HEALTHAXIS INC.
Amended and Restated Articles of Incorporation
Article 1. Name. The name of the corporation is HealthAxis Inc. (the
"Corporation").
Article 2. Registered Office. The location and address of the
registered office of the Corporation in this Commonwealth is:
2500 DeKalb Pike
East Norriton, PA 19401
Article 3. Purpose. The Corporation is incorporated under the
Pennsylvania Business Corporation Law of 1988, as it may be amended from time to
time, for the following purposes:
To have unlimited power to engage in or do any lawful act
concerning any or all lawful businesses for which corporations
may be incorporated under the Pennsylvania Business
Corporation Law of 1988, as amended from time to time.
Article 4. Term. The term for which the Corporation is to exist is
perpetual.
Article 5. Authorized Capital Stock. The Corporation shall have the
authority to issue an aggregate of 2,000,000,000 shares of capital stock which
shall be divided into 1,900,000,000 shares of Common Stock, par value $0.10 per
share ("Common Stock"), as more fully described in Section 5(a) below; and
100,000,000 shares of Preferred Stock, par value $1.00 per share ("Preferred
Stock"), as more fully described in Section 5(b) below.
(a) Common Stock. Each holder of record of Common Stock shall
have the right to one vote for each share of Common Stock registered in their
name on the books of the Corporation except as the right to exercise such vote
may be limited by the provisions of these Amended and Restated Articles of
Incorporation or any class or series of Preferred Stock established hereunder.
The holders of Common Stock shall be entitled to such dividends as may be
declared by the Board of Directors from time to time, provided that required
dividends, if any, on the Preferred Stock have been paid or provided for. In the
event of the liquidation, dissolution, or winding up, whether voluntary or
involuntary of the Corporation, the assets and funds of the Corporation
available for distribution to shareholders, and remaining after the payment to
holders of Preferred Stock of the amounts (if any) to which they are entitled,
shall be divided and paid to the holders of the Common Stock according to their
respective shares.
(b) Preferred Stock. The shares of Preferred Stock may be
divided and issued from time to time in one or more series as may be determined
by the Board of Directors of the Corporation, each such series to be distinctly
designated and to consist of the number of shares determined by the Board of
Directors. The Board of Directors of the Corporation is hereby expressly vested
with authority to adopt resolutions to issue the shares, to fix the number of
shares, to change the number of shares constituting any class or series, and to
provide for or change the voting powers, designations, preferences and relative,
participating, optional or other special rights, qualifications, limitations or
restrictions, if any, of Preferred Stock, and each class or series thereof, in
each case without approval of the shareholders. The authority of the Board of
Directors with respect to each class or series of Preferred Stock shall include,
without limiting the generality of the foregoing, the determination of the
following:
(1) The number of shares constituting that class or
series and the distinctive designation of that class or series;
(2) The dividend rate on the shares of that class or
series, whether dividends shall be cumulative, and, if so, from which
date or dates;
(3) Whether that class or series shall have voting
rights, in addition to any voting rights provided by law, and, if so,
the terms of such voting rights;
(4) Whether that class or series shall have
conversion privileges (including rights to convert such class or series
into the capital stock of the Corporation or any other entity) and, if
so, the terms and conditions of such conversion, including provision
for adjustment of the conversion rate in such events as the Board of
Directors shall determine;
(5) Whether or not shares of that class or series
shall be redeemable and whether or not the Corporation or the holder
(or both) may exercise the redemption right, including the terms of
redemption (including any sinking fund provisions), the date or dates
upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different
conditions;
(6) The rights of the shares of that class or series
in the event of voluntary or involuntary liquidation, dissolution or
winding up of the Corporation; and
(7) Any other relative rights, preferences and
limitations of that class or series as may be permitted or required by
law.
The number of shares, voting powers, designations, preferences and relative,
participating, optional or other special rights, qualifications, limitations or
restrictions, if any, of any class or series of Preferred Stock which may be
designated by the Board of Directors may differ from those of any and all other
class or series at any time outstanding.
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(c) Increase in Authorized Preferred Stock. Except as
otherwise provided by law or in a resolution or resolutions establishing any
particular series of Preferred Stock, the aggregate number of authorized shares
of Preferred Stock may be increased by an amendment to these Amended and
Restated Articles of Incorporation approved solely by the holders of Common
Stock and of any series of Preferred Stock which is entitled pursuant to its
voting rights designated by the Board of Directors to vote thereon, if at all,
voting together as a class.
(d) Authorization of Board to Set Terms in Respect of
Corporation's Securities. To the fullest extent permitted by applicable law, the
Board of Directors may set forth in any security, contract, warrant or other
instrument evidencing any shares, option or warrant rights, or securities having
conversion or option or warrant rights, such terms as it deems appropriate
including, without limiting the generality of such authority, conditions that
preclude or limit any Person (as defined in Article 17) or any transferee(s)
(either direct or remote) of such Person from (i) owning or offering to acquire
a specified number or percentage of the outstanding common shares, other shares,
option or warrant rights, securities having conversion or option or warrant
rights, or obligations of the Corporation or (ii) from exercising, converting,
transferring or receiving the shares, option or warrant rights, securities
having conversion or option or warrant rights, or obligations, and which
invalidate any rights or options or warrants beneficially owned by such Person
or any transferee(s) (either direct or remote) of such Person. This subsection
(d) of Article 5 is intended to validate, to the extent permitted by applicable
law, the adoption by the Board of Directors of shareholder rights plans or
so-called "poison pills," including both call and put "poison pills." Nothing
contained herein shall be deemed to limit or restrict the powers of the Board of
Directors as provided in the Pennsylvania Business Corporation Law of 1988, as
amended, or otherwise in Pennsylvania law.
Article 6. Cumulative Voting. The shareholders of the Corporation shall
not be entitled to cumulate their votes in the election of directors.
Article 7. Number of Directors. The Board of Directors shall consist of
not less than three (3) nor more than twelve (12) directors. The number of
directors to be elected, subject to the foregoing limits, shall be determined
from time to time by the Board of Directors.
Article 8. Special Meetings of Shareholders. The shareholders of the
Corporation shall not be entitled to call a special meeting of the shareholders
of the Corporation.
Article 9. Actions By Consent of Shareholders. The provisions of
Section 1766(b) of the Pennsylvania Business Corporation Law of 1988, as
amended, shall be applicable to any action by the shareholders which has been
previously approved by the Board of Directors, but shall not otherwise be
applicable to the Corporation.
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Article 10. Non-Applicability of Certain Provisions of the Pennsylvania
Business Corporation Law. The provisions contained in Subchapters E (Control
Transactions), G (Control- Share Acquisitions), H (Disgorgement by Certain
Controlling Shareholders Following Attempts to Acquire Control), I (Severance
Compensation for Employees Terminated Following Certain Control- Share
Acquisitions) and J (Business Combination Transactions - Labor Contracts) of
Chapter 25 of the Pennsylvania Business Corporation Law, as it may be amended,
shall not be applicable to the Corporation. The provisions of Section 2538 of
the Pennsylvania Business Corporation Law, as it may be amended, shall not be
applicable to the Corporation, unless at least a majority of the incumbent
directors (as defined herein) on the Board of Directors shall determine that
Section 2538, subject to such exceptions, limitations and modifications as such
incumbent directors may provide, shall be applicable. The term "incumbent
director", as used herein, shall mean any director of the Corporation on the
date hereof and any other director whose election or appointment by the Board of
Directors of the Corporation, or whose nomination for election by the
shareholders of the Corporation, was approved by a vote of at least a majority
of the directors then in office who either were directors on the date hereof or
whose election or appointment or nomination for election was previously so
approved.
Article 11. Power of Board to Oppose Certain Transactions.
(a) The Board of Directors, if it deems it advisable, may
oppose a tender offer or other offer for the Corporation's securities, whether
the offer is in cash or in securities of a corporation or otherwise. In
considering whether to oppose an offer, the Board of Directors may, but it is
not legally obligated to, consider any pertinent issues. By way of illustration,
but not of limitation, the Board of Directors may, but shall not be legally
obligated to, consider any and all of the following:
(1) Whether the offer price is acceptable based on the
historical and present operating results or financial conditions of the
Corporation;
(2) Whether a more favorable price could be obtained for the
Corporation's securities in the future;
(3) The effects of any proposed transaction upon any or all
groups affected by such action, including among others, shareholders,
employees, suppliers, customers and creditors of the Corporation and
its subsidiaries and on the communities served by the Corporation and
its subsidiaries;
(4) The reputation and business practices of the offeror and
its management and affiliates as they would affect the employees,
suppliers and customers of the Corporation and its subsidiaries and the
future value of the Corporation's stock;
(5) The value of the securities, if any, which the offeror is
offering in exchange for the Corporation's securities, based on an
analysis of the worth of the Corporation as compared to the corporation
or other entity whose securities are being offered; and
(6) Any antitrust or other legal and regulatory issues that
are raised by the offer.
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If the Board of Directors determines that an offer should be rejected, it may
take any lawful action to accomplish its purpose including, but not limited to,
any and all of the following: advising shareholders not to accept the offer;
commencing litigation against the offeror; filing complaints with all
governmental and regulatory authorities; acquiring the Corporation's securities
and/or the offeror's securities; selling or acquiring any assets; selling or
otherwise issuing authorized but unissued securities or treasury stock or
granting options with respect thereto; selling or otherwise issuing any debt
securities (including debt securities convertible into equity securities) or
options therefor; acquiring a company to create an antitrust or other regulatory
problem for the offeror; and obtaining a more favorable offer from another
individual or entity.
(b) If the Board of Directors determines to sell the
Corporation or any subsidiary to a third party, or to merge or consolidate the
Corporation or any subsidiary with a third party, the Board of Directors shall
not be legally obligated to create an auction and may negotiate with only one
acquirer.
Article 12. Removal of Directors. The entire Board of Directors, or a
class of the Board, or any individual director may be removed from office only
for cause (as defined herein) and only by the affirmative vote of shareholders
entitled to cast at least seventy percent (70%) of the votes entitled to be cast
by all shareholders at any annual or regular election of directors or of such
class of directors. The foregoing shall not be deemed to limit the right of the
Board of Directors, without shareholder approval, to declare vacant the office
of any director for any proper cause. The term "cause," as used herein, shall
refer only to one of the following events: (1) conviction of the director of a
felony; (2) declaration by order of court that the director is of unsound mind;
or (3) gross abuse of trust which is proved by clear and convincing evidence to
have been committed in bad faith.
Article 13. Personal Liability of Directors. A director of this
Corporation shall not be personally liable for monetary damages as such for any
action taken, or any failure to take any action, unless:
(a) The director has breached or failed to perform the duties
of his office under Section 1713 of the Pennsylvania Business
Corporation Law of 1988, as amended; and
(b) The breach or failure to perform constitutes self-dealing,
willful misconduct or recklessness.
This Article 13 shall not apply to a director's liability for monetary
damages to the extent prohibited by Section 1713(b) of the Pennsylvania Business
Corporation Law of 1988, as amended.
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Article 14. Amendments to Articles of Incorporation. The shareholders
of the Corporation shall not be entitled to propose an amendment to the Articles
of Incorporation of the Corporation. Any amendment to, or repeal of, any
provision of the Articles of Incorporation of the Corporation which has not
previously received the approval of at least a majority of the incumbent
directors (as defined in Article 10) on the Board of Directors shall require for
adoption the affirmative vote of the shareholders entitled to cast at least
sixty-five percent (65%) of the votes entitled to be cast by all shareholders at
any duly convened annual or special meeting of the shareholders, in addition to
any other approval which is required by law, the Articles of Incorporation of
the Corporation, the Bylaws of the Corporation, or otherwise.
Article 15. Amendments to Bylaws. The Bylaws of the Corporation may be
amended or repealed without shareholder approval by a majority of the incumbent
directors (as defined in Article 10), subject to any other approval which is
required by law, the Articles of Incorporation, the Bylaws of the Corporation,
or otherwise. Any amendment to, or repeal of, any provision of the Bylaws of the
Corporation which has not previously received the approval of at least a
majority of the incumbent directors (as defined in Article 10) on the Board of
Directors shall require for adoption the affirmative vote of the shareholders
entitled to cast at least sixty-five percent (65%) of the votes entitled to be
cast by all shareholders at any duly convened annual or special meeting of the
shareholders, in addition to any other approval which is required by law, the
Articles of Incorporation of the Corporation, the Bylaws of the Corporation, or
otherwise.
Article 16. Severability. In the event that all, some or any part of
any provision contained in these Amended and Restated Articles of Incorporation
shall be found by any court of competent jurisdiction to be illegal, invalid or
unenforceable (as against public policy or otherwise), such provision shall be
enforced to the fullest extent permitted by law and shall be construed as if it
had been narrowed only to the extent necessary so as not to be invalid, illegal
or unenforceable; the validity, legality and enforceability of the remaining
provisions of these Amended and Restated Articles of Incorporation shall
continue in full force and effect and shall not be affected or impaired by such
illegality, invalidity or unenforceability of any other provision (or any part
or parts thereof) of the Amended and Restated Articles of Incorporation.
Article 17. Definitions. As used herein, the term "Person" shall mean
any individual, partnership, corporation, group or other entity (other than the
Corporation or any Subsidiary, as defined below, for itself or as a fiduciary
for customers, or a trustee holding Voting Securities for the benefit of the
employees of the Corporation or its Subsidiaries or any one of them, pursuant to
one or more employee benefit plans or arrangements sponsored by the Corporation
or any Subsidiary).
As used herein, the term "Subsidiary" shall mean any corporation of
which the Corporation owns fifty percent (50%) or more of any class of
securities entitled to vote in the election of directors, either directly or
indirectly, through one or more other corporations.
Article 18. Headings. Article headings and the ordering of paragraphs
area for convenience of reference only and shall not be construed to alter,
amend or otherwise affect the meaning, intent or effect of the provisions of
these Amended and Restated Articles of Incorporation.
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