<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 3, 1996
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
HEALTHPLAN SERVICES CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-3787901
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3501 FRONTAGE ROAD, TAMPA, FLORIDA 33607
(address, including zip code, of principal executive offices)
------------
HEALTHPLAN SERVICES CORPORATION 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
------------
JAMES K. MURRAY, JR.
PRESIDENT AND
CHIEF EXECUTIVE OFFICER
HEALTHPLAN SERVICES CORPORATION
3501 FRONTAGE ROAD
TAMPA, FLORIDA 33607
(813) 289-1000
(Name, address and telephone number, including area code, of agent for service)
------------
COPIES OF ALL COMMUNICATIONS, INCLUDING COPIES OF ALL COMMUNICATIONS
SENT TO AGENT FOR SERVICE, SHOULD BE SENT TO:
David C. Shobe, Esquire
Fowler, White, Gillen, Boggs,
Villareal and Banker, P.A.
501 East Kennedy Boulevard, Suite 1700
Tampa, Florida 33602
------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) (2) (2) REGISTRATION
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share............. 250,000 shares $21.3125 $5,328,125.00 $1,837.28
===================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended,
this Registration Statement also registers such indeterminate number of
additional shares as may become issuable under the Plan in the event of a
share split, share dividend, split-up, recapitalization or other similar
event.
(2) Calculated on the basis of the average of the high and low prices for the
Company's common stock on the New York Stock Exchange Composite tape on
June 27, 1996 in accordance with Rule 457(h) under the Securities Act of
1933, as amended.
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<PAGE> 2
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with the
Introductory Note to Part I of Form S-8.
ITEM 2. COMPANY INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with the
Introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by HealthPlan Services
Corporation (the "Company") with the Securities and Exchange Commission under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
hereby incorporated herein by reference as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the year ended December 31,
1995 filed with the Commission pursuant to Section 13(a) of the Exchange
Act.
(b) The Company's Form 10-Q for the quarter ending March 31, 1996, filed with
the Commission pursuant to section 13(a) of the Exchange Act.
(c) The description of the Company's Common Stock as contained in the
Company's Registration Statement on Form 8-A dated May 12, 1995, including
any amendment or report filed for the purpose of updating such
description.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in the
registration statement and to be a part thereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware (the "General
Corporation Law") grants each corporation organized thereunder the power to
indemnify its officers, directors, employees and agents on certain conditions
against liabilities arising out of any action or proceeding to which any of
them is a party by reason of being such officer, director, employee or agent.
Section 102(b)(7) of the General Corporation Law permits a Delaware
corporation, with the approval of its stockholders, to include within its
certificate of incorporation a provision eliminating or limiting the personal
liability of its directors to such corporation or its stockholders for monetary
damages resulting from certain breaches of the directors' fiduciary duty of
care, both in suits by or on behalf of the corporation and in actions by
stockholders of the corporation.
II-1
<PAGE> 3
The Company's certificate of incorporation (the "Certificate of
Incorporation") includes an Article which allows the Company to take advantage
of Section 102(b)(7) of the General Corporation Law. The Certificate of
Incorporation also provides for the indemnification, to the fullest extent
permitted by the General Corporation Law, of officers and directors of the
Company. The Company currently maintains policies of insurance under which the
directors and officers of the Company are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, to which they are
parties by reason of being or having been such directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement:
4.1 Amended and Restated Articles of Incorporation of the
Registrant, as amended and restated through May 28, 1996.
4.3 HealthPlan Services Corporation 1996 Employee Stock Purchase
Plan.
5.1 Opinion of Fowler, White, Gillen, Boggs, Villareal and
Banker, P.A., as to the legality of the securities being registered.
23.1 Consent of Fowler, White, Gillen, Boggs, Villareal and
Banker, P.A. (appears in its opinion filed as Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Price Waterhouse LLP.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
II-2
<PAGE> 4
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that subparagraphs (i) and (ii) do not
apply if the information required to be included in a
post-effective amendment by those subparagraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose 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.
(3) To remove from registration, by means of a post-effective
amendment, any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any lability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 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.
(c) 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 provisions
described in Item 6, 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 such 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.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tampa, State of Florida, on the 14th day of June,
1996.
HEALTHPLAN SERVICES CORPORATION
By: /s/ James K. Murray, Jr.
-------------------------------------
James K. Murray, Jr., President and
Chief Executive Officer
(Principal Executive Officer)
By: /s/ James K. Murray, III
-------------------------------------
James K. Murray, III, Executive Vice
President and Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ William L. Bennett Chairman of the Board; June 14, 1996
- ------------------------- Director -------------
William L. Bennett
/s/ James K. Murray, Jr. President and Chief June 14, 1996
- ------------------------- Executive Officer; Director -------------
James. K. Murray, Jr. (Principal Executive Officer)
- ------------------------- Director -------------
Joseph A. Califano, Jr.
</TABLE>
II-4
<PAGE> 6
<TABLE>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Joseph S. DiMartino Director June 14, 1996
- --------------------------- -------------
Joseph S. DiMartino
Director -------------
- ---------------------------
John R. Gunn
/s/ Charles H. Guy, Jr. Director June 14, 1996
- --------------------------- -------------
Charles H. Guy, Jr.
Director
- --------------------------- -------------
Nancy Kane
Director
- --------------------------- -------------
David Nierenberg
Director
- --------------------------- -------------
James G. Niven
/s/ Trevor G. Smith Director June 14, 1996
- --------------------------- -------------
Trevor G. Smith
/s/ Samuel F. Pryor, IV Director June 14, 1996
- --------------------------- -------------
Samuel F. Pryor, IV
</TABLE>
II-5
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBITS PAGE
- ------- ----------------------- -------------
<S> <C> <C>
4.1 Amended and Restated Articles of Incorporation, as amended.
4.3 HealthPlan Services Corporation 1996 Employee Stock Purchase
Plan.
5.1 Opinion of Fowler, White, Gillen, Boggs, Villareal and Banker,
P.A., as to the legality of the securities being registered.
23.1 Consent of Fowler, White, Gillen, Boggs, Villareal and Banker,
P.A. (appears in its opinion filed as Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Price Waterhouse LLP.
</TABLE>
<PAGE> 1
EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
GMS ACQUISITION COMPANY.
(Pursuant to Sections 228, 242, and 245
of the General Corporation Law
of the State of Delaware)
GMS Acquisition Company, a corporation organized and existing under the
laws of the State of Delaware, does hereby certify that:
1. The date of filing of its original Certificate of Incorporation with
the Secretary of State of the State of Delaware was August 24, 1994.
2. This Restated Certificate of Incorporation restates, integrates and
further amends the Certificate of Incorporation of this corporation to read as
herein set forth in full:
FIRST: The name of the corporation is GMS Acquisition Company
(hereinafter referred to as the "Corporation").
SECOND: The address of the Corporation's registered office in the
State of Delaware is 9 East Loockerman Street, Kent County, Dover, Delaware
19901. The name of the registered agent at such address is National Corporate
Research, Ltd.
THIRD: The nature of the business or purpose 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 the State of Delaware, as the
same exists or may hereafter be amended from time to time.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is Thirty Million (30,000,000) of which Ten
Million (10,000,000) shares are Common Stock, par value $0.01 per share and
Twenty Million (20,000,000) shares are Preferred Stock, par value $0.01 per
share.
(a) Shares of Preferred Stock may be issued in one or more series as the
Board of Directors, or any Executive Committee thereof, may determine.
Authority is hereby expressly vested in the Board of Directors, or any Executive
Committee thereof, to fix from time to time, by resolution or resolutions
providing for such issue of any series or Preferred Stock, the
<PAGE> 2
designation of such series, and the powers, preferences, performances and rights
of the shares of such series, and the qualifications, limitations or
restrictions thereof including the following:
(i) The distinctive designation and number of shares comprising
such series, which number may (except where otherwise provided by the
Board of Directors, or any Executive Committee thereof, authorizing such
series) be increased or decreased (but not below the number of shares then
outstanding) from time to time by like action of the Board of Directors,
or any Executive Committee thereof;
(ii) The dividend rate or rates, if any, on the shares, of such
series and the preferences, if any, over any other series (or of any other
series over such series) with respect to any dividends, the terms and
conditions upon which any dividends shall be payable, whether and upon
what conditions any such dividends shall be cumulative and, if cumulative,
the date or dates from which any dividends shall accumulate;
(iii) Whether or not the shares of such series shall be redeemable,
the price or prices, limitations and restrictions, and any other terms and
conditions with respect to such redemptions;
(iv) The rights to which the holders of such series shall be
entitled, and the preferences, it any, over any other series (or of any
other series over such series), upon the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(v) Whether or not the shares of such series shall be subject to
the operation of a purchase, retirement or sinking fund, and, if so,
whether and upon what conditions such purchase, retirement or sinking fund
shall be cumulative or noncumulative, the extent to which and the manner
in which such fund shall be applied to the purchase or redemption of the
shares of such series for retirement or to other corporate purposes and
the terms and provisions relative to the operation thereof;
(iv) Whether or not the shares of such series shall be convertible
into or exchangeable for shares of stock of any other class or classes, or
of any other series of the same class and, if so convertible or
exchangeable, the price or prices or the rate or rates of conversion
or exchange and the method, if any, of adjusting the same, and any other
terms and conditions of such conversion or exchange:
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<PAGE> 3
(vii) The voting powers, if any, of the shares of such series, and
whether or not and under what conditions the shares of such series shall
be entitled to vote separately as a single class, for the election of one
or more additional directors of the Corporation in case of dividend
arrearages or other specific events, or upon other matters; and
(viii) Any other preferences, privileges and powers, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of such series, as the Board of Directors, or
any Executive Committee thereof, may deem advisable and as shall not be
inconsistent with the provisions of this Certificate of Incorporation.
(b) Shares of Preferred Stock which are redeemed or converted, or
which are issued and reacquired in any manner and retired, shall have the status
of authorized and unissued Preferred Stock and may be reissued by the Board of
Directors, or any Executive Committee thereof, as shares of the same or any
other series, unless otherwise provided with respect to any series in the
resolution of the Board of Directors, or any Executive Committee thereof,
creating such series.
(c) Powers, Preferences and Rights of Common Stock. The powers,
preferences and rights of the shares of Common Stock and the qualifications,
limitations and restrictions thereof, are set forth below.
1. Dividends. The holders of outstanding shares of Common Stock
shall be entitled to share equally and ratably in any dividends or
distributions declared on outstanding shares of Common stock, when, as and
if any such dividends or distributions are declared by the Corporation's
Board of Directors from funds legally available therefor;
2. Liquidation, etc. The holders of outstanding shares of Common
Stock shall be entitled to share equally and ratable in the assets of the
Corporation to be distributed among the holders of shares of the Common
Stock upon any liquidation or winding up of the Corporation, whether
voluntary or involuntary; and
3. Voting Rights. Except as otherwise expressly required by
law, unless and until there shall occur a date on which there are no
longer any shares of Series A Preferred Stock (as defined in Section (d)
below) outstanding (such date being the "Vote Swing Date"), the holders of
Common Stock shall not have any right to vote on any matter on which
stockholders are entitled to vote. From and after the Vote Swing Date,
each holder of Common Stock
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<PAGE> 4
shall be entitled to vote for the election and removal of the directors of
the Corporation and on all other matters on which stockholders are
entitled to vote under the General Corporation Law of the State of
Delaware and shall have one vote for each share of Common Stock held of
record.
(d) Series A Preferred Stock and Series B Preferred Stock.
Pursuant to the authority granted to the Board of Directors of the Corporation
in this Article Fourth, the Board of Directors has established two series of
preferred stock, designated as "Series A Preferred Stock" and "Series B
Preferred Stock" consisting of One Hundred Thousand (100,000) shares of Series A
Preferred Stock, par value $.01 per share, and Eighteen Million Nine Hundred
Thousand (18,900,000) shares of Series B Preferred Stock, par value $.01 per
share, and except as otherwise provided below, all shares of Series A Preferred
Stock and all shares of Series B Preferred Stock (collectively, the "Preferred
Stock") shall be entitled to the same powers, preferences, rights,
qualifications, limitations and restrictions.
1. Dividends. Subject to the limitations set forth in this
Restated Certificate of Incorporation, the holders of Preferred Stock
shall be entitled to receive cumulative cash dividends per annum per
share as set forth below from funds legally available therefor, when, as
and if declared by the Corporation's Board of Directors. Such dividends
shall be payable quarterly on March 15, June 15, September 15 and December
15 (each a "Dividend Payment Date") of each year (unless such day is not a
business day, in which event on the next succeeding business day) to
holders of record as they appear on the register for the Preferred Stock
(the "Preferred Stock Register") on the March 1, June 1, September 1 or
December 1 immediately preceding such Dividend Payment Date, commencing on
December 15, 1994. Subject to increase in the case of the Series B
Preferred Stock as provided below, the holders of Series A Preferred Stock
shall be entitled to receive cumulative cash dividends at the rate (the
"Series A Base Rate") of $.06 per share of Series A Preferred Stock and
the holders of Series B Preferred Stock shall be entitled to receive
cumulative cash dividends at the rate of $.06 per share of Series B
Preferred Stock (the "Series B Base Rate"), in each case payable quarterly
in equal amounts on the Dividend Payment Dates. In the event that the
Corporation shall have failed (for whatever reason) to redeem shares of
Series B Preferred Stock scheduled to be redeemed on any Mandatory
Redemption Date (as defined below), then the holders of Series B Preferred
Stock shall be entitled to receive, from and after such Mandatory
Redemption Date, cumulative cash dividends (in lieu of cash dividends at
the Series B Base Rate) at a rate (the "Special Rate") per share of
Series B Preferred
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<PAGE> 5
Stock equal to 6% per annum on the Base Amount (as defined below). The
Base Amount means, with respect to each share of Series B Preferred Stock,
$1; provided that subsequent to the Mandatory Redemption Date, for
purposes of calculating the dividend due an any Dividend Payment Date (if
cumulative dividends have not been paid in full prior to such date), the
full amount of any accrued but unpaid dividends as of the immediately
preceding Dividend Payment Date shall be added to the Base Amount.
Dividends payable on the Preferred Stock for any period less than a full
quarter dividend period shall be computed on the basis of a 365 or 366 day
year, as applicable, and the actual number of days elapsed.
Dividends on each share of Preferred Stock shall accrue from the
date of original issue of such share of Preferred Stock. Quarterly
dividends which are not paid in full in cash on any Dividend Payment Date
will cumulate without interest as if quarterly dividends had been paid in
cash on each succeeding Dividend Payment Date until such accumulated
quarterly dividends shall have been declared and paid in full in cash.
Any declaration of dividends may be for a portion, or all, of the then
accumulated dividends. Any accumulated dividends which are not paid will
continue to cumulate in the manner described above.
No dividend or distribution in cash, shares of capital stock or
other property shall be paid or declared and set apart for payment on any
date on or in respect of the Common Stock. $.01 par value, of the
Corporation or on any other series of stock issued by the Corporation
ranking junior to the Preferred Stock in payment of dividends or upon
liquidation, dissolution or winding-up of the Corporation (collectively,
the "Junior Securities") (any such dividend or distribution hereinafter
referred to as a "Junior Securities Distribution"), unless,
contemporaneously therewith or with respect to the immediately preceding
Dividend Payment Date for the Preferred Stock, a dividend or distribution
is or was paid or declared and set apart for payment, as the case may be,
on or in respect of the Preferred Stock payable at the rate set forth
herein and payable on a date no later than the payment date set for such
Junior Securities Distribution. In no event may the Corporation (i) make
a Junior Securities Distribution in cash unless, contemporaneously
therewith or with respect to the immediately preceding Dividend Payment
Date for the Preferred Stock, a dividend or distribution in cash is or was
paid or declared and set apart for payment on or in respect of the
Preferred Stock, payable at the rate set forth herein and a date no later
than the payment date set for Such Junior Securities Distribution, (ii)
make a Junior Securities Distribution while there are dividends in arrears
-5-
<PAGE> 6
on the Preferred Stock or (iii) redeem, purchase or otherwise acquire for
value any Junior Securities unless, prior to or contemporaneously with
such redemption, purchase or acquisition the Preferred Stock is redeemed
in full; provided that the Corporation may redeem, purchase or otherwise
acquire Junior Securities (and options in respect thereof) held by
employees or former employees (or employee benefit plans) of the
Corporation or fractional shares in Junior Securities of the Corporation,
which redemption, purchase or other acquisition shall be approved by the
Board of Directors of the Corporation. Notwithstanding the foregoing,
this provision shall not prohibit the payment or declaration and setting
aside of a dividend payable in shares of Junior Securities or a
redemption, purchase or acquisition of Junior Securities with shares of
Junior Securities.
No dividend may be paid or declared and set apart for payment on
any share of Preferred Stock unless at the same time (i) a like dividend
is paid or set aside for payment on all shares of Preferred Stock then
outstanding and (ii) a like ratable dividend is paid or set aside for
payment on all shares of capital stock ranking on a parity with the
Preferred Stock with respect to the payment of dividends. No dividend may
be paid or declared and set apart for payment on any share of capital
stock ranking on a parity with the Preferred Stock with respect to payment
of dividends unless there shall have been paid or set apart for payment a
like ratable dividend on all shares of Preferred Stock then outstanding.
Notwithstanding the terms of the foregoing paragraphs or any other
provision of this Restated Certificate of Incorporation, no dividend may
be paid or declared or set apart on the Preferred Stock, any shares of
capital stock ranking on a parity therewith or any Junior Securities, in
each case prior to the Facility Termination Date, as defined in the
following sentence, without the prior written consent of the Bank (as
defined in the following sentence). As used in this Restated Certificate
of Incorporation, "Facility Termination Date" shall mean the date on which
all obligations of Plan Services, Inc. (the "Borrower"), a wholly-owned
subsidiary of the Corporation, under the Credit Agreement dated as of
September 30, 1994 between First Union National Bank of North Carolina
(the "Bank") and the Borrower, shall be performed and paid in full and the
credit facility provided thereunder terminated.
2. Preference on Liquidation, etc. In the event of any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation,
before any payment or distribution of the assets of the Corporation
(whether
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<PAGE> 7
capital or surplus), or proceeds thereof, shall be made to or set apart, for the
holders of shares of any Junior Securities, holders of shares of Series A
Preferred Stock shall be entitled to receive payment of $1.00 per share held by
them, plus an amount in cash equal to all accrued and unpaid dividends thereon,
which dividends shall have accrued at the Series A Base Rate, and holders of
Series B Preferred Stock shall be entitled to receive payment of $1.00 per share
held by them, plus an amount in cash equal to all accrued and unpaid dividends
thereon, which dividends shall have accrued at the Series B Base Rate, or the
Special Rate, as the case may be, provided in Section 1, whether or not declared
to the date of such payment. If, upon any liquidation, dissolution or
winding-up of the Corporation, the assets of the Corporation, or proceeds
thereof, distributed among the holders of shares of Preferred Stock and any
other series of preferred stock which ranks pari passu in right of payment upon
liquidation, dissolution or winding-up of the Corporation with the Preferred
Stock shall be insufficient to pay in full the respective preferential amounts
on shares of Preferred Stock and such other series of preferred stock, then such
assets, or the proceeds thereof, shall be distributed among the holders of all
such stock ratably in accordance with the respective amounts which would be
payable on such shares if all amounts payable thereon were paid in full. After
payment of the full amount of the liquidation preference to which the holders of
Preferred Stock are entitled, such holders will not be entitled to any further
participation in any distribution of assets of the Corporation. For the
purposes of this paragraph, neither the merger or the consolidation of the
Corporation into or with another corporation or the merger or consolidation of
any other corporation into or with the Corporation or the sale, transfer or
other disposition of all or substantially all the assets of the Corporation,
shall be deemed to be a voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation.
3. Retirement of Shares. Shares of Series A Preferred Stock or Series
B Preferred Stock which have been redeemed, repurchased or reacquired in any
manner by the Corporation shall be retired and not be reissued.
4. Redemption. The Series A Preferred Stock shall, subject to the
limitations described herein, be subject to mandatory redemption by the
Corporation on September 15, 1999 from funds legally available therefore, at a
price per share of Series A Preferred Stock equal to $1 per share, together
with an amount representing accrued and unpaid dividends, whether or not
declared, to the date of redemption (the "Series A Redemption Price").
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<PAGE> 8
The Series B Preferred Stock shall, subject to the limitation described
herein, be subject to mandatory redemption by the Corporation as follows: the
Corporation shall on September 15, 1995 and on September 15 in each succeeding
year through September 15, 1999 redeem 20% of the shares of Series B Preferred
Stock originally issued or converted into Series B Preferred Stock as set forth
in this Section (d), and on September 15, 1999, the Corporation shall redeem
all remaining outstanding shares of Series B Preferred Stock originally issued
or converted into Series B Preferred Stock as set forth in Section (d), in each
case, from funds legally available therefor, at a price per share of Series B
Preferred Stock equal to $1 per share, together with an amount representing
accrued and unpaid dividends, whether or not declared, to the date of
redemption (the "Series B Redemption Price").
With respect to the shares of Series A Preferred Stock, September 15,
1999 and with respect to the shares of Series B Preferred Stock, each such
September 15, on which the Corporation is required to redeem shares of Series A
Preferred Stock or Series B Preferred Stock, as the case may be, is hereinafter
referred to as a "Mandatory Redemption Date". Any shares of Series B Preferred
Stock which have been issued and have been redeemed, repurchased or reacquired
in any manner by the Corporation (other than through the operation of this
mandatory redemption provision) prior to any Mandatory Redemption Date may be
credited by the Corporation against the number of shares of Series B Preferred
Stock required to be redeemed on any Mandatory Redemption Date after the date
of such other redemption, repurchase or reacquisition, unless such shares have
been previously so credited. The Corporation shall cause to be mailed to each
holder of Series A Preferred Stock or Series B Preferred Stock, at their last
addresses as they shall appear upon the Preferred Stock Register, at least 30
and not more than 60 days prior to a Mandatory Redemption Date, a notice
stating the number of shares of Series A Preferred Stock or Series B Preferred
Stock owned by such holder that are to be redeemed on a Mandatory Redemption
Date. Except as otherwise required by law, the failure to give any such
notice, or any defect therein, shall not affect the validity of such a
redemption.
Notwithstanding the terms of the foregoing paragraphs or any other
provision of this Restated Certificate of Incorporation, the Corporation shall
not redeem any Preferred Stock pursuant to the mandatory redemption herein
described prior to the Facility Termination Date without the prior written
consent of the Bank, or otherwise to the extent that any such redemption of
Preferred Stock contravenes or causes a default under any loan contract,
-8-
<PAGE> 9
agreement or other instrument by which any of the Corporation or its
subsidiaries or any of their property is then bound.
If on any Mandatory Redemption Date the Corporation shall be prohibited, by
reason of the operation of the foregoing paragraph, from redeeming shares of
Series A Preferred Stock or Series B Preferred Stock, then the Corporation shall
be obligated, to the extent and on the first date after such Mandatory
Redemption Date on which the prohibitions described in the foregoing paragraph
shall no longer apply (the "Delayed Redemption Date"), to redeem the number of
shares of Series A Preferred Stock or Series B Preferred Stock which it would
have been obligated to redeem on the Mandatory Redemption Date, at a price per
share of Series A Preferred Stock equal to the Series A Redemption Price and at
a price per share of Series B Preferred Stock equal to the Series B Redemption
Price, it being understood that in any event the unpaid dividends included in
such Redemption Prices shall have accrued at the respective Base Rate or the
Special Rate, as the case may be, as provided in Section 1.
The Series B Preferred Stock may be redeemed at the Corporation's option
(subject to the legal availability of funds) at any time, in whole or in part,
at a price per share equal to the Redemption Price; provided, however, that no
such redemption may be authorized or effected prior to the Facility Termination
Date without the prior written consent of the Bank. The Corporation shall cause
to be mailed to each holder of Series B Preferred Stock, at their last addresses
as they shall appear upon the Preferred Stock Register, at least 30 and not more
than 60 days prior to the Optional Redemption Date, a notice stating the date on
which such redemption is expected to take place (the "Optional Redemption Date")
and, if less than all the shares of Series B Preferred Stock are to be redeemed,
the notice shall also specify the number of shares of Series B Preferred Stock
owned by such holder that are to be redeemed. Except as otherwise required by
applicable law, the failure to give any such notice, or any defect therein,
shall not affect the validity of such a redemption.
If less than all the shares of Series B Preferred Stock are to be
redeemed, the shares to be redeemed shall be redeemed, on a pro rata basis,
according to the number of shares of Series B Preferred Stock held by each
holder.
On or after the Mandatory Redemption Date, the Optional Redemption Date or
the Delayed Redemption Date, as the case may be, the holders of shares of
Preferred Stock which have been redeemed shall surrender their certificates,
<PAGE> 10
representing such shares to the Corporation at its principal place of business
or as otherwise notified, and thereupon the redemption price of 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. Notice having been given as aforesaid, from and
after the Mandatory Redemption Date, the Optional Redemption Date or the Delayed
Redemption Date, as the case may be, unless there shall have been a default in
payment of the redemption price, all rights of the holders of such redeemed
shares of Series A Preferred Stock or Series B Preferred Stock, as the case may
be, except the right to receive the Redemption Price without interest upon
surrender of their certificate or certificates, shall cease with respect to such
shares, and such shares shall not thereafter be transferred on the Preferred
Stock Register or be deemed to be outstanding for any purpose whatsoever.
5. Voting. (a) Unless and until the Vote Swing Date shall have
occurred, each holder of Series A Preferred Stock shall be entitled to vote for
the election or removal of the directors of the Corporation and on all other
matters on which stockholders are entitled to vote under the General
Corporation Law of the State of Delaware, and shall have one vote for each
share of Series A Preferred Stock held of record. Except as otherwise
expressly required by law, the holders of Series B Preferred Stock shall not
have any right to vote on any matter on which stockholders are entitled to
vote.
(b) Except as otherwise expressly required by law, all stockholders
entitled to vote shall vote together as a single class for the election or
removal of the directors of the Corporation and on all other matters on which
stockholders are entitled to vote under the General Corporation Law of the
State of Delaware.
6. Restrictions on Transfer of Series A Preferred Stock. No transfer
of any outstanding shares of Series A Preferred Stock may be registered an the
books of the Corporation unless all outstanding shares of Series A Preferred
Stock are transferred simultaneously.
7. Conversion of Series A Preferred Stock. Each holder of shares of
Series A Preferred Stock may, at its option, convert all or any of the shares of
Series A Preferred Stock then held by each holder into shares of fully paid and
nonassessable shares of Series B Preferred Stock, at the rate (the "Conversion
Rate") of one share of Series B Preferred Stock for each share of Series A
Preferred Stock, upon surrender to the Corporation of certificates representing
the shares of Series A Preferred
-10-
<PAGE> 11
Stock to be so converted, together with an appropriate conversion
notice. The Conversion Rate shall be appropriately adjusted for any
stock-split, stock-dividend, subdivision or combination of the Series
A Preferred Stock of the Corporation, such that upon conversion of the
Series A Preferred Stock the holders of Series A Preferred Stock shall
be entitled to receive such number of shares of Series B Preferred
Stock for each share of Series A Preferred Stock to be converted as
such holders would have become entitled to had such holders converted
the Series A Preferred Stock immediately prior to such event. In the
event of any reclassification of the Series B Preferred Stock, any
consolidation or merger of the Corporation or any sale or conveyance
of all or substantially all the assets of the Corporation, then each
holder of Series A Preferred Stock shall, at its option, be entitled
to receive in respect of all or any of the shares of Series A
Preferred Stock then held by such holder, the shares, securities or
property receivable upon such reclassification, consolidation, merger
or sale by a holder of the number of shares of Series B Preferred
Stock issuable upon conversion of such shares of Series A Preferred
Stock immediately prior to such reclassification, consolidation,
merger or sale. No adjustments in respect of dividends will be made
upon any conversion.
FIFTH: 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 and powers
conferred herein upon stockholders and directors are granted subject to this
reservation.
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the By-laws of the Corporation.
SEVENTH: Meetings of stockholders shall be held at such place, within
or without the State of Delaware, as may be designated by or in the manner
provided in the By-laws, or, if not so designated or provided, at the
registered office of the Corporation in the State of Delaware. Elections of
directors need not be by written ballot unless and to the extent that the
By-laws so provide.
EIGHTH: A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of 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
-11-
<PAGE> 12
knowing violation of the 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
to authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended. Any repeal or modification of this
provision shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
NINTH: (a) Right to Indemnification. (i) Each person who
was or is made a party or is threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, employee or agent, shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, 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 broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators, provided,
however, that except as provided in paragraph (b) hereof, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Article shall be a contract right
based upon an offer from the Corporation which shall be deemed to be accepted by
such person's service or continued service with the Corporation and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the General Corporation Law of the State of
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<PAGE> 13
Delaware requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees or agents of the Corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of
this Article is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expenses of prosecuting such claim. It shall be a defense
to any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of the State of Delaware for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. 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 or she 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 the
claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statue, provision of
the Certificate or Incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
13
<PAGE> 14
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such persons against such
expense, liability or loss under the Delaware Corporation Law.
(e) Severability. If any subsection of this Article shall be deemed to
be invalid or ineffective in any proceedings, the remaining subsections hereof
shall not be affected and shall remain in full force and effect.
TENTH: 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 sec. 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for the Corporation under the provisions of sec. 279 of Title 8 of
the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the reorganization of the Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors and/or on
all the stockholders or class of stockholders, of the Corporation, as the case
may be, and also on the Corporation.
14
<PAGE> 15
3. This Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the
State of Delaware and by the written consent of a majority of the stockholders
of each class pursuant to Section 228 of the General Corporation Law of the
State of Delaware and written notice has been given to Stockholders so
consenting.
IN WITNESS THEREOF, GMS Acquisition Company has caused this Restated
Certificate of Incorporation to be signed by Todd K. West, its Vice President
and attested by Samuel F. Pryor, IV, its Secretary and Treasurer, this 30th day
of September, 1994.
GMS ACQUISITION COMPANY
By:
-----------------------------
Name: Todd K. West
Title: Vice President
ATTEST:
By:
-----------------------------
Name: Samuel F. Pryor, IV
Title: Secretary & Treasurer
-15-
<PAGE> 16
CERTIFICATE OF AMENDMENT
OF
GMS ACQUISITION COMPANY
---------------------------------------------
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
---------------------------------------------
GMS Acquisition Company, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify as follows:
FIRST: Resolution setting forth a proposed amendment to the Restated
Certificate of Incorporation of the Corporation, declaring said amendment to be
advisable and directing that said amendment be considered by the stockholders
of the Corporation entitled to vote thereon were duly adopted by unanimous
written consent of the Board of Directors of the Corporation dated November 7,
1994.
SECOND: Thereafter, said amendment was approved in accordance with
Section 228 of the General Corporation Law of the State of Delaware by the
written consent dated November 7, 1994, of all the stockholders of the
Corporation entitled to vote thereon.
THIRD: Said amendment would amend the Restated Certificate of
Incorporation of the Corporation by deleting Article FIRST
<PAGE> 17
thereof and substituting in lieu thereof the following new Article FIRST:
"FIRST: Name. The name of the corporation is HealthCare Informatics
Corporation."
FOURTH: Said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this certificate to be signed by its Vice President and
attested to by its Assistant Secretary this 7th day of November, 1994.
GMS ACQUISITION COMPANY
By: /s/ Samuel F. Pryor
--------------------------
Samuel F. Pryor, IV
Vice President
[Corporate Seal]
Attest:
By: /s/ Todd K. West
-----------------------------
Todd K. West
Assistant Secretary
-2-
<PAGE> 18
CERTIFICATE OF AMENDMENT
OF
HEALTHCARE INFORMATICS CORPORATION
-------------------------------------
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
-------------------------------------
HealthCare Informatics Corporation, a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows:
FIRST: Resolutions setting forth a proposed amendment to the Restated
Certificate of Incorporation of the Corporation, declaring said amendment to be
advisable and directing that said amendment be considered by the stockholders
of the Corporation entitled to vote thereon were duly adopted by the Board of
Directors of the Corporation at a meeting duly called and held on February 15,
1995.
SECOND: Thereafter, said amendment was approved in accordance with
Section 228 of the General Corporation Law of the State of Delaware by the
written consent dated February 15, 1995, of all the stockholders of the
Corporation entitled to vote thereon.
THIRD: Said amendment would amend the Restated Certificate of
Incorporation of the Corporation by deleting Article FIRST thereof and
substituting in lieu thereof the following new Article FIRST:
"FIRST: Name. The name of the corporation is HealthPlan Services
Corporation."
<PAGE> 19
FOURTH: Said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this certificate to be signed by its President and attested
to by its Secretary this 15th day of February, 1995.
HEALTHCARE INFORMATICS CORPORATION
By: /s/
------------------------------
[Corporate Seal]
Attest:
By: /s/
----------------------------
-2-
<PAGE> 20
CERTIFICATE OF AMENDMENT
OF
HEALTHPLAN SERVICES CORPORATION
---------------------------------------
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
---------------------------------------
HealthPlan Services Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify as follows:
FIRST: Resolutions setting forth a proposed amendment to the Restated
Certificate of Incorporation of the Corporation, declaring said amendment to be
advisable and directing that said amendment be considered by the stockholders
of the Corporation entitled to vote thereon were duly adopted by the Board of
Directors of the Corporation at a meeting duly called and held on March 8,
1995.
SECOND: Thereafter, said amendment was approved in accordance with
Section 228 of the General Corporation Law of the State of Delaware by the
written consent dated March 8, 1995, of all stockholders of the Corporation
entitled to vote thereon.
<PAGE> 21
THIRD: Said amendment amends the Restated Certificate of Incorporation
of the Corporation by deleting the first sentence of Article FOURTH thereof and
substituting in lieu thereof the following:
"The total number of shares of stock which the Corporation
shall have the authority to issue is Forty Five Million (45,000,000)
of which Twenty Five Million (25,000,000) shares are Common Stock, par
value $0.01 per share and Twenty Million (20,000,000) shares are
Preferred Stock, par value $0.01 per share."
FOURTH: Said amendment was duly adopted in accordance with the
provision of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this certificate to be signed by its President and attested
to by its Chairman this 9th day of March, 1995.
HEALTHPLAN SERVICES CORPORATION
By: /s/
----------------------------
[Corporate Seal]
Attest:
By: /s/
----------------------
2
<PAGE> 22
CERTIFICATE OF AMENDMENT
OF
HEALTHPLAN SERVICES CORPORATION
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
HealthPlan Services Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify as follows:
FIRST: Resolutions setting forth a proposed amendment to the Restated
Certificate of Incorporation of the Corporation, declaring said amendment to be
advisable and directing that said amendment be considered by the stockholders
of the Corporation entitled to vote thereon were duly adopted by the Board of
Directors of the Corporation by unanimous written consent executed as of March
19, 1996.
SECOND: Thereafter, said amendment was approved in accordance with
Section 228 of the General Corporation Law of the State of Delaware by a vote
of stockholders holding a majority of the outstanding stock of the Corporation
entitled to vote thereon at the Annual Meeting of Stockholders of the
Corporation held on May 2, 1996.
THIRD: Said Amendment amends the Restated Certificate of Incorporation
by deleting the first sentence of Article FOURTH thereof in its entirety and
inserting the following in lieu thereof:
"The total number of shares of stock which the
Corporation shall have the authority to issue is
One Hundred and Twenty Million (120,000,000), of
which One Hundred Million (1,000,000) shares are
Common Stock, par value $0.01 per share and Twenty
Million (20,000,000) shares are Preferred Stock, par
value $0.01 per share."
FOURTH: Said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
<PAGE> 23
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this certificate to be signed by its President and attested
to by its Secretary this 24th day of May, 1996.
HEALTHPLAN SERVICES
CORPORATION
By: /s/ James K. Murray, Jr.
---------------------------------------
James K. Murray, Jr.
President and Chief Executive Officer
[Corporate Seal]
Attest:
By: /s/ Mary C. Fahy
------------------------
Mary C. Fahy
Vice President and Secretary
<PAGE> 1
EXHIBIT 4.3
HEALTHPLAN SERVICES CORPORATION
1996 EMPLOYEE STOCK PURCHASE PLAN
ADOPTED BY THE BOARD OF DIRECTORS ON MARCH 19, 1996
1. Purposes.
The 1996 Employee Stock Purchase Plan of HealthPlan Services Corporation
(the "Plan") is intended to provide a method whereby employees of HealthPlan
Services Corporation and any Subsidiary (as defined below) thereof (hereinafter
referred to, unless the context otherwise requires, as the "Company"), will
have an opportunity to acquire a proprietary interest in the Company through
the purchase of shares of common stock of the Company, par value $0.01 per
share (the "Common Stock"). It is the intention of the Company to have the
Plan qualify as an "employee stock purchase plan" under Section 423 of the
Internal Revenue Code of 1986, as amended (the "Code"). The provisions of the
Plan shall, accordingly, be construed so as to extend and limit participation
in a manner consistent with the requirements of that Section of the Code.
2. Definitions.
(a) "Committee" means the individuals described in Paragraph 12.
(b) "Employee" means any person who is customarily employed for 20 or more
hours per week and more than five months in a calendar year by (1) the Company
or (2) any Subsidiary.
(c) "Offering" and "Offerings" shall have the meanings set forth in
Paragraph 4.
(d) "Offering Commencement Date," with respect to an Offering under the
Plan, means the first day of the applicable calendar quarter for such Offering
pursuant to Paragraph 4.
(e) "Offering Termination Date," with respect to an Offering under the
Plan, means the last day of the applicable calendar quarter for such Offering
pursuant to Paragraph 4.
(f) "Option" means the option granted to each participating Employee
pursuant to Paragraph 6.
(f) "Plan Administrator" means the Controller of the Company.
1
<PAGE> 2
(g) "Subsidiary" means any present or future corporation which (i) would
be a "subsidiary corporation" as that term is defined in Section 424 of the
Code and (ii) is designated as a participant in the Plan by the Board of
Directors.
3. Eligibility.
(a) Any Employee who shall have completed one year of service and shall be
employed by the Company or any Subsidiary on the date his or her participation
in the Plan is to become effective shall be eligible to participate in the
Plan.
(b) Any provision of the Plan to the contrary notwithstanding, no Employee
shall be granted an Option to participate in the Plan:
(i) if, immediately after the grant, such Employee would own stock,
and/or hold outstanding options to purchase stock, possessing 5% or more
of the total combined voting power or value of all classes of stock of
the Company or of any Subsidiary of the Company (for purposes of this
paragraph the rules of Section 424(d) of the Code shall apply in
determining stock ownership of any Employee); or
(ii) which permits his or her rights to purchase stock under all
employee stock purchase plans of the Company and its Subsidiaries to
accrue at a rate which exceeds $25,000 in fair market value of the stock
(determined at the time such Option is granted) for each calendar year in
which such Option is outstanding at any time.
4. Offering Dates.
The Plan will be implemented by consecutive quarterly offerings of the
Company's Common Stock (referred to herein collectively as "Offerings" and
individually as an "Offering") commencing on July 1, 1996, and continuing until
the earlier of (i) the date on which a total of 250,000 shares of Common Stock
have been issued under the Plan or (ii) June 30, 2001.
Participation in any one or more of the Offerings under the Plan shall
neither limit, nor require, participation in any other Offering.
5. Participation.
(a) An eligible Employee may participate in the Plan by completing an
authorization for payroll deduction on the form provided by the Company (an
"Authorization") and filing it with the office of the Plan Administrator on or
before the date set therefor by the Committee, which date shall be prior to the
Offering Commencement Date for the Offering. Each Authorization shall
authorize a regular payroll deduction from the Employee's compensation. Once
an Employee has filed an Authorization, he or she will automatically
participate in subsequent
2
<PAGE> 3
Offerings until and unless he or she withdraws from an Offering pursuant to
Paragraph 7(b) or Paragraph 9.
(b) The Company will maintain payroll deduction accounts for all Employees
participating in the Plan. An Employee shall authorize a payroll deduction of
a specified dollar amount per pay period, during the period within which he or
she elects to become a participant in the Plan, subject to the limitations of
Paragraph 3. There shall be no maximum limitation on the amount of payroll
deductions for any participating Employee. All payroll deductions made for a
participant shall be credited to his or her account under the Plan. A
participant may not make any separate cash payment into such account.
(c) Except as provided in Paragraph 7(b) or 9, a participant may not make
any changes to his or her participation during an Offering and, specifically, a
participant may not during an Offering alter the amount of his or her payroll
deductions for such Offering. An Employee may make a change in his or her
payroll deduction for a subsequent Offering by filing a new Authorization with
the Plan Administrator prior to the Offering Commencement Date of such
Offering.
6. Granting of Option.
(a) For each of the Offerings, a participating Employee shall be deemed to
have been granted an option (the "Option") to purchase, on the applicable
Offering Termination Date, the number of shares of Common Stock determined as
follows: 85% of the market value of a share of Common Stock on the applicable
Offering Termination Date shall be divided into the amount in such Employee's
payroll deduction account on such date. The market value of Common Stock shall
be determined as provided in subparagraph (b) below.
(b) The purchase price of a share of Common Stock purchased with payroll
deductions made during each Offering (the "Option Exercise Price") shall be 85%
of the last reported sale price of the Common Stock on the New York Stock
Exchange, as published in The Wall Street Journal, on the Offering Termination
Date applicable to such Offering (or on the nearest prior regular business date
on which shares of Common Stock shall be traded in the event that no shares of
Common Stock shall have been traded on the Offering Termination Date).
7. Exercise of Option.
With respect to each Offering during the term of the Plan:
(a) Unless a participant gives written notice of withdrawal to the
Company as hereinafter provided, his or her Option will be deemed to have
been exercised automatically on the Offering Termination Date applicable
to such Offering, for the purchase of the number of shares of Common
Stock which the accumulated payroll deductions in his or her account at
that time will purchase at the applicable Option Exercise Price.
(b) By written notice to the Plan Administrator at any time on or
before the date set therefor by the Committee, which date shall be prior
to the Offering Termination Date applicable to any such Offering, a
participant may elect to withdraw all the accumulated payroll deduction
in his or her account at such time.
3
<PAGE> 4
8. Custody and Issuance of Stock.
The Plan Administrator will forward to each participating Employee a
confirmation or a quarterly statement indicating the number of shares acquired
under the provisions of the Plan (including fractional shares to the fourth
decimal) for his or her account, the cost thereof, the date of acquisition and
the total number of shares then credited to his or her account. A
participating Employee may at any time withdraw from his or her account part or
all of any whole shares then credited to such account by filing with the Plan
Administrator written notice in such form as the Plan Administrator shall have
prescribed therefor. A withdrawal of shares shall have no effect on the
participating Employee's payroll deductions and shall not effect a termination
of his or her interest in the Plan. All federal or state transfer taxes, if
any, which may be due upon any withdrawal of shares from the Plan will be paid
by the participant. Upon the death of a participating Employee, the Plan
Administrator shall issue a certificate representing all whole shares (with the
balance, if any, for fractional shares to be remitted in cash at market value)
to such deceased participant's designated beneficiary, or if no such
beneficiary is designated, to his legal representative in accordance with the
applicable laws of descent and distribution.
9. Withdrawal.
(a) As provided in Paragraph 7(b), a participant may withdraw payroll
deductions credited to his or her account under any Offering at any time prior
to the applicable Offering Termination Date by giving written notice of
withdrawal to the Plan Administrator of the Company. All of the participant's
payroll deductions credited to his or her account will be paid to the
participant promptly after receipt of such notice of withdrawal and no further
payroll deductions will be made from his or her pay during such Offering. The
Company may, at its option, treat an attempt by an Employee to borrow on the
security of accumulated payroll deductions as an election, under Paragraph
7(b), to withdraw such deductions.
(b) A participant's withdrawal from an Offering will not have any effect
upon his or her eligibility to participate in any succeeding Offering or in any
similar plan which may hereafter be adopted by the Company; provided, however,
that any participant who withdraws from an Offering in accordance with
Paragraph 7(b) may not participate in another Offering for a period of at least
six months following such withdrawal.
(c) Upon termination of the participant's employment for any reason,
including retirement but excluding death or disability while in the employ of
the Company or a Subsidiary, the payroll deductions credited to his or her
account will be returned to the participant or, in the case of his or her death
subsequent to the termination of employment, to the person or persons entitled
thereto under Paragraph, 13.
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(d) Upon termination of the participant's employment because of disability
or death, the participant or his or her beneficiary (as defined in Paragraph
13) shall have the right to elect, by written notice given to the Plan
Administrator prior to the expiration of a period of 30 days commencing with
the date of the disability or death of the participant, either
(i) to withdraw all of the payroll deductions credited to the
participant's account under the Plan; or
(ii) to exercise the participant's Option for the purchase of Common
Stock on the Offering Termination Date next following the date of the
participant's disability or death for the purchase of the number of
shares of Common Stock which the accumulated payroll deductions in the
participant's account at the date of the participant's disability or
death will purchase at the applicable Option price.
In the event that no such written notice of election shall be duly
received by the office of the Plan Administrator, the participant or
beneficiary shall automatically be deemed to have elected to withdraw the
payroll deductions credited to the participant's account at the date of the
participant's disability or death and the same will be paid promptly to the
participant or said beneficiary.
10. Interest.
No interest will be paid or allowed on any money paid into the Plan or
credited to the account of any participant Employee.
11. Stock.
(a) The maximum number of shares of Common Stock which shall be made
available for sale under the Plan is 250,000 shares (subject to further
adjustment upon changes in capitalization of the Company as provided in
Paragraph 16). If the total number of shares for which Options are exercised
on any Offering Termination Date in accordance with Paragraph 7 exceeds the
number of shares of Common Stock which remain available for issue under the
Plan, the Company shall make a pro rata allocation of the shares available for
delivery and distribution in as nearly a uniform manner as shall be practicable
and as it shall determine to be equitable, and the balance of payroll
deductions credited to the account of each participant under the Plan shall be
returned to him or her as promptly as possible. The Company may purchase
shares on the open market in order to have shares available for purchase by
participants in each Offering.
(b) The participant will have no interest in Common Stock covered by his
or her Option until such Option has been exercised.
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<PAGE> 6
(c) Common Stock to be delivered to a participant under the Plan will be
registered in the name of the participant, or, if the participant so directs,
by written notice to the Company prior to the Offering Termination Date
applicable thereto, in the names of the participant and one such other person
as may be designated by the participant, as joint tenants with rights of
survivorship or as tenants by the entireties, to the extent permitted by
applicable law.
12. Administration.
(a) The Board of Directors shall appoint a committee (the "Committee") to
administer the Plan, which shall consist of no fewer than three members of the
Board of Directors. No member of the Committee shall be eligible to purchase
stock under the Plan.
(b) Subject to the express provisions of the Plan, the Committee shall
have plenary authority in its discretion to interpret and construe any and all
provisions of the Plan, to adopt rules and regulations for administering the
Plan, and to make all other determinations deemed necessary or advisable for
administering the Plan. The Committee's determination on the foregoing matters
shall be conclusive.
(c) The Board of Directors may from time to time appoint members of the
Committee in substitution for or in addition to members previously appointed
and may fill vacancies, however caused, in the Committee. The Committee may
select one of its members as its Chairman and shall hold its meetings at such
time and places as it shall deem advisable and may hold telephonic meetings. A
majority of its members shall constitute a quorum. All determinations of the
Committee shall be made by a majority of its members. The Committee may
correct any defect or omission or reconcile any inconsistency in the Plan, in
the manner and to the extent it shall deem desirable. Any decision or
determination reduced to writing and signed by a majority of the members of the
Committee shall be as fully effective as if it had been made by a majority vote
at a meeting duly called and held. The Committee may appoint a secretary and
shall make such rules and regulations for the conduct of its business as it
shall deem advisable.
13. Designation of Beneficiary.
A participant may file a written designation of a beneficiary who is to
receive any shares of Common Stock and/or cash in the event of the death of the
participant prior to the delivery of such shares or cash to the participant.
Such designation of beneficiary may be changed by the participant at any time
by written notice to the Plan Administrator. Within 30 days after the
participant's death, the beneficiary may, as provided in Paragraph 9(d), elect
to exercise the participant's Option when it becomes exercisable on the
Offering Termination Date of the then current Offering. Upon the death of a
participant and upon receipt by the Company of proof of the identity and
existence at the participant's death of a beneficiary validly designated by the
participant under the Plan, and notice of election of the beneficiary to
exercise the Option, the Company shall deliver such stock and/or cash to such
beneficiary. In the event of the death of a
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<PAGE> 7
participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such participant's death, the Company shall
deliver such stock and/or cash to the executor or administrator of the estate
of the participant, or if no such executor or administrator has been appointed
(to the knowledge of the Company) the Company, in its discretion, may deliver
such stock and/or cash to the spouse or to any one or more dependents of the
participant as the Company may designate. No beneficiary shall prior to the
death of the participant by whom he has been designated acquire any interest in
the stock or cash credited to the participant under the Plan.
14. Transferability.
Neither payroll deductions credited to a participant's account nor any
rights with regard to the exercise of an Option or to receive stock under the
Plan may be assigned, transferred, pledged, or otherwise disposed of in any way
by the participant otherwise than by will or the laws of descent and
distribution. Any such attempted assignment, transfer, pledge, or other
disposition shall be without effect, except that the Company may treat such act
as an election to withdraw funds in accordance with Paragraph 7(b).
15. Use of Funds.
All payroll deductions received or held by the Company under this Plan may
be used by the Company for any corporate purpose and the Company shall not be
obligated to segregate such payroll deductions, subject to the provisions of
the Plan.
16. Effect of Changes of Common Stock.
In the event of any changes of outstanding shares of the Common Stock by
reason of stock dividends, subdivisions, combinations and exchanges of shares,
recapitalizations or mergers in which the Company is the surviving corporation,
the aggregate number and class of shares available under this Plan and the
Option Exercise Price per share may be appropriately adjusted by the Board of
Directors of the Company, whose determination shall be conclusive. Any such
adjustments may provide for the elimination of any fractional shares which
would otherwise become subject to any Options.
17. Amendment or Termination.
The Board of Directors of the Company may at any time terminate or amend
the Plan. Except as hereinafter provided, no such termination can affect
Options previously granted, nor may an amendment make any change in any Option
theretofore granted which would adversely affect the rights of any participant
nor may an amendment be made without the approval of the stockholders of the
Company within twelve months of such amendment if such amendment would (a)
materially increase the benefits accruing to participants under the Plan, (b)
materially increase the number of shares which may be issued under the Plan,
or (c) materially modify the requirements as to eligibility for participation
under the Plan.
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18. Notices.
All notices or other communications by a participant to the Company under
or in connection with the Plan shall be deemed to have been duly given when
received by the Plan Administrator.
19. Merger or Consolidation.
If the Company shall at any time merge into or consolidate with another
corporation and the Company is the surviving entity, the holder of each Option
then outstanding will thereafter be entitled to receive at the next Offering
Termination Date upon the exercise of such Option for each share as to which
such Option shall be exercised the securities or property which a holder of one
share of the Common Stock was entitled to upon and at the time of such merger
or consolidation, and the Board of Directors of the Company shall take such
steps in connection with such merger or consolidation as the Board of Directors
shall deem necessary to assure that the provisions of Paragraph 16 shall
thereafter be applicable, as nearly as reasonably may be, in relation to the
said securities or property as to which such holder of such Option might
thereafter be entitled to receive thereunder. In the event of a merger or
consolidation in which the Company is not the surviving entity, or of a sale of
assets in which the Company is not the surviving entity, the Plan shall
terminate, and all payroll deductions credited to participants' accounts shall
be returned to them; provided, however, that the Board of Directors may, in the
event of such merger, consolidation or sale, accelerate the Offering
Termination Date of the Offering then in effect and permit participants to
purchase shares under the Plan at such accelerated Offering Termination Date.
20. Approval of Stockholders.
The Plan has been adopted by the Board of Directors of the Company, but is
subject to the approval of the stockholders of the Company within twelve months
of the date of adoption of the Plan by the Board of Directors. Notwithstanding
any other provision of the Plan, no Option shall be exercised unless and until
the stockholders of the Company approve the Plan.
21. Registration and Qualification of the Plan Under Applicable Securities
Laws.
No Option shall be exercised under the Plan until such time as the Company
has qualified or registered the shares which are subject to the Options under
the applicable federal securities laws to the extent required by such laws.
22. No Employment Rights. The Plan does not, directly or indirectly, create in
any employee or class of employees any right with respect to continuation of
employment by the Company, and it shall not be deemed to interfere in any way
with the Company's right to terminate, or otherwise modify, an employee's
employment at any time.
Adopted by the Board Directors on March 19, 1996.
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<PAGE> 1
EXHIBIT 5.1
July 3, 1996
HealthPlan Services Corporation
3501 Frontage Road
Tampa, Florida 33607
RE: REGISTRATION STATEMENT ON FORM S-8
HEALTHPLAN SERVICES CORPORATION 1996 EMPLOYEE STOCK PURCHASE PLAN
Gentlemen:
This opinion is given to you in connection with the filing by HealthPlan
Services Corporation, a Delaware Corporation (the "Company"), with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, of the Registration Statement on Form S-8 (the "Registration
Statement") with respect to 250,000 shares of the common stock, $.01 par value,
of the Company issuable pursuant to the HealthPlan Services Corporation 1996
Employee Stock Purchase Plan (the "Plan") (all shares of such stock issuable
pursuant to the Plan are referred to herein as the "Shares"). As counsel for
the Company, we have examined the relevant corporate documents incident to the
giving of this opinion.
Based on the foregoing, we are of the opinion that the Shares, when issued
and delivered in accordance with the provisions of the Plan and options issued
thereunder, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Fowler, White, Gillen, Boggs,
Villareal and Banker, P.A.
<PAGE> 1
EXHIBIT 23.2
COOPERS COOPERS & LYBRAND L.L.P.
&LYBRAND
a professional services firm
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
HealthPlan Services Corporation on Form S-8 related to the HealthPlan Services
Corporation 1996 Employee Stock Purchase Plan of our report dated December 2,
1994, on our audits of the financial statements of HealthPlan Services Division
(formerly Plan Services Division, a wholly-owned division of The Dun &
Bradstreet Corporation), as of September 30, 1994 and for the nine-month period
ended September 30, 1994 and the year ended December 31, 1993 which report is
included in the Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
Tampa, Florida
June 28, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 16, 1996, which appears on
page F-1 of Form 10-K for the year ended December 31, 1995 of HealthPlan
Services Corporation.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Tampa, Florida
June 28, 1996
