Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
WELLCARE GROUP, INC.
WellCare Group, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware, hereby certifies as follows:
1. The corporation was incorporated on February 5, 2004, under the name
WellCare Group, Inc., pursuant to the General Corporation Law of the State of
Delaware.
2. Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, this Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Certificate of
Incorporation of the corporation.
3. The text of the Certificate of Incorporation is hereby amended and
restated in its entirety as follows:
"ARTICLE I
NAME
The name of the Corporation is WellCare Health Plans, Inc. (the
"Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Delaware is 2711 Centerville Road, Suite 400, City of Wilmington, County of New
Castle. The name of its registered agent at such address is Corporation Service
Company.
ARTICLE III
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 "DGCL").
ARTICLE IV
CAPITAL STOCK
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is One Hundred Twenty Million
(120,000,000) shares, of which:
One Hundred Million (100,000,000) shares, par value $0.01 per share,
shall be shares of common stock (the "Common Stock"); and
Twenty Million (20,000,000) shares, par value $0.01 per share, shall
be shares of preferred stock (the "Preferred Stock").
(A) Common Stock. Except as (1) otherwise required by law or (2) expressly
provided in this Amended and Restated Certificate of Incorporation (as amended
from time to time), each share of Common Stock shall have the same powers,
rights and privileges and shall rank equally, share ratably and be identical in
all respects as to all matters.
(1) Dividends. Subject to the rights of the holders of Preferred
Stock, and to the other provisions of this Amended and Restated Certificate of
Incorporation (as amended from time to time), holders of Common Stock shall be
entitled to receive equally, on a per share basis, such dividends and other
distributions in cash, securities or other property of the Corporation as may be
declared thereon by the Board of Directors from time to time out of assets or
funds of the Corporation legally available therefor.
(2) Voting Rights. At every annual or special meeting of
stockholders of the Corporation, each holder of Common Stock shall be entitled
to cast one (1) vote for each share of Common Stock standing in such holder's
name on the stock transfer records of the Corporation.
(3) Liquidation Rights. In the event of any liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the Corporation's debts
and amounts payable upon shares of Preferred Stock entitled to a preference, if
any, over holders of Common Stock upon such dissolution, liquidation or winding
up, the remaining net assets of the Corporation shall be distributed among
holders of shares of Common Stock equally on a per share basis. A merger or
consolidation of the Corporation with or into any other corporation or other
entity, or a sale or conveyance of all or any part of the assets of the
Corporation (which shall not in fact result in the liquidation of the
Corporation and the distribution of assets to its stockholders) shall not be
deemed to be a voluntary or involuntary liquidation or dissolution or winding up
of the Corporation within the meaning of this Paragraph (A)(3).
(B) Preferred Stock. The Board of Directors is authorized, subject to
limitations prescribed by law, to provide by resolution or resolutions for the
issuance of shares of Preferred Stock in one or more series, to establish the
number of shares to be included in each such series, and to fix the voting
powers (if any), designations, powers, preferences, and relative, participating,
optional or other rights, if any, of the shares of each such series, and any
qualifications, limitations or restrictions thereof. Irrespective of the
provisions of Section 242(b)(2) of the DGCL, the number of authorized shares of
Preferred Stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of a
majority in voting power of the stock of the Corporation entitled to vote,
without the separate vote of the holders of the Preferred Stock as a class.
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ARTICLE V
BOARD OF DIRECTORS
(A) Management. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. The Board of
Directors may exercise all such authority and powers of the Corporation and do
all such lawful acts and things as are not by statute or this Amended and
Restated Certificate of Incorporation directed or required to be exercised or
done by the stockholders.
(B) Number of Directors. The number of directors of the Corporation shall
be fixed from time to time in the manner provided in the Amended and Restated
Bylaws.
(C) Newly-Created Directorships and Vacancies. Subject to the rights of
the holders of any series of Preferred Stock then outstanding, newly created
directorships resulting from any increase in the number of directors or any
vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or any other cause may be
filled by the Board of Directors, provided that a quorum is then in office and
present, or by a majority of the directors then in office, if less than a quorum
is then in office, or by the sole remaining director. Directors elected to fill
a newly created directorship or other vacancies shall hold office until such
director's successor has been duly elected and qualified or until his or her
earlier death, resignation or removal as hereinafter provided.
(D) Removal of Directors. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, any director may be removed from
office at any time for cause, at a meeting called for that purpose, and only by
the affirmative vote of the holders of at least 66-2/3% of the voting power of
all shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
(E) Rights of Holders of Preferred Stock. Notwithstanding the foregoing
provisions of this Article V, whenever the holders of one or more series of
Preferred Stock issued by the Corporation shall have the right, voting
separately or together by series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorship shall be governed by the rights of such
Preferred Stock as set forth in the certificate of designations governing such
series.
(F) Written Ballot Not Required. Elections of directors need not be by
written ballot unless the Amended and Restated Bylaws of the Corporation shall
otherwise provide.
(G) Bylaws. The Board of Directors is expressly authorized to adopt, amend
or repeal the bylaws of the Corporation. Any bylaws made by the directors under
the powers conferred hereby may be amended or repealed by the directors or by
the stockholders. Notwithstanding the foregoing and anything contained in this
Amended and Restated Certificate of Incorporation to the contrary, the bylaws of
the Corporation shall not be amended or repealed by the stockholders, and no
provision inconsistent therewith shall be adopted by the stockholders, without
the affirmative vote of the holders of 66-2/3% of the voting power of all shares
of the Corporation entitled to vote generally in the election of directors,
voting together as a single class.
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(H) Classification of Directors. At each annual meeting of stockholders,
directors of the Corporation shall be elected to hold office until the
expiration of the term for which they are elected, and until their successors
have been duly elected and qualified; except that if any such election shall be
not so held, such election shall take place at a stockholders' meeting called
and held in accordance with the DGCL. The directors of the Corporation shall be
divided into three classes as nearly equal in size as is practicable, hereby
designated Class I, Class II and Class III. The term of office of the initial
Class I directors shall expire at the next succeeding annual meeting of
stockholders, the term of office of the initial Class II directors shall expire
at the second succeeding annual meeting of stockholders and the term of office
of the initial Class III directors shall expire at the third succeeding annual
meeting of the stockholders. For the purposes hereof, the initial Class I, Class
II and Class III directors shall be those directors elected by the sole
stockholder of the Corporation in connection with the adoption of this Amended
and Restated Certificate of Incorporation. At each annual meeting after the
first annual meeting of stockholders, directors to replace those of a Class
whose terms expire at such annual meeting shall be elected to hold office until
the third succeeding annual meeting and until their respective successors shall
have been duly elected and qualified. If the number of directors is hereafter
changed, any newly created directorships or decrease in directorships shall be
so apportioned among the classes as to make all classes as nearly equal in
number as practicable.
ARTICLE VI
LIMITATION OF LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that the foregoing 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 the DGCL, or (iv) for any transaction from which
the director derived an improper personal benefit. If the DGCL is hereafter
amended to permit further elimination or limitation of 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 DGCL as so amended.
Any repeal or modification of this Article VI by the stockholders of the
Corporation or otherwise shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
ARTICLE VII
INDEMNIFICATION
Each person who was or is made a party or is threatened to be made a party
to or is involved (including, without limitation, as a witness) in any actual or
threatened action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact that he is
or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director or officer of another corporation or of
a partnership, limited liability company, joint venture, trust or other entity,
including service with respect to an employee benefit plan (hereinafter an
"Indemnitee"), whether the basis of such
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proceeding is alleged action in an official capacity as a director or officer or
in any other capacity while so serving, shall be indemnified and held harmless
by the Corporation to the full extent authorized by the DGCL, 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), or by other applicable law as then in effect, against all
costs, expenses, liabilities and losses (including attorneys' fees and related
costs, judgments, fines, excise taxes or penalties under the Employee Retirement
Income Security Act of 1974, as amended from time to time ("ERISA"), penalties
and amounts paid or to be paid in settlement) actually and reasonably incurred
or suffered by such Indemnitee in connection therewith, and such indemnification
shall continue as to a person who has ceased to be a director, officer, partner,
member or trustee and shall inure to the benefit of his or her heirs, executors
and administrators. Each person who is or was serving as a director or officer
of a subsidiary of the Corporation shall be deemed to be serving, or have
served, at the request of the Corporation.
(A) Procedure. Any indemnification (but not advancement of expenses) under
this Article VII (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in the DGCL, as
the same exists or hereafter may 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). Such determination shall be made with
respect to a person who is a director or officer at the time of such
determination (a) by a majority vote of the directors who were not parties to
such proceeding (the "Disinterested Directors"), even though less than a quorum,
(b) by a committee of Disinterested Directors designated by a majority vote of
Disinterested Directors, even though less than a quorum, (c) if there are no
such Disinterested Directors, or if such Disinterested Directors so direct, by
independent legal counsel in a written opinion, or (d) by the stockholders.
(B) Advances for Expenses. Expenses (including attorneys' fees, costs and
charges) incurred by a director or officer of the Corporation in defending a
proceeding shall be paid by the Corporation in advance of the final disposition
of such proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay all amounts so advanced in the event that it shall
ultimately be determined that such director or officer is not entitled to be
indemnified by the Corporation as authorized in this Article VII. The majority
of the Disinterested Directors may, in the manner set forth above, and upon
approval of such director or officer of the Corporation, authorize the
Corporation's counsel to represent such person, in any proceeding, whether or
not the Corporation is a party to such proceeding.
(C) Procedure for Indemnification. Any indemnification or advance of
expenses (including attorney's fees, costs and charges) under this Article VII
shall be made promptly, and in any event within 60 days upon the written request
of the director or officer (and, in the case of advance of expenses, receipt of
a written undertaking by or on behalf of Indemnitee to repay such amount if it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
therefor pursuant to the terms of this Article VII). The right to
indemnification or advances as granted by this Article VII shall be enforceable
by the director or officer in any court of
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competent jurisdiction, if the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within 60 days. Such person's costs
and expenses incurred in connection with successfully establishing his/her right
to indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for the advance of expenses (including
attorney's fees, costs and charges) under this Article VII where the required
undertaking, if any, has been received by the Corporation) that the claimant has
not met the standard of conduct set forth in the DGCL, as the same exists or
hereafter may 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), but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel and 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/she has met the
applicable standard of conduct set forth in the DGCL, as the same exists or
hereafter may 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), nor the fact that there has been an actual determination by
the Corporation (including its Board of Directors, its independent legal counsel
and 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.
(D) Other Rights; Continuation of Right to Indemnification. The
indemnification and advancement of expenses provided by this Article VII shall
not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law (common
or statutory), bylaw, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his/her official capacity and as to action in
another capacity while holding office or while employed by or acting as agent
for the Corporation, and shall continue as to a person who has ceased to be a
director or officer, and shall inure to the benefit of the estate, heirs,
executors and administers of such person. All rights to indemnification under
this Article VII shall be deemed to be a contract between the Corporation and
each director or officer of the Corporation who serves or served in such
capacity at any time while this Article VII is in effect. Any repeal or
modification of this Article VII or any repeal or modification of relevant
provisions of the DGCL or any other applicable laws shall not in any way
diminish any rights to indemnification of such director or officer or the
obligations of the Corporation arising hereunder with respect to any proceeding
arising out of, or relating to, any actions, transactions or facts occurring
prior to the final adoption of such modification or repeal. For the purposes of
this Article VII, references to "the Corporation" include all constituent
corporations absorbed in a consolidation or merger as well as the resulting or
surviving corporation, so that any person who, following such consolidation or
merger, is a director or officer of such a constituent corporation or is serving
at the request of such constituent corporation as a director or officer of
another corporation, partnership, joint venture, trust or other entity shall
stand in the same position under the provisions of this Article VII, with
respect to the resulting or surviving corporation during the period following
such consolidation or
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merger, as he would if he/she had served the resulting or surviving corporation
in the same capacity.
(E) Insurance. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other entity, against any liability asserted against him
and incurred by him or on his behalf in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of this Article VII; provided,
however, that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the Board of Directors.
(F) Savings Clause. If this Article VII or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each person entitled to indemnification
under the first paragraph of this Article VII as to all costs, expenses,
liabilities and losses (including attorneys' fees and related costs, judgments,
fines, ERISA excise taxes and penalties, penalties and amounts paid or to be
paid in settlement) actually and reasonably incurred or suffered by such person
and for which indemnification is available to such person pursuant to this
Article VII to the full extent permitted by any applicable portion of this
Article VII that shall not have been invalidated and to the full extent
permitted by applicable law.
ARTICLE VIII
ACTION BY WRITTEN CONSENT/SPECIAL MEETINGS OF STOCKHOLDERS
For so long as either the Corporation's Common Stock is registered under
Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or the Corporation is required to file periodic reports with the
Securities and Exchange Commission pursuant to Section 15(d) of the Exchange Act
with respect to the Corporation's Common Stock: (i) the stockholders of the
Corporation may not take any action by written consent in lieu of a meeting, and
must take any actions at a duly called annual or special meeting of stockholders
and the power of stockholders to consent in writing without a meeting is
specifically denied and (ii) special meetings of stockholders of the Corporation
may be called only by either the Board of Directors pursuant to a resolution
adopted by the affirmative vote of the majority of the total number of directors
then in office or by the chief executive officer of the Corporation.
ARTICLE IX
AMENDMENT
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
Notwithstanding any other provision of this Amended and Restated Certificate of
Incorporation or the Amended and Restated Bylaws of the Corporation, and
notwithstanding the fact that a lesser percentage or separate class vote may be
specified by law,
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this Amended and Restated Certificate of Incorporation, the Amended and Restated
Bylaws of the Corporation or otherwise, but in addition to any affirmative vote
of the holders of any particular class or series of the capital stock required
by law, this Amended and Restated Certificate of Incorporation, the Amended and
Restated Bylaws of the Corporation or otherwise, the affirmative vote of the
holders of at least 66-2/3% of the voting power of all shares of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to adopt any provision inconsistent with, to
amend or repeal any provision of, or to adopt a bylaw inconsistent with,
Articles V, VI, VII, VIII or IX of this Amended and Restated Certificate of
Incorporation."
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4. The foregoing amendment and restatement of the Certificate of
Incorporation has been duly approved by the Board of Directors of the
corporation in accordance with the provisions of Sections 144, 242 and 245 of
the General Corporation Law of the State of Delaware.
5. The foregoing amendment and restatement of the Certificate of
Incorporation has been duly approved by the written consent of the sole
stockholder in accordance with Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the corporation has causes this Amended and Restated
Certificate of Incorporation to be signed by its Senior Vice President and
Secretary on this 6th day of July, 2004.
WELLCARE GROUP, INC.
By /s/ Thaddeus Bereday
___________________________________
Thaddeus Bereday
Senior Vice President and Secretary
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