EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CAREINSITE, INC.
CAREINSITE, INC., a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is CAREINSITE, INC. The date of
filing of its original Certificate of Incorporation with the Secretary of
State was November 24, 1998.
2. This Amended and Restated Certificate of Incorporation restates
and integrates and further amends the Certificate of Incorporation of this
corporation by deleting Article I and Articles IV through X and by
substituting in lieu thereof new provisions for each of Article I and
Articles IV through XIV as set forth below.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended hereby to read as herein set
forth in full:
ARTICLE I
Name
The name of the corporation is CareInsite, Inc. (the "Corporation").
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ARTICLE II
Registered Office and Registered Agent
The address of the registered office of the Corporation in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
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ARTICLE III
Corporate Purpose
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "General Corporation Law").
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ARTICLE IV
Capital Stock
The Corporation shall have authority, to be exercised by the Board of
Directors, to issue a total of 330,000,000 shares consisting of 300,000,000
shares of common voting stock of the par value of $0.01 per share (the "Common
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Stock") and 30,000,000 shares of preferred stock of the par value of $0.01 per
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share (the "Preferred Stock"). Shares of the Preferred Stock shall be
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designated as the Board of Directors may determine and may be issued in series
by the Board of Directors as hereinafter provided in paragraph (c) below. The
relative rights and preferences of the shares of capital stock of the
Corporation shall be as follows:
(a) Each holder of Common Stock shall at every meeting of stockholders of
the Corporation be entitled to one vote in person or by proxy for each share of
Common Stock held by such holder and each holder of Preferred Stock with voting
rights shall be entitled to such voting rights as specified pursuant to
paragraph (c)(vii) below.
(b) Subject to the rights, if any, of the holders of the Preferred Stock,
or any series thereof, the holders of the Common Stock are entitled to the
entire voting power, all dividends declared and paid by the Corporation and all
assets of the Corporation in the event of any liquidation, dissolution, or
winding up of the Corporation.
(c) The Preferred Stock may be divided into and issued from time to time in
one or more series. All shares of the Preferred Stock shall be of equal rank
and shall be identical, except with respect to the particulars that may be fixed
by the Board of Directors as hereinafter provided pursuant to authority that is
hereby expressly vested in the Board of Directors; provided, however, that each
share of a given series of the Preferred Stock shall be identical in all
respects with the other shares of such series. Before any shares of the
Preferred Stock of any particular series shall be issued, the Board of Directors
shall fix and determine, in the manner provided by law, the following
particulars with respect to the share of such series:
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(i) the distinctive designation of such series and the number of
shares of Preferred Stock that shall constitute such series, which number
may be increased (except where otherwise provided by the Board of Directors
in creating such series) or decreased (but not below the number of shares
of such series then issued) from time to time by the Board of Directors by
resolution:
(ii) the dividend or rate of divided payable with respect to shares of
Preferred Stock of such series, the time of payment of any dividend,
whether dividends shall be cumulative and, if so, the conditions under
which and the date from which dividends shall be accumulated;
(iii) the redemption provisions applicable to the shares of Preferred
Stock of such series, if any, and if applicable, the time or times when,
the price or prices at which, and the other terms and conditions under
which the shares of Preferred Stock of such series shall be redeemable;
(iv) the amount payable on shares of Preferred Stock of such series in
the event of any voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Corporation, which shall not be deemed to
include the merger or consolidation of the Corporation or a sale, lease or
conveyance of all or part of the assets of the Corporation;
(v) the purchase, retirement or sinking fund provisions, if any, for
the redemption or purchase of shares of Preferred Stock of such series;
(vi) the rights, if any, of the holders of shares of Preferred Stock
of such series to convert such shares into or exchange such shares for
shares of the Common Stock or shares of any other series of the Preferred
Stock and the terms and conditions of such conversion or exchange;
(vii) the extent of voting rights of the shares of Preferred Stock of
such series or the absence thereof; and
(viii) such other terms, limitations, rights and preferences, if any,
of such series as the Board of Directors may lawfully fix under the laws of
the State of Delaware as in effect at the time of creation of such series.
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ARTICLE V
Number and Term of Directors
The number of directors which shall constitute the whole Board of
Directors of the Corporation shall be determined in the By-Laws as provided
therein. The directors of the Corporation shall be elected by the stockholders
entitled to vote thereon at each annual meeting of stockholders and shall hold
office until the next annual meeting of stockholders and until their respective
successors shall have been elected and qualified, subject, however, to prior
death, resignation, retirement, disqualification or removal from office.
ARTICLE VI
Vacancies
The power to fill vacancies on the Board of Directors (whether by
reason of resignation, removal with or without cause, the creation of new
directorships or otherwise) shall be vested in the Board of Directors, except as
provided below, and vacancies may be filled by a majority of the directors then
in office, although less than a quorum, unless all directorships are vacant, in
which case the stockholders shall fill the then existing vacancies. Any
director chosen by the Board of Directors to fill a vacancy shall hold office
only until the next election of directors by stockholders and until that
director's successor shall be elected and shall have qualified. In the case of
removal of a director by the affirmative vote of the stockholders pursuant to
Article IX of this Certificate of Incorporation, the vacancy created by such
removal shall be filled by the affirmative vote of the holders of record of a
majority of the outstanding shares of stock entitled to vote thereon. Should
the stockholders entitled to vote thereon fail to elect a director to fill a
vacancy caused by the removal of a director by the affirmative vote of the
stockholders pursuant to Article IX of this Certificate of Incorporation, such
vacancy shall be filled by the Board of Directors as provided herein.
ARTICLE VII
Special Meetings
Special meetings of the stockholders of the Corporation for any
purpose may be called at any time by the Board of Directors, or by a committee
of the Board of Directors which has been duly designated by the Board of
Directors and whose powers and authority, as provided in a resolution of the
Board of Directors or in the By-Laws of the Corporation, include the power to
call such meetings or, if the By-laws so provide, by the Chairman of the Board
of Directors of the Corporation or by the Chief Executive Officer of the
Corporation.
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ARTICLE VIII
By-Laws
The original By-Laws of the Corporation shall be adopted by the
Incorporator. Thereafter, in furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
repeal, alter, amend and rescind the By-Laws of the Corporation.
ARTICLE IX
Election and Removal of Directors
The election of directors need not be by written ballot unless
required by the By-Laws of the Corporation. Any director may be removed, either
for or without cause, at any time, by the affirmative vote of the holders of
record of a majority of the outstanding shares of stock entitled to vote, and
the vacancy in the Board of Directors caused by any such removal shall be filled
as provided in Article VI herein; provided, that where the holders of any class
or series of Preferred Stock are entitled to elect one or more directors the
provisions of the Certificate of Designation of such class or series of
Preferred Stock shall apply, in respect of removal, with or without cause, of a
director or directors so elected.
ARTICLE XI
Indemnification of Directors, Officers and Others
(a) The Corporation shall indemnify, to the fullest extent permitted
by the General Corporation Law of the State of Delaware and as provided in the
By-Laws of the Corporation, any and all persons whom it shall have the power to
indemnify from and against any and all expenses, liabilities or other matters.
(b) No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty by such director as a director; provided, however, that this Article XI
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shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of Title 8 of the General
Corporation Law, or (iv) for any
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transaction from which the director derived an improper personal benefit. If the
General Corporation Law is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of directors of the Corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law, as so amended. No amendment to
or repeal of this Article XI shall apply to or have any effect on the liability
or alleged liability of any director of the Corporation for or with respect to
any acts or omissions of such director occurring at the time of or prior to such
amendment or repeal.
ARTICLE XII
Reorganization
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as 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 this Corporation, as the case may be,
and also on this Corporation.
ARTICLE XIII
Corporate Opportunities
To the fullest extent permitted by law, so long as the Corporation is
controlled by, or under common control with, Synetic, Inc., a Delaware
corporation ("Synetic," which term shall include any successor to Synetic), (i)
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directors or officers of the Corporation who are also directors or officers of
Synetic shall be obligated to present to the corporation a potential acquisition
which may be made by either the Corporation or Synetic of a business Engaged (as
defined below) in the Company's Business (as defined below) and (ii) directors
or officers of the Corporation who are also directors or officers of Synetic
shall have no obligation to present to the Corporation a potential acquisition
which may be made by either the Corporation or Synetic of a business which is
not Engaged in the Company's Business to the Corporation. For purposes of this
Article XIII: (A) the term "Synetic" shall also be deemed to include each
subsidiary of Synetic and each other entity in which Synetic owns (directly or
indirectly) more then 50% of the outstanding voting capital stock or voting
power; (B) an entity shall be deemed to be "Engaged" in any business from which
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it derived more than 10% of its net revenues for the fiscal year most recently
completed prior to such measurement (provided, however, that the net revenues of
any businesses acquired during such fiscal year or since the end of such fiscal
year shall be taken into account, on a pro forma basis, in calculating net
revenues for such fiscal year); and (C) the "Company's Business" shall mean the
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provision of electronic commerce prescription, laboratory and
managed care communication services that connect physicians with payers
(including without limitation, indemnity insurance companies, HMOs, PBMs and
employers), pharmacies and laboratories for purposes of this Article XIII
(provided, however, that in no event shall the business transacted using such
communication services or the businesses of the persons and entities connected
by such communication services be deemed to be part of the "Company's
Business").
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ARTICLE XIV
Amendment
The Corporation reserves the right to amend, alter, change or repeal
any provision of this Certificate of Incorporation, in the manner now or
hereafter prescribed by law, and all rights conferred on stockholders in this
Certificate of Incorporation are subject to this reservation.
4. This amendment to the Certificate of Incorporation was duly adopted in
accordance with the provisions of Section 242 and Section 245 of the
General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, said CAREINSITE, INC. has caused this Certificate to be
signed by David C. Amburgey, its Vice President-General Counsel, on this th
day of June, 1999.
CAREINSITE, INC.
By
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David C. Amburgey
Senior Vice President-General Counsel