EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Agreement"), dated as of October
26, 1998, is by and between Physicians Health Services of New Jersey, Inc., a
New Jersey corporation ("PHS-NJ"), and First Option Health Plan of New Jersey,
Inc., a New Jersey corporation ("FOHP-NJ" or the "Surviving Corporation").
RECITALS
WHEREAS, PHS-NJ is a wholly-owned subsidiary of Physicians Health
Services, Inc., a Delaware corporation ("PHS "), and FOHP-NJ is a wholly-owned
subsidiary of FOHP, Inc., a New Jersey corporation ("FOHP");
WHEREAS, Foundation Health Systems, Inc., a Delaware corporation
("FHS"), owns 100% of the issued and outstanding stock of PHS and approximately
98% of the issued and outstanding stock of FOHP;
WHEREAS, each of PHS-NJ and FOHP-NJ operate as health maintenance
organizations in the State of New Jersey;
WHEREAS, the Boards of Directors of PHS-NJ and FOHP-NJ have determined
that it is in the best interests of their respective shareholders and FHS to
merge PHS-NJ with and into FOHP-NJ (the "Merger") pursuant to the terms, and
subject to the conditions, of this Agreement;
WHEREAS, upon the terms and subject to the conditions set forth in this
Agreement, (i) PHS-NJ will be merged with and into FOHP-NJ in accordance with
the applicable provisions of the New Jersey Business Corporation Act ("New
Jersey Corporate Law"), (ii) each share of PHS-NJ common stock, par value $.0l
per share ("PHS-NJ Common Stock"), issued and outstanding immediately prior to
the "Effective Time" (as such term is defined in Section 1.2 of this Agreement),
will be cancelled, (iii) PHS will receive $100.00 for its shares of PHS-NJ
Common Stock, and (iv) the name of the Surviving Corporation will change from
"First Option Health Plan of New Jersey, Inc." to "Physicians Health Services of
New Jersey, Inc.;" and
WHEREAS, PHS-NJ and FOHP-NJ desire to make certain representations,
warranties, covenants and agreements in connection with the Merger.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, PHS-NJ
and FOHP-NJ hereby agree as follows:
ARTICLE I
THE MERGER
1.1. The Merger. At the Effective Time and upon the terms and subject
to the conditions hereof and in accordance with the provisions of New Jersey
Corporate Law, PHS-NJ will be merged with and into FOHP-NJ, whereupon the
separate corporate existence of PHS-NJ shall cease and FOHP-NJ shall continue as
and be the Surviving Corporation in the Merger. PHS-NJ and FOHP-NJ are sometimes
hereinafter referred to individually as a "Constituent Corporation" and
collectively as the "Constituent Corporations."
1.2. Effective Time of Merger. Subject to the terms and conditions of
this Agreement, and as promptly as practicable after satisfaction of all of the
conditions to each party's obligation to consummate the Merger contained in
Article V of this Agreement, or, to the extent permitted hereunder, waiver
thereof, a duly executed copy of this Agreement and a certificate of merger (the
"Certificate of Merger") in such form as required by, and executed in accordance
with, the relevant provisions of New Jersey Corporate Law, shall be filed with
the New Jersey Department of Treasury, Division of Revenue (the "State
Department"). If the Certificate of Merger is filed before January 1, 1999, it
shall provide that the Merger will be effective on January 1, 1999. If the
Certificate of Merger is filed after January 1, 1999, the Merger shall be
effective at such time as the Certificate of Merger is filed with the State
Department or such other time as is stated therein. The date on which the Merger
is effective shall be the "Effective Time." This Agreement is intended by the
Constituent Corporations to constitute the plan of merger contemplated by
Section 14A:10-1 of New Jersey Corporate Law.
1.3. Effects of the Merger.
(a) At the Effective Time, the separate corporate existence of PHS-NJ
shall cease and PHS-NJ shall be merged with and into FOHP-NJ which, as the
Surviving Corporation, shall survive the Merger and continue its separate
corporate existence under the laws of the State of New Jersey. The Surviving
Corporation shall succeed to all the properties and assets of the Constituent
Corporations and to all debts, causes of action and other interests due or
belonging to the Constituent Corporations and shall be subject to, and
responsible for, all the debts, obligations, liabilities and duties of the
Constituent Corporations as provided in Section 14A:10-6 of New Jersey Corporate
Law. To the extent permitted by law, the Surviving Corporation shall possess all
the rights, powers and franchises, of a public as well as of a private nature,
and shall be subject to all the restrictions, disabilities and duties of each of
the Constituent Corporations. All rights, privileges, powers and franchises of
each of the Constituent Corporations and all property, real, personal and mixed,
and all debts due to each of the Constituent Corporations on whatever account,
and all other things in action belonging to each of the Constituent
Corporations, shall be vested in the Surviving Corporation. All property,
rights, privileges, powers, franchises and all choses in action and every other
interest shall thereafter be the property of the Surviving Corporation as they
were of the Constituent Corporations. The title to any real estate, whether by
deed or otherwise, and any other property, whether real, personal or mixed,
vested in any of the Constituent Corporations, shall not revert or be in any way
impaired by reason of the Merger. Any devise, bequest, gift or grant contained
in any will or in any instrument, made before or after the Merger, to or for the
benefit of any of the Constituent
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Corporations, shall inure to the benefit of the Surviving Corporation. Insofar
as may be necessary to preserve any of the assets of the Constituent
Corporations, the existence of each Constituent Corporation shall be deemed to
continue in and through the Surviving Corporation. Any claim, action or
proceeding, civil or criminal, pending by or against any Constituent
Corporation, may be prosecuted as if the Merger had not taken place, and the
Surviving Corporation may be substituted in place of any of the Constituent
Corporations in connection with such claim, action or proceeding. Any judgment
rendered against any of the Constituent Corporations may be enforced against the
Surviving Corporation. Neither the rights of creditors nor any liens upon the
property of any of the Constituent Corporations shall be impaired by the Merger.
(b) If, at any time after the Effective Time, the Surviving Corporation
shall determine or be advised that any deeds, bills of sale, assignments,
assurances or any other actions or things are necessary or desirable to vest,
perfect or confirm of record or otherwise in the Surviving Corporation its
right, title or interest in, to or under any of the rights, properties or assets
of the Constituent Corporations acquired or to be acquired by the Surviving
Corporation as a result of or in connection with the Merger, or otherwise to
carry out the purpose and intent of this Agreement, the officers and directors
of the Surviving Corporation shall be authorized to execute and deliver, in the
name and on behalf of any of the Constituent Corporations, all such deeds, bills
of sale, assignments, assumption agreements and assurances and to take and do,
in the name and on behalf of each of the Constituent Corporations or otherwise,
all such other actions and things as may be necessary or desirable to vest,
perfect or confirm any and all right, title and interest in, to and under such
rights, properties or assets of the Surviving Corporation or otherwise to carry
out the purpose and intent of this Agreement.
1.4. Certificate of Incorporation and By-laws.
(a) The Certificate of Incorporation of FOHP-NJ, as in effect
immediately prior to the Effective Time, shall be amended and restated to change
the name of FOHP-NJ to "Physicians Health Services of New Jersey, Inc." and to
effect certain other changes thereto, and, as so amended and restated, the
Certificate of Incorporation of FOHP-NJ shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter changed or amended
as provided therein or under applicable law. Attached hereto as Exhibit A is a
copy of FOHP-NJ's Certificate of Incorporation, as amended and restated in
accordance herewith, which will be filed with the Certificate of Merger in order
to effect the amendments thereto.
(b) The By-laws of FOHP-NJ, as in effect immediately prior to the
Effective Time, shall be amended and restated as of the Effective Time (which
amended and restated By-laws are attached hereto as Exhibit B) and, as so
amended and restated, the By-laws of FOHP-NJ shall be the By-laws of the
Surviving Corporation until altered, amended or repealed as provided therein or
under applicable law.
1.5. Board of Directors. The directors of FOHP-NJ at the Effective Time
(as set forth on Exhibit C attached hereto) shall, from and after the Effective
Time, be the directors of the Surviving Corporation until their successors have
been duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's
Certificate of Incorporation and/or By-laws.
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1.6. Officers. The officers of FOHP-NJ at the Effective Time (as set
forth on Exhibit D attached hereto) shall, from and after the Effective Time, be
the officers of the Surviving Corporation until their successors have been duly
elected or appointed and qualified or until their earlier death, resignation or
removal in accordance with the Surviving Corporation's Certificate of
Incorporation and/or By-laws.
ARTICLE II
CONSIDERATION FOR THE MERGER
At the Effective Time, by virtue of the Merger and without any action
on the part of PHS-NJ or FOHP-NJ or the holders of the shares of the capital
stock of the Constituent Corporations, the following shall occur:
(i) PHS-NJ Common Stock. All shares of PHS-NJ Common Stock issued and
outstanding immediately prior to the Effective Time (all of which are currently
owned and held by PHS), shall be cancelled, and PHS will be paid $100.00
therefor.
(ii) FOHP-NJ Common Stock. At the Effective Time, each share of FOHP-NJ
common stock, par value $.01 per share ("Surviving Corporation Common Stock"),
issued and outstanding immediately prior to the Effective Time, shall remain
issued and outstanding. Upon the consummation of the Merger, FOHP shall be the
sole shareholder of the Surviving Corporation and shall own and hold all of the
issued and outstanding shares of Surviving Corporation Common Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Constituent Corporations makes the following
representations and warranties: (i) it is a duly organized and lawful existing
corporation in the State of New Jersey, (ii) it has filed all federal, state and
other governmental tax returns which are required to be filed, and has paid, or
has made adequate provision for the payment of, all taxes which have or may
become due, (iii) no claims or additional assessments have been made against it
by federal, state or other governmental bodies for any taxes, franchise fees or
other assessments, (iv) no judicial or administrative proceedings are pending or
threatened against it which will have a material adverse effect on its assets or
businesses, and (v) it has good and marketable title to all of its property and
assets except as otherwise disclosed to the other party hereto.
ARTICLE IV
COVENANTS
From and after the date of this Agreement through the Effective Time of
the Merger, neither PHS-NJ nor FOHP-NJ will, except with the prior written
consent of FOHP and PHS, (i) incur any obligation or liability, absolute or
contingent, except liabilities and obligations incurred in the ordinary course
of business, (ii) discharge or satisfy any lien or encumbrance or pay any
liability or obligation, absolute or contingent, other than current liabilities
shown on its latest
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balance sheet, or incurred since the date of said balance sheet in the ordinary
course of business, (iii) mortgage, pledge, create a security interest in, or
subject to lien or other encumbrance any of its assets except in the ordinary
course of business, (iv) sell, assign or transfer any of its assets or cancel
any debts or claims except in the ordinary course of business, (v) waive any
right of substantial value, or (vi) enter into any transaction other than in the
ordinary course of business.
ARTICLE V
CONDITIONS OF MERGER
The obligation of PHS-NJ and FOHP-NJ to consummate and effect the
Merger contemplated by this Agreement shall be subject to fulfillment at or
prior to the Effective Time of the following conditions:
5.1. Shareholder Approval. This Agreement must be approved and adopted
by the sole shareholder of PHS-NJ and the sole shareholder of FOHP-NJ.
5.2. Illegality or Legal Constraint. No statute, rule, regulation,
executive order, decree, injunction or restraining order shall have been
enacted, promulgated or enforced or otherwise made applicable (and not repealed
or superseded) by any court of competent jurisdiction, administrative agency or
commission or other governmental authority or instrumentality (the "Governmental
Entities"), which prohibits the consummation of the transactions contemplated by
this Agreement.
5.3. Governmental Approvals. The parties hereto shall have made the
requisite filings with all Governmental Entities as shall be required pursuant
to applicable laws, rules and regulations, and such Governmental Entities
(including, but not limited to, the New Jersey Department of Banking and
Insurance and the New Jersey Department of Health and Senior Services), to the
extent required by applicable law, shall have approved the transactions
contemplated by this Agreement.
ARTICLE VI
TERMINATION AND AMENDMENT
6.1. Termination. At any time before the Effective Time, and whether
before or after approval of this Agreement by PHS, the sole shareholder of
PHS-NJ, and FOHP, the sole shareholder of FOHP-NJ, this Agreement may be
terminated and the Merger abandoned, or the consummation of the transactions
contemplated by the Merger may be delayed, by the Board of Directors of FOHP-NJ
or the Board of Directors of PHS-NJ for any reason, including, without
limitation, non-satisfaction of any condition to the consummation of the Merger.
6.2. Effect of Termination. Upon the termination of this Agreement, it
shall forthwith become null and void and neither party hereto shall have any
liability or further obligation to the other party to this Agreement.
6.3. Amendment. The Board of Directors of FOHP-NJ, together with the
Board of Directors of PHS-NJ, may amend, modify and supplement this Agreement,
to the extent
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permitted by New Jersey Corporate Law and pursuant to an instrument in writing,
at any time prior to the consummation of the Merger, whether before or after the
approval of this Agreement by the shareholders of FOHP-NJ and PHS-NJ.
ARTICLE VII
GENERAL AND MISCELLANEOUS PROVISIONS
7.1. Captions. The Article, Section and Paragraph captions herein are
inserted for convenience of reference only, do not constitute a part hereof, and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
7.2. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.3. Applicable Law. This Agreement and the issues concerning the
validity of this Agreement, the construction of its terms and the interpretation
and enforcement of the rights and duties of the parties shall be governed by,
and construed in accordance with, the laws of the State of New Jersey.
7.4. Entire Agreement. This Agreement, including the attachments
referred to herein, constitutes the entire agreement with respect to the Merger,
and supersedes all other prior agreements and understandings, both written and
oral, among the parties, or any of them, with respect to the Merger, and except
as otherwise expressly provided herein, is not intended to confer upon any other
person any rights or remedies hereunder.
7.5. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, each of which shall remain in full force and
effect.
7.6. Assignment. This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto.
7.7. Survival. The representations and warranties made herein shall not
survive the termination of this Agreement or the Effective Time. This Section
7.7 shall not limit any covenant or agreement of the parties hereto which by its
terms contemplates performance after the termination of this Agreement or the
Effective Time.
7.8. Merger Expenses. Unless otherwise agreed by the parties hereto,
the Surviving Corporation shall pay all fees, costs and expenses incurred in
connection with the Merger and the other actions contemplated by this Agreement.
7.9. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the other parties shall be in writing and
delivered personally or sent by registered or certified mail, postage prepaid,
or by facsimile transmission (with a confirming copy sent by overnight courier),
as follows:
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(a) If to PHS-NJ, to:
Xxxx Center IV
South 00 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Secretary
With a copy to:
Foundation Health Systems, Inc.
00000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Senior Vice President,
General Counsel and Secretary
Fax: (000) 000-0000
(b) If to FOHP or FOHP-NJ, to:
FOHP, Inc.
0000 Xxxxx Xxxxxxx 00
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Vice President,
General Counsel and Secretary
Fax: (000) 000-0000
With a copy to:
Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
P. O. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
PHYSICIANS HEALTH SERVICES OF
NEW JERSEY, INC.
By: /s/Xxxxxx Xxxxxx
-------------------------------------
Name: XXXXXX XXXXXX
Title: Secretary
FIRST OPTION HEALTH PLAN OF
NEW JERSEY, INC.
By: /s/Xxxxxx X. Xxxxxxx
-------------------------------------
Name: XXXXXX X. XXXXXXX
Title: President and Chief Executive Officer
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EXHIBIT A
---------
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF PHYSICIANS HEALTH SERVICES OF NEW JERSEY, INC.
(FORMERLY FIRST OPTION HEALTH PLAN OF NEW JERSEY, INC.)
Physicians Health Services of New Jersey, Inc., a corporation organized
under the laws of the State of New Jersey on May 19, 1993 as First Option Health
Plan of New Jersey, Inc. (the "Corporation"), has, since its formation, amended
its Certificate of Incorporation by an amendment filed on June 30, 1993, by an
Amended and Restated Certificate of Incorporation filed on February 28, 1994, by
an Amended and Restated Certificate of Incorporation filed on March 10, 1994, by
an Amended and Restated Certificate of Incorporation filed on November 3, 1994,
by an Amended and Restated Certificate of Incorporation filed on December 7,
1995, and by an Amended and Restated Certificate of Incorporation filed on April
17, 1997.
Pursuant to N.J. Stat. Xxx. 14A:9-5, the Corporation hereby (i)
restates its Certificate of Incorporation, to embody in one document its
original certificate and the subsequent amendments thereto, and (ii) further
amends its Certificate of Incorporation as set forth herein.
The Corporation hereby certifies the following which (i) sets forth in
full its Certificate of Incorporation, as of this date, and (ii) supersedes and
replaces its original Certificate of Incorporation and all amendments filed
prior to the date hereof:
ARTICLE I
CORPORATE NAME
The name of the Corporation is Physicians Health Services of New
Jersey, Inc.
ARTICLE II
PURPOSE OF CORPORATION
The purpose of the Corporation is to arrange for basic and other health
care services, to operate and maintain a health maintenance organization and to
engage in any other activity within the purposes for which corporations may be
organized under the New Jersey Business Corporation Act.
ARTICLE III
CAPITAL STOCK
The total number of shares of capital stock which the Corporation shall
have the authority to issue is one hundred thousand (100,000) shares of Common
Stock, par value $.01 per share.
ARTICLE IV
BOARD OF DIRECTORS
The current Board of Directors of the Corporation consists of eleven
(11) directors and the names and addresses of the directors are:
NAME AND ADDRESS NAME AND ADDRESS
---------------- ----------------
Xx. Xxxx X. Xxxxxx Xx. Xxxx X. Xxxxxxx
00 Xxxxxxxxxx Xxxxxx Xxxxxx Xxxx Xxxxxxx University
Xxxx Xxxxxx, XX 00000 Hospital
Xxx Xxxxxx Xxxx Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xx. Xxxxx X. Xxxxxxxx Xx. Xxx X. Xxxxxxx
Physicians Health Services, Inc. Foundation Health Systems, Inc.
One Far Mill Crossing 00000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxxx Xxxxx, XX 00000
Xx. Xxxxx X. Xxx Xx. Xxxxxxxx X. Xxxxxx
00 Xxxxxxx Xxxx Xxxxxxxx Health System
Xxxxxxxxxxxx, XX 00000 Monmouth Shores Corporate Park
0000 Xxxxxx Xxxxxxx
Xxxx, XX 00000
Xx. Xxxxxxxxxxx X. Xxxxxx Xx. Xx X. Xxxxxxx
Saint Barnabas Health Care System 0000 Xxxx Xxxxxx
Xxx Xxxxx Xxxxx Xxxx Xxxxx Xxxxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000
Xx. Xxxx X. Xxxxx Xx. Xxxxxx X. Xxxxxxx
733 North Beers Street FOHP, Inc.
Xxxxxxx, XX 00000 0000 Xxxxx Xxxxxxx 00
Xxxxxxx, XX 00000
Xx. Xxxxxx X. Xxxxxxx
000 Xxxx Xxx Xxxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
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ARTICLE V
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of New
Jersey is 820 Bear Tavern Road, 0xx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx 00000, and
the Corporation's registered agent at such address is The Corporation Trust
Company.
ARTICLE VI
LIMITATION ON LIABILITY OF DIRECTORS AND OFFICERS
To the fullest extent permitted by the laws of the State of New Jersey,
as they exist or may hereafter be amended, the directors and officers of the
Corporation shall not be personally liable to the Corporation or its
shareholders for damages for breach of any duty owed to the Corporation or its
shareholders, except that the provisions of this Article VI shall not relieve a
director or officer from liability for any breach of duty based upon an act or
omission (a) in breach of such person's duty of loyalty to the Corporation or
its shareholders, (b) not in good faith or involving a knowing violation of law,
or (c) resulting in receipt by such person of an improper personal benefit.
ARTICLE VII
COMPLIANCE WITH LAWS
Notwithstanding anything to the contrary contained herein or in the
Corporation's By-laws, the Corporation shall at all times comply with the laws
of the State of New Jersey applicable to the Corporation and its business.
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IN WITNESS WHEREOF, Physicians Health Services of New Jersey, Inc.
(formerly First Option Health Plan of New Jersey, Inc.) has caused this Amended
and Restated Certificate of Incorporation to be executed on the ___ day of
__________________________, 1998, by a duly authorized officer.
PHYSICIANS HEALTH SERVICES OF
NEW JERSEY, INC. (formerly
First Option Health Plan of
New Jersey, Inc.)
By: _______________________________
Name: XXXXXX X. XXXXXXX
Title: President and Chief Executive Officer
Filed By:
XXXX X. XXXXXXX, ESQ.
Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
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EXHIBIT B
---------
BY-LAWS
OF
PHYSICIANS HEALTH SERVICES OF NEW JERSEY, INC.
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of Physicians Health
Services of New Jersey, Inc. (the "Corporation") shall be located at 0000 Xxxxx
Xxxxxxx 00, Xxxxxxx, Xxx Xxxxxx 00000 or at such other place as is determined by
the Corporation's Board of Directors (the "Board" or "Board of Directors").
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such
other places, both within and without the State of New Jersey, as the Board of
Directors may from time to time determine or as the business of the Corporation
may require.
ARTICLE II
SHAREHOLDERS
SECTION 1. PLACE OF MEETING. All meetings of the shareholders for the
election of directors and for any other purpose shall be held at such time and
place, within or without the State of New Jersey, as stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
SECTION 2. ANNUAL MEETING. Annual meetings of shareholders shall be
held in the month of April or May on such day as the Board of Directors shall
designate at which the shareholders shall elect a Board of Directors and
transact such other business as may properly be brought before the meeting.
SECTION 3. NOTICE OF ANNUAL MEETING. Notice of the annual meeting shall
be given by mailing, not more than sixty (60) days nor less than ten (10) days
prior to the date of the annual meeting, a written notice stating the date, time
and place thereof, directed to each shareholder of record entitled to vote at
the meeting at his, her or its address as the same appears upon the records of
the Corporation.
SECTION 4. LIST OF SHAREHOLDERS. Prior to each annual or special
meeting of the shareholders, the officer who has charge of the stock ledger of
the Corporation shall prepare and make a complete list of the shareholders
entitled to vote at said meeting, which shall be arranged in alphabetical order
and include the address of and the number of shares registered in the name of
each shareholder. The list shall be produced and kept at the place of the
meeting during the whole time thereof and may be inspected by any shareholder
who may be present.
SECTION 5. SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Corporation's Certificate of Incorporation, as amended and restated (the
"Certificate of Incorporation"), may be called by the President, and shall be
called by the President or Secretary at the request in writing of a majority of
the directors then in office. Such request shall state the purpose or purposes
of the proposed meeting.
SECTION 6. NOTICE OF SPECIAL MEETING. Written or telegraphic notice of
a special meeting of shareholders, stating the date, time, place and purpose
thereof, shall be given to each shareholder entitled to vote thereat, not more
than sixty (60) days nor less than ten (10) days before the date fixed for the
meeting.
SECTION 7. BUSINESS TRANSACTED AT A SPECIAL MEETING. Business
transacted at any special meeting of shareholders shall be limited to the
purpose or purposes stated in the notice.
SECTION 8. QUORUM. Except as otherwise provided in the Certificate of
Incorporation, the holders of issued and outstanding shares of Corporation
capital stock entitled to cast a majority of the votes at a meeting of
shareholders, present in person or by proxy, shall constitute a quorum for the
transaction of business at any meeting of the shareholders; provided, that when
a specified matter is required to be voted on by a class or series of capital
stock, voting as a separate class, the holders of issued and outstanding shares
of such series or class entitled to cast a majority of the votes at a meeting of
the holders of shares of such series or class, present in person or by proxy,
shall constitute a quorum for the transaction of business with respect to such
matter.
SECTION 9. METHOD OF VOTING. Except as otherwise provided in the
Certificate of Incorporation, each shareholder shall, at every meeting of the
shareholders, be entitled to one vote for each share of capital stock held by
such shareholder.
Every shareholder entitled to vote at a meeting of shareholders or to
express consent without a meeting may authorize another person or persons to act
for him, her or it by proxy. Every proxy shall be executed in writing by the
shareholder or his, her or its agent, except that a proxy may be given by a
shareholder or his, her or its agent by telegram or cable or its equivalent. No
proxy shall be valid for more than eleven (11) months, unless a longer time is
expressly provided therein. Unless it is coupled with an interest, a proxy shall
be revocable at will. A proxy shall not be revoked by the death or incapacity of
a shareholder but such proxy shall continue in force until revoked by the
personal representative or guardian of the shareholder. The presence at any
meeting of any shareholder who has given a proxy shall not revoke such proxy
unless the shareholder shall file written notice of such revocation with the
secretary of the meeting prior to the voting of such proxy.
A person named in a proxy as the attorney or agent of a shareholder
may, if the proxy so provides, substitute another person to act in his, her or
its place, including any other person named as an attorney or agent in the same
proxy. The substitution shall not be effective until an instrument effecting it
is filed with the Secretary of the Corporation.
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SECTION 10. ACTION BY SHAREHOLDERS WITHOUT A MEETING. Whenever the vote
of shareholders at a meeting thereof is required or permitted to be taken in
connection with any corporate action by any provision of the New Jersey Business
Corporation Act or provision of the Certificate of Incorporation, the meeting
and the vote of shareholders may be dispensed with if all the shareholders who
would have been entitled to vote upon the action if such meeting were held shall
consent in writing to such corporate action being taken, and in the case of any
action to be taken pursuant to Chapter 10 of Title 14A of the Revised Statutes
of the State of New Jersey, the Corporation provides to all other shareholders
the advance notification required by N.J.S.A. 14A:5-6(2)(b).
Subject to the provisions of N.J.S.A. 14A:5-6(2), whenever the vote of
shareholders at a meeting thereof is required or permitted to be taken in
connection with any corporate action by any provision of the New Jersey Business
Corporation Act or provision of the Certificate of Incorporation, other than the
election of directors, the meeting and vote of shareholders may be dispensed
with and the action may be taken without a meeting upon the written consent of
shareholders who would have been entitled to cast the minimum number of votes
which would be necessary to authorize such action at a meeting at which all
shareholders entitled to vote thereon were present and voting.
SECTION 11. CONDUCT AT MEETINGS. At each meeting of shareholders, the
Chairman of the Board of Directors or in his or her absence the President of the
Corporation or in his or her absence any Vice President of the Corporation or in
his or her absence a chairman chosen by the vote of a majority in interest of
the shareholders present in person or represented by proxy and entitled to vote
thereat, shall act as chairman. The Secretary or in his or her absence an
Assistant Secretary or in the absence of the Secretary and all Assistant
Secretaries a person whom the chairman of the meeting shall appoint shall act as
secretary of the meeting and keep a record of the proceedings thereof. The Board
of Directors shall be entitled to make such rules or regulations for the conduct
of meetings of shareholders as it shall deem necessary, appropriate or
convenient. Subject to such rules and regulations, the chairman shall have the
authority to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgement of such chairman, are necessary, appropriate or
convenient for the proper conduct of the meeting, including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to shareholders of record of the
Corporation and their duly authorized and constituted proxies, and such other
persons as the chairman shall permit, restrictions on entry at the meeting after
the time fixed for the commencement thereof, limitations on the time allotted to
questions or comments by participants and regulations with respect to the
opening and closing of the polls for balloting on matters which are to be voted
on by ballot. The chairman shall have absolute authority over matters of
procedure and there shall be no appeal from the ruling of the chairman. The
chairman may rule that a resolution, nomination or motion not be submitted to
the shareholders for a vote unless seconded by a shareholder or a proxy for a
shareholder. The chairman may require that any person who is neither a bona fide
shareholder nor a proxy for a bona fide shareholder leave the meeting, and upon
the refusal of a shareholder to comply with a procedural ruling of the chairman
which the chairman deems necessary for the proper conduct of the meeting, may
require that such shareholder leave the meeting. The chairman may, on his or her
own motion, summarily adjourn any meeting for any period he or she deems
necessary if he or she rules that orderly procedures
3
cannot be maintained at the meeting. Unless, and to the extent, determined by
the Board of Directors or the chairman of the meeting, meetings of shareholders
shall not be required to be held in accordance with rules of parliamentary
procedure.
SECTION 12. PROCEDURE NECESSARY TO BRING BUSINESS BEFORE AN ANNUAL
MEETING. To be properly brought before an annual meeting of shareholders,
business must be either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
properly brought before the meeting by or at the direction of the Board, or (c)
properly brought before the meeting by a shareholder. In addition to any other
applicable requirements, for business to be properly brought before an annual
meeting by a shareholder, the shareholder must have given timely notice thereof
in writing, either by personal delivery or by United States mail, postage
prepaid, to the Secretary of the Corporation not less than one hundred twenty
(120) days in advance of the date of the Corporation's proxy statement released
to shareholders in connection with the previous year's annual meeting of
shareholders; provided, however, that if the Corporation did not release a proxy
statement in connection with the previous year's annual meeting then the
shareholder must give such notice not later than one hundred twenty (120) days
prior to the anniversary date of the immediately preceding annual meeting. A
shareholder's notice to the Secretary shall set forth as to each matter the
shareholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and record
address of the shareholder proposing such business, (iii) the class and number
of shares of the Corporation which are beneficially owned by the shareholder,
and (iv) any material interest of the shareholder in such business.
Notwithstanding anything in the By-laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 12 of Article 11 and any other applicable
requirements; provided, however, that nothing in this Section 12 of Article 11
shall be deemed to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 12 of
Article 11 or any other applicable requirements, which determination shall be
conclusive, and, as a result, any such business shall not be transacted.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND ELECTION OF DIRECTORS. The number of directors
which shall constitute the entire Board shall be not less than six (6) nor more
than fifty (50) directors. As of January 1, 1999, the Board shall consist of
twelve (12) directors, and thereafter the number of directors which shall
constitute the whole Board may be increased or decreased by resolution of the
Board of Directors or shareholders, but in no case shall be less than three (3)
directors. The directors shall be elected at the annual meeting of shareholders,
or at a special meeting of shareholders called for such purpose, and each
director elected shall hold office until his or her successor is elected and
qualified. Directors need not be shareholders.
4
SECTION 2. NOMINATIONS. Nominations for the election of directors may
be made by the Board of Directors or a committee appointed by the Board of
Directors or by a shareholder entitled to vote in the election of directors
generally.
SECTION 3. VACANCIES; NEWLY CREATED DIRECTORSHIP. Vacancies and newly
created directorships resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in office, or by a
sole remaining director, and the directors so chosen shall hold office until
their successors are duly elected and shall qualify, unless sooner displaced. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute.
SECTION 4. GOVERNANCE. The business of the Corporation shall be
governed by the Board. The Board of Directors may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or
by the Certificate of Incorporation directed or required to be exercised or done
by the shareholders.
SECTION 5. REMOVAL. Any director or directors may be removed from
office either with or without cause by the shareholders pursuant to Section
14A:6-6 of the New Jersey Business Corporation Act.
SECTION 6. MEETINGS. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of New
Jersey. The first meeting of each newly elected Board of Directors shall be held
at such time and place as shall be fixed by the vote of the shareholders at the
annual meeting, and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present. In the event of the failure of the shareholders to fix the
time or place of such first meeting of the newly elected Board of Directors, or
in the event such meeting is not held at the time and place so fixed by the
shareholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the directors, or upon the conclusion of the shareholders' meeting at which
time they were elected, without further notice. At such meeting the Board of
Directors shall elect from their own number a Chairman of the Board for the
ensuing year and until his or her successor is elected and qualified, and
transact such other business as may come before the meeting.
SECTION 7. REGULAR MEETINGS. Regular meetings of the Board may be held
on five (5) days written notice, at such time as shall be from time to time
determined by the Board. Written notice for any such meeting shall state the
place, date and time of the meeting and shall be delivered either personally or
by first class mail, facsimile or overnight courier service.
SECTION 8. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board or the President, and shall be called
by the President or Secretary at the request in writing of at least one-third
(1/3) of the directors then in office. Written notice of any special meeting
shall be given, either personally or by first class mail, facsimile or overnight
courier service, to each director at least two (2) days prior to the date
thereof.
5
SECTION 9. PLACE OF MEETING; WAIVER OF NOTICE. Meetings of the Board of
Directors shall be held at such place as shall be designated in the notice of
meeting if notice is required. Notice of any meeting, if required, need not be
given to any director who signs a waiver of notice before or after the meeting.
The attendance of any director at any meeting without the director protesting
prior to the conclusion of such meeting the lack of notice thereof shall
constitute a waiver of notice by such director.
SECTION 10. ADJOURNMENT. Any meeting of the Board of Directors shall be
adjourned upon the request of a majority of the directors on the Board who are
present at the meeting, for a period of not more than ten (10) days. Also, any
meeting of a committee of the Board or any other committee established by the
Corporation shall be adjourned upon the request of a majority of the persons on
the committee who are present at the meeting, for a period of not more than ten
(10) days.
SECTION 11. QUORUM. Except as otherwise provided in the Certificate of
Incorporation, a majority of the directors then in office shall constitute a
quorum for the transaction of business at any meeting of the Board of Directors.
SECTION 12. MANNER OF ACTING. Except as otherwise provided in the
Certificate of Incorporation or herein, the act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
SECTION 13. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken by the Board of Directors or by a committee thereof may be taken
without a meeting if, prior to such action, all of the members of the Board or
committee consent in writing to a resolution authorizing the action. Such
written consents may be executed in counterparts, and shall be filed with the
minutes of the Corporation.
SECTION 14. TELEPHONIC ATTENDANCE AT MEETING. Any or all directors may
participate in a meeting of the Board of Directors or a committee of the Board
by means of conference telephone or any means of communication by which all
persons participating in the meeting are able to hear each other.
SECTION 15. COMMITTEES.
(a) FORMATION OF COMMITTEES. The Board of Directors may, by
one or more resolutions passed by a majority of the directors then in office,
establish such other committees as it shall determine necessary for the
operations of the Corporation. Such committee or committees shall have such name
or names as may be determined from time to time by a resolution adopted by the
Board. Moreover, upon a resolution passed by a majority of the directors then in
office, the Board may designate one or more committees, comprised solely of
directors of the Corporation, to exercise the power of the Board in the
management of the business and affairs of the Corporation. Only committees whose
membership is exclusively reserved for directors may be vested with the powers
of the Board. All other committees shall have and may exercise such authority as
the Board establishes by resolution or these By-laws permit, subject to any
limitation imposed by law. The filling of vacancies in a committee, the
abolishing of a committee and the removal of persons serving on a committee
shall be as set
6
forth in a resolution adopted by the Board unless otherwise set forth in the
provisions of these By-laws applicable to such committee. Each committee shall
keep regular minutes of its meetings and report same to the Board of Directors
when required. Except as may otherwise be provided in a resolution adopted by
the Board, committee members and chairpersons shall serve one (1) year terms.
(b) RESTRICTIONS ON COMMITTEE MEMBERS. Members of any
committee of the Corporation who are affiliated with or represent an entity,
including its officers, directors, employees and agents, that provides health
care services on behalf of the Corporation or any subsidiary or affiliate
thereof pursuant to an agreement with the Corporation or any subsidiary or
affiliate thereof are prohibited from using their participation as a committee
member of the Corporation to obtain or exchange competitive information
pertaining to other providers that provide similar health care services on
behalf of the Corporation or any subsidiary or affiliate thereof pursuant to an
agreement with the Corporation or any subsidiary or affiliate thereof.
Competitive information includes, but is not limited to, information related to
an individual provider's rates, discounts, costs, prices, salaries, terms of
participation in other health plans, or strategic or marketing plans.
(c) QUORUM. A majority of the members of a committee or
subcommittee shall constitute a quorum for the transaction of business at any
meeting of such committee or subcommittee.
(d) REQUIRED VOTE. The act of a majority of the members
present at a meeting at which a quorum is present shall be the act of the
committee or subcommittee.
SECTION 16. COMPENSATION OF DIRECTORS. The directors may be paid their
expenses, if any, relating to their attendance at meetings of the Board of
Directors, and directors who are not full-time employees of the Corporation may
be paid a fixed sum for attendance at meetings of the Board of Directors or a
stated salary as a director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a Chairman of the Board, a President, one or
more Vice Presidents, a Treasurer and a Secretary. The Board of Directors may
also choose one or more Assistant Secretaries or Assistant Treasurers, and may
designate one or more Vice Presidents to be executive or senior Vice Presidents.
One person may hold two (2) or more offices, but the person serving as President
may not serve simultaneously as Secretary.
SECTION 2. TERM; REMOVAL. The officers of the Corporation shall hold
office until their successors are chosen and qualify. Any officer elected or
appointed by the Board of Directors may be removed or suspended at any time by
the affirmative vote of a majority of the directors at any meeting of the Board
at which there is a quorum, without the necessity of specifying any
7
cause therefor and without any prior notice of such action to the officer so
removed or suspended. All officers, employees and agents, other than officers
elected or appointed by the Board of Directors, may be suspended or removed by
the committee of the Board of Directors or officer appointing them.
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the shareholders and the Board of Directors. He or
she shall, in the absence or the disability of the President, perform the duties
and exercise the powers of the President, and shall perform such other duties as
may be delegated to him or her by the Board of Directors.
SECTION 4. PRESIDENT. The President, who shall be the Chief Executive
Officer of the Corporation, shall in general, subject to the control of the
Board of Directors, supervise and control all of the business and affairs of the
Corporation. All other officers shall be subject to the authority and
supervision of the President. The President may enter into and execute in the
name of the Corporation contracts or other instruments in the regular course of
business or contracts or other instruments not in the regular course of business
which are authorized, either generally or specifically, by the Board of
Directors. The President shall have the general powers and duties of management
usually vested in the office of President of a corporation.
SECTION 5. VICE PRESIDENTS. The Board of Directors may appoint one or
more Vice Presidents who shall perform such duties and possess such powers as
shall be assigned him or her by the President or the Board.
SECTION 6. TREASURER AND ASSISTANT TREASURER. The Treasurer shall have
charge and custody of, and be responsible for, all funds and securities of the
Corporation, shall keep or cause to be kept regular books of account for the
Corporation and shall perform such other duties and possess such other powers as
are incident to the office of Treasurer or as shall be assigned to the Treasurer
by the President or the Board. The Assistant Treasurer, or if there shall be
more than one, the Assistant Treasurers, in the order determined by the Board,
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer set forth herein and as the President or
the Board from time to time may prescribe.
SECTION 7. SECRETARY AND ASSISTANT SECRETARY. The Secretary shall cause
notices of all meetings to be served as prescribed in these By-laws or by
statute, shall keep or cause to be kept the minutes of all meetings of the
shareholders and of the Board of Directors, shall have charge of the corporate
records and seal of the Corporation and shall keep a register of the post-office
address of each shareholder which shall be furnished to the Secretary by such
shareholder. The Secretary shall perform such other duties and possess such
other powers as are incident to the office of the Secretary or as are assigned
by the President or the Board. The Assistant Secretary, or if there shall be
more than one, the Assistant Secretaries, in the order determined by the Board,
shall, in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary set forth herein and as the President or
the Board from time to time may prescribe.
SECTION 8. SUBORDINATE OFFICERS AND AGENTS. The Board may appoint such
other officers and agents as it shall deem necessary or desirable, who shall
hold their offices for such
8
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the President or the Board.
ARTICLE V
EXECUTION OF DOCUMENTS
SECTION 1. COMMERCIAL PAPER AND CONTRACTS. All checks, notes, drafts
and other commercial paper of the Corporation shall be signed by the President
or the Treasurer of the Corporation or by such other person or persons as the
Board of Directors may from time to time designate.
SECTION 2. OTHER INSTRUMENTS. All contracts, deeds, mortgages and
other instruments shall be executed by the President or any Vice President, and,
if necessary or required by law, by the Secretary or any Assistant Secretary, or
such other person or persons as the Board of Directors may from time to time
designate.
ARTICLE VI
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year.
ARTICLE VII
CERTIFICATES REPRESENTING SHARES
Certificates representing shares of capital stock of the Corporation
shall be in such form as shall be determined by the Board of Directors and shall
be executed by the President or any Vice President and by the Secretary or the
Treasurer, unless the Board of Directors shall direct otherwise.
ARTICLE VIII
RECORD DATE
For the purpose of determining the shareholders entitled to notice of
or to vote at any meeting of shareholders or any adjournment thereof, or to
express consent to or dissent from any proposal without any meeting or for the
purpose of determining shareholders entitled to receive payment of any dividend
or allotment of any right, or in order to make a determination of shareholders
for any other purpose, the Board of Directors shall fix, in advance, a date as
the record date for any such determination of shareholders. Such date shall not
be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action or event to
which it relates. When a determination of shareholders of record for a
shareholders' meeting has been made as provided in this Article VIII, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new record date for the adjourned meeting.
9
ARTICLE IX
DIVIDENDS
The Board of Directors may from time to time declare, and the
Corporation may pay, dividends or make other distributions on its outstanding
shares of capital stock in the manner and upon the terms and conditions provided
by the Certificate of Incorporation and by statute.
ARTICLE X
AMENDMENT
These By-laws may be altered, amended or repealed, or new by-laws may
be adopted by the Board of Directors, at any regular meeting of the Board of
Directors or of any special meeting of the Board of Directors. These By-laws, or
any new by-laws adopted by the Board, may also be altered, amended or repealed,
or new by-laws may be adopted, by the shareholders, at any annual or special
meeting of shareholders if notice of such alteration, amendment, repeal or
adoption of new by-laws is contained in the notice of such meeting.
ARTICLE XI
INDEMNIFICATION
SECTION 1. The Corporation shall indemnify a Corporate Agent (as
defined in Section 8 of this Article) against his or her expenses and
liabilities actually and reasonably incurred in connection with the defense of
any proceeding involving the Corporate Agent by reason of his or her being or
having been such a Corporate Agent, other than a proceeding by or in the right
of the Corporation, if (a) such Corporate Agent acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and (b) with respect to any criminal proceeding,
such Corporate Agent had no reasonable cause to believe his or her conduct was
unlawful. The termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not of
itself create a presumption that such Corporate Agent did not meet the
applicable standards of conduct set forth in subparts (a) and (b) herein.
SECTION 2. The Corporation shall indemnify a Corporate Agent against
his or her liabilities and expenses, actually or reasonably incurred by him or
her in connection with the defense, in any proceeding, by or in the right of the
Corporation to procure a judgment in its favor which involves the Corporate
Agent by reason of his or her being or having been such Corporate Agent, if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the Corporation. However, in such
proceeding no indemnification shall be provided in respect of any claim, issue
or matter as to which such Corporate Agent shall have been adjudged liable to
the Corporation unless and only to the extent that the New Jersey Superior Court
or the court in which such proceeding was brought shall determine upon
application that despite the adjudication of liability, but in view of all
circumstances of the case, such Corporate Agent is fairly and reasonably
entitled to indemnity for such expenses or liabilities as the New Jersey
Superior Court or such other court shall deem proper.
10
SECTION 3. The Corporation shall indemnify a Corporate Agent against
expenses (including attorneys fees) to the extent that such Corporate Agent has
been successful on the merits or otherwise in any proceeding referred to in
Sections 1 and 2 of this Article or in defense of any claim, issue or matter
therein.
SECTION 4. Any indemnification under Section 1 of this Article and,
unless ordered by a court, under Section 2 of this Article, may be made by the
Corporation only as authorized in a specific case upon a determination that
indemnification is proper in the circumstances because the Corporate Agent met
the applicable standard of conduct set forth in Sections 1 or 2 of this Article.
Such determination shall be made: (a) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to or otherwise
involved in the proceeding; (b) if such a quorum is not obtainable, or, even if
obtainable and such quorum of the Board of Directors by a majority vote of the
disinterested directors so directs, by independent legal counsel in a written
opinion, such counsel to be designated by the Board of Directors; or (c) by the
shareholders.
SECTION 5. Expenses incurred by a Corporate Agent in connection with a
proceeding may be paid by the Corporation in advance of the final disposition of
the proceeding, as authorized by the Board of Directors, upon receipt of an
undertaking by or on behalf of the Corporate Agent to repay such amount unless
it shall ultimately be determined that he or she is entitled to be indemnified
as provided in this Article XI.
SECTION 6. The indemnification and advancement of expenses provided by
or granted pursuant to the other sections of this Article shall not exclude any
other rights to which a Corporate Agent may be entitled under the Corporation's
Certificate of Incorporation, a By-law, agreement, vote of shareholders, or
otherwise; provided, that no indemnification shall be made to or on behalf of a
Corporate Agent if a judgment or other final adjudication adverse to the
Corporate Agent establishes that his or her acts or omissions (a) were in breach
of his or her duty of loyalty to the Corporation or its shareholders, (b) were
not in good faith or involved a knowing violation of law, or (c) resulted in
receipt by the Corporate Agent of an improper personal benefit.
SECTION 7. The Corporation shall have the power to purchase and
maintain insurance on behalf of any Corporate Agent against any expenses
incurred in any proceeding and any liabilities asserted against him or her by
reason of his or her being or having been a Corporate Agent, whether or not the
Corporation would have the power to indemnify him or her against such expenses
and liabilities under the provisions of this section. The Corporation may
purchase such insurance from, or such insurance may be reinsured in whole or in
part by, an insurer owned by or otherwise affiliated with the Corporation,
whether or not such insurer does business with other insurers.
SECTION 8. For purposes of this Article XI, the following definitions,
as well as all other definitions set forth in N.J.S.A. 14A:3-5, shall apply:
(a) "Corporate Agent" shall mean any person who is or was a
director, officer, employee or agent of the indemnifying corporation or of any
constituent corporation absorbed by the indemnifying corporation in
consolidation or merger and any person who is or was a director,
11
officer, trustee, employee or agent of any Other Enterprise, serving as such at
the request of the indemnifying corporation, or of any such constituent
corporation, or the legal representative of any such director, officer, trustee,
employee or agent. Furthermore, any Corporate Agent also serving as a
"fiduciary" of an employee benefit plan governed by the Act of Congress entitled
"Employee Retirement Income Security Act of 1974" (ERISA) as amended from time
to time, shall serve in such capacity as a Corporate Agent, if the corporation
shall have requested any such person to serve. Additionally, the corporation
shall be deemed to have requested such person to serve as a fiduciary of an
employee benefit plan, only where the performance by such person of his or her
duties to the corporation also imposes duties on, or otherwise involves services
by, such person to the plan or participants or beneficiaries of the plan.
(b) "Other Enterprise" shall mean any domestic or foreign
corporation other than the indemnifying corporation, and any partnership, joint
venture, sole proprietorship, trust or other enterprise (including employee
benefit plans governed by ERISA), whether or not for profit, served by a
Corporate Agent.
ARTICLE XII
INCONSISTENCY WITH CERTIFICATE OF INCORPORATION
In the event that any of the provisions of these By-laws is
inconsistent with any provision of the Corporation's Certificate of
Incorporation, the provision of the Certificate of Incorporation shall apply.
As Amended and Restated: January 1, 1999.
12
EXHIBIT C
---------
DIRECTORS OF PHYSICIANS HEALTH SERVICES OF NEW JERSEY, INC.
The Board of Directors of the Surviving Corporation will consist of
eleven (11) directors and the names and addresses of such directors are:
NAME AND ADDRESS NAME AND ADDRESS
---------------- ----------------
Xx. Xxxx X. Xxxxxx Xx. Xxxx X. Xxxxxxx
00 Xxxxxxxxxx Xxxxxx Xxxxxx Xxxx Xxxxxxx
Xxxx Xxxxxx, XX 00000 University Hospital
Xxx Xxxxxx Xxxx Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xx. Xxxxx X. Xxxxxxxx Xx. Xxx X. Xxxxxxx
Physicians Health Services, Inc. Foundation Health Systems, Inc.
One Far Mill Crossing 00000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxxx Xxxxx, XX 00000
Xx. Xxxxx X. Xxx Xx. Xxxxxxxx X. Xxxxxx
00 Xxxxxxx Xxxx Xxxxxxxx Health System
Xxxxxxxxxxxx, XX 00000 Monmouth Shores
Corporate Park
0000 Xxxxxx Xxxxxxx
Xxxx, XX 00000
Xx. Xxxxxxxxxxx X. Xxxxxx Xx. Xx X. Xxxxxxx
Saint Barnabas Health Care System 0000 Xxxx Xxxxxx
Xxx Xxxxx Xxxxx Xxxx Xxxxx Xxxxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000
Xx. Xxxx X. Xxxxx Xx. Xxxxxx X. Xxxxxxx
733 North Beers Street FOHP, Inc.
Xxxxxxx, XX 00000 0000 Xxxxx Xxxxxxx 00
Xxxxxxx, XX 00000
Xx. Xxxxxx X. Xxxxxxx
000 Xxxx Xxx Xxxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
EXHIBIT D
---------
OFFICERS OF PHYSICIANS HEALTH SERVICES OF NEW JERSEY, INC.
The name and position(s) of each executive officer of the Surviving
Corporation is set for below:
NAME POSITION
---- --------
Xxxxxx X. Xxxxxxx President and Chief Executive Officer
Dr. Xxxxxx Xxxxxx Vice President and Chief Medical Officer
Xxxxxx Xxxxxx Vice President, Secretary and General
Counsel
Xxxx X. Xxxxx Treasurer and Chief Financial Officer
