has been declared of
unsound mind by an order of court or who has been convicted of a felony. In
addition, any or all of the directors may be removed without cause if such
removal is approved by the vote or written consent of holders of a majority of
the outstanding shares entitled to vote on the election of directors, subject
to the following:
16
<PAGE> 21
(a) No director may be removed (unless the entire Board is removed)
when the votes cast against removal, or not consenting in writing to such
removal, would be sufficient to elect such director if voted cumulatively at an
election at which the same total number of votes were cast (or, if such action
is taken by written consent, all shares entitled to vote were voted) and the
entire number of directors authorized at the time of the director's most recent
election were then being elected; and
(a) When by the provisions of the Articles of Incorporation the holders
of the shares of any class or series, voting as a class or series, are entitled
to elect one or more directors, any director so elected may be removed only by
the applicable vote of the holders of the shares of that class or series.
Any director may resign effective upon giving written notice to the
Chairman of the Board, the President, the Secretary or the Board of Directors
of the corporation, or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. If the resignation is effective at a future
time, a successor may be elected to take office when the resignation becomes
effective.
Unless otherwise provided in the Articles of Incorporation, vacancies in
the Board of Directors, except for a vacancy created by the removal of a
director, may be filled by a majority of the remaining directors, though less
than a quorum, or
17
<PAGE> 22
by a sole remaining director, and each director so elected shall hold office
until occurrence of an event specified above creating a vacancy in such
director's office or until such director's successor is elected and qualified.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors, provided, however, that a
vacancy in the Board of Directors created by the removal of a director may only
be filled by written consent if all shares entitled to vote on the election of
directors shall so consent in writing.
Section 3.05 Fees and Compensation. By resolution of the Board of
Directors, one or more of the directors may be paid a retainer for their
services as directors, or a fixed fee (with or without expenses of attendance)
for attendance at each meeting, or both. Nothing herein contained shall be
construed to preclude any director from serving the corporation in any other
capacity as an officer, agent, employee, or otherwise, and receiving
compensation therefor.
Section 3.06 Organization Meeting. Immediately following each annual
meeting of shareholders, the Board of Directors shall hold a regular meeting
at the place of the annual meeting or at such other place as shall be fixed by
the Board of Directors, for the purpose of organization, election of officers,
and the transaction of other business. Call and notice of such meeting are
hereby dispensed with.
Section 3.07 Other Regular Meetings. Other regular meetings of the Board
of Directors may be held at the time and
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place of regular meetings of the Board fixed in advance by the Board of
Directors. Call and notice of such regular meetings of the Board of Directors
are hereby dispensed with.
Section 3.08 Special Meetings. Special meetings of the Board of
Directors, for the purpose of taking any action permitted by the directors
under the General Corporation Law and the Articles Of Incorporation, may be
called at any time by the Chairman of the Board, the President, any Vice
President, the Secretary or by any two directors.
Notice of a meeting need not be given to any director who signs a waiver
of notice or a consent to hold the meeting or an approval of the minutes
thereof, whether before or after the meeting, or who attends the meeting
without protesting, prior to the meeting or at its commencement, the lack of
notice to such director. All such waivers, consents and approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
Subject to the preceding sentence, notice of the time and place of special
meetings shall be given to each director, (a) personally or by telephone or by
telegraph, in each case 48 hours prior to the holding of the meeting, or (b)
by mail, charges prepaid, addressed to the director at his or her address as it
is shown upon the records of the corporation or, if it is not so shown on such
records and is not readily ascertainable, at the place at which the meetings of
the directors are regularly held, at least four days prior to the holding of
the meeting. Notice by mail shall be deemed to have been given at the time a
written
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notice is deposited in the United States mails, postage prepaid. Any other
written notice shall be deemed to have been given at the time it is personally
delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone or wireless, to
the recipient or to a person or by telephone or wireless, to the recipient or
to a person at the office of the recipient who the person giving the notice has
reason to believe will promptly communicate it to the recipient.
Any notice, waiver of notice or consent to holding a meeting shall
state the time and place of the meeting but need not specify the purpose of the
meeting.
Section 3.09 Place of Meetings. Regular and special meetings of the
Board of Directors may be held at any place within or without the State which
has been designated by resolution of the Board. In the absence of such
designation meetings shall be held at the principal executive office of the
corporation.
Section 3.10 Action at a Meeting: Quorum and Required Vote. Presence
in person of a majority of the authorized number of directors at a meeting
shall constitute a quorum of the Board for the transaction of business, except
as hereinafter provided. Members of the Board may participate in a meeting
through use of conference telephone or similar communications equipment, so
long as all members participating in such meeting can hear one another.
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Participation in a meeting as permitted in the preceding sentence constitutes
presence in person at such meeting.
Except as provided in the next sentence, every act or decision done or
made by a majority of the directors present at a meeting duly held at which a
quorum is present is the act of the Board of Directors, unless a greater number
is required by law, the Articles of Incorporation or these bylaws. A meeting
at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, provided that any action taken
must be approved by a least a majority of the required quorum for such meeting.
Section 3.11 Adjournment. A majority of the directors present at any
meeting, whether or not a quorum is present, may adjourn any directors' meeting
to another time and place. If any meeting is adjourned for more than 24 hours,
notice of any adjournment to another time or place shall be given prior to the
time of the adjourned meeting to the directors who were not present at the time
of adjourned. Otherwise notice of the time and place of holding an adjourned
meeting need not be given to absent directors if the time and place is fixed at
the meeting adjourned.
Section 3.12 Action Without Meeting. Any action required or permitted
to be taken by the Board of Directors may be taken without a meeting if all
members of the Board shall individually or collectively consent in writing to
such action. Such written consent or consents shall be filed with the minutes
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of the proceedings of the Board and shall have the same force and effect as a
unanimous vote of such directors.
Section 3.13 Committees of the Board. By resolution adopted by a
majority of the authorized number of directors, the Board of Directors may
designate an executive committee, an audit committee and such other committees
as it shall determine, each consisting of two or more directors, to serve at
the pleasure of the Board, and prescribe the manner in which proceedings of
such committees shall be conducted. The appointment of members or alternate
members of a committee shall be by a majority vote of the authorized number of
directors. For purposes of these bylaws, the term "audit committee" shall mean
any committee of the Board of Directors to which is delegated the function of
periodically reviewing the financial condition, and the results of audit
examinations, of the corporation with the corporation's independent public
accountants. The audit committee, if appointed, shall not include any officer
or employee of the corporation unless the Board of Directors shall specifically
designate an officer or employee to serve on such committee.
Unless, to the extent permitted by the General Corporation Law, the
Board of Directors shall otherwise prescribe the manner of proceedings of any
such committee, the provisions of these bylaws with respect to notice and
conduct of meetings of the Board shall govern committees of the Board and
action by such committees.
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Any such committee, to the extent provided in a resolution of the
Board, shall have all of the authority of the Board, except with respect to:
(a) the approval of any action for which the General
Corporation Law or the Articles of Incorporation also require approval of the
shareholders;
(b) the filling of vacancies on the Board or on any
committee;
(c) the fixing of compensation of the directors for serving
on the Board or on any committee;
(d) the adoption, amendment or repeal of bylaws;
(e) the amendment or repeal of any resolution of the Board
which by its express terms is not so amendable or repealable;
(f) any distribution to the shareholders, except at a rate
or in a periodic amount or within a price range determined by the Board; and
(g) the appointment of other committees of the Board or the
members thereof.
ARTICLE IV
Officers
Section 4.01 Officers. The officers of the corporation shall be a
President, a Vice President, a Secretary and a Chief Financial Officer. The
corporation may also have, at the discretion of the Board of Directors, a
Chairman of the Board and such other officers, with such titles and duties, as
may be
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determined by the Board of Directors. One person may hold two or more offices,
except that the offices of President and Secretary shall not be held by the same
person.
Section 4.02 Election and Term of Office. The officers of the
corporation shall be chosen by the Board of Directors, and each shall hold
office at the pleasure of the Board or until such officer shall resign,
subject, in each case, to the rights, if any, of the corporation and any such
officer under any contract of employment with the corporation.
Section 4.03 Removal and Resignation. Any officer may be removed,
either with or without cause, by a majority of the directors at the time in
office, at any regular or special meeting of the Board of Directors, or, except
in case of an officer chosen by the Board of Directors, by any officer upon whom
such power of removal may be conferred by the Board of Directors, subject, in
each case, to the rights, if any, of any such officer under any contract of
employment with the corporation.
Any officer may resign at any time be giving written notice to the
corporation, without prejudice, however, to the rights, if any, of the
corporation under any contract to which such officer is a party. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified in such notice; and, unless otherwise specified in
such notice, the acceptance of such resignation shall not be necessary to make
it effective.
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Section 4.04 Vacancies. A vacancy in any office shall be filled in the
manner prescribed in these bylaws for regular appointments to such office.
Section 4.05 Duties and Compensation. Officers of the corporation
shall have such powers and duties, and shall receive such compensation
therefor, as may be specified from time to time by the Board of Directors. In
the absence of any contrary determination by the Board of Directors, the
President shall be the general manager and chief executive officer of the
corporation and shall, subject to the power and authority of the Board of
Directors, have general supervision, direction and control of the officers,
employees, business and affairs of the corporation.
ARTICLE V
Indemnification of Agents of the Corporation;
Purchase of Liability Insurance
Section 5.01 Indemnification of Agents.
(a) for the purposes of this Section, "agent" means any
person who is or was a director, officer, employee or other agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or was a
director, officer, employee or agent of a foreign or domestic corporation which
was a predecessor corporation of the corporation or of another enterprise at
the request of such predecessor corporation; "proceeding" means any threatened,
pending or completed action or
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proceeding, whether civil, criminal, administrative or investigative; and
"expenses" includes, without limitation, attorneys' fees and any expenses of
establishing a right to indemnification under paragraph (d) or subparagraph (e)
(3) of this Section.
(b) The corporation shall indemnify any person who was or is
a party, or is threatened to be made a party, to any threatened, pending or
completed proceeding (other than an action by or in the right of the
corporation to procure a judgment in its favor) by reason of the fact that such
person is or was an agent of the corporation, against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with such proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of such person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which the person reasonably
believed to be in the best interests of the corporation or that the person had
reasonable cause to believe that the person's conduct was unlawful.
(c) The corporation shall indemnify any person who was or is
a party, or is threatened to be made a party, to any threatened, pending or
completed action by or in the right of the
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corporation to procure a judgment in its favor by reason of the fact that such
person is or was an agent of the corporation, against expenses actually and
reasonably incurred by such person in connection with the defense or settlement
of such action if such person acted in good faith, in a manner such person
believed to be in the best interests of the corporation and its shareholders.
No indemnification shall be made under this paragraph (c):
(1) In respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation in
the performance of such person's duty to the corporation and its shareholders,
unless and only to the extent that the court in which such proceeding is or was
pending shall determine upon application that, in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for the
expenses and then only to the extent that the court shall determine;
(2) Of amounts paid in settling or otherwise
disposing of a pending action, without court approval; or
(3) Of expenses incurred in defending a pending
action which is settled or otherwise disposed of without court approval.
(d) to the extent that an agent of the corporation has been
successful on the merits in defense of any proceeding referred to in paragraph
(b) or (c) or in defense of any claim, issue or matter therein, the agent shall
be indemnified against
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expenses actually and reasonably incurred by the agent in connection therewith.
(e) Except as provided in paragraph (d), any indemnification
under this Section shall be made by the corporation only if authorized in the
specific case, upon a determination that indemnification of the agent is proper
in the circumstances because the agent has met the applicable standard of
conduct set forth in paragraph (b) or (c), by any of the following:
(1) A majority vote of a quorum consisting of
directors who are not parties to such proceeding;
(2) Approval or ratification by the affirmative
vote of a majority of the shares of the corporation entitled to vote represented
at a duly held meeting at which a quorum is present or by the written consent of
holders of a majority of the outstanding shares entitled to vote, and by the
affirmative vote or written consent of such greater proportion of the shares of
any class or series as may be provided in the Articles of Incorporation for such
action. For purposes of determining the required quorum of any meeting of
shareholders called to approve or ratify indemnification of an agent and the
vote or written consent required therefor, the shares owned by the person to be
indemnified shall not be considered outstanding and shall not be entitled to
vote thereon; or
(3) The court in which such proceeding is or was
pending, upon application made by the corporation or the agent or the attorney
or other person rendering services in connection with
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the defense, whether or not such application by the agent, attorney or other
person is opposed by the corporation.
(f) Expenses incurred in defending any proceeding may be advanced by
the corporation prior to the final disposition of such proceeding upon receipt
of an undertaking by or on behalf of the agent to repay such amount if it shall
be determined ultimately that the agent is not entitled to be indemnified as
authorized in this Section.
(g) This Section shall create a right of indemnification for each
person referred to in this Section, whether or not the proceeding to which the
indemnification relates arose in whole or in part prior to adoption of this
Section, and, in the event of the death of such agent, whether before or after
initiation of such proceeding, such right shall extend to such person's legal
representatives. This Section does not apply to any proceeding against any
trustee, investment manager or other fiduciary of an employee benefit plan in
such person's capacity as such, even though such person may also be an agent of
the corporation as defined in paragraph (a). The corporation shall have the
power to indemnify such a trustee, investment manager or other fiduciary to the
extent permitted by Section 207(f) of the General Corporation Law. In addition,
the indemnification provided by this Section shall not be deemed exclusive of
any other rights to which those seeking indemnification may be entitled under
any agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in an official capacity and as to
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action in another capacity while holding such office, to the extent such
additional rights to indemnification are authorized in the Articles of
Incorporation. The rights of indemnity under this Section shall continue as to
a person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such person.
Nothing contained in this Section shall affect any right to indemnification to
which persons other than such directors and officers may be entitled by
contract, insurance policy or otherwise.
(h) No indemnification or advance shall be made under this Section,
except as provided in paragraph (d) or subparagraph (e)(3), in any circumstance
where it appears:
(1) That it would be inconsistent with a provision of the
Articles of Incorporation, these bylaws, a resolution of the shareholders or an
agreement in effect at the time of the accrual of the alleged cause of action
asserted in the proceeding in which the expenses were incurred or other amounts
were paid, which prohibits or otherwise limits indemnification; or
(2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
Section 5.02 Purchase of Liability Insurance. Upon determination by
the Board of Directors, the corporation may purchase and maintain insurance on
behalf of any agent of the corporation against any liability asserted against
or incurred by the agent in such capacity or arising out of the agent's status
as such, whether or not the corporation would have the power to
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indemnify the agent against such liability under the provisions of this Section.
ARTICLE VI
Miscellaneous
Section 6.01 Record Date. The Board of Directors may fix a time in the
future as a record date for the determination of the shareholders entitled to
notice of and to vote at any meeting of shareholders or to give consent to
corporate action in writing without a meeting, to receive any report, to
receive payment of any dividend or distribution or allotment of rights, or to
exercise rights in respect to any other lawful action. The record date so fixed
in advance shall not be more than 60 days nor less than ten days prior to the
date of any meeting, nor more than 60 days prior to any other event for the
purposes of which it is fixed.
If no record date is fixed by the Board of Directors:
(a) The record date for determining shareholders entitled to notice
of or to vote at a meeting of shareholders shall be the business day next
preceding the day on which notice is given or, if notice is waived, the
business day next preceding the day on which the meeting is held;
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, when no prior action
by the Board has been taken, shall be the day on which the first written
consent is given; and
(c) The record date for determining shareholders for any other
purpose shall be the day on which the Board adopts
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the resolution relating thereto, or the 60th day prior to the date of such
action, whichever is later.
A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board fixes a new record date for the adjourned meeting, but the
Board shall fix a new record date if the meeting is adjourned for more than 45
days from the date set for the original meeting.
Subject to the provisions of Sections 702 to 704 of the General
Corporation Law relating to voting of shares held by a fiduciary, receiver,
pledgee or a minor, or in the name of a corporation or in joint ownership, only
shareholders of record at the close of business on the record date are entitled
to notice and to vote at any such meeting, to give consent without a meeting, to
receive any report, to receive the dividend, distribution or allotment of
rights, or to exercise the rights, as the case may be, as to which such record
date is fixed, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in the Articles
of Incorporation or by agreement or applicable law.
Section 6.02 Maintenance of Books and Records. The corporation shall
keep adequate and correct books and records of account and shall keep minutes of
the proceedings of its shareholders, Board of Directors and committees of the
Board and shall keep at its principal executive office, or at the office of its
transfer agent or registrar, a record of its shareholders,
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giving the names and addresses of all shareholders and the number and class of
shares held by each. Such minutes shall be kept in written form. Such other
books and records may be kept either in written form or in any other form
capable of being converted into written form.
The corporation shall keep at its principal executive office in
California, or if its principal executive office is not in California, then at
its principal office in California (or otherwise provide upon written request of
any shareholder) the original or a copy of these bylaws as amended to date,
certified by the Secretary.
Section 6.03. Inspection of Corporate Records. These bylaws, as
amended to date, the accounting books and records, the record of shareholders
and minutes of proceedings of the shareholders, the Board and committees of the
Board of the corporation and any subsidiary of the corporation shall be open to
inspection upon the written demand on the corporation of any shareholder or
holder of a voting trust certificate at any reasonable time during usual
business hours, for a purpose reasonably related to such holder's interests as a
shareholder or as the holder of such voting trust certificate. Such inspection
by a shareholder or holder of a voting trust certificate may be made in person
or by agent or attorney, and the right of inspection in this paragraph includes
the right to copy and make extracts at such holder's expense.
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A shareholder or shareholders holding at least five percent (5%) in the
aggregate of the outstanding voting shares of the corporation or who hold at
least one percent (1%) of such voting shares and have filed a Schedule 14B with
the United States Securities and Exchange Commission relating to the election of
directors of the corporation shall have (in person, or by agent or attorney) the
right to inspect and copy the record of shareholders' names and addresses and
shareholdings during usual business hours upon five business days' prior written
demand upon the corporation and/or to obtain from the transfer agent for the
corporation, upon written demand and upon the tender of its usual charges, a
list of the shareholders' names and addresses, who are entitled to vote for the
election of directors, and their shareholdings, as of the most recent record
date for which it has been compiled or as of a date specified by the shareholder
subsequent to the date of demand. The list shall be made available on or before
the later of five business days after the demand is received or the date
specified therein as the date as of which the list is to be compiled. The
corporation shall use reasonable efforts to cause its transfer agent to comply
with the requirements of this paragraph.
Every director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kind and to inspect
the physical properties of the corporation and its subsidiaries. Such inspection
by a director may be made in person or by agent or attorney and the right of
inspection includes the right to copy and make extracts.
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Section 6.04 Annual and Other Reports. (a) So long as the
corporation has less than 100 holders of record of its shares (determined as
provided in Section 605 of the General Corporation Law), no annual report to
shareholders shall be required, and the requirement to the contrary of Section
1501 of the General Corporation Law is hereby expressly waived. Whenever the
corporation has more than 100 shareholders of record (determined as provided in
Section 605 of the General Corporation Law), the Board of Directors of the
corporation shall cause an annual report to be sent to the shareholders not
later than 120 days after the close of the fiscal year, provided that such
report shall in any event be sent to shareholders at least 15 days (or, if sent
by third-class mail, 35 days) prior to the annual meeting of shareholders to be
held during the next fiscal year. Such report shall contain a balance sheet as
of the end of such fiscal year and an income statement and statement of changes
in financial position for such fiscal year and shall be accompanied by any
report thereon of independent accountants or, if there is no such report, the
certificate of any authorized officer of the corporation that such statements
were prepared without audit from the books and records of the corporation. Such
report shall also contain any additional matters required by Section 1501(b) of
the General Corporation Law and applicable provisions of the Securities and
Exchange Act of 1934 and other laws.
(b) If no annual report for the last fiscal year has been sent to
shareholders, the corporation shall, upon the written
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request of any shareholder made more than 120 days after the close of such
fiscal year, deliver or mail to the person making the request, within 30 days
thereafter, the annual report for such year, if such report is required by
paragraph (a) above.
(c) A shareholder or shareholders holding at least five percent
(5%) of the outstanding shares of any class of the corporation may make a
written request to the corporation for an income statement of the corporation
for the three-month, six-month or nine-month period of the current fiscal year
ended more than 30 days prior to the date of the request and a balance sheet of
the corporation as of the end of such period and, in addition, if no annual
report for the last fiscal year has been sent to shareholders, an annual report
for the last fiscal year. The corporation shall use its best efforts to deliver
or mail the statement to the person making the request within 30 days
thereafter. A copy of the statements shall be kept on file in the principal
executive office of the corporation for 12 months, and they shall be exhibited
at all reasonable times to any shareholder demanding an examination of them or a
copy shall be mailed to such shareholder. The quarterly income statements and
balance sheets referred to in this paragraph (c) shall be accompanied by the
report thereon, if any, of any independent accountants engaged by the
corporation or the certificate of an authorized officer of the corporation that
such financial statements were prepared without audit from the books and records
of the corporation.
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(d) All financial statements, balance sheets, income statements
and statements of changes in financial position of the corporation prepared
pursuant to this Section 6.04 shall be prepared, and shall fairly present the
matters which they purport to present, in conformity with generally accepted
accounting principles then applicable, except that if the corporation shall have
fewer than 100 holders of record of its shares (determined as provided in
Section 605) the financial statements required to be furnished by this Section
6.04 are not required to be prepared in conformity with generally accepted
accounting principles if they reasonably set forth the assets and liabilities
and the income and expense of the corporation and disclose the accounting basis
used in their preparation. If the corporation has subsidiaries, all such
financial statements shall be consolidated statements of the corporation and
such of its subsidiaries as are required to be included in such consolidated
statements under generally accepted accounting principles then applicable.
Financial statements other than annual statements may be condensed or otherwise
presented as permitted by authoritative accounting pronouncements.
Any report required or permitted by this Section shall be given in the
manner and shall be deemed to have been given by the corporation as provided in
the first three paragraphs of Section 2.05 of these bylaws.
Section 6.05 Certificates for Shares. Every holder of shares in
the corporation shall be entitled to have a certificate signed in the name of
the corporation by the Chairman or Vice
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Chairman of the Board or the President or a Vice President and by the Chief
Financial Officer or an Assistant Treasurer or the Secretary or any Assistant
Secretary, certifying the number of shares and the class or series of shares
owned by the shareholder. Any or all of the signatures on the certificate may
be facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the corporation with the same effect as if such
person were an officer, transfer agent or registrar at the date of issue.
If the shares of the corporation are at any time classified, or if any
class of shares has two or more series, any such certificate for shares of the
corporation shall contain, on its face or on the reverse thereof with a
reference thereto on its face, one of the statements required by Section 417 of
the General Corporation Law.
Any such certificate shall also contain such legend or other statement as
may be required by Sections 409(d) and 418 of the General Corporation Law, the
Corporate Securities Law of 1968, the federal securities laws, and any
agreement between the corporation and the issuee of such certificate.
The corporation may issue a new share certificate or a new certificate for
any other security in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed. The corporation may require the
owner of the
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lost, stolen or destroyed certificate or the owner's legal representative to
give the corporation a bond (or other adequate security) sufficient to
indemnify it against any claim that may be made against it (including any
expense or liability) on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such new certificate.
When the Articles of Incorporation are amended in any way affecting the
statements contained in the certificates for outstanding shares, or it becomes
desirable for any reason, in the discretion of the Board, to cancel any
outstanding certificate for shares and issue a new certificate therefor
conforming to the rights of the holder, the Board may order any holders of
outstanding certificates for shares to surrender and exchange them for new
certificates within a reasonable time to be fixed by the Board.
The order may provide that a holder of any certificates so ordered to be
surrendered is not entitled to vote or to receive dividends or exercise any of
the other rights of shareholders until the holder has complied with the order,
but such order operates to suspend such rights only after notice and until
compliance. The duty of surrender of any outstanding certificates may also be
enforced by civil action.
Section 6.06 Representation of Shares of This and Other Corporations.
All rights incident to any and all shares of another corporation or
corporations standing in the name of the corporation may be exercised by such
officer, agent or proxyholder as the Board
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of Directors may designate. In the absence of such designation, such rights may
be exercised by the Chairman of the Board or the President of the corporation,
or by any other person authorized to do so by the Chairman of the Board or the
President of the corporation.
Except as provided below, shares of the corporation owned by any
subsidiary of the corporation shall not be entitled to vote on any matter.
Shares of the corporation held by the corporation in a fiduciary capacity,
and shares of the corporation held in a fiduciary capacity by any subsidiary of
the corporation, shall not be entitled to vote on any matter, except to the
extent that the settlor or beneficial owner possesses and exercises a right to
vote or to give the corporation or such subsidiary binding instructions as to
how to vote such shares.
Solely for purposes of this Section 6.06, a corporation shall be
considered a "subsidiary" of the corporation if the corporation owns, directly
or indirectly through one or more subsidiaries, shares of the other corporation
possessing more than twenty-five percent (25%) of the power to vote for the
election of directors at the time determination of such voting power is made.
Section 6.07 Construction of These Bylaws. Unless the context of a
Section of these bylaws otherwise requires, the terms used in these bylaws
shall have the meanings provided in, and these bylaws shall be construed in
accordance with, Chapter 1 of the General Corporation Law.
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ARTICLE VII
Amendments
Section 7.01 Power of Shareholders. New bylaws may be adopted or these
bylaws may be amended or repealed by the affirmative vote or written consent of
a majority of the outstanding shares entitled to vote, except as otherwise
expressly provided by applicable law or by the Articles of Incorporation or
elsewhere in these bylaws.
Section 7.02 Power of Directors. Subject to the right of shareholders,
as provided in Section 7.01, to adopt, amend or repeal bylaws (other than a
bylaw or amendment thereof changing the authorized number of directors or
otherwise restricted by applicable law, the Articles of Incorporation or these
bylaws to amendment or repeal by the shareholders) may be adopted, amended or
repealed by the Board of Directors.
41
<PAGE> 46
CERTIFICATE OF SECRETARY
The undersigned does hereby certify:
1. That I am the duly elected and acting Secretary of Atwork
Corporation; and
2. That the foregoing bylaws, comprising 42 pages, including this page,
constitute the bylaws of the corporation as duly adopted by the Board of
Directors of the corporation, by unanimous written consent dated 14th April
1992.
IN WITNESS WHEREOF, I have executed this Certificate as Secretary of the
corporation this 14th day of April, 1992.
/s/ John P. Holton
------------------
John P. Holton
Secretary
42
<PAGE> 1
EXHIBIT 3.19
ARTICLES OF INCORPORATION
OF
CONSORT TECHNOLOGIES, INC.
I.
The name of the corporation is:
CONSORT TECHNOLOGIES, INC."
II.
That the corporation is organized pursuant to the provisions of the
Georgia Business Corporation Code.
III.
The corporation has perpetual duration.
IV.
The corporation is a corporation for profit and organized for the
following purposes:
To provide environmental consulting and software services and products for
utilities, government agencies, and private businesses, and to do any and all
acts and things necessary, convenient and incidental in the operation and
conduct of such business.
V.
The corporation has authority to issue not more than 200,000 shares of
common stock of no par value.
VI.
The corporation shall not commence business until it shall have received
not less than $500.00 in payment for the issuance of shares of stock.
<PAGE> 2
VII.
The initial registered office of the corporation is One Legion Dr.,
Lindale (Floyd), Georgia 30147. The initial registered agent of the corporation
is Barbara J. Gale; and her written consent to such appointment is attached to
these articles of incorporation.
VIII.
The initial Board of Directors shall consist of one (1) member who is
Hesham Derazi, P. O. Box 524, Indianapolis, Indiana 46206-0524.
IX.
The name and address of the incorporator is Hesham Derazi, P. O. Box 524,
Indianapolis, Indiana 46206-0524.
IN WITNESS WHEREOF, the undersigned executes these Articles of
Incorporation.
/s/ Barbara J. Gale
-------------------------
BARBARA J. GALE
Attorney for Incorporator
<PAGE> 3
CONSENT TO APPOINTMENT AS REGISTERED AGENT
TO: Max Cleland
Secretary of State
Ex-officio Corporation
Commissioner
State of Georgia
State Capitol
Atlanta, GA
I, BARBARA J. GALE, do hereby consent to serve as registered agent for the
corporation, CONSORT TECHNOLOGIES, INC.
/s/ Barbara J. Gale
-------------------
BARBARA J. GALE
One Legion Drive
Lindale, Georgia 30147
<PAGE> 4
CERTIFICATE DATE : 12/21/87
Secretary of State DOCKET NUMBER : 87355024
Business Services and Regulation EXAMINER : LINDA E. SULLIVAN
Suite 306, West Tower TELEPHONE : 404-656-1772
2 Martin Luther King Jr. Dr.
Atlanta, Georgia 30034
REQUESTED BY:
LEE HENLEY
POB 85
DALLAS GA 30132
CORPORATE NAME CERTIFICATE
THE RECORDS OF THE SECRETARY OF STATE HAVE BEEN REVIEWED AND THE FOLLOWING
NAME IS NOT IDENTICAL TO, AND APPEARS TO BE DISTINGUISHABLE FROM, THE NAME OF
ANY OTHER EXISTING CORPORATION OR PROFESSIONAL ASSOCIATION ON FILE PURSUANT TO
THE APPLICABLE PROVISIONS OF THE GEORGIA LAWS RELATING TO CORPORATIONS AND
PROFESSIONAL ASSOCIATIONS (TITLE 14 OF THE OFFICIAL CODE OF GEORGIA ANNOTATED).
- --------------------------------------------------------------------------------
"CONSORT TECHNOLOGIES, INC."
- --------------------------------------------------------------------------------
THIS CERTIFICATE SHALL BE VALID FOR A PERIOD OF TWO CALENDER MONTHS FOR
PROFIT AND NONPROFIT CORPORATIONS AND PROFESSIONAL ASSOCIATIONS (DP, FP, DN,
FN, & PA) AND SIX CALENDAR MONTHS FOR BANKS (BK) FROM THE DATE OF THIS
CERTIFICATE. PLEASE SUBMIT THE ORIGINAL CERTIFICATE (WHITE COPY) WITH THE
ARTICLES OF INCORPORATION.
THE SECRETARY OF STATE MAY EXTEND THE CERTIFICATE FOR ONE PERIOD IF THE
APPLICANT SUBMITS A $20.00 FEE AND A WRITTEN REQUEST EXPLAINING WHY THE
EXTENSION IS REQUESTED.
/s/ Max Cleland
---------------------------
MAX CLELAND
SECRETARY OF STATE
/s/ H. Wayne Howell
---------------------------
[SEAL] H. WAYNE HOWELL
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro-Atlanta
<PAGE> 5
ARTICLES OF CORRECTION
OF
ARTICLES OF INCORPORATION
OF
CONSORT TECHNOLOGIES, INC.
Consort Technologies, Inc., a corporation organized under the laws of the
State of Georgia, pursuant to O.C.G.A. Section 14-2-124 hereby executes the
following Articles of Correction.
[SEAL]
1. The name of the corporation is: Consort Technologies, Inc.
2. The Articles of Incorporation were recorded by the Secretary of State
on January 27, 1988 and said document requires correction.
3. The error, inaccuracy, omission, or defect in said document to be
corrected is as follows:
ARTICLE IV.
The corporation is a corporation for profit and organized
for the following purposes:
To provide environmental consulting and software services
and products for utilities, government agencies, and private
businesses, and to do any and all acts and things necessary,
convenient and incidental in the operation and conduct of such
business.
ARTICLE VIII.
The initial Board of Directors shall consist of one member
who is Hesham Derazi, P O Box 524, Indianapolis, Indiana 46206-0524.
ARTICLE IX.
The name and address of the incorporator is Hesham Derazi,
P O Box 524, Indianapolis, Indiana 46205-0524.
4. The foregoing errors, inaccuracies, omissions or defects in the
documents are correct to read as follows:
ARTICLE IV.
The corporation is a corporation for profit and is organized
for the following purposes:
To provide environmental consulting and software services
and products for utilities, government agencies, and private
20
<PAGE> 6
businesses, and to do any and all acts and things necessary, convenient and
incidental in the operation and conduct of such business. The corporation
is further empowered to conduct any business and do any act authorized
under the Georgia Business Corporation Code. The Corporation's business
shall not be restricted to environmental consulting and software services
and products for utilities, government agencies and private businesses.
ARTICLE VIII.
The initial Board of Directors shall consist of one member who is
Abdol Rassoul Barghi, 3850 Holcomb Bridge Road, Suite 450, Norcross,
Georgia 30092.
ARTICLE IX.
The name and address of the incorporator is Abdol Rassoul Barghi,
3850 Holcomb Bridge Road, Suite 450, Norcross, Georgia 30092.
5. No stock of said corporation has been issued nor have any officers or board
members been elected.
IN WITNESS WHEREOF, the undersigned corporation has caused these
Articles of Correction to be signed in its corporate name and on its behalf
by its attorney at law.
This 17th day of July, 1989.
Consort Technologies, Inc.
By: /s/ Donald A. Rolader
---------------------------
Donald A. Rolader, Attorney
21
<PAGE> 7
Secretary of State DOCKET NUMBER : 953190005
Business Information and Services CONTROL NUMBER : 8802207
Suite 315, West Tower EFFECTIVE DATE : 11/13/1995
2 Martin Luther King Jr. Dr. REFERENCE : 0045
Atlanta, Georgia 30334-1530 PRINT DATE : 11/15/1995
FORM NUMBER : 111
DEIRDRE L. BROADFOOT
ALTMAN, KRITZER & LEVICK, P.C.
6400 POWERS FERRY RD., STE. 224
ATLANTA, GA 30339
CERTIFICATE OF AMENDMENT
I, MAX CLELAND, Secretary of State and the Corporation Commissioner of the State
of Georgia, do hereby certify under the seal of my office that
CONSORT TECHNOLOGIES, INC.
A DOMESTIC PROFIT CORPORATION
has filed articles of amendment in the office of the Secretary of State and has
paid the required fees as provided by Title 14 of the Offical Code of Georgia
Annotated. Attached hereto is a true and correct copy of said articles of
amendment.
WITNESS my hand and official seal in the City of Atlanta and the State of
Georgia on the date set forth above.
/s/ Max Cleland
---------------------------
[SEAL] MAX CLELAND
SECRETARY OF STATE
CORPORATIONS CORPORATIONS HOT LINE
656-2817 404-656-2222
Outside Metro-Atlanta
<PAGE> 8
ARTICLES OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
CONSORT TECHNOLOGIES, INC.
I.
The name of the Corporation is Consort Technologies, Inc.
II.
The Articles of Incorporation of Consort Technologies, Inc. filed in the
office of the Secretary of State of the State of Georgia on January 27, 1988,
and corrected by Articles of Correction filed in the office of the Secretary of
State of the State of Georgia on April 19, 1991, are amended by adding ARTICLE
X to read as follows:
"ARTICLE X.
The shareholders of the Corporation shall not have any preemptive
rights to acquire the corporation's unissued or treasury shares, if any."
III.
The date of the adoption of this amendment by the Directors of the
Corporation was November 10, 1995.
<PAGE> 9
IV.
This amendment was adopted by (i) the unanimous written consent of the
Corporation's Board of Directors, and (ii) the unanimous written consent of all
the outstanding shares of the Corporation entitled to vote in accordance with
the provisions of Section 14-2-1003 of the Georgia Business Corporation Code.
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment
to the Articles of Incorporation to be executed, its corporate seal to be
affixed and the foregoing to be attested, all by its duly authorized officers
on this 10th day of November, 1995.
CONSORT TECHNOLOGIES, INC.
By: /s/ Mahmoud R. Ghavi
----------------------------------------
Mahmoud R. Ghavi, President
Attest: /s/ Kevin L. Bierschenk
------------------------------------
Kevin L. Bierschenk, Asst. Secretary
[CORPORATE SEAL]
2
<PAGE> 10
Secretary of State DOCKET NUMBER : 953260380
Business Information and Services CONTROL NUMBER : 8802207
Suite 315, West Tower EFFECTIVE DATE : 11/22/1995
2 Martin Luther King Jr. Dr. REFERENCE : 0069
Atlanta, Georgia 30334-1530 PRINT DATE : 11/22/1995
FORM NUMBER : 411
PARANET CORPORATION SERVICES, INC.
DOUGLAS W. JUNKER
3761 VENTURE DRIVE, STE 260
DULUTH, GEORGIA 30136
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
CONSORT TECHNOLOGIES, INC., a Georgia corporation
Non-Surviving Entity:
NUKSUB, INC., a Georgia corporation
/s/ Max Cleland
---------------------------
[SEAL] MAX CLELAND
SECRETARY OF STATE
CORPORATIONS 656-2817-CORPORATIONS HOT-LINE 404-656-2222 (Outside Metro-Atlanta)
<PAGE> 11
GEORGIA CERTIFICATE OF MERGER
OF
NUKSUB, INC.
WITH AND INTO
CONSORT TECHNOLOGIES, INC.
---------------
The undersigned corporation, organized and existing under and by
virtue of the Georgia Business Corporation Code (the "GBCC"), DOES HEREBY
CERTIFY:
1. NukSub, Inc. ("NukSub"), a Georgia corporation, is merging with and
into Consort Technologies, Inc. ("CTI"), a Georgia corporation (the "Merger"),
and CTI will be the surviving Georgia corporation following the Merger, using
the name "Consort Technologies, Inc".
2. The Articles of Incorporation of CTI will continue after the Merger
as the Articles of Incorporation of the surviving corporation until thereafter
duly amended in accordance with their terms and the GBCC.
3. The executed Plan of Merger pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is CTI c/o Medaphis Corporation, 2700 Cumberland Parkway, Suite
300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any shareholder of any corporation
that is a party to the Merger.
5. The Merger has been duly approved by the shareholders of CTI and by
the sole shareholder of NukSub.
6. The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by law.
<PAGE> 12
IN WITNESS WHEREOF, CTI has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 22nd day of November, 1995.
CONSORT TECHNOLOGIES, INC.
By: /s/ Michael R. Cote
----------------------------------
Name: Michael R. Cote
Title: Senior Vice President--
Finance and Administration,
Chief Financial Officer and
Assistant Secretary
- 2 -
<PAGE> 1
EXHIBIT 3.20
BYLAWS
of
CONSORT TECHNOLOGIES, INC.
ARTICLE ONE
CAPITAL STOCK
SECTION ONE: Share certificates, as approved by the Board of Directors, shall
be issued to shareholders specifying the name of the owner, number of shares,
and date of issue. Each certificate shall be signed by the President and
Secretary with the corporate seal affixed thereon. Each certificate shall be
numbered in the order in which it is issued.
SECTION TWO: Each shareholder shall be entitled to one vote per share of
common stock, unless otherwise stated in Article of Incorporation.
SECTION THREE: Transfer of shares of stock shall be in the transfer ledger of
the corporation. Such transfers shall be done in person or by power of
attorney. Transfers shall be completed on the surrender of the old certificate,
duly assigned.
ARTICLE TWO
SHAREHOLDER'S MEETINGS
SECTION ONE: The annual meeting of the shareholders shall be held on the 30th
day of January of each year at the office of the corporation. If the stated day
is a weekend day or a legal holiday, the meeting shall be held on the next
succeeding day not a weekend day or a holiday.
<PAGE> 2
SECTION TWO: The place of the annual meeting may be changed by the Board of
Directors within or without the State of incorporation for any given year upon 3
days' notice to the shareholders. Special meetings may be held within or without
the State of incorporation and at such time as the Board of Directors may fix.
SECTION THREE: Special meetings of the shareholders may be called at any time by
the President or any holder(s) of at least twenty-five percent of the
outstanding capital stock.
SECTION FOUR: Notice of any special meeting of the shareholders shall be given
to all shareholders to their last known address by registered mail. Notice of
any special meeting of the shareholders shall state the purpose of such
meeting. Notice of a special meeting may be waived in writing either before or
after such meeting.
SECTION FIVE: Unless otherwise provided by law or the Articles of Incorporation,
all meetings of the shareholders, action may be taken by a majority vote of the
number of shares entitled to vote as represented by the shareholders present at
such meeting. Directors shall be elected by a plurality vote. A quorum shall
constitute one share over fifty percent of the outstanding shares entitled to
vote as represented by the shareholders present at such meeting. No business may
be transacted without the presence of a quorum. At any time during any
shareholders meeting, if it is determined that a quorum is no longer present,
the meeting shall be then adjourned.
<PAGE> 3
SECTION SIX: Action may be taken by the shareholders without a formal meeting
by consent, if such consent is executed in writing by all of the shareholders
entitled to vote and if allowed under the laws of the State of incorporation.
ARTICLE THREE
DIRECTORS
SECTION ONE: The Board of Directors shall control the full and entire
management of the affairs and business of the corporation. The Board of
Directors shall adopt rules and regulations to manage the affairs and business
of the corporation by resolution at special or the annual meeting. A quorum
shall consist of a majority of the directors. Resolutions adopted and all
business transacted by the Board of Directors shall be done by a majority vote
of the directors present at such meetings.
SECTION TWO: The Board of Directors shall consist of 1 members to be elected
by the shareholders at an annual meeting. The term of office shall be one year.
Vacancies may be filled by the Board of Directors prior to the expiration of the
term. Such appointment shall continue until the next annual meeting of
shareholders.
SECTION THREE: The Board of Directors shall meet annually at the same place of
the shareholders meetings immediately following the annual meeting of the
shareholders. Special meetings of the Board of Directors may be called by the
President or any two (2) directors on ten (10) days' notice, or such other and
further notice as required by the laws of the State of incorporation.
<PAGE> 4
SECTION FOUR: Notice of special or regular meetings of the Board of Directors
other than the annual meeting of the Board of Directors shall be made by mail
to the last known address of each director. Such notice shall be mailed ten (10)
days prior to such meeting and shall include time and place and reasons for the
meeting. All other requirements of the laws of the State of incorporation for
notices shall be followed.
SECTION FIVE: All directors of the corporation who are present at a meeting of
the Board of Directors shall be deemed to have assented to action taken at such
meeting as to any corporate action taken, unless a director who did not vote in
favor on such action goes on record in the minutes as dissenting. In such a
case, the dissenting director will not be deemed to having assented to the
action taken.
SECTION SIX: Directors may be removed for cause by a majority vote at a
meeting of the shareholders or Directors. Directors may be removed without
cause by a majority vote at a meeting of the shareholders.
ARTICLE FOUR
OFFICERS
SECTION ONE: The officers of the corporation shall consist of a President,
Secretary and Treasurer. All officers shall be elected by the Board of Directors
and shall serve a term for compensation as fixed by the Board of Directors. The
Board of Directors may establish other offices as it may be deem fit.
<PAGE> 5
SECTION TWO: The chief executive officer shall be the President. The president
shall have management powers of the corporation. His duties shall include but
are not limited to administration of the corporation presiding over shareholders
meeting including general supervision of the policies of the corporation as well
as general management. The President shall execute contracts, mortgages, loans
and bonds under the seal of the corporation. The President shall have other
powers as determined by the Board of Directors by resolution.
SECTION THREE: The Secretary shall keep the minutes of meetings of the Board of
Directors and shareholder meetings. The Secretary shall have charge of the
minute books, seal and stock books of the corporation. The Secretary shall have
other powers as delegated by the President.
SECTION FOUR: The Treasurer shall have the power to manage the financial
affairs of the corporation. The Treasurer shall keep books and records of the
financial affairs and make such available to the President and Board of
Directors upon request. The Treasurer may make recommendations to the officers
and directors in regard to the financial affairs of the corporation.
SECTION FIVE: The Vice President, if one is appointed by the Board of
Directors, shall have such powers as delegated to him by the President. Upon
the inability to perform by the President, the Vice President shall serve as
President until such time as the President shall be able to perform or further
action by the Board of Directors. The President shall be deemed unable to
perform his duties upon written notification by the President of such inability
or resignation to the Board of Directors that the President is unable to
perform.
<PAGE> 6
SECTION SIX: Vacancies shall be filled by the Board of Directors. Until such
time as vacancies are filled the following rules of succession shall apply
without regard to Section Five of this Article. The Vice President shall act as
President, the Treasurer shall act as Secretary, and the Secretary shall act as
Treasurer.
SECTION SEVEN: Assistants to officers may be appointed by the President. These
duties shall be those delegated to them by the President or the Board of
Directors.
SECTION EIGHT: Compensation of the officers shall be determined by the Board of
Directors.
ARTICLE FIVE
CONTRACTS AND INSTRUMENTS OF INDEBTEDNESS
SECTION ONE: No contracts or any instrument of indebtedness shall be executed
without approval by the Board of Directors by resolution. Upon such resolution,
the President, or such other officer authorized in such resolution, shall be
authorized to execute contracts or instruments of indebtedness as specified in
the resolution.
SECTION TWO: All checks, drafts or other instruments of indebtedness shall be
executed in the manner as determined by the Board of Directors by resolution.
<PAGE> 7
ARTICLE SIX
CORPORATE SEAL
The seal of the corporation shall be provided by the Board of Directors by
resolution. The seal shall be used by the President or other officers of the
corporation as provided for in these By-Laws.
ARTICLE SEVEN
AMENDMENT
These By-Laws may be amended from time to time by a majority vote of the
Board of Directors or by a majority vote of the shareholders. These By-Laws may
be repealed and new By-Laws established in the same manner as amendments. These
By-Laws will continue in full force and effect until amended or repealed and
replaced by new By-Laws.
ARTICLE EIGHT
DIVIDENDS
The Board of Directors may from time to time declare dividends to the
shareholders. These distributions may be in cash or property. No such dividends
may be made out of the capital of the corporation.
<PAGE> 1
EXHIBIT 3.21
CERTIFICATE OF INCORPORATION
OF
HEALTH DATA SCIENCES CORPORATION
1. The name of the corporation is:
HEALTH DATA SCIENCES CORPORATION
2. The address of its registered office in the State of Delaware is 100
West Tenth Street in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is One Million (1,000,000) and the par value of each of such
shares is One Dollar ($1.00) amounting in the aggregate to One Million Dollars
($1,000,000).
5. The board of directors is authorized to make, alter or repeal the
by-laws of the corporation. Election of directors need not be by ballot.
6. The name and mailing address of the incorporator is:
L. M. Custis
199 West Tenth Street
Wilmington, Delaware 19801
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of
Delaware, do make this certificate, hereby declaring and certifying that this
is my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 25th day of April, 1983.
/s/ L. M. Custis
--------------------------
L. M. Custis
<PAGE> 2
HEALTH DATA SCIENCES CORPORATION
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
It is hereby certified that:
1. The name of this corporation is HEALTH DATA SCIENCES CORPORATION.
2. The undersigned constitute a majority of the Board of Directors of the
corporation.
3. The Certificate of Incorporation of the corporation is hereby amended
by striking out ARTICLE 4 thereof and by substituting in lieu of said Article
the following new Article:
"4. This corporation is authorized to issue two classes of shares
designed respectively "Common Stock" and "Preferred Stock." The total
number of shares of Common Stock which the corporation shall have authority
to issue is Ten Million (10,000,000) and the par value of each such share
is Ten Cents ($0.10), amounting in the aggregate to One Million Dollars
($1,000,000.00). The total number of shares of Preferred Stock which the
corporation shall have the authority to issue is Five Million (5,000,000)
and the par value of each such share is Ten Cents ($0.10), amounting in the
aggregate to Five Hundred Thousand Dollars ($500,000.00).
The shares of Preferred Stock may be issued from time to time in one
or more series. The Board of Directors is authorized to: fix the number of
shares of any series of Preferred Stock; determine the designation of any
such series; determine or alter the rights, preferences, privileges and
restrictions granted to or imposed upon any wholly unissued series of
Preferred Stock; and, within the limits and restrictions stated in any
resolution or resolutions of the Board of Directors originally fixing the
number of shares constituting any series, increase or decrease (but not
below the number of shares of such series then outstanding) the number of
shares of any such series subsequent to the issue of shares of that
series."
<PAGE> 3
4. The amendment of the Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Section 241 of the
General Corporation Law of the State of Delaware.
5. The corporation has not yet received any payment for any of its stock.
IN WITNESS WHEREOF, the undersigned directors of the corporation have
executed this Certificate of Amendment as of the 1st day of May, 1983.
/s/ Ralph A. Korpman
--------------------------------
RALPH A. KORPMAN
/s/ Peter T. Tong
--------------------------------
PETER T. TONG
/s/ Jere E. Chrispens
--------------------------------
JERE E. CHRISPENS
/s/ Charles S. Grobe
--------------------------------
CHARLES S. GROBE
-2-
<PAGE> 4
CERTIFICATE OF DESIGNATIONS
OF PREFERENCES AND RIGHTS OF SERIAL
PREFERRED SHARES OF
HEALTH DATA SCIENCES CORPORATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by the
Certificate of Incorporation (as amended) of said corporation, and pursuant to
the provisions of Section 151 of Title 8 of the Delaware Code of 1953, said
Board of Directors, by unanimous written consent on August 25, 1983, adopted a
resolution providing for the designations, preferences and relative,
participating, optional or other rights, and the qualifications, limitations
or restrictions thereof, of the Preferred Shares-Series A stock, which
resolution is as follows:
WHEREAS, the Certificate of Incorporation of this corporation provide for
a class of shares known as Preferred Stock, issuable from time to time in one
or more series; and
WHEREAS, the Board of Directors of this corporation is authorized, within
the limitations and restrictions stated in the Certificate of Incorporation, to
determine or alter the rights, preferences, privileges, and restrictions
granted to or imposed upon any wholly unissued series of the Preferred Stock,
to fix the number of shares constituting any such series, and to determine the
designation thereof; and
WHEREAS, this corporation has not issued any shares of such Preferred
Stock and the Board of Directors of this corporation desires, pursuant to its
authority as aforesaid, to fix the terms of the initial series of said
Preferred Stock and the number of shares constituting and the designation of
such series;
<PAGE> 5
RESOLVED, that the Board of Directors hereby fixes and determines the
designation of, the number of shares constituting, and the rights, preferences,
privileges, and restrictions relating to, said initial series of Preferred Stock
as follows:
(A) The initial series of Preferred Stock shall be designated "Serial
Preferred Shares, Series A", and the number of shares constituting such Series
A shall be Nine Thousand Four Hundred Eleven (9,411).
(B) The rights, preferences, privileges and restrictions of, and other
matters relating to, the Series A Preferred Stock are as follows:
1. Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
corporation, the holders of each share of Series A Preferred Stock (and the
holders of each share of any other series of Preferred Stock having the same
rights on voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the corporation) shall be entitled to receive, prior and in
preference to any distribution of any of the assets or surplus funds of the
corporation to the holders of the Common Stock of the corporation by reason of
their ownership thereof, an amount equal to One Hundred Dollars ($100) per
share.
All the preferential amounts to be paid to the holders of the Series A
Preferred Stock (and to the holders of any other such series of Preferred
Stock) under this section 1 shall be paid or set apart for payment before the
payment or setting apart for payment of any amount for, or the distribution of
any assets of the corporation to, the holders of the Common Stock in connection
with such liquidation, dissolution or winding up. After the payment or the
setting apart of payment to the holders of the Series A Preferred Stock of the
preferential amounts so payable to them, the holders of Common Stock shall be
entitled to receive all remaining assets of the corporation.
If the assets or surplus funds to be distributed to the holders of the
Series A Preferred Stock are insufficient to permit the payment to such holders
of their full preferential amount, the assets and surplus funds legally
available for distribution shall be distributed ratably among the holders of
the Series A Preferred Stock (and the holders of any other such series of
Preferred Stock) in proportion to the full preferential amount each such holder
is otherwise entitled to receive.
2. Conversion. The holders of the Series A Preferred Stock shall
have conversion rights as follows (the "Conversion Rights"):
- 2 -
<PAGE> 6
(a) Right to Convert. Each share of Series A Preferred Stock
shall be convertible, without the payment of any additional consideration by
the holder thereof and at the option of the holder thereof, at any time after
the date of issuance of such share, at the office of the corporation or any
transfer agent for the Series A Preferred Stock, into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing One
Hundred Dollars ($100) by the Conversion Price, determined as hereinafter
provided, in effect at the time of conversion. The Conversion Price at which
shares of Common Stock shall be deliverable upon conversion without the payment
of any additional consideration by the holder thereof (the "Conversion Price")
shall initially be Seventy Cents ($.70) per share of Common Stock. Such initial
Conversion Price shall be subject to adjustment, in order to adjust the number
of shares of Common Stock into which the Series A Preferred Stock is
convertible, as hereinafter provided.
(b) Automatic Conversion. Each share of Series A Preferred
Stock shall automatically be converted into shares of Common Stock at the then
effective Conversion Price upon the earlier to occur of (i) the date on which
the corporation is subject to the reporting requirements of Section 13(a) of
the Securities Exchange Act of 1934, as amended, or (ii) the date on which
quotations for the Common Stock are reported by the automated quotations system
operated by the National Association of Securities Dealers, Inc., or, by an
equivalent quotations system, or (iii) shares of Common Stock have been sold at
the aggregate price of $5,000,000 or more pursuant to a public offering.
(c) Mechanics of Conversion. No fractional shares of Common
Stock shall be issued upon conversion of the Series A Preferred Stock. In lieu
of any fractional shares to which the holder would otherwise be entitled, the
corporation shall pay cash equal to such fraction multiplied by the then
effective Conversion Price. Before any holder of Series A Preferred Stock shall
be entitled to convert the same into full shares of Common Stock, and before
the corporation shall be obligated to issue certificates for shares of Common
Stock upon the automatic conversion of the Series A Preferred Stock as set
forth in section 2(b) hereof, the Series A Preferred Stock holder shall
surrender the certificate or certificates therefor, duly endorsed, at the
office of the corporation or of any transfer agent for the Series A Preferred
Stock and shall give written notice to the corporation at such office that he
elects to convert the same and shall state therein his name or the name or
names of his nominees in which he wishes the certificate or certificates for
shares of Common Stock to be issued (except that no such written notice of
intent to convert shall be necessary in the event of an automatic conversion
pursuant to section
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<PAGE> 7
2(b) hereof). The corporation shall, as soon as practicable thereafter, issue
and deliver at such office to such holder of Series A Preferred Stock, or to
his nominee or nominees, a certificate or certificates for the number of Shares
of Common Stock to which he shall be entitled as aforesaid, together with cash
in lieu of any fraction of a share. Such conversion shall be deemed to have
been made immediately prior to the close of business on the date of such
surrender of the shares of Series A Preferred Stock to be converted (except
that in the case of an automatic conversion pursuant to section 2(b) hereof,
such conversion shall be deemed to have been made immediately prior to the
closing of the offering referred to in section 2(b)), and the person or persons
entitled to receive the shares of Common Stock issuable upon conversion shall
be treated for all purposes as the record holder or holders of such shares of
Common Stock on such date.
(d) Adjustments to Conversion Price for Diluting Issues:
(i) Adjustment for Dividends, Distributions, Subdivisions,
Combinations or Consolidation of Common Stock.
(1) Stock Dividends, Distributions or Subdivisions.
In the event the corporation shall issue additional shares of Common Stock
pursuant to a stock dividend, stock distribution or subdivision, the Conversion
Price in effect immediately prior to such stock dividend, stock distribution or
subdivision shall, concurrently with the effectiveness of such stock dividend,
stock distribution or subdivision, be proportionately decreased.
(2) Combinations or Consolidations. In the event
the outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock,
the Conversion Price in effect immediately prior to such combination or
consolidation shall, concurrently with the effectiveness of such combination or
consolidation, be proportionately increased.
(ii) Adjustment for Merger or Reorganization, etc. In
case of any consolidation or merger of the corporation with or into another
corporation or the conveyance of all or substantially all the assets of the
corporation to another corporation, each share of Series A Preferred Stock
shall thereafter be convertible into the number of shares of stock or other
securities or property to which a holder of the number of shares of Common
Stock of the corporation deliverable upon conversion of such Series A Preferred
Stock would have been entitled upon such consolidation, merger or conveyance;
and, in any such case, appropriate adjustment (as determined by the Board of
Directors) shall be made in
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<PAGE> 8
the application of the provisions herein set forth with respect to the rights
and interest thereafter of the holders of the Series A Preferred Stock, to the
end that the provisions set forth herein (including provisions with respect to
changes in and other adjustments of the Conversion Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares of stock
or other property thereafter deliverable upon the conversion of the Series A
Preferred Stock.
(e) No Impairment. The corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the corporation but will at
all times in good faith assist in the carrying out of all the provisions of this
section 2 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Series A Preferred Stock against impairment.
(f) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this section 2,
the corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series A Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The corporation shall, upon the written request at any
time of any holder of Series A Preferred Stock, furnish or cause to be furnished
to such holder a like certificate setting forth (i) such adjustments and
readjustments, (ii) the Conversion Price at the time in effect, and (iii) the
number of shares of Common Stock and the amount, if any, of other property which
at the time would be received upon the conversion of Series A Preferred Stock.
(g) Notices of Record Date. In the event of any taking by the
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend which is the same as cash dividends paid
in previous quarters) or other distribution, the corporation shall mail to each
holder of Series A Preferred Stock at least ten (10) days prior to the date
specified therein, a notice specifying the date on which any such record is to
be taken for the purpose of such dividend or distribution.
(h) Common Stock Reserved. The corporation shall reserve and
keep available out of its authorized but
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<PAGE> 9
unissued Common Stock such number of shares of Common Stock as shall from time
to time be sufficient to effect conversion of the Series A Preferred Stock.
3. Redemption.
(a) Voluntary Redemption of Series A Preferred Stock.
(i) Time of Redemption. At, or at any time after, the
date that is four (4) years subsequent to the date on which the first share of
Series A Preferred Stock was originally issued ("Original Issue Date"), the
corporation may, at the option of the Board of Directors, redeem the Series A
Preferred Stock in whole or in part pro-rata.
(ii) The redemption price for each share of Series A
Preferred Stock shall be an amount in cash equal to the sum of One Hundred
Dollars ($100.00) plus the amount of all accrued and unpaid dividends thereon,
declared by the Board of Directors, to and including the date fixed for
redemption (such total amount being referred to as the "Voluntary Redemption
Price").
(iii) At least sixty (60) days and not more than ninety
(90) days prior to the date fixed for any such redemption (the "Voluntary
Redemption Date") of the Series A Preferred Stock, written notice (the
"Voluntary Redemption Notice") shall be mailed, postage prepaid, to each holder
of record of the Series A Preferred Stock at such holder's post office address
last shown on the records of the corporation and shall contain the following
information:
(A) The Voluntary Redemption Price and the Voluntary
Redemption Date;
(B) The date upon which the holder's Conversion
Rights, as defined in Section (B)2 hereof, as to such shares terminate, which
shall not, however, be earlier than forty-five (45) days after the date of the
Voluntary Redemption Notice; and
(C) That the holder is to surrender to the
corporation, in the manner and at the place designated, his certificate or
certificates representing the shares of Series A Preferred Stock to be redeemed.
(D) Surrender of Certificates. On or before the
Voluntary Redemption Date, each holder of Series A Preferred Stock to be
redeemed, unless such holder has thereafter exercised his right to convert the
shares as provided in paragraph (B)2 hereof, shall surrender the
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<PAGE> 10
certificate on certificates representing such shares to the Corporation, in the
manner and at the place designated in the Voluntary Redemption Notice, and
thereupon the Voluntary Redemption Price for such shares shall be payable to
the order of the person whose name appears on such certificate or certificates
as the owner thereof, and each surrendered certificate shall be cancelled and
retired.
(E) Cessation of Rights. If the Voluntary
Redemption Notice shall have been duly given, and if on the Voluntary
Redemption Date the Voluntary Redemption Price is either paid or made available
for payment; then notwithstanding that the certificates evidencing any of the
shares of Series A Preferred Stock so called for redemption shall not have been
surrendered, all rights with respect to such shares shall forthwith after the
Voluntary Redemption Date terminate, except only the right of the holders to
receive the voluntary Redemption Price without interest upon surrender of their
certificate or certificates therefor.
(F) Payment of Redemption Price. On or not more than
ten (10) days prior to the Voluntary Redemption Date, the Corporation shall
deposit with any bank or trust company in Los Angeles, California, having a
capital and surplus of at least $100,000,000 as a trust fund, a sum equal to
the aggregate Voluntary Redemption Price of all shares of Series A Preferred
Stock called for redemption and not yet redeemed, with irrevocable instructions
and authority to the bank or trust company to pay, on or before the Voluntary
Redemption Date, the Voluntary Redemption Price to the active holders upon the
surrender of their share certificates. From and after the date of such deposit,
the shares so called for redemption shall be redeemed. The deposit shall
constitute full payment of the shares to their holders, and from and after the
date of the deposit the shares shall be deemed to be no longer outstanding, and
the holders thereof shall cease to be shareholders with respect to such shares
and shall have no rights with respect thereto except the rights to receive from
the bank or trust company payment of the Voluntary Redemption Price of the
shares, without interest, upon surrender of their certificates therefor, and
the right to convert such shares as provided in paragraph (B)2 hereof. Any
funds so deposited and unclaimed at the end of one year from the Voluntary
Redemption Date shall be released or repaid to the Company, after which the
holders of shares called for redemption shall be entitled to receive payment of
the Voluntary Redemption Price only from the corporation.
(b) Consent to Redemption by Series A Preferred Stockholders.
Each holder of Series A Preferred Stock shall be deemed to have consented, for
purposes of Sections 502, 503 and 506 of the California General Corporations
Law, to distributions made by the corporation in
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<PAGE> 11
connection with the repurchase of shares of Common Stock issued to or held by
employees or consultants upon termination of their employment or services
pursuant to agreements providing for the right of said repurchase between the
corporation and such persons.
4. Voting Rights. Except as otherwise required by law, the
holders of Series A Preferred Stock and the holders of the Common Stock shall be
entitled to notice of any shareholders' meeting and to vote upon any matter
submitted to a shareholder for a vote, on the following basis:
(a) Holders of Common Stock shall have one vote per share;
(b) Holders of Series A Preferred Stock shall have that number
of votes per share as is equal to the number of shares of Common Stock into
which each such share of Series A Preferred Stock held by such holder is
convertible except that the holders of the Series A Preferred Stock shall when
electing members of the Company's Board of Directors have the right as a class
to elect two (2) of such Directors;
(c) Except as otherwise provided in the preceding subsection
(b), neither the holders of the Common Stock nor the holders of the Series A
Preferred Stock shall be entitled to vote separately on any matters as a class.
5. Dividend Rights. The holders of outstanding Series A
Preferred Stock shall be entitled to receive in any fiscal year, when and if
declared by the Board of Directors, out of any assets at the time legally
available therefor, dividends in cash at the rate of $7.00 per share of Series
A Preferred Stock per annum, before any dividend is paid on Common Shares;
provided, however, that in no event shall the Board of Directors declare and
set apart or pay a dividend on the outstanding Series A Preferred Stock in
excess of an amount equal to twenty-five percent (25%) of the corporation's
pre-tax income for such quarter, calculated in accordance with generally
accepted accounting principles, consistently applied. Such dividends may be
payable quarterly or otherwise as the Board of Directors may from time to time
determine. The right to such dividends on Series A Preferred Stock shall not be
cumulative and no right shall accrue to holders of Series A Preferred Stock by
reason of the fact that dividends on said shares are not declared in any prior
year, nor shall any undeclared or unpaid dividend bear or accrue interest.
6. Covenants. So long as any shares of Series A Preferred Stock
shall be outstanding (as adjusted for all subdivisions and combinations), the
corporation shall not,
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<PAGE> 12
without first obtaining the affirmative vote or written consent of not less than
a majority of such outstanding shares of Series A Preferred Stock:
(a) amend or repeal any provision of, or add any provision to,
the corporation's Certificate of Incorporation or By-laws if such action would
alter or change the preferences, rights or privileges of, or the restrictions
provided for the benefit of, the Series A Preferred Stock;
(b) reclassify any Common Stock into shares having any
preference or priority as to dividends or assets superior to any such preference
or priority of the Series A Preferred Stock; or
(c) pay or declare any dividend other than a stock dividend or
distribution on any shares of Common Stock or apply any of its assets to the
redemption, retirement, purchase or other acquisition directly or indirectly,
through subsidiaries or otherwise, of any shares of Common Stock except from
employees of the corporation upon termination of employment or pursuant to the
exercise of a contractual right of first refusal.
7. Residual Rights. All rights accruing in the outstanding shares
of the corporation not expressly provided for to the contrary herein shall be
vested in the Common Stock.
IN WITNESS WHEREOF, said Health Data Sciences Corporation has caused this
Certificate to be signed by Ralph A. Korpman, its President, and attested by
Charles S. Grobe, its Secretary, this 25 day of August 1983.
HEALTH DATA SCIENCES CORPORATION
By: /s/ Ralph A. Korpman
---------------------------
RALPH A. KORPMAN
President
ATTEST:
By: /s/ Charles S. Grobe
--------------------------
CHARLES S. GROBE
Secretary
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<PAGE> 13
STATE OF CALIFORNIA )
) SS.
COUNTY OF LOS ANGELES )
RALPH A. KORPMAN and CHARLES S. GROBE, each being first duly sworn, deposes
and says that:
They are the President and Secretary respectively of the Delaware
corporation herein mentioned; the matters set forth herein are true of their
own knowledge; and the signatures purporting to be the signatures of said Ralph
A. Korpman and Charles S. Grobe thereto are their genuine signatures.
/s/ Ralph A. Korpman
--------------------------------------
RALPH A. KORPMAN
Subscribed and Sworn to before me on August 25, 1983.
/s/ Suzanne R. Talx
--------------------------------------
NOTARY PUBLIC
State of California
/s/ Charles S. Grobe
--------------------------------------
CHARLES S. GROBE
/s/ Karie A. Emery
- ----------------------------------- [SEAL]
KARIE A. EMERY
[SEAL]
[SEAL]
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<PAGE> 14
CERTIFICATE OF DESIGNATIONS
OF PREFERENCES AND RIGHTS OF SERIAL
PREFERRED SHARES OF
HEALTH DATA SCIENCES CORPORATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by the
Certificate of Incorporation (as amended) of said corporation, and pursuant to
the provisions of Section 151 of Title 8 of the Delaware Code of 1953, said
Board of Directors, by unanimous written consent as of April 5, 1984, adopted a
resolution providing for the designations, preferences and relative,
participating, optional or other rights, and the qualifications, limitations or
restrictions thereof, of the Preferred Shares-Series B stock, which resolution
is as follows:
WHEREAS, the Certificate of Incorporation of this corporation provides for
a class of shares known as Preferred Stock, issuable from time to time in one
or more series; and
WHEREAS, the Board of Directors of this corporation is authorized, within
the limitations and restrictions stated in the Certificate of Incorporation, to
determine or alter the rights, preferences, privileges, and restrictions
granted to or imposed upon any wholly unissued series of the Preferred Stock,
to fix the number of shares constituting any such series, and to determine the
designation thereof; and
WHEREAS, this corporation has issued only shares of Series A Preferred
Stock and the Board of Directors of this corporation desires, pursuant to its
authority as aforesaid, to fix the terms of a second series of said Preferred
Stock and the number of shares constituting and the designation of such series;
<PAGE> 15
RESOLVED, that the Board of Directors hereby fixes and determines the
designation of, the number of shares constituting, and the rights, preferences,
privileges, and restrictions relating to, said second series of Preferred Stock
as follows:
(A) The second series of Preferred Stock shall be designated "Serial
Preferred Shares, Series B", and the number of shares constituting such Series
B shall be Seven Hundred Forty-Two Thousand (742,000).
(B) The rights, preferences, privileges and restrictions of, and other
matters relating to, the Series B Preferred Stock are as follows:
1. Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
corporation, the holders of each share of Series B Preferred Stock (and the
holders of each share of any other series of Preferred Stock having the same
rights on voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the corporation) shall be entitled to receive, prior and in
preference to any distribution of any of the assets or surplus funds of the
corporation to the holders of the Common Stock of the corporation by reason of
their ownership thereof, an amount equal to Five Dollars and Sixty-Three Cents
($5.63) per share.
All the preferential amounts to be paid to the holders of the Series B
Preferred Stock (and to the holders of any other such series of Preferred
Stock) under this section 1 shall be paid or set apart for payment before the
payment or setting apart for payment of any amount for, or the distribution of
any assets of the corporation to, the holders of the Common Stock in connection
with such liquidation, dissolution or winding up. After the payment or the
setting apart of payment to the holders of the Series B Preferred Stock and to
the holders of any other such series of Preferred Stock of the preferential
amounts so payable to them, the holders of Common Stock shall be entitled to
receive all remaining assets of the corporation.
If the assets or surplus funds to be distributed to the holders of the
Series B Preferred Stock are insufficient to permit the payment to such holders
and to the holders of any other such series of Preferred Stock of their full
preferential amount, the assets and surplus funds legally available for
distribution shall be distributed ratably among the holders of the Series B
Preferred Stock (and the holders of any other such series of Preferred Stock)
in proportion to the full preferential amount each such holder is otherwise
entitled to receive.
<PAGE> 16
2. Conversion. The holders of the Series B Preferred Stock shall
have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series B Preferred Stock
shall be convertible, without the payment of any additional consideration by
the holder thereof and at the option of the holder thereof, at any time after
the date of issuance of such share, at the office of the corporation or any
transfer agent for the Series B Preferred Stock, into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing Five
Dollars and Sixty-Three Cents ($5.63) by the Conversion Price, determined as
hereinafter provided, in effect at the time of conversion. The Conversion Price
at which shares of Common Stock shall be deliverable upon conversion without
the payment of any additional consideration by the holder thereof (the
"Conversion Price") shall initially be Five Dollars and Sixty-Three Cents
($5.63) per share of Common Stock. Such initial Conversion Price shall be
subject to adjustment, in order to adjust the number of shares of Common Stock
into which the Series B Preferred Stock is convertible, as hereinafter
provided.
(b) Automatic Conversion. Each share of Series B Preferred
Stock shall automatically be converted into shares of Common Stock at the then
effective Conversion Price upon the earlier to occur of (i) the date on which
the corporation is subject to the reporting requirements of Section 13(a) of
the Securities Exchange Act of 1934, as amended, or (ii) the date on which
quotations for the Common Stock are reported by the automated quotations system
operated by the National Association of Securities Dealers, Inc., or by an
equivalent quotations system, or (iii) shares of Common Stock have been sold at
an aggregate price of $7,000,000 or more pursuant to a public offering.
(c) Mechanics of Conversion. No fractional shares of Common
Stock shall be issued upon conversion of the Series B Preferred Stock. In lieu
of any fractional shares to which the holder would otherwise be entitled, the
corporation shall pay cash equal to such fraction multiplied by the then
effective Conversion Price. Before any holder of Series B Preferred Stock shall
be entitled to convert the same into full shares of Common Stock, and before
the corporation shall be obligated to issue certificates for shares of common
stock upon the automatic conversion of the Series B Preferred Stock as set
forth in section 2(b) hereof, the Series B Preferred Stock holder shall
surrender the certificate or certificates therefor, duly endorsed, at the
office of the corporation or of any transfer agent for the Series B Preferred
Stock and shall give written notice to the corpo-
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<PAGE> 17
ration at such office that he elects to convert the same and shall state
therein his name or the name or names of his nominees in which he wishes the
certificate or certificates for shares of Common Stock to be issued (except
that no such written notice of intent to convert shall be necessary in the
event of an automatic conversion pursuant to section 2(b) hereof). The
corporation shall, as soon as practicable thereafter, issue and deliver at such
office to such holder of Series B Preferred Stock, or to his nominee or
nominees, a certificate or certificates for the number of Shares of Common
Stock to which he shall be entitled as aforesaid, together with cash in lieu of
any fraction of a share. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
shares of Series B Preferred Stock to be converted (except that in the case of
an automatic conversion pursuant to section 2(b) hereof, such conversion shall
be deemed to have been made immediately prior to the closing of the offering
referred to in section 2(b)), and the person or persons entitled to receive the
shares of Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock on such
date.
(d) Adjustments to Conversion Price for Diluting Issues:
(i) Special Definitions. For purposes of this
paragraph 2(d), the following definitions shall apply:
(1) "Option" shall mean rights, options or warrants
to subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
(2) "Original Issue Date" shall mean the date on
which a share of Series B Preferred Stock was first issued.
(3) "Convertible Securities" shall mean any evidences
of indebtedness, shares (other than Common Stock and Series B Preferred Stock)
or other securities directly or indirectly convertible into or exchangeable for
Common Stock.
(4) "Additional Shares of Common Stock" shall mean
all shares of Common Stock issued (or, pursuant to subparagraph 2(d)(ii),
deemed to be issued) by the corporation after the Original Issue Date, other
than shares of Common Stock issued or issuable:
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<PAGE> 18
(A) upon conversion of shares of Series B
Preferred Stock and Series A Preferred Stock;
(B) to officers or employees of, or consultants
to, the corporation pursuant to a stock purchase or option plan or other
employee stock incentive program (collectively, the "Plans") approved by the
Board of Directors not to exceed four hundred thousand (400,000) shares, none of
which are outstanding on the date hereof; or
(C) by way of dividend or other distribution on
shares of Common Stock excluded from the definition of Additional Shares of
Common Stock by the foregoing clauses (A) and (B) or this clause (C).
(ii) Issue of Securities Deemed Issue of Additional Shares
of Common Stock.
(l) Options and Convertible Securities. In the
event the corporation at any time or from time to time after the Original Issue
Date shall issue any Options or Convertible Securities or shall fix a record
date for the determination of holders of any class of securities entitled to
receive any such Options or Convertible Securities, then the maximum number of
shares (as set forth in the instrument relating thereto without regard to any
provisions contained therein for a subsequent adjustment of such number) of
Common Stock issuable upon the exercise of such Options or, in the case of
Convertible Securities and Options therefor, the conversion or exchange of such
Convertible Securities, shall be deemed to be Additional Shares of Common Stock
issued as of the time of such issue or, in case such a record date shall have
been fixed, as of the close of business on such record date; provided, that
Additional Shares of Common Stock shall not be deemed to have been issued unless
the consideration per share (determined pursuant to subparagraph 2(d)(iv)
hereof) of such Additional Shares of Common Stock would be less than the lesser
of Five Dollars and Twenty Cents ($5.20) or the Conversion Price in effect on
the date of and immediately prior to such issue, or such record date, as the
case may be; and provided further, that in any such case in which Additional
Shares of Common Stock are deemed to be issued:
(A) no further adjustment in the Conversion Price
shall be made upon the subsequent issue of Convertible Securities or shares of
Common Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
(B) if such Options or Convertible Securities by
their terms provide, with the passage of
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<PAGE> 19
time or otherwise, for any increase in the consideration payable to the
corporation, or decrease in the number of shares of Common Stock issuable, upon
the exercise, conversion or exchange thereof, the Conversion Price computed
upon the original issue thereof (or upon the occurrence of a record date with
respect thereto), and any subsequent adjustments based thereon, shall, upon any
such increase or decrease becoming effective, be recomputed to reflect such
increase or decrease insofar as it affects such Options or the rights of
conversion or exchange under such Convertible Securities;
(C) upon the expiration of any such Options or
any rights of conversion or exchange under such Convertible Securities which
shall not have been exercised, the Conversion Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon such expiration, be
recomputed as if:
(I) in the case of Convertible Securities
or Options for Common Stock the only Additional Shares of Common Stock issued
were the shares of Common Stock, if any, actually issued upon the exercise of
such Options or the conversion or exchange of such Convertible Securities and
the consideration received therefor was the consideration actually received by
the corporation for the issue of all such Options, whether or not exercised,
plus the consideration actually received by the corporation upon such exercise,
or for the issue of all such Convertible Securities which were actually
converted, if any, actually received by the corporation upon such conversion or
exchange and
(II) in the case of Options for Convertible
Securities only the Convertible Securities, if any, actually issued upon the
exercise thereof were issued at the time of issue of such Options, and the
consideration received by the corporation for the Additional Shares of Common
Stock deemed to have been then issued was the consideration actually received
by the corporation for the issue of all such Options, whether or not exercised,
plus the consideration deemed to have been received by the corporation
(determined pursuant to subparagraph 2(d)(iv)) upon the issue of the
Convertible Securities with respect to which such Options were actually
exercised;
(D) no readjustment pursuant to clause (B) or
(C) above shall have the effect of increasing the Conversion Price to an amount
which exceeds the lower of (i) Five Dollars and Sixty-Three Cents ($5.63), (ii)
the Conversion Price on the original adjustment date, or (iii) the Conversion
Price that would have resulted from
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<PAGE> 20
any other issuance of Additional Shares of Common Stock between the original
adjustment date and such readjustment date;
(E) in the case of any Options which expire by
their terms not more than thirty (30) days after the date of issue thereof, no
adjustment of the Conversion Price shall be made until the expiration of
exercise of all such Options, whereupon such adjustment shall be made in the
same manner provided in clause (C) above; and
(F) if such record date shall have been fixed
and such Options or Convertible Securities are not issued on the date fixed
therefor, the adjustment previously made in the Conversion Price which became
effective on such record date shall be cancelled as of the close of business on
such record date, and thereafter the Conversion Price shall be adjusted
pursuant to this subparagraph 2(d)(ii) as of the actual date of their issuance.
(2) Stock Dividends and Subdivisions. In the
event the corporation at any time or from time to time after the Original Issue
Date shall declare or pay any dividend or other distribution on the Common Stock
payable in Common Stock, or effect a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend in
Common Stock), then and in any such event, Additional Shares of Common Stock
shall be deemed to have been issued:
(A) in the case of any such dividend,
immediately after the close of business on the record date for the
determination of holders of any class of securities entitled to receive such
dividend, or
(B) in the case of any such subdivision, at the
close of business on the date immediately prior to the date upon which such
corporate action becomes effective.
If such record date shall have been fixed and such dividend shall not have
been fully paid on the date fixed therefor, the adjustment previously made in
the Conversion Price which became effective on such record date shall be
cancelled as of the close of business on such record date, and thereafter the
Conversion Price of each of the respective series shall be adjusted pursuant to
this subparagraph 2(d)(ii) as of the time of actual payment of such dividend.
(iii) Adjustment of Conversion Price Upon Issuance of
Additional Shares of Common Stock.
(1) No Adjustment of Conversion Price. No adjustment
in the Conversion Price of Series B Preferred
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<PAGE> 21
Stock shall be made in respect of the issuance of Additional Shares of Common
Stock or otherwise, unless the consideration per share for an Additional Share
of Common Stock issued or deemed to be issued by the corporation is less than
the lesser of Five Dollars and Twenty Cents ($5.20) or the Conversion Price in
effect on the date of, and immediately prior to, the issue of such Additional
Shares.
(2) Adjustment Mechanics. In the event the
corporation shall issue Additional Shares of Common Stock (including Additional
Shares of Common Stock deemed to be issued pursuant to subparagraph 2(d)(ii)
without consideration or for a consideration per share less than the lesser of
Five Dollars and Twenty Cents ($5.20) or the Conversion Price in effect on the
date of and immediately prior to such issue, then and in such event, such
Conversion Price shall be adjusted, concurrently with such issue, to a price
(calculated to the nearest cent) determined by multiplying Five Dollars and
Twenty Cents ($5.20) by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding on the date of this Certificate of
Designations plus the number of shares of Common Stock which the aggregate
consideration received and to be received in connection with such issue by the
corporation for the total number of Additional Shares of Common Stock issued
since the date of this Certificate of Designations and to be issued would
purchase at such Five Dollars and Twenty Cents ($5.20) per share, and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issue plus the number of such Additional Shares of
Common Stock to be so issued, and by adding to the result of such calculation
Forty-Three Cents ($.43); provided that, for the purpose of this subparagraph
(iii), all shares of Common Stock issuable upon conversion of outstanding
Series B Preferred Stock immediately prior to the corporation's issuance of
Additional Shares of Common Stock which triggered an adjustment pursuant to
this paragraph shall be deemed to be outstanding, and immediately after any
Additional Shares of Common Stock are deemed issued pursuant to subparagraph
(ii), such Additional Shares of Common Stock shall be deemed to be outstanding;
and provided further, that the Conversion Price shall not be so reduced at such
time if the amount of such reduction would be an amount less than Five Cents
($0.05), but any such amount shall be carried forward and reduction with
respect thereto made at the time of and together with any subsequent reduction
which, together with such amount and any other amount or amounts so carried
forward, shall aggregate Five Cents ($0.05) or more. In no event shall such
adjustments cause the Conversion Price to exceed Five Dollars and Sixty-Three
Cents ($5.63).
(3) Additional Adjustments. If, after the Original
Issue Date, the corporation effects a
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<PAGE> 22
stock split or reverse stock split of the outstanding shares of Common Stock,
declares or pays any dividend or other distribution on the Common Stock
payable in Common Stock, or effects a subdivision or combination of the
outstanding shares of Common Stock (by reclassification or otherwise), then all
references to Five Dollars and Twenty Cents ($5.20) and Forty-Three Cents
($.43), respectively, as used throughout this Section 2(d), shall, concurrently
with the effectiveness of such event, be proportionately adjusted upward or
downward (to the nearest cent) to reflect the effect of such event. Such
adjustments shall similarly be made for any subsequent events of the types
described in this subparagraph 2(d)(iii)(3).
(iv) Determination of Consideration. For purposes of
this paragraph 2(d), the consideration received by the corporation for the
issue of any Additional Shares of Common Stock shall be computed as follows:
(1) Cash and Property. Such consideration shall:
(A) insofar as it consists of cash, be computed
at the aggregate amount of cash received by the corporation excluding amounts
paid or payable for accrued interest or accrued dividends:
(B) insofar as it consists of property other
than cash, be computed at the fair value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(C) in the event Additional Shares of Common
Stock are issued together with other shares or securities or other assets of
the corporation for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (A) and (B) above,
as determined in good faith by the Board of Directors.
(2) Options and Convertible Securities. The
consideration per share received by the corporation for Additional Shares of
Common Stock deemed to have been issued pursuant to subparagraph 2(d)(ii)(l),
relating to Options and Convertible Securities, shall be determined by dividing
(x) the total amount, if any, received or
receivable by the corporation as consideration for the issue of such Options or
Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent
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<PAGE> 23
adjustment of such consideration) payable to the corporation upon the exercise
of such Options or the conversion or exchange of such Convertible Securities,
or in the case of Options for Convertible Securities, the exercise of such
Options for Convertible Securities and the conversion or exchange of such
Convertible Securities, by
(y) the maximum number of shares of Common Stock
(as set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such Options or the conversion or exchange of
such Convertible Securities.
(3) Certain Dividends and Distributions. In the
event that the corporation at any time or from time to time after the Original
Issue Date shall make or issue, or fix a record date for the determination of
holders of Common Stock entitled to receive a dividend or other distribution
payable in additional shares of Common Stock, without payment of any
consideration by such holder for the additional shares of Common Stock, then
and in each such event the maximum number of shares (as set forth in the
instrument relating thereto without regard to any provisions contained therein
for a subsequent adjustment of such number) of Common Stock issuable in payment
of such dividend or distribution shall be deemed to be issued and outstanding
as of the time of such issuance or, in the event such a record date shall have
been fixed, as of the close of business on such record date. In each such
event the Conversion Price shall be reduced as of the time of such issuance or,
in the event such a record date shall have been fixed, as of the close of
business on such record date, to a price (calculated to the nearest cent)
determined by multiplying the Conversion Price by a fraction
(x) the numerator of which shall be the total
number of shares of Common Stock issued and outstanding or deemed to be issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date; and
(y) the denominator of which shall be the total
number of shares of Common Stock issued and outstanding or deemed to be issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution; provided, however, that if such
record date shall have been fixed and such dividend is not fully paid or if
such distribution is not fully made on the date fixed therefor, the Conversion
Price shall be recomputed accordingly as of
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<PAGE> 24
the close of business on such record date and thereafter the Conversion Price
shall be adjusted pursuant to this subparagraph 2(d)(iv)(3) as of the time of
actual payment of such dividend or distribution.
(v) Adjustment for Combinations or Subdivision of Common
Stock. In the event the outstanding shares of Common Stock shall be combined
or subdivided, by reclassification or otherwise, into a lesser or greater
number of shares of Common Stock, the Conversion Price in effect immediately
prior to such combination or subdivision shall, concurrently with the
effectiveness of such combination or subdivision, be proportionately increased
in the case of a combination or decreased in the case of a subdivision.
(vi) Adjustment for Reorganization or Reclassification of
Common Stock. In the case of any reorganization or reclassification of the
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value, or as a result of a
subdivision or combination), each share of Series B Preferred Stock shall
thereafter be convertible into the kind and amount of shares of stock and other
securities and property receivable upon such reorganization or reclassification
that would have been received had the Series B Preferred Stock been converted
into Common Stock on the date of such event.
(e) No Impairment. The corporation will not, by amendment of
its Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the corporation but will at
all times in good faith assist in the carrying out of all the provisions of this
Section 2 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Series B Preferred Stock against impairment.
(f) Certificate as to Adjustment. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this Section 2,
the corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series B Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The corporation shall, upon the written request at any
time of any holder of Series B Preferred Stock, furnish or cause to be furnished
to such holder a like certificate
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<PAGE> 25
setting forth (i) such adjustments and readjustments, (ii) the Conversion Price
at the time in effect, and (iii) the number of shares of Common Stock and the
amount, if any, of other property which at the time would be received upon the
conversion of Series B Preferred Stock.
(g) Notices of Record Date. In the event of any taking by the
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend which is the same as cash dividends paid
in previous quarters) or other distribution, the corporation shall mail to each
holder of Series B Preferred Stock at least ten (10) days prior to the date
specified for the taking of a record, a notice specifying the date on which any
such record is to be taken for the purpose of such dividend or distribution.
(h) Common Stock Reserved. The corporation shall reserve and
keep available out of its authorized but unissued Common Stock such number of
shares of Common Stock as shall from time to time be sufficient to effect
conversion of the Series B Preferred Stock.
3. Consent to Redemption by Series B Preferred Stockholders. Each
holder of Series B Preferred Stock shall be deemed to have consented, for
purposes of Sections 502, 503 and 506 of the California General Corporations
Law, to distributions made by the corporation in connection with the repurchase
of shares of Common Stock issued to or held by employees or consultants upon
termination of their employment or services pursuant to agreements providing
for the right of said repurchase between the corporation and such persons.
4. Voting Rights. Except as otherwise required by law, the
holders of Series B Preferred Stock and the holders of the Common Stock shall be
entitled to notice of any shareholders' meeting and to vote upon any matter
submitted to a shareholder for a vote, on the following basis:
(a) Holders of Common Stock shall have one vote per share;
(b) Holders of Series B Preferred Stock shall have that number
of votes per share as is equal to the number of shares of Common Stock into
which each such share of Series B Preferred Stock held by such holder is
convertible;
(c) Neither the holders of the Common Stock nor the holders of
the Series B Preferred Stock shall be entitled to vote separately on any matters
as a class.
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<PAGE> 26
5. Dividend Rights. The holders of outstanding Series B
Preferred Stock shall be entitled to receive in any fiscal year, when and if
declared by the Board of Directors, out of any assets at the time legally
available therefor, dividends in cash at the rate of Forty Cents ($0.40) per
share of Series B Preferred Stock per annum, before any dividend is paid on
Common Shares; provided, however, that in no event shall the Board of Directors
declare and set apart or pay a dividend on the outstanding Series B Preferred
Stock in excess of an amount equal to twenty-five percent (25%) of the
corporation's pre-tax income for such quarter, calculated in accordance with
generally accepted accounting principles, consistently applied. Such dividends
may be payable quarterly or otherwise as the Board of Directors may from time
to time determine. The right to such dividends on Series B Preferred Stock
shall not be cumulative and no right shall accrue to holders of Series B
Preferred Stock by reason of the fact that dividends on said shares are not
declared in any prior year, nor shall any undeclared or unpaid dividend bear or
accrue interest.
6. Covenants. So long as any shares of Series B Preferred Stock
shall be outstanding (as adjusted for all subdivisions and combinations), the
corporation shall not, without first obtaining the affirmative vote or written
consent of not less than a majority of such outstanding shares of Series B
Preferred Stock:
(a) amend or repeal any provision of, or add any provision to,
the corporation's Certificate of Incorporation or By-laws if such action would
alter or change the preferences, rights or privileges of, or the restrictions
provided for the benefit of, the Series B Preferred Stock;
(b) reclassify any Common Stock into shares having any
preference or priority as to dividends or assets superior to any such
preference or priority of the Series B Preferred Stock; or
(c) pay or declare any dividend other than a stock dividend or
distribution on any shares of Common Stock or apply any of its assets to the
redemption, retirement, purchase or other acquisition directly or indirectly
through subsidiaries or otherwise, of any shares of Common Stock except from
employees of the corporation upon termination of employment or pursuant to the
exercise of a contractual right of first refusal.
7. Residual Rights. All rights accruing to the outstanding
shares of the corporation not expressly provided for to the contrary in this
or any other Certificate of Designation of Series Preferred Shares shall be
vested in the Common Stock.
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<PAGE> 27
IN WITNESS WHEREOF, said Health Data Sciences Corporation has caused this
Certificate to be signed by Ralph A. Korpman, its President, and attested by
Charles S. Grobe, its Secretary, this 10th day of April, 1984.
HEALTH DATA SCIENCES CORPORATION
By: /s/ Ralph A. Korpman
-----------------------------------
RALPH A. KORPMAN
President
ATTEST:
By:
---------------------------
CHARLES S. GROBE
Secretary
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<PAGE> 28
STATE of California )
)ss.
COUNTY of San Bernardino )
RALPH A. KORPMAN, being first duly sworn, deposes and says that:
He is the President of the Delaware corporation herein mentioned; the
matters set forth herein are true of his own knowledge; and the signature
purporting to be the signature of said Ralph A. Korpman is his genuine
signature.
/s/ Ralph A. Korpman
----------------------------------------
RALPH A. KORPMAN
Subscribed and Sworn to before me on April __, 1984.
/s/ Katie A. Emery
---------------------------------------
NOTARY PUBLIC - Katie A. Emery
State of California
[SEAL]
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<PAGE> 29
CERTIFICATE OF DESIGNATIONS OF
PREFERENCES AND RIGHTS OF
SERIAL PREFERRED SHARES OF
HEALTH DATA SCIENCES CORPORATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware:
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by the
Certificate of Incorporation (as amended) of said corporation, and pursuant to
the provisions of Section 151 of Title 8 of the Delaware Code of 1953, said
Board of Directors, at a meeting duly convened on July 16, 1985, adopted a
resolution providing for the designations, preferences and relative,
participating, optional or other rights, and the qualifications, limitations or
restrictions thereof, of the Preferred Shares -- Series C stock, which
resolution is as follows:
WHEREAS, the Certificate of Incorporation of this corporation provides for
a class of shares known as Preferred Stock, issuable from time to time in one
or more series; and
WHEREAS, the Board of Directors of this corporation is authorized, within
the limitations and restrictions stated in the Certificate of Incorporation, to
determine or alter the rights, preferences, privileges, and restrictions
granted to or imposed upon any wholly unissued series of the Preferred Stock,
to fix the number of shares constituting any such series, and to determine the
designation thereof; and
WHEREAS, this corporation has issued only shares of Series A and Series B
Preferred Stock and the Board of Directors of this corporation desires,
pursuant to its authority as aforesaid, to fix the terms of a third series of
said Preferred Stock and the number of shares constituting and the designation
of such series;
<PAGE> 30
RESOLVED, that the Board of Directors hereby fixes and determines the
designation of, the number of shares constituting, and the rights, preferences,
privileges, and restrictions relating to, said third series of Preferred Stock
as follows:
A. The third series of Preferred Stock shall be designated "Serial Preferred
Stock, Series C," and the number of shares constituting such Series C shall be
one million six hundred eighty-seven thousand five hundred (1,687,500).
B. The rights, preferences, privileges and restrictions of, and other matters
relating to, the Series C Preferred Stock are as follows:
1. Liquidation Rights.
In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the corporation, the holders of each share of
Series C Preferred Stock (and the holders of each share of any other series of
Preferred Stock having the same rights on voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the corporation) shall be entitled
to receive, prior and in preference to any distribution of any of the assets or
surplus funds of the corporation to the holders of the Common Stock of the
corporation by reason of their ownership thereof, an amount equal to Eight
Dollars ($8.00) per share.
All the preferential amounts to be paid to the holders of the Series
C Preferred Stock (and to the holders of any other such series of Preferred
Stock) under this Section 1 shall be paid or set apart for payment before the
payment or setting apart for payment of any amount for, or the distribution of
any assets of the corporation to, the holders of the Common Stock in connection
with such liquidation, dissolution or winding up. After the payment or the
setting apart of payment to the holders of the Series C Preferred Stock and to
the holders of any other such series of Preferred Stock of the preferential
amounts so payable to them, the holders of Common Stock shall be entitled to
receive all remaining assets of the corporation.
If the assets or surplus funds to be distributed to the holders of
the Series C Preferred Stock are insufficient to permit the payment to such
holders and to the holders of any other such series of Preferred Stock of their
full preferential amount, the assets and surplus funds legally available for
distribution shall be distributed ratably among the holders of the Series C
Preferred Stock (and the holders of any other such series of Preferred Stock)
in proportion to the full preferential amount each such holder is otherwise
entitled to receive.
2
<PAGE> 31
2. Conversion. The holders of the Series C Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series C Preferred Stock shall
be convertible, without the payment of any additional consideration by the
holder thereof and at the option of the holder thereof, at any time after the
date of issuance of such share, at the office of the corporation or any
transfer agent for the Series C Preferred Stock, into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing Eight
Dollars ($8.00) by the Conversion Price, determined as hereinafter provided, in
effect at the time of conversion. The Conversion Price at which shares of
Common Stock shall be deliverable upon conversion without the payment of any
additional consideration by the holder thereof (the "Conversion Price") shall
initially be Eight Dollars ($8.00) per share of Common Stock. Such initial
Conversion Price shall be subject to adjustment, in order to adjust the number
of shares of Common Stock into which the Series C Preferred Stock is
convertible, as hereinafter provided.
(b) Automatic Conversion. Each share of Series C Preferred Stock
shall automatically be converted into shares of Common Stock at the then
effective Conversion Price upon the earlier to occur of (i) the date on which
the corporation is subject to the reporting requirements of Section 13(a) of
the Securities Exchange Act of 1934, as amended, or (ii) the date on which
quotations for the Common Stock are reported by the automated quotations system
operated by the National Association of Securities Dealers, Inc., or by an
equivalent quotations system, or (iii) shares of Common Stock have been sold at
an aggregate price of Seven Million Dollars ($7,000,000) or more pursuant to a
public offering.
(c) Mechanics of Conversion. No fractional shares of Common Stock
shall be issued upon conversion of the Series C Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
corporation shall pay cash equal to such fraction multiplied by the then
effective Conversion Price. Before any holder of Series C Preferred Stock shall
be entitled to convert the same into full shares of Common Stock, and before the
corporation shall be obligated to issue certificates for shares of Common Stock
upon the automatic conversion of the Series C Preferred Stock as set forth in
Section 2(b) hereof, the Series C Preferred Stock holder shall surrender the
certificate or certificates therefor, duly endorsed, at the office of the
corporation or of any transfer agent for the Series C Preferred Stock and shall
give written notice to the corporation at such office that he elects to convert
the same and shall state therein his name or the name or names of his nominees
in which he wishes the certificate or certificates for shares of Common Stock to
be issued (except
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<PAGE> 32
that no such written notice of intent to convert shall be necessary in the
event of an automatic conversion pursuant to Section 2(b) hereof). The
corporation shall, as soon as practicable thereafter, issue and deliver at such
office to such holder of Series C Preferred Stock, or to his nominee or
nominees, a certificate or certificates for the number of Shares of Common
Stock to which he shall be entitled as aforesaid, together with cash in lieu of
any fraction of a share. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
shares of Series C Preferred Stock to be converted (except that in the case of
an automatic conversion pursuant to Section 2(b) hereof, such conversion shall
be deemed to have been made immediately prior to the closing of the offering
referred to in Section 2(b)), and the person or persons entitled to receive the
shares of Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock on such
date.
(d) Adjustments to Conversion Price for Diluting Issues:
(i) Special Definitions. For purposes of this Paragraph
2(d), the following definitions shall apply:
(1) "Option" shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
(2) "Original Issue Date" shall mean the date on which a
share of Series C Preferred Stock was first issued.
(3) "Convertible Securities" shall mean any evidences of
indebtedness, shares (other than Common Stock and Series C Preferred Stock)
or other securities directly or indirectly convertible into or exchangeable
for Common Stock.
(4) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to Subparagraph 2(d)(ii),
deemed to be issued) by the corporation after the Original Issue Date,
other than shares of Common Stock issued or issuable:
(A) upon conversion of shares of Series C Preferred
Stock, and Series B Preferred Stock, and Series A Preferred Stock;
(B) to officers or employees of, or consultants to,
the corporation pursuant to a stock purchase or option plan or other
employee stock incentive program
4
<PAGE> 33
(collectively, the "Plans") approved by the Board of Directors not to
exceed four hundred thousand (400,000) shares, one hundred twenty-six
thousand (126,000) of which are outstanding on the date hereof; or
(c) by way of dividend or other distribution on
shares of Common Stock excluded from the definition of Additional Shares of
Common Stock by the foregoing Clauses (A) and (B) of this Clause (C).
(ii) Issue of Securities Deemed Issue of Additional Shares of
Common Stock.
(1) Options and Convertible Securities. In the event the
corporation at any time or from time to time after the Original Issue Date shall
issue any Options or Convertible Securities or shall fix a record date for the
determination of holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the maximum number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number) of Common Stock
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue or, in case such a record date shall have been fixed, as
of the close of business on such record date; provided, that Additional Shares
of Common Stock shall not be deemed to have been issued unless the consideration
per share (determined pursuant to Subparagraph 2(b)(iv) hereof) of such
Additional Shares of Common Stock would be less than the lesser of Seven Dollars
($7.00) or the Conversion Price in effect on the date of and immediately prior
to such issue, or such record date, as the case may be; and provided further,
that in any such case in which Additional Shares of Common Stock are deemed to
be issued;
(A) no further adjustment in the Conversion Price
shall be made upon the subsequent issue of Convertible Securities or shares
of Common Stock upon the exercise of such Options or conversion or exchange
of such Convertible Securities;
(B) if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any
increase in the consideration payable to the corporation, or decrease in
the number of shares of Common Stock issuable, upon the exercise,
conversion or exchange thereof, the Conversion Price computed upon the
original issue thereof (or upon the occurrence of a record date with
respect thereto), and any subsequent adjustments based thereon, shall, upon
any such increase or decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such Options or the rights
of conversion or exchange under such Convertible Securities;
5
<PAGE> 34
(C) upon the expiration of any such Options or any
rights of conversion or exchange under such Convertible Securities which
shall not have been exercised, the Conversion Price computed upon the
original issue thereof (or upon the occurrence of a record date with
respect thereto), and any subsequent adjustments based thereon, shall, upon
such expiration, be recomputed as if:
(I) in the case of Convertible Securities or
Options for Common Stock the only Additional Shares of Common Stock
issued were the shares of Common Stock, if any, actually issued upon
the exercise of such Options or the conversion or exchange of such
Convertible Securities and the consideration received therefor was the
consideration actually received by the corporation for the issue of
all such Options, whether or not exercised, plus the consideration
actually received by the corporation upon such exercise, or for the
issue of all such Convertible Securities which were actually
converted, if any, actually received by the corporation upon such
conversion or exchange, and
(II) in the case of Options for Convertible
Securities only the Convertible Securities, if any, actually issued
upon the exercise thereof were issued at the time of issue of such
Options, and the consideration received by the corporation for the
Additional Shares of Common Stock deemed to have been then issued was
the consideration actually received by the corporation for the issue
of all such Options, whether or not exercised, plus the consideration
deemed to have been received by the corporation (determined pursuant
to Subparagraph 2(d)(iv)) upon the issue of the Convertible Securities
with respect to which such Options were actually exercised;
(D) no readjustment pursuant to Clause (B) or (C)
above shall have the effect of increasing the Conversion Price to an amount
which exceeds the lower of (i) Eight Dollars ($8.00), (ii) the Conversion
Price on the original adjustment date, or (iii) the Conversion Price that
would have resulted from any other issuance of Additional Shares of Common
Stock between the original adjustment date and such readjustment date;
(E) in the case of any Options which expire by their
terms not more than thirty (30) days after the date of issue thereof, no
adjustment of the Conversion Price shall be made until the expiration of
exercise of all such Options, whereupon such adjustment shall be made in
the same manner provided in Clause (C) above; and
6
<PAGE> 35
(F) if such record date shall have been fixed and such
Options or Convertible Securities are not issued on the date therefor, the
adjustment previously made in the Conversion Price which became effective
on such record date shall be cancelled as of the close of business on such
record date, and thereafter the Conversion Price shall be adjusted pursuant
to this Subparagraph 2(d)(ii) as of the actual date of their issuance.
(2) Stock Dividends and Subdivisions. In the event the
corporation at any time or from time to time after the Original Issue Date
shall declare or pay any dividend or other distribution on the Common Stock
payable in Common Stock, or effect a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a
dividend in Common Stock), then and in any such event, Additional Shares of
Common Stock shall be deemed to have been issued:
(A) in the case of any such dividend, immediately
after the close of business on the record date for the determination of
holders of any class of securities entitled to receive such dividend, or
(B) in the case of any such subdivision, at the close
of business on the date immediately prior to the date upon which such
corporate action becomes effective.
If such record date shall have been fixed and such dividend
shall not have been fully paid on the date fixed therefor, the adjustment
previously made in the Conversion Price which became effective on such
record date shall be cancelled as of the close of business on such record
date, and thereafter the Conversion Price of each of the respective series
shall be adjusted pursuant to this Subparagraph 2(d)(ii) as of the time of
actual payment of such dividend.
(iii) Adjustment of Conversion Price Upon Issuance of
Additional Shares of Common Stock.
(1) No adjustment of Conversion Price. No adjustment
in the Conversion Price of Series C Preferred Stock shall be made in
respect to the issuance of Additional Shares of Common Stock or otherwise,
unless the consideration per share for an Additional Share of Common Stock
issued or deemed to be issued by the corporation is less than the lesser of
Seven Dollars ($7.00) or the Conversion Price in effect on the date of, and
immediately prior to, the issue of such Additional Shares.
7
<PAGE> 36
(2) Adjustment Mechanics. In the event the corporation
shall issue Additional Shares of Common Stock (including Additional Shares
of Common Stock deemed to be issued pursuant to Subparagraph 2(d)(ii)
without consideration or for a consideration per share less than the lesser
of Seven Dollars ($7.00) or the Conversion Price in effect on the date of
and immediately prior to such issue, then and in such event, such
Conversion Price shall be adjusted, concurrently with such issue, to a
price (calculated to the nearest cent) equal to the consideration per share
for which such Additional Shares of Common Stock are issued; provided
however, that the Conversion Price shall not be so reduced at such time if
the amount of such reduction would be an amount less than Five Cents
($0.05), but any such amount shall be carried forward and reduction with
respect thereto made at the time of and together with any subsequent
reduction which, together with such amount and any other amount or amounts
so carried forward, shall aggregate Five Cents ($0.05) or more. In no event
shall such adjustments cause the Conversion Price to exceed Eight Dollars
($8.00).
(3) Additional Adjustments. If, after the Original Issue
Date, the corporation effects a stock split or reverse stock split of the
outstanding shares of Common Stock, declares or pays any dividend or other
distribution on the Common Stock payable in Common Stock, or effects a
subdivision or combination of the outstanding shares of Common Stock (by
reclassification or otherwise), then all references to Eight Dollars
($8.00) and Seven Dollars ($7.00), respectively, as used throughout this
Section 2(d), shall, concurrently with the effectiveness of such event, be
proportionately adjusted upward or downward (to the nearest cent) to
reflect the effect of such event. Such adjustments shall similarly be made
for any subsequent events of the types described in this Subparagraph
2(d)(iii)(3).
(iv) Determination of Consideration. For purposes of this
Paragraph 2(d), the consideration received by the corporation for the issue of
any Additional Shares of Common Stock shall be computed as follows:
(1) Cash and Property. Such consideration shall:
(A) insofar as it consists of cash, be computed at the
aggregate amount of cash received by the corporation excluding
amounts paid or payable for accrued interest or accrued
dividends;
(B) insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such issue,
as determined in good faith by the Board of Directors; and
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<PAGE> 37
(C) in the event Additional Shares of Common Stock are
issued together with other shares or securities or other assets of the
corporation for consideration which covers both, be the proportion of
such consideration so received, computed as provided in Clauses (A)
and (B) above, as determined in good faith by the Board of Directors.
(2) Options and Convertible Securities. The consideration
per share received by the corporation for Additional Shares of Common Stock
deemed to have been issued pursuant to Subparagraph 2(d)(ii)(1), relating
to Options and Convertible Securities, shall be determined by dividing
(x) the total amount, if any, received or receivable
by the corporation as consideration for the issue of such Options or
Convertible Securities, plus the minimum aggregate amount of
additional consideration (as set forth in the instruments relating
thereto, without regard to any provision contained therein for a
subsequent adjustment of such consideration) payable to the
corporation upon the exercise of such Options or the conversion or
exchange of such Convertible Securities and the conversion or exchange
of such Convertible Securities, by
(y) the maximum number of shares of Common Stock (as
set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such
number) issuable upon the exercise of such Options or the conversion
or exchange of such Convertible Securities.
(3) Certain Dividends and Distributions. In the event
that the corporation at any time or from time to time after the Original Issue
Date shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive a dividend or other distribution payable in
additional shares of Common Stock, without payment of any consideration by such
holder for the additional shares of Common Stock, then and in each such event
the maximum number of shares (as set forth in the instrument relating thereto
without regard to any provisions contained therein for a subsequent adjustment
of such number) of Common Stock issuable in payment of such dividend or
distribution shall be deemed to be issued and outstanding as of the time of such
issuance or, in the event such a record date shall have been fixed, as of the
close of business on such record date. In each such event the Conversion Price
shall be reduced as of the time of such issuance or, in the event such a record
date shall have been fixed, as of the close of business on such record date, to
a
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<PAGE> 38
price (calculated to the nearest cent) determined by multiplying the
Conversion Price by a fraction
(x) the numerator of which shall be the total number
of shares of Common Stock issued and outstanding or deemed to be
issued and outstanding immediately prior to the time of such issuance
or the close of business on such record date; and
(y) the denominator of which shall be the total number
of shares of Common Stock issued and outstanding or deemed to be
issued and outstanding immediately prior to the time of such issuance
or the close of business on such record date plus the number of shares
of Common Stock issuable in payment of such dividend or distribution;
provided, however, that if such record date shall have been fixed and
such dividend is not fully paid or if such distribution is not fully
made on the date fixed therefor, the Conversion Price shall be
recomputed accordingly as of the close of business on such record date
and thereafter the Conversion Price shall be adjusted pursuant to this
Subparagraph 2(d)(iv)(3) as of the time of actual payment of such
dividend or distribution.
(v) Adjustment for Combinations or Subdivision of Common Stock.
In the event the outstanding shares of Common Stock shall be combined or
subdivided, by reclassification or otherwise, into a lesser or greater number of
shares of Common Stock, the Conversion Price in effect immediately prior to such
combination or subdivision shall, concurrently with the effectiveness of such
combination or subdivision, be proportionately increased in the case of a
combination or decreased in the case of a subdivision.
(vi) Adjustment for Reorganization or Reclassification of Common
Stock. In the case of any reorganization or reclassification of the
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value, or as a result of a subdivision
or combination), each share of Series C Preferred Stock shall thereafter be
convertible into the kind and amount of shares of stock and other securities and
property receivable upon such reorganization or reclassification that would have
been received had the Series C Preferred Stock been converted into Common Stock
on the date of such event.
(e) No impairment. The corporation will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the corporation
10
<PAGE> 39
but will at all times in good faith assist in the carrying out of all the
provisions of this Section 2 and in the taking of all such action as may be
necessary or appropriate in order to protect the Conversion Rights of the
holders of the Series C Preferred Stock against impairment:
(f) Certificate as to Adjustment. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this Section 2,
the corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series C Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The corporation shall, upon the written request at any
time of any holder of Series C Preferred Stock, furnish or cause to be furnished
to such holder a like certificate setting forth (i) such adjustments and
readjustments, (ii) the Conversion Price at the time in effect, and (iii) the
number of shares of Common Stock and the amount, if any, of other property which
at the time would be received upon the conversion of Series C Preferred Stock.
(g) Notices of Record Date. In the event of any taking by the
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend which is the same as cash dividends paid
in previous quarters) or other distribution, the corporation shall mail to each
holder of Series C Preferred Stock at least ten (10) days prior to the date
specified for the taking of a record, a notice specifying the date on which any
such record is to be taken for the purpose of such dividend or distribution.
(h) Common Stock Reserved. The corporation shall reserve and keep
available out of its authorized but unissued Common Stock such number of shares
of Common Stock as shall from time to time be sufficient to effect conversion of
the Series C Preferred Stock.
3. Consent to Redemption by Series C Preferred Stockholders. Each
holder of Series C Preferred Stock shall be deemed to have consented, for
purposes of Sections 502, 503 and 506 of the California General Corporations
Law, to distributions made by the corporation in connection with the repurchase
of shares of Common Stock issued to or held by employees or consultants upon
termination of their employment or services pursuant to agreements providing for
the right of said repurchase between the corporation and such persons.
4. Voting Rights. Except as otherwise required by law, the holders of
Series C Preferred Stock and the holders of the Common Stock shall be entitled
to notice of any shareholders'
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<PAGE> 40
meeting and to vote upon any matter submitted to a shareholder for a vote, on
the following basis:
(a) Holders of Common Stock shall have one (1) vote per share;
(b) Holders of Series C Preferred Stock shall have that number of
votes per share as is equal to the number of shares of Common Stock into which
each such share of Series C Preferred Stock held by such holder is convertible;
(c) Neither the holders of the Common Stock nor the holders of the
Series C Preferred Stock shall be entitled to vote separately on any matters as
a class.
5. Dividend Rights. The holders of outstanding Series C Preferred
Stock shall be entitled to receive in any fiscal year, when and if declared by
the Board of Directors, out of any assets at the time legally available
therefor, dividends in cash at the rate of Fifty-Six Cents ($0.56) per share of
Series C Preferred Stock per annum, before any dividend is paid on Common
Shares; provided, however, that in no event shall the Board of Directors
declare and set apart or pay a dividend on the outstanding Series C Preferred
Stock in excess of an amount equal to twenty-five percent (25%) of the
corporation's pre-tax income for such quarter, calculated in accordance with
generally accepted accounting principles, consistently applied. Such dividends
may be payable quarterly or otherwise as the Board of Directors may from time
to time determine. The right to such dividends on Series C Preferred Stock
shall not be cumulative and no right shall accrue to holders of Series C
Preferred Stock by reason of the fact that dividends on said shares are not
declared in any prior year, nor shall any undeclared or unpaid dividend bear or
accrue interest.
6. Covenants. So long as any shares of Series C Preferred Stock
shall be outstanding (as adjusted for all subdivisions and combinations), the
corporation shall not, without first obtaining the affirmative vote or written
consent of not less than a majority of such outstanding shares of Series C
Preferred Stock:
(a) amend or repeal any provision of, or add any provision to, the
corporation's Certificate of Incorporation or By-Laws if such action would
alter or change the preferences, rights or privileges of, or the restrictions
provided for the benefit of, the Series C Preferred Stock;
(b) reclassify any Common Stock into shares having any preference or
priority as to dividends or assets superior to any such preference or priority
of the Series C Preferred Stock; or
(c) pay or declare any dividend other than a stock dividend or
distribution on any shares of Common Stock or apply
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<PAGE> 41
any of its assets to the redemption, retirement, purchase or other acquisition
directly or indirectly, through subsidiaries or otherwise, of any shares of
Common Stock except from employees of the corporation upon termination of
employment or pursuant to the exercise of a contractual right of first refusal.
7. Residual Rights. All rights accruing to the outstanding shares of
the corporation not expressly provided for to the contrary in this or any other
Certificate of Designation of Series Preferred Shares shall be vested in the
Common Stock.
IN WITNESS WHEREOF, said Health Data Sciences Corporation has caused this
Certificate to be signed by Ralph Korpman, its President, and attested by
Charles S. Grobe, its secretary, this 9th day of August, 1985.
HEALTH DATA SCIENCES CORPORATION
By: /s/ Ralph A. Korpman
----------------------------
Ralph A. Korpman, President
ATTEST:
By: /s/ Charles S. Grobe
-------------------------------
Charles S. Grobe, Secretary
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<PAGE> 42
STATE OF CALIFORNIA )
) ss.
COUNTY OF San Bernadino )
RALPH A. KORPMAN, being first duly sworn, deposes and says that:
He is the President of the Delaware corporation herein mentioned; the
matters set forth herein are true to his own knowledge; and the signature
purporting to be the signature of said Ralph A. Korpman is his genuine
signature.
/s/ Ralph A. Korpman
----------------------------------
RALPH A. KORPMAN
Subscribed and sworn to before me on August 9, 1985.
/s/ Karie A. Emery
----------------------------------
NOTARY PUBLIC - Karie A. Emery
State of California
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF San Bernardino )
CHARLES S. GROBE, being first duly sworn, deposes and says that:
He is the Secretary of the Delaware corporation herein mentioned; the
matters set forth herein are true to his own knowledge; and the signature
purporting to be the signature of said Charles S. Grobe is his genuine
signature.
/s/ Charles S. Grobe
---------------------------------
CHARLES S. GROBE
Subscribed and sworn to before me on August 9, 1985.
/s/ Karie A. Emery
---------------------------------
NOTARY PUBLIC - Karie A. Emery
State of California
[SEAL]
14
<PAGE> 43
HEALTH DATA SCIENCES CORPORATION
CERTIFICATE OF AMENDMENT
OF
CERTIFICATION OF INCORPORATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of HEALTH DATA SCIENCES
CORPORATION be amended by adding the SEVENTH Article thereof so that, said
Article shall be and read as follows:
"SEVENTH: No director of the Corporation shall be personally liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, as the same exits or hereafter may be
amended, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law
hereafter is amended to authorize the further elimination or limitation of
the liability of directors, then the liability of a director of the
Corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended
Delaware General Law. Any repeal or modification of this paragraph by the
stockholders of the Corporation shall be prospective only, and shall
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<PAGE> 44
not adversely affect any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or
modification."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given written consent to said amendment in accordance with
the provisions of section 228 of the General Corporation Law of the State of
Delaware and written notice of the adoption of the amendment has been given as
provided in section 228 of the General Corporation Law of the State of Delaware
to every stockholder entitled to such notice.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of sections 242 and 228 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, Health Data Sciences Corporation has caused this
certificate to be signed by Charles S. Grobe, its Vice-President, and attested
by Janice Ticich, its Assistant Secretary, this 24th day of August, 1987.
By: /s/ Charles L. Grobe
--------------------------------
Charles S. Grobe
Vice-President
ATTEST:
By: /s/ Janice Ticich
--------------------------------
Janice Ticich
Assistant Secretary
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<PAGE> 45
CERTIFICATE OF DESIGNATIONS OF
PREFERENCES AND RIGHTS OF
SERIAL PREFERRED SHARES OF
HEALTH DATA SCIENCES CORPORATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware:
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by the
Certificate of Incorporation (as amended) of said corporation, and pursuant to
the provisions of Section 151 of Title 8 of the Delaware Code of 1953, said
Board of Directors, acting pursuant to an unanimous written consent dated as of
September 29, 1987, adopted a resolution providing for the designations,
preferences and relative, participating, optional or other rights, and the
qualifications, limitations or restrictions thereof, of the Preferred
Shares-Series D stock, which resolution is as follows:
WHEREAS, the Certificate of Incorporation of this corporation provides for
a class of shares known as Preferred Stock, issuable from time to time in one or
more series; and
WHEREAS, the Board of Directors of this corporation is authorized, within
the limitations and restrictions stated in the Certificate of Incorporation, to
determine or alter the rights, preferences, privileges, and restrictions granted
to or imposed upon any wholly unissued series of the Preferred Stock, to fix the
number of shares constituting any such series, and to determine the designation
thereof; and
WHEREAS, this corporation has issued only shares of Series A, Series B and
Series C Preferred Stock and the Board
<PAGE> 46
of Directors of this corporation desires, pursuant to its authority as
aforesaid, to fix the terms of a fourth series of said Preferred Stock and the
number of shares constituting and the designation of such series;
RESOLVED, that the Board of Directors hereby fixes and determines the
designation of, the number of shares constituting, and the rights, preferences,
privileges, and restrictions relating to, said fourth series of Preferred Stock
as follows:
A. The fourth series of Preferred Stock shall be designated "Serial
Preferred Stock, Series D," and the number of shares constituting such Series D
shall be one million two hundred and fifty thousand (1,250,000) shares.
B. The rights, preferences, privileges and restrictions of, and
other matters relating to, the Series D Preferred Stock are as follows:
1. Liquidation Rights.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the corporation, the holders of
each share of Series D Preferred Stock (and the holders of each share of any
other series of Preferred Stock having the same rights on voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
corporation) shall be entitled to receive, prior and in preference to any
distribution of any of the assets or surplus funds of the corporation to the
holders of the Common Stock of the corporation by reason of their ownership
thereof, an amount equal to Twelve Dollars and Ninety Cents ($12.90) per share;
provided, however, that in the case of Series D Preferred Stock resulting from
the conversion by the corporation of any of its 10.5% Convertible Subordinated
Debentures Due September 30, 1991 (the "Debentures") in accordance with Section
6.2(c) of the Debenture Purchase Agreement dated as of September 30, 1987 (the
"Debenture Purchase Agreement") between the corporation and the purchasers
named therein, then such amount shall equal Twelve Dollars ($12.00) per share.
(b) In the event of any merger or consolidation to which the
corporation is a party or of the sale or transfer of all or substantially all
the assets of the corporation, in either case in which any holder of any other
series of Preferred Stock of the corporation receives in cash or other property
the sum of $8.00 or more, each holder of each share of Series D Preferred
Stock, solely at its option, shall be entitled to receive, prior and in
preference to any
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<PAGE> 47
distribution of any of the assets or surplus of the corporation to the holders
of the Common Stock of the corporation by reason of their ownership thereof, an
amount equal to Twelve Dollars ($12.00) per share.
(c) All the preferential amounts to be paid to the holders of the
Series D Preferred Stock (and to the holders of any other such series of
Preferred Stock) under this Section 1 shall be paid or set apart for payment
before the payment or setting apart for payment of any amount for, or the
distribution of any assets of the corporation to, the holders of the Common
Stock in connection with such liquidation, dissolution or winding up. After
the payment or the setting apart of payment to the holders of the Series D
Preferred Stock and to the holders of any other such series of Preferred Stock
of the preferential amounts so payable to them, the holders of Common Stock
shall be entitled to receive all remaining assets of the corporation.
(d) If the assets or surplus funds to be distributed to the holders
of the Series D Preferred Stock are insufficient to permit the payment to such
holders and to the holders of any such series of Preferred Stock of their full
preferential amount, the assets and surplus funds legally available for
distribution shall be distributed ratably among the holders of the Series D
Preferred Stock (and the holders of any other such series of Preferred Stock) in
proportion to the full preferential amount each such holder is otherwise
entitled to receive.
2. Conversion. The holders of the Series D Preferred Stock shall
have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series D Preferred Stock
shall be convertible, without the payment of any additional consideration by the
holder thereof and at the option of the holder thereof, at any time after the
date of issuance of such share, at the office of the corporation or any transfer
agent for the Series D Preferred Stock, into such number of fully paid and
nonassessable shares of Common Stock as is determined by dividing (i) in the
case of Series D Preferred Stock resulting from the conversion by the
corporation of any of the Debentures in accordance with Section 6.2(c) of the
Debenture Purchase Agreement, Twelve Dollars ($12.00) or (ii) in the case of
Series D Preferred Stock resulting from the conversion of Debentures in
accordance with Sections 6.2(a) or 6.2(b) of the Debenture Purchase Agreement,
Twelve Dollars and Ninety Cents ($12.90), by the Conversion Price, determined as
hereinafter provided, in effect at the time of conversion. The Conversion Price
at
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<PAGE> 48
which shares of Common Stock shall be deliverable upon conversion without the
payment of any additional consideration by the holder thereof (the "Conversion
Price") shall initially be Twelve Dollars and Ninety Cents ($12.90) per share
of Common Stock (the "Initial Conversion Price"); provided, however, that if
conversion is effected by the corporation pursuant to Section 6.2(c) of the
Debenture Purchase Agreement, then such Initial Conversion Price shall be
$12.00 per share and appropriate adjustments to the Conversion Price shall be
made pursuant to Section 2(d)(vii) hereof. Such Initial Conversion Price shall
be subject to adjustment, in order to adjust the number of shares of Common
Stock into which the Series D Preferred Stock is convertible, as hereinafter
provided.
(b) Automatic Conversion. Each share of Series D Preferred Stock
shall automatically be converted into shares of Common Stock at the then
effective Conversion Price upon the earlier to occur of (i) the closing date
of a registration by the Company of any of its securities pursuant to a firm
commitment underwritten public offering at a per share public offering price of
not less than $18.00 (adjusted for any stock split, combination or similar
event) and an aggregate public offering price of not less than $7,000,000 of
any of its securities on Form S-1 (or any successor or reasonably equivalent
forms) under the Securities Act (other than the registration of a stock option
or purchase, thrift, reinvestment, compensation or similar plan or of
securities issued or issuable pursuant to such plan, or of securities issued or
issuable in connection with a merger of the Company or the acquisition of
securities or assets by the Company); or (ii) a merger or consolidation
involving the Company or a sale of all or substantially all of the assets of
the Company in which the holders of the Common Stock of the Company shall
receive in cash an amount at least equal to $18.00 per share (on the date of
effectiveness of such merger or consolidation or on the date of distribution to
stockholders of the Company of the proceeds from such sale of assets).
(c) Mechanics of Conversion. No fractional shares of Common Stock
shall be issued upon conversion of the Series D Preferred Stock. In lieu of
any fractional shares to which the holder would otherwise be entitled, the
corporation shall pay cash equal to such fraction multiplied by the then
effective Conversion Price. Before any holder of Series D Preferred Stock
shall be entitled to convert the same into full shares of Common Stock, and
before the corporation shall be obligated to issue certificates for shares of
Common Stock upon the automatic conversion of the Series D Preferred Stock as
set forth in Section 2(b) hereof, the Series D Preferred Stock holder shall
surrender the certificate or certificates
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<PAGE> 49
therefor, duly endorsed, at the office of the corporation or of any transfer
agent for the Series D Preferred Stock and shall give written notice to the
corporation at such office that he elects to convert the same and shall state
therein his name or the name or names of his nominees in which he wishes the
certificate or certificates for shares of Common Stock to be issued (except
that no such written notice of intent to convert shall be necessary in the
event of an automatic conversion pursuant to Section 2(b) hereof). The
corporation shall, as soon as practicable thereafter, issue and deliver at such
office to such holder of Series D Preferred Stock, or to his nominee or
nominees, a certificate or certificates for the number of shares of Common
Stock to which he shall be entitled as aforesaid, together with cash in lieu of
any fraction of a share. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
shares of Series D Preferred Stock to be converted (except that in the case of
an automatic conversion pursuant to Section 2(b) hereof, such conversion shall
be deemed to have been made immediately prior to the closing of the offering
referred to in Section 2(b)), and the person or persons entitled to receive the
shares of Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock on such
date.
(d) Adjustments to Conversion Price for Diluting Issues:
(i) Special Definitions. For purposes of this Paragraph 2(d),
the following definitions shall apply:
(1) "Option" shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire either Common Stock
or Convertible Securities.
(2) "Original Issue Date" shall mean the date on which a
share of Series D Preferred Stock was first issued.
(3) "Convertible Securities" shall mean any evidences of
indebtedness, shares (other than Common Stock and Series D
Preferred Stock) or other securities directly or indirectly
convertible into or exchangeable for Common Stock.
(4) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to Subparagraph
2(d)(ii), deemed to be issued) by the corporation after the
Original Issue Date, other than shares of Common Stock issued or
issuable:
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<PAGE> 50
(A) Upon conversion of shares of Series D Preferred Stock,
Series C Preferred Stock, and Series B Preferred Stock, and Series A
Preferred Stock;
(B) to officers or employees of, or consultants to, the
corporation pursuant to a stock purchase or option plan or other employee
stock incentive program (collectively, the "Plans") approved by the Board
of Directors not to exceed seven hundred and fifty thousand (750,000)
shares, Two Hundred Ten Thousand Three Hundred Fifty (210,350) of which
are outstanding on the date hereof; or
(C) by way of dividend or other distribution on shares of
Common Stock excluded from the definition of Additional Shares of Common
Stock by the foregoing Clauses (A) and (B) or this Clause (C).
(iii) Issue of Securities Deemed Issue of Additional Shares of
Common Stock.
(1) Options and Convertible Securities. In the event the
corporation at any time or from time to time after the Original Issue Date
shall issue any Options or Convertible Securities or shall fix a record date
for the determination of holders of any class of securities entitled to receive
any such Options or Convertible Securities, then the maximum number of shares
(as set forth in the instrument relating thereto without regard to any
provisions contained therein for a subsequent adjustment of such number) of
Common Stock issuable upon the exercise of such Options or, in the case of
Convertible Securities and Options therefor, the conversion or exchange of such
Convertible Securities, shall be deemed to be Additional Shares of Common Stock
issued as of the time of such issue or, in case such a record date shall have
been fixed, as of the close of business on such record date; provided, that
Additional Shares of Common Stock shall not be deemed to have been issued
unless the consideration per share (determined pursuant to Subparagraph
2(b)(iv) hereof) of such Additional Shares of Common Stock would be less than
the lesser of Nine Dollars and Fifty Cents ($9.50) or the Conversion Price in
effect on the date of and immediately prior to such issue, or such record date,
as the case may be; and provided further, that in any such case in which
Additional Shares of Common Stock are deemed to be issued:
(A) no further adjustment in the Conversion Price shall be
made upon the subsequent issue of Convertible Securities or shares of
Common Stock upon the exercise of such Options or conversion or exchange of
such Convertible Securities;
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<PAGE> 51
(B) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase in the
consideration payable to the corporation, or decrease in the number of
shares of Common Stock issuable, upon the exercise, conversion or exchange
thereof, the Conversion Price computed upon the original issue thereof (or
upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increase or
decrease becoming effective, be recomputed to reflect such increase or
decrease insofar as it affects such Options or the rights of conversion
or exchange under such Convertible Securities;
(C) upon the expiration of any such Options or any rights of
conversion or exchange under such Convertible Securities which shall not
have been exercised, the Conversion Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall, upon such
expiration, be recomputed as if:
(I) in the case of Convertible Securities or Options
for Common Stock the only Additional Shares of Common Stock issued were
the shares of Common Stock, if any, actually issued upon the exercise
of such Options or the conversion or exchange of such Convertible
Securities and the consideration received therefor was the
consideration actually received by the corporation for the issue of all
such Options, whether or not exercised, plus the consideration actually
received by the corporation upon such exercise, or for the issue of all
such Convertible Securities which were actually converted, if any,
actually received by the corporation upon such conversion or exchange,
and
(II) in the case of Options for Convertible Securities
only the Convertible Securities, if any, actually issued upon the
exercise thereof were issued at a time of issue of such Options, and
the consideration received by the corporation for the Additional Shares
of Common Stock deemed to have been then issued was the consideration
actually received by the corporation for the issue of all such Options,
whether or not exercised, plus the consideration deemed to have been
received by the corporation (determined pursuant to Subparagraph
2(d)(iv) upon the issue of
7
<PAGE> 52
the Convertible Securities with respect to which such Options were
actually exercised;
(D) no readjustment pursuant to Clause (B) or (C) above
shall have the effect of increasing the Conversion Price to an amount
which exceeds the lower of (i) the Initial Conversion Price, (ii) the
Conversion Price on the original adjustment date, or (iii) the Conversion
Price that would have resulted from any other issuance of Additional
Shares of Common Stock between the original adjustment date and such
readjustment date;
(E) in the case of any Options which expire by their terms
not more than thirty (30) days after the date of issue thereof, no
adjustment of the Conversion Price shall be made until the expiration of
exercise of all such Options, whereupon such adjustment shall be made in
the same manner provided in Clause (C) above; and
(F) if such record date shall have been fixed and such
Options or Convertible Securities are not issued on the date fixed
therefor, the adjustment previously made in the Conversion Price which
became effective on such record date shall be cancelled as of the close of
business on such record date, and thereafter the Conversion Price shall be
adjusted pursuant to this Subparagraph 2(d)(ii) as of the actual date of
their issuance.
(2) Stock Dividends and Subdivisions. In the event the
corporation at any time or from time to time after the Original Issue Date
shall declare or pay any dividend or other distribution on the Common
Stock payable in Common Stock, or effect a subdivision of the outstanding
Common Stock (by reclassification or otherwise then by payment of a
dividend in Common Stock), then and in any such event, Additional Shares
of Common Stock shall be deemed to have been issued:
(A) in the case of any such dividend, immediately after the
close of business on the record date for the determination of holders of
any class of securities entitled to receive such dividend, or
(B) in the case of any such subdivision, at the close of
business on the date immediately prior to the date upon which such
corporate action becomes effective.
8
<PAGE> 53
If such record date shall have been fixed and such dividend
shall not have been fully paid on the date fixed therefor, the adjustment
previously made in the Conversion Price which became effective on such
record date shall be cancelled as of the close of business on such record
date, and thereafter the Conversion Price of each of the respective series
shall be adjusted pursuant to this Subparagraph 2(d)(ii) as of the time of
actual payment of such dividend.
(iii) Adjustment of Conversion Price Upon Issuance of
Additional Shares of Common Stock.
(1) No Adjustment of Conversion Price. No adjustment in the
Conversion Price of Series D Preferred Stock shall be made in respect to
the issuance of Additional Shares of Common Stock or otherwise, unless the
consideration per share for an Additional Share of Common Stock issued or
deemed to be issued by the corporation is less than the lesser of Nine
Dollars and Fifty Cents ($9.50) or the Conversion Price in effect on the
date of, and immediately prior to, the issue of such Additional Shares.
(2) Adjustment Mechanics. In the event the corporation
shall issue Additional Shares of Common Stock (including Additional Shares
of Common Stock deemed to be issued pursuant to Subparagraph 2(d)(ii))
without consideration or for a consideration per share less than the
lesser of Nine Dollars and Fifty Cents ($9.50) or the Conversion Price
in effect on the date of and immediately prior to such issue, then and in
such event, such Conversion Price shall be adjusted, concurrently with
such issue, to a price (calculated to the nearest cent) equal to the
consideration per share for which such Additional Shares of Common Stock
are issued; provided however, that the Conversion Price shall not be so
reduced at such time if the amount of such reduction would be an amount
less than Five Cents ($0.05), but any such amount shall be carried forward
and reduction with respect thereto made at the time of and together with
any subsequent reduction which, together with such amount and any other
amount or amounts so carried forward, shall aggregate Five Cents ($0.05)
or more. In no event shall such adjustments cause the Conversion Price to
exceed the Initial Conversion Price.
(3) Additional Adjustments. If, after the Original Issue
Date, the corporation effects a stock split or reverse stock split of the
outstanding shares of Common Stock, declares or pays any dividend or other
9
<PAGE> 54
distribution on the Common Stock payable in Common Stock, or effects a
subdivision or combination of the outstanding shares of Common Stock (by
reclassification or otherwise), then all references to the Initial
Conversion Price and Nine Dollars and Fifty Cents ($9.50), respectively, as
used throughout this Section 2(d), shall, concurrently with the
effectiveness of such event, be proportionately adjusted upward or downward
(to the nearest cent) to reflect the effect of such event. Such adjustments
shall similarly be made for any subsequent events of the types described in
this Subparagraph 2(d)(iii)(3).
(iv) Determination of Consideration. For purposes of this
Paragraph 2(d), the consideration received by the corporation for the issue of
any Additional Shares of Common stock shall be computed as follows:
(1) Cash and Property. Such consideration shall:
(A) insofar as it consists of cash, be computed at
the aggregate amount of cash received by the corporation excluding
amounts paid or payable for accrued interest or accrued dividends;
(B) insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such issue,
as determined in good faith by the Board of Directors; and
(C) in the event Additional Shares of Common Stock
are issued together with other shares or securities or other assets of
the corporation for consideration which covers both, be the proportion
of such consideration so received, computed as provided in Clauses (A)
and (B) above, as determined in good faith by the Board of Directors.
(2) Options and Convertible Securities. The consideration per
share received by the corporation for Additional Shares of Common Stock
deemed to have been issued pursuant to Subparagraph 2(d)(ii)(1), relating
to Options and Convertible Securities, shall be determined by dividing
(x) the total amount, if any, received or receivable by
the corporation as consideration for the issue of such Options or
Convertible Securities,
10
<PAGE> 55
plus the minimum aggregate amount of additional consideration (as set
forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such
consideration) payable to the corporation upon the exercise of such
Options or the conversion or exchange of such Convertible Securities
and the conversion or exchange of such Convertible Securities, by
(y) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such
number) issuable upon the exercise of such Options or the conversion
or exchange of such Convertible Securities.
(3) Certain Dividends and Distributions. In the event that
the corporation at any time or from time to time after the Original Issue
Date shall make or issue, or fix a record date for the determination of
holders of Common stock entitled to receive a dividend or other
distribution payable in additional shares of Common Stock, without payment
of any consideration by such holder for the additional shares of Common
Stock, then and in each such event the maximum number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number) of Common
Stock issuable in payment of such dividend or distribution shall be deemed
to be issued and outstanding as of the time of such issuance or, in the
event such a record date shall have been fixed, as of the close of business
on such record date. In each such event the Conversion Price shall be
reduced as of the time of such issuance or, in the event such a record date
shall have been fixed, as of the close of business on such a record date,
to a price (calculated to the nearest cent) determined by multiplying the
Conversion Price by a fraction
(x) the numerator of which shall be the total number of
shares of Common Stock issued and outstanding or deemed to be issued
and outstanding immediately prior to the time of such issuance or the
close of business on such record date; and
(y) the denominator of which shall be the total number of
shares of Common Stock issued and outstanding or deemed to be issued
and outstanding immediately prior to the time of such issuance or
11
<PAGE> 56
the close of business on such record date plus the number of shares of
Common Stock issuable in payment of such dividend or distribution;
provided, however, that if such record date shall have been fixed and
such dividend is not fully paid or if such distribution is not fully
made on the date fixed therefor, the Conversion Price shall be
recomputed accordingly as of the close of business on such record date
and thereafter the Conversion Price shall be adjusted pursuant to this
Subparagraph 2(d)(iv)(3) as of the time of actual payment of such
dividend or distribution.
(v) Adjustment for Combinations or Subdivision of Common
Stock. In the event the outstanding shares of Common Stock shall be combined
or subdivided, by reclassification or otherwise, into a lesser or greater
number of shares of Common Stock, the Conversion Price in effect immediately
prior to such combination or subdivision shall, concurrently with the
effectiveness of such combination or subdivision, be proportionately increased
in the case of a combination or decreased in the case of a subdivision.
(vi) Adjustment for Reorganization or Reclassification of
Common Stock. In the case of any reorganization or reclassification of the
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value, or as a result of a
subdivision or combination), each share of Series D Preferred Stock shall
thereafter be convertible into the kind and amount of shares of stock and other
securities and property receivable upon such reorganization or reclassification
that would have been received had the Series D Preferred Stock been converted
into Common Stock on the date of such event.
(vii) Adjustments of Initial Conversion Price.
Notwithstanding anything herein to the contrary, for purposes of making
adjustments of the Conversion Price pursuant to this Section 2(d) all
adjustments shall be made on the basis of an Initial Conversion Price of $12.90
per share; provided, however, that in the event of a conversion effected by the
Company pursuant to Section 6.2(c) of the Debenture Purchase Agreement, then
all prior adjustments to the Conversion Prices (with respect to the shares so
converted) shall be recalculated and further adjusted on the basis of an
Initial Conversion Price of $12.00 per share.
(e) No Impairment. The corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger,
12
<PAGE> 57
dissolution, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the corporation but will at all times in
good faith assist in the carrying out of all the provisions of this Section 2
and in the taking of all such action as may be necessary or appropriate in
order to protect the Conversion Rights of the holders of the Series D Preferred
Stock against impairment.
(f) Certificate as to Adjustment. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this Section 2,
the corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series D Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The corporation shall, upon the written request at any
time of any holder of Series D Preferred Stock, furnish or cause to be
furnished to such holder a like certificate setting forth (i) such adjustments
and readjustments, (ii) the Conversion Price at the time in effect, and (iii)
the number of shares of Common Stock and the amount, if any, of other property
which at the time would be received upon the conversion of Series D Preferred
Stock.
(g) Notices of Record Date. In the event of any taking by the
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend which is the same as cash dividends paid
in previous quarters) or other distribution, the corporation shall mail to each
holder of Series D Preferred Stock at least ten (10) days prior to the date
specified for the taking of a record, a notice specifying the date on which any
such record is to be taken for the purpose of such dividend or distribution.
(h) Common Stock Reserved. The corporation shall reserve and keep
available out of its authorized but unissued Common Stock such number of shares
of Common Stock as shall from time to time be sufficient to effect conversion
of the Series D Preferred Stock.
3. Consent to Redemption by Series D Preferred Stockholders. Each
holder of Series D Preferred Stock shall be deemed to have consented, for
purposes of Sections 502, 503 and 506 of the California General Corporations
Law, to distributions made by the corporation in connection with the repurchase
of shares of Common Stock issued to or held by
13
<PAGE> 58
employees or consultants upon termination of their employment or services
pursuant to agreements providing for the right of said repurchase between the
corporation and such persons.
4. Voting Rights. Except as otherwise required by law, the holders of
Series D Preferred Stock and the holders of the Common Stock shall be entitled
to notice of any shareholders' meeting and to vote upon any matter submitted to
a shareholder for a vote, on the following basis:
(a) Holders of Common Stock shall have one (1) vote per share;
(b) Holders of Series D Preferred Stock shall have that number of
votes per share as is equal to the number of shares of Common Stock into which
each such share of Series D Preferred Stock held by such holder is then
convertible; and
(c) Neither the holders of the Common Stock nor the holders of the
Series D Preferred Stock shall be entitled to vote separately on any matters
as a class (except to the extent otherwise provided herein or in the Debenture
Purchase Agreement).
5. Dividend Rights. (a) The holders of Series D Preferred Stock
which resulted from a conversion of the Debentures, which conversion was
effected by the corporation in accordance with the provisions of Section 6.2(c)
of the Debenture Purchase Agreement, shall be entitled to receive in each
fiscal year, out of assets at that time legally available therefor, mandatory
cumulative dividends in cash at the rate of one dollar and twenty-six cents
($1.26) per share of Series D Preferred Stock per annum (subject to adjustment
for stock splits and stock dividends), payable quarterly on January 1, April 1,
July 1, and October 1 of each year; provided, however, that if the corporation
fails to pay such dividend on any shares of the Series D Preferred Stock within
10 business days of such payment dates, the dividend rate shall increase to one
dollar and fifty cents ($1.50) per annum until all unpaid dividends are paid in
full (at which time the aforesaid dividend rate shall again become effective;
provided, further that the dividend rights provided for in this Section 5(a)
shall terminate on September 30, 1991, at which time the dividend rights set
forth in Section 5(b) below shall become applicable to all shares of Series D
Preferred Stock. Dividends shall accrue on each share from the date of their
original issuance, and shall accrue from day to day, whether or not earned or
declared. Such dividends shall be cumulative so that, except as provided in
Section 5(c) below, if such dividends in respect of any previous or current
14
<PAGE> 59
quarterly dividend period, at the annual rate specified above, shall not have
been paid, the deficiency shall first be fully paid before any dividend or
other distribution shall be made on or declared and set apart for any other
series of Preferred Stock of the corporation or Common Stock. Any accumulation
of dividends on the Series D Preferred Stock shall not bear interest.
(b) The holders of Series D Preferred Stock which resulted from a
conversion of the Debentures, which conversion was effected by a holder of such
Debenture, in accordance with the provisions of Section 6.2(b) of the Debenture
Purchase Agreement, shall be entitled to receive in any fiscal year, when and if
declared by the Board of Directors, out of assets at any time legally available
therefor, dividends at the rate declared by the Board of Directors from time to
time on each outstanding share of Series D Preferred Stock, payable in
preference and priority to any dividend on any shares of Common Stock.
(c) Unless full dividends on the Series D Preferred Stock for all
past dividend periods and the then current dividend periods shall have been
paid: (A) no dividend whatsoever (other than a dividend payable solely in
Common Stock) shall be paid or declared, and no distribution shall be made, on
any other series of Preferred Stock of the corporation or Common Stock, and (B)
no shares of Common Stock or other series of Preferred Stock shall be
purchased, redeemed or acquired by the corporation, except for purchases of
Common Stock for employees whose employment with the Company has been
terminated, and no funds shall be paid into or set aside or made available for
sinking fund for the purchase, redemption or acquisition thereof.
(d) Notwithstanding anything herein to the contrary, the holders of
Series D Preferred Stock may initiate and maintain an action in either law or
equity in any appropriate forum in order to enforce the provisions of this
Section 5, including, without limitation, the seeking of specific performance
of the payment of dividends as herein specified.
6. Covenants. So long as any shares of Series D Preferred Stock
or any of the Debentures shall be outstanding (as adjusted for all subdivisions
and combinations), the corporation shall not, without first obtaining the
affirmative vote or written consent of not less than a majority of such
outstanding shares of Series D Preferred Stock:
(a) amend or repeal any provision of, or add any provision to, the
corporation's Certificate of
15
<PAGE> 60
Incorporation or By-Laws if such action would alter or change the preferences,
rights or privileges of, or the restrictions provided for the benefit of, the
Series D Preferred Stock;
(b) reclassify any Common Stock into shares having any preference or
priority as to dividends or assets superior to any such preference or priority
of the Series D Preferred Stock; or
(c) pay or declare any dividend other than a stock dividend or
distribution on any shares of Common Stock or apply any of its assets to the
redemption, retirement, purchase or other acquisition directly or indirectly,
through subsidiaries or otherwise, of any shares of Common Stock except from
employees of the corporation upon termination of employment or pursuant to the
exercise of a contractual right of first refusal.
7. Residual Rights. All rights accruing to the outstanding shares of
the corporation not expressly provided for to the contrary in this or any other
Certificate of Designation of Series Preferred Shares shall be vested in the
Common Stock.
IN WITNESS WHEREOF, said Health Data Sciences Corporation has caused this
Certificate to be signed by Janice E. Ticich, its Vice President, and attested
by Charles S. Grobe, its Secretary, this 29th day of September, 1987.
HEALTH DATA SCIENCES CORPORATION
By: /s/ Janice E. Ticich
----------------------------
JANICE E. TICICH,
Vice President
ATTEST:
By: /s/ Charles S. Grobe
---------------------------
CHARLES S. GROBE, Secretary
16
<PAGE> 61
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
JANICE E. TICICH, being first duly sworn, deposes and says that:
She is the Vice President of the Delaware corporation herein mentioned;
the matters set forth herein are true to her own knowledge; and the signature
purporting to be the signature of said Janice E. Ticich is her genuine
signature.
/s/ Janice E. Ticich
----------------------------------
JANICE E. TICICH
Subscribed and sworn to before me on September 29, 1987.
/s/ Lois A. Lara
----------------------------------
[SEAL] NOTARY PUBLIC
State of California
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
CHARLES S. GROBE, being first duly sworn, deposes and says that:
He is the Secretary of the Delaware corporation herein mentioned; the
matters set forth herein are true to his own knowledge; and the signature
purporting to be the signature of said Charles S. Grobe is his genuine
signature.
/s/ Charles S. Grobe
----------------------------------
CHARLES S. GROBE
Subscribed and sworn to before me on September 29, 1987.
/s/ Suzanne R. Taix
----------------------------------
NOTARY PUBLIC
State of California
[SEAL]
17
<PAGE> 62
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF DESIGNATIONS OF
PREFERENCES AND RIGHTS OF
SERIAL PREFERRED SHARES OF
HEALTH DATA SCIENCES CORPORATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware:
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation (as amended) of said corporation, and pursuant
to the provisions of Section 151 of Title 8 of the Delaware Code of 1953, said
Board of Directors, acting pursuant to a unanimous written consent dated as of
November 25, 1987, adopted a resolution providing for the decrease in the
number of authorized shares of the Serial Preferred Shares - Series D Stock,
which resolution is as follows:
WHEREAS, this corporation on September 30, 1987, filed with
the Office of the Delaware Secretary of State a Certificate of
Designations of Preferences and Rights of Serial Preferred Shares of
this corporation, relating to one million two hundred fifty thousand
(1,250,000) shares of this corporation's Serial Preferred Stock, Series
D Stock (the "Series D Stock"); and
WHEREAS, this corporation desires to decrease the number of
authorized shares constituting the Series D Stock;
RESOLVED, that the number of authorized shares of Series D
Stock be and is hereby reduced to five hundred eighty-three thousand
three hundred thirty-four (583,334) shares and,
<PAGE> 63
accordingly, that the number of shares constituting the Series D Stock
as set forth in Paragraph A of the Certificate of Designations of
Preferences and Rights relating to the Series D Stock is hereby
amended to read "five hundred eighty-three thousand three hundred
thirty-four (583,334) shares";
RESOLVED FURTHER, that such Certificate of Designations of
Preferences and Rights, as amended hereby, is hereby confirmed,
approved and ratified in all respects; and
RESOLVED FURTHER, that the officers of this corporation are
hereby authorized and directed to: (i) execute and file with the
Office of the Delaware Secretary of State a Certificate of Amendment
of Certificate of Designations of Preferences and Rights of Serial
Preferred Shares, which shall set forth a statement that the decrease
authorized herein has been authorized and directed by the Board of
Directors; and (ii) take such other actions as may be necessary or
advisable to give effect to the foregoing resolutions.
IN WITNESS WHEREOF, said Health Data Sciences Corporation has caused
this Certificate to be signed by Janice E. Ticich, its Vice President, and
attested by Charles S. Grobe, its Secretary, this 27th day of November, 1987.
HEALTH DATA SCIENCES CORPORATION
By: /s/ Janice E. Ticich
--------------------------------
JANICE E TICICH,
Vice President
ATTEST:
By: /s/ Charles S. Grobe
------------------------
CHARLES S. GROBE,
Secretary
<PAGE> 64
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
JANICE E. TICICH, being the first duly sworn, deposes and says that:
She is the Vice President of the Delaware corporation herein mentioned;
the matters set forth herein are true to her own knowledge; and the signature
purporting to be the signature of said Janice E. Ticich is her genuine
signature.
/s/ Janice E. Ticich
-----------------------------------
JANICE E. TICICH
Subscribed and sworn to before me on Nov. 29, 1987.
/s/ Lois A. Lara
-----------------------------------
NOTARY PUBLIC
State of California
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
CHARLES S. GROBE, being the first duly sworn, deposes and says that:
He is the Secretary of the Delaware corporation herein mentioned; the
matters set forth herein are true to his own knowledge; and the signature
purporting to be the signature of said Charles S. Grobe is his genuine
signature.
/s/ Charles S. Grobe
-----------------------------------
CHARLES S. GROBE
Subscribed and sworn to before me on 11-27, 1987.
/s/ Suzanne R. Taix
-----------------------------------
NOTARY PUBLIC
State of California
[SEAL]
-3-
<PAGE> 65
CERTIFICATE OF DESIGNATIONS OF
PREFERENCES AND RIGHTS OF
SERIES E PREFERRED STOCK OF
HEALTH DATA SCIENCES CORPORATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware:
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation (as amended) of the corporation, and pursuant
to the provisions of Section 151 of Title 8 of the Delaware Code of 1953, the
Board of Directors, acting pursuant to a unanimous written consent, adopted
resolutions providing for the designations, preferences and relative,
participating, optional or other rights, and the qualifications, limitations or
restrictions thereof, of an additional series of Preferred Stock, which
resolution is as follows:
WHEREAS, the Certificate of Incorporation of the corporation provides
for a class of shares known as Preferred Stock, issuable from time to time in
one or more series; and
WHEREAS, the Board of Directors of the corporation is authorized,
within the limitations and restrictions stated in the Certificate of
Incorporation, to determine or alter the rights, preferences, privileges, and
restrictions granted to or imposed upon any wholly unissued series of the
Preferred Stock, to fix the number of shares constituting any such series, and
to determine the designation thereof; and
WHEREAS, the corporation has issued shares of Series A, Series B,
Series C and Series D Preferred Stock; and the Board of Directors desires, to
fix the terms of an additional series of Preferred Stock;
RESOLVED, that the Board of Directors hereby fixes and determines the
designation of, the number of shares constituting, and the rights, preferences,
privileges, and restrictions relating to, an additional series of Preferred
Stock as follows:
A. The additional series of Preferred Stock shall be designated
"Series E Preferred Stock" and the number of shares constituting the Series E
Preferred Stock shall be 830,000 shares.
B. The rights, preferences, privileges and restrictions of, and
other matters relating to, the Series E Preferred Stock are as follows:
<PAGE> 66
1. Liquidation Rights.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the affairs of the corporation ("Liquidation")
during the period from the date of the issuance of the Series E Preferred
Stock, which shall be issued on a single date ("Original Issue Date") through
the first anniversary of the Original Issue Date, the assets of the corporation
available for distribution to stockholders after the payment or provision for
the payment of all claims against the corporation has been made in accordance
with applicable law ("Net Assets"), shall be distributed as follows: the
holders of the Series E Preferred Stock shall be first entitled to receive
$10.00 per share, plus any declared and unpaid dividends; thereafter, the
holders of all other shares of Preferred Stock shall then be entitled to
receive an amount equal to their respective liquidation preferences, plus any
declared and unpaid dividends; the holders of the Common Stock shall then be
entitled to receive $4.00 per share, plus any declared and unpaid dividends; and
the holders of the Series E Preferred Stock and Common Stock shall then be
entitled to receive all remaining Net Assets ratably based on the number of
shares of stock each holder owns compared to the total number of shares of
Series E Preferred Stock and Common Stock then outstanding.
(b) In the event of any Liquidation during the period commencing
immediately after the first anniversary of the Original Issue Date through the
second anniversary of the Original Issue Date, the Net Assets shall be
distributed as follows: the holders of the Series E Preferred Stock shall first
be entitled to receive $10.00 per share, plus any declared and unpaid dividend;
thereafter, the holders of all other shares of Preferred Stock shall then be
entitled to receive an amount equal to their respective liquidation
preferences, plus any declared and unpaid dividends; the holders of the Common
Stock shall then be entitled to receive $3.00 per share, plus any declared and
unpaid dividend; and the holders of the Series E Preferred Stock and Common
Stock shall then be entitled to receive all remaining Net Assets ratably based
on the number of shares of stock each holder owns compared to the total number
of shares of the Series E Preferred Stock and Common Stock then outstanding.
(c) In the event of any Liquidation during the period commencing
immediately after the second anniversary of the Original Issue Date, the Net
Assets shall be distributed as follows: the holders of the Series E Preferred
Stock shall first be entitled to receive $10.00 per share, plus any declared
and unpaid dividends; thereafter, the holders of all other shares of Preferred
Stock shall then be entitled to receive an amount equal to their respective
liquidation preferences, plus any declared and unpaid dividends; and the
holders of the Common Stock shall then be entitled to receive all remaining Net
Assets.
(d) Any of the following events shall also be deemed to
-2-
<PAGE> 67
be a Liquidation for purposes of the Series E Preferred Stock, but not for any
other series of Preferred Stock or for any other purpose: the consolidation of
the corporation with another corporation (other than a wholly-owned subsidiary);
the merger of the corporation into another corporation (other than a
wholly-owned subsidiary); the sale of all or substantially all of the assets of
the corporation (other than to a wholly-owned subsidiary); the sale of shares
representing a majority of the outstanding voting stock of the Corporation in a
single transaction or in a series of related transactions to any person or
persons who are not employees and/or directors of the corporation on the date of
the filing of this Certificate of Designations with the Delaware Secretary of
State, members of their families or trusts of which they are trustees,
beneficiaries or remaindermen ("Sale of Control Event"). Upon any such event,
the value of the corporation shall be determined by the Board of Directors in
good faith, and such value shall be deemed to be equal to the Net Assets. The
distributions to the holders of the Series E Preferred Stock pursuant to
subparagraphs (a), (b) or (c) above shall be made in the form of cash and/or the
same securities to be received by the holders of the Common Stock in connection
with such consolidation or merger or the same securities to be received by the
corporation in connection with such sale of assets or the same securities to be
received by the sellers in connection with such sale of shares. Such securities
shall be deemed to have the value determined by the Board of Directors in good
faith. For purposes of this subparagraph (d), "outstanding voting stock" shall
mean the outstanding shares of Common Stock, plus the number of shares of Common
Stock into which any outstanding shares of Preferred Stock are at the time
convertible.
2. Conversion.
The holders of the Series E Preferred Stock shall have conversion
rights as follows (the "Conversion Rights"):
(a) Optional Conversion. Each share of Series E Preferred Stock
shall be convertible, without the payment of any additional consideration by the
holder and at the option of the holder at any time after the Original Issue
Date, at the office of the corporation or any transfer agent for the Series E
Preferred Stock, into such number of fully paid and non-assessable shares of
Common Stock as is determined by dividing $10.00 by the Conversion Price (as
hereinafter defined). The Conversion Price shall initially be $10.00, and shall
be subject to adjustment as hereinafter provided. "Conversion Price" shall mean
the Conversion Price from time to time in effect after giving effect to all
prior adjustment(s).
(b) Automatic Conversion. Each share of Series E Preferred Stock
shall automatically be converted into shares of Common Stock at the Conversion
Price upon the closing date of a sale of any of the Common Stock in a firm
commitment underwritten public offering pursuant to a registration statement on
Form S-1 (or any successor or reasonably equivalent
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forms) under the Securities Act of 1933, as amended (other than the
registration of a stock option, purchase, thrift, reinvestment, compensation or
similar plan or of securities issued or issuable pursuant to such plan, or of
securities issued or issuable in connection with a merger of the Corporation or
the acquisition of securities or other assets by the Corporation) (an "IPO"),
at a per share purchase price of not less than $15.00 and an aggregate purchase
price of not less than $7,000,000.
(c) Mechanics of Conversion. No fractional shares of Common Stock
shall be issued. In lieu thereof, the corporation shall pay cash equal to such
fraction multiplied by the Conversion Price. Before the corporation shall be
obligated to issue certificates for shares of Common Stock upon conversion
pursuant to Subparagraph 2(a) or upon automatic conversion pursuant to
Subparagraph 2(b), the holder shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the corporation or any transfer agent
for the Series E Preferred Stock and shall give written notice to the
corporation at such office that he elects to convert the same and shall state
therein his name or the name or names of his nominees in which he wishes the
certificate(s) for shares of Common Stock to be issued (except that no such
written notice of intent to convert shall be necessary in the event of
automatic conversion pursuant to Subparagraph 2(b)). The corporation shall, as
soon as practicable thereafter, issue and deliver at such office to the holder,
or to his nominee or nominees, a certificate or certificates for the number of
shares of Common Stock to which he shall be entitled as aforesaid, together
with cash in lieu of any fraction of a share. The conversion shall be deemed to
have been made immediately prior to the close of business on the date of the
surrender of the shares to be converted (except that in the case of an
automatic conversion pursuant to Subparagraph 2(b), the conversion shall be
deemed to have been made immediately prior to the closing of the sale referred
to in Subparagraph 2(b) and the person or persons entitled to receive the
shares of Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock on that
date.
(d) Adjustment of Conversion Price upon Event of Liquidity.
"Event of Liquidity" shall mean an IPO, the consolidation of the corporation
with another corporation (other than a wholly-owned subsidiary), the merger of
the corporation into another corporation (other than a wholly-owned
subsidiary), the sale of all or substantially all of the assets of the
corporation (other than to a wholly-owned subsidiary) or a Sale of Control
Event. If an Event of Liquidity occurs after November 1, 1995, and before
November 1, 1996, the Conversion Price shall become $9.00. If an Event of
Liquidity occurs on or after November 1, 1996, the Conversion Price shall
become $8.00.
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(e) Adjustments to Conversion Price:
(1) Special Definitions. For purposes of this
Subparagraph 2(e), the following definitions shall apply:
(1) "Option" shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire either Common
Stock or Convertible Securities.
(2) "Convertible Securities" shall mean any
evidences of indebtedness, shares (other than Common Stock and Series
E Preferred Stock) or other securities directly or indirectly
convertible into or exchangeable for Common Stock.
(3) "Additional Shares of Common Stock" shall
mean all shares of Common Stock issued (or, pursuant to Subparagraph
2(e)(ii), deemed to be issued) by the corporation after the Issuance
Date, other than shares of Common Stock issued or issuable:
(A) upon conversion of shares of
Series B Preferred Stock, Series C Preferred Stock and Series E
Preferred Stock;
(B) to officers, directors or
employees of, or consultants to, the corporation pursuant to a stock
purchase or option plan or other employee stock incentive program
(collectively, the "Plans") approved by the Board of Directors, not to
exceed 800,000 shares in the aggregate;
(C) by way of dividend or other
distribution on shares of Common Stock excluded from the definition of
Additional Shares of Common Stock by the foregoing Clauses (A) and (B)
or this Clause (C).
(ii) Issue of Securities Deemed Issue of
Additional Shares of Common Stock.
(1) Options and Convertible
Securities. In the event the corporation at any time after the Original Issue
Date shall issue any Options or Convertible Securities or shall fix a record
date for the determination of holders of any class of securities entitled to
receive Options or Convertible Securities, then the number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number) of Common Stock
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefore, the conversion or exchange of such
Convertible Securities, shall be deemed to be Additional Shares of Common Stock
issued as of the time of such issue or, in case such a record date shall have
been fixed, as of the close of business on such record date; provided, that
Additional Shares of Common Stock shall not be deemed to have been issued
unless the consideration per share (determined pursuant to Subparagraph
2(e)(iv)) of such Additional Shares of Common Stock would be
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less than the Conversion Price prior to such issue, or such record date, as the
case may be; prior to such issue, or such record date, as the case may be; and
provided further, that in any such case in which Additional Shares of Common
Stock are deemed to be issued:
(A) no further adjustment in the
Conversion Price shall be made upon the subsequent issue of
Convertible Securities or shares of Common Stock upon the exercise of
such Options or conversion or exchange of such Convertible Securities;
(B) if such Options or Convertible
Securities by their terms provide, with the passage of time or
otherwise, for any increase in the consideration payable to the
corporation, or decrease in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange thereof, the
Conversion Price computed upon the original issue thereof (or upon the
occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease
becoming effective, be recomputed to reflect such increase or decrease
insofar as it affects such Options or the rights of conversion or
exchange under such Convertible Securities;
(C) upon the expiration of any such
Options or any rights of conversion or exchange under such Convertible
Securities which shall not have been exercised, the Conversion Price
computed upon the original issue thereof (or upon the occurrence of a
record date with respect thereto), and any subsequent adjustments
based thereon, shall, upon such expiration, be recomputed as if:
(I) in the case of
Convertible Securities or Options for Common Stock the only
Additional Shares of Common Stock issued were the shares of
Common Stock, if any, actually issued upon the exercise of
such Options or the conversion or exchange of such
Convertible Securities and the consideration received
therefor was the consideration actually received by the
corporation for the issue of all such Options, whether or not
exercised, plus the consideration actually received by the
corporation upon such exercise, or for the issue of all such
Convertible Securities which were actually converted, if any,
actually received by the corporation upon such conversion of
exchange, and
(II) in the case of Options
for Convertible Securities only the Convertible Securities,
if any, actually issued upon the exercise thereof were issued
at the time of issue of such Options, and the consideration
received by the corporation for the Additional Shares of
Common
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<PAGE> 71
Stock deemed to have been then issued was the consideration
actually received by the corporation for the issue of all
such Options, whether or not exercised, plus the
consideration deemed to have been received by the corporation
(determined pursuant to Subparagraph 2(e)(iv)) upon the issue
of the Convertible Securities with respect to which such
Options were actually exercised;
(D) no readjustment pursuant to Clause (B) or
(C) above shall have the effect of increasing the Conversion
Price to an amount which exceeds the lowest of (i) $10.00,
(ii) the Conversion Price on the original adjustment date, or
(iii) the Conversion Price that would have resulted from any
other issuance of Additional Shares of Common Stock between
the original adjustment date and such readjustment date;
(E) in the case of any Options which expire by
their terms not more than 30 days after the date of issue
thereof, no adjustment of the Conversion Price shall be made
until the expiration of exercise of all such Options,
whereupon such adjustment shall be made in the same manner
provided in Clause (C) above; and
(F) if such record date shall have been fixed
and such Options or Convertible Securities are not issued on
the date fixed therefor, the adjustment previously made in
the Conversion Price which became effective on such record
date shall be cancelled as of the close of business on such
record date, and thereafter the Conversion Price shall be
adjusted pursuant to this Subparagraph 2(e)(ii) as of the
actual date of their issuance.
(2) Stock Dividends and Stock Splits. In the event the
corporation at any time or from time to time after the
Original Issue Date shall declare or pay any dividend or
other distribution on the Common Stock payable in Common
Stock, or effect a stock split or reverse stock split of the
outstanding Common Stock, then and in any such event,
Additional Shares of Common Stock shall be deemed to have
been issued:
(A) in the case of any such dividend,
immediately after the close of business on the record date
for the determination of holders of any class of securities
entitled to receive such dividend, or
(B) in the case of any such split, at the close
of business on the date immediately prior
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to the effective date of such split.
If such record date shall have been fixed and such
dividend shall not have been fully paid on the date fixed
therefor, the adjustment previously made in the Conversion
Price which became effective on such record date shall be
cancelled as of the close of business on such record date,
and thereafter the Conversion Price shall be adjusted
pursuant to this Subparagraph 2(e)(ii) as of the time of
actual payment of such dividend.
(iii) Adjustment of Conversion Price upon
Issuance of Additional Shares of Common Stock.
(1) No Adjustment of Conversion Price.
No adjustment in the Conversion Price shall be made in
respect to the issuance of Additional Shares of Common Stock,
unless the consideration per share for any Additional Share
of Common Stock issued or deemed to be issued by the
corporation is less than the Conversion Price in effect
immediately prior to the issue of such Additional Shares.
(2) Adjustment Mechanics. In the event
that before November 1, 1997, the corporation shall issue
Additional Shares of Common Stock (including Additional
Shares of Common Stock deemed to be issued pursuant to
Subparagraph 2(e)(ii)) for a consideration per share less
than the lesser of $10.00 or the Conversion Price in effect
on the date of and immediately prior to such issue, then and
in such event, such Conversion Price shall be adjusted,
concurrently with such issue, to a price (calculated to the
nearest cent) equal to the consideration per share for which
such Additional Shares of Common Stock are issued; provided
however, that the Conversion Price shall not be so reduced at
such time if the amount of such reduction would be an amount
less than $0.05, but any such amount shall be carried forward
and reduction with respect thereto made at the time of and
together with any subsequent reduction which, together with
such amount and any other amount or amounts so carried
forward, shall aggregate $0.05 or more. In no event shall
such adjustments cause the Conversion Price to exceed $10.00.
(3) Additional Adjustments. If, the
corporation effects a stock split or reverse stock split of
the outstanding shares of Common Stock, declares or pays any
dividend or other distribution on the Common Stock payable in
Common Stock, then all references herein to $15.00, $10.00,
$9.00 and $8.00 shall, concurrently with the effective date
of such event, be proportionately adjusted (to the
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nearest cent) to reflect the effect of such event as described in
Subparagraphs 2(e)(iv)(3) and 2(a)(v). Such adjustments shall
similarly be made for any subsequent events of the types described
in this Subparagraph 2(e)(iii)(3).
(iv) Determination of Consideration. The consideration
received by the corporation for the issue of any Additional Shares of Common
Stock shall be computed as follows:
(1) Cash and Property. Such consideration shall:
(A) insofar as it consists of cash, be computed
at the aggregate amount of cash received by the corporation
excluding amounts paid or payable for accrued interest or accrued
dividend;
(B) insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such
issue, as determined in good faith by the Board of Directors; and
(C) in the event Additional Shares of Common
Stock are issued together with other shares of securities or other
assets of the corporation for consideration which covers both, be
the proportion of such consideration so received, computed as
provided in clauses (A) and (B) above, as determined in good faith
by the Board of Directors.
(2) Options and Convertible Securities. The
consideration per share received by the corporation for Additional
Shares of Common Stock deemed to have been issued pursuant to
Subparagraph 2(e)(ii)(1) relating to Options and Convertible
Securities, shall be determined by dividing
(x) the total amount, if any, received or
receivable by the corporation as consideration for the issue of
such Options or Convertible Securities, plus the minimum aggregate
amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such
consideration) payable to the corporation upon the exercise of
such Options or the conversion or exchange of such Convertible
Securities and the conversion or exchange of such Convertible
Securities, by
(y) the maximum number of shares of Common Stock
(as set forth in the instruments relating thereto, without regard
to any provision
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contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such Options or the conversion or
exchange of such Convertible Securities.
(3) Certain Dividends and Distributions. In the event
that the corporation at any time or from time to time after the
Original Issue Date shall make or issue, or fix a record date for the
determination of holders of Common Stock entitled to receive a dividend
or other distribution payable in additional shares of Common Stock,
without payment of any consideration by such holder for the additional
shares of Common Stock, then and in each such event the number of
shares of Common Stock issuable in payment of such dividend or
distribution shall be deemed to be issued and outstanding as of the
time of such issuance or, in the event such a record date shall have
been fixed, as of the close of business on such record date. In each
such event the Conversion Price shall be reduced as of the time of such
issuance or, in the event such a record date shall have been fixed, as
of the close of business on such record date, to a price (calculated to
the nearest cent) determined by multiplying the Conversion Price by a
fraction
(x) the numerator of which shall be the total
number of shares of Common Stock issued and outstanding or deemed
to be issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date; and
(y) the denominator of which shall be the total
number of shares of Common Stock issued and outstanding or deemed
to be issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the
number of shares of Common Stock issuable in payment of such
dividend or distribution; provided, however, that if such record
date shall have been fixed and such dividend is not fully paid or
if such distribution is not fully made on the date fixed therefor,
the Conversion Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the
Conversion Price shall be adjusted pursuant to Subparagraph
2(e)(iv)(3) as of the time of actual payment of such dividend or
distribution.
(v) Adjustment for Stock Splits or Reverse Stock Splits. In
the event of a stock split or reverse stock split of the outstanding shares of
Common Stock, the Conversion Price shall, concurrently with the effectiveness
thereof, be proportionately increased in the case of a reverse stock split or
decreased in the case of a stock split.
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(vi) Adjustment for Reorganization or Reclassification of
Common Stock. In the case of any reorganization or reclassification of the
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par values), each share of Series E Preferred Stock shall
thereafter be convertible into the kind and amount of shares of stock and other
securities and property receivable upon such reorganization or reclassification
that would have been received had the Series E Preferred Stock been converted
into Common Stock on the date of such event.
(f) No Impairment. The corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed hereunder by the corporation. The
corporation will at all times in good faith assist in the carrying out of all
the provisions of this Paragraph 2 and in the taking of all such action as may
be necessary or appropriate in order to protect the Conversion Rights of the
holders of the Series E Preferred Stock against impairment.
(g) Certificate as to Adjustment. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this Paragraph
2, the corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series E Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The corporation shall, upon the written request at any
time of any holder of Series E Preferred Stock, furnish or cause to be
furnished to such holder a like certificate setting forth (i) such adjustments
and readjustments, (ii) the Conversion Price at the time in effect, and (iii)
the number of shares of Common Stock and the amount, if any, of other property
which at the time would be received upon the conversion of Series E Preferred
Stock.
(h) Notices of Record Date. In the event of any taking by the
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend which is the same as cash dividends paid
in previous quarters) or other distribution, the corporation shall mail to each
holder of Series E Preferred Stock at least 10 days prior to the date
specified for the taking of a record, a notice specifying the date on which any
such record is to be taken for the purpose of such dividend or distribution.
(i) Common Stock Reserved. The corporation shall reserve and keep
available out of its authorized but unissued Common Stock such number of shares
of Common Stock as shall from time to time be sufficient to effect conversion
of the Series E
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Preferred Stock.
3. Optional Redemption.
The Series E Preferred Stock may be redeemed at the option of the
corporation in whole or in part at any time and from time to time at a price
of $10.00 per share, plus any declared and unpaid dividends ("Redemption
Price"), as follows:
(a) Notice of redemption ("Redemption Notice") shall be mailed by
first-class mail, postage prepaid, to each holder of record, at the holder's
address appearing on the books of the corporation. The Redemption Notice shall
be mailed no less than 15 days prior to the date fixed for redemption
("Optional Redemption Date") and shall state: the Optional Redemption Date; the
number of shares to be redeemed; the name and address of a bank where
certificates for the shares to be redeemed are to be surrendered against
payment of the Redemption Price. The corporation shall deposit the aggregate
Redemption Price at such bank on or before the Optional Redemption Date with
instructions to pay the Redemption Price against surrender of the certificates
representing the shares to be redeemed. Upon such deposit, as of the Optional
Redemption Date the shares described in the Redemption Notice shall cease to be
deemed outstanding and the holders thereof shall be entitled to no rights as
holders of the shares and shall be entitled solely to the receipt of the
Redemption Price against surrender to the bank of the certificate representing
the shares to be redeemed, if necessary.
(b) If on the Optional Redemption Date the Series E Preferred Stock is
held of record by more than one person, and if fewer than all outstanding
shares are to be redeemed, the shares to be redeemed shall be redeemed pro rata
from all holders in proportion to the number of shares held by each such holder
(with adjustments to avoid redemption of fractional shares). If fewer than all
of the shares held by any holder are redeemed, a new certificate shall be
issued to the holder representing the unredeemed shares.
4. Mandatory Redemption.
(a) The corporation shall redeem the following numbers of shares of
Series E Preferred Stock on the following dates ("Scheduled Redemption Dates"),
at the Redemption Price ("Scheduled Redemptions"):
<TABLE>
<CAPTION>
Number of Shares Scheduled
To Be Redeemed Redemption Date
---------------- ---------------
<S> <C>
29,350 November 1, 1993
65,083 November 1, 1994
134,833 November 1, 1995
</TABLE>
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<PAGE> 77
224,908 November 1, 1996
375,826 November 1, 1997
If the corporation redeems any shares of Series E Preferred Stock pursuant to
Paragraph 3, such redemption shall be deemed to be a prepayment applicable to
the next Scheduled Redemption to the extent that the shares redeemed do not
exceed the shares to be redeemed on the next Scheduled Redemption Date; to the
extent that such redemption exceeds the shares to be redeemed on the next
Scheduled Redemption Date, such redemption shall be deemed to be a Scheduled
Redemption made in reverse chronological order as set forth above. If the
corporation redeems any shares of Series E Preferred Stock pursuant to
Paragraph 4(d), such redemption shall be deemed to be a Scheduled Redemption
made in reverse chronological order as set forth above.
(b) On the first day of each month, commencing with November 1, 1993, the
corporation shall deposit into a separate bank account of the corporation an
amount equal to 1/24th of the aggregate Redemption Price payable on the next
Scheduled Redemption Date. On each Scheduled Redemption Date, commencing with
November 1, 1994, the corporation shall apply the funds in said account to the
Scheduled Redemption to be made on that date. If the corporation makes an
optional redemption pursuant to Paragraph 3: (i) the funds in said account at
the time of such optional redemption, not to exceed the aggregate Redemption
Price paid pursuant to such optional redemption and deemed to be a prepayment
applicable to the next Scheduled Redemption pursuant to Paragraph 4(a), shall
be transferred from said account into the corporation's general account; and
(ii) the corporation may discontinue making the monthly deposits described in
the first sentence of this Paragraph 4(b) until the first day of the month
following the next Scheduled Redemption Date if the funds in said account are
at least equal to the aggregate Redemption Price payable on the next Scheduled
Redemption Date.
(c) If on the Scheduled Redemption Date the outstanding shares of Series
E Preferred Stock are held of record by more than one person, the shares to be
redeemed on the Scheduled Redemption Date shall be redeemed pro rata from all
holders in proportion to the number of shares held by each holder (with
adjustments to avoid redemption of fractional shares). On each Scheduled
Redemption Date, each holder of shares to be redeemed on that date shall be
entitled to receive the Redemption Price upon surrender to the corporation of
the certificates representing the shares to be redeemed. If fewer than all
shares held by any holder are redeemed, a new certificate shall be issued to
the holder representing the unredeemed shares, if necessary.
(d) On a date ("Cash Flow Redemption Date") which is no later than 30
days after the date of the opinion of the
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corporation's independent certified public accountants with respect to the
corporation's audited financial statements for the preceding fiscal year,
commencing with the year ending September 30, 1993, the corporation shall
additionally redeem shares of Series E Preferred Stock at the Redemption Price
by applying a portion of its cash flow for the preceding year ("Cash Flow"), as
described below. If such redemption occurs later than 5 business days after the
date of such opinion, the payment of the Redemption Price shall be accompanied
by the payment of interest on the Redemption Price at the rate of 10.5% per
annum for the period from the sixth business day following the date of such
opinion through the date of the payment of the Redemption Price. Cash Flow in
respect of any fiscal year shall mean cash flow as defined in FASB Statements
95, 102 and 104 as the same may be amended or modified from time to time, less
any net increase in the deferred revenue account on the consolidated balance
sheet of the corporation as of the end of the fiscal year, or plus any net
decrease in the deferred revenue account on the balance sheet, each as
determined in accordance with generally accepted accounting principles and as
reported in the corporation's audited financial statements for that year.
(i ) If the Cash Flow is $1,000,000 or less, an amount
equal to 60% thereof shall be applied to the redemption of Series E Preferred
Stock;
(ii) If the Cash Flow is between $1,000,001 and
$2,000,000, an amount equal to 65% thereof shall be applied to the redemption
of Series E Preferred Stock;
(iii) If the Cash Flow is between $2,000,001 and
$3,000,000, 70% thereof shall be applied to the redemption of Series E
Preferred Stock;
(iv) If the Cash Flow is above $3,000,000, 75% thereof
shall be applied to the redemption of Series E Preferred Stock.
(e) If on any Cash Flow Redemption Date the Series E Preferred
Stock is held of record by more than one person and fewer than all outstanding
shares are to be redeemed, the shares to be redeemed shall be redeemed pro rata
from all holders in proportion to the number of shares held by each holder
(with adjustments to avoid redemption of fractional shares. On each Cash Flow
Redemption Date, each holder of shares to be redeemed on that date shall be
entitled to receive the Redemption Price upon surrender to the corporation of
the certificates representing the shares to be redeemed. If fewer than all
shares held by any holder are redeemed, a new certificate shall be issued to
the holder representing the unredeemed shares.
(f) Within 90 days after the occurrence of any of the events
described in Exhibit "A" attached hereto, the
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corporation shall redeem all of the Series E Preferred Stock at the Redemption
Price.
(g) If the corporation shall redeem any Series E Preferred Stock
pursuant to Paragraph 3 or Subparagraph 4(d), the corporation shall be entitled
to a credit against the aggregate Redemption Price payable on the next Scheduled
Redemption Date(s) in an amount equal to 0.025767% times the aggregate
Redemption Price paid by the corporation pursuant to the redemption under
Paragraph 3 or Subparagraph 4(d) times the number of days from the date of such
redemption through November 1, 1997. If on such next Scheduled Redemption Date,
the Series E Preferred Stock is held of record by more than one person and if
fewer than all outstanding shares are to be redeemed, such credit shall be
applied pro rata to the Redemption Prices payable to all holders.
5. Consent to Redemption.
Each holder of Series E Preferred Stock shall be deemed to have
consented, for purposes of Sections 502, 503 and 506 of the California General
Corporations Law, to extent that they may apply to the corporation, to
distributions made by the corporation in connection with the repurchase of
shares of Common Stock issued to or held by employees or consultants upon
termination of their employment or services pursuant to agreements providing
for the right of said repurchase between the corporation and such persons.
6. Voting Rights.
The holders of the Series E Preferred Stock shall be entitled to notice
of any shareholders' meeting and to vote upon any matter submitted to
shareholders for a vote, on the following basis:
(a) Each holder of Series E Preferred Stock shall have that number of
votes per share as is equal to the number of shares of Common Stock into which
each such share of Series E Preferred stock held by such holder is then
convertible; and
(b) Unless holders of a majority of the Series E Preferred Stock have
voted therefor or consented thereto in writing, the corporation shall not:
(i) Make any adverse change in the rights, preferences,
privileges of the Series E Preferred Stock;
(ii) Increase the authorized number of shares of Series E Preferred
Stock;
(iii) Issue any shares having a liquidation or dividend preference
which is on a parity with or senior to the liquidation or dividend preferences
of the Series E Preferred Stock, or having more than one vote per share;
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(iv) Issue any shares which are automatically convertible into
Common Stock under the circumstance described in Subparagraph 2(b) if the per
share purchase price and aggregate purchase price relating to such automatic
conversion is at or above the per share and aggregate prices specified in
Subparagraph 2(b)(i);
(v) Issue any shares which can be redeemed while the Series E
Preferred Stock is outstanding;
(vi) Consolidate with another corporation (other than a
wholly-owned subsidiary), merge into another corporation (other than a
wholly-owned subsidiary) or sell all or substantially of the assets of the
corporation (other than to an wholly-owned subsidiary), unless as a result of
such transaction the holders of the Series E Preferred Stock would be entitled
receive an amount at least equal to the Redemption Price per share or
securities having an aggregate fair market value at least equal to the
Redemption Price per share and either entitled to the benefits of Rule 145(d) or
issued pursuant to a hearing before the California Commissioner of Corporations
of the type referred to in Section 3(a)(10) of the Securities Act of 1933;
(vii) Redeem, purchase or otherwise acquire any shares of any
series of Preferred Stock (other than the Series E Preferred Stock) or any
Common Stock (other than purchases of Common Stock from former employees for
consideration not to exceed the fair market value of such shares).
(c) Except as provided above, the holders of the Series E Preferred
Stock shall not be entitled to vote separately on any matters as a class.
7. Dividend Rights.
The holders of Series E Preferred Stock shall be entitled to receive in
any fiscal year, when and if declared by the Board of Directors, out of assets
at any time legally available therefor, a dividend of $0.95 on each outstanding
share, payable in preference and priority to any dividend on any shares of any
other series of Preferred Stock or any Common Stock.
8. Residual Rights.
All rights accruing to the outstanding shares of the corporation not
expressly provided for to the contrary in this or any other Certificate of
Designations of any other series of Preferred stock shall be vested in the
Common Stock.
-16-
<PAGE> 81
IN WITNESS WHEREOF, said Health Data Sciences Corporation has caused this
Certificate to be signed by Ralph Korpman, its President, and attested by Janice
E. Ticich, its Assistant Secretary, this 22 day of July, 1993.
HEALTH DATA SCIENCES CORPORATION
BY: /s/Ralph Korpman
----------------------------------------
Ralph Korpman,
President
ATTEST:
By: /s/ Janice E. Ticich
-------------------------------------
Janice E. Ticich, Assistant Secretary
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
RALPH KORPMAN, being first duly sworn, deposes and says that:
He is the President of the Delaware corporation herein mentioned; the
matters set forth herein are true to his own knowledge; and the signature
purporting to be the signature of said Ralph Korpman is his genuine signature.
/s/Ralph Korpman
-------------------------------------------
RALPH KORPMAN
Subscribed and sworn to before me on July 22, 1993.
/s/Susan Saly
-------------------------------------------
NOTARY PUBLIC
State of California
[SEAL]
-17-
<PAGE> 82
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
JANICE E. TICICH, being first duly sworn, deposes and says that:
She is the Assistant Secretary of the Delaware corporation herein
mentioned; the matters set forth herein are true to her own knowledge; and the
signature purporting to be the signature of said Janice E. Ticich is her
genuine signature.
/s/Janice E. Ticich
-------------------------------------------
JANICE E. TICICH
Subscribed and sworn to before me on July 22, 1993.
/s/Susan Saly
-------------------------------------------
NOTARY PUBLIC
State of California
[SEAL]
-18-
<PAGE> 83
EXHIBIT "A"
-----------
1. Breach by the corporation of any representation or warranty made by
the corporation in a certain agreement, dated August 5, 1993, between Berkeley
Atlantic Income Limited ("Berkeley") and the corporation (the "Exchange
Agreement") which is not cured for a period of 30 days after the corporation's
receipt of a written notice of such breach by Berkeley to the corporation;
2. Breach by the corporation of any affirmative convenant (including,
without limitation, any financial convenant) of the Exchange Agreement which is
not cured for a period of 30 days after the corporation's receipt of written
notice of such a breach by Berkeley to the corporation;
3. The acceleration of $500,000 or more in indebtedness of the
corporation for borrowed money and the non-payment thereof, for a period of 30
days after the date of such acceleration, or judgment against the corporation
in excess of $500,000 (other than a judgment which the corporation is appealing
and has bonded, if necessary, or a judgment which the corporation has paid in
full or is paying in accordance with its terms; provided further, however, that
as to civil action No. SACV 92-338-GLT pending in the United States District
Court for the Central District of California (the Corporation vs. Robert
Servian), a judgment against the Corporation shall be deemed to be in excess of
$500,000 only if the judgment is for past monies due in excess of $500,000, and
shall not be deemed to be in excess of $500,000, if it is a judgment pursuant to
which the Corporation may be liable for amounts which may aggregate in excess of
$500,000 depending on its future sales or collections);
4. Voluntary bankruptcy, involuntary bankruptcy (which proceedings are
not terminated within 45 days of filing), assignment for the benefit of
creditors, or the appointing of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the corporation or of all
or substantially all of its property, or ordering the winding up or liquidation
of its affairs, or the admission by it in writing of the failure generally by it
to pay its debts as they become due and its willingness to be adjudicated
bankrupt;
5. A final judgment of a court of competent jurisdiction holding
invalid any of the material rights, preferences or privileges of the Series E
Preferred Stock; or
6. Failure by the corporation to make any other payment otherwise due
to Berkeley pursuant to any written agreement between Berkeley and the
corporation (other than the Exchange Agreement) for a period of 10 days after
the corporation's receipt of written notice of such failure by Berkeley to the
corporation.
<PAGE> 84
CERTIFICATE OF ELIMINATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware:
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by the
Certificate of Incorporation, as amended, of said corporation, and pursuant to
the provisions of Section 151 of the Delaware General Corporation Law, said
Board of Directors, acting pursuant to a unanimous written consent, adopted a
resolution providing for the elimination of 9,411 shares of the Serial
Preferred Shares - Series A stock of said corporation, which resolution is as
follows:
WHEREAS, this corporation on August 26, 1983, filed with the Office
of the Delaware Secretary of State a Certificate of Designations of
Preferences and Rights of Serial Preferred Shares of this corporation (the
"Certificate of Designations"), relating to Nine Thousand Four Hundred
Eleven (9,411) shares of this corporation's Preferred Stock designated
"Serial Preferred Shares, Series A" (the "Series A Stock"); and
WHEREAS, no shares of the Series A Stock remain outstanding and none
will be issued subject to the Certificate of Designations;
RESOLVED, that there be eliminated from the Certificate of
Incorporation of this corporation all matters set forth in the Certificate
of Designations relating to the Series A Stock and that the previously
authorized shares of Series A Stock be restored to the status of
authorized, unissued shares of this corporation's Serial Preferred Stock;
<PAGE> 85
RESOLVED FURTHER, that the officers of this corporation are hereby
authorized and directed to: (i) execute and file with the office of the
Delaware Secretary of State a Certificate of Elimination, which will set
forth this resolution certifying that the elimination of the Series A
Stock has been authorized and directed by the Board of Directors; and (ii)
take such other actions as may be necessary or advisable to give effect to
the foregoing resolutions.
IN WITNESS WHEREOF, said HEALTH DATA SCIENCES CORPORATION has caused this
Certificate to be signed by Ralph A. Korpman, its President and attested by
Janice E. Ticich, its Assistant Secretary this 22 day of July, 1993.
HEALTH DATA SCIENCES CORPORATION
By: /s/Ralph A. Korpman
----------------------------------------
RALPH A. KORPMAN, President
ATTEST:
By: /s/Janice E. Ticich
-------------------------------------
JANICE E. TICICH, Assistant Secretary
-2-
<PAGE> 86
CERTIFICATE OF ELIMINATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware:
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by the
Certificate of Incorporation, as amended, of said corporation, and pursuant to
the provisions of Section 151 of the Delaware General Corporation Law, said
Board of Directors, acting pursuant to a unanimous written consent, adopted a
resolution providing for the elimination of 583,334 shares of the Serial
Preferred Shares - Series D stock of said corporation, which resolution is as
follows:
WHEREAS, this corporation on September 30, 1987, filed with the
Office of the Delaware Secretary of State a Certificate of Designations of
Preferences and Rights of Serial Preferred Shares of this corporation (the
"Certificate of Designations"), relating to One Million Two Hundred Fifty
Thousand (1,250,000) shares of this corporation's Preferred Stock
designated "Serial Preferred Stock, Series D" (the "Series D Stock"); and
WHEREAS, this corporation on December 9, 1987, filed with the office
of the Delaware Secretary of State an Amendment of Certificate of
Designations of Preferences and Rights of Series Preferred Shares of this
corporation, whereby the number of authorized shares of Series D Stock was
reduced to Five Hundred Eighty-Three Thousand Three Hundred Thirty-Four
(583,334) shares; and
<PAGE> 87
WHEREAS, no shares of the Series D Stock remain outstanding and
none will be issued subject to the Certificate of Designations, as
amended;
RESOLVED, that there be eliminated from the Certificate of
Incorporation of this corporation all matters set forth in the Certificate
of Designations, as amended, relating to the Series D Stock and that the
previously authorized shares of Series D Stock be restored to the status
of authorized, unissued shares of this corporation's Serial Preferred
Stock;
RESOLVED FURTHER, that the officers of this corporation are hereby
authorized and directed to: (i) execute and file with the office of the
Delaware Secretary of State a Certificate of Elimination, which will set
forth this resolution certifying that the elimination of the Series D
Stock has been authorized and directed by the Board of Directors; and (ii)
take such other actions as may be necessary or advisable to give effect
to the foregoing resolutions.
IN WITNESS WHEREOF, said HEALTH DATA SCIENCES CORPORATION has caused
this Certificate to be signed by Ralph A. Korpman, its President and attested
by Janice E. Ticich, its Assistant Secretary this 22 day of July, 1993.
HEALTH DATA SCIENCES CORPORATION
By: /s/Ralph A. Korpman
----------------------------------------
RALPH A. KORPMAN, President
ATTEST:
By: /s/Janice E. Ticich
-------------------------------------
JANICE E. TICICH, Assistant Secretary
-2-
<PAGE> 88
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATIONS OF PREFERENCES
AND RIGHTS OF SERIAL PREFERRED SHARES OF
HEALTH DATA SCIENCES CORPORATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under and by virtue of the General Corporation Law of the State Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That, by unanimous written consent of the Board of Directors of
the Corporation, a resolution was duly adopted setting forth a proposed
amendment of the Certificate of Designations of Preferences and Rights of
Serial Preferred Shares of the Corporation relating to the Corporation's Series
B Preferred Stock, which Certificate of Designations was filed with Office of
the Delaware Secretary of State on April 12, 1984. In its unanimous written
consent, the Board of Directors declared the proposed amendment to be advisable
and called for the stockholders of the Corporation to consider the proposed
amendment. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that clause (B) of subparagraph 2(d)(i)(4) of the
Certificate of Designations of Preferences and Rights of the Corporation's
Series B Preferred Stock be amended to read in its entirety as follows:
(B) to officers, directors or employees of, or
consultants to, the corporation pursuant to an employment agreement,
a stock purchase or option plan or other employee stock incentive
program (collectively, the "Plans") approved by the Board of
Directors and the holders of (i) a majority of the shares of the
corporation's capital stock present in person or by proxy at a
meeting of the corporation's stockholders and entitled to vote
thereon, or (ii) a majority of the corporation's capital stock
entitled to act thereon executing written consents to action in lieu
meeting; or
SECOND: That, thereafter, pursuant to a resolution of the Board of
Directors of the Corporation, an annual meeting of the stockholders of the
Corporation was duly called and held, upon notice in accordance with Section
222 of the General Corporation law of the State
<PAGE> 89
of Delaware, at which meeting the necessary number of shares as required by
statute were voted in favor of the amendment.
THIRD: That the amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said HEALTH DATA SCIENCES CORPORATION has caused
this Certificate to be signed by Peter Gladkin, its President, and attested by
Janice E. Ticich, its Secretary, this 10th day of February, 1995.
BY: /s/ Peter Gladkin
------------------------------------
Peter Gladkin, President
ATTEST: /s/ Janice E. Ticich
----------------------------
Janice E. Ticich, Secretary
-2-
<PAGE> 90
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATIONS OF PREFERENCES
AND RIGHTS OF SERIAL PREFERRED SHARES OF
HEALTH DATA SCIENCES CORPORATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware
(the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That, by unanimous written consent of the Board of Directors of
the Corporation, a resolution was duly adopted setting forth a proposed
amendment of the Certificate of Designations of Preferences and Rights of Serial
Preferred Shares of the Corporation relating to the Corporation's Series C
Preferred Stock, which Certificate of Designations was filed with Office of the
Delaware Secretary of State on August 28, 1985. In its unanimous written
consent, the Board of Directors declared said amendment to be advisable and
called for the stockholders of the Corporation to consider the proposed
amendment. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that clause (B) of subparagraph 2(d)(i)(4)
of the Certificate of Designations of Preferences and Rights
of the Corporation's Series C Preferred Stock be amended to
read in its entirety as follows:
(B) to officers, directors or employees of,
or consultants to, the corporation pursuant to an
employment agreement, a stock purchase or option
plan or other employee stock incentive program
(collectively, the "Plans") approved by the Board of
Directors and the holders of (i) a majority of the
shares of the corporation's capital stock present in
person or by proxy at a meeting of the corporation's
stockholders and entitled to vote thereon, or (ii) a
majority of the corporation's capital stock entitled
to act thereon executing written consents to action
in lieu meeting; or
SECOND: That, thereafter, pursuant to a resolution of the Board of
Directors of the Corporation, an annual meeting of the stockholders of the
Corporation was duly called and held, upon notice in accordance with Section
222 of the General Corporation law of the State
<PAGE> 91
of Delaware, at which meeting the necessary number of shares as required by
statute were voted in favor of the amendment.
THIRD: That the amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said HEALTH DATA SCIENCES CORPORATION has caused
this Certificate to be signed by Peter Gladkin, its President, and attested by
Janice E. Ticich, its Secretary, this 10th day of February, 1995.
BY: /s/ Peter Gladkin
------------------------------------
Peter Gladkin, President
ATTEST: /s/ Janice E. Ticich
----------------------------
Janice E. Ticich, Secretary
-2-
<PAGE> 92
CERTIFICATE OF DESIGNATIONS OF
PREFERENCES AND RIGHTS OF
SERIAL PREFERRED SHARES OF
HEALTH DATA SCIENCES CORPORATION
HEALTH DATA SCIENCES CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware:
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation (as amended) of said corporation, and pursuant
to the provisions of Section 151 of Title 8 of the Delaware Code of 1953, said
Board of Directors, by a unanimous written consent dated May 24, 1995, adopted
a resolution providing for the designations, preferences and relative,
participating, optional or other rights, and the qualifications, limitations or
restrictions thereof, of the Series F Preferred Stock, which resolution is as
follows:
WHEREAS, the Certificate of Incorporation of this corporation provides
for a class of shares known as Preferred Stock, issuable from time to time in
one or more series; and
WHEREAS, the Board of Directors of this corporation is authorized,
within the limitations and restrictions stated in the Certificate of
Incorporation, to determine or alter the rights, preferences, privileges, and
restrictions granted to or imposed upon any wholly unissued series of the
Preferred Stock, to fix the number of shares constituting any such series, and
to determine the designation thereof; and
WHEREAS, this corporation has previously issued shares of Series A,
Series B, Series C, Series D and Series E Preferred Stock, respectively, of
which shares of only Series B, Series C and Series E Preferred Stock are
currently outstanding, and the
<PAGE> 93
Board of Directors of this corporation desires, pursuant to its authority as
aforesaid, to fix the terms of an additional series of said Preferred Stock and
the number of shares constituting and the designation of such series;
RESOLVED, that the Board of Directors hereby fixes and determines the
designation of, the number of shares constituting, and the rights, preferences,
privileges, and restrictions relating to, said additional series of Preferred
Stock as follows:
A. This additional series of Preferred Stock shall be designated "Serial
Preferred Stock, Series F," (the "Series F Preferred Stock") and the number of
shares constituting such Series F Preferred Stock shall be One Million Eight
Hundred Eighteen Thousand One Hundred and Eighty One (1,818,181) shares, par
value $0.10 per share.
B. The rights, preferences, privileges and restrictions of, and other
matters relating to, the Series F Preferred Stock are as follows:
1. Certain Definitions. Unless the context otherwise requires,
the terms defined in this paragraph 1 shall have, for all purposes of this
resolution, the meanings herein specified:
"Common Stock" shall mean all shares now or hereafter authorized of any class
of common stock of the corporation and any other stock of the corporation,
howsoever designated, authorized after the Issue Date, which has the right
(subject always to the prior rights of any class or series of preferred stock)
to participate in the distribution of the assets and earnings of the
corporation without limit as to per share amount.
"Conversion Date" shall have the meaning set forth in subparagraph 3(d)(3).
"Conversion Price" shall have the meaning set forth in subparagraph 3(c).
"Conversion Stock" shall mean shares of the corporation's Common Stock, par
value $0.10 per share; provided that if there is a change such that the
securities issuable upon conversion of the Series F Preferred Stock are issued
by an entity other than the corporation or there is a change in the class of
securities so issuable, then the term "Conversion Stock" shall mean the
security issuable upon conversion of the Series F Preferred Stock if such
security is issuable in shares, or shall mean the units in which such security
is issuable, if such security is not issuable in shares.
2
<PAGE> 94
"Convertible Securities" shall have the meaning set forth in subparagraph
3(e)(2)(A).
"Current Market Price" shall have the meaning set forth in subparagraph 3(e)(7).
"Issue Date" shall mean the date that shares of Series F Preferred Stock are
first issued by the corporation.
"Junior Stock" shall mean, for purposes of paragraphs 6 and 7 below, the Common
stock and any other class or series of stock of the corporation issued after
the Issue Date not entitled to receive any dividends unless all dividends
required to have been paid or declared and set apart for payment on the Series
F Preferred Stock shall have been so paid or declared and set apart for payment
and, shall mean, for purposes of paragraphs 2 and 7 below, any class or series
of stock of the corporation issued after the Issue Date not entitled to receive
any assets upon the liquidation, dissolution, or winding up of the affairs of
the corporation until the Series F Preferred Stock shall have received the
entire amount to which such stock is entitled upon such liquidation,
dissolution or winding up.
"Net Assets" shall have the meaning set forth in paragraph 2.
"Option" shall have the meaning set forth in subparagraph 3(e)(2)(A).
"Organic Change" shall have the meaning set forth in subparagraph 3(e)(5).
"Parity Stock" shall mean, for purposes of paragraphs 6 and 7 below, any other
class or series of stock of the corporation entitled to receive payment of
dividends on a parity with the Series F Preferred Stock and, shall mean, for
purposes of paragraphs 2 and 7 below, any other class or series of stock of the
corporation entitled to receive assets upon the liquidation, dissolution or
winding up of the affairs of the corporation on a parity with the Series F
Preferred Stock and shall include the corporation's Series B Preferred Stock and
Series C Preferred Stock.
"Preferred Stock" shall mean the Series F Preferred Stock and the Parity Stock.
"Senior Stock" shall mean any class or series of stock of the corporation
issued after the Issue Date entitled to receive payment of dividends and assets
upon the liquidation, winding up or dissolution of the corporation in
preference and priority to the Series F Preferred Stock and shall include the
corporation's Series E Preferred Stock.
3
<PAGE> 95
"Series F Preferred Stock" shall have the meaning set forth in resolution A,
above.
2. Liquidation Rights.
In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the corporation, the assets of the corporation
available for distribution to stockholders after the payment or provision for
the payment of all claims against the corporation has been made in accordance
with applicable law ("Net Assets"), shall be distributed as follows: the holders
of the Senior Stock shall first be entitled to receive an amount equal to their
liquidation preference, plus any declared and unpaid dividends; thereafter the
holders of the Series F Preferred Stock shall be entitled to receive $16.50 per
share, plus any declared or accrued and unpaid dividends and the holders of the
Parity Stock shall concurrently be entitled to receive their respective
liquidation preferences, plus any declared and unpaid dividends; and finally,
the holders of the Common Stock and the Senior Stock shall then be entitled to
receive all remaining Net Assets ratably in accordance with their liquidation
preferences.
If the assets or surplus funds to be distributed to the holders of the
Series F Preferred Stock are insufficient to permit the payment to such holders
and to the holders of any Parity Stock of their full preferential amount after
paying the holders of the Senior Stock, the assets and surplus funds legally
available for distribution shall be distributed ratably among the holders of
the Series F Preferred Stock and the holders of any other such Parity Stock in
proportion to the full preferential amount each such holder is otherwise
entitled to receive.
The corporation shall mail written notice of such liquidation,
dissolution or winding up, not less than 30 days prior to the payment date
stated therein, to each record holder of Series F Preferred Stock.
3. Conversion. The holders of the Series F Preferred
Stock shall have conversion rights as follows (the "Conversion Rights"):
a. Right to Convert. Each share of Series F Preferred
Stock shall be convertible, without the payment of any additional consideration
by the holder thereof and at the option of the holder thereof, at any time and
from time to time after the Issue Date, at the office of the corporation or any
transfer agent for the Series F Preferred Stock, at the Conversion Price per
share determined pursuant to this paragraph 3.
4
<PAGE> 96
b. Automatic Conversion. Each share of Series F Preferred Stock shall
automatically be converted, without any further act of the corporation or its
stockholders, into fully paid and nonassessable shares of Conversion Stock at
the Conversion Price on the closing date of a sale of any of the Common Stock in
a firm commitment underwritten public offering pursuant to a registration
statement on Form S-1 (or any successor or reasonably equivalent forms) under
the Securities Act of 1933, as amended (other than the registration of a stock
option, purchase, thrift, reinvestment, compensation or similar plan or of
securities issued or issuable pursuant to such plan, or of securities issued or
issuable in connection with a merger of the corporation or the acquisition of
securities or other assets by the corporation) (an "IPO"), at a per share offer
price which is at least 150% of the Conversion Price then in effect and which
has an aggregate price of not less than $7,000,000.
c. Conversion Price. The shares of Series F Preferred Stock shall be
converted into the number of shares of Conversion Stock determined by dividing
(i) the sum of $16.50 per Share, plus any accrued and unpaid dividends on such
shares of Series F Preferred Stock, by (ii) the Conversion Price in effect on
the Conversion Date. The Conversion Price shall initially be $16.50, and shall
be subject to adjustment, as hereinafter provided. "Conversion Price" shall
mean the Conversion Price from time to time in effect after giving effect to all
prior adjustments.
d. Mechanics of Conversion.
(1) No Fractional Shares. No fractional shares of Conversion Stock
shall be issued upon conversion of the Series F Preferred Stock. In lieu of
any fractional shares to which the holder would otherwise be entitled, the
corporation shall pay cash equal to such fraction multiplied by the Conversion
Price then in effect.
(2) Notice of Conversion. Upon the occurrence of any of the events
specified in subparagraph 3(b), the outstanding shares of Series F Preferred
Stock shall be converted automatically upon surrender of the certificates
representing such shares to the corporation or its transfer agent Upon a
conversion, the Series F Preferred Stock holder shall surrender the certificate
or certificates therefor, duly endorsed, at the office of the corporation or of
any transfer agent for the Series F Preferred Stock and shall give written
notice to the corporation at such office that he elects to convert the same
and shall state therein his name or the name or names of his nominees in which
he wishes the certificate or certificates for shares of Common Stock to be
issued (except that no such written notice of intent to convert shall be
necessary in the event of an automatic conversion pursuant to subparagraph
3(b)).
5
<PAGE> 97
(3) Conversion Date. Conversion shall be deemed to have been effected on
the date when delivery of notice of an election to convert and certificates for
shares is made or on the date of the occurrence of the event specified in
subparagraph 3(b), as the case may be, and such date is referred to herein as
the "Conversion Date."
(4) Certificates; Payment. As soon as possible after a conversion has
been effected (but in any event within five business days, the corporation
shall deliver to the converting holder):
(A) a certificate or certificates representing the number of
shares of Conversion Stock issuable by reason of such conversion in such name
or names and such denomination or denominations as the converting holder has
specified;
(B) payment in an amount equal to all accrued dividends with
respect to each share converted, which have not been paid prior thereto;
(C) a certificate representing any shares of Series F Preferred
Stock which were represented by the certificate or certificates delivered to
the corporation in connection with such conversion but which were not converted.
(5) Dividends. If the corporation is not permitted under applicable
law to pay any portion of the accrued dividends on the Series F Preferred Stock
being converted, the corporation shall pay such dividends to the converting
holder as soon thereafter as funds of the corporation are legally available for
such payment. At the request of any such converting holder, the corporation
shall provide such holder with written evidence of its obligation to such
holder.
e. Adjustment to Conversion Price. In order to prevent dilution of the
conversion rights granted under this paragraph 3, the Conversion Price shall be
subject to adjustment from time to time pursuant to this subparagraph 3(e).
(1) Antidilution. If and whenever on or after the Issue Date, the
corporation issues or sells, or in accordance with subparagraph 3(c)(2) is
deemed to have issued or sold, any share of Common Stock for a consideration
per share less than the Conversion Price in effect immediately prior to such
time, then forthwith upon such issue or sale the Conversion Price shall be
reduced to the lowest net price per share at which any such share of Common
Stock has been issued or sold or is deemed to have been issued or sold.
6
<PAGE> 98
(2) Effect on Conversion Price of Certain Events. For purposes of
determining the adjusted Conversion Price under subparagraph 3(e)(1), the
following shall be applicable:
(A) Issuance of Rights or Options. If the corporation in any
manner grants any right or option to subscribe for or to purchase Common Stock
or any stock or other securities convertible into or exchangeable for Common
Stock (such rights or options being herein called "Options" and such
convertible or exchangeable stock or securities being herein called
"Convertible Securities") (other than (x) Options granted to employees and
directors of the corporation issued pursuant to the corporation's 1995 Stock
Option Plan for Key Employees or other than up to 500,000 additional Options
issued to employees and directors pursuant to future stock option plans which
have been approved by the non-employee stockholders holding a majority of the
corporation's outstanding capital stock so long as the exercise price of such
Options is equal to the fair market value of the Common Stock at the time of
issuance of the Option, provided that, in connection with such 500,000
additional Options only, Options issued to Dr. Ralph Korpman shall qualify for
the exception to Conversion Price adjustment contained herein only to the
extent that such Options have been approved by a majority of the outside
directors of the corporation's Board of Directors and (y) shares of Common
Stock issued on conversion of the Series B, C, E or F Preferred Stock) and the
lowest price per share for which any one share of Common Stock is issuable upon
the exercise of any such Convertible Security is less than the Conversion Price
in effect immediately prior to the time of the granting of such Option, then
such share of Common Stock shall be deemed to have been issued and sold by the
corporation at the time of the granting of such Options for such price per
share. For purposes of this subparagraph, the "lowest price per share for
which any one share of Common Stock is issuable" shall be equal to the sum of
the lowest amounts of consideration (if any) received or receivable by the
corporation with respect to any one share of Common Stock upon the granting of
the Option, upon exercise of the Option and upon conversion or exchange of the
Convertible Security. No further adjustment of the Conversion Price shall be
made upon the actual issue of such Common Stock or of such Convertible
Security upon the exercise of such Options or upon the actual issue of such
Common Stock upon conversion or exchange of such Convertible Security.
(B) Issuance of Convertible Securities. If the corporation in
any manner issues of sells any Convertible Security and the lowest price per
share for which any one share of Common Stock is issuable upon conversion or
exchange thereof is less than the Conversion Price in effect immediately prior
to the time of such issue or sale, then such share of Common Stock shall be
deemed to have been issued and sold by the corporation at the time of the
issuance or sale of such Convertible
7
<PAGE> 99
Securities for such price per share. For the purposes of this paragraph, the
"lowest price per share for which any one share of Common Stock is issuable"
shall be equal to the sum of the lowest amounts of consideration (if any)
received or receivable by the Corporation with respect to any one share of
Common Stock upon the issuance of the Convertible security and upon the
conversion or exchange of such Convertible Security. No further adjustment of
the Conversion Price shall be made upon the actual issue of such Common Stock
upon conversion or exchange of any Convertible Security, and if any such issue
or sale of such Convertible Security is made upon exercise of any Options for
which adjustments of the Conversion Price had been or are to be made pursuant to
other provisions of this subparagraph 3(e), no further adjustment of the
conversion Price shall be made by reason of such issue or sale.
(C) Change in Option Price or Conversion Rate. If the
purchase price provided for in any Option, the additional consideration (if any)
payable upon the issue, conversion or exchange of any Convertible Security, or
the rate at which any Convertible Security is convertible into or exchangeable
for Common Stock change at any time, the Conversion Price in effect at the time
of such change shall be readjusted to the Conversion Price which would have been
in effect at such time had such Option or Convertible Security originally
provided for such changed purchase price, additional consideration or changed
conversion rate, as the case may be, at the time initially granted, issued or
sold.
(D) Treatment of Expired Options and Unexercised Convertible
Securities. Upon the expiration of any Option or the termination of any right
to convert or exchange any Convertible Security without the exercise of any such
Option or right, the Conversion Price then in effect hereunder shall be adjusted
to the Conversion Price which would have been in effect at the time of such
expiration or termination had such Option or Convertible Security, to the extent
outstanding immediately prior to such expiration or termination, never been
issued.
(E) Calculation of Consideration Received. If any Common
Stock, Option or Convertible Security is issued or sold or deemed to have been
issued or sold for chase, the consideration received therefor shall be deemed to
be the net amount received by the corporation therefor. In case any Common
Stock, Options or Convertible Securities are issued or sold for a consideration
other than cash, the amount of the consideration other than cash received by the
corporation shall be the fair value of such consideration, except where such
consideration consists of securities, in which case, the amount of consideration
received by the corporation shall be the current market price thereof as of the
date of receipt (as determined with reference to paragraph 3(e)(7)). If any
Common Stock,
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Option or Convertible Security is issued to the owners of the non-surviving
entity in connection with any merger in which the corporation is the surviving
corporation, the amount of consideration therefor shall be deemed to be the
fair value of such portion of the net assets and business of the non-surviving
entity as is attributable to such Common Stock, Options or Convertible
Securities, as the case may be. The fair value of any consideration other than
cash and securities shall be determined jointly by the corporation and the
holders of at least eighty-five (85%) of the outstanding Series F Preferred
Stock. If such parties are unable to reach agreement within a reasonable
period of time, the fair value of such consideration shall be determined by an
independent appraiser experienced in valuing such type of consideration jointly
selected by the corporation and the holders of at least eighty-five percent
(85%) of the outstanding Series F Preferred Stock. The determination of such
appraiser shall be final and binding upon the parties, and the fees and
expenses of such appraiser shall be paid by the corporation.
(F) Treasury Shares. The number of shares of Common Stock
outstanding at any given time does not include shares owned or held by or for
the account of the corporation or any of its subsidiaries, and the disposition
of any shares so owned or held shall be considered an issue or sale of Common
Stock.
(G) Record Date. If the corporation takes a record of the
holders of Common Stock for the purpose of entitling them (a) to receive a
dividend or other distribution payable in Common Stock, Options or in
Convertible Securities, or (b) to subscribe for or purchase Common Stock,
Options or Convertible Securities, then such record date shall be deemed to be
the date of the issue or sale of the shares of Common Stock deemed to have been
issued or sold upon the declaration of such dividend or upon the making of such
other distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
(3) Additional Adjustments. If the conversion Price is adjusted,
then all reference herein to $16.50 shall, concurrently with the effective date
of such event, be proportionately adjusted (to the nearest cent) to reflect the
effect of such event.
(4) Subdivision or Combination of Common Stock. If the corporation
at any time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common Stock into a
greater number of shares, the Conversion Price in effect immediately prior to
such subdivision shall be proportionately reduced, and if the corporation at
any time combines (by reverse stock split
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<PAGE> 101
or otherwise) one or more classes of its outstanding shares of Common Stock into
smaller number of shares, the Conversion Price in effect immediately prior to
such combination shall be proportionately increased.
(5) Reorganization, Reclassification, Consolidation, Merger or Sale. Any
recapitalization, reorganization, reclassification, consolidation, merger, sale
of all or substantially all of the corporation's assets to another person or
other transaction which is affected in such a manner that holders of Common
Stock are entitled to receive (either directly or upon subsequent liquidation)
stock, securities or assets with respect to or in exchange for Common Stock is
referred to herein as an "Organic Change." Prior to the consummation of any
Organic Change, the corporation shall make appropriate provisions (in form and
substance reasonably satisfactory to the holders of at least eighty-five percent
(85%) of the Series F preferred Stock then outstanding) to insure that each of
the holders of Series F Preferred Stock shall thereafter have the right to
acquire and receive, in lieu of the shares of Conversion Stock immediately
theretofore acquirable and receivable upon the conversion of such holder's
Series F Preferred Stock, such shares of stock, securities or assets as such
holder would have received in connection with such Organic Change if such holder
had converted its Series F preferred Stock immediately prior to such Organic
Change. In the case of a recapitalization, reclassification, consolidation or
merger,the corporation shall also make appropriate provisions (in form and
substance reasonably satisfactory to the holders, of at least eighty-five
percent (85%) of the Series F Preferred Stock then outstanding) to insure that
the provisions of this paragraph (e) shall thereafter be applicable to the
Series F Preferred Stock (including, in the case of any such reclassification,
consolidation or merger in which the successor entity or purchasing entity is
other than the corporation, an immediate adjustment of the Conversion Price to
the value for the Common Stock reflected by the terms of such reclassification,
consolidation or merger, and a corresponding immediate adjustment in the number
of shares of Conversion Stock acquirable and receivable upon conversion of
Series F Preferred Stock, if the value so reflected is less than the Conversion
Price in effect immediately prior to such reclassification, consolidation or
merger). The corporation shall not effect any consolidation, merger or sale,
unless prior to the consummation thereof, the successor corporation (if other
than the corporation) resulting from consolidation or merger or the corporation
purchasing such assets assumes by written instrument (in form reasonably
satisfactory to the holders of at least eighty-five percent (85%) of the Series
F preferred Stock then outstanding), the obligation to deliver to each such
holder such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such holder may be entitled to acquire.
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<PAGE> 102
(6) Certain Events. If any event occurs of the type
contemplated by the provisions of this subparagraph 3(e) but not expressly
provided for by such provisions (including, without limitation, the granting of
stock appreciation rights, phantom stock rights or other rights with equity
features), then the corporation's Board of Directors shall make an appropriate
adjustment in the Conversion Price so as to protect the rights of the holders of
the Series F Preferred Stock; provided that no such adjustment shall increase
the Conversion Price as otherwise determined pursuant to this paragraph 3 or
decrease the number of shares of Common Stock issuable upon conversion of each
share of Series F Preferred Stock, except with respect to the expiration of
unexercisable Options or the termination of rights to convert or exchange
Convertible Securities as set forth in paragraph 3(e)(2)(E).
(7) Current Market Price. The Current Market Price at any date
shall mean, in the event the Common Stock is publicly traded, the average of
the daily closing prices per share of Common Stock for 30 consecutive trading
days ending no more than 15 business days before such date (as adjusted for any
stock dividend, split, combination or reclassification that took effect during
such 30 business day period). The closing price for each day shall be the last
reported sale price regular way or, in case no such reported sale takes place
on such day, the average of the last closing bid and asked prices regular way,
in either case on the principal national securities exchange on which the
Common Stock is listed or admitted to trading, or if not listed or admitted to
trading on any national securities exchange, the closing sale price for such
day reported by NASDAQ, if the Common Stock is traded over-the-counter and
quoted in the National Market System, or if the Common Stock is so traded but
not so quoted, the average of the closing reported bid and asked prices of the
Common Stock as reported by NASDAQ or any comparable system, of if the Common
Stock is not listed on NASDAQ or any comparable system, the average of the
closing bid and asked prices as furnished by two members of the National
Association of Securities Dealers, Inc. selected from time to time by the
corporation for that purpose. If the Common Stock is not traded in such manner
that the quotations referred to above are available for the period required
hereunder, Current Market Price per share of Common Stock shall be deemed to be
the fair value as determined by the Board of Directors, irrespective of any
accounting treatment.
(8) Notices.
(A) Promptly following any adjustment of the Conversion
Price, the corporation shall give written notice thereof to all holders of
Series F Preferred Stock, setting forth in reasonable detail and certifying the
calculation of such adjustment.
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<PAGE> 103
(B) The corporation shall give written notice to all holders of
Series F Preferred Stock at least 10 days prior to the date on which the
corporation closes its books or takes a record (a) with respect to any pro rata
subscription offer to holders of Common Stock or (b) for determining rights to
vote with respect to any Organic Change
(C) The corporation shall also give written notice to the
holders of Series F Preferred Stock at least 10 days prior to the date on which
any Organic Change shall take place.
f. Costs. The corporation shall pay all documentary, stamp, transfer
or other transactional taxes attributable to the issuance or delivery of shares
of Common Stock upon conversion of Series F preferred Stock; provided that the
corporation shall not be required to pay any taxes which may be payable in
respect of any transfer involved in the issuance or delivery of any certificate
for such shares in a name other than that of the holder of the shares of Series
F Preferred Stock in respect of which such shares are being issued.
g. No Impairment. The corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the corporation. The
corporation will at all times in good faith assist in the carrying out of all
the provisions of this paragraph 3 and in the taking of all such action as may
be necessary or appropriate in order to protect the Conversion Rights of the
holder of the Series F Preferred Stock against impairment.
h. Certificate as to Adjustment. Upon the occurrence of each adjustment
or readjustment of the Conversion Price pursuant to this paragraph 3, the
corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series F Preferred Stock and shall file, at the office of any transfer agent for
the Series F Preferred Stock and at the principal office of the corporation, a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The corporation
shall, upon the written request at any time of any holder of Series F Preferred
Stock, furnish or cause to be furnished to such holder a like certificate
setting forth (i) such adjustments and readjustments, (ii) the conversion Price
at the time in effect, and (iii) the number of shares of Common Stock and the
amount, if any, of other property which at the time
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<PAGE> 104
would be received upon the conversion of Series F preferred Stock.
i. Notices of Record Date. In the event of any taking by the
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend which is the same as cash dividends paid in
previous quarters) or other distribution, the corporation shall mail to each
holder of Series F Preferred Stock at least ten (10) days prior to the date
specified for the taking of a record, a notice specifying the date on which any
such record is to be taken for the purpose of such dividend or distribution.
j. Common Stock Reserved. The corporation shall reserve and keep
available out of its authorized but unissued Common Stock such a number of
shares of Common Stock as shall from time to time be sufficient to effect
conversion of the Series F Preferred Stock.
k. Valid Issuance. All shares of Common Stock which may be
issued upon conversion of the shares of Series F Preferred Stock will upon
issuance by the corporation be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to the
issuance thereof, and the corporation shall take no action which will cause a
contrary result (including without limitation, any action which would cause the
Conversion Price to be less than the par value, if any, of the Common Stock.)
4. Consent to Redemption by Series F Preferred Stockholders. Each
holder of Series F preferred Stock shall be deemed to have consented, for
purposes of Section 502, 503 and 506 of the California General Corporations Law,
to the extent that they may apply to the corporation, to distributions made by
the corporation in connection with the repurchase of shares of Common Stock
issued to or held by current or former directors, employees or consultants
pursuant to agreements providing for the right of said repurchase between the
corporation and such persons if and only if such shares of Common Stock are
repurchased at the same price purchased by or issued to such directors,
employees or consultants (or, in the event such director, employee or consultant
has entered into a buyout agreement with the corporation requiring the
corporation, pursuant to paragraphs 3 and 4 of such agreement, to purchase
shares of Common Stock at fair market value, than the corporation may purchase
such shares at a purchase price not to exceed the fair market value of such
shares at the time of repurchase).
5. Voting Rights. Except as otherwise required by law, the holders of
Series F Preferred Stock and the holders of the Common Stock shall be entitled
to notice of any shareholders'
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<PAGE> 105
meeting and to vote upon any matter submitted to shareholders for a vote, on the
following basis:
a. Holders of Common Stock shall have one vote per share;
b. Holders of Series F Preferred Stock shall have that number of
votes per share as is equal to the number of shares of Common Stock into which
each such share of Series F Preferred Stock held by such holder is convertible;
c. Except as otherwise required by law, the holders of the series F
Preferred Stock shall be entitled to vote on all matters submitted to the
stockholders for a vote together with the holders of the Common Stock voting
together as a single class.
6. Dividend Rights. (a) The holders of outstanding Series F
Preferred Stock shall be entitled to receive in any fiscal year, when and if
declared by the Board of Directors, out of any assets at the time legally
available therefore, dividends in each at the rate of One Dollar and Fifteen
Cents ($1.15) per share of Series F Preferred Stock, accruing on a daily basis,
per annum, from and including the Issue Date, payable in preference and priority
to any dividend on any shares of any Junior Stock and payable on parity with any
dividend on any shares of Parity Stock. Notwithstanding the foregoing,
dividends on the Series F Preferred Stock shall not accrue or be cumulative
unless the corporation shall declare a cash dividend in respect of any class of
capital stock, in which case, the dividends on the Series F Preferred Stock
shall be cumulative and shall accrue from the Issue Date until paid in full
whether or not the corporation shall have earnings, whether or not there shall
be funds legally available for the payment of such dividends and whether or not
such dividends are paid. In the event that such dividends become cumulative and
accrue, they shall be payable in arrears, when as declared by the Board of
Directors, on March 31, June 30, September 30 and December 31 of the year in
which such dividends become cumulative and accrue and they shall bear interest
at a rate of ten percent (10%) per annum from the respective payment dates for
dividends set forth in the authorizing resolutions of the Board of Directors
until paid in full. Dividends on account of arrears for any past dividend may
be declared and paid at any time, without reference to such date, to holders of
record on such date, not exceeding 50 days preceding the payment date thereof,
as may be fixed by the Board of Directors. Each such dividend shall be paid to
the holders of record of the Series F Preferred Stock as their names appear on
the share register of the corporation on the corresponding record date.
(b) Subject to paragraphs 7(b) and 7(d), so long as any Series F
Preferred Stock remain outstanding, the Company shall
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<PAGE> 106
not directly or indirectly pay any dividend or make any other distribution upon
any Junior Stock or Parity Stock or redeem, purchase or otherwise acquire (other
than purchases of Common Stock from current or former directors and employees
for consideration not to exceed the purchase price paid by such directors or
employees for such shares or, in the event such directors or employees have
entered into buyout agreements with the corporation requiring the corporation,
pursuant to paragraphs 3 and 4 of such agreements, to purchase shares of Common
Stock at fair market value, then for consideration not to exceed the fair market
value of such shares at the time of repurchase) directly or indirectly for any
consideration any Junior stock or Parity Stock, unless at the time of such
dividend, distribution, redemption, purchase or acquisition, the Company has
paid the full amount of the dividends accrued on the Series F Preferred Stock
then outstanding.
7. Covenants. So long as any shares of Series F Preferred Stock
shall be outstanding, the corporation shall not, without first obtaining the
affirmative vote or written consent of at least eighty-five percent (85%) of
such outstanding shares of Series F Preferred Stock;
a. amend, alter or repeal (by merger or otherwise) this Certificate
or the Certificate of Incorporation of the corporation, if such actions would
result in any adverse change in the rights, preferences, or privileges of the
Series F Preferred Stock, or the restrictions provided for the benefit of, the
Series F Preferred Stock;
b. pay or declare any dividend or make any distribution upon on any
shares of Junior Stock (other than dividends payable in shares of the class or
series upon which such dividends are declared or paid, or payable in shares of
Common Stock);
c. increase the authorized number of shares of Series F Preferred
Stock;
d. redeem, purchase or otherwise acquire any shares of any Parity
Stock or any Junior Stock (other than purchases of Common Stock from current or
former directors or employees for consideration not to exceed the purchase price
paid by such director or employee for such shares or, in the event such
directors or employees have entered into buyout agreements with the corporation
requiring the corporation, pursuant to paragraphs 3 and 4 of such agreements, to
purchase shares of Common Stock at fair market value, then for consideration not
to exceed the fair market value of such shares at the time of repurchase),
e. reclassify any then outstanding class or series of any Junior
Stock into Parity Stock or stock having any preference
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<PAGE> 107
or priority as to the right to receive dividends or distributions or as to
rights on liquidation, dissolution or winding up of the corporation, ranking
senior in preference or priority to the Series F Preferred Stock or reclassify
any then outstanding series of Parity Stock into stock having any preference or
priority as to right to receive dividends or distributions, or as to rights on
liquidation, dissolution or winding up of the corporation ranking senior in
preference or priority to the Series F Preferred Stock;
f. materially change the principal business of the corporation.
8. Registration of Transfer. The corporation shall keep all its
principal office a register for the registration of Series F Preferred Stock.
Upon the surrender of any certificate representing Series F Preferred Stock at
such place, the corporation shall, at the request of the record holder of such
certificate, execute and deliver (at the corporation's expense) a new
certificate or certificates in exchange therefor representing in the aggregate
the number of shares represented by the surrendered certificate. Each such new
certificate shall be registered in such name and shall represent such number of
shares as is requested by the holder of the surrendered certificate and shall be
substantially identical in form to the surrendered certificate, and dividends,
to the extent they have accrued, shall accrue on the Series F Preferred Stock
represented by such new certificate from the date to which dividends have been
fully paid on such Series F Preferred Stock represented by the surrendered
certificate.
9. Replacement. Upon receipt of evidence reasonably satisfactory to
the corporation (an affidavit of the registered holder shall be satisfactory) of
the ownership and the loss, theft, destruction or mutilation of any certificate
evidencing shares of any class of Series F Preferred Stock, and in the case of
any such loss, theft or destruction, upon receipt of indemnity reasonable
satisfactory to the corporation (provided that if the holder is a financial
institution or other institutional investor its own agreement shall be
satisfactory), or, in the case of any such mutilation upon surrender of such
certificate, the corporation shall (at its expense) execute and deliver in lieu
of such certificate a new certificate of like kind representing the number of
shares of such class represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lot, stolen, destroyed or mutilated
certificate, and dividends shall accrue on the Series F Preferred Stock
represented by such new certificate from the date to which dividends have been
fully paid on such lost, stolen, destroyed or mutilated certificate.
10. Amendment and Waiver. No amendment, modification or waiver shall
be binding or effective with respect to any
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<PAGE> 108
provisions hereof without the prior written consent of the holders of at least
eighty-five percent (85%) of the Series F Preferred Stock outstanding at the
time such action is taken. Further, no change in the terms hereof may be
accomplished by merger or consolidation of the corporation with another
corporation or entity unless the corporation has obtained the prior written
consent of the holders of the applicable percentage of the Series F Preferred
Stock then outstanding.
11. Notices. Except as otherwise expressly provided hereunder, all
notices referred to herein shall be in writing and shall be delivered by
registered or certified mail, return receipt requested and postage prepaid, or
by reputable overnight courier service, charged prepaid, and shall be deemed to
have been given when so mailed or sent (i) to the corporation, at its principal
executive offices, and (ii) to any stockholder, at such holder's address as it
appears in the stock records of the corporation (unless otherwise indicated by
any such holder).
12. Residual Rights. All rights accruing to the outstanding shares of
the corporation not expressly provided for to the contrary in this or any other
Certificate of Designations of any other series of Preferred Stock shall be
vested in the Common Stock.
13. Headings and Subdivisions. The headings of the various
subdivisions hereof are for convenience of reference only and shall not affect
the interpretation of any of the provisions hereof.
14. Severability. If any right, preference or limitation of the Series F
Preferred Stock set forth in this resolution (as such resolution may be amended
from time to time) is invalid, unlawful or incapable of being enforced by
reason of any rule of law or public policy, all other rights, preferences and
limitations set forth in this resolution (as so amended) which can be given
effect without the invalid, unlawful or unenforceable right, preference or
limitation shall, nevertheless, remain in full force and effect, and no right,
preference or limitation herein set forth shall be deemed dependent upon any
other such right, preference or limitation unless so expressed herein.
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<PAGE> 109
IN WITNESS WHEREOF, said Health Data Sciences Corporation has caused this
Certificate to be signed by Ralph A. Korpman, its Chairman of the Board, and
attested by Janice E. Ticich, its Secretary, this 27 day of June, 1995.
HEALTH DATA SCIENCES CORPORATION
By:/s/ Ralph A. Korpman
------------------------------
RALPH A. KORPMAN
Chairman of the Board
ATTEST:
By:/s/ Janice E. Ticich
---------------------------
JANICE E. TICICH, Secretary
18
<PAGE> 110
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
RALPH A. KORPMAN, being first duly sworn, deposes and says that,
He is the Chairman of the Board of the Delaware corporation herein
mentioned; the matters set forth herein be true to his own knowledge; and the
signature purporting to be the signature of said RALPH A. KORPMAN is his genuine
signature.
/s/ Ralph A. Korpman
------------------------------
RALPH A. KORPMAN
Subscribed and sworn to before me on June 27, 1995.
/s/ Carolyn K. Krupp
------------------------------
[SEAL] NOTARY PUBLIC - San Bernardino
State of California
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
JANICE E. TICICH, being first duly sworn, deposes and says that:
She is the Secretary of the Delaware corporation herein mentioned; the
matters set forth herein are true to her own knowledge; and the signature
purporting to be the signature of said JANICE E. TICICH is her genuine
signature.
/s/ Janice E. Ticich
------------------------------
JANICE E. TICICH
Subscribed and sworn to before me on June 27, 1995.
/s/ Carolyn K. Krupp
[SEAL] ------------------------------
NOTARY PUBLIC - San Bernardino
State of California
19
<PAGE> 111
DELAWARE CERTIFICATE OF MERGER
OF
HDSSUB, INC.
WITH AND INTO
HEALTH DATA SCIENCES CORPORATION
---------------
The undersigned corporation, organized and existing under and by virtue of
the Delaware General Corporation Law (the "DGCL"), DOES HEREBY CERTIFY:
1. HDSSub, Inc. ("HDSSub"), a Delaware corporation, is merging with and
into Health Data Sciences Corporation ("HDS"), a Delaware corporation (the
"Merger").
2. The Amended and Restated Merger Agreement has been approved, adopted,
certified, executed and acknowledged by HDS and HDSSub, in accordance with
Section 251(c) of the DGCL.
3. HDS will be the surviving Delaware corporation following the Merger,
using the name "Health Data Sciences Corporation."
4. The Certificate of Incorporation of HDS will, as amended pursuant to
this Certificate of Merger, continue after the Merger as the Certificate of
Incorporation of the surviving corporation until thereafter duly amended in
accordance with its terms and the DGCL.
5. The executed Amended and Restated Merger Agreement pursuant to which
the Merger is being consummated is on file at the principal place of business
of the surviving corporation. The address of the principal place of business
of the surviving corporation is c/o Medaphis Corporation, 2700 Cumberland
Parkway, Suite 300, Atlanta, Georgia 30339.
6. A copy of the Amended and Restated Merger Agreement will be furnished
by the surviving corporation, on request and without cost, to any stockholder
of any constituent corporation.
7. Article 4 of HDS's Certificate of Incorporation is hereby amended to
read in full as follows:
"The aggregate number of shares that the Corporation shall have authority
to issue is 1,000, all of which shall be shares of common stock, par value
$0.01 per share."
<PAGE> 112
IN WITNESS WHEREOF, HDS has caused its duly authorized officer to
execute and deliver this Certificate of Merger as of the 29th day of June, 1996.
HEALTH DATA SCIENCES CORPORATION
By: /s/ Ralph A. Korpman, M.D.
-------------------------------------------
Name: Ralph A. Korpman, M.D.
Title: Chairman and Chief Executive Officer
2
<PAGE> 1
EXHIBIT 3.22
HEALTH DATA SCIENCES CORPORATION
****
RESTATED BY-LAWS
****
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of San Bernardino, State of California, at
such place as may be fixed from time to time by the board of directors, or at
such other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
1
<PAGE> 2
Section 2. Annual meetings of stockholders, commencing with the year
1984, shall be held on the twenty-eighth day of February if not a legal holiday,
and if a legal holiday, then on the next secular day following, at 10:00 a.m.,
or at such other date and time as shall be designated from time to time by the
board of directors and stated in the notice of the meeting, at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten (10) days before every meeting
of stockholders, a complete list of stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the chief executive officer and shall be called
by the chief executive officer or secretary at the request in writing of a
majority of the board of directors, or at the request in writing of a
stockholder or stockholders owning an aggregate of twenty-five percent (25%) or
more of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (ten) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
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Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or
of the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
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ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall not be less than five (5) nor more than eight (8). The first board
shall consist of four (4) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies in the board of directors as to members of the
board elected by a class of stock or any newly created directorships resulting
from any increase in the number of directors to be elected by a class of stock
may be filled by a majority of the remaining directors of such class, whether or
not less than a quorum, or by a sole remaining director of such class. A vacancy
created by the removal of a director pursuant to Section 141 of the Delaware
General Corporation Law may be filled only by the affirmative vote of a majority
of the shares of the class of stock entitled to vote represented at a duly held
meeting at which a quorum is present, or by the written consent of holders of a
majority of the outstanding shares of the class entitled to vote. Each director
so elected shall hold office until the next annual election and until successors
are duly elected and shall qualify, unless sooner displaced.
If there are no directors in office, then an election of directors may
be held in the manner provided by statute. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent (10%) of the total
number of the shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the directors chosen by the directors
then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
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MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the
time and place so fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter provided
for special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 7. Special meetings of the board may be called by the chief
executive officer on three (3) days notice to each director, either personally
or by mail or by telegram; special meetings shall be called by the chief
executive officer or secretary in like manner and on like notice on the written
request of two directors unless the board consists of only one director; in
which case, special meetings shall be called by the chief executive officer or
secretary in like manner and on like notice on the written request of the sole
director.
Section 8. At all meetings of the board a majority of the directors shall
constitute a quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the board of directors, except as may be otherwise specifically provided
by statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of incorporation
or these by-laws, any action required or permitted to be taken at any meeting
of the board of directors or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
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Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee
to consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
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COMPENSATION OF DIRECTORS
SECTION 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors and
may be paid a fixed sum for attendance at each meeting of the board of
directors or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
REMOVAL OF DIRECTORS
SECTION 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICE
SECTION 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to the directors may also be given by telegram.
SECTION 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
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ARTICLE V
OFFICERS
SECTION 1. The officers of the corporation shall be chosen by the board
of directors and shall be a chief executive officer, a president, a vice
president, a secretary, and a treasurer. The board of directors may also
choose additional vice-presidents, and one or more assistant secretaries and
assistant treasurers. Any number of offices may be held by the same person,
unless the certificate of incorporation or these by-laws otherwise provide.
SECTION 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a chief executive officer, a president,
one or more vice-presidents, a secretary, and a treasurer.
SECTION 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
SECTION 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
SECTION 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE CHIEF EXECUTIVE OFFICER
SECTION 6. The chief executive officer of the corporation shall preside
at all meetings of the stockholders and the board of directors, shall have
general and active management of the business of the corporation and shall see
that all orders and resolutions of the board of directors are carried into
effect.
SECTION 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
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THE PRESIDENT/VICE PRESIDENTS
SECTION 8. The president shall be the chief operating officer of the
corporation and shall perform such other duties and have such other powers as
the chief executive office may from time to time prescribe. In the absence of
the chief executive officer or in the event of his inability or refusal to act,
the president shall perform the duties of the chief executive officer, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the chief executive officer.
In the absence of the chief executive officer and the president or in the
event of their inability or refusal to act, the vice-president (or in the event
there may be more than one vice-president the vice-presidents in the order
designated by the directors, or in the absence of any designation, then in the
order of their election) shall perform the duties of the chief executive
officer and the president, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the chief executive officer and the
president. The vice-presidents shall perform such other duties and have such
other powers as the chief executive officer, and the president may from time to
time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
SECTION 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings
of the meetings of the corporation and of the board of directors in a book to
be kept for that purpose and shall perform like duties for the standing
committees when required. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the board of directors,
and shall perform such other duties as may be prescribed by the board of
directors or chief executive officer, under whose supervision he shall be. He
shall have custody of the corporate seal of the corporation and he, or an
assistant secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
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SECTION 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (of if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
SECTION 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of directors.
SECTION 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the chief executive officer and the board of
directors, at its regular meetings, or when the board of directors so requires,
an account of all his transactions as treasurer and of the financial condition
of the corporation.
SECTION 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six (6) years) in such sum and
with such surety or sureties as shall be satisfactory to the board of directors
for the faithful performance of the duties of his office and for the
restoration to the corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the
corporation.
SECTION 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election, shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
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ARTICLE VI
CERTIFICATE OF STOCK
SECTION 1. Every holder of stock in the corporation shall be entitled to
have a certificate, signed by, or in the name of the corporation by, the
chairman or vice-chairman of the board of directors, or the chief executive
officer, or the president, or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation, certifying the number of shares owned by him in the corporation.
Certificates may be issued for partly paid shares and in such case upon
the face or back of the certificates issued to represent any such partly paid
shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified.
SECTION 2. Any of or all the signatures on the certificate may be
facsimile In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
SECTION 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
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TRANSFER OF STOCK
SECTION 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall
be the duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon
its books.
FIXING RECORD DATE
SECTION 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of
any other lawful action, the board of directors may fix, in advance, a record
date, which shall not be more than sixty (60%) nor less than ten (10) days
before the date of such meeting, nor more than sixty days prior to any other
action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the
meeting: provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
SECTION 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
SECTION 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
SECTION 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
SECTION 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
SECTION 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers of such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
SECTION 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
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SEAL
SECTION 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
SECTION 7. The corporation shall indemnify its officers, directors,
employees and agents to the extend permitted by the Delaware General
Corporation Law.
ARTICLE VIII
AMENDMENTS
SECTION 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. Provided, however,
that any provision in these by-laws, which requires a vote by class of
stockholders cannot be amended, altered or repealed without the majority vote
of that class. If the power to adopt, amend or repeal by-laws is conferred
upon the board of directors by the certificate of incorporation it shall not
divest or limit the power of the stockholders to adopt, amend or repeal by-laws.
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CERTIFICATION
KNOW ALL MEN BY THESE PRESENTS:
That I, the undersigned, the duly elected and acting Secretary of HEALTH
DATA SCIENCES CORPORATION, do hereby certify that the above and foregoing
restated by-laws were adopted as the by-laws of said corporation on the 24th of
April 1995.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 24th of April,
1995.
/s/ Janice E. Ticich
-------------------------
JANICE E. TICICH
Secretary
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EXHIBIT 3.23
RESTATED
CERTIFICATE OF INCORPORATION OF
BSG CORPORATION
BSG CORPORATION (the "Company"), a corporation organized and existing
under the General Corporation Law of the State of Delaware, does hereby certify
that:
1. It was incorporated on May 16, 1991 as BSG CAPITAL
CORPORATION.
2. This Restated Certificate of Incorporation has been duly
adopted in accordance with the applicable provisions of Sections 228, 242 and
245 of the General Corporation Law of the State of Delaware (the "DGCL") by the
Board of Directors of the Company.
3. This Restated Certificate of Incorporation was approved by
written consent signed by the requisite number of the Company's stockholders
necessary to authorize this Restated Certificate of Incorporation in
accordance with Section 228 of the DGCL and written notice of such approval has
been given to the remaining stockholders as provided therein.
4. The Certificate of Incorporation of the Company and all
amendments thereto are hereby superseded by the following Restated Certificate
of Incorporation which accurately sets forth the entire text of the Certificate
of Incorporation.
"ARTICLE I.
The name of the corporation is BSG Corporation (the "Corporation" or
the "Company").
ARTICLE II.
The address of the registered office of the Corporation in the State
of Delaware is:
The Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
County of New Castle
The name of the Corporation's registered agent at said address is The
Corporation Trust Company.
ARTICLE III.
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
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ARTICLE IV.
A. This Corporation is authorized to issue two classes of stock
to be designated, respectively, "Common Stock" and "Preferred Stock." The total
number of shares which the Corporation is authorized to issue is seventy five
million (75,000,000) shares, fifty million (50,000,000) shares of which shall
be Common Stock (the "Common Stock") and twenty-five million (25,000,000)
shares of which shall be Preferred Stock (the "Preferred Stock"). The Preferred
Stock shall have a par value of one-tenth of one cent ($.001) per share and the
Common Stock shall have a par value of one-tenth of one cent ($.001) per share.
B. The number of authorized shares of Common Stock may be
increased or decreased (but not below the number of shares of Common Stock then
outstanding) by the affirmative vote of the holders of a majority of the stock
of the Corporation (voting together on an as-if-converted basis).
C. The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized, within the
limitations and restrictions stated in this Restated Certificate, to fix or
alter the rights, privileges, preferences and restrictions granted to or
imposed upon any series of Preferred Stock, including but not limited to,
dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), the redemption price
or prices, the liquidation preferences of any wholly unissued series of
Preferred Stock, and the number of shares constituting any such series and the
designation thereof, or any of them; and to increase or decrease the number of
shares of any series subsequent to the issue of shares of that series, but not
below the number of shares of such series then outstanding. In case the number
of shares of any series shall be so decreased, the shares constituting such
decrease shall resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
D. Seven million eight thousand eight hundred (7,008,800) of the
authorized shares of Preferred Stock are hereby designated "Series A Preferred
Stock" (the "Series A Preferred") and thirteen million two hundred ninety four
thousand two hundred (13,294,200) of the authorized shares of the Preferred
Stock are hereby designated "Series B Preferred Stock" (the "Series B
Preferred"). The Series A Preferred and Series B Preferred are hereinafter
collectively referred to as the "Series Preferred."
E. The rights, preferences, privileges, restrictions and other
matters relating to the Series Preferred are as follows:
1. Dividend Rights.
(a) Holders of Series Preferred, in preference to the
holders of any other stock of the Company ("Junior Stock"), shall be entitled
to receive, when and as declared by the Board of Directors, but only out of
funds that are legally available therefor, cash dividends at the rate of eight
percent (8%) of the "Original Issue Price" per annum on each outstanding share
of Series Preferred (as adjusted for any stock dividends, combinations or
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splits with respect to such shares). The Original Issue Price of the Series A
Preferred shall be fifty-seven cents ($0.57). The Original Issue Price of the
Series B Preferred shall be one dollar and twenty-four cents ($1.24). Such
dividends shall be payable only when, as and if declared by the Board of
Directors and shall be non-cumulative.
(b) So long as any shares of Series Preferred shall be
outstanding, no dividend, whether in cash or property, shall be paid or
declared, nor shall any other distribution be made, on any Junior Stock, nor
shall any shares of any Junior Stock of the Company be purchased, redeemed, or
otherwise acquired for value by the Company (except for acquisitions of Common
Stock by the Company pursuant to agreements which permit the Company to
repurchase such shares upon termination of services to the Company or in
exercise of the Company's right of first refusal upon a proposed transfer)
until all dividends (set forth in Section 1(a) above) on the Series Preferred
shall have been paid or declared and set apart. In the event dividends are paid
on any share of Common Stock, an additional dividend shall be paid with respect
to all outstanding shares of Series Preferred in an amount equal per share (on
an as-if-converted to Common Stock basis) to the amount paid or set aside for
each share of Common Stock. The provisions of this Section 1(b) shall not,
however, apply to (i) a dividend payable in Common Stock, (ii) the acquisition
of shares of any Junior Stock in exchange for shares of any other Junior Stock,
or (iii) any repurchase of any outstanding securities of the Company that is
unanimously approved by the Company's Board of Directors.
2. Voting Rights.
(a) Except as otherwise provided herein or as required
by law, the Series Preferred shall be voted with the shares of the Common Stock
of the Company and not as a separate class, at any annual or special meeting of
stockholders of the Company, and may act by written consent in the same manner
as the Common Stock, in either case upon the following basis: each holder of
shares of Series Preferred shall be entitled to such number of votes as shall
be equal to the whole number of shares of Common Stock into which such holder's
aggregate number of shares of Series Preferred are convertible (pursuant to
Section 4 hereof) immediately after the close of business on the record date
fixed for such meeting or the effective date of such written consent.
(b) For so long as the authorized size of the Company's
Board of Directors is three (3) or more, the holders of Series A Preferred,
voting as a separate class, shall be entitled to elect one (1) member of the
Company's Board of Directors and to remove from office such director and to
fill any vacancy caused by the resignation, death or removal of such director;
the holders of Series B Preferred, voting as a separate class, shall be
entitled to elect one (1) member of the Company's Board of Directors and to
remove from office such director and to fill any vacancy caused by the
resignation, death or removal of such director; the holders of Common Stock,
voting as a separate class, shall be entitled to elect one (1) member of the
Board of Directors and to remove from office such director and to fill any
vacancy caused by the resignation, death or removal of such director; and the
holders of Common Stock and Series Preferred, voting together as a class
pursuant to
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subsection 2(a) above, shall be entitled to elect all remaining members of the
Board of Directors.
(c) In addition to any other vote or consent required
herein or by law, the vote or written consent of the holders of at least a
majority of the outstanding Series Preferred, voting as a single class, shall
be necessary for effecting or validating the following actions:
(i) Any amendment, alteration, or repeal of any
provision of the Restated Certificate or the Bylaws of the Company (including
any filing of a Certificate of Designation), that affects adversely the voting
powers, preferences, or other special rights or privileges, qualifications,
limitations, or restrictions of the Series Preferred;
(ii) Any increase or decrease in the authorized
size of the Company's Board of Directors;
(iii) Any increase or decrease (other than by
conversion) in the authorized number of shares of Common or Preferred Stock;
(iv) Any authorization, whether by
reclassification or otherwise, of equity securities of the Company ranking on a
parity with or senior to the Series Preferred in right of redemption,
liquidation preference, voting or dividends;
(v) Any redemption, repurchase, payment of
dividends or other distributions with respect to Junior Stock (except for
acquisitions of Common Stock by the Company pursuant to agreements which permit
the Company to repurchase such shares upon termination of services to the
Company or in exercise of the Company's right of first refusal upon a proposed
transfer);
(vi) Any agreement by the Company or its
stockholders regarding an Asset Transfer or Acquisition (each as defined in
Section 3(c));
(vii) Any action which results in the payment or
declaration of any dividend on any shares of Common Stock or Preferred Stock; or
(viii) Any voluntary dissolution or liquidation of
the Company.
3. Liquidation Rights.
(a) Upon any liquidation, dissolution, or winding up of
the Company, whether voluntary or involuntary, before any distribution or
payment shall be made to the holders of any Junior Stock, the holders of Series
Preferred shall be entitled to be paid out of the assets of the Company an
amount per share of Series Preferred equal to the Original Issue Price plus all
declared and unpaid dividends on such shares of Preferred Stock for each share
of Series Preferred held by them. If, upon the occurrence of a liquidation
event, the
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assets and funds thus distributed among the holders of the Series Preferred
shall be insufficient to permit the payment to such holders of the full
preferential amount, then the entire assets of the Company legally available
for distribution shall be distributed ratably among the holders of the Series
Preferred, in proportion to the preferential amount each such holder would have
been entitled to receive.
(b) After the payment of the full liquidation preference
of the Series Preferred as set forth in Section 3(a) above, the assets of the
Company legally available for distribution, if any, shall be distributed ratably
to the holders of the Common Stock and Series Preferred on an as-if-converted to
Common Stock basis.
(c) The following events shall be considered a
liquidation under Section 3(a):
(i) any consolidation or merger of the Company
with or into any other corporation or other entity or person, or any other
corporation reorganization, in which the stockholders of the Company immediately
prior to such consolidation, merger or reorganization, own less than 50% of the
Company's voting power immediately after such consolidation, merger or
reorganization, or any transaction or series of related transactions in which in
excess of fifty percent (50%) of the Company's voting power is transferred (an
"Acquisition"); or
(ii) a sale, lease or other disposition of all
or substantially all of the assets of the Company (an "Asset Transfer").
(d) If, upon any liquidation, distribution, or winding
up, the assets of the Company shall be insufficient to make payment in full to
all holders of Series Preferred, then such assets shall be distributed among
the holders of Series Preferred at the time outstanding, ratably in proportion
to the full amounts to which they would otherwise be respectively entitled.
4. Conversion Rights.
The holders of the Series Preferred shall have the following rights
with respect to the conversion of the Series Preferred into shares of Common
Stock:
(a) Optional Conversion. Subject to and in compliance
with the provisions of this Section 4, any shares of Series Preferred may, at
the option of the holder, be converted at any time into fully-paid and
nonassessable shares of Common Stock. The number of shares of Common Stock to
which a holder of Series Preferred shall be entitled upon conversion shall be
the product obtained by multiplying the applicable "Conversion Rate" for such
series (determined as provided in Section 4(b)) by the number of shares of
Series Preferred being converted.
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(b) Conversion Rate. The conversion rate in effect at any time for
conversion of the Series A Preferred (the "Series A Conversion Rate") shall be
the quotient obtained by dividing the Original Issue Price of the Series A
Preferred by the "Series A Conversion Price," calculated as provided in Section
4(c). The conversion rate in effect at any time for conversion of the Series B
Preferred (the "Series B Conversion Rate") shall be the quotient obtained by
dividing the Original Issue Price of the Series B Preferred by the "Series B
Conversion Price," calculated as provided in Section 4(c).
(c) Conversion Price. The conversion price for the Series A
Preferred shall initially be the Original Issue Price of the Series A Preferred
(the "Series A Conversion Price"). Such initial Series A Conversion Price
shall be adjusted from time to time in accordance with this Section 4. All
references to the Series A Conversion Price herein shall mean the Series A
Conversion Price as so adjusted. The conversion price for the Series B
Preferred shall initially be the Original Issue Price of the Series B Preferred
(the "Series B Conversion Price"). Such initial Series B Conversion Price shall
be adjusted from time to time in accordance with this Section 4. All
references to the Series B Conversion Price herein shall mean the Series B
Conversion Price as so adjusted. The Series A Conversion Price and the Series
B Conversion Price shall collectively be referred to as the "Conversion
Prices", and each a "Conversion Price."
(d) Mechanics of Conversion. Each holder of Series Preferred who
desires to convert the same into shares of Common Stock pursuant to this
Section 4 shall surrender the certificate or certificates therefor, duly
endorsed, at the office of the Company or any transfer agent for the Series
Preferred, and shall give written notice to the Company at such office that
such holder elects to convert the same. Such notice shall state the number of
shares of Series Preferred being converted. Thereupon, the Company shall
promptly issue and deliver at such office to such holder a certificate or
certificates for the number of shares of Common Stock to which such holder is
entitled and shall promptly pay in cash or, to the extent sufficient funds are
not then legally available therefor, in Common Stock (at the Common Stock's
fair market value determined by the Board of Directors as of the date of such
conversion), any declared and unpaid dividends on the shares of Series
Preferred being converted. Such conversion shall be deemed to have been made
at the close of business on the date of such surrender of the certificates
representing the shares of Series Preferred to be converted, and the person
entitled to receive the shares of Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder of such shares of Common
Stock on such date.
(e) Adjustment for Stock Splits and Combinations. If the Company
shall at any time or from time to time after the date that the first share of
Series B Preferred is issued (the "Original Issue Date") effect a subdivision
of the outstanding Common Stock, each Conversion Price in effect immediately
before that subdivision shall be proportionately decreased. Conversely, if the
Company shall at any time or from time to time after the Original Issue Date
combine the outstanding shares of Common Stock into a smaller number of shares,
each Conversion Price in effect immediately before the combination shall be
proportionately increased. Any adjustment under this Section 4(e) shall become
effective at the close of business on the date the subdivision or combination
becomes effective.
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(f) Adjustment for Common Stock Dividends and Distributions. If the
Company at any time or from time to time after the Original Issue Date makes,
or fixes a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in additional
shares of Common Stock, in each such event each Conversion Price that is then
in effect shall be decreased as of the time of such issuance or, in the event
such record date is fixed, as of the close of business on such record date, by
multiplying such Conversion Price then in effect by a fraction (1) the
numerator of which is the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date, and (2) the denominator of which is the total
number of shares of Common Stock issued and outstanding immediately prior to
the time of such issuance or the close of business on such record date plus the
number of shares of Common Stock issuable in payment of such dividend or
distribution; provided, however, that if such record date is fixed and such
dividend is not fully paid or if such distribution is not fully made on the
date fixed therefor, each Conversion Price shall be recomputed accordingly as
of the close of business on such record date and thereafter each Conversion
Price shall be adjusted pursuant to this Section 4(f) to reflect the actual
payment of such dividend or distribution.
(g) Adjustments for Other Dividends and Distributions. If the
Company at any time or from time to time after the Original Issue Date makes,
or fixes a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in securities of
the Company other than shares of Common Stock, in each such event provision
shall be made so that the holders of the Series Preferred shall receive upon
conversion thereof, in addition to the number of shares of Common Stock
receivable thereupon, the amount of other securities of the Company which they
would have received had their Series Preferred been converted into Common Stock
on the date of such event and had they thereafter, during the period from the
date of such event to and including the conversion date, retained such
securities receivable by them as aforesaid during such period, subject to all
other adjustments called for during such period under this Section 4 with
respect to the rights of the holders of the Series Preferred or with respect to
such other securities by their terms.
(h) Adjustment for Reclassification, Exchange and Substitution. If
at any time or from time to time after the Original Issue Date, the Common
Stock issuable upon the conversion of the Series Preferred is changed into the
same or a different number of shares of any class or classes of stock, whether
by recapitalization, reclassification or otherwise (other than an Acquisition
or Asset Transfer as defined in Section 3(c) or a subdivision or combination of
shares or stock dividend or a reorganization, merger, consolidation or sale of
assets provided for elsewhere in this Section 4), in any such event each holder
of Series Preferred shall have the right thereafter to convert such stock into
the kind and amount of stock and other securities and property receivable upon
such recapitalization, reclassification or other change by holders of the
maximum number of shares of Common Stock into which such shares of Series
Preferred could have been converted immediately prior to such recapitalization,
reclassification or change, all subject to further adjustment as provided
herein or with respect to such other securities or property by the terms
thereof.
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(i) Reorganizations, Mergers, Consolidations or Sales of Assets. If
at any time or from time to time after the Original Issue Date, there is a
capital reorganization of the Common Stock (other than an Acquisition or Asset
Transfer as defined in Section 3(c) or a recapitalization, subdivision,
combination, reclassification, exchange or substitution of shares provided for
elsewhere in this Section 4), as a part of such capital reorganization,
provision shall be made so that the holders of the Series Preferred shall
thereafter be entitled to receive upon conversion of the Series Preferred the
number of shares of stock or other securities or property of the Company to
which a holder of the number of shares of Common Stock deliverable upon
conversion would have been entitled on such capital reorganization, subject to
adjustment in respect of such stock or securities by the terms thereof. In any
such case, appropriate adjustment shall be made in the application of the
provisions of this Section 4 with respect to the rights of the holders of
Series Preferred after the capital reorganization to the end that the
provisions of this Section 4 (including adjustment of each Conversion Price
then in effect and the number of shares issuable upon conversion of the Series
Preferred) shall be applicable after that event and be as nearly equivalent as
practicable.
(j) Sale of Shares Below Conversion Price.
(1) If from time to time after the Original Issue Date, the
Company issues of sells, or is deemed by the express provisions of this
subsection (j) to have issued or sold, Additional Shares of Common Stock (as
hereinafter defined), other than as a dividend or other distribution on any
class of stock as provided in Section 4(f) above, and other than a subdivision
or combination of shares of Common Stock as provided in Section 4(e) above, for
an Effective Price (as hereinafter defined) less than the then effective
Conversion Price with respect to a series, then and in each such case the then
existing Conversion Price for such series shall be reduced, as of the opening
of business on the date of such issue or sale, to a price determined by
multiplying the Conversion Price for such series by a fraction (i) the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issue or sale, plus the number of shares of Common
Stock which the aggregate consideration received (as defined in subsection
(j)(2)) by the Company for the total number of Additional Shares of Common
Stock so issued would purchase at such Conversion Price, and (ii) the
denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issue or sale plus the total number of Additional
Shares of Common Stock so issued. For the purposes of the above calculation,
the number of shares of Common Stock outstanding immediately prior to such
issue shall be calculated as if all shares of Series Preferred had been fully
converted into shares of Common Stock immediately prior to such issuance.
(2) For the purpose of making any adjustment required under
this Section 4(j), the consideration received by the Company for any issue or
sale of securities shall (A) to the extent it consists of cash, be computed at
the net amount of cash received by the Company after deduction of any
underwriting or similar commissions, compensation or concessions paid or
allowed by the Company in connection with such issue or sale but without
deduction of any expenses payable by the Company, (B) to the extent it consists
of property other than cash, be computed at the fair value of that property as
determined in
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good faith by the Board of Directors, and (C) if Additional Shares of Common
Stock, Convertible Securities (as hereinafter defined) or rights or options to
purchase either Additional Shares of Common Stock or Convertible Securities are
issued or sold together with other stock or securities or other assets of the
Company for a consideration which covers both, be computed as the portion of
the consideration so received that may be reasonably determined in good faith
by the Board of Directors to be allocable to such Additional Shares of Common
Stock, Convertible Securities or rights or options.
(3) For the purpose of the adjustment required under this
Section 4(j),if the Company issues or sells any rights or options for the
purchase of, or stock or other securities convertible into, Additional Shares
of Common Stock (such convertible stock or securities being herein referred to
as "Convertible Securities") and if the Effective Price of such Additional
Shares of Common Stock is less than the Conversion Prices, in each case the
Company shall be deemed to have issued at the time of the issuance of such
rights or options or Convertible Securities the maximum number of Additional
Shares of Common Stock issuable upon exercise or conversion thereof and to have
received as consideration for the issuance of such shares an amount equal to
the total amount of the consideration, if any, received by the Company for the
issuance of such rights or options or Convertible Securities, plus, in the
case of such rights or options, the minimum amounts of consideration, if any,
payable to the Company upon the exercise of such rights or options, plus, in
the case of Convertible Securities, the minimum amounts of consideration, if
any, payable to the Company (other than by cancellation of liabilities or
obligations evidenced by such Convertible Securities) upon the conversion
thereof; provided that if in the case of Convertible Securities the minimum
amounts of such consideration cannot be ascertained, but are a function of
antidilution or similar protective clauses, the Company shall be deemed to have
received the minimum amounts of consideration without reference to such
clauses; provided further that if the minimum amount of consideration payable
to the Company upon the exercise or conversion of rights, options or
Convertible Securities is reduced over time or on the occurrence or
non-occurrence of specified events other than by reason of antidilution
adjustments, the Effective Price shall be recalculated using the figure to
which such minimum amount of consideration is reduced; provided further that if
the minimum amount of consideration payable to the Company upon the exercise or
conversion of such rights, options or Convertible Securities is increased, the
Effective Price shall be recalculated using the increased minimum amount of
consideration payable to the Company upon the exercise or conversion of such
rights, options or Convertible Securities. No further adjustment of the
Conversion Prices, as adjusted upon the issuance of such rights, options or
Convertible Securities, shall be made as a result of the actual issuance of
Additional Shares of Common Stock on the exercise of any such rights or options
or the conversion of any such Convertible Securities. If any such rights or
options or the conversion privilege represented by any such Convertible
Securities shall expire without having been exercised, the Conversion Prices as
adjusted upon the issuance of such rights, options or Convertible Securities
shall be readjusted to the Conversion Prices which would have been in effect
had an adjustment been made on the basis that the only Additional Shares of
Common Stock so issued were the Additional Shares of Common Stock, if any,
actually issued or sold on the exercise of such rights or options or rights of
conversion of such Convertible Securities, and such Additional Shares of Common
Stock, if any, were
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issued or sold for the consideration actually received by the Company upon such
exercise, plus the consideration, if any, actually received by the Company for
the granting of all such rights or options, whether or not exercised, plus the
consideration received for issuing or selling the Convertible Securities
actually converted, plus the consideration, if any, actually received by the
Company (other than by cancellation of liabilities or obligations evidenced by
such Convertible Securities) on the conversion of such Convertible Securities,
provided that such readjustment shall not apply to prior conversion of the
Series Preferred.
(4) "Additional Shares of Common Stock" shall mean all shares
of Common Stock issued by the Company or deemed to be issued pursuant to this
Section 4(j), whether or not subsequently reacquired or retired by the Company
other than (A) shares of Common Stock issued upon conversion of the Preferred
Stock; (B) shares of Common Stock (and/or options, warrants or other Common
Stock purchase rights, and the Common Stock issued pursuant to such options,
warrants or other rights) issued or to be issued to employees, officers or
directors of, or consultants or advisors to the Company or any subsidiary
pursuant to stock purchase or stock option plans or other arrangements that are
approved by the Board; and (C) shares of Common Stock issued pursuant to the
exercise of options, warrants or convertible securities outstanding as of
the Original Issue Date. The "Effective Price" of Additional Shares of Common
Stock shall mean the quotient determined by dividing the total number of
Additional Shares of Common Stock issued or sold, or deemed to have been issued
or sold by the Company under this Section 4(j), into the aggregate
consideration received, or deemed to have been received by the Company for such
issue under this Section 4(j), for such Additional Shares of Common Stock.
(k) Certificate of Adjustment. In each case of an adjustment or
readjustment of each Conversion Price for the number of shares of Common Stock
or other securities issuable upon conversion of the Series Preferred, if the
Series Preferred is then convertible pursuant to this Section 4, the Company, at
its expense, shall compute such adjustment or readjustment in accordance with
the provisions hereof and prepare a certificate showing such adjustment or
readjustment, and shall mail such certificate, by first class mail, postage
prepaid, to each registered holder of Series Preferred at the holder's address
as shown in the Company's books. The certificate shall set forth such
adjustment or readjustment, showing in detail the facts upon which such
adjustment or readjustment is based, including a statement of (1) the
consideration received or deemed to be received by the Company for any
Additional Shares of Common Stock issued or sold or deemed to have been issued
or sold, (2) the Conversion Prices at the time in effect, (3) the number of
Additional Shares of Common Stock and (4) the type and amount, if any, of other
property which at the time would be received upon conversion of the Series
Preferred.
(l) Notices of Record Date. Upon (i) any taking by the Company of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution, or (ii) any Acquisition (as defined in Section 3(c)) or other
capital reorganization of the Company, any reclassification or recapitalization
of the capital stock of the Company, any merger or consolidation of the Company
with or into any other corporation, or any Asset Transfer (as defined in
Section 3(c)), or any voluntary or involuntary dissolution, liquidation or
winding
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up of the Company, the Company shall mail to each holder of Series Preferred
at least twenty (20) days prior to the record date specified therein a notice
specifying (1) the date on which any such record is to be taken for the purpose
of such dividend or distribution and a description of such dividend or
distribution, (2) the date on which any such Acquisition, reorganization,
reclassification, transfer, consolidation, merger, Asset Transfer, dissolution,
liquidation or winding up is expected to become effective, and (3) the date, if
any, that is to be fixed as to when the holders of record of Common Stock (or
other securities) shall be entitled to exchange their shares of Common Stock
(or other securities) for securities of other property deliverable upon such
Acquisition, reorganization, reclassification, transfer, consolidation, merger,
Asset Transfer, dissolution, liquidation or winding up.
(m) Automatic Conversion.
(1) Each share of Series Preferred shall automatically be
converted into shares of Common Stock, based on the then-effective Conversion
Price for such series, at any time upon the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the Series Preferred, or
immediately upon the closing of a firm commitment underwritten public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended, covering the offer and sale of Common Stock for the account
of the Company in which (i) the per share price is at least $5.00 (as adjusted
for stock splits, recapitalizations and the like), and (ii) the net cash
proceeds to the Company (after underwriting discounts, commissions and fees)
are at least $10,000,000. Upon such automatic conversion pursuant to this
subsection, any declared and unpaid dividends shall be paid in accordance with
the provisions of Section 4(d).
(2) Upon the occurrence of the event specified in paragraph (1)
above, the outstanding shares of Series Preferred shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to the
Company or its transfer agent; provided, however, that the Company shall not be
obligated to issue certificates evidencing the shares of Common Stock issuable
upon such conversion unless the certificates evidencing such shares of Series
Preferred are either delivered to the Company or its transfer agent as provided
below, or the holder notifies the Company or its transfer agent that such
certificates have been lost, stolen or destroyed and executes an agreement
satisfactory to the Company to indemnify the Company for any loss incurred by
it in connection with such certificates. Upon the occurrence of such automatic
conversion of the Series Preferred, the holders of Series Preferred shall
surrender the certificates representing such shares at the office of the
Company or any transfer agent for the Series Preferred. Thereupon, there shall
be issued and delivered to such holder promptly at such office and in its name
as shown on such surrendered certificate or certificates, a certificate or
certificates for the number of shares of Common Stock into which the shares of
Series Preferred surrendered were convertible on the date on which such
automatic conversion occurred, and the Company shall promptly pay any declared
and unpaid dividends in accordance with the provisions of Section 4(d).
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(n) Fractional Shares. No fractional shares of Common Stock shall
be issued upon conversion of Series Preferred. All shares of Common Stock
(including fractions thereof) issuable upon conversion of more than one share of
Series Preferred by a holder thereof shall be aggregated for purposes of
determining whether the conversion would result in the issuance of any
fractional share. If, after the aforementioned aggregation, the conversion
would result in the issuance of any fractional share, the Corporation shall, in
lieu of issuing any fractional share, pay cash equal to the product of such
fraction multiplied by the Common Stock's fair market value (as determined by
the Board) on the date of conversion.
(o) Reservation of Stock Issuable Upon Conversion. The Company
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series Preferred, such number of its shares of Common Stock
as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series Preferred. If at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Series Preferred,
the Company will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purpose.
(p) Notices. Any notice required by the provisions of this Section
4 shall be in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified (ii) when sent by confirmed telex or
facsimile if sent during normal business hours of the recipient; if not, then
on the next business day, (iii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or
(iv) one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
notices shall be addressed to each holder of record at the address of such
holder appearing on the books of the Company.
(q) Payment of Taxes. The Company will pay all issuance or
transfer taxes and other governmental charges that may be imposed with respect
to the issue or delivery of shares of Common Stock upon conversion of shares of
Series Preferred, excluding any tax or other charge imposed in connection with
any transfer involved in the issue and delivery of shares of Common Stock in a
name other than that in which the shares of Series Preferred so converted were
registered.
(r) No Dilution or Impairment. Without the consent of a majority
of the Series Preferred, the Company shall not take any voluntary action, for
the purpose of avoiding or seeking to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the Company, but
shall at all times in good faith assist in carrying out all such action as may
be reasonably necessary or appropriate in order to protect the conversion
rights of the holders of the Series Preferred against dilution or other
impairment.
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5. No Reissuance of Series Preferred. No share or shares of Series
Preferred acquired by the Company by reason of purchase, conversion or otherwise
shall be reissued.
6. No Preemptive Rights. Stockholders shall have no preemptive rights
except as granted by the Company pursuant to written agreements.
7. Right of First Refusal. No stockholder shall sell, assign, pledge,
or in any manner transfer any of the shares of stock of the Corporation or any
right or interest therein, whether voluntarily or by operation of law, or by
gift or otherwise, except by a transfer which meets the requirements
hereinafter set forth:
(a) If the stockholder desires to sell or otherwise transfer any of
his shares of stock, then the stockholder shall first give written notice
thereof to the Corporation. The notice shall name the proposed transferee and
state the number of shares to be transferred, the proposed consideration,
and all other terms and conditions of the proposed transfer.
(b) For thirty (30) days following receipt of such notice, the
Corporation shall have the option to purchase all (but not less than all) of
the shares specified in the notice at the price and upon the terms set forth in
such notice; provided, however, that, with the consent of the stockholder, the
Corporation shall have the option to purchase a lesser portion of the shares
specified in said notice at the price and upon the terms set forth therein. In
the event of a gift, property settlement or other transfer in which the
proposed transferee is not paying the full price for the shares, and that is
not otherwise exempted from the provisions of this Section 7, the price shall
be deemed to be the fair market value of the stock at such time as determined
in good faith by the Board of Directors. In the event the Corporation elects
to purchase all of the shares or, with consent of the stockholder, a lesser
portion of the shares, it shall give written notice to the transferring
stockholder of its election and settlement for said shares shall be made as
provided below in paragraph (d).
(c) The Corporation may assign its rights hereunder.
(d) In the event the Corporation and/or its assignee(s) elect to
acquire any of the shares of the transferring stockholder as specified in said
transferring stockholder's notice, the Secretary of the Corporation shall so
notify the transferring stockholder and settlement thereof shall be made in
cash within thirty (30) days after the Secretary of the Corporation receives
said transferring stockholder's notice; provided that if the terms of payment
set forth in said transferring stockholder's notice were other than cash
against delivery, the Corporation and/or its assignee(s) shall pay for said
shares on the same terms and conditions set forth in said transferring
stockholder's notice.
(e) In the event the Corporation and/or its assignees(s) do not
elect to acquire all of the shares specified in the transferring stockholder's
notice, said transferring stockholder may, within the sixty-day period
following the expiration of the option rights granted to the Corporation and/or
its assignees(s) herein, transfer the shares specified in said transferring
stockholder's notice which were not acquired by the Corporation and/or
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its assignees(s) as specified in said transferring stockholder's notice. All
shares so sold by said transferring stockholder shall continue to be subject to
the provisions of this Section 7 in the same manner as before said transfer.
(f) Anything to the contrary contained herein notwithstanding, the
following transactions shall be exempt from the provisions of this Section 7:
(1) A stockholder's transfer of any or all shares held either
during such stockholder's lifetime or on death by will or intestacy to such
stockholder's immediate family or to any custodian or trustee for the account
of such stockholder or such stockholder's immediate family. "Immediate family"
as used herein shall mean spouse, lineal descendant, father, mother, brother,
or sister of the stockholder making such transfer.
(2) A stockholder's bona fide pledge or mortgage of any shares
with a commercial lending institution, provided that any subsequent transfer of
said shares by said institution shall be conducted in the manner set forth in
this bylaw.
(3) A stockholder's transfer of any or all of such
stockholder's shares to the Corporation or to any other stockholder of the
Corporation.
(4) A stockholder's transfer of any or all of such
stockholder's shares to a person who, at the time of such transfer, is an
officer or director of the Corporation.
(5) A corporate stockholder's transfer of any or all of its
shares pursuant to and in accordance with the terms of any merger,
consolidation, reclassification of shares or capital reorganization of the
corporate stockholder, or pursuant to a sale of all or substantially all of
the stock or assets of a corporate stockholder or to any corporation or other
entity controlled by the corporate stockholder.
(6) A corporate stockholder's transfer of any or all of its
shares to any or all of its stockholders, officers or directors.
(7) A transfer by a stockholder which is a limited or general
partnership to any or all of its partners or former partners.
In any such case, the transferee, assignee, or other recipient shall
receive and hold such stock subject to the provisions of this Section 7, and
there shall be no further transfer of such stock except in accord with this
Section 7.
(g) The provisions of this Section 7 may be waived with respect to
any transfer either by the Corporation, upon duly authorized action of its
Board of Directors with the consent of the owners of a majority of the Series A
and B Preferred Stock of the Corporation, or by the stockholders, only upon the
express written consent of the owners of a majority of (i) the common stock of
the Corporation and (ii) the Series A and B Preferred Stock of the Corporation
(excluding the votes represented by those shares to be transferred by the
transferring stockholder) each voting separately as a class. This Section
14
<PAGE> 15
7 may be amended or repealed by the stockholders, upon the express written
consent of the owners of both the majority of (i) the common stock of the
Corporation and (ii) the Series A and B Preferred Stock of the Corporation,
each voting separately as a class.
(h) Any sale or transfer, or purported sale or transfer, of
securities of the Corporation shall be null and void unless the terms,
conditions, and provisions of this Section 7 are strictly observed and followed.
The foregoing right of first refusal shall terminate on either
of the following dates, whichever shall first occur:
(1) On May 1, 2000; or
(2) Upon the date securities of the Corporation are first
offered to the public pursuant to a registration statement filed with, and
declared effective by, the United States Securities and Exchange Commission
under the Securities Act of 1933, as amended.
(j) The certificates representing shares of stock of the Corporation
shall bear on their face the following legend so long as the foregoing right of
first refusal remains in effect:
"The shares represented by this certificate are
subject to a right of first refusal option in
favor of the Corporation and/or its assignee(s),
as provided in the Certificate of Incorporation
of the Corporation."
ARTICLE V.
A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law is amended
after approval by the stockholders of this Article to authorize corporate
action further eliminating or limiting the personal liability of directors,
then the liability of a director shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
B. Any repeal or modification of this Article V shall be prospective
and shall not affect the rights under this Article V in effect at the time of
the alleged occurrence of any act or omission to act giving rise to liability
or indemnification.
15
<PAGE> 16
ARTICLE VI.
For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any
class thereof, as the case may be, it is further provided that:
A. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be fixed by the Board
of Directors in the manner provided in the Bylaws.
B. The Board of Directors may from time to time make, amend, supplement
or repeal the Bylaws; provided, however, that the stockholders may change or
repeal any Bylaw adopted by the Board of Directors by the affirmative vote of
the holders of a majority of the voting power of all of the then outstanding
shares of the capital stock of the Corporation; and, provided further, that no
amendment or supplement to the Bylaws adopted by the Board of Directors shall
vary or conflict with any amendment or supplement thus adopted by the
stockholders.
C. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
ARTICLE VII.
A. The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
B. The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact
16
<PAGE> 17
that he is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation and except
that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
C. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections A and B of this Article, or
in defense of any claim, issue or matter therein, the Corporation shall
indemnify such director, officer, employee or agent against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
D. Any indemnification under Sections A and B of this Article (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in Sections A and B of this
Article. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
E. Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article. Such expenses incurred by other
employees and agents shall be so paid upon such terms and conditions, if any,
as the board of directors deems appropriate.
F. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in an official capacity and as to
action in other capacity while holding such office.
G. The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation,
17
<PAGE> 18
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the General Corporation Law of the State of Delaware or this Article.
H. For purposes of this Article, references to "the Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation of
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so
that any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
I. For purposes of this Article, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the Corporation" shall include
any service as a director, officer, employee or agent of the Corporation, which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
section.
J. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
ARTICLE VIII.
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon the stockholders
herein are granted subject to this right."
18
<PAGE> 19
IN WITNESS WHEREOF, BSG Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed by the Chairman of the Board of
Directors and the Secretary in Houston, Texas this 14th day of March, 1995.
BSG CORPORATION
By /s/ Steven G. Papermaster
----------------------------------
Steven G. Papermaster,
Chairman and Chief Executive
Officer
ATTEST:
By /s/ Jeffry J. Weiner
-----------------------------
Jeffrey J. Weiner,
Secretary
19
<PAGE> 20
CERTIFICATE OF MERGER
OF
MENELL, INC.
MERGING INTO
BSG CORPORATION
In accordance with Sections 103 and 252 of the Delaware General
Corporation Law (the "DGCL"), the undersigned hereby adopts this Certificate of
Merger.
FIRST: Menell, Inc., a Minnesota corporation ("Menell") is merging with
and into BSG Corporation, a Delaware corporation (collectively, the "Merging
Entities").
SECOND: Each of the Merging Entities has approved, adopted, certified,
executed, and acknowledged the Agreement and Plan of Merger dated December 29,
1995, between the Merging Entities (the "Merger Agreement"), in accordance with
Section 252(c) of the DGCL.
THIRD: The name of the surviving entity is BSG Corporation ("BSG" or the
"Surviving Entity").
FOURTH: The Certificate of Incorporation of BSG, as amended, shall be the
Certificate of Incorporation of the Surviving Entity.
FIFTH: The executed Merger Agreement is on file at the principal place of
business of the Surviving Entity whose address is:
BSG Corporation
701 Brazos, Suite 700
Austin, Texas 78701
Attention: Legal Department
SIXTH: An executed copy of the Merger Agreement will be furnished by the
Surviving Entity, on request and without cost, to any stockholder of any of the
Merging Entities.
SEVENTH: The authorized capital stock of Menell is 10,000 shares of common
stock, par value $.01 per share.
EIGHTH: The Merger shall be effective at 11:59 p.m. on December 31, 1995
(the "Effective Time").
<PAGE> 21
WITNESS the execution hereof on December 29, 1995, effective as of the
Effective Time set forth above.
BSG CORPORATION
By: /s/ Steven G. Papermaster
--------------------------------------
Steven G. Papermaster
Chairman, Chief Executive Officer, and
President
- 2 -
<PAGE> 22
DELAWARE CERTIFICATE OF MERGER
OF
BSGSUB, INC.
WITH AND INTO
BSG CORPORATION
---------------
The undersigned corporation, organized and existing under and by virtue of
the Delaware General Corporation Law (the "DGCL"), DOES HEREBY CERTIFY:
1. BSGSub, Inc. ("BSGSub"), a Delaware corporation, is merging with and
into BSG Corporation ("BSG"), a Delaware corporation (the "Merger").
2. The Merger Agreement has been approved, adopted, certified, executed
and acknowledged by BSG and BSGSub, in accordance with Section 251(c) of the
DGCL.
3. BSG will be the surviving Delaware corporation following the Merger,
using the name "BSG Corporation."
4. The Restated Certificate of Incorporation of BSG will, as amended
pursuant to this Certificate of Merger, continue after the Merger as the
Certificate of Incorporation of the surviving corporation until thereafter duly
amended in accordance with its terms and the DGCL.
5. The executed Merger Agreement pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is c/o Medaphis Corporation, 2700 Cumberland Parkway, Suite 300,
Atlanta, Georgia 30339.
6. A copy of the Merger Agreement will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any constituent
corporation.
7. Article IV of BSG's Restated Certificate of Incorporation is hereby
amended to read in full as follows:
"The aggregate number of shares that the Corporation shall have authority
to issue is 1,000, all of which shall be shares of common stock, par value
$0.01 per share."
1
<PAGE> 23
IN WITNESS WHEREOF, BSG has caused its duly authorized officer to execute
and deliver this Certificate of Merger as of the 6th day of May, 1996.
BSG Corporation
By: /s/ Steven G. Papermaster
----------------------------
Name: Steven G. Papermaster
Title:
2
<PAGE> 24
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation") is
BSG CORPORATION.
2. The registered office of the corporation within the State of Delaware
is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New
Castle.
3. The registered agent of the corporation within the State of Delaware
is hereby changed to The Prentice-Hall Corporation System, Inc., the business
office of which is identical with the registered office of the corporation as
hereby changed.
4. The corporation has authorized the changes hereinbefore set forth by
resolution of its Board of Directors.
Signed on August 16, 1996.
/s/ Peggy Sherman
-----------------------------------
Peggy B. Sherman, Vice President
<PAGE> 1
EXHIBIT 3.24
AMENDED AND RESTATED
BYLAWS
OF
BSG CORPORATION
(A Delaware Corporation)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I
Offices....................................................... 1
Section 1. Principal Office............................. 1
Section 2. Other Offices................................ 1
ARTICLE II
Corporate Seal................................................ 1
Section 3. Corporate Seal............................... 1
ARTICLE III
Stockholders' Meetings and Voting Rights...................... 1
Section 4. Place of Meetings............................ 1
Section 5. Annual Meetings.............................. 1
Section 6. Postponement of Annual Meeting............... 2
Section 7. Special Meetings............................. 2
Section 8. Notice of Meetings........................... 2
Section 9. Manner of Giving Notice...................... 3
Section 10. Quorum and Transaction of Business........... 3
Section 11. Adjournment and Notice of Adjourned Meetings. 4
Section 12. Waiver of Notice, Consent to Meeting or
Approval of Minutes......................... 4
Section 13. Action by Written Consent Without a Meeting 5
Section 14. Voting....................................... 5
Section 15. Persons Entitled to Vote or Consent 6
Section 16. Proxies...................................... 7
Section 17. Inspectors of Election....................... 7
ARTICLE IV
Board of Directors............................................ 7
Section 18. Powers....................................... 7
Section 19. Number of Directors.......................... 8
Section 20. Election of Directors, Term, Qualifications.. 8
Section 21. Resignations................................. 8
Section 22. Removal...................................... 8
Section 23. Vacancies.................................... 9
Section 24. Regular Meetings............................. 9
Section 25. Participation by Telephone................... 9
Section 26. Special Meetings............................. 9
Section 27. Notice of Meetings........................... 9
Section 28. Place of Meetings............................ 10
Section 29. Action by Written Consent Without a Meeting.. 10
Section 30. Quorum and Transaction of Business........... 10
Section 31. Adjournment.................................. 10
</TABLE>
-i-
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 32. Organization................................ 10
Section 33. Compensation................................ 10
Section 34. Committees.................................. 10
ARTICLE V
Officers..................................................... 11
Section 35. Officers.................................... 11
Section 36. Appointment................................. 11
Section 37. Inability to Act............................ 12
Section 38. Resignations................................ 12
Section 39. Removal..................................... 12
Section 40. Vacancies................................... 12
Section 41. Chairman of the Board....................... 12
Section 42. President................................... 12
Section 43. Vice Presidents............................. 13
Section 44. Secretary................................... 13
Section 45. Chief Financial Officer..................... 13
Section 46. Compensation................................ 14
ARTICLE VI
Contracts, Loans, Bank Accounts, Checks and Drafts........... 14
Section 47. Execution of Contracts and Other Instruments 14
Section 48. Loans....................................... 15
Section 49. Bank Accounts............................... 15
Section 50. Checks, Drafts, Etc......................... 15
ARTICLE VII
Certificates for Shares and Their Transfer................... 15
Section 51. Certificate for Shares...................... 15
Section 52. Transfer on the Books....................... 16
Section 53. Lost, Destroyed and Stolen Certificates..... 16
Section 54. Issuance, Transfer and Registration of
Shares..................................... 16
ARTICLE VIII
Inspection of Corporate Records.............................. 16
Section 55. Inspection by Directors..................... 16
Section 56. Inspection by Stockholders.................. 17
Section 57. Written Form................................ 18
ARTICLE IX
Miscellaneous................................................ 18
Section 58. Fiscal Year................................. 18
Section 59. Annual Report............................... 18
</TABLE>
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<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 60. Record Date.......................................... 18
Section 61. Bylaw Amendments..................................... 19
Section 62. Construction and Definition.......................... 19
ARTICLE X
Indemnification....................................................... 19
Section 63. Indemnification of Directors, Officers, Employees and
Other Agents................................................... 19
ARTICLE XI
Right of First Refusal................................................ 23
Section 64. Right of First Refusal............................... 23
ARTICLE XII
Loans to Officers and Others.......................................... 25
Section 65. Certain Corporate Loans and Guaranties............... 25
</TABLE>
-iii-
<PAGE> 5
AMENDED AND RESTATED
BYLAWS OF
BSG CORPORATION
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal executive office of the
corporation shall be located at such place as the Board of Directors may from
time to time authorize. If the principal executive office is located outside
this state, and the corporation has one or more business offices in this state,
the board of directors shall fix and designate a principal business office in
the State of Delaware.
SECTION 2. OTHER OFFICES. Additional offices of the corporation shall be
located at such place or places, within or outside the State of Delaware, as the
Board of Directors may from time to time authorize.
ARTICLE II
CORPORATE SEAL
SECTION 3. CORPORATE SEAL. If the Board of Directors adopts a corporate
seal such seal shall have inscribed thereon the name of the corporation and the
state and date of its incorporation. If and when a seal is adopted by the Board
of Directors, such seal may be engraved, lithographed, printed, stamped,
impressed upon, or affixed to any contract, conveyance, certificate for shares,
or other instrument executed by the corporation.
ARTICLE III
STOCKHOLDERS' MEETINGS AND VOTING RIGHTS
SECTION 4. PLACE OF MEETINGS. Meetings of stockholders shall be held at the
principal executive office of the corporation, or at any other place, within or
outside the State Delaware, which may be fixed either by the Board of Directors
or by the written consent of all persons entitled to vote at such meeting, given
either before or after the meeting and filed with the Secretary of the
Corporation.
SECTION 5. ANNUAL MEETINGS. The annual meeting of the stockholders of the
corporation shall be held at the hour of 9:00 a.m. local time, on the third
thursday of March in each year if such date is not a legal holiday observed by
the corporation at its principal executive office, and if it is such a legal
holiday, then on the next succeeding full business day at the same time.
-1-
<PAGE> 6
At such annual meeting directors shall be elected and any other business may be
transacted which may properly come before the meeting.
SECTION 6. POSTPONEMENT OF ANNUAL MEETING. The Board of Directors and the
President shall each have authority to hold at an earlier date and/or time, or
to postpone to a later date and/or time, the annual meeting of stockholders.
SECTION 7. SPECIAL MEETINGS.
(a) Special meetings of the stockholders, for any purpose or
purposes, may be called by the Board of Directors, the Chairman of the Board of
Directors, the President, or the holders of shares entitled to cast not less
than ten percent (10%) of the votes at the meeting.
(b) Upon written request to the Chairman of the Board of Directors,
the President, any vice president or the Secretary of the corporation by any
person or persons (other than the Board of Directors) entitled to call a
special meeting of the stockholders, such officer forthwith shall cause notice
to be given to the stockholders entitled to vote, that a meeting will be held
at a time requested by the person or persons calling the meeting, such time to
be not less than thirty-five (35) nor more than sixty (60) days after receipt
of such request. If such notice is not given within twenty (20) days after
receipt of such request, the person or persons calling the meeting may give
notice thereof in the manner provided by law or in these bylaws. Nothing
contained in this Section 7 shall be construed as limiting, fixing or affecting
the time or date when a meeting of stockholders called by action of the Board
of Directors may be held.
SECTION 8. NOTICE OF MEETINGS. Except as otherwise may be required by law
and subject to subsection 7(b) above, written notice of each meeting of
stockholders shall be given to each stockholder entitled to vote at that meeting
(see Section 15 below), by the Secretary, assistant secretary or other person
charged with that duty, not less than ten (10) (or, if sent by third class mail,
thirty (30)) nor more than sixty (60) days before such meeting.
Notice of any meeting of stockholders shall state the date, place and hour
of the meeting and,
(a) in the case of a special meeting, the general nature of the
business to be transacted, and no other business may be transacted at such
meeting;
(b) in the case of an annual meeting, the general nature of matters
which the Board of Directors, at the time the notice is given, intends to
present for action by the stockholders;
(c) in the case of any meeting at which directors are to be elected,
the names of the nominees intended at the time of the notice to be presented by
management for election; and
(d) in the case of any meeting, if action is to be taken on any of
the following proposals, the general nature of such proposal:
(1) a proposal to approve a transaction relating to certain
transactions in which a director has an interest;
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<PAGE> 7
(2) a proposal to approve a transaction relating to amending
the Certificates of Incorporation of the corporation;
(3) a proposal to approve a transaction relating to
reorganization;
(4) a proposal to approve a transaction relating to winding up
and dissolution;
(5) a proposal to approve a plan of distribution relating to
certain plans providing for distribution not in accordance with the liquidation
rights of preferred shares, if any.
At a special meeting, notice of which has been given in accordance with
this Section, action may not be taken with respect to business, the general
nature of which has not been stated in such notice. At an annual meeting,
action may be taken with respect to business stated in the notice of such
meeting, given in accordance with this Section, and, subject to subsection 8(d)
above, with respect to any other business as may properly come before the
meeting.
SECTION 9. MANNER OF GIVING NOTICE. Notice of any meeting of
stockholders shall be given either personally or by first-class mail, or, if the
corporation has outstanding shares held of record by 500 or more persons on the
record date for such meeting, third-class mail, or telegraphic or other written
communication, addressed to the stockholder at the address of that stockholder
appearing on the books of the corporation or given by the stockholder to the
corporation for the purpose of notice. If no such address appears on the
corporation's books or is given, notice shall be deemed to have been given if
sent to that stockholder by first-class mail or telegraphic or other written
communication to the corporation's principal executive office, or if published
at least once in a newspaper of general circulation in the county where that
office is located. Notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by telegram or other means
of written communication.
If any notice addressed to a stockholder at the address of that stockholder
appearing on the books of the corporation is returned to the corporation by the
United States Postal Service marked to indicate that the United States Postal
Service is unable to deliver the notice to the stockholder at that address, all
future notices shall be deemed to have been duly given without further mailing
if these shall be available to the stockholder on written demand by the
stockholder at the principal executive office of the corporation for a period of
one year from the date of the giving of the notice.
SECTION 10. QUORUM AND TRANSACTION OF BUSINESS.
(a) At any meeting of the stockholders, a majority of the shares
entitled to vote, represented in person or by proxy, shall constitute a
quorum. If a quorum is present, the affirmative vote of the majority of shares
represented at the meeting and entitled to vote on any matter shall be the act
of the stockholders, unless the vote of a greater number or voting by classes
is required by law or by the Certificates of Incorporation, and except as
provided in subsection (b) below.
-3-
<PAGE> 8
(b) The stockholders present at a duly called or held meeting of the
stockholders at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum, provided that any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
(c) In the absence of a quorum, no business other than adjournment
may be transacted, except as described in subsection (b) above.
SECTION 11. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any meeting of
stockholders may be adjourned from time to time, whether or not a quorum is
present, by the affirmative vote of a majority of shares represented at such
meeting either in person or by proxy and entitled to vote at such meeting.
In the event any meeting is adjourned, it shall not be necessary to give
notice of the time and place of such adjourned meeting pursuant to Sections 8
and 9 of these bylaws; provided that if any of the following three events occur,
such notice must be given:
(1) announcement of the adjourned meeting's time and place is not
made at the original meeting which it continues or
(2) such meeting is adjourned for more than fortyfive (45) days from
the date set for the original meeting or
(3) a new record date is fixed for the adjourned meeting.
At the adjourned meeting, the corporation may transact any business which
might have been transacted at the original meeting.
SECTION 12. WAIVER OF NOTICE, CONSENT TO MEETING OR APPROVAL OF MINUTES.
(a) Subject to subsection (b) of this Section, the transactions of
any meeting of stockholders, however called and noticed, and wherever held,
shall be as valid as though made at a meeting duly held after regular call and
notice, if a quorum is present either in person or by proxy, and if, either
before or after the meeting, each of the persons entitled to vote but not
present in person or by proxy signs a written waiver of notice or a consent to
holding of the meeting or an approval of the minutes thereof.
(b) A waiver of notice, consent to the holding of a meeting or
approval of the minutes thereof need not specify the business to be transacted
or transacted at nor the purpose of the meeting; provided that in the case of
proposals described in subsection (d) of Section 8 of these bylaws, the general
nature of such proposals must be described in any such waiver of notice and such
proposals can only be approved by waiver of notice, not by consent to holding of
the meeting or approval of the minutes.
(c) All waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
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(d) A person's attendance at a meeting shall constitute waiver of
notice of and presence at such meeting, except when such person objects at the
beginning of the meeting to transaction of any business because the meeting is
not lawfully called or convened and except that attendance at a meeting is not
a waiver of any right to object to the consideration of matters which are
required by law or these bylaws to be in such notice (including those matters
described in subsection (d) of Section 8 of these bylaws), but are not so
included if such person expressly objects to consideration of such matter or
matters at any time during the meeting.
SECTION 13. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action
which may be taken at any meeting of stockholders may be taken without a meeting
and without prior notice if written consents setting forth the action so taken
are signed by the holders of the outstanding shares having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted.
Directors may not be elected by written consent except by unanimous written
consent of all shares entitled to vote for the election of directors; provided
that any vacancy on the Board of Directors (other than a vacancy created by
removal) which has not been filled by the board of directors may be filled by
the written consent of a majority of outstanding shares entitled to vote for the
election of directors.
Any written consent may be revoked prior to the time that written consents
of the number of shares required to authorize the proposed action have been
filed with the Secretary. Such revocation must be in writing and will be
effective upon its receipt by the Secretary.
If the consents of all stockholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all such
stockholders shall not have been received, the Secretary shall give prompt
notice of any corporate action approved by the stockholders without a meeting to
those stockholders entitled to vote on such matters who have not consented
thereto in writing. This notice shall be given in the manner specified in
Section 8 of these bylaws. In the case of approval of (i) a transaction relating
to certain transactions in which a director has an interest, (ii) a transaction
relating to indemnification of agents of the corporation), (iii) a transaction
relating to reorganization), and (iv) a plan of distribution relating to certain
plans providing for distribution not in accordance with the liquidation rights
of preferred shares, if any), the notice shall be given at least ten (10) days
before the consummation of any action authorized by that approval.
SECTION 14. VOTING. Voting at any meeting of stockholders need not be
by ballot; provided, however, that elections for directors must be by ballot if
balloting is demanded by a stockholder at the meeting and before the voting
begins.
Every person entitled to vote at an election for directors may cumulate the
votes to which such person is entitled, i.e., such person may cast a total
number of votes equal to the number of directors to be elected multiplied by the
number of votes to which such person's shares are entitled, and may cast said
total number of votes for one or more candidates in such proportions as such
person thinks fit; provided, however, no stockholder shall be entitled to so
cumulate such stockholder's votes unless the candidates for which such
stockholder is voting have been
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placed in nomination prior to the voting and a stockholder has given notice at
the meeting, prior to the vote, of an intention to cumulate votes. In any
election of directors, the candidates receiving the highest number of votes, up
to the number of directors to be elected, are elected.
Except as may be otherwise provided in the Certificates of Incorporation
or by law, and subject to the foregoing provisions regarding the cumulation of
votes, each stockholder shall be entitled to one vote for each share held.
Any stockholder may vote part of such stockholder's shares in favor of a
proposal and refrain from voting the remaining shares or vote them against the
proposal, other than elections to office, but, if the stockholder fails to
specify the number of shares such stockholder is voting affirmatively, it will
be consecutively presumed that the stockholder's approving vote is with respect
to all shares such stockholder is entitled to vote.
No stockholder approval, other than unanimous approval of those entitled
to vote, will be valid as to proposals described in subsection 8(d) of these
bylaws unless the general nature of such business was stated in the notice of
meeting or in any written waiver of notice.
SECTION 15. Persons Entitled to Vote or Consent. The Board of Directors
may fix a record date to Section 60 of these bylaws to determine which
stockholders are entitled to notice of and to vote at a meeting or consent to
corporate actions, as provided in Sections 13 and 14 of these bylaws. Only
persons in whose name shares otherwise entitled to vote stand on the stock
records of the corporation on such date shall be entitled to vote or consent.
If no record date is fixed:
(1) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the business day next preceding the day notice is given or, if
notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held;
(2) The record date for determining stockholders entitled to give
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors has been taken, shall be the day on which the first
written consent is given;
(3) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts a resolution relating thereto, or the sixtieth (60th) day
prior to the date of such other action, whichever is later.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting
unless the Board of Directors fixes a new record date for the adjourned
meeting; provided, however, that the Board of Directors shall fix a new record
date if the meeting is adjourned for more than fortyfive (45) days from the
date set for the original meeting.
Shares of the corporation held by its subsidiary or subsidiaries are not
entitled to vote in any matter.
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SECTION 16. PROXIES. Every person entitled to vote or execute consents
may do so either in person or by one or more agents authorized to act by a
written proxy executed by the person or such person's duly authorized agent and
filed with the Secretary of the corporation; provided that no such proxy shall
be valid after the expiration of eleven (11) months from the date of its
execution unless otherwise provided in the proxy. The manner of execution,
suspension, revocation, exercise and effect of proxies is governed by law.
SECTION 17. INSPECTORS AND ELECTION. Before any meeting of
stockholders, the Board of Directors may appoint any persons, other than
nominees for office, to act as inspectors of election at the meeting or its
adjournment. If no inspectors of election are so appointed, the chairman of
the meeting may, and on the request of any stockholder or a stockholder's proxy
shall, appoint inspectors of election at the meeting. The number of inspectors
shall be either one (1) or three (3). If inspectors are appointed at a meeting
on the request of one or more stockholders or proxies, the majority of shares
represented in person or proxy shall determine whether one (1) or three (3)
inspectors are to be appointed. If any person appointed as inspector fails to
appear or fails or refuses to act, the chairman of the meeting may, and upon
the request of any stockholder or a stockholder's proxy shall, appoint a person
to fill that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and the voting
power of each, the shares represented at the meeting, the existence of a
quorum, and the authenticity, validity, and effect of proxies;
(b) Receive votes, ballots, or consents;
(c) Hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) Count and tabulate all votes or consents,
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the election
or vote with fairness to all stockholders.
ARTICLE IV
BOARD OF DIRECTORS
SECTION 18. POWERS. Subject to the provisions of law or any limitations
in the Certificate of Incorporation or these bylaws, as to action required to
be approved by the stockholders or by the outstanding shares, the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised, by or under the direction of the Board of Directors. The Board of
Directors may delegate the management of the day-to-day operation of the
business of
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the corporation to a management company or other person, provided that the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised under the ultimate direction of the Board of
Directors.
SECTION 19. NUMBER OF DIRECTORS. The authorized number of directors of
the corporation shall be not less than a minimum of one (1) or more than a
maximum of six (6). The number of directors presently authorized is one (1).
The exact number of directors shall be set within these limits from time to
time (a) by approval of the Board of Directors, or (b) by the affirmative vote
of a majority of the shares represented and voting at a duly held meeting at
which a quorum is present (which shares voting affirmatively also constitute at
least a majority of the required quorum) or by the written consent of
stockholders pursuant to Section 13 hereinabove.
Any amendment of these bylaws changing the maximum or minimum number of
directors may be adopted only by the affirmative vote of a majority of the
outstanding shares entitled to vote: provided, an amendment reducing the
minimum number of directors to less than five (5), cannot be adopted if votes
cast against its adoption at a meeting or the shares not consenting to it in
the case of action by written consent are equal to more than 16-2/3 percent of
the outstanding shares entitled to vote.
No reduction of the authorized number of directors shall remove any
director prior to the expiration of such director's term of office.
SECTION 20. ELECTION OF DIRECTORS, TERMS, QUALIFICATIONS. The directors
shall be elected at each annual meeting of stockholders to hold office until
the next annual meeting. Each director, including a director elected or
appointed to fill a vacancy, shall hold office either until the expiration of
the term for which elected or appointed and until a successor has been elected
and qualified, or until his death, resignation or removal. Directors need not
be stockholders of the corporation.
SECTION 21. RESIGNATIONS. Any director of the corporation may resign
effective upon giving written notice to the Chairman of the Board, the
President, the Secretary or the Board of Directors of the corporation, unless
the notice specifies a later time for the effectiveness of such resignation.
If the resignation specifies effectiveness at a future time, a successor may be
elected pursuant to Section 23 of these bylaws to take office on the date that
the resignation becomes effective.
SECTION 22. REMOVAL. The Board of Directors may declare vacant the
office of a director who has been declared of unsound mind by an order of court
or who has been convicted of a felony.
The entire Board of Directors or any individual director may be removed
from office without cause by the affirmative vote of a majority of the
outstanding shares entitled to vote on such removal; provided, however, that
unless the entire Board is removed, no individual director may be removed when
the votes cast against such director's removal, or not consenting in writing to
such removal, would be sufficient to elect that director if voted cumulatively
at an election at which the same total number of votes cast were cast (or, if
such action is taken by
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written consent, all shares entitled to vote were voted) and the entire number
of directors authorized at the time of such director's most recent election were
then being elected.
SECTION 23. VACANCIES. A vacancy or vacancies on the Board of Directors
shall be deemed to exist in case of the death, resignation or removal of any
director, or upon increase in the authorized number of directors or if
stockholders fail to elect the full authorized number of directors at an annual
meeting of stockholders or if, for whatever reason, there are fewer directors
on the Board of Directors, than the full number authorized. Such vacancy or
vacancies, other than a vacancy created by the removal of a director, may be
filled by a majority of the remaining directors, though less than a quorum, or
by a sole remaining director. A vacancy created by the removal of a director
may be filled only by the affirmative vote of a majority of the shares
represented and voting at a duly held meeting at which quorum is present (which
shares voting affirmatively also constitute at least a majority of the required
quorum) or by the written consent of stockholders pursuant to Section 13
hereinabove. The stockholders may elect a director at any time to fill any
vacancy not filled by the directors. Any such election by written consent,
other than to fill a vacancy created by removal, requires the consent of a
majority of the outstanding shares entitled to vote. Any such election by
written consent to fill a vacancy created by removal requires the consent of
all of the outstanding shares entitled to vote.
SECTION 24. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times, places and dates as fixed in these
bylaws or by the Board of Directors; provided, however, that if the date for
such a meeting falls on a legal holiday, then the meeting shall be held at the
same time on the next succeeding full business day. Regular meetings of the
Board of Directors held pursuant to this Section 24 may be held without notice.
SECTION 25. PARTICIPATION BY TELEPHONE. Members of the Board of
Directors may participate in a meeting through use of a conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another. Such participation constitutes presence in
person at such meeting.
SECTION 26. SPECIAL MEETINGS. Special meetings of the Board of
Directors for any purpose may be called by the Chairman of the Board or the
President or any vice president or the Secretary of the corporation or any two
(2) directors.
SECTION 27. NOTICE OF MEETINGS. Notice of the date, time and place of
all meetings of the Board of Directors, other than regular meetings held
pursuant to Section 24 above shall be delivered personally, orally or in
writing, or by telephone or telegraph to each director, at least forty-eight
(48) hours before the meeting, or sent in writing to each director by
first-class mail, charges prepaid, at least four (4) days before the meeting.
Such notice may be given by the Secretary of the corporation or by the person
or persons who called a meeting. Such notice need not specify the purpose of
the meeting. Notice of any meeting of the Board of Directors need not be given
to any director who signs a waiver of notice of such meeting, or a consent to
holding the meeting or an approval of the minutes thereof, either before or
after the meeting, or who attends the meeting without protesting prior thereto
or at its commencement such director's lack of notice. All such waivers,
consents and approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
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SECTION 28. PLACE OF MEETINGS. Meetings of the Board of Directors may
be held at any place within or without the state which has been designated in
the notice of the meeting or, if not stated in the notice or there is no
notice, designated in the bylaws or by resolution of the Board of Directors.
SECTION 29. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action
required or permitted to be taken by the Board of Directors may be taken
without a meeting, if all members of the Board of Directors individually or
collectively consent in writing to such action. Such written consent or
consents shall be filed with the minutes of the proceedings of the Board of
Directors. Such action by written consent shall have the same force and effect
as a unanimous vote of such directors.
SECTION 30. QUORUM AND TRANSACTION OF BUSINESS. A majority of the
authorized number of directors shall constitute a quorum for the transaction of
business. Every act or decision done or made by a majority of the authorized
number of directors present at a meeting duly held at which a quorum is present
shall be the act of the Board of Directors, unless the law, the Certificates of
Incorporation or these bylaws specifically require a greater number. A meeting
at which a quorum is initially present may continue to transact business,
notwithstanding withdrawal of directors, if any action taken is approved by at
least a majority of the number of directors constituting a quorum for such
meeting. In the absence of a quorum at any meeting of the Board of Directors,
a majority of the directors present may adjourn the meeting, as provided in
Section 31 of these bylaws.
SECTION 31. ADJOURNMENT. Any meeting of the Board of Directors, whether
or not a quorum is present, may be adjourned to another time and place by the
affirmative vote of a majority of the directors present. If the meeting is
adjourned for more than twenty-four (24) hours, notice of such adjournment to
another time or place shall be given prior to the time of the adjourned meeting
to the directors who were not present at the time of the adjournment.
SECTION 32. ORGANIZATION. The Chairman of the Board shall preside at
every meeting of the Board of Directors, if present. If there is no Chairman
of the Board or if the Chairman is not present, a Chairman chosen by a majority
of the directors present shall act as chairman. The Secretary of the
corporation or, in the absence of the Secretary, any person appointed by the
Chairman shall act as secretary of the meeting.
SECTION 33. COMPENSATION. Directors and members of committees may
receive such compensation, if any, for their services, and such reimbursement
for expenses, as may be fixed or determined by the Board of Directors.
SECTION 34. COMMITTEES. The Board of Directors may, by resolution
adopted a majority of the authorized number of directors, designate one or more
committees, each consisting of two (2) or more directors, to serve at the
pleasure of the Board of Directors. The Board of Directors, by a vote of the
majority of authorized directors, may designate one or more directors as
alternate members of any committee, to replace any absent member at any meeting
of such committee. Any such committee shall have authority to act in the
manner and to the extent provided in the resolution of the Board of Directors,
and may have all the authority of
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the Board of Directors in the management of the business and affairs of the
corporation, except with respect to:
(a) the approval of any action for which stockholders' approval
or approval of the outstanding shares also is required by the California
Corporations Code;
(b) the filling of vacancies on the Board of Directors or any of
its committees;
(c) the fixing of compensation of directors for serving on the
Board of Directors or any of its committees;
(d) the adoption, amendment or repeal of these bylaws;
(e) the amendment or repeal of any resolution of the Board of
Directors which by its express terms is not so amendable or repealable;
(f) a distribution to stockholders, except at a rate or in a
periodic amount or within a price range determined by the Board of Directors; or
(g) the appointment of other committees of the Board of Directors
or the members thereof.
Any committee may from time to time provide by resolution for regular
meetings at specified times and places. If the date of such a meeting falls on
a legal holiday, then the meeting shall be held at the same time on the next
succeeding full business day. No notice of such a meeting need be given. Such
regular meetings need not be held if the committee shall so determine at any
time before or after the time when such meeting would otherwise have taken
place. Special meetings may be called at any time in the same manner and by
the same persons as stated in Sections 25 and 26 of these bylaws for meetings
of the Board of Directors. The provisions of Sections 24, 27, 28, 29, 30 and
31 of these bylaws shall apply to committees, committee members and committee
meetings as if the words "committee" and "committee member" were substituted
for the word "Board of Directors", and "director", respectively, throughout
such sections.
ARTICLE V
OFFICERS
SECTION 35. OFFICERS. The corporation shall have a Chairman of the
Board or a President or both, a Secretary, a Chief Financial Officer and such
other officers with such titles and duties as the Board of Directors may
determine. Any two or more offices may be held by the same person.
SECTION 36. APPOINTMENT. All officers shall be chosen and appointed by
the Board of Directors; provided, however, the Board of Directors may empower
the chief executive officer of the corporation to appoint such officers, other
than Chairman of the Board, President, Secretary or Chief Financial Officer, as
the business of the corporation may require. All officers
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shall serve at the pleasure of the Board of Directors, subject to the rights,
if any, of an officer under a contract of employment.
SECTION 37. INABILITY TO ACT. In the case of absence or inability of
any officer of the corporation or of any person authorized by these bylaws to
act in such officer's place, the Board of Directors may from time to time
delegate the powers or duties of such officer to any other officer, or any
director or other person whom it Tay select, for such period of time as the
Board of Directors deems necessary.
SECTION 38. RESIGNATIONS. Any officer may resign at any time upon
written notice to the corporation, without prejudice to the rights, if any, of
the corporation under any contract to which such officer is a party. Such
resignation shall be effective upon its receipt by the Chairman of the Board,
the President, the Secretary or the Board of Directors, unless a different time
is specified in the notice for effectiveness of such resignation. The
acceptance of any such resignation shall not be necessary to make it effective
unless otherwise specified in such notice.
SECTION 39. REMOVAL. Any officer may be removed from office at any
time, with or without cause, but subject to the rights, if any, of such officer
under any contract of employment, by the Board of Directors or by any committee
to whom such power of removal has been duly delegated, or, with regard to any
officer who has been appointed by the chief executive officer pursuant to
Section 36 above, by the chief executive officer or any other officer upon whom
such power of removal may be conferred by the Board of Directors.
SECTION 40. VACANCIES. A vacancy occurring in any office for any cause
may be filled by the Board of Directors, in the manner prescribed by this
Article of the bylaws for initial appointment to such office.
SECTION 41. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there
be such an officer, shall, if present, preside at all meetings of the Board of
Directors and shall exercise and perform such other powers and duties as may be
assigned from time to time by the Board of Directors or prescribed by these
bylaws. If no President is appointed, the Chairman of the Board is the general
manager and chief executive officer of the corporation, and shall exercise all
powers of the President described in Section 42 below.
SECTION 42. PRESIDENT. Subject to such powers, if any, as may be given
by the Board of Directors to the Chairman of the Board, if there be such an
officer, the President shall be the general manager and chief executive officer
of the corporation and shall have general supervision and control over the
business and affairs of the corporation, subject to the control of the Board of
Directors. The President may sign and execute, in the name of the corporation,
any instrument authorized by the Board of Directors, except when the signing
and execution thereof shall have been expressly delegated by the Board of
Directors or by these bylaws to some other officer or agent of the
corporation. The President shall have all the general powers and duties of
management usually vested in the president of a corporation, and shall have
such other powers and duties as may be prescribed from time to time by the
Board of Directors or these bylaws. The President shall have discretion to
prescribe the duties of other officers and employees of the corporation in a
manner not inconsistent with the provisions of these bylaws and the directions
of the Board of Directors.
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SECTION 43. VICE PRESIDENTS. In the absence or disability of the
President, in the event of a vacancy in the office of President, or in the event
such officer refuses to act, the Vice President shall perform all the duties of
the President and, when so acting, shall have all the powers of, and be subject
to all the restrictions on, the President. If at any such time the corporation
has more than one vice president, the duties and powers of the President shall
pass to each vice president in order of such vice president's rank as fixed by
the Board of Directors or, if the vice presidents are not so ranked, to the vice
president designated by the Board of Directors. The vice presidents shall have
such other powers and perform such other duties as may be prescribed for them
from time to time by the Board of Directors or pursuant to Sections 35 and 36 of
these bylaws or otherwise pursuant to these bylaws.
SECTION 44. SECRETARY. The Secretary shall:
(a) Keep, or cause to be kept, minutes of all meetings of the
corporation's stockholders, Board of Directors, and committees of the Board of
Directors, if any. Such minutes shall be kept in written form.
(b) Keep, or cause to be kept, at the principal executive office of
the corporation, or at the office of its transfer agent or registrar, if any, a
record of the corporation's stockholders, showing the names and addresses of
all stockholders, and the number and classes of shares held by each. Such
records shall be kept in written form or any other form capable of being
converted into written form.
(c) Keep, or cause to be kept, at the principal executive office of
the corporation, of if the principal executive office is not in California, at
its principal business office in California, an original or copy of these
bylaws, as amended.
(d) Give, or cause to be given, notice of all meetings of
stockholders, directors and committees of the Board of Directors, as required
by law or by these bylaws.
(e) Keep the seal of the corporation, if any, in safe custody.
(f) Exercise such powers and perform such duties as are usually
vested in the office of secretary of a corporation, and exercise such other
powers and perform such other duties as may be prescribed from time to time by
the Board of Directors or these bylaws.
If any assistant secretaries are appointed, the assistant secretary, or
one of the assistant secretaries in the order of their rank as fixed by the
Board of Directors or, if they are not so ranked, the assistant secretary
designated by the Board of Directors, in the absence or disability of the
Secretary or in the event of such officer's refusal to act or if a vacancy
exists in the office of Secretary, shall perform the duties and exercise the
powers of the Secretary and discharge such duties as may be assigned from time
to time pursuant to these bylaws or by the Board of Directors.
SECTION 45. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall:
(a) Be responsible for all functions and duties of the treasurer of
the corporation.
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(b) Keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of account for the corporation.
(c) Receive or be responsible for receipt of all monies due and
payable to the corporation from any source whatsoever; have charge and custody
of, and be responsible for, all monies and other valuables of the corporation
and be responsible for deposit of all such monies in the name and to the credit
of the corporation with such depositaries as may be designated by the Board of
Directors or a duly appointed and authorized committee of the Board of
Directors.
(d) Disburse or be responsible for the disbursement of the funds of
the corporation as may be ordered by the Board of Directors or a duly appointed
committee of the Board of Directors.
(e) Render to the chief executive officer and the Board of Directors
a statement of the financial condition of the corporation if called upon to do
so.
(f) Exercise such powers and perform such duties as are usually
vested in the office of chief financial officer of a corporation, and exercise
such other powers and perform such other duties as may be prescribed by the
Board of Directors or these bylaws.
If any assistant financial officer is appointed, the assistant financial
officer, or one of the assistant financial officers, if there are more than
one, in the order of their rank as fixed by the Board of Directors or, if they
are not so ranked, the assistant financial officer designated by the Board of
Directors, shall, in the absence or disability of the Chief Financial Officer
or in the event of such officer's refusal to act, perform the duties and
exercise the powers of the Chief Financial Officer, and shall have the powers
and discharge such duties as may be assigned from time to time pursuant to
these bylaws or by the Board of Directors.
SECTION 46. COMPENSATION. The compensation of the officers shall be
fixed from time to time by the Board of Directors, and no officer shall be
prevented from receiving such compensation by reason of the fact that such
officer is also a director of the corporation.
ARTICLE VI
CONTRACTS, LOANS, BANK ACCOUNTS, CHECKS AND DRAFTS
SECTION 47. EXECUTION OF CONTRACTS AND OTHER INSTRUMENTS. Except as
these bylaws may otherwise provide, the Board of Directors or its duly appointed
and authorized committee may authorize any officer or officers, agent or
agents, to enter into any contract or execute and deliver any instrument in the
name of and on behalf of the corporation, and such authorization may be general
or confined to specific instances. Except as so authorized or otherwise
expressly provided in these bylaws, no officer, agent, or employee shall have
any power or authority to bind the corporation by any contract or engagement or
to pledge its credit or to render it liable for any purpose or in any amount.
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SECTION 48. LOANS. No loans shall be contracted on behalf of the
corporation and no negotiable paper shall be issued in its name, unless and
except as authorized by the Board of Directors or its duly appointed and
authorized committee. When so authorized by the Board of Directors or such
committee, any officer or agent of the corporation may effect loans and
advances at any time for the corporation from any bank, trust company, or other
institution, or from any firm, corporation or individual, and for such loans
and advances may make, execute and deliver promissory notes, bonds or other
evidences of indebtedness of the corporation and, when authorized as aforesaid,
may mortgage, pledge, hypothecate or transfer any and all stocks, securities
and other property, real or personal, at any time held by the corporation, and
to that end endorse, assign and deliver the same as security for the payment of
any and all loans, advances, indebtedness, and liabilities of the corporation.
Such authorization may be general or confirmed to specific instances.
SECTION 49. BANK ACCOUNTS. The Board of Directors or its duly appointed
and authorized committee from time to time may authorize the opening and
keeping of general and/or special bank accounts with such banks, trust
companies, or other depositaries as may be selected by the Board of Directors,
its duly appointed and authorized committee or by any officer or officers,
agent and agents, of the corporation to whom such power may be delegated from
time to time by the Board of Directors. The Board of Directors or its duly
appointed and authorized committee may make such rules and regulations with
respect to said bank accounts, not inconsistent with the provisions of these
bylaws, as are deemed advisable.
SECTION 50. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes, acceptances or other evidences of indebtedness
issued in the name of the corporation shall be signed by such officer or
officers, agent or agents, of the corporation, and in such manner, as shall be
determined from time to time by resolution of the Board of Directors or its
duly appointed and authorized committee. Endorsements for deposit to the
credit of the corporation in any of its duly authorized depositaries may be
made, without countersignature, by the President or any vice president or the
Chief Financial Officer or any assistant financial officer or by any other
officer or agent of the corporation to whom the Board of Directors or its duly
appointed and authorized committee, by resolution, shall have delegated such
power or by hand-stamped impression in the name of the corporation.
ARTICLE VII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 51. CERTIFICATE FOR SHARES. Every holder of shares in the
corporation shall be entitled to have a certificate signed in the name of the
corporation by the Chairman or Vice Chairman of the Board or the President or a
Vice President and by the Chief Financial Officer or an assistant financial
officer or by the Secretary or an assistant secretary, certifying the number of
shares and the class or series of shares owned by the stockholder. Any or all
of the signatures on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if such person were an officer, transfer
agent or registrar at the date of issue.
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<PAGE> 20
In the event that the corporation shall issue any shares as only partly
paid, the certificate issued to represent such partly paid shares shall have
stated thereon the total consideration to be paid for such shares and the
amount paid thereon.
SECTION 52. TRANSFER ON THE BOOKS. Upon surrender to the Secretary or
transfer agent (if any) of the corporation of a certificate for shares of the
corporation duly endorsed, with reasonable assurance that the endorsement is
genuine and effective, or accompanied by proper evidence of succession,
assignment or authority to transfer and upon compliance with applicable federal
and state securities laws and if the corporation has no statutory duty to
inquire into adverse claims or has discharged any such duty and if any
applicable law relating to the collection of taxes has been complied with, it
shall be the duty of the corporation, by its Secretary or transfer agent, to
cancel the old certificate, to issue a new certificate to the person entitled
thereto and to record the transaction on the books of the corporation.
SECTION 53. LOST, DESTROYED AND STOLEN CERTIFICATES. The holder of any
certificate for shares of the corporation alleged to have been lost, destroyed
or stolen shall notify the corporation by making a written affidavit or
affirmation of such fact. Upon receipt of said affidavit or affirmation the
Board of Directors, or its duly appointed and authorized committee or any
officer or officers authorized by the board so to do, may order the issuance of
a new certificate for shares in the place of any certificate previously issued
by the corporation and which is alleged to have been lost, destroyed or
stolen. However, the Board of Directors or such authorized committee, officer
or officers may require the owner of the allegedly lost, destroyed or stolen
certificate, or such owner's legal representative, to give the corporation a
bond or other adequate security sufficient to indemnify the corporation and its
transfer agent and/or registrar, if any, against any claim that may be made
against it or them on account of such allegedly lost, destroyed or stolen
certificate or the replacement thereof. Said bond or other security shall be
in such amount, on such terms and conditions and, in the case of a bond, with
such surety or sureties as may be acceptable to the Board of Directors or to
its duly appointed and authorized committee or any officer or officers
authorized by the Board of Directors to determine the sufficiency thereof. The
requirement of a bond or other security may be waived in particular cases at
the discretion of the Board of Directors or its duly appointed and authorized
committee or any officer or officers authorized by the Board of Directors to do
so.
SECTION 54. ISSUANCE, TRANSFER AND REGISTRATION OF SHARES. The Board of
Directors may make such rules and regulations, not inconsistent with law or
with these bylaws, as it may deem advisable concerning the issuance, transfer
and registration of certificates for shares of the capital stock of the
corporation. The Board of Directors may appoint a transfer agent or registrar
of transfers, or both, and may require all certificates for shares of the
corporation to bear the signature of either or both.
ARTICLE VIII
INSPECTION OF CORPORATE RECORDS
SECTION 55. INSPECTION BY DIRECTORS. Every director shall have the
absolute right at any reasonable time to inspect and copy all books, records,
and documents of every kind of the corporation and any of its subsidiaries and
to inspect the physical properties of the corporation
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<PAGE> 21
and any of its subsidiaries. Such inspection may be made by the director in
person or by agent or attorney, and the right of inspection includes the right
to copy and make extracts.
SECTION 56. INSPECTION BY STOCKHOLDERS
(a) INSPECTION OF CORPORATE RECORDS
(1) A stockholder or stockholders holding at least five percent
in the aggregate of the outstanding voting shares of the corporation or who
hold at least one percent of such voting shares and have filed a Schedule 14B
with the United States Securities and Exchange Commission relating to the
election of directors of the corporation shall have an absolute right to do
either or both of the following:
(A) Inspect and copy the record of stockholders' names and
addresses and shareholders during usual business hours upon five business days'
prior written demand upon the corporation; or
(B) obtain from the transfer agent, if any, for the
corporation, upon five business days' prior written demand and upon the tender
of its usual chargers for such a list (the amount of which charges shall be
stated to the stockholder by the transfer agent upon request), a list of the
stockholders, names and addresses who are entitled to vote for the election of
directors and their shareholdings, as of the most recent record date for which
it has been compiled or as of a date specified by the stockholder subsequent to
the date of demand.
(2) The record of stockholders shall also be open to inspection
and copying by any stockholder or holder of a voting trust certificate at any
time during usual business hours upon written demand on the corporation, for
a purpose reasonably related to such holder's interest as a stockholder or
holder of a voting trust certificate.
(3) The accounting books and records and minutes of proceedings
of the stockholders and the Board of Directors and of any committees of the
Board of Directors of the corporation and of each of its subsidiaries shall be
open to inspection, copying and making extracts upon written demand on the
corporation of any stockholder or holder of a voting trust certificate at any
reasonable time during usual business hours, for a purpose reasonably related
to such holder's interests as a stockholder or as a holder of such voting trust
certificate.
(4) Any inspection, copying, and making of extracts under this
subsection (a) may be done in person or by agent or attorney.
(b) INSPECTION OF BYLAWS. The Original or a copy of these bylaws
shall be kept as provided in Section 44 of these bylaws and shall be open to
inspection by the stockholders at all reasonable times during office hours. If
the principal executive office of the corporation is not in Delaware, and the
corporation has no principal business office in the state of Delaware current
copy of these bylaws shall be furnished to any stockholder upon written request.
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SECTION 57. WRITTEN FORM. If any record subject to inspection pursuant
to Section 56 above is not maintained in written form, a request for inspection
is not complied with unless and until the corporation at its expense makes such
record available in written form.
ARTICLE IX
MISCELLANEOUS
SECTION 58. FISCAL YEAR. Unless otherwise fixed by resolution of the
Board of Directors, the fiscal year of the corporation shall end on the 31st
day of December in each calendar year.
SECTION 59. ANNUAL REPORT.
(a) Subject to the provisions of Section 59(b) below, the Board of
Directors shall cause an annual report to be sent to each stockholder of the
corporation in the manner provided in Section 9 of these bylaws not later than
one hundred twenty (120) days after the close of the corporation's fiscal year.
Such report shall include a balance sheet as of the end of such fiscal year and
an income statement and statement of changes in financial position for such
fiscal year, accompanied by any report thereon of independent accountants or, if
there is no such report, the certificate of an authorized officer of the
corporation that such statements were prepared without audit from the books and
records of the corporation. When there are more than 100 stockholders of record
of the corporation's shares, provided that if the corporation has a class of
securities registered under Section 12 of the United States Securities Exchange
Act of 1934, that Act shall additional information as required by also be
contained in such report, shall take precedence. Such report shall be sent to
stockholders at least fifteen (15) days prior to the next annual meeting of
stockholders after the end of the fiscal year to which it relates.
(b) If and so long as there are fewer than 100 holders of record of
the corporation's shares, the requirement of sending of an annual report to the
stockholders of the corporation is hereby expressly waived.
SECTION 60. RECORD DATE. The Board of Directors may fix a time in the
future as a record date for the determination of the stockholders entitled to
notice of or to vote at any meeting or entitled to receive payment of any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any change, conversion or exchange of shares
or entitled to exercise any rights in respect of any change, conversion or
exchange of shares or entitled to exercise any rights in respect of any other
lawful action. The record date so fixed shall not be more than sixty (60) days
nor less than ten (10) days prior to the date of the meeting nor more than sixty
(60) days prior to any other action or event for the purpose of which it is
fixed. If no record date is fixed, the provisions of Section 15 of these bylaws
shall apply with respect to notice of meetings, votes, and consents and the
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolutions relating thereto or the sixtieth (60th) day prior to the date of
such other action or event, whichever is later.
Only stockholders of record at the close of business on the record date
shall be entitled to notice and to vote or to receive the dividend,
distribution or allotment of rights or to exercise the rights, as the case may
be, notwithstanding any transfer of any shares on the books of the
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<PAGE> 23
corporation after the record date, except as otherwise provided in the
Certificates of Incorporation, by agreement or by law.
SECTION 61. BYLAW AMENDMENTS. Except as otherwise provided by law or
Sections 19, 63 or 64 of these bylaws, these bylaws may be amended or repealed
by the Board of Directors or by the affirmative vote of a majority of the
outstanding shares entitled to vote, including, if applicable, the affirmative
vote of a majority of the outstanding shares of each class or series entitled
by law or the Certificates of Incorporation to vote as a class or series on the
amendment or repeal or adoption of any bylaw or bylaws.
SECTION 62. CONSTRUCTION AND DEFINITION. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions
contained in the General Corporation Law of the State of Delaware shall govern
the construction of these bylaws.
Without limiting the foregoing, "shall" is mandatory and "may" is
permissive.
ARTICLE X
INDEMNIFICATION
SECTION 63. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER
AGENTS.
(a) DIRECTORS AND EXECUTIVE OFFICERS. The corporation shall
indemnify its directors and executive officers to the fullest extent not
prohibited by the General Corporation Law of the State of Delaware; provided,
however, that the corporation may limit the extent of such indemnification by
individual contracts with its directors and executive officers; and, provided,
further, that the corporation shall not be required to indemnify any director
or executive officer in connection with any proceeding (or part thereof)
initiated by such person or any proceeding by such person against the
corporation or its directors, officers, employees or other agents unless (i)
such indemnification is expressly required to be made by law, (ii) the
proceeding was authorized by the board of directors of the corporation or (iii)
such indemnification is provided by the corporation, in its sole discretion,
pursuant to the powers vested in the corporation under the General Corporation
Law of the State of Delaware.
(b) OTHER OFFICERS, EMPLOYEES AND OTHER AGENTS. The corporation
shall have the power to indemnify its other officers, employees and other
agents as set forth in the General Corporation Law of the State of Delaware.
(c) DETERMINATION BY THE CORPORATION. Promptly after receipt of a
request for indemnification hereunder (and in any event within 90 days thereof)
a reasonable, good faith determination as to whether indemnification of the
director or executive officer is proper under the circumstances because such
director or executive officer has met the applicable standard of care shall be
made by:
(1) a majority vote of a quorum consisting of directors who
are not parties to such proceeding;
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<PAGE> 24
(2) if such quorum is not obtainable, by independent legal
counsel in a written opinion; or
(3) approval or ratification by the affirmative vote of a
majority of the shares of this corporation represented and voting at a duly
held meeting at which a quorum is present (which shares voting affirmatively
also constitute at least a majority of the required quorum) or by written
consent of a majority of the outstanding shares entitled to vote; where in each
case the shares owned by the person to be indemnified shall not be considered
entitled to vote thereon.
(d) GOOD FAITH.
(1) For purposes of any determination under this bylaw, a
director or executive officer shall be deemed to have acted in good faith and
in a manner he reasonably believed to be in the best interests of the
corporation and its stockholders, and, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe that his conduct was
unlawful, if his action is based on information, opinions, reports and
statements, including financial statements and other financial data, in each
case prepared or presented by:
(i) one or more officers or employees of the corporation
whom the director or executive director believed to be reliable and competent
in the matters presented;
(ii) counsel, independent accountants or other persons as
to matters which the director or executive officer believed to be within such
person's professional competence; and
(iii) with respect to a director, a committee of the Board
upon which such director does not serve, as to matters within such committee's
designated authority, which committee the director believes to merit
confidence; so long as, in each case, the director or executive officer acts
without knowledge that would cause such reliance to be unwarranted.
(2) The termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in the best interests
of the corporation and its stockholders or that he had reasonable cause to
believe that his conduct was unlawful.
(3) The provisions of this paragraph (d) shall not be deemed to
be exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth by the
California General Corporation Law.
(e) EXPENSES. The corporation shall advance, prior to the final
disposition of any proceeding, promptly following request therefor, all
expenses incurred by any director or executive officer in connection with such
proceeding upon receipt of an undertaking by or on behalf of such person to
repay said amounts if it shall be determined ultimately that such person is not
entitled to be indemnified under this bylaw or otherwise.
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<PAGE> 25
Notwithstanding the foregoing, unless otherwise determined pursuant to
paragraph (f) of this bylaw, no advance shall be made by the corporation if a
determination is reasonably and promptly made by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to the
proceeding (or, if no such quorum exists, by independent legal counsel in a
written opinion) that the facts known to the decision making party at the time
such determination is made demonstrate clearly and convincingly that such
person acted in bad faith or in a manner that such person did not believe to be
in the best interests of the corporation and its stockholders.
(f) ENFORCEMENT. Without the necessity of entering into an express
contract, all rights to indemnification and advances to directors and executive
officers under this bylaw shall be deemed to be contractual rights and be
effective to the same extent and as if provided for in a contract between the
corporation and the director or executive officer. Any right to indemnification
or advances granted by this bylaw to a director or executive officer shall be
enforceable by or on behalf of the person holding such right in the forum in
which the proceeding is or was pending or, if such forum is not available or a
determination is made that such forum is not convenient, in any court of
competent jurisdiction if (i) the claim for indemnification or advances is
denied, in whole or in part, or (ii) no disposition of such claim is made within
ninety (90) days of request therefor. The claimant in such enforcement action,
if successful in whole or in part, shall be entitled to be paid also the expense
of prosecuting his claim. The corporation shall be entitled to raise as a
defense to any such action that the claimant has not met the standards of
conduct that make it permissible under the General Corporation Law of the State
of Delaware for the corporation to indemnify the claimant for the amount
claimed. Neither the failure of the corporation (including its board of
directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in the General Corporation Law of the State of
Delaware, nor an actual determination by the corporation (including its board of
directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant has not met the applicable standard of
conduct.
(g) NON-EXCLUSIVITY OF RIGHTS. To the fullest extent permitted by the
corporation's Certificates of Incorporation and the General Corporation Law of
the State of Delaware, the rights conferred on any person by this bylaw shall
not be exclusive of any other right which such person may-have or hereafter
acquire under any statute, provision of the Certificates of Incorporation,
bylaws, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding office. The corporation is specifically authorized to enter into
individual contracts with any or all of its directors, officers, employees or
agents respecting indemnification and advances, to the fullest extent permitted
by the General Corporation Law of the State of Delaware and the corporation's
Certificates of Incorporation.
(h) SURVIVAL OF RIGHTS. The rights conferred on any person by this
bylaw shall continue as to a person who has ceased to be a director or
executive officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
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<PAGE> 26
(i) INSURANCE. The corporation, upon approval by the board of
directors, may purchase insurance on behalf of any person required or permitted
to be indemnified pursuant to this bylaw.
(j) AMENDMENTS. Any repeal or modification of this bylaw shall
only be prospective and shall not affect the rights under this bylaw in effect
at the time of the alleged occurrence of any action or omission to act that is
the cause of any and proceeding against any agent of the corporation.
(k) EMPLOYEE BENEFIT PLANS. The corporation shall indemnify the
directors and officers of the corporation who serve at the request of the
corporation as trustees, investment managers or other fiduciaries of employee
benefit plans to the fullest extent permitted by the General Corporation Law of
the State of Delaware.
(l) SAVING CLAUSE. If this bylaw or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and executive officer to
the fullest extent permitted by any applicable portion of this bylaw that shall
not have been invalidated, or by any other applicable law.
(m) CERTAIN DEFINITIONS. For the purposes of this bylaw, the
following definitions shall apply:
(1) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution,
defense, settlement and appeal of any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, arbitrative or
investigative.
(2) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness fees, fines,
amounts paid in settlement or judgment and any other costs and expenses of any
nature or kind incurred in connection with any proceeding, including expenses of
establishing a right to indemnification under this bylaw or any applicable law.
(3) The term the "corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this bylaw with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
(4) References to a "director," officer," "employee," or
"agent" of the corporation shall include, without limitation, situations where
such person is serving at the
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<PAGE> 27
ARTICLE XII
LOANS TO OFFICERS AND OTHERS
SECTION 65. CERTAIN CORPORATE LOANS AND GUARANTIES. The corporation may
make loans of money or property to, or guarantee the obligations of, any officer
of the corporation or its parent or any subsidiary, whether or not a director of
the corporation or its parent or any subsidiary, or adopt an employee benefit
plan or plans authorizing such loans or guaranties, upon the approval of the
Board of Directors alone, if the Board of Directors determines that such a loan
or guaranty or plan may reasonably be expected to benefit the corporation, and
to the fullest extent permitted by the General Corporation Law of the State of
Delaware.
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<PAGE> 1
EXHIBIT 3.25
CERTIFICATE OF MERGER
OF
MEDQUIST RECEIVABLES MANAGEMENT COMPANY
WITH AND INTO
ASSETCARE, INC.
The undersigned corporation, organized and existing under and by virtue of
the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. MedQuist Receivables Management Company, a New Jersey corporation
("MRMC"), is merging with and into AssetCare, Inc., a Georgia corporation
("AssetCare")(the "Merger"), and AssetCare will be the surviving Georgia
corporation following the Merger, using the name "AssetCare, Inc."
2. The Articles of Incorporation of AssetCare (the "Articles") will
continue after the Merger as the Articles of the surviving corporation until
thereafter duly amended in accordance with their terms and the Code.
3. The executed Plan of Merger pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is AssetCare, Inc., 2700 Cumberland Parkway, Suite 300, Atlanta,
Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any shareholder of any corporation
that is a party to the Merger.
5. The Merger has been duly approved by the written consent of the
sole shareholder of MRMC and by the written consent of the sole shareholder of
AssetCare.
6. The effective date of the Merger shall be May 31, 1996.
IN WITNESS WHEREOF, AssetCare has caused its duly authorized officer to
execute and deliver this Certificate of Merger as of the 29th day of May, 1996.
ASSETCARE, INC.
By: /s/ Michael R. Cote
----------------------------------------
Michael R. Cote
Senior Vice President - Finance
and Chief Financial Officer
<PAGE> 2
ASSETCARE, INC.
CERTIFICATE OF VERIFICATION OF
REQUEST FOR PUBLICATION
Pursuant to Section 14-2-1105.1(a) of the Georgia Business Corporation
Code, AssetCare, Inc., a Georgia corporation, hereby verifies that a request
for publication of a notice of merger to merge MedQuist Receivables Management
Company with and into AssetCare, Inc. and payment therefor have been made, as
required by Section 14-2-1105.1(b) of the Georgia Business Corporation Code.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this 29
day of May, 1996.
ASSETCARE, INC.
By: /s/William R. Spalding
----------------------------------------
William R. Spalding
Sr. Vice President - Administration
General Counsel and Secretary
<PAGE> 3
Secretary of State DOCKET NUMBER : 943560398
Business Services and Regulation CONTROL NUMBER : 9005383
Suite 315, West Tower EFFECTIVE DATE : 12/31/1994
2 Martin Luther King, Jr. Dr. REFERENCE : 0091
Atlanta, Georgia 30334-1530 PRINT DATE : 12/22/1994
FORM NUMBER : 411
PARANET CORPORATION SERVICES, INC.
DOUGLAS W. JUNKER
3761 VENTURE DRIVE
SUITE 260
DULUTH, GA 30136
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State of the State of Georgia, do hereby issue
this certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
ASSETCARE, INC., A GEORGIA CORPORATION
Nonsurviving Entity/Entities:
CBR COLLECTION SERVICES DIVISION, INC., A TEXAS CORPORATION
/s/Max Cleland
[SEAL] MAX CLELAND
SECRETARY OF STATE
/s/ Verley J. Spivey
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
<PAGE> 4
CERTIFICATE OF MERGER OF
CBR COLLECTION SERVICES DIVISION, INC.
WITH AND INTO
ASSETCARE, INC.
The undersigned corporation, organized and existing under and by virtue
of the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. CBR Collection Services Division, Inc., a Texas corporation
("CBR"), is merging with and into AssetCare, Inc., a Georgia corporation
("AssetCare")(the "Merger"), and AssetCare will be the surviving corporation
following the Merger, using the name "AssetCare, Inc."
2. The Articles of Incorporation of AssetCare (the "Articles") will
continue after the Merger as the Articles of the surviving corporation.
3. The executed Agreement and Plan of Merger pursuant to which the
Merger is being consummated is on file at the principal place of business of
the surviving corporation. The address of the principal place of business of
the surviving corporation is AssetCare, Inc., 2700 Cumberland Parkway, Suite
300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be finished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Agreement and Plan of Merger did not require approval by the
shareholders of AssetCare or CBR pursuant to Section 14-2-1104 of the Code.
6. The effective date of the Merger is December 31, 1994.
IN WITNESS WHEREOF, AssetCare has caused its duly authorized officer to
execute and deliver this Certificate of Merger as of the 21st day of December,
1994.
ASSETCARE, INC.
By: /s/ Randolph Gibson
----------------------------------------
Title: Co-Chairman
-------------------------------------
<PAGE> 5
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
CBR COLLECTION SERVICES DIVISION, INC. WITH AND INTO
ASSETCARE, INC.
The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by O.C.G.A., Section 14-2-1105.1(b).
AssetCare, Inc.
By: /s/Pamela S. Topper
----------------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 6
CERTIFICATE OF MERGER
OF
LEARNER-EUREKA, INC.
WITH AND INTO
ASSETCARE, INC.
The undersigned corporation, organized and existing under and by virtue
of the Georgia Business Corporation Code (the "Code"), DOES HEREBY CERTIFY:
1. Learner-Eureka, Inc., a California corporation ("LEI"), is merging
with and into AssetCare, Inc., a Georgia corporation ("AssetCare") (the
"Merger"), and AssetCare will be the surviving corporation following the
Merger, using the name "AssetCare, Inc."
2. The Articles of Incorporation of AssetCare (the "Articles") will
continue after the Merger as the Articles of the surviving corporation.
3. The executed Agreement and Plan of Merger pursuant to which the
Merger is being consummated is on file at the principal place of business of
the surviving corporation. The address of the principal place of business of
the surviving corporation is AssetCare, Inc., 2700 Cumberland Parkway, Suite
300, Atlanta, Georgia 30339.
4. A copy of the Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any corporation
that is a party to the Merger.
5. The Agreement and Plan of Merger did not require approval by the
shareholders of AssetCare or LEI pursuant to Section 14-2-1104 of the Code.
IN WITNESS WHEREOF, AssetCare has caused its duly authorized officer to
execute and deliver this Certificate of Merger as of the 29th day of July, 1994.
ASSETCARE, INC.
By: /s/ Randolph Gibson
----------------------------------------
Title: Co-Chairman
-------------------------------------
<PAGE> 7
CERTIFICATE OF PUBLICATION OF CERTIFICATE OF MERGER OF
LEARNER-EUREKA, INC. WITH AND INTO
ASSETCARE, INC.
The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as a required by O.C.G.A., Section 14-2-1105.1(b).
AssetCare, Inc.
By: /s/Pamela S. Topper
----------------------------------------
Pamela S. Topper
Vice President, General Counsel
and Secretary
<PAGE> 8
Secretary of State DOCKET NUMBER : 920490021
Business Services And Regulation CONTROL NUMBER : 9005383
Suite 315, West Tower EFFECTIVE DATE : 02/13/1992
2 Martin Luther King, Jr. Dr. REFERENCE : 0045
Atlanta, Georgia 30334-1530 PRINT DATE : 03/05/1992
FORM NUMBER : 111
MEDAPHIS CORPORATION
MICHELE SCOLLARD
2700 CUMBERLAND PKWY., STE. 300
ATLANTA, GEORGIA 30339
CERTIFICATE OF AMENDMENT
I, MAX CLELAND, Secretary of State and the Corporation Commissioner of the
State of Georgia, do hereby certify under the seal of my office that
ASSETCARE, INC.
a domestic profit corporation
has filed articles of amendment in the office of the Secretary of State and has
paid the required fees as provided by Title 14 of the Official Code of Georgia
Annotated. Attached hereto is a true and correct copy of said articles of
amendment.
WITNESS my hand and official seal in the City of Atlanta and the State of
Georgia on the date set forth above.
/s/Max Cleland
-----------------------------
MAX CLELAND
SECRETARY OF STATE
/s/VERLEY J. SPIVEY
-----------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOTLINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro Atlanta
<PAGE> 9
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
ASSETCARE, INC.
1.
The name of the Corporation is AssetCare, Inc.
2.
The amendment to the Corporation's Articles of Incorporation is to amend
Article 2 of the Articles of Incorporation so that Article 2 shall hereafter be
as follows:
"2.
The Corporation is authorized to issue 12,000 shares of stock, designated
as "Common Stock."
3.
Said amendment was adopted by the Board of Directors of the Corporation
as of February 10, 1992.
4.
Said amendment was duly adopted by the Board of Directors without
shareholder action in accordance with Code Section 14-2-1002(6) of the Georgia
Business Corporation Code.
IN WITNESS WHEREOF, AssetCare, Inc. has caused these Articles of
Amendment to be executed, its corporate seal to be affixed, and
<PAGE> 10
its seal and the execution hereof to be attested to by its duly authorized
officers, this 10th day of February, 1992.
ASSETCARE, INC.
By: /s/Dennis R. Byerly
----------------------------------------
Dennis R. Byerly
Chairman
[CORPORATE SEAL]
Attest:
By: /s/Pamela S. Topper
-------------------------------
Pamela S. Topper
Secretary
<PAGE> 11
Secretary of State TRANSACTION NUMBER: 91331066 (067)
Business Services And Regulation CONTROL NUMBER : 9005383
Suite 315, West Tower DATE INCORPORATED : 03/21/90
2 Martin Luther King, Jr. Dr. DATE AMENDED : 11/27/91
Atlanta, Georgia 30334-1530 EXAMINER : DONNA HYDE
TELEPHONE : 404-656-0624
REQUESTED BY:
MEDAPHIS PHYSICIAN SERVICES CORPORATION
MICHELE SCOLLARD
210 INTERSTATE NORTH, SUITE 601
ATLANTA, GEORGIA 30339
CERTIFICATE OF AMENDMENT
I, MAX CLELAND, Secretary of State and Corporations Commissioner of the
State of Georgia do hereby certify, under the seal of my office, that the
articles of incorporation of
- -------------------------------------------------------------------------------
"INTEGRATEC RECEIVABLE MANAGEMENT, INC."
- -------------------------------------------------------------------------------
have been duly amended under the laws of the State of Georgia, changing its
name to
- -------------------------------------------------------------------------------
"ASSETCARE, INC."
- -------------------------------------------------------------------------------
by the filing of articles of amendment in the office of the Secretary of State
and the fees therefor paid, as provided by law, and that attached hereto is a
true and correct copy of said articles of amendment.
WITNESS, my hand and official seal, in the City of Atlanta and the State
of Georgia on the date set forth below.
DATE: NOVEMBER 27, 1991
FORM A3 (JULY 1989)
/s/Max Cleland
---------------------------------
MAX CLELAND
SECRETARY OF STATE
/s/Verley J. Spivey
---------------------------------
VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro Atlanta
<PAGE> 12
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
1.
The name of the Corporation is INTEGRATEC Receivable Management, Inc.
2.
The amendment to the Corporation's Article of Incorporation is to amend
Article 1 of the Articles of Incorporation so that Article 1 shall hereafter be
as follows:
"1.
The name of the Corporation is AssetCare, Inc."
3.
Said amendment was adopted by the Board of Directors of the Corporation
as of August 20, 1991.
4.
Said amendment was duly adopted by the Board of Directors without
shareholder action in accordance with Code Section 14-2-1002(6) of the Georgia
Business Corporation Code.
IN WITNESS WHEREOF, INTEGRATEC Receivable Management, Inc. has caused
these Articles of Amendment to be executed, its corporate
<PAGE> 13
seal to be affixed, and its seal and the execution hereof to be attested to by
its July authorized officers, this 27th day of November, 1991.
INTEGRATEC RECEIVABLE
MANAGEMENT, INC.
By: /s/Dennis R. Byerly
----------------------------------------
Dennis R. Byerly
Chairman
[CORPORATE SEAL]
Attest:
By: /s/Bruce B. Cox
-------------------------------
Bruce B. Cox
Assistant Secretary
<PAGE> 14
Secretary of State FORM NUMBER : NR
Business Services And Regulation CERTIFICATE DATE : 10/22/91
Suite 315, West Tower DOCKET NUMBER : 93290048
2 Martin Luther King, Jr. Dr. EXAMINER : STACEY GILLEY
Atlanta, Georgia 30334-1530 TELEPHONE : 404-656-3173
REQUESTED BY:
MICHELLE SCOLLARD/ARTRAC CORP.
5990 OAKBROOK PKWY.
NORCROSS, GA 30093
NAME RESERVATION CERTIFICATE
THE RECORDS OF THE SECRETARY OF STATE HAVE BEEN REVIEWED AND THE
FOLLOWING NAME IS NOT IDENTICAL TO, AND APPEARS TO BE DISTINGUISHABLE FROM, THE
NAME OF ANY OTHER EXISTING CORPORATION PROFESSIONAL ASSOCIATION, OR LIMITED
PARTNERSHIP ON FILE PURSUANT TO THE APPLICABLE PROVISIONS OF GEORGIA LAW.
(TITLE 14 OF THE OFFICIAL CODE OF GEORGIA ANNOTATED).
- -------------------------------------------------------------------------------
"ASSETCARE, INC."
- -------------------------------------------------------------------------------
THIS CERTIFICATE SHALL BE VALID FOR A NONRENEWABLE PERIOD OF NINETY (90)
DAYS FOR PROFIT AND NONPROFIT CORPORATIONS, PROFESSIONAL ASSOCIATIONS (DP, FP,
DM, FM,& PA), OR LIMITED PARTNERSHIPS (7D OR 7F), FROM THE DATE OF THIS
CERTIFICATE. PLEASE SUBMIT THE ORIGINAL CERTIFICATE (WHITE COPY) WITH THE
ARTICLES OF INCORPORATION, CERTIFICATE OF LIMITED PARTNERSHIP, APPLICATION FOR
PROFESSIONAL ASSOCIATION OR CERTIFICATE OF AUTHORITY TO TRANSACT BUSINESS.
NAME RESERVATIONS ARE NOT RENEWABLE AFTER EXPIRATION OF THE STATUTORY
RESERVATION PERIOD SET OUT ABOVE.
/s/ Max Cleland
-----------------------------------
MAX CLELAND
SECRETARY OF STATE
/s/ Verley J. Spivey
-----------------------------------
[SEAL] VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro Atlanta
<PAGE> 15
Secretary of State TRANSACTION NUMBER: 90333391(392)
Business Services And Regulation CHARTER NUMBER : 9005383
Suite 315, West Tower DATE INCORPORATED : 03/21/90
2 Martin Luther King, Jr. Dr. EFFECTIVE DATE : 11/27/90
Atlanta, Georgia 30334-1530 EXAMINER : DONNA HYDE
TELEPHONE : 404-656-0624
REQUESTED BY:
CT CORPORATION SYSTEM
KATHY SLAYMAN
2 PEACHTREE STREET, NW
ATLANTA, GEORGIA 30383
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State and the Corporations Commissioner of the
State of Georgia do hereby certify, under the seal of my office, that articles
of merger have been duly filed on the effective date set forth above, merging
- -------------------------------------------------------------------------------
"CREDIT UNION PROCESSING SYSTEMS, INC.," a Georgia corporation
with and into
"INTEGRATEC RECEIVABLE MANAGEMENT, INC.," a Georgia corporation
- -------------------------------------------------------------------------------
and the fees therefor paid as provided by law, and that attached hereto is a
true and correct copy of said articles of merger.
WITNESS, my hand and official seal, in the City of Atlanta and the State
of Georgia on the date set forth below.
DATE: NOVEMBER 29, 1990
FORM A6 (JULY 1989)
/s/ Max Cleland
-----------------------------------
MAX CLELAND
SECRETARY OF STATE
/s/ Verley J. Spivey
-----------------------------------
[SEAL] VERLEY J. SPIVEY
DEPUTY SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro Atlanta
<PAGE> 16
ARTICLES OF MERGER
OF
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
AND
CREDIT UNION PROCESSING SYSTEMS, INC.
INTO
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
Pursuant to the provisions of Section 14-2-1105 of the Official Code of
Georgia Annotated, the undersigned corporations adopt the following articles of
merger:
1. The plan of merger is set forth as Exhibit A.
2. As to Credit Union Processing Systems, the plan was duly approved
by the shareholders on September 29, 1990.
As to Integratec Receivable Management, the plan was duly approved
by the shareholders on September 29, 1990.
3. The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by law.
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
/s/James F. Richards
- -------------------------------------
JAMES F. RICHARDS - PRESIDENT
/s/James J. Thorpe
- -------------------------------------
JAMES J. THORPE - SECRETARY
<PAGE> 17
EXHIBIT "A"
AGREEMENT AND PLAN OF MERGER
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
AND
CREDIT UNION PROCESSING SYSTEMS, INC.
This Agreement and Plan of Merger made and entered into this 28th day of
September, 1990 hereinafter referred to as the "Agreement") by and between
INTEGRATEC RECEIVABLE MANAGEMENT, INC., a Georgia corporation, and CREDIT UNION
PROCESSING SYSTEMS, INC., a Georgia corporation, (said corporations being
hereinafter sometimes referred to as the "Constituent Corporations"):
W I T N E S S E T H:
WHEREAS, INTEGRATEC RECEIVABLE MANAGEMENT, INC. is a corporation duly
organized and validly existing under the laws of the State of Georgia; and
WHEREAS, CREDIT UNION PROCESSING SYSTEMS, INC. is a corporation duly
organized and validly existing under the laws of the State of Georgia; and
WHEREAS, The Boards of Directors of each of said corporations deem it
advisable and for the benefit of each of said corporations and their respective
shareholders that CREDIT UNION PROCESSING SYSTEMS, INC. merge itself into
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
-1-
<PAGE> 18
NOW, THEREFORE, for and in consideration of the premises and of the
mutual agreements, promises and covenants hereinafter contained, it is hereby
agreed by and between the parties hereto subject to the approval and adoption of
this Agreement by the respective shareholders of each of the constituent
Corporations, and subject to the conditions hereafter set forth, that CREDIT
UNION PROCESSING, INC. be merged into INTEGRATEC RECEIVABLE MANAGEMENT, INC.
(hereinafter sometimes referred to as the "Surviving Corporation"), the
corporate existence of which shall be continued under the same name and
thereafter the individual existence of CREDIT UNION PROCESSING, INC. shall
cease. The terms and conditions of the merger hereby agreed upon and the mode
of carrying the same into effect and the manner of converting the shares of
CREDIT UNION PROCESSING, INC. into securities of the Surviving Corporation are
and shall be as follows:
1.
The acts and things required to be done by the Georgia Business
Corporation Code (the "Code") in order to make this Agreement effective,
including the submission of this Agreement to the shareholders of both of the
Constituent Corporations and the filing of the Articles of Merger in the
manner provided for the Code, shall be attended to and done by the proper
officers of the Constituent Corporations as soon as practicable.
2.
The merger herein contemplated shall be effective upon filing the
Articles of Merger with the Secretary of State.
-2-
<PAGE> 19
3.
The articles of Incorporation of INTEGRATEC RECEIVABLE MANAGEMENT, INC.
shall on the Effective date be the Articles of Incorporation of the Surviving
Corporation.
4.
Until altered, amended, or repealed as therein provided, the By-Laws of
INTEGRATEC RECEIVABLE MANAGEMENT, INC. as in effect on the Effective Date
shall be the By-Laws of the Surviving Corporation.
5.
Upon the merger contemplated herein becoming effective, the directors of
the Surviving Corporation shall be as follows:
A. Wayne Johnson
John H. Gilbride
James F. Burns, Jr.
These persons shall hold office until the next annual meeting of the
shareholders of the Surviving Corporation and until their respective successors
are elected in accordance with the By-Laws of the Surviving Corporation. If on
the Effective Date any vacancy shall exist on the Board of Directors of the
Surviving Corporation, the vacancy shall be filled in the manner specified in
the By-Laws of the Surviving Corporation.
6.
(a) Upon the Effective Date of the merger:
(i) Each share of the Common Stock of INTEGRATEC RECEIVABLE MANAGEMENT,
INC., issued and outstanding immediately prior to the Effective Date shall
continue unchanged and shall continue to evidence the same number of shares of
Common Stock of the Surviving Corporation.
-3-
<PAGE> 20
(ii) Each share of the Common Stock of CREDIT UNION PROCESSING SYSTEMS,
INC. shall be converted into One One Thousandth (1/1000) of one share of the
Common Stock of the Surviving Corporation.
(b) From and after the Effective Date, each holder of any of the shares
to be converted as above provided shall be entitled, upon presentation and
surrender to the Surviving Corporation of the certificates representing such
shares, to receive in exchange therefor certificates representing the number of
shares (including fractional shares) of the stock of the Surviving Corporation
into which such shares shall have been converted. The surrendered shares shall
be canceled. Until so surrendered, each outstanding certificate which prior to
the Effective Date of the merger represented common stock of CREDIT UNION
PROCESSING SYSTEMS, INC. shall be deemed for all corporate purposes to evidence
ownership of the number of common shares of the Surviving Corporation into
which the same shall have been converted.
7.
Upon the Effective Date, the separate existence of CREDIT UNION
PROCESSING SYSTEMS, INC. shall cease, and in accordance with the terms of this
Agreement, the Surviving Corporation shall possess all the rights, privileges,
immunities and franchises, of public as and of a private nature, of each of the
Constituent Corporations; and all property, real, personal and mixed, and all
debts due on whatever account, including subscriptions to shares, and all other
chooses in action and all every other interest of or belonging to or due to each
of such corporations shall be taken and deemed to be transferred to and vested
in the Surviving Corporation without further act or deed; and all property,
rights and privileges, powers
-4-
<PAGE> 21
and franchises and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as they were of the
respective Constituent Corporations, and the title to any real estate, whether
by deed or otherwise, vested in either of said corporations, shall not revert
or be in any way impaired by reason of this merger. The Surviving Corporation
shall thenceforth be reasonable and liable for all the liabilities and
obligations of the Constituent Corporations, and any claim existing or action
or proceeding pending by or against either of said Constituent Corporations may
be prosecuted as if the merger had not taken place, or the Surviving
Corporation may be substituted in its place. Neither the rights of creditors
nor any liens upon the property of either of the Constituent Corporations shall
be impaired by the merger.
8.
If at any time the Surviving Corporation shall consider or be advised that
any further assignments or assurances in law or any things are necessary or
desirable to vest in said corporation, according to the terms hereof, the title
to any property or rights of CREDIT UNION PROCESSING SYSTEMS, INC., the proper
officers and directors of CREDIT UNION PROCESSING SYSTEMS, INC. shall and will
execute and make all such proper assignments and assurances and do all things
necessary or proper to vest title in such property or rights in the Surviving
Corporation, and otherwise to carry out the purposes of this Agreement.
9.
From the date of this Agreement until the Effective Date or until the
abandonment of the merger pursuant to the provisions hereof:
-5-
<PAGE> 22
(a) CREDIT UNION PROCESSING SYSTEMS, INC. and INTEGRATEC RECEIVABLE
MANAGEMENT, INC. shall continue to conduct their respective businesses in the
ordinary course and neither CREDIT UNION PROCESSING SYSTEMS, INC., nor
INTEGRATEC RECEIVABLE MANAGEMENT, INC. shall, without the prior written consent
of the other, engage in any transaction or incur any obligation except in the
ordinary course of business or as otherwise authorized by this Agreement.
Without limiting the foregoing, neither CREDIT UNION PROCESSING SYSTEMS, INC.
nor INTEGRATEC RECEIVABLE MANAGEMENT, INC. shall during the foregoing period,
without the prior consent of the other:
(i) amend its Articles of Incorporation, except as may be necessary to
carry out this Agreement or as required by law.
(ii) borrow any money, other than short term borrowings in the ordinary
course of business.
(iii) issue, sell, encumber or otherwise dispose of any shares of its
capital stock.
(iv) declare, authorize or pay any dividend on, make any distribution in
respect of, redeem or acquire for value any shares of its capital stock,
directly or indirectly.
(v) sell, lease or otherwise dispose of any part of its property or
assets, except in the ordinary course of business; enter into any new plans or
agreements for the benefit of officers or employees or increase the benefits
under any existing such plan.
(vi) make any purchase of real estate, personal property, merchandise or
securities, except in the ordinary course of business.
(b) CREDIT UNION PROCESSING SYSTEMS, INC. and INTEGRATEC
-6-
<PAGE> 23
RECEIVABLE MANAGEMENT, INC. shall each make available for examination by the
other as requested, in addition to its financial statements, any inventory and
other detailed records in support of such statements, records of important
contracts, commitments, leases, licensing agreements, deeds, title insurance
policies, patents, trademarks, and other evidence of interest or ownership in
property; details and status of the various funds, plans, profit sharing and
deferred compensation agreements, if any, stock option plans and other
provisions of either party for the benefit of its officers and employees,
income tax returns, audit material and related data, information concerning
claims, litigation threatened or pending, and all other information relevant to
their respective businesses and to the merger herein contemplated.
(c) With respect to all leases and other interests or instruments under
which either CREDIT UNION PROCESSING SYSTEMS, INC. or INTEGRATEC RECEIVABLE
MANAGEMENT, INC. is obligated to obtain a consent prior to the merger herein
contemplated in order to comply with the conditions thereof or to invest its
interest therein in the Surviving Corporation, CREDIT UNION PROCESSING SYSTEMS,
INC. or INTEGRATEC RECEIVABLE MANAGEMENT, INC., respectively, will exercise all
reasonable efforts to obtain such consent.
10.
CREDIT UNION PROCESSING SYSTEMS, INC. represents and warrants to
INTEGRATEC RECEIVABLE MANAGEMENT, INC. as follows:
(a) CREDIT UNION PROCESSING SYSTEMS, INC. is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia, has full corporate power to carry on its business as it is now
-7-
<PAGE> 24
being conducted and to own and operate the properties and assets now owned or
operated by it and is duly qualified to do business and is in good standing in
each jurisdiction where the conduct of its business or the ownership of its
property requires such qualification.
(b) All of the outstanding shares of CREDIT UNION PROCESSING SYSTEMS,
INC. are validly issued, fully paid and non-assessable.
(c) CREDIT UNION PROCESSING SYSTEMS, INC. has authorized capital stock of
one thousand (1,000) shares and has one thousand (1,000) outstanding shares.
(d) All federal, state and other tax returns and reports that are
required by law to be filed by CREDIT UNION PROCESSING SYSTEMS, INC. have been
duly filed and all taxes, assessments, fees and other governmental charges
shown to be due on said returns and reports have been paid.
(e) There is no suit, action or litigation, administrative, arbitration
or other proceedings, or any change in the zoning or building ordinances
affecting the real property, or leasehold interest of CREDIT UNION PROCESSING
SYSTEMS, INC. pending or (to the knowledge of the management of CREDIT UNION
PROCESSING SYSTEMS, INC.) threatened, which might materially and adversely
affect the overall financial condition, business or property of CREDIT UNION
PROCESSING SYSTEMS, INC. CREDIT UNION PROCESSING SYSTEMS, INC. has complied
with and is not in default in any material respect under any laws, ordinances,
requirements, regulations or orders applicable to its business.
(f) The execution of this Agreement has been duly authorized by the Board
of Directors of CREDIT UNION PROCESSING SYSTEMS, INC. and no further corporate
action is necessary for the execution hereof. Neither the
-8-
<PAGE> 25
execution and delivery of this Agreement, nor the consummation of the
transaction provided for herein, will violate any material agreement to which
CREDIT UNION PROCESSING SYSTEMS, INC. or any law, order or decree.
11.
INTEGRATEC RECEIVABLE MANAGEMENT, INC. represents and warrants to CREDIT
UNION PROCESSING SYSTEMS, INC. as follows:
(a) INTEGRATEC RECEIVABLE MANAGEMENT, INC. is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia, has full corporate power to carry on its business as it is now being
conducted and to own and operate the properties and assets now owned or
operated by it and is duly qualified to do business and is in good standing in
each jurisdiction where the conduct of its business or the ownership of its
property requires such qualification.
(b) All of the outstanding shares of INTEGRATEC RECEIVABLE MANAGEMENT,
INC. are validly issued, fully paid and non-assessable.
(c) INTEGRATEC RECEIVABLE MANAGEMENT, INC. has authorized capital stock
of ten thousand (10,000) shares and has nine thousand nine hundred and ninety
eight (9,998) outstanding shares.
(d) All federal, state, and other tax returns and reports that are
required by law to be filed by INTEGRATEC RECEIVABLE MANAGEMENT, INC. have been
duly filed and all taxes, assessments, fees and other governmental charges
shown to be due on said returns and reports have been paid.
(e) There is no suit, action or litigation, administrative, arbitration
or other proceedings, or any change in the zoning or building ordinances
affecting the real property, or leasehold interest of
-9-
<PAGE> 26
INTEGRATEC RECEIVABLE MANAGEMENT, INC. pending or (to the knowledge of the
management of INTEGRATEC RECEIVABLE MANAGEMENT, INC.) threatened, which might
materially and adversely affect the overall financial condition, business or
property of INTEGRATEC RECEIVABLE MANAGEMENT, INC. INTEGRATEC RECEIVABLE
MANAGEMENT, INC. has complied with and is not in default in any material respect
under any laws, ordinances, requirements, regulations or orders applicable to
its business.
(f) The execution of this Agreement has been duly authorized by the Board
of Directors of INTEGRATEC RECEIVABLE MANAGEMENT, INC. and no further corporate
action is necessary for the execution hereof. Neither the execution and
delivery of this Agreement, nor the consummation of the transaction provided for
herein, will violate any material agreement to which INTEGRATEC RECEIVABLE
MANAGEMENT, INC. is a party or by which it is bound or any provisions of the
Articles of Incorporation or By-Laws of INTEGRATEC RECEIVABLE MANAGEMENT, INC.
or any law, order or decree.
12.
If the merger contemplated hereby becomes effective, all expenses incurred
hereunder shall be borne by the Surviving Corporation. If, for any reason other
than breach of the covenants of the parties set forth herein, the merger shall
not become effective or shall be abandoned, then each of the Constituent
Corporations shall bear its own expenses, separately incurred in connection
herewith, with no liability to the other party hereto, and each shall pay
one-half of the expenses incurred by them jointly.
13.
Each of the Constituent Corporations represents to the other that it
-10-
<PAGE> 27
has not incurred and will not incur any liability for brokerage fees or agent's
commissions in connection with the Agreement and the merger contemplated hereby.
14.
The warranties and representations of the Constituent Corporations
contained in paragraphs 9 and 10 of this Agreement shall survive the Effective
Date.
15.
At any time before or after approval and adoption by the respective
shareholders of the Constituent Corporations, this Agreement may be modified in
matter of form, or supplemented by additional agreements, articles or
certificates, as may be mutually determined by the Board of Directors of the
Constituent Corporations to be necessary, desirable or expedient to clarify the
intention of the parties hereto or to effect or facilitate the filing, recording
or official approval of this Agreement and the consummation of the merger herein
contemplated, in accordance with the purpose and intent of this Agreement.
IN WITNESS WHEREOF, INTEGRATEC RECEIVABLE MANAGEMENT, INC. and CREDIT UNION
PROCESSING SYSTEMS, INC. have each caused this Agreement and Plan of Merger to
be executed on their respective behalf and their respective corporate seals
affixed and the foregoing attested, all by their respective duly authorized
officers on the 28th day of September, 1990.
-11-
<PAGE> 28
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
By: /s/ James F. Richards
----------------------------------
James F. Richards, President
ATTEST:
/s/ James J. Thorpe
- ------------------------
James J. Thorpe, Secretary
[CORPORATE SEAL]
CREDIT UNION PROCESSING SYSTEMS, INC.
By: /s/ James F. Burns
----------------------------------
James F. Burns
ATTEST:
/s/ James F. Burns
- -----------------------
James F. Burns
[CORPORATE SEAL]
-12-
<PAGE> 29
Secretary of State TRANSACTION NUMBER : 90331187 (188)
Business Services And Regulation CHARTER NUMBER : 9005383
Suite 315, West Tower DATE INCORPORATED : 03/21/90
2 Martin Luther King, Jr., Dr. EFFECTIVE DATE : 11/27/90
Atlanta, Georgia 30334-1530 EXAMINER : DONNA HYDE
TELEPHONE : 404 656-0624
REQUESTED BY:
CT CORPORATION SYSTEM
MICHELLE FEIGENBUAM
2 PEACHTREE STREET, NW
ATLANTA, GEORGIA 30383
CERTIFICATE OF MERGER
I, MAX CLELAND, Secretary of State and the Corporations Commissioner of
the State of Georgia do hereby certify, under the seal of my office, that
articles of merger have been duly filed on the effective date set forth above,
merging
"CREDITORS MERCANTILE, INC.", a Georgia corporation
with and into
"INTEGRATEC RECEIVABLE MANAGEMENT, INC.", a Georgia Corporation
and the fees paid as provided by law, and that attached hereto is a true and
correct copy of said articles of merger.
WITNESS, my hand and official seal, in the City of Atlanta and the State
of Georgia on the date set forth below.
DATE: NOVEMBER 27, 1990
FORM AC (JULY 1989)
[SEAL] /s/ MAX CLELAND
--------------------
MAX CLELAND
SECRETARY OF STATE
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2817 404-656-2222
Outside Metro Atlanta
<PAGE> 30
ARTICLES OF MERGER
of
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
and
CREDITORS MERCANTILE, INC.
into
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
Pursuant to the provisions of Section 14-2-1105 of the Official Code of
Georgia Annotated, the undersigned corporations adopt the following articles of
merger:
1. The plan of merger is set forth as Exhibit A.
2. As to Creditors Mercantile, Inc., the plan was duly approved by the
shareholders on September 29, 1990.
As to Integratec Receivable Management, the plan was duly approved
by the shareholders on September 29, 1990.
3. The surviving corporation certifies that a Notice of Merger and a
publishing fee of $40.00 have been mailed or delivered to an authorized
newspaper, as required by law.
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
/s/ James F. Richards
- ------------------------------
JAMES F. RICHARDS - PRESIDENT
/s/ James J. Thorpe
- ------------------------------
JAMES J. THORPE - SECRETARY
<PAGE> 31
EXHIBIT "A"
AGREEMENT AND PLAN OF MERGER
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
AND
CREDITORS MERCANTILE, INC.
This Agreement and Plan of Merger made and entered into this 28th day of
September, 1990 (hereinafter referred to as the "Agreement") by and between
INTEGRATEC RECEIVABLE MANAGEMENT, INC., a Georgia corporation, and CREDITORS
MERCANTILE, INC., a Georgia corporation (said corporations being hereinafter
sometimes referred to as the "Constituent Corporations"):
WITNESSETH:
WHEREAS, INTEGRATEC RECEIVABLE MANAGEMENT, INC. is a corporation duly
organized and validly existing under the laws of the State of Georgia; and
WHEREAS CREDITORS MERCANTILE, INC. is a corporation duly organized and
validly existing under the laws of the State of Georgia; and
WHEREAS, the Boards of Directors of each of said corporations deem it
advisable and for the benefit of each of said corporations and their respective
shareholders that CREDITORS MERCANTILE, INC. merge itself into INTEGRATEC
RECEIVABLE MANAGEMENT, INC.
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<PAGE> 32
NOW, THEREFORE, for and in consideration of the premises and of the mutual
agreements, promises and covenants hereinafter contained, it is hereby agreed
by and between the parties hereto subject to the approval and adoption of this
Agreement by the respective shareholders of each of the constituent
Corporations, and subject to the conditions hereafter set forth, that CREDITORS
MERCANTILE, INC. be merged into INTEGRATEC RECEIVABLE MANAGEMENT, INC.
(hereinafter sometimes referred to as the "Surviving Corporation"), the
corporate existence of which shall be continued under the same name and
thereafter the individual existence of CREDITORS MERCANTILE, INC. shall cease.
The terms and conditions of the merger hereby agreed upon and the mode of
carrying the same into effect and the manner of converting the shares of
CREDITORS MERCANTILE, INC. into securities of the Surviving Corporation are and
shall be as follows:
1.
The acts and things required to be done by the Georgia Business
Corporation Code (the "Code") in order to make this Agreement effective,
including the submission of this Agreement to the shareholders of both of the
Constituent Corporations and the filing of the Articles of Merger in the manner
provided for the Code, shall be attended to and done by the proper officers of
the Constituent Corporations as soon as practicable.
2.
The merger herein contemplated shall be effective upon filing the Articles
of Merger with the Secretary of State.
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<PAGE> 33
3.
The articles of Incorporation of INTEGRATEC RECEIVABLE MANAGEMENT, INC.
shall on the Effective date be the Articles of Incorporation of the Surviving
Corporation.
4.
Until altered, amended, or repealed as therein provided, the By-Laws of
INTEGRATEC RECEIVABLE MANAGEMENT, INC. as in effect on the Effective Date
shall be the By-Laws of the surviving Corporation.
5.
Upon the merger contemplated herein becoming effective, the directors of
the Surviving Corporation shall be as follows:
A. Wayne Johnson
John H. Gilbride
James F. Burns, Jr.
These persons shall hold office until the next annual meeting of the
shareholders of the Surviving Corporation and until their respective successors
are elected in accordance with the By-laws of the Surviving Corporation. If on
the Effective Date any vacancy shall exist on the Board of Directors of the
Surviving Corporation, the vacancy shall be filled in the manner specified in
the By-Laws of the Surviving Corporation.
6.
(a) Upon the Effective Date of the merger:
(i) Each share of the Common Stock of INTEGRATEC RECEIVABLE MANAGEMENT,
INC., issued and outstanding immediately prior to the Effective Date shall
continue unchanged and shall continue to evidence the same number of shares of
Common Stock of the Surviving Corporation.
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<PAGE> 34
(ii) Each share of the Common Stock of CREDITORS MERCANTILE, INC. shall be
converted into One One Thousandth (1/1000) of one share of the Common Stock of
the Surviving Corporation.
(b) From and after the Effective Date, each holder of any of the shares
to be converted as above provided shall be entitled, upon presentation and
surrender to the Surviving Corporation of the certificates representing such
shares, to receive in exchange therefor certificates representing the number of
shares (including fractional shares) of the stock of the Surviving Corporation
into which such shares shall have been converted. The surrendered shares shall
be canceled. Until so surrendered each outstanding certificate which prior to
the Effective Date of the merger represented common stock of CREDITORS
MERCANTILE, INC. shall be deemed for all corporate purposes to evidence
ownership of the number of common shares of the Surviving Corporation into
which the same shall have been converted.
7.
Upon the Effective Date, the Separate existence of CREDITORS MERCANTILE,
INC. shall cease, and in accordance with the terms of this Agreement, the
Surviving Corporation shall possess all the rights, privileges, immunities
or franchises, of public as and of a private nature, of each of the Constituent
Corporations; and all property, real, personal and mixed, and all debts due on
whatever account, including subscriptions to shares, and all other chooses in
action and all every other interest of or belonging to or due to each of such
corporations shall be taken and deemed to be transferred to and vested in the
Surviving Corporation without further act or deed; and all property, rights and
privileges, powers
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<PAGE> 35
and franchises and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as they were of the
respective Constituent Corporations, and the title to any real estate, whether
by deed or otherwise, vested in either of said corporations, shall not revert
or be in any way impaired by reason of this merger. The Surviving Corporation
shall thenceforth be reasonable and liable for all the liabilities and
obligations of the Constituent Corporations, and any claim existing or action
or proceeding pending by or against either of said Constituent Corporations may
be prosecuted as if the merger had not taken place, or the Surviving
Corporations may be substituted in its place. Neither the rights of creditors
nor any liens upon the property of either of the Constituent Corporations
shall be impaired by the merger.
8.
If at any time the Surviving Corporation shall consider or be advised that
any further assignments or assurances in law or any things are necessary or
desirable to vest in said corporation, according to the terms hereof, the title
to any property or rights of CREDITORS MERCANTILE, INC., the proper officers
and directors of CREDITORS MERCANTILE, INC. shall and will execute and make all
such proper assignments and assurances and do all things necessary or proper to
vest title in such property or rights in the Surviving Corporation, and
otherwise to carry out the purposes of this Agreement.
9.
From the date of this Agreement until the Effective Date or until the
abandonment of the merger pursuant to the provisions hereof:
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<PAGE> 36
(a) CREDITORS MERCANTILE, INC. and INTERGRATEC RECEIVABLE MANAGEMENT, INC.
shall continue to conduct their respective businesses in the ordinary course
and neither CREDITORS MERCANTILE, INC., nor INTERGRATEC RECEIVABLE MANAGEMENT,
INC. shall, without the prior written consent of the other, engage in any
transaction or incur any obligation except in the ordinary course of business or
as otherwise authorized by this Agreement. Without limiting the foregoing,
neither CREDITORS MERCANTILE, INC. nor INTERGRATEC RECEIVABLE MANAGEMENT, INC.
shall during the foregoing period, without the prior consent of the other:
(i) amend its Articles of Incorporation, except as may be necessary to
carry out this Agreement or as required by law;
(ii) borrow any money, other than short term borrowings in the ordinary
course of business
(ii) issue, sell, encumber or otherwise dispose of any shares of its
capital stock
(iv) declare, authorize or pay any dividend on, make any distribution in
respect of, redeem or acquire for value any shares of its capital stock,
directly or indirectly
(v) sell, lease or otherwise dispose of any part of its property or
assets, except in the ordinary course of business; enter into any new plans
or agreements for the benefit of officers or employees or increase the benefits
under any existing such plan
(vi) make any purchase of real estate, personal property, merchandise or
securities, except in the ordinary course of business
(b) CREDITORS MERCANTILE, INC and INTERGRATEC RECEIVABLE MANAGEMENT, INC.
shall each make available for examination by the other as
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<PAGE> 37
requested, in addition to its financial statements, any inventory and other
detailed records in support of such statements, records of important contracts,
commitments, leases, licensing agreements, deeds, title insurance policies,
patents, trademarks, and other evidence of interest or ownership in property;
details and status of the various funds, plans, profit sharing and deferred
compensation agreements, if any, stock option plans and other provisions of
either party for the benefit of its officers and employees, income tax returns,
audit material and related data, information concerning claims, litigation
threatened or pending, and all other information relevant to their respective
businesses and to the merger herein contemplated.
(c) With respect to all leases and other interests or instruments under
which either CREDITORS MERCANTILE, INC. or INTEGRATEC RECEIVABLE MANAGEMENT,
INC. is obligated to obtain a consent prior to the merger herein contemplated
in order to comply with the conditions thereof or to invest its interest therein
in the Surviving Corporation, CREDITORS MERCANTILE, INC. or INTEGRATEC
RECEIVABLE MANAGEMENT, INC., respectively, will exercise all reasonable efforts
to obtain such consent.
10.
CREDITORS MERCANTILE, INC. represents and warrants to INTEGRATEC
RECEIVABLE MANAGEMENT, INC. as follows:
(a) CREDITORS MERCANTILE, INC. is a corporation duly organized, validly
existing and in good standing under the laws of the State of Georgia, has full
corporate power to carry on its business as it is now being conducted and to
own and operate the properties and assets now owned or operated by it and is
duly qualified to do business and is in good
-7-
<PAGE> 38
standing in each jurisdiction where the conduct of its business or the ownership
of its property requires such qualification.
(b) All of the outstanding shares of CREDITORS MERCANTILE, INC. are
validly issued, fully paid and non-assessable.
(c) CREDITORS MERCANTILE, INC. has authorized capital stock of one
thousand (1,000) shares and has one thousand (1,000) outstanding shares.
(d) All federal, state and other tax returns and reports that are required
by law to be filed by CREDITORS MERCANTILE, INC. have been duly filed and all
taxes, assessments, fees and other governmental charges shown to be due on said
returns and reports have been paid.
(e) There is no suit, action or litigation, administrative, arbitration or
other proceedings, or any change in the zoning or building ordinances affecting
the real property, or leasehold interest of CREDITORS MERCANTILE, INC. pending
or (to the knowledge of the management of CREDITORS MERCANTILE, INC.)
threatened, which might materially and adversely effect the overall financial
condition, business or property of CREDITORS MERCANTILE, INC. CREDITORS
MERCANTILE, INC. has complied with and is not in default in any material respect
under any laws, ordinances, requirements, regulations or orders applicable to
its business.
(f) The execution of this Agreement has been duly authorized by the Board
of Directors of CREDITORS MERCANTILE, INC. and no further corporate action is
necessary for the execution hereof. Neither the execution and delivery of the
Agreement, nor the consummation of the transaction provided for herein, will
violate any material agreement to which CREDITORS MERCANTILE, INC. or any law,
order or decree.
-8-
<PAGE> 39
11.
INTEGRATEC RECEIVABLE MANAGEMENT, INC. represents and warrants to
CREDITORS MERCANTILE, INC. as follows:
(a) INTEGRATEC RECEIVABLE MANAGEMENT, INC. is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia, has full corporate power to carry on its business as it is now being
conducted and to own and operate the properties and assets now owned or
operated by it and is duly qualified to do business and is in good standing in
each jurisdiction where the conduct of its business or the ownership of its
property requires such qualification.
(b) All of the outstanding shares of INTEGRATEC RECEIVABLE MANAGEMENT,
INC. are validly issued, fully paid and non-assessable.
(c) INTEGRATEC RECEIVABLE MANAGEMENT, INC. has authorized capital stock
of ten thousand (10,000) shares and has nine thousand nine hundred and ninety
eight (9,998) outstanding shares.
(d) All federal, state, and other tax returns and reports that are
required by law to be filed by INTEGRATEC RECEIVABLE MANAGEMENT, INC. have been
duly filed and all taxes, assessments, fees and other governmental charges
shown to be due on said returns and reports have been paid.
(e) There is no suit, action or litigation, administrative, arbitration or
other proceedings, or any change in the zoning or building ordinances affecting
the real property, or leasehold interest of INTEGRATEC RECEIVABLE MANAGEMENT,
INC. pending or (to the knowledge of the management of INTEGRATEC RECEIVABLE
MANAGEMENT, INC.) threatened, which might materially and adversely affect the
overall financial condition, business or property of INTEGRATEC RECEIVABLE
MANAGEMENT, INC.
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<PAGE> 40
INTEGRATEC RECEIVABLE MANAGEMENT, INC. has complied with and is not in default
in any material respect under any laws, ordinances, requirements, regulations
or orders applicable to its business.
(f) The execution of this Agreement has been duly authorized by the Board
of Directors of INTEGRATEC RECEIVABLE MANAGEMENT, INC. and no further corporate
action is necessary for the execution hereof. Neither the execution and
delivery of this Agreement, nor the consummation of the transaction provided
for herein, will violate any material agreement to which INTEGRATEC RECEIVABLE
MANAGEMENT, INC. is a party or by which it is bound or any provisions of the
Articles of Incorporation or By-Laws of INTEGRATEC RECEIVABLE MANAGEMENT, INC.
or any law, order or decree.
12.
If the merger contemplated hereby becomes effective, all expenses incurred
hereunder shall be borne by the Surviving Corporation. If, for any reason other
than breach of the covenants of the parties set forth herein, the merger shall
not become effective or shall be abandoned, then each of the Constituent
Corporations shall bear its own expenses, separately incurred in connection
herewith, with no liability to the other party hereto, and each shall pay
one-half of the expenses incurred by them jointly.
13.
Each of the Constituent Corporations represents to the other that it has
not incurred and will not incur any liability for brokerage fees or agent's
commissions in connection with the Agreement and the merger contemplated
hereby.
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<PAGE> 41
14.
The warranties and representations of the Constituent Corporations
contained in paragraphs 9 and 10 of this Agreement shall survive the Effective
Date.
15.
At any time before or after approval and adoption by the respective
shareholders of the Constituent Corporations, this Agreement may be modified in
matter of form, or supplemented by additional agreements, articles or
certificates, as may be mutually determined by the Board of Directors of the
Constituent Corporations to be necessary, desirable or expedient to clarify the
intention of the parties hereto or to effect to or facilitate the filing,
recording or official approval of the Agreement and the consummation of the
merger herein contemplated, in accordance with the purpose and intent of this
Agreement.
IN WITNESS WHEREOF, INTEGRATEC RECEIVABLE MANAGEMENT, INC. and CREDITORS
MERCANTILE, INC. have each caused this Agreement and Plan of Merger to be
executed on their respective behalf and their respective corporate seals affixed
and the foregoing attested, all by their respective duly authorized officer on
the 28th day of September, 1990.
INTERGRATEC RECEIVABLE MANAGEMENT, INC.
By: /s/ James F. Richards
--------------------------------
James F. Richards, President
ATTEST:
/s/James J. Thorpe
- -----------------------------
James J. Thorpe, Secretary
(CORPORATE SEAL)
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<PAGE> 42
CREDITORS MERCANTILE, INC.
By: /s/ James F. Richards
----------------------------
James F. Richards, President
ATTEST:
/s/ Howard M. Gibbs
- -------------------
Howard Gibbs
(CORPORATE SEAL)
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<PAGE> 43
Secretary of State CHARTER NUMBER : 9005383 DP
Business Services and Regulation COUNTY : FULTON
Suite 306, West Tower DATE INCORPORATED : MARCH 21, 1990
2 Martin Luther King Jr. Dr. EXAMINER : DONNA HYDE
Atlanta, Georgia 30334 TELEPHONE : 404-656-0624
REQUESTED BY:
KING & SPALDING
ROBERT P. BRYANT
2500 TRUST COMPANY TOWER
ATLANTA, GEORGIA 30303
CERTIFICATE OF INCORPORATION
I, MAX CLELAND, Secretary of State and the Corporations Commissioner of
the State of Georgia do hereby certify, under the seal of my office, that
- --------------------------------------------------------------------------------
"INTERGRATEC RECEIVABLE MANAGEMENT, INC."
- --------------------------------------------------------------------------------
has been duly incorporated under the laws of the State of Georgia on the date
set forth above, by the filing of articles of incorporation in the office of
the Secretary of State and the fees therefor paid, as provided by law, and that
attached hereto is a true copy of said articles of incorporation.
WITNESS, my hand and official seal, in the City of Atlanta and the State
of Georgia on the date set forth below.
DATE: MARCH 21, 1990
/s/ Max Cleland
-------------------
MAX CLELAND
SECRETARY OF STATE
/s/ H. Wayne Howell
-------------------
H. WAYNE HOWELL
DEPUTY SECRETARY OF STATE
(SEAL)
SECURITIES CEMETERIES CORPORATIONS CORPORATIONS HOT-LINE
656-2894 656-3079 656-2317 404-656-2222
<PAGE> 44
ARTICLES OF INCORPORATION
OF
INTERGRATEC RECEIVABLE MANAGEMENT, INC.
1.
The name of the Corporation is Integratec Receivable Management, Inc.
2.
The Corporation is authorized to issue 10,000 shares of stock, designated
as "Common Stock."
3.
The initial Board of Directors shall consist of three (3) members, whose
names and addresses are as follows:
A. Wayne Johnson
Atlanta Financial Center
East Tower
Suite 1100
3333 Peachtree Rd., N.E.
Atlanta, Georgia 30326
John H. Gilbride
Atlanta Financial Center
East Tower
Suite 1100
3333 Peachtree Rd., N.E.
Atlanta, Georgia 30326
James A. Watts, Jr.
Atlanta Financial Center
East Tower
Suite 1100
3333 Peachtree Rd., N.E.
Atlanta, Georgia 30326
<PAGE> 45
3.
The address of the initial registered office of the Corporation shall be
Two Peachtree Street, N.W., County of Fulton, Atlanta, Georgia 30383. The
initial registered agent of the Corporation at such address shall be CT
Corporation System.
4.
The name and address of the Incorporator are as follows:
Robert P. Bryant
2500 Trust Company Tower
Atlanta, Georgia 30303
5.
The mailing address of the initial principal office of the Corporation is
4553 Winters Chapel Road, Atlanta, Georgia 30360.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation.
/s/ Robert P. Bryant
--------------------
Robert P. Bryant
Incorporator
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<PAGE> 1
EXHIBIT 3.26
BYLAWS OF
INTEGRATEC RECEIVABLE MANAGEMENT, INC.
ARTICLE I
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders for
the election of directors and for the transaction of such other business as may
properly come before the meeting shall be held at such place, either within or
without the State of Georgia, on such date and at such time as the Board of
Directors may by resolution provide. The Board of Directors may specify by
resolution prior to any special meeting of shareholders held within the period
prescribed by law for the annual meeting that such meeting shall be in lieu of
the annual meeting.
Section 2. Special Meeting. Special meetings of the shareholders may be
called at any time by the Board of Directors. A special meeting of the
shareholders shall be called if the holders of at least twenty-five percent
(25%) of all of the votes entitled to be cast on any issue to be considered at
the proposed special meeting sign, date and deliver to the Corporation's
secretary one or more written demands for the meeting describing the purpose or
purposes for which it is to be held. Such meetings shall be held at such place,
either within or without the State of Georgia, as is stated in the call and
notice thereof.
Section 3. Notice of Meetings. Written notice of each meeting of
shareholders, stating the date, time and place of the meeting, and the purpose
of any special meeting, shall be mailed
<PAGE> 2
to each shareholder entitled to vote at such meeting at his address shown on the
books of the Corporation not less than ten (10) nor more than sixty (60) days
prior to such meeting unless such shareholder waives notice of the meeting. If
an amendment to the Articles of Incorporation, a plan of merger or share
exchange, or a sale of assets of the Corporation is to be considered at any
annual or special meeting, the written notice shall state that consideration of
such action is one of the purposes of such meeting. Any shareholder may execute
a waiver of notice, in person or by proxy, either before or after any meeting,
and shall be deemed to have waived notice if he is present at such meeting in
person or by proxy. Neither the business transacted at, nor the purpose of, any
meeting need be stated in the waiver of notice of such meeting, except that,
with respect to a waiver of notice of a meeting at which an amendment to the
Articles of Incorporation, a plan of merger or share exchange, or a sale of
assets is considered, information as required by the Georgia Business
Corporation Code must be delivered to the shareholder prior to his execution of
the waiver of notice or the waiver itself must expressly waive the right to such
information.
Notice of any meeting may be given by the President, the Secretary or by
the person or persons calling such meeting. No notice need be given of the time
and place of reconvening of any adjourned meeting, if the time and place to
which the meeting is adjourned are announced at the adjourned meeting, except
that, if a new record date for the adjourned meeting is or must be fixed
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<PAGE> 3
under the applicable provisions of the Georgia Business Corporation Code, notice
of the adjourned meeting must be given to persons who are shareholders as of the
new record date.
Section 4. List of Shareholders. The officer or agent having charge of
the stock transfer books for shares of the Corporation shall make a complete
list of the shareholders entitled to vote at a meeting of shareholders or any
adjournment thereof, arranged in alphabetical order, with the address of and the
number and class and series, if any, of shares held by each. Such list shall be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any shareholder during the whole time of the meeting for
the purposes thereof.
Section 5. Quorum; Required Shareholder Vote. A quorum for the
transaction of business at any annual or special meeting of shareholders shall
exist when the holders of a majority of the outstanding shares entitled to vote
are represented either in person or by proxy at such meeting. If a quorum is
present, action on a matter is approved if the votes cast favoring the action
exceed the votes cast opposing the action. When a quorum is once present to
organize a meeting, the shareholders present may continue to do business at the
meeting or at any adjournment thereof notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
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<PAGE> 4
Section 6. Proxies. A shareholder may vote either in person or by a proxy
which such shareholder has duly executed in writing. No proxy shall be valid
after eleven (11) months from the date of its execution unless a longer period
is expressly provided in the proxy.
Section 7. Action of Shareholders Without Meeting. Any action required
to be, or which may be, taken at a meeting of the shareholders, may be taken
without a meeting if written consent, setting forth the actions so taken, shall
be signed by all of the shareholders entitled to vote with respect to the
subject matter thereof, except that information as required by the Georgia
Business Corporation Code must be delivered to the shareholders prior to their
execution of the consent or the consent must expressly waive the right to such
information. Such consent shall have the same force and effect as a unanimous
affirmative vote of the shareholders and shall be filed with the minutes of the
proceedings of the shareholders.
ARTICLE II
DIRECTORS
Section 1. Power of Directors. The Board of Directors shall manage the
business of the Corporation and may exercise all the powers of the Corporation,
subject to any restrictions imposed by law, by the Articles of Incorporation, or
by these Bylaws.
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<PAGE> 5
Section 2. Composition of the Board. The Board of Directors of the
Corporation shall consist of the number of directors provided in the Articles of
Incorporation for the initial Board of Directors, and such number shall be
subject to change by the shareholders. Directors need not be residents of the
State of Georgia or shareholders of the Corporation. At each annual meeting the
shareholders shall elect the directors, who shall serve until their successors
are elected and qualified; provided that at any shareholders' meeting with
respect to which notice of such purpose has been given, the entire Board of
Directors or any individual director may be removed, with or without cause, by
the affirmative vote of the holders of a majority of the shares entitled to vote
at an election of directors.
Section 3. Meetings of the Board; Notice of Meetings: Waiver of Notice.
The annual meeting of the Board of Directors for the purpose of electing
officers and transacting such other business as may be brought before the
meeting shall be held each year immediately following the annual meeting of
shareholders. The Board of Directors may by resolution provide for the time and
place of other regular meetings and no notice of such regular meetings need be
given. Special meetings of the Board of Directors may be called by the President
or by any two directors, and written notice of the time and place of such
meetings shall be given to each director by first class or air mail at least
four (4) days before the meeting or by telephone, telegraph, telex,
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<PAGE> 6
facsimile, cablegram or in person at least two (2) days before the meeting. Any
director may execute a waiver of notice, either before or after any meeting, and
shall be deemed to have waived notice if he is present at such meeting. Neither
the business to be transacted at, nor the purpose of, any meeting of the Board
of Directors need be stated in the notice or waiver of notice of such meeting.
Any meeting may be held at any place within or without the State of Georgia.
Section 4. Quorum; Vote Requirement. A majority of the number of
directors last fixed pursuant to these Bylaws shall constitute a quorum for the
transaction of business at any meeting. When a quorum is present, the vote of a
majority of the directors present shall be the act of the Board of Directors,
unless a greater vote is required by law, by the Articles of Incorporation or by
these Bylaws.
Section 5. Action of Board Without Meeting. Any action required or
permitted to be taken at a meeting of the Board of Directors or any committee
thereof may be taken without a meeting if written consent, setting forth the
action so taken, is signed by all the directors or committee members and filed
with the minutes of the proceedings of the Board of Directors or committee. Such
consent shall have the same force and effect as a unanimous affirmative vote of
the Board of Directors or committee, as the case may be.
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<PAGE> 7
Section 6. Committees. The Board of Directors may designate from among its
members an Executive Committee, and such other committees as it deems necessary
or desirable, each composed of one (1) or more directors, which may exercise
such authority as is delegated by the Board of Directors, provided that no
committee shall have the authority of the Board of Directors in reference to (1)
approve or propose to shareholders action that the Georgia Business Corporation
Code requires to be approved by shareholders; (2) fill vacancies on the Board of
Directors or any of its committees; (3) amend the Articles of Incorporation
pursuant to Section 14-2-1002 of the Georgia Business Corporation Code; (4)
adopt, amend or repeal bylaws; or (5) approve a plan of merger not requiring
shareholder approval.
Section 7. Vacancies. A vacancy occurring in the Board of Directors may be
filled by the shareholders, or by the Board of Directors, or, if the directors
remaining in office constitute fewer than a quorum of the Board of Directors, by
the affirmative vote of a majority of all the directors remaining in office.
ARTICLE III
OFFICERS
Section 1. Executive Structure of the Corporation. The officers of the
Corporation shall be elected by the Board of Directors and shall consist of a
President, a Secretary, a Treasurer and such other officers or assistant
officers, including Vice Presidents, as may be elected by the Board of
Directors. Each officer shall hold office for the term for which such officer
-7-
<PAGE> 8
has been elected or appointed and until such officer's successor has been
elected or appointed and has qualified, or until such officer's earlier
resignation, removal from office or death. Any two or more offices may be held
by the same person. The Board of Directors may designate a Vice President as an
Executive Vice President and may designate the order in which other Vice
Presidents may act.
Section 2. President. The President shall be the Chief Executive Officer
of the Corporation and shall give general supervision and direction to the
affairs of the Corporation, subject to the direction of the Board of Directors.
The President shall preside at all meetings of the shareholders.
Section 3. Vice Presidents. The Vice Presidents shall act in the case
of absence or disability of the President, provided, however, that no Vice
President may so act without the consent and approval of the Executive Vice
President.
Section 4. Secretary. The Secretary shall keep the minutes of the
proceedings of the shareholders and of the Board of Directors, and shall have
custody of and attest the seal of the Corporation.
Section 5. Treasurer. The Treasurer shall be responsible for the
maintenance of proper financial books and records of the Corporation.
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<PAGE> 9
Section 6. Other Duties and Authority. Each officer, employee and
agent of the Corporation shall have such other duties and authority as may be
conferred upon such officer, employee or agent by the Board of Directors or
delegated to such officer, employee or agent by the President.
Section 7. Removal of Officers. Any officer may be removed at any time
by the Board of Directors, and such vacancy may be filled by the Board of
Directors. This provision shall not prevent the making of a contract of
employment for a definite term with any officer and shall have no effect upon
any cause of action which any officer may have as a result of such officer's
removal in breach of a contract of employment.
Section 8. Compensation. The salaries of the officers shall be fixed
from time to time by the Board of Directors. No officer shall be prevented from
receiving such salary by reason of the fact that such officer is also a director
of the Corporation.
ARTICLE IV
STOCK
Section 1. Stock Certificates. The shares of stock of the Corporation
shall be represented by certificates in such form as may be approved by the
Board of Directors, which certificates shall be issued to the shareholders of
the Corporation in numerical order from the stock book of the Corporation, and
each of which shall bear the name of the Corporation and state that it is
organized under the laws of the State of Georgia, the name of the shareholder,
the number and class (and the designation of the
-9-
<PAGE> 10
series, if any) of the shares represented, and which shall be signed by the
President or a Vice President and the Secretary or an Assistant Secretary of the
Corporation.
Section 2. Transfer of Stock. Shares of stock of the Corporation shall
be transferred only on the books of the Corporation upon surrender to the
Corporation of the certificate or certificates representing the shares to be
transferred accompanied by an assignment in writing of such shares properly
executed by the shareholder of record or such shareholder's duly authorized
attorney-in-fact and with all taxes on the transfer having been paid. The
Corporation may refuse any requested transfer until furnished evidence
satisfactory to it that such transfer is proper. Upon the surrender of a
certificate for transfer of stock, such certificate shall at once be
conspicuously marked on its face "Cancelled" and filed with the permanent stock
records of the Corporation. The Board of Directors may make such additional
rules concerning the issuance, transfer and registration of stock and
requirements regarding the establishment of lost, destroyed or wrongfully taken
stock certificates (including any requirement of an indemnity bond prior to
issuance of any replacement certificate) as it deems appropriate.
ARTICLE V
DEPOSITORIES, SIGNATURES AND SEAL
Section 1. Depositories. All funds of the Corporation shall be
deposited in the name of the Corporation in such bank, banks, or other financial
institutions as the Board of Directors
-10-
<PAGE> 11
may from time to time designate and shall be drawn out on checks, drafts or
other orders signed on behalf of the Corporation by such person or persons as
the Board of Directors may from time to time designate.
Section 2. Contracts and Deeds. All contracts, deeds and other
instruments shall be signed on behalf of the Corporation by the President or by
such other officer, officers, agent or agents as the Board of Directors may from
time to time by resolution provide.
Section 3. Seal. The seal of the Corporation shall be as follows:
The seal and its attestation may be lithographed or otherwise printed on
any document and shall have, to the extent permitted by law, the same force and
effect as if it had been affixed and attested manually.
ARTICLE VI
INDEMNITY
Any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including any action by or in the
right of the Corporation), by reason of the fact that such person is or was a
-11-
<PAGE> 12
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified by the Corporation against expenses (including reasonable
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, if such person acted in a manner such person believed in good faith
to be in or not opposed to the best interests of the Corporation (and with
respect to any criminal action or proceeding, if such person had no reasonable
cause to believe such person's conduct was unlawful), to the maximum extent
permitted by, and in the manner provided by, the Georgia Business Corporation
Code.
ARTICLE VII
AMENDMENT OF BYLAWS
The Board of Directors shall have the power to alter, amend or repeal the
Bylaws or adopt new bylaws, but any bylaws adopted by the Board of Directors may
be altered, amended or repealed and new bylaws adopted by the shareholders. The
shareholders may prescribe that any bylaw or bylaws adopted by them shall not be
altered, amended or repealed by the Board of Directors.
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<PAGE> 1
EXHIBIT 3.27
ARTICLES OF INCORPORATION
OF
NATIONAL HEALTHCARE TECHNOLOGIES, INC.
The undersigned incorporator or incorporators, desiring to form a
corporation, (hereinafter referred to as the "Corporation"), pursuant to the
provisions of the Indiana Business Corporation Law, Indiana Code Section
23-1-17, et seq., (such act, as amended from time to time, and its successors
are hereinafter referred to as the "Act"), execute the following Articles of
Incorporation.
ARTICLE I
Name
The name of the Corporation is:
NATIONAL HEALTHCARE TECHNOLOGIES, INC.
ARTICLE II
Purposes and Powers
1. The purpose for which the Corporation is formed is to transact any and
all lawful business for which corporations may be incorporated under the Act.
2. Subject to any limitation or restriction imposed by the Act, any other
law, or any provisions of these Articles of Incorporation, the Corporation shall
have:
(a) the same capacity to act as possessed by natural persons and to do
everything necessary, advisable or convenient for the accomplishment of
any of the purposes hereinbefore set forth, or which shall at any time
appear conducive to or expedient for the protection or benefit of the
Corporation, and to do all other things incidental thereto or connected
therewith which are not forbidden by law;
(b) the power to carry out the purposes hereinbefore set forth in any
state, territory, district or possession of the United States, or in
any foreign country, to the extent that such purposes are not forbidden
by the law of any such state, territory, district or possession of the
United States or by any such foreign country; and,
(c) the power to have, exercise and enjoy in furtherance of the purposes
hereinbefore set forth all the general rights, privileges and powers
granted to corporations by the Act, and by the common law.
<PAGE> 2
ARTICLE III
Registered Office and Registered Agent
Section 1. Registered Office.
The street address of the registered office of the Corporation located in
Indiana is: 8770 Guion Road, Suite C, Indianapolis, Indiana 46268.
Section 2. Registered Agent.
The name of the Registered Agent whose business office is identical with
the registered office is: Kenneth D. Bush.
ARTICLE IV
Terms of Shares
Section 1. Number.
The total number of shares which the Corporation has authority to issue is
one thousand (1,000).
Section 2. Designation of Classes.
All the authorized shares of the Corporation shall be of one class only and
be designated common stock. The common stock of the Corporation shall in all
respects entitle the holder to the same rights and preferences, and subject the
holder to the same qualifications, limitations and restrictions as all other
shareholders of common stock.
Section 3. Issuance and Consideration.
The common stock may be issued for such an amount of consideration as may
be fixed from time to time by the board of directors.
Section 4. Voting Rights.
Subject to any specific restrictions imposed by the Act, at all times each
holder of a share of common stock shall be entitled to cast one vote for each
share of such stock standing in the shareholder's name on the Corporation's
books on the specified record date on each matter upon which the shareholder is
entitled to vote. At any meeting of shareholders, the holders of a majority of
the shares entitled by these Articles of Incorporation to be voted on the
business to be transacted at such meeting, represented thereat in person or by
proxy, shall constitute a quorum. At any meeting of the shareholders at which a
quorum is present, action on a matter (other than the election of directors) is
approved if the votes cast favoring the action exceed the votes cast opposing,
unless a greater affirmative vote is required by the Act or these Articles of
Incorporation. Notwithstanding the foregoing
<PAGE> 3
provisions the following actions require the affirmative vote of a majority of
the issued and outstanding shares entitled to vote on the proposed action:
(a) authorization by the shareholders of indemnification and advances for
expenses (Indiana Code Section 23-1-37-15);
(b) amendments to the Articles of Incorporation which would give rise to
dissenters' rights [Indiana Code Section 23-1-38-3(e)(1)], unless the
board of directors acting pursuant to Indiana Code Section 23-1-38-3(c)
requires a greater vote;
(c) adoption of a plan of merger or share exchange [Indiana Code Section
23-1-40-3(e)], unless the board of directors acting pursuant to Indiana
Code Section 23-1-40-3(c) requires a greater vote;
(d) sale, lease, exchange or other disposition of all or substantially all
of the corporate property other than in the usual and regular course of
business [Indiana Code 23-1-41-2(e)], unless the board of directors
acting pursuant to Indiana Code Section 23-1-41-2(c) requires a greater
vote; and,
(e) voluntary dissolution of the Corporation [Indiana Code Section
23-1-45-2-(e)], unless the board of directors acting pursuant to
Indiana Code Section 23-1-45-2(c) requires a greater vote.
Directors are elected by a plurality of the votes cast by the shares entitled to
vote in the election at which a quorum is present.
Section 5. Dividends.
The board of directors shall have the power to declare and pay dividends on
the outstanding shares of common stock to the extent permitted by the Act.
Section 6. Dissolution.
In the event of any voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation, the holders of the shares of the common stock of
the Corporation shall be entitled, after due payment or provision for payment of
the debts and other liabilities of the Corporation, to share ratably in the
remaining net assets of the Corporation.
Section 7. No Preemptive Rights.
Shareholders shall have no preemptive rights to subscribe to or purchase
any shares of common stock or other securities of the Corporation.
<PAGE> 4
ARTICLE V
Director(s)
Section 1. Number.
The initial board of directors is composed of three (3) members. The number
of directors shall be specified by, or fixed in accordance with, from time to
time, the Bylaws of the Corporation. In the absence of a bylaw specifying or
fixing the number of directors, the number shall be the number specified herein
for the initial board of directors. The bylaws may provide for staggering the
terms of the directors.
Section 2. Names and Post Office Addresses of the Directors. The names
and post office addresses of the initial board of directors of the Corporation
are:
Kenneth D. Bush, 110 N. Jackson Court,
Greenwood, Indiana 46142
Richard J. Goodall, 7940 Castle Pines Avenue,
Las Vegas, Nevada 89113
Michael A. Shure, 8204 Crow Valley Lane,
Las Vegas, Nevada 89113
Section 3. Direction of Purpose and Exercise of Powers.
The board of directors, subject to any specific limitations or
restrictions imposed by the Act or these Articles of Incorporation, shall direct
the carrying out of the purpose and exercise the powers of the Corporation,
without previous authorization or subsequent approval by the shareholders of the
Corporation.
ARTICLE VI
Incorporator
The name and post office address of the incorporator of the Corporation is:
Richard C. Kraege, Attorney at Law, 8888 Keystone
Crossing, Suite 333, Indianapolis, Indiana 46240.
ARTICLE VII
Provision for Regulation of Business
and Conduct of Affairs of Corporation
Section 1. Indemnification.
(a) Every person who is or was a director of the Corporation
(as defined in Indiana Code Section 23-1-37-2) shall be
<PAGE> 5
indemnified by the Corporation against all liability and reasonable
expenses (as such terms are defined in Indiana Code Sections 23-1-37-3
and 4) incurred by such person in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal, because such person is or
was a director of the Corporation, provided that such person is
determined in the manner specified in Indiana Code Section 23-1-37-12
to have met the standard of conduct specified in Indiana Code Section
23-1-37-8. Subject to the requirements of Indiana Code Section
23-1-37-10, the Corporation shall advance to such person the reasonable
expenses incurred by him or her in connection with any such action,
suit or proceeding. Upon demand for indemnification or advancement of
expenses, as the case may be, the Corporation shall proceed as provided
in Indiana Code Section 23-1-37-12 to determine whether such person is
entitled thereto. Every person who is or was an officer of the
Corporation shall be indemnified, and shall be entitled to an
advancement of expenses, to the same extent as if such person were a
director.
(b) If the Corporation indemnifies or advances expenses to a
director in connection with a proceeding by or in the right of the
Corporation, the Corporation shall report the indemnification or
advance in writing to the shareholders with or before the notice of the
next shareholders' meeting, as provided in Indiana Code Section
23-1-53-2(a).
(c) Nothing contained in this Section 1 shall limit or preclude the
exercise of any right provided under the Act, these Articles of
Incorporation, the Corporation's bylaws, any general or specific action
of the board of directors or the shareholders of the Corporation, or
any contract relating to indemnification of or the advancement of
expenses to any director, officer, employee or agent of the
Corporation, or the ability of the Corporation to otherwise indemnify
or advance expenses to any director, officer, employee or agent.
Section 2. Conflict of Interest Transaction.
A conflict of interest transaction, as defined in Indiana Code Section
23-1-35-2(a), is not voidable by the Corporation provided the conflict of
interest transaction satisfies the provisions specified in Indiana Code Section
23-1-35-2.
Section 3. Code of Bylaws.
The board of directors of the Corporation shall have the power, without
the assent or vote of the shareholders, to make, alter, amend or repeal the Code
of Bylaws of the Corporation.
<PAGE> 6
Section 4. Amendments of Articles of Incorporation.
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in the Articles of Incorporation or in any amendment hereto,
or to add any provision to the articles of incorporation or to any amendment
hereto, in any manner now or hereafter prescribed or permitted by the
provisions of the Act, or by the provisions of any other applicable statute of
the state of Indiana; and all rights conferred upon shareholders in the
Articles of Incorporation or any amendment hereto are granted subject to this
reservation.
IN WITNESS WHEREOF, the undersigned, being the incorporator(s) designated
herein, execute these Articles of Incorporation, this 3rd day of September,
1992, and affirm under penalties of perjury that the statements contained
herein are true.
/s/ Richard C. Kraege
---------------------------------
Richard C. Kraege
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally
appeared Richard C. Kraege, who acknowledged the execution of the foregoing, and
who, having been duly sworn, stated that any representations therein contained
are true.
WITNESS MY HAND AND NOTARIAL SEAL, this 3rd day of September, 1992.
/s/ Tina A. Mattingly
----------------------------
Notary Public
Printed: Tina A. Mattingly
---------------------
County of Residence: Marion
---------
My Commission Expires:
11-6-93
- --------------------
(SEAL)
This instrument prepared by: Richard C. Kraege, Attorney at Law, 8888 Keystone
Crossing, Suite 333, Indianapolis, Indiana 46240; 317/843-2606.
<PAGE> 1
EXHIBIT 3.28
CODE OF BYLAWS
OF
NATIONAL HEALTHCARE TECHNOLOGIES, INC.
ARTICLE I
Identification
Section 1.01. Name. The name of the Corporation is NATIONAL HEALTHCARE
TECHNOLOGIES, INC., (hereinafter referred to as the "Corporation").
Section 1.02. Place of Keeping Corporate Books and Records. The records and
documents specified in Section 7.01 of these bylaws shall be kept at the
principal office of the Corporation. For purposes of these bylaws, the principal
office of the Corporation shall be 8770 Guion Road, Suite C, Indianapolis,
Indiana 46268, which is the location of the Corporation's principal executive
offices in Indiana.
Section 1.03. Fiscal Year. The fiscal year of the Corporation shall be
January through December of each year until such time as changed by resolution
of the board of directors of the Corporation.
ARTICLE II
Capital Stock
Section 2.01. Amount and Class of Authorized Shares. The authorized shares
of the Corporation shall be one thousand (1,000) shares and all shares shall be
of one class.
Section 2.02. Issuance of Shares. The board of directors may authorize
shares to be issued for consideration consisting of any tangible or intangible
property or benefit to the Corporation, including cash, promissory notes,
services performed, contract for services to be performed, or other securities
of the Corporation. If shares are authorized to be issued for promissory notes
or for promises to render services in the future, the Corporation must comply
with the notice requirements of Indiana Code Section 23-1-53-2(b).
Section 2.03. Certificate for Shares. Certificates for shares of the
Corporation shall be issued to a subscriber by the secretary of the Corporation
when proper consideration has been paid therefor. Each certificate shall be in
such form as required by Indiana Code Section 23-1-26-6, and as the board of
directors may prescribe from time to time.
Section 2.04. Transfer of Certificates. The shares of the Corporation shall
be transferable only on the books of the Corporation upon surrender of the
certificate or certificates
<PAGE> 2
representing the same, properly endorsed by the registered holder or by his
duly authorized attorney or agent.
Section 2.05. Lost, Stolen or Destroyed Certificates. The Corporation may
issue a new certificate for shares of stock in the place of any certificate
theretofore issued and alleged to have been lost, stolen or destroyed, but the
board of directors may require the registered holder of the shares represented
by such lost, stolen or destroyed certificate, or the holder's legal
representative, to furnish an affidavit as to such loss, theft or destruction
and to give a bond in such form and substance, and with such surety or sureties,
with fixed or open penalty, as it may direct to indemnify the Corporation
against any claim that may be made on account of the alleged loss, theft or
destruction of such certificate. A new certificate may be issued without
requiring any bond when, in the judgment of the board of directors, it is not
imprudent to do so.
ARTICLE III
Meetings of Shareholders
Section 3.01. Place of Meetings. All meetings of shareholders of the
Corporation shall be held at the principal office of the Corporation or at such
other place, within or without the state of Indiana, as may be specified in the
respective notices or waivers of notice thereof.
Section 3.02. Annual Meeting. The annual meeting of the shareholders for
the election of directors, and for the transaction of such other business
as may properly come before the meeting, shall be held on the first Friday of
April, following the end of the fiscal year of the Corporation, if such day is
not a legal holiday, and if such day is a legal holiday, then on the next
business day that is not a legal holiday. Failure to hold the annual meeting at
the designated time shall not affect the validity of any corporate action.
Section 3.03. Special Meetings. The Corporation must hold a special
meeting of shareholders on call of its president, its board of directors, or if
the holders of at least twenty-five percent (25%) of all votes entitled to be
cast on any issue proposed to be considered at the proposed special meeting
sign, date and deliver to the secretary one or more written demands for the
special meeting describing the purpose or purposes for which it is to be held.
Only business within the purpose or purposes described in the meeting notice
shall be conducted at a special shareholders' meeting.
Section 3.04. Record Date. Unless otherwise determined by resolution of the
board of directors, the record date for purposes of determining the identity of
shareholders be determined as follows:
<PAGE> 3
(a) for shareholders entitled to demand a special shareholder meeting, the
provisions of Indiana Code 23-1-29-2(b) shall apply;
(b) for shareholders entitled to take action without a meeting, the
provisions of Indiana Code 23-1-29-4(b) shall apply;
(c) for shareholders entitled to receive notice of and vote at shareholder
meetings, the provisions of Indiana Code 23-1-29-5(d) shall apply; and,
(d) for shareholders entitled to receive distributions from the
Corporation, the provisions of Indiana Code 23-1-28-2 shall apply.
A record date determined by resolution of the board of directors may not be more
than seventy (70) days before the meeting or action requiring a determination of
shareholders.
Section 3.05. Notice of Meeting. A written or printed notice, stating the
date, time and place of the meeting, and in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered or
mailed by the Corporation to each holder of the shares of the Corporation at the
time entitled to vote at the meeting, at such address as appears upon the
records of the Corporation, no fewer than ten (10) days and no more than sixty
(60) days before the meeting date. However, notice of a meeting at which any of
the following corporation actions is to be considered shall be delivered or
mailed to all shareholders of record, whether or not entitled to vote at the
meeting, no fewer than ten (10) days and no more than sixty (60) days before the
meeting:
(a) an amendment or amendments to the articles of incorporation requiring
shareholder approval;
(b) an agreement of merger or share exchange requiring shareholder
approval;
(c) the sale, lease, exchange, or other disposition of all, or
substantially all, of the Corporation's property other than in the
usual and ordinary course of business; or,
(d) a proposal for voluntary dissolution requiring shareholder approval.
Section 3.06. Waiver of Notice. Notice of any meeting of the shareholders
may be waived in writing by a shareholders, before or after the date and time
stated in the notice, and such waiver shall be delivered to the Corporation for
inclusion in the minutes or filing with the corporate records. Attendance at any
meeting, in person or by proxy:
<PAGE> 4
(a) waives objection to lack of notice or defective notice of the meeting
unless the shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting; and,
(b) waives objection to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting
notice, unless the shareholder objects to consideration of the matter
when it is presented.
Section 3 07. Participation in Meetings by Electronic Communications. Any
or all shareholders may participate in an annual or special meeting of the
shareholders by, or through the use of, any means of communication by which all
shareholders participating may simultaneously hear each other during the
meeting. Participation by any such shareholder by this means shall be deemed to
constitute presence in person at such meeting.
Section 3.08. Voting at Meetings.
(a) Voting Rights. Except as may be otherwise provided by law or the
articles of incorporation, every shareholder shall have the right at
all meetings of the shareholders to one vote for each share standing in
the shareholder's name on the books of the Corporation on the record
date for such meetings.
(b) Proxies. A shareholder entitled to vote at any meeting of
shareholders may vote either in person or by proxy executed in writing
by the shareholder or a duly authorized attorney-in-fact of such
shareholder. For purposes of this section, a proxy granted by telegram,
telex, telecopy or other documents transmitted electronically for or by
a shareholder shall be deemed "executed in writing by the shareholder."
The general proxy of a fiduciary shall be given the same effect as the
general proxy of any other shareholder. No proxy shall be valid eleven
(11) months after the date of its execution unless a longer time is
expressly provided therein.
(c) Quorum and Voting Requirements. Except as may otherwise be provided by
law, at any meeting of shareholders, the quorum as provided in the
articles of incorporation, represented thereat in person or by proxy,
shall be required before any action of the shareholders may be taken.
At any meeting of the shareholders at which a quorum exists, the vote
as provided in the articles of incorporation shall be necessary to
adopt or approve any action of the shareholders, unless a greater
number is required by law. In case a quorum shall not be present at any
meeting, the holders of record of a majority of such shares so present
in person or by proxy may adjourn
<PAGE> 5
the meeting from time to time, without notice, other than announcement
at the meeting, until a quorum shall be present. Once a share is
represented for any purpose at a meeting, it is deemed present for
quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set
for that adjourned meeting. At any such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally
scheduled.
(d) Voting Lists. For each meeting of the shareholders, the secretary of
the Corporation shall make a complete list of the shareholders
entitled by law or by the articles of incorporation to notice thereof,
arranged in alphabetical order, with the address and number of shares
held by each such shareholder. Such list shall be on file at the
principal office of the Corporation or at a place identified in the
meeting notice in the city where the meeting will be held, and subject
to inspection at any time during regular business hours for a period
of five (5) business days before the date of the meeting for which the
list was prepared and continuing through the meeting. A shareholder
entitled to vote at the meeting, or the shareholder's agent or
attorney authorized in writing, is entitled on written demand to
inspect and to copy the list at the shareholders' expense during
regular business hours during the period it is available for
inspection only if: the shareholder's demand is made in good faith and
for a proper purpose; the shareholder describes with reasonable
particularity the shareholder's purpose; and the list is directly
connected with the shareholder's purpose. The original stock register
or transfer book, or a duplicate thereof kept in the state of Indiana,
shall be the only evidence as to the shareholders entitled to examine
such list, stock ledger or transfer book, or to vote at any meeting of
the shareholders.
(e) Voting of Shares Owned by Other Corporations. Subject to any specific
restrictions imposed by law, including without limitation, Indiana Code
Section 23-1-30-2, shares of the Corporation standing in the name of
another corporation may be voted by such officer, agent or proxy as the
board of directors of such other corporation may appoint, or as the
bylaws of such other corporation may prescribe.
Section 3.09. Action Without a Meeting. Any action which may be taken at
a shareholder meeting may be taken without a meeting if evidenced by one or more
written consents describing the action taken, signed by all shareholders
entitled to vote on the action, and delivered to the Corporation for inclusion
in the minutes or
<PAGE> 6
filing with the corporate records. Action taken by written consent is effective
when the last shareholder signs the consent unless the consent specifies a
different prior or subsequent effective date. If notice of the proposed action
must be given to the nonvoting shareholders by law, notice shall be given as
provided in Indiana Code 23-1-29-4.
ARTICLE IV
Board of Directors
Section 4.01. Number. The initial number of directors of the Corporation
shall be three (3). A variable range board consisting of a minimum of three (3)
directors and a maximum of seven (7) directors is hereby established. The number
of directors may be changed from the initial number of directors to a number
within the range herein established by resolution of the board of directors. In
the absence of a resolution of the board of directors fixing the number of
directors, the number shall be the number herein specified for the initial board
of directors.
Section 4.02. Management. Except as otherwise provided in the articles
of incorporation, the business, property and affairs of the Corporation shall be
managed by the board of directors.
Section 4.03. Annual Meeting. Unless otherwise determined by the president
or the board of directors, the board of directors shall meet each year
immediately after the annual meeting of the shareholders, at the place where
such meeting of the shareholders has been held, for the purpose of election of
officers and consideration of any other business that may be brought before the
meeting. No notice shall be necessary for the holding of this annual meeting. If
such meeting is not held as above provided, the election of officers may be held
at any subsequent meeting of the board of directors specifically called in the
manner provided in Section 4.04 of this article.
Section 4.04. Other Meetings. Regular meetings of the board of directors
may be held, without notice, at such time as may from time to time be fixed by
resolution of the board of directors. Special meetings of the board of
directors may be called at any time by the president, and shall be called on
the written request of any member of the board of directors. Notice of the
date, time and place of such special meeting shall be sent by the secretary to
each director at his or her residence or usual place of business by letter,
telegram, telex, telecopy or other document transmitted electronically at such
time that, in regular course, such notice would reach such place not later than
during the second day immediately preceding the date for such meeting; or may
be delivered to a director personally at any time during such second preceding
day. Such meetings may be held at any place within or without the state of
Indiana, as may be specified in the respective notices, or waivers of notice,
thereof.
<PAGE> 7
Section 4.05. Waiver of Notice. A director may waive notice required
hereunder or under law either before or after the date and time stated in the
notice. Except as hereinafter provided, the waiver must be in writing, signed by
the director and filed with the minutes or corporate records. For purposes of
this section, a waiver granted by telegram, telex, telecopy or other document
transmitted electronically by a director shall be deemed "signed by the
director." A director's attendance at or participation in a meeting waives any
required notice unless the director at the beginning of the meeting (or promptly
upon the director's arrival) objects to holding the meeting or transacting
business at the meeting and does not thereafter vote for or assent to the action
taken at the meeting.
Section 4.06. Participation in Meetings by Electronic Communications. Any
or all directors may participate in a meeting of the board or a committee of the
board by any means of communication by which all directors participating may
simultaneously hear each other during the meeting. A director participating in a
meeting by this means is deemed to be present in person at the meeting.
Section 4.07. Action Without a Meeting. Any action which may be taken
at a board of directors' meeting may be taken without a meeting if evidenced by
one or more written consents describing the action taken, signed by each
director and included in the minutes or filed with the corporate records
reflecting the action taken. For purposes of this section, a waiver granted by
telegram, telex, telecopy or other document transmitted electronically by a
director shall be deemed "signed by a director." Action taken by written
consent is effective when the last director signs the consent unless the consent
specifies a different prior or subsequent effective date.
Section 4.08. Quorum and Voting Requirements. A quorum of the board of
directors for the transaction of all business, except filling vacancies on the
board of directors, shall consist of a majority of the fixed number of directors
if the Corporation has a fixed board size, or a majority of the number of
directors prescribed, or if no number is prescribed, the number in office
immediately before the meeting begins if the Corporation has a variable-range
size board. A vacancy on the board of directors may be filled by the affirmative
vote of a majority of all the directors remaining in office if the remaining
directors constitute fewer than a quorum of the board. If a quorum is present
when a vote is taken, the affirmative vote of a majority of directors present is
the act of the board of directors. A director who is present at a meeting when
corporate action is taken is deemed to have assented to the action taken unless
(i) the director objects at the beginning of the meeting (or promptly upon the
director's arrival) to holding it or transacting business at the meeting; (ii)
the director's dissent or abstention from the action taken is entered in the
minutes of the meeting; or, (iii) the director delivers written notice of the
director's dissent or abstention to
<PAGE> 8
the presiding officer of the meeting before its adjournment or to the secretary
of the Corporation immediately after adjournment of the meeting. The right of
dissent or abstention is not available to a director who votes in favor of the
action taken.
Section 4.09. Election, Term of Office and Qualification. Directors shall
be elected at each annual meeting of the shareholders by the shareholders
entitled by the articles of incorporation to vote. Directors shall be elected
for a term of one year and shall hold office until their respective successors
are elected and qualified. Directors need not be shareholders of the
Corporation. No decrease in the number of directors provided for by the bylaws
at any time shall have the effect of shortening the term of any incumbent
director.
Section 4.10. Removal. Any director may be removed, either with or
without cause, as provided by law, at the annual meeting of the shareholders, if
the annual meeting notice states that one of the purposes of the meeting is
removal of the director, or at any special meeting of the shareholders, or at
any meeting of the board of directors.
Section 4.11. Resignation. A director may resign by delivering written
notice to the board of directors, its chairman, the president or secretary of
the corporation. A resignation is effective when delivered unless the notice
specifies later effective date.
Section 4.12. Vacancies. Any vacancy occurring on the board of
directors caused by removal, resignation, death or other incapacity, or
increase in the number of directors, may be filled by the board of directors,
or if the directors remaining in office constitute fewer than a quorum of the
board, they may fill the vacancy by the affirmative vote of a majority of all
the directors remaining in office. The new director shall serve until the
expiration of the term for which the director's predecessor was elected.
Shareholders shall be notified of any increase in the number of directors and
of the name, address, and principal occupation of any director elected by the
board of directors to fill any vacancy, whether caused by an increase or
otherwise, in the next mailing sent to the shareholders following any such
increase or election. If the vote of the remaining members of the board of
directors shall result in a tie, such vacancy shall be filled by vote of the
shareholders at a special meeting called for such purpose.
Section 4.13. Compensation of Directors. The board of directors is
empowered and authorized to fix and determine the compensation of the directors.
Until such time as the board of directors shall choose to act in this matter,
members of the board of directors shall receive no compensation for acting in
such capacity.
<PAGE> 9
ARTICLE V
Executive Committee
Section 5.01. Designation of Executive Committee. The board of
directors may, by resolution adopted by a majority of all the directors in
office at the time, from time to time, designate one or more of its members to
constitute an executive committee. The board of directors shall have the power
at any time to increase or decrease the number of members of the executive
committee, to fill vacancies thereon, to change any member thereof, and to
change the functions or terminate the existence thereof.
Section 5.02. Powers of the Executive Committee. During the intervals
between meetings of the board of directors, and subject to such limitations as
may be required by law or by resolution of the board of directors, an executive
committee shall have and may exercise all of the authority of the board of
directors, except that an executive committee shall not have authority to (i)
authorize distributions, except a committee (or an executive officer of the
Corporation designated by the board of directors) may authorize or approve
reacquisition of shares or other distribution if done according to a formula or
method or within a range, prescribed by the board of directors; (ii) approve or
propose to shareholders action that is required by law to be approved by
shareholders; (iii) fill vacancies on the board of directors or on any of its
committees; (iv) amend the articles of incorporation; (v) adopt, amend or
repeal bylaws; (vi) approve a plan of merger not requiring shareholder approval;
and (vii) authorize or approve the issuance or sale or a contract for sale of
shares, or determine the designation and relative rights, preferences, and
limitations of a class or series of shares, except the board of directors may
authorize a committee (or an executive officer of the Corporation designated by
the board of directors) to take such action within the limits prescribed by the
board of directors.
Section 5.03. Meetings; Procedure; Quorum. Regular meetings of an
executive committee may be held, without notice, at such time and place as
may from time to time, be fixed by resolution of the executive committee.
Special meetings of an executive committee may be called at any time by any
member of the executive committee. Notice of such special meeting shall be sent
to each member of the executive committee at the member's residence or usual
place of business by letter, telegram, telex, telecopy or other document
transmitted electronically at such time that, in regular course, such notice
would reach such place not later than during the day immediately preceding the
day for such meeting; or may be delivered to a member personally at any time
during such immediately preceding day. Notice of any such meeting need not be
given to a member of an executive committee who has waived such notice, either
in writing or by telegram, telex, telecopy or other document transmitted
electronically arriving either before or after such meeting, or who shall be
present at the meeting. Any meeting of an
<PAGE> 10
executive committee shall be a legal meeting, without notice thereof having been
given, if all the members of the executive committee who have not waived notice
thereof in writing or by telegram, telex, telecopy, or other document
transmitted electronically shall be present in person. A majority of the members
of an executive committee, from time to time, shall be necessary to constitute a
quorum for the transaction of any business, and the act of a majority of the
members at a meeting at which a quorum is present shall be the act of the
executive committee. The members of an executive committee shall act only as a
committee, and the individual members shall have no power as such. All minutes
of meetings of an executive committee shall be submitted at the next succeeding
meeting of the board of directors for approval; but failure to submit the same
or to receive the approval thereof shall not invalidate any completed or
incomplete action taken by the Corporation upon authorization by an executive
committee prior to the time at which the same shall have been, or were,
submitted as above provided.
Section 5.04. Other Committees. The board of directors by resolution
adopted by majority vote of all the directors may appoint one or more other
committees from among its members as the board of directors determines to be
necessary, which committees shall have such powers and duties as prescribed by
the board of directors from time to time. Sections 5.01 through 5.03 of these
bylaws governing meetings, notice, and quorum and voting requirements of an
executive committee, apply to any other committees created by the board of
directors.
ARTICLE VI
Officers of the Corporation
Section 6.01. Election. At its annual meeting, the board of directors shall
elect a president, one or more vice presidents, (if the board of directors deems
such officers necessary), a secretary, and a treasurer, and such assistants and
other officers as it may decide upon, for a term of one (1) year. Any two (2) or
more offices may be held by the same person. If the annual meeting of the board
of directors is not held at the time designated in these bylaws, such failure
shall not cause any defect in the corporate existence of the Corporation,
but the officers for the time being shall hold over until their successors are
chosen and qualified, unless sooner removed as provided for by applicable law.
Section 6.02. Vacancies. Whenever any vacancies occur in any office by
death, resignation, increase in the number of officers of the Corporation, or
otherwise, such vacancy shall be filled by the board of directors, or by
the officer who had originally appointed the predecessor officer, and the
officer so elected shall hold office until his successor is chosen and
qualified, unless sooner removed as provided for by applicable law.
<PAGE> 11
Section 6.03. Removal. Any officer of the Corporation may be removed,
either with or without cause, at any time by the board of directors, or if the
officer to be removed was appointed by another officer, then the appointing
officer may so remove the appointed officer.
Section 6.04. President. The president shall be the chief executive
officer of the Corporation. The president shall preside at all meetings of the
shareholders and of the board of directors, and, subject to the approval of the
board of directors, shall direct the policies and management of the
Corporation. The president shall discharge all the duties inherent to a
presiding officer and perform such other duties as from time to time may be
assigned by the board of directors or as prescribed by law or these bylaws.
Section 6.05. Vice President. The vice president shall perform all
duties incumbent upon the president during the absence or disability of the
president, and perform such other duties as these bylaws may require or the
board of directors may prescribe; provided, that if the board of directors
elects more than one (1) vice president, their respective right to act during
the absence or disability of the president shall be in the order in which their
respective names appear in the resolution, or resolutions, electing such vice
presidents.
Section 6.06. Secretary. The secretary shall attend all meetings of the
shareholders and of the board of directors, and shall keep, or cause to be kept
a true and complete record of the proceedings of such meetings, and shall
perform a like duty for all standing committees appointed by the board of
directors, when required. The secretary shall attend to the giving and serving
of all notices of the Corporation, shall authenticate the records of the
Corporation, shall, unless the board of directors provides otherwise, maintain
the records required under Section 7.01 of these bylaws and shall perform such
other duties as these bylaws may require or the board of directors may
prescribe.
Section. 6.07. Treasurer. The treasurer shall maintain a correct and
complete record of accounts showing accurately at all times the financial
condition of the Corporation. The treasurer shall be the legal custodian of
all monies, notes, securities and other valuables which may from time to time
come into the possession of the Corporation. The treasurer shall immediately
deposit all funds of the Corporation in a bank or other depository to be
designated by the board of directors and shall keep such bank account in the
name of the Corporation. In the event no vice presidents have been elected by
the board of directors, the treasurer shall perform all duties incumbent upon
the president during the absence or disability of the president.
<PAGE> 12
Section 6.08. Assistant Officers. Assistants to any duly elected or
appointed officer of the corporation may be appointed by the board of
directors, the president of the Corporation or by the officer for whom the
assistant officer is appointed to serve. Such assistant officers shall have
such powers and duties as the officers whom they are elected to assist shall
specify and delegate to them and such other powers and duties as these bylaws
or the board of directors or the appointing officer may prescribe. An
assistant secretary may, in the event of the absence or disability of the
secretary, attest to the execution by the Corporation of all documents.
Section 6.09. Delegation of Authority. In case of the absence of any
officer of the Corporation, or for any other reason that the board of directors
may deem sufficient, the board of directors may delegate the powers or duties
of such officer to any other officer or to any director, for the time being,
provided a majority of the entire board of directors concurs therein.
ARTICLE VII
Records and Execution of Documents
Section 7.01. Required Records.
(a) The Corporation shall keep as permanent records minutes of all
meetings of its shareholders and board of directors, a record of all
actions taken by the shareholders or board of directors without a
meeting, and a record of all actions taken by a committee of the
board of directors in place of the board of directors on behalf of the
Corporation.
(b) The Corporation shall maintain appropriate accounting records.
(c) The Corporation or its agent shall maintain a record of its
shareholders, in a form that permits preparation of a list of the
names and addresses of all shareholders, in alphabetical order by
class of shares showing the number and class of shares held by each.
(d) The Corporation shall maintain its records in written form or in
another form capable of conversion into written form within a
reasonable time.
(e) The Corporation shall keep a copy of the following records at its
principal office:
(1) Its articles or restated articles of incorporation and all
amendments to them currently in effect.
(2) Its bylaws or restated bylaws and all amendments to them
currently in effect.
<PAGE> 13
(3) Resolutions adopted by its board of directors with respect to one
(1) or more classes or series of shares and fixing their
relative rights, preferences, and limitations, if shares issued
pursuant to those resolutions are outstanding.
(4) The minutes of all shareholders' meetings, and records of all
action taken by shareholders without a meeting, for the past
three (3) years.
(5) All written communications to shareholders generally within the
past three (3) years, including the financial statements
furnished for the past three (3) years under Indiana Code Section
23-1-53-1.
(6) A list of the names and business addresses of its current
directors and officers.
(7) Its most recent annual report delivered to the secretary of
state under Indiana code 23-1-53-3.
(f) A shareholder shall be entitled to inspect and copy any of the
records described in subsection (e) in accordance with Indiana Code
Section 23-1-52-2(a).
Section 7.02. Execution of Contracts and Other Documents. All contracts
and agreements entered into by the Corporation and all checks, drafts and bills
of exchange, and orders for the payment of money shall, unless otherwise
directed by the board of directors or required by law, be signed by the
president.
ARTICLE VIII
AMENDMENTS
The power to make, alter, amend or repeal these bylaws is vested in the
board of directors of the Corporation.
The foregoing Code of Bylaws of the Corporation were duly adopted by the
board of directors of the Corporation on the 3rd day of SEPTEMBER, 1992.
/s/ Michael A. Shure
--------------------------------
Michael A. Shure,
Secretary of the Corporation
<PAGE> 1
EXHIBIT 3.29
CERTIFICATE OF INCORPORATION
OF
BSG EDUCATIONAL SERVICES, INC.
ARTICLE I
The name of the corporation is BSG EDUCATIONAL SERVICES, INC.
ARTICLE II
The address of the corporation's registered office in the State of
Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware 19801.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
The purpose for which the corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
ARTICLE IV
The total number of shares of all classes of stock which the corporation
shall have authority to issues is 1,000 shares of common stock, par value
$.001 per share.
ARTICLE V
The governing board of the corporation shall be known as the board of
directors, and the number of directors comprising the same shall be determined
in accordance with the bylaws of the corporation. The initial board of
directors shall consist of one member. The name and mailing address of the
initial member of the board of directors, who shall hold office until the first
annual meeting of the stockholders, or until his successors are elected and
qualify, are as follows:
Steven G. Papermaster 11 Greenway Plaza, Suite 900
Houston, Texas 77046-1102
ARTICLE VI
The board of directors of the corporation is expressly and solely
authorized to make, alter or repeal bylaws of the corporation.
- 1 -
<PAGE> 2
ARTICLE VII
No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that the foregoing clause shall not
apply to any liability of a director (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of the law, (iii) under Section 174 of the General Corporation Law of
the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. This Article shall not eliminate or limit
the personal liability of a director for any act or omission occurring prior to
the date of this Article becomes effective.
ARTICLE VII
8.1 The corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgements, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
8.2 The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such
- 2 -
<PAGE> 3
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
8.3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 8.1 and 8.2 of this Article,
or in defense of any claim, issue or matter therein, the corporation shall
indemnify such director, officer, employee or agent against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
8.4 Any indemnification under Sections 8.1 and 8.2 of this Article (unless
ordered by a court) shall be made by the corporation only a authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in Sections 8.1 and 8.2 of this
Article. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
8.5 Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this Article. Such expenses incurred by other
employees and agents shall be so paid upon such terms and conditions, if any,
as the board of directors deems appropriate.
8.6 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office.
8.7 The corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the General Corporation Law of the State of Delaware of
this Article.
8.8 For purposes of this Article, references to "the Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so
that any person who is or was a director, officer, employee or agent
- 3 -
<PAGE> 4
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
8.9 For purposes of this Article, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation, which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
8.10 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall continue as a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE IX
Whenever a compromise or arrangement is proposed between the corporation
and its creditors or any class of them and/or between the corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the corporation under the provisions of
section 291 of the General Corporation Law of the State of Delaware or on the
application of trustees in dissolution or of any receiver or receivers appointed
for the corporation under the provisions of section 279 of the General
Corporation Law of the State of Delaware, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
corporation, as the case may be, to be summoned in such manner as the court
directs. If a majority in number, representing three-fourths in value, of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the corporation as a consequence of
such compromise or arrangement and the said reorganization shall, if sanctioned
by the court to which the said application has been made, by binding on all the
creditors or class of creditors, and/or on all of the stockholders or class of
stockholders, of the corporation, as the case may be, and also on the
corporation.
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<PAGE> 5
ARTICLE X
The corporation is to have perpetual existence.
ARTICLE IX
The name and address of the incorporator is Mark R. Riley, Capital Center
Penthouse, 401 Louisiana, 8th Floor, Houston, Texas 77002.
I, the undersigned, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring that this is my
act and deed and that the facts herein stated are true and accordingly I have
hereunto set my hand this 15th day of May, 1991.
/s/ Mark R. Riley
----------------------------------
Mark R. Riley
STATE OF TEXAS SS
SS
COUNTY OF HARRIS SS
Before me, the undersigned authority, on this date personally appeared
Mark R. Riley, known to me to be the person whose name is subscribed to the
foregoing certificate, and acknowledged to me that he executed said certificate
as his free act and deed and that facts therein stated are true.
Given under my hand seal this 15th day of May, 1991.
(SEAL) /s/ Donna S. Cofield
----------------------------------
Notary Public in and for
the State of TEXAS
My commission expires:
January 25, 1992 Donna S. Cofield
- ----------------------------- ----------------------------------
Printed Name of Notary Public
- 5 -
<PAGE> 6
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER is made this 30th day of December, 1992, between
Enterprise Technology Center, Inc., a Delaware corporation ("Merging
Company"), and BSG Educational Services, Inc., Delaware corporation
("Surviving Company").
WHEREAS, Merging Company has an authorized capitalization consisting of
1,000 shares of common stock par value $.001 per share ("Merging Company
Common Stock"), of which 1,000 shares have been validly issued and are now
outstanding and owned by BSG Capital Corporation; and
WHEREAS, Surviving Company has an authorized capitalization consisting of
1,000 shares of common stock, par value $.001 per share ("Surviving Company
Common Stock"), of which 1,000 shares have been validly issued and are now
outstanding and owned by BSG Capital Corporation; and
WHEREAS, the Boards of Directors of Merging Company and Surviving Company,
respectively, deem it desirable, upon the terms and conditions set forth
herein, that Merging Company merge with and into Surviving Company and that
Surviving Company be the surviving corporation.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto hereby prescribe the terms and
conditions of said merger and the mode of carrying the same into effect as
follows:
1. Merger. At the Effective Time (as defined below) of the merger,
Merging Company shall be merged with and into Surviving Company, with Surviving
Company as the surviving corporation (the "Merger").
2. Effective Time. This Agreement of Merger shall become effective at
the close of business on December 31, 1992, the time of such effectiveness
being hereinafter referred to as the "Effective Time."
3. Merging Company. The Merging Company Common Stock shall not be
converted into shares of Surviving Company Common Stock. Upon the Effective
Time of the Merger, the Merging Company Common Stock shall be cancelled and the
separate corporate existence of Merging Company shall cease.
4. Name Change of Surviving Company. At and after the Effective Time of
the Merger, the name of Surviving Company
<PAGE> 7
shall be changed to "Enterprise Technology Institute International, Inc."
Article I of Surviving Company's Certificate of Incorporation is hereby amended
as of the Effective Time, pursuant to Section 251(e) of the General Corporation
Law of the State of Delaware, to read in its entirety as follows:
The name of the corporation is ENTERPRISE TECHNOLOGY
INSTITUTE INTERNATIONAL, INC.
5. Certificate of Incorporation. The Certificate of Incorporation of
Surviving Company as it exists at the Effective Time shall be the Certificate
of Incorporation of Surviving Company following the Effective Time until the
same shall be amended or repealed in accordance with the provisions thereof.
6. Bylaws. The Bylaws of Surviving Company as they exist at the
Effective Time shall be the Bylaws of Surviving Company following the Effective
Time until the same shall be amended or repealed in accordance with the laws of
the State of Delaware.
7. Officers and Directors. The officers and directors of Surviving
Company as they exist at the Effective Time shall be the officers and directors
of Surviving Company following the Effective Time until their successors have
been duly elected and qualified.
8. Further Assurance of Title. If at any time Surviving Company shall
consider or be advised that any acknowledgements or assurances in law or other
similar actions are necessary or desirable in order to acknowledge or confirm
in and to Surviving Company any right, title, or interest held by Merging
Company immediately prior to the Effective Time, Merging Company and its proper
officers and directors shall and will execute and deliver all such
acknowledgments or assurances in law and do all things necessary or proper to
acknowledge or confirm such right, title, or interest in Surviving Company as
shall be necessary to carry out the purposes of this Agreement of Merger, and
Surviving Company and the proper officers and directors thereof are fully
authorized to take any and all such action in the name of Merging Company or
otherwise.
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<PAGE> 8
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
of Merger to be executed as of the date first written above.
ENTERPRISE TECHNOLOGY CENTER, INC.
ATTEST:
/s/ John A. Hinners By: /s/ Steven G. Papermaster
- ---------------------------- ---------------------------------
John A. Hinners Steven G. Papermaster
Secretary President
BSG EDUCATIONAL SERVICES, INC.
ATTEST:
/s/ John A. Hinners By: /s/ Steven G. Papermaster
- ---------------------------- ----------------------------------
John A. Hinners Steven G. Papermaster
Secretary President
-3-
<PAGE> 9
Certificate of the Secretary
of
Enterprise Technology Center, Inc.
I, John A. Hinners, Secretary of Enterprise Technology Center, Inc., a
Delaware corporation, hereby certify that the total number of outstanding
shares of common stock entitled to vote on the merger with BSG Educational
Services, Inc., a Delaware corporation, is 1,000 shares, that there is no other
class of stock outstanding and that the Agreement of Merger to which this
certificate has been attached and made a part was approved and adopted by the
sole stockholder of said Enterprise Technology Center, Inc. pursuant to Section
251 of the General Corporation Law of the State of Delaware.
WITNESS my hand and seal of said Enterprise Technology Center, Inc. this
30th day of December, 1992.
[CORPORATE SEAL]
/s/ John A. Hinners
--------------------------
John A. Hinners, Secretary
-4-
<PAGE> 10
Certificate of the Secretary
of
BSG Educational Services, Inc.
I, John A. Hinners, Secretary of BSG Educational Services, Inc., a Delaware
corporation, hereby certify that the total number of outstanding shares of
common stock entitled to vote on the merger with Enterprise Technology Center,
Inc., a Delaware corporation, is 1,000 shares, that there is no other class of
stock outstanding and that the Agreement of Merger to which this certificate has
been attached and made a part was approved and adopted by the sole stockholder
of said BSG Educational Services, Inc. pursuant to Section 251 of the General
Corporation Law of the State of Delaware.
WITNESS my hand and seal of said BSG Educational Services, Inc. this 30th
day of December, 1992.
[CORPORATE SEAL]
/s/ John A. Hinners
--------------------------
John A. Hinners, Secretary
-5-
<PAGE> 11
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION OF
ENTERPRISE TECHNOLOGY INSTITUTE INTERNATIONAL, INC.
ARTICLE I
Article I of the Certificate of Incorporation of the Corporation, filed in
the Office of the Secretary of State of Delaware as of May 16, 1991, and
amended by that certain Agreement of Merger, dated December 30, 1992, by and
between Enterprise Technology Center, Inc. and BSG Educational Services, Inc.
("Merger Agreement"), provides:
"The name of the corporation is Enterprise Technology Institute
International, Inc."
ARTICLE II
By resolutions dated June 2, 1993, the board of directors of the
Corporation proposed that Article I of the Corporation's Certificate of
Incorporation be amended to read in full as follows:
"The name of the corporation is BSG Educational Services, Inc."
ARTICLE III
By resolutions dated June 2, 1993, the Corporation's sole shareholder
approved such proposed amendment.
ARTICLE IV
Article I of the Corporation's Certificate of Incorporation, as amended by
the Merger Agreement, is hereby amended to read in full as follows:
"The name of the corporation is BSG Educational Services, Inc."
IN WITNESS WHEREOF, the undersigned, being the duly authorized
representative of the Corporation, has set his hand hereto as of the 2nd day of
June, 1993.
/s/ Mark R. Riley
----------------------
Mark R. Riley
Executive Vice President
ATTEST:
/s/ John A. Hinners
- -------------------
John A. Hinners
Secretary
<PAGE> 12
THE STATE OF TEXAS SS
SS
COUNTY OF HARRIS SS
BEFORE ME, the undersigned authority, on this day personally appeared Mark
R. Riley, Executive Vice President of Enterprise Technology Institute
International, Inc., a Delaware corporation, known to me to be the person whose
name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed, in the
capacity stated, and as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2nd day of June, 1993.
[SEAL] /s/ Donna S. Cofield
----------------------------
Notary Public in and for
The State of Texas
My commission expires: 1/25/96
-----------
THE STATE OF TEXAS SS
SS
COUNTY OF HARRIS SS
BEFORE ME, the undersigned authority, on this day personally appeared John
A. Hinners, Secretary of Enterprise Technology Institute International, Inc., a
Delaware corporation, known to me to be the person whose name is subscribed to
the foregoing instrument and acknowledged to me that he executed the same for
the purposes and consideration therein expressed, in the capacity stated, and
as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2nd day of June, 1993.
[SEAL]
/s/ Donna S. Cofield
----------------------------------
Notary Public in and for
The State of Texas
My Commission expires: 1/25/96
-----------
<PAGE> 13
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION OF
BSG EDUCATIONAL SERVICES, INC.
The undersigned does hereby certify that the amendment set forth in this
Certificate of Amendment to the Certificate of Incorporation of BSG Educational
Services, Inc. was adopted in accordance with Section 242(1) of the Delaware
General Corporation Law, and does hereby certify as follows:
ARTICLE I
Article I of the Certificate of Incorporation of the Corporation, filed in
the Office of the Secretary of State of Delaware as of May 16, 1991, provides:
"The name of the corporation is BSG Education, Inc."
ARTICLE II
By Written Consent dated April 22, 1994, the board of directors of the
Corporation proposed that Article I of the Corporation's Certificate of
Incorporation be deleted in its entirety and replaced with the following:
"The name of the corporation is BSG Education, Inc."
ARTICLE III
By Written Consent dated April 22, 1994, the Corporation's sole stockholder
approved such proposed amendment.
WITNESS the execution hereof as of the 22nd day of April, 1994.
/s/ Steven G. Papermaster
------------------------------------
Steven G. Papermaster
Chairman and Chief Executive Officer
ATTEST:
/s/ John A. Hinners
- -------------------
John A. Hinners
Secretary
<PAGE> 14
THE STATE OF TEXAS SS
SS
COUNTY OF HARRIS SS
BEFORE ME, the undersigned authority, on this day personally appeared
Steven G. Papermaster, Chairman and Chief Executive Officer of BSG Educational
Services, Inc., a Delaware corporation, known to me to be the person whose
name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed, in the
capacity stated, and as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 22nd day of April, 1994.
[SEAL] /s/ MARTHA GROLL
----------------------------
Notary Public in and for
The State of Texas
My commission expires: 11/16/94
-----------
THE STATE OF TEXAS SS
SS
COUNTY OF HARRIS SS
BEFORE ME, the undersigned authority, on this day personally appeared
John A. Hinners, Secretary of BSG Educational Services, Inc., a Delaware
corporation, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity stated, and as the
act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 22nd day of April, 1994.
[SEAL] /s/ MARTHA GROLL
----------------------------
Notary Public in and for
The State of Texas
My commission expires: 11/16/94
-----------
<PAGE> 15
ARTICLE THREE
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the
following amendment to the Certificate:
Article VII of the Certificate is amended in its entirety to read as
follows:
"No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that the foregoing
clause shall not apply to any liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of the law,
(iii) under Section 174 of the Delaware General Corporation Law (the
"DGCL"), or (iv) for any transaction from which the director derived
an improper personal benefit. If the DGCL is hereafter amended to
authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the corporation, in
addition to the limitation on personal liability provided herein,
shall be limited to the fullest extent permitted by the DGCL, as
amended. Any repeal or modification of this Article by the
stockholders of the corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a
director of the corporation existing at the time of such repeal or
modification."
ARTICLE FOUR
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the
following amendment to the Certificate:
Article VIII of the Certificate is amended in its entirety to read as
follows:
"8.1 The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any
- 2 -
<PAGE> 16
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
8.2 The corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
8.3 To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 8.1 and 8.2 of this Article,
or in defense of any claim, issue or matter therein, the corporation shall
indemnify such director, officer, employee or agent against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
8.4 Any indemnification under Sections 8.1 and 8.2 of this Article
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in Sections 8.1 and 8.2 of this
Article. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable and a quorum of disinterested directors so directs, by
independent counsel in a written opinion, or (3) by the stockholders.
8.5 Expenses (including attorneys' fees) incurred by an officer,
director, or employee in defending any civil, criminal, administrative or
investigative action, suit or proceeding referred to in Sections 8.1 and 8.2 of
this Article shall be paid by the corporation in advance of the final
disposition of such
- 3 -
<PAGE> 17
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director, officer, or employee to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the corporation
as authorized in this Article. Such expenses (including attorneys' fees)
incurred by other employees and agents shall be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
8.6 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office.
8.7 The corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the Delaware General Corporation Law (the "DGCL") or this
Article.
8.8 For purposes of this Article, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so
that any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving as the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
8.9 For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed
- 4 -
<PAGE> 18
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Article.
8.10 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
8.11 In the event the DGCL is here after amended to, or other
applicable laws are enacted that, authorize additional or broader rights
to indemnification or advancement of expenses for directors, officers,
employees or agents of the corporation (or persons serving at the request
of the corporation as directors, officers, employees or agents of another
corporation, partnership, joint venture, trust or other entity,) the
indemnification and advancement of expenses provided by, or granted
pursuant to, this Article shall be modified to include such additional or
broader rights to the fullest extent permitted by the DGCL, as amended, or
such other applicable laws as may be enacted from time to time. Any repeal
or modification of this Article by the stockholders of the corporation
shall be prospective only, and shall not adversely affect any
indemnification or expense advancement rights of a director, officer,
employee or agent of the corporation existing at the time of such repeal or
modification.
8.12 The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which a person seeking indemnification may
be entitled under any statute, bylaw, other provisions of this Certificate
of Incorporation, as amended, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office."
ARTICLE FIVE
By written consent dated December 20, 1994, the Company's sole stockholder
approved the foregoing amendments to the Certificate set forth in Articles
One, Two, Three, and Four of this Certificate of Amendment to Certificate of
Incorporation.
ARTICLE SIX
The foregoing amendments to the Certificate were duly adopted in
accordance with Section 242 of the General Corporation Law of the State of
Delaware.
- 5 -
<PAGE> 19
IN WITNESS WHEREOF, the Company has caused this Certificate of Amendment
to Certificate of Incorporation to be signed on its behalf by its Chairman,
Chief Executive Officer, and President on December 20, 1994.
/s/ Steven G. Papermaster
------------------------------------------------
Steven G. Papermaster
Chairman, Chief Executive Officer, and President
- 6 -
<PAGE> 20
BSG EDUCATION, INC.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
BSG Education, Inc., a Delaware corporation (the "Company"), does hereby
certify:
ARTICLE ONE
The Company was originally incorporated as "BSG Educational Services,
Inc." on May 16, 1991. Pursuant to an Agreement of Merger dated December
30, 1992, by and between Enterprise Technology Center, Inc. and the Company,
the Company's name was changed to "Enterprise Technology Institute
International, Inc." The Company subsequently filed a Certificate of Amendment
to its Certificate of Incorporation on June 2, 1993, pursuant to which it
changed its name to "BSG Educational Services, Inc." On April 26, 1994, the
Company filed a Certificate of Amendment to its Certificate of Incorporation
that changed its name to "BSG Education, Inc."
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the following
amendment to the Company's Certificate of Incorporation, as amended as
described in the foregoing paragraph (the "Certificate"):
Article I of the Certificate is amended in its entirety to read as
follows:
"The name of the corporation is BSG ALLIANCE/IT, INC."
ARTICLE TWO
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the
following amendment to the Certificate:
Article IV of the Certificate is amended in its entirety to read as
follows:
"The total number of shares of all classes of stock which the
corporation shall have the authority to issues is 3,000 shares of
common stock, par value $.001 per share."
<PAGE> 21
ARTICLE THREE
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the
following amendment to the Certificate:
Article VII of the Certificate is amended in its entirety to read as
follows:
"No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that the foregoing
clause shall not apply to any liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of the law,
(iii) under Section 174 of the Delaware General Corporation Law (the
"DGCL"), or (iv) for any transaction from which the director derived
an improper personal benefit. If the DGCL is hereafter amended to
authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the corporation, in
addition to the limitation on personal liability provided herein,
shall be limited to the fullest extent permitted by the DGCL, as
amended. Any repeal or modification of this Article by the
stockholders of the corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a
director of the corporation existing at the time of such repeal or
modification."
ARTICLE FOUR
By written consent dated December 20, 1994, the Company's Board of
Directors adopted a resolution proposing, and declaring advisable, the
following amendment to the Certificate:
Article VIII of the Certificate is amended in its entirety to read as
follows:
"8.1 The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any
-2-
<PAGE> 22
action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
8.2 The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and except that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem
proper.
8.3 To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections 8.1
and 8.2 of this Article, or in defense of any claim, issue or matter
therein, the corporation shall indemnify such director, officer,
employee or agent against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
8.4 Any indemnification under Sections 8.1 and 8.2 of this
Article (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in Sections 8.1 and 8.2 of this Article. Such
determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties
to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable and a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
8.5 Expenses (including attorneys' fees) incurred by an officer,
director, or employee in defending any civil, criminal, administrative
or investigative action, suit or proceeding referred to in Sections
8.1 and 8.2 of this Article shall be paid by the corporation in
advance of the final disposition of such
-3-
<PAGE> 23
action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director, officer, or employee to repay such amount if
it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Article. Such
expenses (including attorneys' fees) incurred by other employees and
agents shall be so paid upon such terms and conditions, if any, as the
board of directors deems appropriate.
8.6 The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement
of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action
in an official capacity and as to action in another capacity while
holding such office.
8.7 The corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against
such liability under the Delaware General Corporation Law (the "DGCL")
or this Article.
8.8 For purposes of this Article, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of
this Article with respect to the resulting or surviving corporation as
he would have with respect to such constituent corporation if its
separate existence had continued.
8.9 For purposes of this Article, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed
-4-
<PAGE> 24
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Article.
8.10 The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article shall continue as to a
person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators
of such a person.
8.11 In the event the DGCL is hereafter amended to, or other
applicable laws are enacted that, authorize additional or broader
rights to indemnification or advancement of expenses for directors,
officers, employees or agents of the corporation (or persons serving at
the request of the corporation as directors, officers, employees or
agents of another corporation, partnership, joint venture, trust or
other entity), the indemnification and advancement of expenses provided
by, or granted pursuant to, this Article shall be modified to include
such additional or broader rights to the fullest extent permitted by
the DGCL, as amended, or such other applicable laws as may be enacted
from time to time. Any repeal or modification of this Article by the
stockholders of the corporation shall be prospective only, and shall
not adversely affect any indemnification or expense advancement rights
of a director, officer, employee or agent of the corporation existing
at the time of such repeal or modification.
8.12 The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which a person seeking
indemnification may be entitled under any statute, bylaw, other
provisions of this Certificate of Incorporation, as amended, agreement,
vote of stockholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in
another capacity while holding such office."
ARTICLE FIVE
By written consent dated December 20, 1994, the Company's sole stockholder
approved the foregoing amendments to the Certificate set forth in Articles One,
Two, Three, and Four of this Certificate of Amendment to Certificate of
Incorporation.
ARTICLE SIX
The foregoing amendments to the Certificate were duly adopted in
accordance with Section 242 of the General Corporation Law of the State of
Delaware.
- 5 -
<PAGE> 25
IN WITNESS WHEREOF, the Company has caused this Certificate of
Amendment to Certificate of Incorporation to be signed on its behalf by its
Chairman, Chief Executive Officer, and President on December 20, 1994.
/s/ Steven G. Papermaster
------------------------------------------------
Steven G. Papermaster
Chairman, Chief Executive Officer, and President
- 6 -
<PAGE> 26
CERTIFICATE OF MERGER
OF
BUSINESS SYSTEMS GROUP, INC AND
BSG CONSULTING, INC.
MERGING INTO
BSG ALLIANCE/IT, INC.
In accordance with Sections 103 and 251 of the Delaware General
Corporation Law (the "DGCL"), the undersigned hereby adopts this Certificate of
Merger:
FIRST: Business Systems Group, Inc., a Delaware corporation ("BSGI"),
and BSG Consulting, Inc., a Delaware corporation ("Consulting"), are merging
with and into BSG Alliance/IT, Inc., a Delaware corporation (collectively, the
"Merging Entities").
SECOND: Each of the Merging Entities has approved, adopted, certified,
executed, and acknowledged the Agreement and Plan of Merger dated December 20,
1994, among the Merging Entities (the "Merger Agreement"), in accordance with
Section 251(c) of the DGCL.
THIRD: The name of the surviving entity is BSG Alliance/IT, Inc.
("BSG/AIT" or the "Surviving Entity").
FOURTH: The Certificate of Incorporation of BSG/AIT, as amended, shall
be the Certificate of incorporation of the Surviving Entity.
FIFTH: The executed Merger Agreement is on file at the principal place
of business of the Surviving Entity whose address is:
BSG Alliance/IT, Inc.
11 Greenway Plaza, Suite 900
Houston, Texas 77046-1102
Attention: Legal Department
SIXTH: An executed copy of the Merger Agreement will be furnished by
the Surviving Entity, on request and without cost, to any stockholder of any of
the Merging Entities.
SEVENTH: The Merger shall be effective at the close of business on
December 31, 1994 (the "Effective Time").
<PAGE> 27
WITNESS the execution hereof on December 20, 1994, effective as of the
Effective Time set forth above.
BSG ALLIANCE/IT, INC.
By: /s/ Steven G. Papermaster
-----------------------------------
Steven G. Papermaster
Chairman, Chief Executive Officer,
and President
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<PAGE> 28
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation") is
BSG ALLIANCE/IT, INC.
2. The registered office of the corporation within the State of Delaware is
hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New
Castle.
3. The registered agent of the corporation within the State of Delaware is
hereby changed to The Prentice-Hall Corporation System, Inc., the business
office of which is identical with the registered office of the corporation as
hereby changed.
4. The corporation has authorized the changes hereinbefore set forth by
resolution of its Board of Directors.
Signed on 8/8, 1996.
/s/ Peggy Sherman
---------------------------------
PEGGY SHERMAN, VICE PRESIDENT
<PAGE> 29
CERTIFICATE OF MERGER
OF
SAGE COMMUNICATIONS CORPORATION
WITH AND INTO
BSG ALLIANCE/IT, INC.
The undersigned corporation, organized and existing under and by virtue of
the Delaware General Corporation Law (the "DGCL"), DOES HEREBY CERTIFY:
1. Sage Communication Corporation ("Sage"), an Arizona corporation, is
merging with and into BSG Alliance/IT, Inc. ("Alliance"), a Delaware
corporation (the "Merger").
2. The Amended and Restated Merger Agreement (the "Merger Agreement")
has been approved, adopted, certified, executed and acknowledged by Alliance and
Sage, in accordance with Section 252(c) of the DGCL and in the same manner as
is provided in Section 251 of the DGCL.
3. Alliance will be the surviving Delaware corporation following the
Merger, using the name "BSG Alliance/IT, Inc."
4. The Certificate of Incorporation of Alliance will continue after the
merger as the Certificate of Incorporation of the surviving corporation until
thereafter duly amended in accordance with its terms and the DGCL.
5. The executed Merger Agreement pursuant to which the Merger is being
consummated is on file at the principal place of business of the surviving
corporation. The address of the principal place of business of the surviving
corporation is c/o Medaphis Corporation, 2700 Cumberland Parkway, Suite 300,
Atlanta, Georgia 30339.
6. A copy of the Merger Agreement will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any constituent
corporation.
7. The authorized capital stock of Sage consists of 10,000,000 shares of
a par value of $.01 each.
IN WITNESS WHEREOF, Alliance has caused its duly authorized officer to
execute and deliver this Certificate of Merger as of the 8th day of October ,
1996.
BSG ALLIANCE/IT, INC.
By: /s/ William R. Spalding
----------------------------------
Name: William R. Spalding
--------------------------------
Title: Senior Vice President,
-------------------------------
General Counsel and Secretary
<PAGE> 1
EXHIBIT 3.30
AMENDED AND RESTATED BYLAWS
OF
BSG ALLIANCE/IT, INC.
(formerly BSG Education, Inc.)
A DELAWARE CORPORATION
---------------
ARTICLE I
REGISTERED OFFICE
The registered office of the Corporation required by the Delaware General
Corporation Law to be maintained in the State of Delaware shall be the
registered office named in the Certificate of Incorporation of the Corporation,
as the same may be amended from time to time, or such other office (which need
not be a place of business or principal office of the Corporation) as may be
designated from time to time by the Board of Directors in the manner provided by
law.
ARTICLE II
STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders shall
be held at the principal office of the Corporation or at such other place within
or without the State of Delaware as shall be specified or fixed in the notices
(or waivers of notice) thereof.
Section 2. Quorum; Required Vote for Stockholder Action; Adjournment of
Meetings. Unless otherwise required by law, the Certificate of Incorporation, or
these Bylaws, the holders of a majority of the issued and outstanding stock,
present in person or represented by proxy and entitled to vote at such meeting
of stockholders, shall constitute a quorum at any such meeting for the
transaction of business. The affirmative vote of the holders of a majority of
such stock so present or represented at such meeting at which a quorum is
present shall constitute the act of the stockholders. The stockholders present
at a duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of sufficient stockholders to destroy the quorum.
Notwithstanding other provisions of the Certificate of Incorporation or
these Bylaws, the Chairman of the meeting of stockholders or the holders of a
majority of the issued and outstanding stock, present in person or represented
by proxy and entitled to vote thereat, whether or not a quorum is present, shall
have the power to adjourn such meeting from time to time, without any notice
other than announcement at the meeting of the time and place of the
<PAGE> 2
adjourned meeting. If the adjournment is for more than thirty (30) days, or if,
subsequent to the adjournment, a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at such meeting. At such adjourned meeting at which a
quorum shall be present or represented by proxy, any business may be transacted
which might have been transacted at the meeting as originally called.
Section 3. Annual Meetings. An annual meeting of the stockholders, for
the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly be considered at the meeting,
shall be held at such place, within or without the State of Delaware, on such
date and at such time as the Board of Directors shall fix and set forth in the
notice of the meeting, which date shall be within thirteen (13) months
subsequent to the most recent annual meeting of stockholders. If the Board of
Directors has not fixed a place for the holding of the annual meeting of
stockholders in accordance with this Article II, Section 3, such annual meeting
shall be held at the principal place of business of the Corporation.
Section 4. Special Meetings. Unless otherwise provided in the Certificate
of Incorporation, or these Bylaws, special meetings of the stockholders for any
proper purpose or purposes may be called at any time by the Chairman of the
Board (if any), the Board of Directors, the President, or such other person or
persons as may be authorized in the Certificate of Incorporation or, unless the
Certificate of Incorporation provides otherwise, the holder(s) of at least ten
percent (10%) of the stock entitled to vote at the proposed special meetings.
If not otherwise stated in or fixed in accordance with the remaining
provisions hereof, the record date for determining stockholders entitled to call
a special meeting shall be the date any stockholder first signs the notice of
that meeting. Only business within the proper purpose or purposes described in
the notice (or waiver thereof) required by these Bylaws may be conducted at a
special meeting of the stockholders.
Section 5. Record Date. For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in connection with any change, conversion, or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix a record
date, which record date shall not precede the date on which the resolution
fixing such record date is adopted by the Board of Directors and which record
date shall not be more than sixty (60) nor less than ten (10) days prior to the
date of such meeting.
If no record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be the close of business on the day next preceding the day on
which notice of such meeting is given, or, if notice is waived in accordance
with Article VIII, Section 3 of these Bylaws, the close of business on the day
next preceding the day on which the meeting of stockholders is held.
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<PAGE> 3
If, in accordance with Article II, Section 12 hereof, corporate action
without a meeting of stockholders is to be taken, the Board of Directors may fix
a record date for determining stockholders entitled to consent in writing to
such corporate action, which record date shall not precede the date on which the
resolution fixing the record date is adopted by the Board of Directors and which
record date shall not be more than ten (10) days subsequent to the date on which
the resolution fixing the record date is adopted by the Board of Directors.
If no record date has been fixed by the Board of Directors, the record date
for determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
law, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by delivery
to its registered office, its principal place of business, or to an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of Directors
and prior action by the Board of Directors is required by law, the record date
for determining stockholders entitled to consent to corporate action in writing
without a meeting shall be the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action.
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend, distribution, or allotment of any rights, or
the stockholders entitled to exercise any rights in connection with any change,
conversion, or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date on which the resolution fixing the record date is adopted and
which record date shall not be more than sixty (60) days prior to such action.
If no record date is fixed, the record date for determining stockholders for any
such purpose shall be the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Notice of Meetings. Written or printed notice stating the
place, day, and hour of all meetings and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten (10) nor more than sixty (60) days prior to the date of the meeting,
either personally or by mail, by or at the direction of the President, the
Secretary, or the officer or person calling the meeting, to each stockholder
entitled to vote at such meeting. If mailed, such notice shall be deemed to have
been given when addressed to the stockholder, at his address as it appears on
the stock transfer records of the Corporation, postage prepaid, and deposited in
the United States mail. An affidavit of the Secretary, an Assistant Secretary,
or the transfer agent of the Corporation that the notice has been given shall,
in the absence of fraud, be prima facie evidence of the facts stated therein.
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<PAGE> 4
SECTION 7. VOTING LIST. The officer or agent having charge of the stock
transfer records of the Corporation shall prepare and make, at least ten (10)
days prior to each meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of ten (10) days prior to such meeting, shall be kept
on file at the registered office or principal place of business of the
Corporation and shall be subject to inspection by any stockholder at any time
during usual business hours. Such list shall also be produced and kept open at
the time and place of the meeting and shall be subject to inspection by any
stockholder during the course of the meeting. The original stock transfer
records shall be prima facie evidence as to the identity of those stockholders
entitled to examine such voting list or transfer records or to vote at any
meeting of stockholders. Failure to comply with the requirements of this Article
II, Section 7 shall not affect the validity of any action taken at such meeting.
SECTION 8. PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to a corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy. Proxies for use at any meeting of stockholders shall be filed with the
Secretary or such other officer as the Board of Directors may from time to time
determine by resolution prior to or at the time of such meeting. All proxies
shall be received and taken charge of, and all ballots shall be received and
canvassed, by the Secretary of the meeting, who shall decide all questions with
respect to the validity of such proxies, the qualification of voters, and the
acceptance or rejection of votes, unless an inspector or inspectors shall have
been appointed by the Chairman of the meeting, in which event such inspector or
inspectors shall decide all such questions.
No proxy shall be valid after three (3) years from the date of its
execution, unless such proxy provides for a longer period. Each proxy, unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power, shall be revocable.
Should a proxy designate two or more persons to act as proxies, unless such
instrument shall expressly provide otherwise, a majority of such persons present
at any meeting at which their powers thereunder are to be exercised shall have
and may exercise all the powers of voting or consent thereby conferred, or if
only one be present, then such powers may be exercised by that one; or, if an
even number attend and a majority cannot agree on any particular issue, the
Corporation shall not be required to recognize such proxy with respect to such
issue, if such proxy does not specify how the shares that are the subject of
such proxy are to be voted with respect to such issue.
SECTION 9. VOTING; INSPECTORS; ELECTIONS. Unless otherwise required by
law or provided in the Certificate of Incorporation, each stockholder shall, on
each matter submitted to a vote at a meeting of stockholders, have one vote for
each share of stock entitled to vote thereon, which is registered in his name on
the record date for such meeting. Shares registered in the name of another
corporation, domestic or foreign, may be voted by such officer, agent,
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<PAGE> 5
or proxy as the bylaws (or comparable instrument) of such corporation may
prescribe, or in the absence of such provision, as the Board of Directors (or
comparable body) of such corporation may determine. Shares registered in the
name of a deceased person may be voted by his executor or administrator, either
in person or by proxy.
At any meeting at which a vote is taken by ballot, the Chairman of such
meeting may appoint one or more inspectors, each of whom shall sign an oath or
affirmation to faithfully execute, to the best of his ability and with strict
impartiality, the duties of inspector at such meeting. Such inspector shall
receive the ballots, count the votes, and make and sign a certificate of the
result thereof. The Chairman of the meeting may appoint any person to serve as
inspector; provided, however, that no candidate for the office of director shall
be appointed as an inspector.
All elections shall be determined by a plurality of the votes cast, and,
except as otherwise required by law, the Certificate of Incorporation, or these
Bylaws, all other matters shall be determined by a majority of the votes cast.
Unless otherwise provided in the Certificate of Incorporation, cumulative
voting for the election of directors shall be prohibited.
Section 10. Conduct of Meetings. All meeting of the stockholders
shall be presided over by the Chairman of the meeting, who shall be the Chairman
of the Board (if any) or if he is not present, the President, or if neither the
Chairman of the Board (if any) nor the President is present, a Chairman elected
at such meeting. The Secretary of the Corporation, if present, shall act as
Secretary of such meetings, or if he is not present, an Assistant Secretary (if
any) shall so act; if neither the Secretary nor an Assistant Secretary (if any)
is present, then a Secretary shall be appointed by the Chairman of the meeting.
The Chairman of any meeting of stockholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion, as seem to him in order. Unless
the Chairman of the meeting shall otherwise determine, the order of business
shall be as follows:
(a) Calling of meeting to order.
(b) Election of a Chairman and the Appointment of a Secretary if
necessary.
(c) Presentation of proof of the due calling of the meeting.
(d) Presentation and examination of proxies and determination of a quorum.
(e) Reading and settlement of the minutes of the previous meeting.
(f) Reports of officers and committees.
(g) The election of directors, if an annual meeting or a meeting called
for that purpose.
(h) Unfinished business.
(i) New business.
(j) Adjournment
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<PAGE> 6
Section 11. Treasury Shares. Neither the Corporation nor any other person
shall vote, directly or indirectly, at any meeting of stockholders, shares of
the Corporation's own stock owned by the Corporation, shares of the
Corporation's own stock owned by another corporation, the majority of the voting
stock of which is owned or controlled by the Corporation, or shares of the
Corporation's own stock held by the Corporation in a fiduciary capacity; and
such shares shall not be counted for quorum purposes or in determining the
number of outstanding shares.
Section 12. Action by Written Consent. Unless otherwise provided in the
Certificate of Incorporation, any action permitted or required to be taken at a
meeting of stockholders by law, the Certificate of Incorporation, or these
Bylaws, may be taken without a meeting, without prior notice and without a vote,
if a consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock holding not less than the minimum
number of votes that would have been necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted, and such consent shall be delivered to the Corporation's registered
office, its principal place of business, or to an officer or agent of the
Corporation having custody of the book in which the proceedings of meetings of
stockholders are recorded. Delivery made to a Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature thereto, and no written
consent shall be effective to take the corporate action referred to therein
unless, within sixty (60) days of the first consent delivered to the Corporation
in the manner required by this Article II, Section 12, written consents signed
by a sufficient number of holders to take action are delivered to the
Corporation.
Prompt notice of the taking of corporate action without a meeting, by less
than a unanimous written consent, shall be given by the Secretary to those
stockholders who did not consent in writing to such action.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Power Number; Term of Office. The powers of the Corporation
shall be exercised by or under the authority of, and the business and affairs of
the Corporation shall be managed under, the direction of the Board of Directors.
Unless otherwise provided in the Certificate of Incorporation, the number
of directors that shall constitute the Board of Directors shall be determined
from time to time by resolution of the Board of Directors (provided that no
decrease in the number of directors that would have the effect of shortening the
term of any incumbent director may be made by the Board of Directors). If the
Board of Directors does not make such determination, the number of directors
shall be that number set forth in the Certificate of Incorporation as the number
of directors constituting the initial Board of Directors. Each director shall
hold office for the term for which
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<PAGE> 7
he is elected and thereafter until his successor shall have been elected and
qualified or until his earlier death, resignation, or removal.
Unless otherwise provided in the Certificate of Incorporation, directors
need not be stockholders or residents of the State of Delaware.
Section 2. Quorum; Required Vote for Director Action. Unless otherwise
required by law or provided in the Certificate of Incorporation or these Bylaws,
a majority of the total number of directors fixed by or in the manner provided
in the Certificate of Incorporation or these Bylaws shall constitute a quorum
for the transaction of business at a meeting of the Board of Directors, and the
act of a majority of the directors present at such meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 3. Meetings; Order of Business. The directors may hold their
meetings and may have an office and keep the books of the Corporation, except as
otherwise provided by law, in such place or places, within or without the State
of Delaware, as the Board of Directors may from time to time determine by
resolution. At all meetings of the Board of Directors, business shall be
transacted in such order as shall from time to time be determined by the
Chairman of the Board (if any) or, in his absence, by the President (if the
President is a director), or by resolution of the Board of Directors.
Section 4. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times and places as shall be designated from time to time
by resolution of the Board of Directors. Notice of such regular meetings shall
not be required.
Section 5. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board (if any), the President, or on
written request of any two directors, by the Secretary, in each case on at least
twenty-four (24) hours personal, written, telegraphic, cable, or wireless notice
to each director. Such notice, or any waiver thereof pursuant to Article VIII,
Section 3 hereof, need not state the purpose or purposes of such meeting, except
as may otherwise be required by law, the Certificate of Incorporation, or these
Bylaws.
Section 6. Removal. Any one or more directors or the entire Board of
Directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors for the particular
directors being removed; provided that, unless the Certificate of Incorporation
otherwise provides, if the Board of Directors is classified, then the
stockholders may effect such removal only for cause; and provided further that,
if the Certificate of Incorporation expressly grants to stockholders the right
to cumulate votes for the election of directors and if less than the entire
Board of Directors is to be removed, no director may be removed without cause if
the votes cast against his removal would be sufficient to elect him if then
cumulatively voted at an election of the entire Board of Directors or, if there
be classes of directors, at an election of the class of directors of which such
director is a part.
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<PAGE> 8
Section 7. Vacancies; Increases in the Number of Directors. Unless
otherwise provided in the Certificate of Incorporation or these Bylaws,
vacancies and newly-created directorships resulting from any increase in the
authorized number of directors elected by all of the stockholders having the
right to vote as a single class may be filled by the affirmative vote of a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director. If the Certificate of Incorporation entitles the
holders of any class or classes of stock or series thereof to elect one (1) or
more directors, vacancies and newly-created directorships of such class or
classes or series may be filled by a majority of the directors elected by such
class or classes or series thereof then in office, or by a sole remaining
director so elected.
If the directors of the Corporation are divided into classes, any directors
elected to fill vacancies or newly-created directorships shall hold office until
the next election of the class for which such directors shall have been chosen
and until their successors shall be duly elected and qualified.
Section 8. Compensation. Unless otherwise provided in the Certificate of
Incorporation, the Board of Directors shall have the authority to fix the
compensation, if any, of directors.
Section 9. Action Without a Meeting; Telephone Conference Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required or
permitted to be taken at any meeting of the Board of Directors, or any committee
designated by the Board of Directors, may be taken without a meeting if all
members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and the consents are filed with the minutes of proceedings
of the Board of Directors or committee. Such consent shall have the same force
and effect as a unanimous vote at a meeting, and may be stated as such in any
document or instrument filed with the Secretary of State of the State of
Delaware.
Unless otherwise provided in the Certificate of Incorporation, subject to
the requirement for notice of such meetings, members of the Board of Directors,
or members of any committee designated by the Board of Directors, may
participate in a meeting of such Board of Directors or committee, as the case
may be, by means of a conference telephone or similar communications equipment,
by means of which all persons participating in the meeting can hear each other,
and participation in such meeting shall constitute presence in person at the
meeting, except when a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
Section 10. Approval or Ratification of Acts or Contracts by Stockholders.
The Board of Directors, in its discretion, may submit any act or contract for
approval or ratification at any annual meeting of the stockholders or at any
special meeting of the stockholders called for the purpose of considering any
such act or contract, and any act or contract that shall be approved or ratified
by the vote of the stockholders holding a majority of the issued and outstanding
shares of capital stock of the Corporation entitled to vote and present in
person or represented by proxy at such meeting (provided that a quorum is
present) shall be as valid and as binding on the Corporation and on all the
stockholders as if it had been approved or ratified
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<PAGE> 9
by every stockholder of the Corporation. In addition, any such act or contract
may be approved or ratified by the written consent of stockholders holding a
majority of the issued and outstanding shares of capital stock of the
Corporation entitled to vote, and such consent shall be as valid and as binding
on the Corporation and on all the stockholders as if it had been approved or
ratified by every stockholder of the Corporation.
ARTICLED IV
COMMITTEES
Section 1. Designation; Powers. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or more
committees, including an executive committee, each such committee consisting of
one or more of the directors of the Corporation. Any such designated committee
shall have and may exercise such of the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation as
may be provided in such resolution, except that no such committee shall have the
power or authority of the Board of Directors with regard to amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized by the Certificate of Incorporation and the Delaware General
Corporation Law, fix certain terms of shares of stock to be issued by the
Corporation), adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease, or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution of the
Corporation, or amending, altering, or repealing the Bylaws or adopting new
Bylaws for the Corporation. Further, unless such resolution or the Certificate
of Incorporation expressly so provides, no such committee shall have the power
or authority to declare a dividend, to authorize the issuance of stock, or to
adopt a certificate of ownership and merger pursuant to the Delaware General
Corporation Law. Any such designated committee may authorize the seal of the
Corporation to be affixed to all papers which may require it. In addition, such
committee or committees shall have such other powers and limitations of
authority as may be determined from time to time by resolution adopted by the
Board of Directors.
Section 2. Procedure; Meetings; Quorum. Any committee designated
pursuant to Article IV, Section 1 hereof shall choose its own chairman and
secretary, shall keep regular minutes of its proceedings and report the same to
the Board of Directors when requested, shall fix its own rules or procedures,
and shall meet at such times and at such place or places as may be provided by
such rules or procedures or by resolution of such committee or Board of
Directors. At every meeting of any such committee, the presence of a majority of
all the members thereof shall constitute a quorum, except as provided in Section
3 of this Article IV, and the affirmative vote of a majority of the members
present shall be necessary for the adoption of any resolution.
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<PAGE> 10
Section 3. Substitution of Members. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of such committee. In the
absence or disqualification of a member of a committee, the member or members
present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of the absent or disqualified
member.
ARTICLE V
OFFICERS
Section 1. Number; Titles; Term of Office. The officers of the Corporation
shall be a Chief Executive Officer, a President, a Chief Financial Officer or
Treasurer, a Secretary and, if the Board of Directors so elects, a Chairman of
the Board, one or more Vice Presidents (any one or more of whom may be
designated Executive Vice President or Senior Vice President), and such other
officers as the Board of Directors may from time to time elect or appoint. Each
officer shall hold office until his successor shall be duly elected and shall
qualify or until his death or until he shall resign or shall have been removed
in the manner hereinafter provided. Any number of offices may be held by the
same person, unless the Certificate of Incorporation provides otherwise. Except
for the Chairman of the Board, if any, no officer need be a director.
Section 2. Salaries. The salaries or other compensation, if any, of
the officers and agents of the Corporation shall be fixed from time to time by
the Board of Directors.
Section 3. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed, either with or without cause, by the vote of
a majority of the whole Board of Directors at any regular meeting or at a
special meeting called for such purpose, provided the notice for such meeting
shall specify that such proposed removal will be considered at the meeting;
provided, however, that such removal shall be without prejudice to the
contractual rights, if any, of the person so removed. Election or appointment of
an officer or agent shall not of itself create contractual rights.
Section 4. Vacancies. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
Section 5. Powers and Duties of the Chief Executive Officer. The Chairman
of the Board, or if none, the President, shall be the Chief Executive Officer of
the Corporation. Subject to the control of the Board of Directors, the Chief
Executive Officer shall have general executive charge, management, and control
of the properties, business, and operations of the Corporation, with all such
powers as may be reasonably incident to such responsibilities. The Chief
Executive Officer may agree on and execute all leases, contracts, evidences of
indebtedness, and other obligations in the name of the Corporation and may sign
all certificates for shares of capital stock of the Corporation. The Chief
Executive Officer shall have such
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other powers and duties as designated in accordance with these Bylaws and as may
be assigned to him from time to time by the Board of Directors.
Section 6. Powers and Duties of the Chairman of the Board. The Chairman
of the Board (if any) shall preside at all meetings of the stockholders and of
the Board of Directors. The Chairman of the Board shall have such other powers
and duties as designated in accordance with these Bylaws and as may be assigned
to him from time to time by the Board of Directors.
Section 7. Powers and Duties of the President. Unless otherwise
determined by the Board of Directors, the President shall have authority to
agree on and execute all leases, contracts, evidences of indebtedness, and other
obligations in the name of the Corporation and he shall, in the absence of the
Chairman of the Board or if there be no Chairman of the Board, preside at all
meetings of the stockholders and (if a director) of the Board of Directors. The
President shall have such other powers and duties as designated in accordance
with these Bylaws and as may be assigned to him from time to time by the Board
of Directors.
Section 8. Vice Presidents. Each Vice President shall perform such duties
and have such powers as the Board of Directors may from time to time prescribe.
In addition, in the absence of the Chief Executive Officer, Chairman of the
Board (if any), or President, or in the event of their inability or refusal to
act, a Vice President designated by the Board of Directors or, in the absence of
such designation, the Vice President who is present and who is senior in terms
of time as a Vice President of the Corporation, shall perform the duties of the
Chief Executive Officer, Chairman of the Board (if any), or the President, as
the case may be, and when so acting shall have all the powers of and be subject
to all the restrictions on the Chief Executive Officer, Chairman of the Board
(if any), or the President, as the case may be; provided, however, that such
Vice President shall not preside at meetings of the Board of Directors unless he
is a director.
Section 9. Chief Financial Officer or Treasurer. The Chief Financial
Officer or Treasurer shall have responsibility for the custody and control of
all the funds and securities of the Corporation, and he shall have such other
powers and duties as designated in accordance with these Bylaws and as may be
prescribed from time to time by the Board of Directors. He shall perform all
acts incident to the position of Chief Financial Officer or Treasurer, subject
to the control of the Chief Executive Officer and the Board of Directors. The
Chief Financial Officer or Treasurer shall, if required by the Board of
Directors, give such bond for the faithful discharge of his duties in such form
as the Board of Directors may require.
Section 10. Assistant Treasurers. Each Assistant Treasurer (if any) shall
have the usual powers and duties pertaining to his office, together with such
other powers and duties as designated in accordance with these Bylaws and as may
be prescribed from time to time by the Chief Financial Officer or Treasurer, the
Chief Executive Officer, or the Board of Directors. The Assistant Treasurers
shall exercise the powers of the Treasurer during the Treasurer's absence or
inability or refusal to act.
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Section 11. Secretary. The Secretary shall keep the minutes of all
meetings of the Board of Directors, committees of directors, and of the
stockholders in books provided for such purpose; he shall attend to the giving
and serving of all notices; he may, in the name of the Corporation, affix the
seal of the Corporation to all contracts of the Corporation and attest thereto;
he may sign with the other appointed officers all certificates for shares of
capital stock of the Corporation; he shall have charge of the certificate books,
transfer books and stock ledgers, and such other books and papers as the Board
of Directors may direct, all of which shall at all reasonable times be open to
inspection by any director on application at the office of the Corporation
during business hours; he shall have such other powers and duties as designated
in accordance with these Bylaws and as may be prescribed from time to time by
the Board of Directors; and he shall in general perform all acts incident to the
office of Secretary, subject to the control of the Chief Executive Officer and
the Board of Directors.
Section 12. Assistant Secretaries. Each Assistant Secretary (if any)
shall have the usual powers and duties pertaining to his office, together with
such other powers and duties as designated in accordance with these Bylaws and
as may be prescribed from time to time by the Chief Executive Officer, the Board
of Directors, or the Secretary. The Assistant Secretaries shall exercise the
powers of the Secretary during the Secretary's absence or inability or refusal
to act.
Section 13. Action with Respect to Securities of Other Corporations.
Unless otherwise determined by the Board of Directors, the Chief Executive
Officer shall have the power to vote and to otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting of security holders of any
other corporation, or with respect to any action of security holders thereof, in
which this Corporation may hold securities and otherwise to exercise any and all
rights and powers which this Corporation may possess by reason of its ownership
of securities in such other corporation.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES, AND AGENTS
Section 1. Right to Indemnification. Subject to the limitations and
conditions as provided in this Article VI and to any applicable standard of
conduct set forth in the Delaware General Corporation Law, as the same exists or
may hereafter be amended, each person who was or is made a party to or is
threatened to be made a party to or is involved in any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative (hereinafter a "Proceeding"), or any appeal in
such a Proceeding or any inquiry or investigation that could lead to such a
Proceeding, by reason of the fact that he, or a person of whom he is the legal
representative, is or was a director, officer, employee, or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee, agent, or
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similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan, or other
enterprise shall be indemnified by the Corporation to the fullest extent
permitted by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide greater indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against judgments, penalties (including excise and similar taxes and
punitive damages), fines, settlements, and reasonable expenses (including,
without limitation, attorneys' fees) actually incurred by such person in
connection with such Proceeding and indemnification under this Article VI shall
continue as to a person who has ceased to serve in the capacity which initially
entitled such person to indemnity hereunder. The rights granted pursuant to this
Article VI shall be deemed contractual rights, and no amendment, modification,
or repeal of this Article VI shall have the effect of limiting or denying any
such rights with respect to actions taken or Proceedings arising prior to any
such amendment, modification, or repeal. It is expressly acknowledged that the
indemnification conferred in this Article VI could involve indemnification for
negligence or under theories of strict liability.
Section 2. Advance Payment. The right to indemnification conferred in
this Article VI shall include the right to be paid or reimbursed by the
Corporation for the reasonable expenses incurred by a person entitled to be
indemnified under Section 1 (other than agents) who was, is, or is threatened to
be made a named defendant or respondent in a Proceeding in advance of the final
disposition of the Proceeding and without any determination as to the person's
ultimate entitlement to indemnification; provided, however, that the payment of
such expenses incurred by any such person in advance of the final disposition of
a Proceeding shall be made only on delivery to the Corporation of a written
affirmation by such director, officer, or employee of his good faith belief that
he has met the standard of conduct necessary for indemnification under this
Article VI and a written undertaking, by or on behalf of such person, to repay
all amounts so advanced if it shall ultimately be determined that such
indemnified person is not entitled to be indemnified under this Article VI or
otherwise.
Section 3. Appearance as a Witness. Notwithstanding any other provision
of this Article VI, the Corporation may pay or reimburse expenses incurred by a
director, officer, employee, or agent in connection with his appearance as a
witness or other participation in a Proceeding at a time when he is not a named
defendant or respondent in the Proceeding.
Section 4. Nonexclusivity of Rights. The right to indemnification and
advancement and payment of expenses conferred in this Article VI shall not be
exclusive of any other right that a director, officer, employee, or agent
indemnified pursuant to this Article VI, may have or hereafter acquire under any
law, provision of the Certificate of Incorporation, these Bylaws, any agreement,
vote of stockholders or disinterested directors, or otherwise.
Section 5. Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any person who is or was
serving as a director, officer,
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employee, or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another foreign or domestic
corporation, partnership, joint venture, proprietorship, employee benefit plan,
trust, or other enterprise against any expense, liability, or loss, whether or
not the Corporation would have the power to indemnify such person against such
expense, liability, or loss under this Article VI.
Section 6. Stockholder Notification. To the extent required by law, any
indemnification of or advance of expenses to a director, officer, employee, or
agent in accordance with this Article VI shall be reported in writing to the
stockholders with or before the notice or waiver of notice of the next
stockholders' meeting or with or before the next submission to stockholders of a
consent to action without a meeting and, in any case, within the 12-month period
immediately subsequent to the date of the indemnification or advance.
Section 7. Savings Clause. If this Article VI or any portion hereof shall
be invalidated on any grounds by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify and hold harmless each director,
officer, employee, or agent indemnified in accordance with this Article VI as to
costs, charges, and reasonable expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement with respect to any Proceeding, to the
full extent permitted by any applicable and valid portion of this Article VI and
to the fullest extent permitted by applicable law.
ARTICLE VII
CAPITAL STOCK
Section 1. Certificates of Stock. The shares of the capital stock of the
Corporation shall be represented by certificates; provided, however, that the
Board of Directors may determine by resolution that some or all of any or all
the classes or series of the Corporation's stock shall be uncertificated shares.
Any such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to the Corporation. Notwithstanding the adoption
of such a resolution by the Board of Directors, every holder of stock
represented by certificates and, on request, every holder of uncertificated
shares, shall be entitled to have a certificate, signed by or in the name of the
Corporation by the Chairman of the Board (if any) or the President or Vice
President, and by the Chief Financial Officer, Treasurer, an Assistant
Treasurer, the Secretary, or an Assistant Secretary of the Corporation,
representing the number of shares registered in certificate form. Any or all the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has been placed
on a certificate shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, such certificate may be issued by
the Corporation with the same effect as if such person were such officer,
transfer agent, or registrar at the date of issue.
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Section 2. Transfer of Shares. The shares of stock of the Corporation
shall only be transferable on the books of the Corporation by the holders
thereof, in person or by their duly authorized attorneys or legal
representatives, on surrender and cancellation of certificates for a like number
of shares (or on compliance with the provisions of Article VII, Section 5
hereof, if applicable). On surrender to the Corporation or a transfer agent of a
certificate for shares, duly endorsed or accompanied by proper evidence of
succession, assignment, or authority to transfer (or on compliance with the
provisions of Article VII, Section 5 hereof, if applicable), and of compliance
with any transfer restrictions applicable thereto contained in any agreement to
which the Corporation is a party or of which the Corporation has knowledge by
reason of a legend with respect thereto placed on any such surrendered stock
certificate, it shall be the duty of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate, and record the
transaction on its books.
Section 3. Ownership of Shares. The Corporation shall be entitled to treat
the holder of record of any share or shares of capital stock of the Corporation
as the owner-in-fact thereof at that time for purposes of voting such shares,
receiving distributions thereon or notices in respect thereof, transferring such
shares, exercising rights of dissent, exercising or waiving any preemptive
rights, or giving proxies with respect to such shares; and neither the
Corporation nor any of its officers, directors, employees, or agents shall be
liable for regarding that person as the owner of those shares at that time for
those purposes, regardless of whether or not that person possesses a certificate
for those shares.
Section 4. Regulations Regarding Certificates. The Board of Directors
shall have the power and authority to make all such rules and regulations as it
may deem expedient concerning the issue, transfer, registration, or replacement
of certificates representing shares of capital stock of the Corporation.
Section 5. Lost, Stolen, Destroyed, or Mutilated Certificates. The Board
of Directors may determine the conditions on which a new certificate of stock
may be issued in place of any certificate which is alleged to have been lost,
stolen, destroyed, or mutilated; and may, in its discretion, require the owner
of such certificate or his legal representative to give bond, with sufficient
surety, to indemnify the Corporation and each transfer agent and registrar
against any and all losses or claims which may arise by reason of the issuance
of a new certificate in the place of the one so lost, stolen, destroyed, or
mutilated.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be as
established from time to time by the Board of Directors.
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Section 2. Corporate Seal. The Board of Directors may procure a suitable
seal containing the name of the Corporation. The Secretary shall have charge of
the seal (if any). If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the Treasurer,
the Assistant Treasurer, or the Assistant Secretary.
Section 3. Notice and Waiver of Notice. Whenever any notice is
required to be given by law, the Certificate of Incorporation, or these Bylaws,
except with respect to notices of meetings of stockholders (with respect to
which the provisions of Article II, Section 6 hereof apply) and except with
respect to notices of special meetings of directors (with respect to which the
provisions of Article III, Section 6 hereof apply), said notice shall be deemed
to be sufficient if given (i) by telegraphic, cable, or wireless transmission,
or (ii) by deposit of such postage-prepaid notice in a post office box,
addressed to the person entitled thereto at his address as it appears on the
records of the Corporation. Such notice shall be deemed to have been given on
the day of such transmission or mailing, as the case may be.
Whenever notice is required to be given by law, the Certificate of
Incorporation, or these Bylaws, a written waiver thereof, signed by the person
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to notice. Attendance of a person, including, without
limitation, a director, at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of such meeting, to the transaction of any business
thereat because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors, or a committee of directors need be specified in
any written waiver of notice, unless so required by the Certificate of
Incorporation or these Bylaws.
Section 4. Resignations. Any director, member of a committee, or officer
may resign at any time. Such resignation shall be made in writing and shall take
effect at the time specified therein, or if no time be specified, at the time of
its receipt by the Chief Executive Officer or Secretary. The acceptance of such
resignation shall not be necessary for its effectiveness, unless expressly so
provided in the resignation.
Section 5. Facsimile Signatures. In addition to the provisions for the
use of facsimile signatures specifically authorized elsewhere in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
as determined by the Board of Directors.
Section 6. Reliance on Books, Reports and Records. A member of the Board
of Directors, or a member of any committee thereof, shall be fully protected in
relying in good faith on the records of the Corporation and on such information,
opinions, reports, or statements presented to the Corporation by any of its
officers or employees, or committees of the Board of Directors, or by any other
person as to matters the director reasonably believes are within such other
person's professional or expert competence and who has been
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selected with reasonable care by or on behalf of the Corporation, as to the
value and amount of the assets, liabilities, and/or net profits of the
Corporation, or any other facts pertinent to the existence and amount of surplus
or other funds from which dividends might properly be declared and paid, or with
which the Corporation's stock might properly be purchased or redeemed.
ARTICLE IX
AMENDMENTS
The original or other Bylaws of the Corporation may be adopted, amended, or
repealed by the stockholders entitled to vote; provided, however, the
Corporation may, in the Certificate of Incorporation, confer the power to adopt,
amend, or repeal Bylaws on the directors. The fact that such power has been so
conferred on the directors shall not divest the stockholders of the power, nor
limit their power, to adopt, amend, or repeal Bylaws.
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EXHIBIT 3.31
RAPID SYSTEMS SOLUTIONS, INC.
ARTICLES OF AMENDMENT AND RESTATEMENT
RAPID SYSTEMS SOLUTIONS, INC., a Maryland statutory close corporation (the
"Corporation"), having its principal office in Howard County, Maryland hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: The corporation desires to amend and restate its Charter as
currently in effect.
SECOND: Pursuant to Section 2-609 of the Maryland General Corporation
Law, these Articles of Amendment and Restatement restate and integrate and
further amend the provisions of the Articles of Incorporation of the
Corporation.
THIRD: The text of the Charter of the Corporation as heretofore amended or
supplemented is hereby restated and further amended to read in its entirety as
follows:
"FIRST: The name of the Corporation (which is hereafter referred to
as the "Corporation") is RAPID SYSTEMS SOLUTIONS, INC.
SECOND: The purposes for which the Corporation is formed are:
(1) To engage in the business of systems and information engineering
as well as all activities and services reasonably related thereto; and
(2) To do anything permitted by Section 2-103 of the Corporation's
and Associations Article of the Annotated Code of Maryland, as the same may
be amended from time to time, or any successor provision of the Public
General Laws of the State of Maryland.
THIRD: The post office address of the principal office of the
Corporation in this State is 8850 Stanford Boulevard, Suite 400, Columbia,
Maryland 21045. The name
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and post office address of the Resident Agent of the Corporation in this
State is LSBA, Inc., Suite 400, Woodmere I, 9881 Broken Land Parkway,
Columbia, Maryland 21046. Said Resident Agent is a corporation
incorporated under the laws of the State of Maryland.
FOURTH: The total number of shares of capital stock which the
Corporation has authority to issue is One Million (1,000,000) shares, of
which Five Hundred Thousand (500,000) shares are Class A Voting Common
Stock with $.01 par value per share, and Five Hundred Thousand (500,000)
shares are Class B Non-Voting Common Stock with $.01 par value per share,
having an aggregate par value of Ten Thousand Dollars ($10,000.00).
(1) Except as hereinafter provided with respect to voting powers,
the Class A Voting Common Stock and the Class B Non-Voting Common Stock
shall be identical in all respects.
(2) With respect to voting powers, except as otherwise required by
the Corporations and Associations Article of the Annotated Code of
Maryland, the holders of Class A Voting Common Stock shall possess all
voting powers for all purposes, and the holders of Class B Non-Voting
Common Stock shall have no voting powers whatsoever, and no holder of
Class B Non-Voting Common Stock shall vote on or otherwise participate in
any proceedings in which actions shall be taken by the Corporation or its
Stockholders thereof or be entitled to notification as to any meeting of
the Stockholders.
FIFTH: The number of directors of the Corporation shall be one (1)
which number may be increased or decreased pursuant to the By-laws of the
Corporation, but shall never be less than the lesser of (a) three (3) or
(b) the number of stockholders. The name of the director who shall act
until the next annual meeting or until his successor is duly chosen and
qualified is: Daniel J. Roche.
SIXTH: The following provisions are hereby adopted for the purpose
of defining, limiting and regulating the powers of the Corporation and of
the directors and stockholders:
(1) The Board of Directors of the Corporation hereby is empowered to
authorized the issuance from time to time of shares of its stock of any
class, whether now or hereafter authorized or securities convertible into
shares of stocks of any class or classes, whether now or hereafter
authorized.
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<PAGE> 3
(2) The Board of Directors of the Corporation may classify or
reclassify any unissued shares by fixing or altering in any one or more
respects, from time to time before issuance of such shares, the
preferences, rights, voting powers, restrictions and qualifications of,
the dividends on, the times and prices of redemption of, the conversion
rights of, such shares.
(3) The Board of Directors of the Corporation hereby is empowered to
authorize the redemption by the Corporation of shares of its own stock, of
any class, or any other acquisition by the Corporation of its own shares.
(4) With respect to:
(a) the amendment of the Charter of the Corporation;
(b) the consolidation of the Corporation with one or more
corporations to form a new consolidated corporation;
(c) the merger of the Corporation into another corporation or
the merger of one or more other corporations into the Corporation;
(d) the sale, lease, exchange or other transfer of all, or
substantially all, of the property and assets of the Corporation,
including its goodwill and franchises;
(e) the participation by the Corporation in a share exchange
(as defined in the Corporations and Associations Article of the Annotated
Code of Maryland) as the corporation the stock of which is to be acquired;
(f) the voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation;
such action shall be effective and valid if taken or approved by an
affirmative vote of a majority of the shares entitled to be cast thereon,
after due authorization and/or approval and/or advice of such action by
the Board of Directors as required by law, notwithstanding any provision
of law requiring any action to be taken or authorized other than provided
in this Article SIXTH, paragraph (4).
The enumeration and definition of a particular power of the Board
of Directors included in the foregoing shall in no way be limited or
restricted by reference to
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<PAGE> 4
or inference from the terms of any other clause of this or any other
article of the Charter of the Corporation, or construed as or deemed by
inference or otherwise in any manner to exclude or limit any powers
conferred upon the Board of Directors under the Public General Laws of the
State of Maryland now or hereafter in force.
SEVENTH: Except as may otherwise be provided by the Board of
Directors of the Corporation, no holder of any shares of the stock of the
Corporation shall have any pre-emptive right to purchase, subscribe for,
or otherwise acquire any shares of stock of the Corporation of any class
now or hereafter authorized, or any securities exchangeable for or
convertible into such shares, or any warrants or other instruments
evidencing rights or options to subscribe for, purchase or otherwise
acquire such shares.
EIGHTH: A director or officer of the Corporation shall not be liable
to the Corporation or its stockholders for money damages for any action
taken or any failure to act in his capacity as such director or officer;
except as may be required by law.
NINTH: The Corporation shall indemnify its directors and officers to
the fullest extent required or permitted by law or as may be otherwise
provided for in the By-laws of the Corporation."
FOURTH: These Articles of Amendment and Restatement include all
provisions of the Charter of the Corporation as currently in effect.
FIFTH: Prior to the filing of these Articles of Amendment and
Restatement, the Corporation had the authority to issue Five Thousand (5,000)
shares of common stock, with $1.00 par value per share, having an aggregate par
value of Five Thousand Dollars ($5,000.00). Subsequent to the filing of these
Articles of Amendment and Restatement, the Corporation shall have the authority
to issue One Million (1,000,000) shares of common stock, having an aggregate
par value of Ten Thousand Dollars ($10,000.00), Five Hundred Thousand (500,000)
shares of which are Class A Voting
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<PAGE> 5
Common Stock with $.01 par value per share and Five Hundred Thousand (500,000)
shares of which are Class B Non-Voting Common Stock with $.01 par value per
share.
SIXTH: By written consent, pursuant to and in accordance with
Section 2-408(c) of the Corporations and Associations Article of the Annotated
Code of Maryland, the sole member of the Board of Directors of the Corporation
duly adopted as of the 26 day of March, 1995, a resolution in which was set
forth the foregoing Articles of Amendment and Restatement declaring that the
said Articles of Amendment and Restatement were advisable and directing that
they be submitted for approval to the sole Stockholder of the Corporation.
On the 26th day of March, 1995, the foregoing Articles of Amendment and
Restatement were approved by written consent of the sole Stockholder of the
Corporation in accordance with Section 2-505 and 4-203 of the Corporations and
Associations Article of the Annotated Code of Maryland.
SEVENTH: Pursuant to Section 4-203 of the Corporations and Associations
Article of the Annotated Code of Maryland, the sole Stockholder of the
Corporation has elected to remove from the Corporation's Charter the election
to be a statutory close corporation.
IN WITNESS WHEREOF, RAPID SYSTEMS SOLUTIONS, INC. has caused these
presents to be signed in its name and on its behalf by its President and
attested by its Secretary on this 26th day of March, 1995, and its President
acknowledges that these Articles of
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Amendment and Restatement are the acts and deeds of RAPID SYSTEMS SOLUTIONS,
INC. and, under the penalties of perjury, that the matters and facts set forth
herein with respect to authorization and approval are true in all material
respects to the best of his knowledge, information and belief.
ATTEST: RAPID SYSTEMS SOLUTIONS, INC.
/s/Melissa P. Roche By: /s/Daniel J. Roche
- ----------------------------- ---------------------------------------
Melissa P. Roche Daniel J. Roche
Secretary President
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ARTICLES OF AMENDMENT
RAPID SYSTEMS SOLUTIONS, INC.
RAPID SYSTEMS SOLUTIONS, INC., a Maryland corporation having its
principal office in Howard County, Maryland (the "Corporation"), hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: The Articles of Incorporation of the Corporation are hereby
amended by deleting Article THIRD and FOURTH, and by substituting in lieu
thereof the following:
"THIRD: The post office address of the principal office of the
Corporation in this State is 8850 Stanford Boulevard, Suite 400,
Columbia, Maryland 21045. The name of and post office address of the
Resident Agent of the Corporation in this State are Resagent, Inc., 7 St.
Paul Street, Suite 1400, Baltimore, Maryland 21202. Said Resident Agent
is a Maryland corporation.
FOURTH: The total number of shares of stock of all classes which
the Corporation has authority to issue is Twenty Million (20,000,000)
shares of Common Stock, with a par value of One-Tenth of One Cent
($0.001) per share, and having an aggregate par value of Twenty Thousand
Dollars ($20,000)."
and by deleting Section (4) of Article SIXTH.
SECOND: Prior to the filing of these Articles of Amendment, the
Corporation had authority to issue One Million (1,000,000) shares of capital
stock, of which Five Hundred Thousand (500,000) shares were Class A Voting
Common Stock with $.01 par value per share, and Five Hundred Thousand (500,000)
were Class B Non-Voting Common Stock with $.01 per value per share, and having
an aggregate par value of Ten Thousand Dollars ($10,000). Subsequent to the
filing of these Articles of Amendment, the Corporation shall have authority to
issue Twenty Million (20,000,000) shares of Common Stock, all of one class,
with a par value of One-Tenth of One Cent ($.001). The aggregate par value of
all shares of all classes having par value is Twenty Thousand Dollars
($20,000.00).
THIRD: The manner and basis of implementing the recapitalization
effected by these Articles of Amendment shall be as follows: Upon acceptance
of these Articles of Amendment by the State Department of Assessments and
Taxation of Maryland, each of the outstanding shares of old Class A Common
Stock Corporation shall forthwith be surrendered in exchange for Six Thousand
Nine Hundred Thirty Seven and One-Half
<PAGE> 8
(6,937.50) shares of new Common Stock, and each share of Class B Common Stock
shall be surrendered. All shares so surrendered shall be canceled.
FOURTH: The entire Board of Directors of the Corporation has signed a
written consent pursuant to Section 2-408 of the Maryland General Corporation
Law, to which consent the foregoing Articles of Amendment were attached,
declared to be advisable, and directed to be submitted to the sole stockholder
of the Corporation for his consideration and approval.
FIFTH: The sole stockholder of the Corporation has signed a written
consent pursuant to Section 2-505 of the Maryland General Corporation Law, to
which consent the foregoing Articles of Amendment were attached and were
adopted and duly approved by the stockholders of the Corporation.
IN WITNESS WHEREOF, RAPID SYSTEMS SOLUTIONS, INC. has caused these
Articles of Amendment to be signed in its name and on its behalf by its Vice
President and attested by its Secretary this 29th day of December, 1995, and
its Vice President acknowledges under the penalties for perjury that these
Articles of Amendment are the corporate act of the Corporation and that, to the
best of her knowledge, information and belief, the matters and facts set forth
herein are true in all material respects.
ATTEST: RAPID SYSTEMS SOLUTIONS, INC.
/s/Luke Garwood By: /s/Frank L. Chartier
- ------------------------------ -----------------------------------(SEAL)
Luke Garwood, Secretary Frank L. Chartier, Vice President
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<PAGE> 9
ARTICLES OF MERGER
Between
RAPID SYSTEMS SOLUTIONS, INC.
(a Maryland corporation, the Surviving Corporation)
and
RIPSUB, INC.
(a Georgia corporation)
---------------------
RAPID SYSTEMS SOLUTIONS, INC., a Maryland corporation (the "Surviving
Corporation") and RIPSUB, INC., a Georgia corporation ("Ripsub"), hereby
certify to the State Department of Assessments and Taxation of Maryland that:
FIRST: Ripsub and the Surviving Corporation agree that Ripsub shall be
merged with and into the Surviving Corporation, which shall continue under the
name of the Surviving Corporation. The names of the Corporations included in
the merger (the "Merger") are as set forth above. The Surviving Corporation was
incorporated under the general laws of the State of Maryland on March 21, 1991.
Ripsub was incorporated under the general laws of the State of Georgia on
February 15, 1996, and is not qualified to do business in Maryland.
SECOND: The principal office of the Surviving Corporation is located at
8850 Stanford Boulevard, Suite 400, Columbia, Howard County, Maryland 21045.
The principal office of Ripsub is located at 2700 Cumberland Parkway, Atlanta,
Georgia 30339. Neither the Surviving Corporation nor Ripsub owns any interest
in land in the State of Maryland, the title to which could be affected by the
recording of an instrument among the land records.
THIRD: The terms and conditions of the Merger set forth in these Articles
of Merger were advised, authorized, and approved by the Surviving Corporation
in the manner and by the vote required by its Charter and the general laws of
the State of Maryland. The manner in which the Merger was approved is set
forth below.
The Board of Directors of the Surviving Corporation adopted resolutions
declaring that the Merger of Ripsub into the Surviving Corporation is advisable
in the form and upon the terms and conditions set forth in these Articles of
Merger and directing the proposed merger be submitted to the Stockholders for
consideration and approval. The resolutions of the Board of Directors were
adopted by a Consent of Directors signed by all of the Directors of the
Surviving Corporation in accordance with Section 2-408 of the Maryland General
Corporation Law on March 12, 1996.
The Stockholders of the Surviving Corporation entitled to vote on the
proposed Merger
-1-
<PAGE> 10
approved the Merger, in the form and upon the terms and conditions set forth in
these Articles of Merger, by a Consent of Stockholders signed by all of the
Stockholders of the Surviving Corporation in accordance with Section 2-505 of
the Maryland General Corporation Law on April 4, 1996.
FOURTH: The terms and conditions of the Merger set forth in these
Articles of Merger were advised, authorized, and approved by Ripsub in the
manner and by the vote required by its Charter and the general laws of the
State of Georgia. The manner in which the Merger was approved is set forth
below:
The Merger was duly adopted and approved by the unanimous written consent
of the Board of Directors of Ripsub on March 12, 1996. The Merger was duly
adopted and approved by the unanimous consent of the sole stockholder of Ripsub
on March 12, 1996.
FIFTH: The Charter of the Surviving Corporation shall not be amended as a
result of this Merger. The Surviving Corporation shall continue under its
present Charter, and the present Bylaws. The officers and directors of the
Surviving Corporation shall be the officers and directors of Ripsub upon the
effectiveness of the Merger.
SIXTH: The total number of shares of stock which each of the Corporations
party to these Articles of Merger has authority to issue, the number and par
value of the shares of each class, and the aggregate par value of those
shares of stock are as follows:
(a) Ripsub has authorized one class of capital stock, consisting of
One Thousand (1,000) shares of Common Stock. Each share of Common Stock has a
par value of One Cent ($.01), for an aggregate par value of Ten Dollars
($10.00) for all shares.
(b) The Surviving Corporation has authorized one class of capital
stock, consisting of Twenty Million (20,000,000) shares of Common Stock. Each
share of Common Stock has a par value of One-Tenth of One Cent ($.001), for an
aggregate par value of Twenty Thousand Dollars ($20,000) for all shares.
SEVENTH: At and as of the effective time of the Merger (the "Effective
Time"), each share of the Common Stock of Ripsub issued and outstanding prior to
the Effective Time shall be converted into one (1) share of the Common Stock of
the Surviving Corporation. Subject to the provisions of Article EIGHTH, at and
as of the Effective Time, each share of the Common Stock of the Surviving
Corporation issued and outstanding immediately prior to the Effective Time shall
be converted into the right to receive 11,355 shares of the Common Stock, par
value $.01 per share, of Medaphis Corporation (the "Medaphis Stock"). At or
prior to the Effective Time, Medaphis Corporation ("Medaphis") shall make
available to each record holder who, as of the Effective Time, was a holder of
an outstanding certificate or certificates of the Common Stock of the Surviving
Corporation (the "Certificate" or "Certificates"), a form of letter of
transmittal and instructions for use in effecting the
-2-
<PAGE> 11
surrender of the Certificates for payment therefor and conversion thereof.
Delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon proper delivery of the Certificates to Medaphis and the form of
letter of transmittal shall so reflect. Upon surrender to Medaphis of a
Certificate, together with the properly completed and executed letter of
transmittal, the holder of such Certificate is entitled to receive in exchange
therefor (a) one or more certificates as requested by the holder (properly
issued, executed and countersigned, as appropriate) representing the number of
whole fully paid and nonassessable shares of Medaphis Stock to which such
Stockholder of the Surviving Corporation is entitled pursuant to this ARTICLE
SEVENTH, and (ii) as to any fractional shares of Medaphis Stock, a check
representing the cash consideration to which such holder is entitled pursuant to
ARTICLE EIGHTH.
EIGHTH: No scrip or fractional shares of Medaphis Stock shall be issued in
the Merger. All fractional shares of Medaphis Stock to which a holder of the
Surviving Corporation's stock immediately prior to the Effective Time of the
Merger would otherwise be entitled shall be aggregated. If a fractional share
results from such aggregation, a stockholder of the Surviving Corporation shall
be entitled to receive from Medaphis an amount in cash in lieu of such
fractional share, based on a price of $48.6815 per share.
NINTH: The Effective Time shall be the date on which these Articles of
Merger are accepted by the State Department of Assessments and Taxation of
Maryland for record.
- 3 -
<PAGE> 12
IN WITNESS WHEREOF, these Articles of Merger are hereby signed for and on
behalf of RAPID SYSTEMS SOLUTIONS, INC. by its President, who hereby
acknowledges that these Articles of Merger are the act of that Corporation, and
who hereby states under the penalties for perjury that the matters and facts
set forth herein with respect to authorization and approval of the Merger are
true in all material respects to the best of his or her knowledge, information,
and belief. These Articles of Merger have been signed for and on behalf of
RIPSUB, INC. by its Senior Vice President, who hereby acknowledges that these
Articles of merger are the act of that Corporation, and who hereby states under
the penalties for perjury that the matters and facts set forth herein with
respect to authorization and approval of the Merger are true in all material
respects to the best of his or her knowledge, information, and belief.
ATTEST RAPID SYSTEMS SOLUTIONS, INC.
/s/ Luke Garwood By:/s/ Daniel J. Roche (SEAL)
- -------------------------- --------------------------
Luke Garwood, Secretary Daniel J. Roche, President
ATTEST RIPSUB, INC.
/s/ Peggy B. Sherman By:/s/ Michael R. Cote (SEAL)
- ------------------------------- -------------------------------------
Peggy B. Sherman, Assistant Michael R. Cote, Senior Vice President
Secretary
-4-
<PAGE> 13
DOMESTIC CORPORATION
NOTICE OF CHANGE OF PRINCIPAL OFFICE AND RESIDENT AGENT
State Department of Assessments
and Taxation
Baltimore, Maryland
Pursuant to the provisions of Section 2-108 of the Maryland General
Corporation Law, the undersigned Maryland corporation hereby notifies the State
Department of Assessments and Taxation of Maryland:
(1) That under resolution adopted by the Board of Directors of the
corporation on April 4, 1996, a certified copy of which is filed herewith, the
resident agent of the corporation in the State of Maryland has been changed to
The Prentice-Hall Corporation System, Maryland whose post office address is 11
East Chase Street, Baltimore, Maryland 21202. The resident agent so designated
is a corporation of the State of Maryland.
(2) That under resolution adopted by the Board of Directors of the
corporation on April 4, 1996, a certified copy of which is filed herewith, the
principal office of the corporation in the State of Maryland has been changed
from 8850 Stanford Blvd., Suite 400, Columbia, Maryland to 11 East Chase
Street, c/o The Prentice-Hall Corporation System, Maryland, Baltimore, Maryland
21202.
RAPID SYSTEMS SOLUTIONS, INC.
By /s/ William R. Spalding
-----------------------------
(Vice) President
William R. Spalding
Dated: September 24, 1996
<PAGE> 14
The undersigned, being the duly elected and acting Secretary of Rapid
Systems Solutions, Inc., hereby certifies that at a meeting of the Board of
Directors duly called and held on April 4, 1996, the following resolutions were
duly adopted and are now in full force and effect:
"RESOLVED, that The Prentice-Hall Corporation System,
Maryland, 11 East Chase Street, Baltimore, Maryland
21202 be and it hereby is designated as Resident Agent
of the corporation in lieu of Resagent, Inc. and that
the proper officer of the corporation is authorized to
file a Notice to that effect.
"FURTHER RESOLVED, that the principal office of the
corporation in the State of Maryland be and it is
hereby changed to 11 East Chase Street, c/o The
Prentice-Hall Corporation System, Maryland, Baltimore,
Maryland 21202 and that the proper officer of the
corporation is authorized to file a Notice to that
effect."
WITNESS my hand and the seal of the corporation this 24th day of
September __, 1996.
(CORPORATE SEAL)
/s/ Peggy B. Sherman
-------------------------------------
Assistant Secretary, Peggy B. Sherman
<PAGE> 15
ARTICLES OF AMENDMENT
OF ARTICLES OF INCORPORATION OF
RAPID SYSTEMS SOLUTIONS, INC.
RAPID SYSTEMS SOLUTIONS, INC., a Maryland corporation (the
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: The Articles of Incorporation of the Corporation as in effect as
of the date hereof are hereby amended by deleting Article FIRST and by
substituting in lieu thereof the following:
"FIRST: The name of the Corporation (which is hereinafter referred
to as the "Corporation") is BSG Government Solutions, Inc."
SECOND: The entire Board of Directors of the Corporation has signed a\
written consent pursuant to Section 2-408 of the Maryland General Corporation
Law, to which consent these Articles of Amendment were attached and determined
to be advisable and in the best interests of the Corporation and its sole
stockholder.
IN WITNESS WHEREOF, RAPID SYSTEMS SOLUTIONS, INC. has caused these
Articles of Amendment to be signed in its name and on its behalf by its Senior
Vice President and attested by its Assistant Secretary this 1st day of April,
1997, and its Senior Vice President hereby acknowledges under penalties for
perjury that these Articles of Amendment are the corporate act of the
Corporation and that, to the best of his knowledge, information and belief, the
matters and facts set forth herein with respect to authorization and approval
of these Articles of Amendment are true in all material respects.
[CORPORATE SEAL] RAPID SYSTEMS SOLUTIONS, INC.
ATTEST:
By: /s/ William R. Spalding
----------------------------------
William R. Spalding
Senior Vice President
By: /s/ Peggy B. Sherman
-------------------------------
Peggy B. Sherman
Assistant Secretary
Address: BSG Government Solutions, Inc.
3350 Stanford Blvd., Suite 4000
Columbia, MD 21045
<PAGE> 1
EXHIBIT 3.32
Adopted: December 29, 1995
AMENDED AND RESTATED BY-LAWS
OF
RAPID SYSTEMS SOLUTIONS, INC.
ARTICLE I
STOCKHOLDERS
Section l.l. Annual Meeting. The annual meeting of the Stockholders of
the Corporation shall be held each year during the third month after the close
of the Corporations fiscal year, on a day to be duly designated by the Board of
Directors, for the purpose of electing Directors and for the transaction of any
other corporate business that may come before the meeting.
Section 1.2. Special Meetings. A special meeting of the Stockholders may
be called, at any time and for any purpose or purposes, by the President, by a
Vice President, or by a majority of the Board of Directors. A special meeting of
the Stockholders shall be called forthwith by the President, by a Vice
President, by the Secretary, or by any Director of the Corporation (i) upon the
written request of any Stockholder in accordance with Section 2.4.D of these
By-Laws, or (ii) at any time, upon the written request of the Stockholders
entitled to cast at least twenty-five percent (25%) of all the votes entitled to
be cast at the meeting. However, a special meeting need not be called to
consider any matter that is substantially the same as a matter voted on at any
special meeting of the Stockholders held during the preceding twelve (12)
months, unless requested by the Stockholders entitled to cast a majority of all
votes entitled to be cast at the meeting. Whenever a special meeting is called
by written request of the Stockholders, the request shall state the purpose or
purposes of the meeting. Business transacted at any special meeting of
stockholders shall be confined to the purpose or purposes stated in the notice
of the meeting.
Section 1.3. Place of Holding Meetings. All meetings of Stockholders
shall be held at the principal office of the Corporation, or elsewhere in the
United States as may be designated by the Board of Directors.
Section 1.4. Notice of Meetings. Written notice of each meeting of the
Stockholders shall be given to each Stockholder in accordance with Section 7.2
of these By-Laws, at least ten (10) days and not more than ninety (90) days
before the meeting. The notice shall state the place, day, and hour at which the
meeting
<PAGE> 2
is to be held; in the case of a special meeting, the notice also shall state
briefly the purpose or purposes of that special meeting.
Section 1.5 Quorum. Except as otherwise specifically provided by law, by
the Charter of the Corporation, or by these By-Laws, at each meeting of the
Stockholders, the presence in person or by proxy of the holders of record of a
majority of the shares of the capital stock of the Corporation issued and
outstanding and entitled to vote at the meeting constitutes a quorum. If less
than a quorum is in attendance at the time for which the meeting has been
called, the meeting may be adjourned from time to time by a majority vote of the
Stockholders present in person or by proxy, without any notice other than by
announcement at the meeting, until a quorum is in attendance. At any adjourned
meeting at which a quorum is in attendance, any business may be transacted that
might have been transacted if the meeting had been held as originally called.
Section 1.6. Conduct of Meetings. Each meeting of the Stockholders shall
be presided over by a chairman. The chairman shall be the President of the
Corporation or, if the President is not present, a Vice President, or, if none
of these officers is present, a person to be elected at the meeting. The
Secretary of the Corporation or, if the Secretary is not present, any Assistant
Secretary shall act as secretary of the meeting; in the absence of the Secretary
and any Assistant Secretary, the chairman of the meeting shall appoint a person
to act as secretary of the meeting.
Section 1.7. Voting.
A. At each meeting of the Stockholders, every Stockholder
entitled to vote at the meeting has one (1) vote for each share of stock
standing in his or her name on the books of the Corporation on the date
established for the determination of Stockholders entitled to vote at that
meeting. This vote may be cast by the Stockholder either in person or by written
proxy signed by the Stockholder or by the Stockholder's duly authorized attorney
in fact. Unless the written proxy expressly provides for a longer period, it
shall bear a date not more than eleven (11) months prior to the meeting. The
written proxy shall be dated, but need not be sealed, witnessed, or
acknowledged.
B. Except as otherwise specifically provided by law, by the
Charter of the Corporation, or by these By-Laws, all elections shall be had and
all questions shall be decided by a majority of the votes cast at a duly
constituted meeting. If the chairman of the meeting so determines, a vote by
ballot may be taken upon any election or matter. A vote by ballot shall be taken
upon the request of the Stockholders entitled to cast at least ten percent (10%)
of all the votes entitled to be cast on the election or matter. The chairman of
the meeting may appoint one or more tellers of election. In that event, the
proxies and ballots shall be held by the tellers, and all questions as to the
qualification of
-2-
<PAGE> 3
voters, the validity of proxies, and the acceptance or rejection of votes shall
be decided by the tellers. If no teller is appointed, these duties shall be
performed by the chairman of the meeting.
C. Unless the Charter of the Corporation provides otherwise,
whenever two or more classes of stock are entitled to vote on any matter, each
class shall vote separately, as a class.
D. Notwithstanding the other provisions of this Section, if the
Charter of the Corporation provides for cumulative voting for the election of
Directors, each Stockholder is entitled to cast as many votes as equals the
number of that Stockholder's shares of stock multiplied by the number of
Directors to be so elected, and each Stockholder is entitled to cast all of
those votes for a single nominee or distribute those votes among any two or more
nominees, as the Stockholder sees fit.
Section 1.8. Informal Action by Stockholders. Any action required or
permitted to be taken at any meeting of the Stockholders may be taken without a
meeting pursuant to the provisions of Section 2-505 of the Corporations and
Associations Article of the Maryland Code, as from time to time amended.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. General Powers. The property and business of the Corporation
shall be managed under the direction of the Board of Directors of the
Corporation.
Section 2.2. Number and Term of Office. The number of Directors shall be
that number set forth in the Charter of the Corporation, or such other number as
may be designated from time to time by resolution of a majority of the entire
Board of Directors. However, the number of Directors may not be less than either
the minimum required by law or the minimum, if any, required by the Charter of
the Corporation. Directors need not be Stockholders. Except as otherwise
provided in these By-Laws, the Directors shall be elected each year at the
annual meeting of the Stockholders, and each Director shall serve until his or
her successor is duly elected and qualifies.
Section 2.3. Removal of Directors.
A. Except as otherwise provided in this Section and unless the Charter
of the Corporation provides otherwise, the Stockholders may remove any Director
from office, with or without cause, by the affirmative vote of a majority of all
the votes entitled to be cast for the election of Directors.
-3-
<PAGE> 4
B. Unless the Charter of the Corporation provides otherwise, (i) if
the Stockholders of any class or series are entitled separately to elect one or
more Directors, a Director elected by a class or series may not be removed
without cause except by the affirmative vote of a majority of all the votes of
that class or series, and (ii) if the Charter of the Corporation provides for
cumulative voting for the election of Directors and less than the entire Board
of Directors is to be removed, a Director may not be removed without cause if
the votes cast against the removal of that Director would be sufficient to elect
that Director if then cumulatively voted at an election of the entire Board of
Directors or, if there is more than one class of Directors, at an election of
the class of Directors of which that Director is a member.
Section 2.4. Filling of Vacancies.
A. Unless the Charter of the Corporation provides otherwise, if a
vacancy in the Board of Directors results from the removal of a Director, the
Stockholders may elect a successor to fill that vacancy. However, if the
Stockholders of any class or series are entitled separately to elect one or more
Directors, the stockholders of that class or series may elect a successor to
fill any vacancy that results from the removal of a Director elected by that
class or series.
B. Except as otherwise provided in this Section and unless the Charter
of the Corporation provides otherwise, (i) if a vacancy in the Board of
Directors results from an increase in accordance with these By-Laws of the
number of Directors, a majority of the entire Board of Directors may elect the
person to fill that vacancy, and (ii) if a vacancy in the Board of Directors
results from any other cause whether by reason of a Director's death,
resignation, disqualification, or otherwise a majority of the remaining
Directors, whether or not sufficient to constitute a quorum, may elect a
successor to fill that vacancy. However, if the stockholders of any class or
series are entitled separately to elect one or more Directors, a majority of the
remaining Directors elected by that class or series, or the sole remaining
Director elected by that class or series, may fill any vacancy among the number
of Directors elected by that class or series.
C. A Director elected to fill a vacancy shall serve until the next
annual meeting of the Stockholders and, thereafter, until his or her successor
is duly elected and qualifies.
D. Notwithstanding the other provisions of this Section, if a vacancy
in the Board of Directors occurs at a time when the Charter of the Corporation
provides for cumulative voting for the election of Directors, any Stockholder
entitled to vote a sufficient number of shares on a cumulative basis to elect at
least one Director has the
-4-
<PAGE> 5
right to request that a special meeting of Stockholders be called for the
purpose of electing an entirely new Board of Directors. That request shall be in
writing, directed to the President, and sent within sixty (60) days after the
occurrence of the vacancy. Forthwith upon receipt of the request, the President
shall call for a special meeting of the Stockholders, in accordance with Section
1.2 of these By-Laws, at which meeting an election of a new Board of Directors
shall be held in accordance with the Charter of the Corporation and these
By-Laws. Upon completion of that election, the terms of all Directors
theretofore comprising the Board of Directors shall expire.
Section 2.5 Annual and Regular Meetings. The annual meeting of the
Board of Directors shall be held immediately following the annual Stockholders'
meeting at which a Board of Directors is elected. Regular meetings of the Board
of Directors may be held, without notice, at such time and place as determined
from time to time by resolution of the Board. However, notice of every
resolution of the Board fixing or changing the time or place for the holding of
regular meetings of the Board shall be mailed to each Director at least ten (10)
days before the first meeting held pursuant to that resolution. Any business may
be transacted at the annual meeting and at any regular meeting of the Board.
Section 2.6. Special Meetings. A special meeting of the Board of
Directors may be called, at any time and for any purpose or purposes, by the
President or by a Vice President. A special meeting of the Board of Directors
shall be called forthwith by the President or by the Secretary upon the written
request of a majority of the Board of Directors. Written notice of each special
meeting of the Board of Directors shall be given to each Director by mailing
that notice, in accordance with Section 7.2 of these By-Laws, at least three (3)
days before the meeting, or by telegraphing or hand-delivering that notice at
least one (1) day before the meeting. Any business may be transacted at any
special meeting of the Board. Any Director may, in writing, waive notice of the
time, place, and purposes of any special meeting. Any meeting of the Board of
Directors whether an annual, regular, or special meeting may adjourn from time
to time to reconvene at the same or some other place, and no notice need be
given of the reconvened meeting other than by announcement at the adjourned
meeting.
Section 2.7. Place of Meeting and Offices. The Board of Directors
may hold its meetings, have one or more offices, and keep the books of the
Corporation at such place or places, either within or without the State of
Maryland, as determined from time to time by resolution of the Board of
Directors or by written consent of all of the Directors. Members of the Board of
Directors or a committee of the Board of Directors may participate in a meeting
by means of a conference telephone or similar communications equipment if all
persons participating in the meeting can hear each other at the same time,
-5-
<PAGE> 6
and such participation in a meeting shall be deemed to constitute presence in
person at such meeting.
Section 2.8. Quorum. At each meeting of the Board of Directors, a
majority of the entire Board of Directors constitutes a quorum for the
transaction of business. If less than a quorum is present at any meeting, a
majority of those present may adjourn the meeting from time to time. Except as
otherwise specifically provided by law, by the Charter of the Corporation, or by
these By-Laws, the act of a majority of the Directors present at any meeting at
which there is a quorum constitutes the act of the Board of Directors.
Section 2.9. Compensation of Directors. Directors shall not receive
any stated salary for their services as such. However, each Director is entitled
to receive from the Corporation reimbursement of the expenses incurred by the
Director in attending any annual, regular, or special meeting of the Board or of
a committee of the Board. In addition, by resolution of the Board of Directors,
a fixed sum may also be allowed for attendance at each annual, regular, or
special meeting of the Board or of a committee of the Board. Reimbursement and
compensation to a Director for attending a meeting shall be payable even if the
meeting was adjourned because of the absence of a quorum. Nothing contained in
this Section shall be construed to preclude any Director from serving the
Corporation in any other capacity and receiving compensation for that service.
Section 2.10. Executive Committee. By resolution of a majority of the
entire Board of Directors, the Board may appoint an executive committee
consisting of two or more Directors. The executive committee may exercise all of
the powers and authority of the Board of Directors between meetings of the
Board, except the power or authority to declare dividends or distributions on
stock, to issue stock, to recommend to the Stockholders any action requiring
Stockholder approval, to alter or amend these By-Laws, to approve any merger or
share exchange not requiring Stockholder approval, or to fill vacancies in the
Board of Directors or in the executive committee's own membership. Vacancies in
the executive committee shall be filled by the Board of Directors. The
executive committee shall meet at stated times or on notice to all of its
members by any one of its members. It shall fix its own rules of procedure.
Unanimous vote or consent shall be necessary in every case. The executive
committee shall keep regular minutes of its proceedings and report those
proceedings to the Board of Directors. Without limiting the generality of the
foregoing, the executive committee is specifically authorized to execute
customary banking resolutions for corporate accounts and for borrowing.
Section 2.11. Additional Committees. By resolution of a majority of
the entire Board of Directors, the Board may designate one or more additional
committees, each committee to consist of two or more Directors. To the extent
provided in the resolution,
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<PAGE> 7
each committee may exercise all of the powers and authority of the Board of
Directors, except the power or authority to declare dividends or distributions
on stock, to issue stock, to recommend to the Stockholders any action requiring
Stockholder approval, to alter or amend these By-Laws, to approve any merger or
share exchange not requiring Stockholder approval, or to fill vacancies in the
Board of Directors or in the committee's own membership. Vacancies in a
committee shall be filled by the Board of Directors. Each committee shall have
the name designated from time to time by resolution of the Board of Directors.
Section 2.12 Informal Action by Directors. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee of the Board may be taken without a meeting pursuant to the provisions
of Section 2-408 of the Corporations and Associations Article of the Maryland
Code, as from time to time amended.
ARTICLE III
OFFICERS
Section 3.1. Election, Tenure, and Compensation. The officers of the
Corporation shall be a President, a Secretary, and a Treasurer. The Corporation
shall have such other officers e.g., one or more Vice Presidents and one or more
Assistant Secretaries or Assistant Treasurers as the Board of Directors from
time to time considers necessary for the proper conduct of the business of the
Corporation. The officers shall be elected by the Board of Directors and shall
serve at the pleasure of the Board. The President shall be a Director; the other
officers may, but need not be, Directors. Any two or more offices, except those
of President and Vice President, may be held by the same person; however, no
officer may execute, acknowledge, or verify any instrument in more than one
capacity if that instrument is required by law or by these By-Laws to be
executed, acknowledged, or verified by two or more officers. The compensation or
salary paid all officers of the Corporation may be fixed by resolutions of the
Board of Directors. Except where otherwise expressly provided in a contract duly
authorized by the Board of Directors, all officers, agents, and employees of the
Corporation are subject to removal at any time by the Board of Directors and
shall hold office at the discretion of the Board of Directors or of the officers
appointing them.
Section 3.2. Powers and Duties of the President. The President shall
be the Chief Executive Officer of the Corporation and shall have general charge
and control of all its business affairs and properties. The President shall
preside at all meetings of the Stockholders. The President may be a member of
the Board of Directors and, if a member, shall preside at all meetings of the
Board of Directors unless the Board of Directors, by a majority vote of a quorum
of the Board, elects a Chairman other than the President to preside at meetings
of the Board of Directors. The President may sign and execute all
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<PAGE> 8
authorized bonds, contracts, or other obligations in the name of the
Corporation. The President shall have the general powers and duties of
supervision and management usually vested in the office of President of a
corporation. The President shall be ex-officio a voting member of all standing
committees. The President shall perform such other duties as from time to time
are assigned to the President by the Board of Directors.
Section 3.3. Powers and Duties of the Vice President. The Board of
Directors may appoint one or more Vice Presidents. Each Vice President (except
as otherwise provided by resolution of the Board of Directors) shall have the
power to sign and execute all authorized bonds, contracts, or other obligations
in the name of the Corporation. Each Vice President shall have such other powers
and shall perform such other duties as from to time are assigned to that Vice
President by the Board of Directors or by the President. In case of the absence
or disability of the President, the duties of that office shall be performed by
a Vice President; the taking of any action by any Vice President in place of the
President shall be conclusive evidence of the absence or disability of the
President.
Section 3.4. Secretary. The Secretary shall give, or cause to be given,
notice of all meetings of Stockholders and Directors and all other notices
required by law or by these By-Laws. The Secretary shall record all of the
proceedings of the meetings of the Stockholders and of the Directors in books
provided for that purpose and shall perform such other duties as from time to
time are assigned to the Secretary by the Board of Directors or the President.
The Secretary shall attest to or witness all instruments executed by or on
behalf of the Corporation requiring same. In general, the Secretary shall
perform all the duties generally incident to the office of secretary of a
corporation, subject to the control of the Board of Directors and the President.
Section 3.5. Treasurer. The Treasurer shall have custody of all the
funds and securities of the Corporation and shall keep full and accurate account
of receipts and disbursements in books belonging to the Corporation. The
Treasurer shall deposit all of the Corporation's money and other valuables in
the name and to the credit of the Corporation in such depository or depositories
as from time to time designated by the Board of Directors. The Treasurer shall
disburse the funds of the Corporation as ordered by the Board of Directors,
taking proper vouchers for those disbursements. The Treasurer shall render to
the President and the Board of Directors, whenever either of them so requests,
an account of all of his or her transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of Directors, the
Treasurer shall give the Corporation a bond, in a sum and with one or more
sureties satisfactory to the Board of Directors, for the faithful performance of
the duties of his or her office and for the restoration to the Corporation, in
case of his or her death, resignation, retirement, or removal from office, of
all books, papers, vouchers, money, and other property belonging to the
Corporation, of whatever kind, in his or her possession or under his or her
control.
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<PAGE> 9
In general, the Treasurer shall perform all the duties generally
incident to the office of treasurer of a corporation, subject to the control of
the Board of Directors and the President.
Section 3.6. Assistant Secretary. The Board of Directors or the
President may appoint one or more Assistant Secretaries. Each Assistant
Secretary (except as otherwise provided by resolution of the Board of Directors)
shall have the power to perform all duties of the Secretary in the absence or
disability of the Secretary and shall have such other powers and shall perform
such other duties as from time to time are assigned to that Assistant Secretary
by the Board of Directors or the President. In case of the absence or disability
of the Secretary, the duties of that office shall be performed by an Assistant
Secretary; the taking of any action by any Assistant Secretary in place of the
Secretary shall be conclusive evidence of the absence or disability of the
Secretary.
Section 3.7. Assistant Treasurer. The Board of Directors may appoint
one or more Assistant Treasurers. Each Assistant Treasurer (except as otherwise
provided by resolution of the Board of Directors) shall have the power to
perform all duties of the Treasurer in the absence or disability of the
Treasurer and shall have such other powers and shall perform such other duties
as from time to time are assigned to that Assistant Treasurer by the Board of
Directors or the President. In case of the absence or disability of the
Treasurer, the duties of that office shall be performed by an Assistant
Treasurer; the taking of any action by any Assistant Treasurer in place of the
Treasurer shall be conclusive evidence of the absence or disability of the
Treasurer.
Section 3.8. Subordinate Officers. The Corporation may have such
subordinate officers as the Board of Directors from time to time deems
advisable. Each subordinate officer shall hold office for such period and shall
perform such duties as from time to time are prescribed by the Board of
Directors, the President, or the committee or officer designated pursuant to
this Article.
ARTICLE IV
CAPITAL STOCK AND OTHER SECURITIES
Section 4.1. Issue of Certificates of Stock. The certificates for
shares of the capital stock of the Corporation shall be of such form, not
inconsistent with the Charter of the Corporation, as has been approved by the
Board of Directors. All certificates shall be signed by the President or by a
Vice President and countersigned by the Secretary or by an Assistant Secretary.
Any signature or countersignature may be either manual or facsimile signature.
All certificates for each class of stock shall be consecutively numbered. The
name and address of the person owning the shares issued shall be entered in the
Corporation's books.
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<PAGE> 10
Section 4.2. Transfer of Shares. Shares of the capital stock of the
Corporation may be transferred on the books of the Corporation only by the
holder of those shares, in person or by his or her attorney in fact, and only
upon surrender and cancellation of certificates for a like number of shares. All
certificates surrendered to the Corporation for transfer shall be canceled, and
no new certificates representing the same number of shares may be issued until
the former certificate or certificates for the same number of shares have been
so surrendered and canceled.
Section 4.3. Registered Stockholders. The Corporation is entitled to
treat the holder of record of any shares of stock as the holder in fact of those
shares. Accordingly, the Corporation is not bound to recognize any equitable or
other claim to, or interest in, those shares in the name of any other person,
whether or not the Corporation has had express or other notice of that claim or
interest, except as expressly provided by the laws of the State of Maryland.
Section 4.4. Record Date and Closing of Transfer Books. The Board
of Directors may set a record date or direct that the stock transfer books be
closed for a stated period for the purpose of making any proper determination
with respect to Stockholders, including which Stockholders are entitled to
notice of a meeting, vote at a meeting, receive a dividend, or be allotted other
rights. The record date may not be more than ninety (90) days before the date on
which the action requiring the determination will be taken. The transfer books
may not be closed for a period longer than twenty (20) days. In the case of a
meeting of Stockholders, the record date or the closing of the transfer books
shall be at least ten (10) days before the date of the meeting.
Section 4.5. Lost Certificates. The Board of Directors may direct a
new certificate to be issued in place of any certificate that is alleged to have
been lost, stolen, or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate to be lost, stolen, or destroyed. In its
discretion and as a condition precedent to the issuance of a new certificate,
the Board of Directors may require the owner of the certificate or the owner's
legal representative to give bond, with sufficient surety, to indemnify the
Corporation against any loss or claim that may arise by reason of the issuance
of a new certificate.
Section 4.6. Restrictions on Transfer. Notwithstanding any other
provision of these By-Laws to the contrary, no securities issued by the
Corporation may be transferred unless (i) those securities are registered with
the Securities and Exchange Commission and with the Division of Securities for
the State of Maryland, or other jurisdiction, as appropriate, or (ii) the
Corporation has received an opinion of counsel for the transferor or transferee,
acceptable to counsel for the Corporation, that the transfer would not
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<PAGE> 11
violate applicable state and federal securities laws, provided, however, that
the restrictions set forth in clauses (i) and (ii), above, shall be deemed
waived as to a specific transfer of securities in the event the Corporation
transfers such securities on its books without having received either evidence
of such registration or such opinion of counsel.
ARTICLE V
BANK ACCOUNTS AND LOANS
Section 5.1. Bank Accounts.
A. Such officers or agents of the Corporation as from time to
time have been designated by the Board of Directors shall have authority to
deposit any funds of the Corporation in such financial institutions as from time
to time have been designated by the Board of Directors. Such officers or agents
of the Corporation as from time to time have been designated by the Board of
Directors shall have authority to withdraw any or all of the funds of the
Corporation so deposited in a financial institution, upon checks, drafts, or
other instruments or orders for the payment of money, drawn against the account
or in the name or behalf of the Corporation, and made or signed by those
designated officers or agents.
B. From time to time the Corporation shall certify to each
financial institution in which funds of the Corporation are deposited, the
signatures of the officers or agents of the Corporation authorized to draw
against those funds. Each financial institution with which funds of the
Corporation are deposited is authorized to accept, honor, cash, and pay, without
limit as to amount, all checks, drafts, or other instruments or orders for the
payment of money, when drawn, made, or signed by officers or agents so
designated by the Board of Directors, until the financial institution has
received written notice that the Board of Directors has revoked the authority of
those officers or agents.
C. If the Board of Directors fails to designate the persons
by whom checks, drafts, and other instruments or orders for the payment of money
may be signed, as provided in this Section, all checks, drafts, and other
instruments or orders for the payment of money shall be signed by the President
or a Vice President and countersigned by the Secretary or Treasurer or by an
Assistant Secretary or Assistant Treasurer of the Corporation.
Section 5.2. Loans.
A. Such officers or agents of the Corporation as from time to
time have been designated by the Board of Directors shall have authority (i) to
effect loans, advances, or other forms of credit at any time or times for the
Corporation, from such
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<PAGE> 12
banks, trust companies, institutions, corporations, firms, or persons, in such
amounts and subject to such terms and conditions, as the Board of Directors from
time to time has designated; and (ii) as security for the repayment of any
loans, advances, or other forms of credit so authorized, to assign, transfer,
endorse, and deliver, either originally or in addition or substitution, any or
all personal property, real property, stocks, bonds, deposits, accounts,
documents, bills, accounts receivable, and other commercial paper and evidences
of debt or other securities, or any rights or interests at any time held by the
Corporation; and (iii) in connection with any loans, advances, or other forms of
credit so authorized, to make, execute, and deliver one or more notes,
mortgages, deeds of trust, financing statements, security agreements,
acceptances, or written obligations of the Corporation, on such terms and with
such provisions as to the security or sale or disposition of them as those
officers or agents deem proper; and (iv) to sell to, or discount or rediscount
with, the banks, trust companies, institutions, corporations, firms, or persons
making those loans, advances, or other forms of credit, any and all commercial
paper, bills, accounts receivable, acceptances, and other instruments and
evidences of debt at any time held by the Corporation, and, to that end, to
endorse, transfer, and deliver the same.
B. From time to time the Corporation shall certify to each
bank, trust company, institution, corporation, firm, or person so designated,
the signatures of the officers or agents so authorized. Each bank, trust
company, institution, corporation, firm, or person so designated is authorized
to rely upon such certification until it has received written notice that the
Board of Directors has revoked the authority of those officers or agents.
ARTICLE VI
INDEMNIFICATION
Section 6.1. Indemnification to Extent Permitted by Law. The
Corporation shall indemnify to the full extent permitted by law any person who
was or is a party, or is threatened to be made a party, to any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, by reason of the fact that the person is or
was a Director, officer, employee, or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, or is or was serving at the request of the Corporation as a trustee
or administrator or in any other fiduciary capacity under any pension, profit
sharing, or other deferred compensation plan, or under any employee welfare
benefit plan of the Corporation.
Section 6.2. Payment of Expenses in Advance of Final Disposition of
Action. Expenses (including attorneys' fees) incurred in defending a civil,
criminal,
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<PAGE> 13
administrative, or investigative action, suit, or proceeding shall be paid by
the Corporation in advance of the final disposition of that action, suit, or
proceeding, on the conditions and to the extent permitted by law.
Section 6.3. Non-Exclusive Right to Indemnity; Inures to Benefit of
Heirs and Personal Representatives. The rights of indemnification set forth in
this Article are in addition to all rights to which any Director, officer,
employee, agent, trustee, administrator, or other fiduciary may be entitled as a
matter of law, and shall continue as to a person who has ceased to be a
Director, officer, employee, agent, trustee, administrator, or other fiduciary,
and shall inure to the benefit of the heirs and personal representatives of that
person.
Section 6.4. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, officer, employee,
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, or is or was serving at
the request of the Corporation as a trustee or administrator or in any other
fiduciary capacity under any pension, profit sharing, or other deferred
compensation plan, or under any employee welfare benefit plan of the
Corporation, against any liability asserted against and incurred by that person
in any such capacity, or arising out of that person's status as such, whether or
not the Corporation would have the power or would be required to indemnify that
person against that liability under the provisions of this Article or the laws
of this State.
Section 6.5. Certain Persons not to be Indemnified. Notwithstanding
the provisions of this Article, the Corporation may not indemnify any bank,
trust company, investment adviser, or actuary against any liability which that
entity or person may have by reason of acting as a "fiduciary" of any employee
benefit plan (as that term is defined in the Employee Retirement Income Security
Act, as amended from time to time) established for the benefit of the
Corporation's employees.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Fiscal Year. The fiscal year of the Corporation shall be
such as has been duly designated by the Board of Directors.
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<PAGE> 14
Section 7.2. Notices.
A. Except as otherwise provided by law or these By-Laws,
whenever notice is required by law or these By-Laws to be given to any
Stockholder, Director, or officer, it shall be construed to mean either (i)
written notice personally served against written receipt at the address that
appears for that person on the books of the Corporation, or (ii) written notice
transmitted by mail, by depositing the notice in a post office or letter box, in
a post-paid sealed wrapper, addressed to the Stockholder, Director, or officer
at the address that appears for that person on the books of the Corporation or,
in default of any other address for a Stockholder, Director, or officer, at the
general post office situated in the city or county of his or her residence,
which notice shall be deemed to be given at the time it is thus mailed.
B. All notices required by law or these By-Laws shall be given
by the Secretary of the Corporation. If the Secretary is absent or refuses or
neglects to act, the notice may be given by any person directed to do so by the
President or, with respect to any meeting called pursuant to these By-Laws upon
the request of any Stockholders or Directors, by any person directed to do so by
the Stockholders or Directors upon whose request the meeting is called.
C. Any Stockholder, Director, or officer may waive any notice
required to be given under these By-Laws.
Section 7.3. General Counsel. The Board of Directors may appoint a
general counsel to have dominion over all matters of legal import concerning the
Corporation. It shall be the duty of the officers and the Directors to consult
from time to time with the general counsel (if one has been appointed), as legal
matters arise. The general counsel shall be given notice of all meetings of the
Board of Directors, in the manner provided in Sections 2.5 and 2.6 of the
By-Laws, and the general counsel shall be accorded the opportunity to attend
those meetings for the purpose of consulting with and advising the Board of
Directors on any matters of a legal nature. The general counsel to the
Corporation shall be subject to removal and replacement by the Board of
Directors.
Section 7.4. Corporate Seal. The Board of Directors may provide a
suitable seal, bearing the name of the Corporation, which shall be in the charge
of the Secretary. The Board of Directors may authorize one or more duplicate
seals and provide for their custody. Regardless of whether a seal is adopted by
the Board of Directors, whenever the Corporation is required to place its
corporate seal on a document, it shall be sufficient to meet the requirements of
any law, rule, or regulation relating to a corporate seal to place the word
"(seal)" adjacent to the signature of the person authorized to sign the document
on behalf of the Corporation.
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<PAGE> 15
Section 7.5 Books and Records. The Corporation shall keep correct and
complete books and records of its accounts and transactions and minutes of the
proceedings of its Stockholders and Board of Directors and of any executive or
other committee when exercising any of the powers or authority of the Board of
Directors. The books and records of the Corporation may be in written form or in
any other form that can be converted within a reasonable time into written form
for visual inspection. Minutes shall be recorded in written form, but may be
maintained in the form of a reproduction.
Section 7.6. Bonds. The Board of Directors may require any officer,
agent, or employee of the Corporation to give a bond to the Corporation,
conditioned upon the faithful discharge of his or her duties, with such surety
and in such amount as is satisfactory to the Board of Directors.
Section 7.7. Severability. The invalidity of any provision of these
By-Laws shall not affect the validity of any other provision, and each provision
shall be enforced to the extent permitted by law.
Section 7.8. Gender. Whenever used in these By-Laws, the masculine
gender includes all genders.
ARTICLE VIII
AMENDMENTS
Unless otherwise provided in the Charter of the Corporation, the
Stockholders have full power and authority to amend, alter, supplement, or
repeal these By-Laws, or any provision of them, at any annual meeting as part of
the general business of that meeting, or at any special meeting for which the
notice of that special meeting stated the substance of the proposed amendment,
alteration, supplement, or repeal. In addition, and unless otherwise provided in
the Charter of the Corporation, the Board of Directors has full power and
authority to amend, alter, supplement, or repeal these By-Laws, or any provision
of them, at any annual, regular, or special meeting as part of the general
business of that meeting.
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<PAGE> 1
EXHIBIT 5.1
March 24, 1998
Medaphis Corporation
2700 Cumberland Parkway, Suite 300
Atlanta, GA 30339
Re: Medaphis Corporation
Registration on Form S-4
Dear Ladies and Gentlemen:
I am Executive Vice President, Secretary and General Counsel of
Medaphis Corporation, a Delaware corporation (the "Company"), and Medaphis
Physician Services Corporation, a Georgia corporation, Gottlieb's Financial
Services, Inc., a Georgia corporation, Medaphis Services Corporation, a
Georgia corporation, Medaphis Healthcare Information Technology Company, a
Georgia corporation, Consort Technologies, Inc., a Georgia corporation,
AssetCare, Inc., a Georgia corporation, Medical Management Sciences, Inc., a
Maryland corporation, Automation Atwork, a California corporation, Health Data
Sciences Corporation, a Delaware corporation, BSG Corporation, a Delaware
corporation, National Healthcare Technologies, Inc., an Indiana corporation,
BSG Alliance/IT, Inc., a Delaware corporation, and BSG Government Solutions,
Inc., a Maryland corporation (the "Guarantors"). In my capacity as General
Counsel, I am authorized to furnish opinions on behalf of the Company and the
Guarantors that may be required in connection with various matters, including
the Company's offer to exchange (the "Exchange Offer") up to $175,000,000 of
its outstanding Series A 9 1/2% Notes due 2005 (the "Old Notes") and related
subsidiary guarantees for its new Series B 9 1/2% Notes due 2005 (the "Notes")
and related subsidiary guarantees (the "Subsidiary Guarantees"). The Notes and
the Subsidiary Guarantees will be issued pursuant to an Indenture dated
February 28, 1998 among the Company, the Guarantors and State Street Bank and
Trust Company, as trustee. The Notes and the Subsidiary Guarantees will be
registered under the Securities Act of 1933, as amended (the "Act"), on a
Registration Statement on Form S-4 (File No. 333-47409) as filed with the
Securities and
<PAGE> 2
Medaphis Corporation
March 24, 1998
Page 2
Exchange Commission (the "Commission") on March 6, 1998, as amended on March
24, 1998 (such Registration Statement, as so amended, the "Registration
Statement").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act.
In rendering the opinions set forth herein, I have, or a lawyer
acting under my general supervision has, examined originals of the Registration
Statement, the Indenture and the form of the Notes and the Subsidiary Guarantees
and originals or copies, certified to my (or such lawyer's) satisfaction, of
such (i) certificates of public officials; and (ii) certificates of officers and
representatives of the Company and the Guarantors; and (iii) other documents,
records, papers, and matters, all as I have deemed relevant or necessary as the
basis for the opinions hereon without independent verification or investigation.
I have relied upon, and assumed the accuracy of, such certificates and other
statements, documents, records, papers and matters with respect to the factual
matters set forth therein and I have assumed the genuineness of all of the
signatures (other than the signatures of officers of the Company and the
Guarantors) and the authenticity of all documents submitted to me as originals
and the conformity to original documents of all documents submitted to me as
certified or photostatic copies and the legal capacity of all natural persons.
Based upon the foregoing and subject to the qualifications stated
herein, I am of the opinion that:
1. When (i) the Registration Statement becomes effective and the
Indenture has been qualified under the Trust Indenture Act of 1939, as amended
(the "TIA"), and (ii) the Notes have been duly executed and authenticated in
accordance with the terms of the Indenture and delivered in exchange for the Old
Notes in accordance with the Exchange Offer, the issuance and exchange of the
Notes will have been duly authorized by the Company and the Notes will be valid
and binding obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms, except to
the extent that (a) enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect
<PAGE> 3
Medaphis Corporation
March 24, 1998
Page 3
relating to creditors' rights generally and (2) general principles of equity
(regardless of whether enforcement is considered in a proceeding at law or in
equity) and (b) the waiver contained in Section 4.06 of the Indenture may be
deemed unenforceable.
2. When (i) the Registration Statement becomes effective and the
Indenture has been qualified under the TIA and (ii) the Notes have been duly
executed and authenticated and the Subsidiary Guarantees endorsed thereon have
been executed by the Subsidiary Guarantors in accordance with the terms of the
Indenture and delivered in exchange for the Old Notes in accordance with the
Exchange Offer, the issuance and exchange of the Subsidiary Guarantees will
have been duly authorized by the Guarantors and the Subsidiary Guarantees will
be valid and binding obligations of the Guarantors entitled to the benefits of
the Indenture and enforceable against the Guarantors in accordance with their
terms, except to the extent that (a) enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (2) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity ) and (b) the
waiver contained in Section 4.06 of the Indenture may be deemed unenforceable.
I am qualified to practice law in the State of Georgia, and I do not
purport to express any opinion herein concerning any laws other than the laws
of the State of Georgia and the Delaware General Corporation Law. To the extent
that the opinions given herein are controlled by matters of New York law, I
have relied on the opinion of Skadden, Arps, Slate, Meagher & Flom LLP filed as
Exhibit 5.2 to the Registration Statement.
<PAGE> 4
Medaphis Corporation
March 24, 1998
Page 4
I hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. I also consent to the reference to
me under the caption "Legal Matters" in the Registration Statement. In giving
this consent, I do not thereby admit that I am included in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ Randolph L.M. Hutto
-----------------------------
Randolph L.M. Hutto
Executive Vice President
Secretary and General Counsel
<PAGE> 1
EXHIBIT 5.2
March 24, 1998
Medaphis Corporation
2700 Cumberland Parkway, Suite 300
Atlanta, GA 30339
Re: Medaphis Corporation - Registration Statement on Form S-4
---------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for Medaphis Corporation, a Delaware
corporation (the "Company"), and Medaphis Physician Services Corporation, a
Georgia corporation, Gottlieb's Financial Services, Inc., a Georgia
corporation, Medical Management Sciences, Inc., a Maryland corporation,
Medaphis Services Corporation, a Georgia corporation, Medaphis Healthcare
Information Technology Company, a Georgia corporation, AssetCare, Inc., a
Georgia corporation, National Healthcare Technologies, Inc., an Indiana
corporation, Consort Technologies, Inc., a Georgia corporation, BSG Government
Solutions, Inc., a Maryland corporation (the "Other Guarantors"), Automation
Atwork, a California corporation, Health Data Sciences Corporation, a Delaware
corporation, BSG Corporation, a Delaware corporation, and BSG Alliance/IT,
Inc., a Delaware corporation (the "Delaware/California Guarantors" and,
together with the Other Guarantors, the "Guarantors"), in connection with the
Company's offer to exchange (the "Exchange Offer") up to $175,000,000 of its
outstanding Series A 9 1/2% Notes due 2005 (the "Old Notes") and related
subsidiary guarantees for its new Series B 9 1/2% Notes due 2005 (the "Notes")
and related subsidiary guarantees (the "Subsidiary Guarantees"). The Notes and
Subsidiary Guarantees are to be issued pursuant to an Indenture dated February
28, 1998 among the Company, the Guarantors and State Street Bank and Trust
Company, as trustee.
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended
(the "Act").
<PAGE> 2
Medaphis Corporation
March 24, 1998
Page 2
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement on Form S-4 (File No. 333-47409), as filed with the Securities and
Exchange Commission (the "Commission") under the Act on March 6, 1998, as
amended on March 24, 1998 (such Registration Statement, as so amended, the
"Registration Statement"); (ii) an executed copy of the Indenture; (iii) the
forms of the Notes and Subsidiary Guarantees and specimen certificates thereof;
(iv) the Certificates of Incorporation of the Company, Health Data Sciences
Corporation, BSG Corporation and BSG Alliance/IT, Inc. (the "Delaware
Charters"); (v) the Articles of Incorporation of Automation Atwork (together
with the Delaware Charters, the "Charters"); (vi) the By-laws of the Company
and the Delaware/California Guarantors (the "By-laws") and (vii) certain
resolutions of the Board of Directors of the Company and the
Delaware/California Guarantors. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such records of the
Company and such agreements, certificates of public officials, certificates of
officers or other representatives of the Company and the Guarantors and others,
and such other documents, certificates and records as we have deemed necessary
or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company and the
Delaware/California Guarantors, we have assumed that such parties had the
power, corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action, corporate
or other, and execution and delivery by such parties of such documents and
(except as specifically set forth below) the validity and binding effect
thereof. As to any facts material to the opinions expressed herein which we
did not independently establish or verify, we have relied upon oral or written
statements and representations of officers and other representatives of the
Company, the Guarantors and others.
<PAGE> 3
Medaphis Corporation
March 24, 1998
Page 3
Members of our firm are admitted to the practice of law in the States of
New York and California and we do not express any opinion as to the laws of any
other jurisdiction other than the Delaware General Corporation Law (the "DGCL"),
Based upon and subject to the limitations, qualifications, exceptions and
assumptions set forth herein, we are of the opinion that:
1. When (i) the Registration Statement becomes effective and the
Indenture has been qualified under the Trust Indenture Act of 1939, as amended
(the "TIA"), and (ii) the Notes have been duly executed and authenticated in
accordance with the terms of the Indenture and delivered in exchange for the Old
Notes in accordance with the Exchange Offer, the issuance and exchange of the
Notes will have been duly authorized by the Company and the Notes will be valid
and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their terms,
except to the extent that (a) the enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity) and (b) the
waiver contained in Section 4.06 of the Indenture may be deemed unenforceable.
2. When (i) the Registration Statement becomes effective and the
Indenture has be qualified under the TIA and (ii) the Notes have been duly
executed and authenticated and the Subsidiary Guarantees endorsed thereon have
been executed by the Subsidiary Guarantors in accordance with the terms of the
Indenture and delivered in exchange for the Old Notes in accordance with the
Exchange Offer, the issuance and exchange of the Subsidiary Guarantees will have
been duly authorized by Delaware/California Guarantors and, assuming the
Subsidiary Guarantees have been duly authorized and the Indenture has been duly
authorized, executed and delivered by the Other Guarantors, the Subsidiary
Guarantees endorsed thereon will be valid and binding obligations of the
Guarantors, entitled to the benefits of the Indenture and enforceable against
the Guarantors in accordance with their terms, except to the extent that (a) the
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
<PAGE> 4
Medaphis Corporation
March 24, 1998
Page 4
general principles of equity (regardless of whether enforcement is considered
in a proceeding at law or in equity) and (b) the waiver contained in Section
4.06 of the Indenture may be deemed unenforceable.
In rendering the opinions set forth above, we have assumed that the
execution and delivery by the Company and/or the Guarantors, as the case may
be, of the Indenture, the Notes and the Subsidiary Guarantees and the
performance of their respective obligations thereunder do not and will not
violate, conflict with or constitute a default under (i) any agreement or
instrument to which the Company, the Guarantors or any of their properties is
subject (except that we do not make the assumption set forth in this clause (i)
with respect to the Charters and By-laws), (ii) any law, rule or regulation to
which the Company, the Guarantors or any of their properties is subject (except
that we do not make the assumption set forth in this clause (ii) with respect to
Applicable Laws), (iii) any judicial or regulatory order or decrees of any
governmental authority, or (iv) any consent, approval, license, authorization
or validation of, or filing, recording or registration with, any governmental
authority (except that we do not make the assumption set forth in this clause
(iv) with respect to Governmental Approvals). "Applicable Laws" means the DGCL
and those laws, rules and regulations of the State of New York, which, in our
experience, are normally applicable to transactions of the type contemplated by
the Exchange Offer (other than the securities laws, blue sky laws and antifraud
laws of any jurisdiction), but without our having made any special investigation
with respect to any other laws, rules or regulations. "Governmental Authorities"
means any New York or Delaware executive, legislative, judicial, administrative
or regulatory body under Applicable Laws. "Governmental Approval" means any
consent, approval, license authorization or validations of, or notice to, or
filing, recording or registrations with, any Governmental Authority pursuant to
Applicable Laws.
<PAGE> 5
Medaphis Corporation
March 24, 1998
Page 5
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. We also consent to the reference to our
under the caption "Legal Matters" in the Registration Statement. In giving
this consent, we do not thereby admit that we are included in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission. Randolph L.M. Hutto, Executive Vice President,
Secretary and General Counsel of the Company, may rely on this opinion, subject
to the limitations, qualifications, exceptions and assumptions set forth
herein, in delivering his opinion of even date herewith to be filed as Exhibit
5.1 to the Registration Statement.
Very truly yours,
Skadden, Arps, Slate, Meagher & Flom
LLP
