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Exhibit 3.2
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
QUALITY CARE SOLUTIONS, INC.
Pursuant to Section 78.403 of the Nevada Revised Statutes, QUALITY CARE
SOLUTIONS, INC. (the "Corporation") does hereby certify and acknowledge that set
forth below are the true and correct Articles of Incorporation of the
Corporation as amended and restated to date:
1. Name: The name of the Corporation is:
QUALITY CARE SOLUTIONS, INC.
2. Resident Agent: The name of the person designated as the
resident agent of the Corporation and the street address of the resident agent
where process may be served upon the Corporation, which is also the mailing
address of the resident agent, is:
Capitol Document Services, Inc.
400 West King Street, Suite 302
Carson City, Nevada 89703
3. Purpose: The purpose for which the Corporation is organized is
to engage in any lawful act or activity for which corporations may be organized
under Chapter 78 of the Nevada Revised Statutes.
4. Authorized Capital: The total number of shares of capital
stock which the Corporation shall have authority to issue is one hundred million
(100,000,000) shares of common stock with a par value of one-tenth of one cent
($.001) per share and ten million (10,000,000) shares of preferred stock with a
par value of one cent ($.01) per share, undesignated as to class, powers,
designations, preferences, limitations, restrictions or relative rights. The
board of directors of the Corporation is authorized to fix and determine any
class or series of preferred stock and the number of shares of each class or
series and to prescribe the powers, designations, preferences, limitations,
restrictions and relative rights of any class or series established, all by
resolution of the board of directors and in accordance with Section 78.1955 of
the Nevada Revised Statutes, as the same may be amended and supplemented.
5. Board of Directors: The governing board of this Corporation
shall be known as directors, and the number of directors may from time to time
be increased or decreased in such manner as shall be provided in the Bylaws of
this Corporation, provided, however, that the board of directors of the
Corporation shall consist of not less than six and not more than nine members.
The Board of Directors shall be divided into three classes as nearly equal in
number as possible. Except as otherwise provided in the Bylaws with respect to
the implementation of this Article 5,
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Directors shall be elected to hold office for a term of three years with the
term of office of one Class expiring each year.
6. Fair Price:
A. Vote Required for Business Combinations:
i) In addition to any affirmative vote required by
law, the Articles of Incorporation, any agreement with any
national securities exchange or otherwise, any "Business
Combination" (as hereinafter defined) involving the
Corporation shall be subject to approval in the manner set
forth in this Article 6.
ii) Except as otherwise expressly provided in
paragraph B of this Article 6, no Business Combination shall
be consummated or effected unless such Business Combination
shall have been approved by the affirmative vote of the
holders of not less than eighty-five percent (85%) of the
total voting power of all outstanding shares of voting stock
of the Corporation, voting as a single class. Such vote shall
be required notwithstanding the fact that no vote for such
transaction may be required by law or that approval by some
lesser percentage of stockholders may be specified by or
pursuant to law, the Bylaws, any agreement with any national
securities exchange, or otherwise. Such vote shall be required
in addition to any affirmative vote of the holders of any
particular class or series of the capital stock of the
Corporation required by or pursuant to law, these Articles of
Incorporation or otherwise.
B. Situations in Which 85% Approval is Not Required For
Business Combination
The 85% approval required in paragraph A of this
Article 6 shall not be required and the provisions of Article 7
relating to the majority vote required for shareholder approval, if
applicable, shall apply to any Business Combination, if any of the
following conditions are satisfied:
i) The Business Combination does not involve the
receipt of any cash or other consideration by the stockholders
of the Corporation, in their capacity as such stockholders.
ii) The Business Combination shall have been
expressly approved by a majority of the "Continuing Directors"
(as hereinafter defined) either in advance of or subsequent to
the acquisition of outstanding shares of capital stock of the
Corporation that caused the "Interested Person" (as
hereinafter defined) involved to become an Interested Person.
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iii) All of the following five conditions have been
met:
a) The aggregate amount of the cash and the
"Fair Market Value" (as hereinafter defined) as of
the "Consummation Date" (as hereinafter defined) of
all property, securities or other consideration to be
received per share of capital stock of the
Corporation incident to the consummation of such
Business Combination by any holder of such stock,
other than the Interested Person involved in such
Business Combination, is not less than the highest of
the following (the requirements of this paragraph
B(iii)(a) to be met with respect to all outstanding
shares of all classes of the capital stock of the
Corporation, whether or not the Interested Person has
previously acquired shares of each particular class
of such stock):
(1) The "Highest Per Share Price"
(as hereinafter defined) or the "Highest
Equivalent Price" (as hereinafter defined)
paid by such Interested Person in acquiring
any holdings of the Corporation's capital
stock, plus an amount equivalent to interest
compounded annually from the date of such
purchase through the Consummation Date at
the prime rate of interest as announced from
time to time by Bank of America, N.A. (or
such other bank as may be selected by a
majority of the Continuing Directors), less
the aggregate amount of any cash dividends
paid and the Fair Market Value as of the
date paid of any dividends paid other than
in cash on each share of capital stock of
the class in question from the date of such
purchase through the Consummation Date in an
amount up to but not exceeding the amount
equivalent to interest as so calculated;
(2) The highest preferential amount
per share to which the holders of shares of
any class or series of preferred stock are
entitled in the event of dissolution or
liquidation of the Corporation; or
(3) The Fair Market Value of such
shares as of the "Announcement Date" (as
hereinafter defined).
b) The consideration to be received by
holders of outstanding capital stock shall be paid in
cash or in the same form as was previously paid in
order to acquire such shares of such class of capital
stock as are beneficially owned by the Interested
Person. If the Interested Person beneficially owns
shares of any class of capital stock of the
Corporation which were acquired with varying forms of
consideration, the form of consideration to be
received by holders of such class of capital stock
shall
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be either cash or the form used to acquire the
largest number of shares of such class of capital
stock beneficially owned by the Interested Person.
c) After such Interested Person has become
an Interested Person and prior to the consummation of
the Business Combination: (A) except as approved by a
majority of the Continuing Directors, there shall
have been no failure to declare and pay at the
regular date therefor any full quarterly dividends
(whether or not cumulative) on any outstanding
preferred stock; (B) there shall have been (I) no
reduction in the annual rate of dividends paid on the
Common Stock (except as necessary to reflect any
subdivision of the Common Stock), except as approved
by a majority of the Continuing Directors, and (II)
such increase in such annual rate of dividends as is
necessary to prevent any such reduction in the event
of any reclassification (including any reverse stock
split), recapitalization, reorganization or any
similar transaction which has the effect of reducing
the number of outstanding shares of the Common Stock,
unless the failure so to increase such annual rate is
approved by a majority of the Continuing Directors;
and (C) such Interested Person shall not have become
the beneficial owner of any additional shares of
voting capital stock of the Corporation except as
part of the transaction in which it became an
Interested Person.
d) After such Interested Person has become
an Interested Person, such Interested Person shall
not have received the benefit, directly or indirectly
(except proportionately solely in such Interested
Person's capacity as a shareholder of the
Corporation), of any loans, advances, guarantees,
pledges or other financial assistance or any tax
credits or other tax advantages provided by the
Corporation, whether in anticipation of or in
connection with such Business Combination or
otherwise.
e) A proxy or information statement
describing the proposed Business Combination and
complying with the requirements of the "Exchange Act"
(as hereinafter defined) and the rules and
regulations thereunder (or any subsequent provisions
replacing the Exchange Act or such rules and
regulations), shall have been mailed to all
stockholders of the Corporation at least 30 days
prior to the Consummation Date. Such statement shall
contain at the front thereof, in a prominent place, a
statement by the Continuing Directors of their
position on the advisability (or inadvisability) of
the proposed Business Combination. Such proxy or
information statement shall be required for purposes
of this paragraph 2(b)(v) whether or not it is
required to be mailed pursuant to the provisions of
the Exchange Act (or any subsequent provisions).
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C. Definitions
For the purposes of this Article 6:
i) The term "Business Combination" shall mean (i) any
merger, consolidation or exchange of shares of capital stock
of the Corporation or any of its subsidiaries (as hereinafter
defined) with or into an Interested Person, in each case
irrespective of which corporation or company is to be the
surviving entity; (ii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition to or with an Interested
Person (in a single transaction or a series of related
transactions) other than in the ordinary course of business,
of all or a substantial part of the assets of the Corporation
(including without limitation any securities or assets of a
subsidiary of the Corporation) or all or a substantial part of
the assets of any of its subsidiaries; (iii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition to
or with the Corporation or to or with any of its subsidiaries
(in a single transaction or a series of related transactions)
other than in the ordinary course of business, of all or a
substantial part of the assets of an Interested Person; (iv)
the issuance or transfer by the Corporation or any of its
subsidiaries of any securities of the Corporation or any of
its subsidiaries to an Interested Person (other than an
issuance or transfer of securities which is effected on a pro
rata basis to all stockholders of the Corporation); (v) the
acquisition by the Corporation or any of its subsidiaries from
an Interested Person of any securities issued by an Interested
Person (other than an issuance or transfer of securities which
is effected on a pro rata basis to all stockholders of the
Interested Person); (vi) any recapitalization or
reclassification of shares of any class of capital stock of
the Corporation or any merger or consolidation of the
Corporation with any of its subsidiaries which would have the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
capital stock of the Corporation (or any securities
convertible into any class of such capital stock) owned by any
Interested Person; (vii) any merger or consolidation of the
Corporation with any of its subsidiaries after which the
provisions of this Article 6 and of Article 5 of the Articles
of Incorporation shall not appear in the Articles of
Incorporation of the surviving entity; (viii) a plan of
partial or complete liquidation or dissolution of the
Corporation or spin-off or sale of a substantial part of the
assets of the Corporation or any of its subsidiaries proposed
by or on behalf of an Interested Person; and (ix) any
agreement, contract, plan, proposal or other arrangement
providing for any of the foregoing.
ii) The term "Continuing Director" shall mean any
Director of the Corporation who is not an "Affiliate",
"Associate" or nominee of or member of a "Group" with the
Interested Person (as such terms are hereinafter defined) and
who either (i) held the office of Director prior to the date
on which the Interested Person became an Interested Person, or
(ii) is designated as a Continuing Director by a majority of
the then Continuing Directors.
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iii) The term "Interested Person" shall mean any
individual, corporation, partnership or other person or entity
which, at any time during the period commencing two (2) years
prior to the Announcement Date through and including the
Consummation Date, is or was a "Beneficial Owner" (as defined
in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act as in effect on February 4, 1986) of shares of
capital stock of the Corporation which, when combined with the
shares of capital stock beneficially owned by any "Affiliates"
or "Associates" (as defined in Rule 12b-2 of the Exchange Act
as in effect on February 4, 1986) of such Interested Person or
by other members of a "Group" (as defined in Section 13(d)(3)
of the Exchange Act as in effect on February 4, 1986) of which
such Interested Person is a member, collectively amount to ten
percent (10%) or more of the total voting power of all
outstanding shares of voting stock of the Corporation. The
term Interested Person shall also mean any Affiliate or
Associate of any such Interested Person and any other member
of a Group of which such Interested Person is a member, and
shall also mean any person or entity which, upon consummation
of a Business Combination, would be such an Affiliate,
Associate or Group member. The term Interested Person shall
not include the Corporation, any subsidiary of the
Corporation, any employee benefit plan of the Corporation or
of a subsidiary of the Corporation, or any trustee of or
fiduciary with respect to any such plan acting in such
capacity.
iv) The term "Consummation Date" shall mean the date
on which the Business Combination in question is consummated
or effected.
v) The term "Fair Market Value" shall mean (i) in the
case of stock, the highest closing sale price during the
30-day period immediately preceding the date in question of a
share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or if such
stock is not listed on such Exchange, on the principal United
States securities exchange registered under the Exchange Act
on which such stock is listed, or, if such stock is not listed
on any such exchange, the highest closing bid quotation with
respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any
system then in use, or if no such quotations are available,
the fair market value on the date in question of a share of
such stock as determined by a majority of the Continuing
Directors, and (ii) in the case of property other than cash or
stock, the fair market value of such property on the date in
question as determined by a majority of the Continuing
Directors.
vi) The terms "Highest Per Share Price" and "Highest
Equivalent Price" shall mean the following. The Highest Per
Share Price shall mean the highest price that can be
determined to have been paid during the relevant time period
by the Interested Person involved for any share or shares of
the class or
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series of capital stock in question. If the Interested Person
has not purchased any shares of such class or series of
capital stock of the Corporation during the relevant time
period, the Highest Equivalent Price shall mean with respect
to each class and series of capital stock of the Corporation,
the amount determined by a majority of the Continuing
Directors, on whatever basis they believe to be appropriate,
to be the highest per share price equivalent of the highest
price that can be determined to have been paid during the
relevant time by the Interested Person involved for any share
or shares of any other class or series of capital stock of the
Corporation. In determining the Highest Per Share Price and
Highest Equivalent Price, all purchases by such Interested
Person or any Affiliate, Associate or Group member shall be
taken into account regardless whether the shares were
purchased before or after such Interested Person became an
Interested Person. The Highest Per Share Price and the Highest
Equivalent Price shall include any brokerage commissions,
transfer taxes and soliciting dealers' fees paid by such
Interested Person or any such Affiliate, Associate or Group
member with respect to the shares of capital stock of the
Corporation, and shall be appropriately adjusted to take into
account any subsequent recapitalization, stock split, stock
dividend or similar distribution. In the event any Business
Combination involving an Interested Person shall be proposed,
the Continuing Directors shall determine the Highest
Equivalent Price for each class and series of the capital
stock of the Corporation of which there are shares issued and
outstanding.
vii) The term "Announcement Date" shall mean the
earlier of the date on which a Business Combination is first
publicly proposed or announced or the Consummation Date of
such Business Combination.
viii) The term "Exchange Act" shall mean the
Securities Exchange Act of l934, as amended.
ix) Any corporation of which the Corporation owns,
directly or indirectly, fifty percent (50%) or more of its
voting stock shall be deemed to be a "subsidiary" of the
Corporation.
x) For the purposes of paragraph B(iii)(a) of this
Article 6, the term "other consideration to be received" shall
include, without limitation, Common Stock or other capital
stock of the Corporation retained by stockholders of the
Corporation (other than Interested Persons or other parties to
such Business Combination) in the event of a Business
Combination in which the Corporation is the surviving entity.
xi) Whether or not any proposed sale, lease,
exchange, mortgage, pledge, transfer or other disposition of
part of the assets of any entity involves a "substantial part"
of the assets of such entity shall be conclusively determined
by a majority of the Continuing Directors; provided that
assets involved in any single transaction or series of related
transactions having an aggregate Fair Market Value
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of more than fifteen percent (15%) of the total consolidated
assets of an entity and the other members of the consolidated
group, if any, of which it is a part as at the end of such
entity's last full fiscal year prior to such determination
shall always be deemed to constitute a "substantial part".
xii) An Interested Person shall be deemed to have
acquired a share of the capital stock of the Corporation at
the time when such Interested Person became the Beneficial
Owner thereof.
xiii) A majority of the then Continuing Directors
shall have the right and power to make, in good faith, any
determinations required under this Article 6, including
without limitation (i) whether a transaction is a Business
Combination, (ii) whether a person is an Interested Person, or
(iii) whether the conditions set out in paragraph B(iii) of
this Article 6 have been satisfied with respect to any
Business Combination.
D. Fiduciary Obligations
Nothing contained in this Article 6 shall be
construed to relieve any Interested Person from any fiduciary
obligation imposed by law.
E. Deliberation by Directors
The Directors of the Corporation, when evaluating any
proposal or offer which would involve a Business Combination or the
merger or consolidation of the Corporation or any of its subsidiaries
with another corporation, the sale of all or substantially all of the
assets of the Corporation or any of its subsidiaries, a tender offer or
exchange offer for any capital security of the Corporation or any of
its subsidiaries or any similar transaction shall give due
consideration to all factors they may consider relevant. Such factors
may include, without limitation, (a) the financial and managerial
resources and future prospects of the other party(s), the legal,
economic, environmental and social effects of the proposed transaction
on the Corporation's and its subsidiaries' employees, customers,
suppliers and other affected persons and entities and on the
communities and geographic areas in which the Corporation and its
subsidiaries operate or are located, and the effect on any of the
businesses and properties of the Corporation and its subsidiaries, and
(b) the adequacy, both in amount and form, of the consideration offered
in relation not only to the current market price of the Corporation's
outstanding securities, but also the current value of the Corporation
in a freely negotiated transaction and the Continuing Directors'
estimate of the Corporation's future value (including the unrealized
value of its properties, assets and prospects) as an independent going
concern.
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F. Amendment
The provisions of this Article 6 shall not be
amended, altered, changed or repealed nor may any provision
inconsistent with any of such provisions be added to these Articles of
Incorporation unless approved by the affirmative vote of the holders of
not less than eighty-five percent (85%) of the total voting power of
all outstanding shares of voting stock of the Corporation, voting as a
single class; provided, however, that this Article 6 or any provision
hereof may be amended, altered, changed or repealed and any such new
provision may be added upon the affirmative vote of the holders of not
less than a majority of the total voting power of all outstanding
shares of the voting stock of the Corporation, voting as a single
class, if such amendment, change, alteration, repeal or addition shall
first have been approved and recommended by a majority of the
Continuing Directors. The vote provided for in this paragraph F of this
Article 6 shall be required in addition to any affirmative vote of the
holders of any particular class or series of the capital stock of the
Corporation required by or pursuant to law, these Articles of
Incorporation or otherwise.
7. Stockholders Consent. All action by holders of the Corporation's
outstanding voting securities shall be taken by a majority of the stockholders
present in person or by proxy at an annual or special meeting of the
stockholders following notice as provided by law or in the Bylaws. Stockholders
of the Corporation shall not have the power to act by means of written consent.
8. Supermajority Voting. Notwithstanding the fact that a lesser
percentage may be specified by law, or by Article 7 hereof, the affirmative vote
of the holders of two-thirds (2/3) of each class of stock of the Corporation
entitled to vote shall be required to amend or repeal, or adopt any provisions
inconsistent with, Article 9 and 10 and/or this Article 8 of these Articles of
Incorporation; provided, however, that the provisions of this Article 8 shall
not be applicable to any amendment to these Articles of Incorporation, and such
amendment shall only require such affirmative vote as required by law, if such
amendment shall have been approved by a majority of Disinterested Directors. As
used herein, a "Disinterested Director" means any Director of the Corporation
who was a Director as of January 3, 2000, or was thereafter elected by the
stockholders or appointed by the Board of Directors of the Corporation and is
not associated with or an affiliate of an Interested Stockholder (as that term
is defined in this Article 8) directly or indirectly involved in the transaction
or proposal before the Board, or a person designated, before his or her initial
election or appointment as a Director, as a Disinterested Director by a majority
of Disinterested Directors then on the Board.
9. Limitation of Liability. The personal liability of the directors and
officers of the corporation is hereby eliminated to the fullest extent permitted
by the provisions of the Nevada Revised Statutes and particularly Section
78.037.1 thereof, as the same may be amended and supplemented.
10. Indemnification. The corporation shall, to the fullest extent
permitted by the provisions of Section 78.751 of the Nevada Revised Statutes, as
the same may be amended and
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supplemented, indemnify any and all persons whom it shall have power to
indemnify under such section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by such section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified persons may be entitled under any Bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in any other
capacity while holding such office, and shall continue as to persons who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such persons. The
Corporation shall pay or otherwise advance all expenses of officers and
directors incurred in defending a civil or criminal action, suit or proceeding
as such expenses are incurred and in advance of the final disposition of the
action, suit or proceeding, provided that the indemnified officer or director
undertakes to repay the amounts so advanced if a court of competent jurisdiction
ultimately determines that such officer or director is not entitled to be
indemnified by the Corporation. Nothing herein shall be construed to affect any
rights to advancement of expenses to which personnel other than officers or
directors of the Corporation may be entitled under any contract or otherwise by
law.
11. Amendment and Modification. Subject to Article 6 and Article 8
hereof, from time to time any of the provisions of these Articles of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Nevada at the time in force may be added
or inserted in the manner and at the time prescribed by such laws, and all
rights at any time conferred upon the stockholders of the Corporation by these
Articles of Incorporation are granted subject to the provisions of this Article.
IN WITNESS WHEREOF, the undersigned officers of QUALITY CARE SOLUTIONS,
INC. have executed these Restated Articles of Incorporation as of the ____ day
of January, 2000.
DATED this ______ day of January, 2000.
__________________________
Name: Gregory S. Anderson
Title: President
__________________________
Name: Sherwood Chapman
Title: Secretary
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ACKNOWLEDGMENT
STATE OF ARIZONA )
)ss.
County of Maricopa )
On this ______ day of January, 2000, before me the undersigned Notary
Public personally appeared Gregory S. Anderson, known personally to me to be the
President of Quality Care Solutions, Inc., and acknowledged to me the foregoing
instrument was executed for the purposes therein contained, on behalf of the
Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_____________________
Notary Public
My commission expires:
________________________
ACKNOWLEDGMENT
STATE OF ARIZONA )
)ss.
County of Maricopa )
On this ______ day of January, 2000, before me the undersigned Notary
Public personally appeared Sherwood Chapman, known personally to me to be the
Secretary of Quality Care Solutions, Inc., and acknowledged to me the foregoing
instrument was executed for the purposes therein contained, on behalf of the
Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_____________________
Notary Public
My commission expires:
________________________
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