RESTATED CERTIFICATE OF INCORPORATION

                              OF

                          HUMANA INC.

 

(Includes subsequent Certificate of Amendment and Certificate of Correction)

 

     HUMANA INC., (originally Heritage House of America Inc. and formerly

Extendicare, Inc.), a corporation organized and existing under and by

virtue of the laws of the State of Delaware, the original Certificate of

Incorporation of which was filed in the office of the Secretary of State

of Delaware on July 27, 1964 and recorded in the office of the Recorder of

Deeds for New Castle County, State of Delaware, on July 28, 1964, and has

heretofore been amended and restated from time to time, does hereby

certify:

 

     That at a regular meeting of the Board of Directors of the above

corporation held on the 2nd day of November, A.D. 1989, in the City of

Louisville, State of Kentucky, for the consideration of the restatement of

the Certificate of Incorporation as hereinafter set forth, and the

directors having voted in favor thereof, the following Restated

Certificate of Incorporation, which only restates and integrates and does

not further amend the provisions of the corporation's Certificate of

Incorporation as theretofore amended, supplemented or restated, there

 

being no discrepancy between those provisions and the provisions of this

Restated Certificate of Incorporation, was duly adopted in accordance with

Section 245 of the General Corporation Law of the State of Delaware.

 

     FIRST: The name of this corporation is HUMANA INC.

 

     SECOND: The location of its principal office in the State of

Delaware is located at One Rodney Square, 10th and King Streets, in the

City of Wilmington, New Castle County, Delaware 19801, and the name and

address of its Resident Agent is Richard J. Abrams, One Rodney Square,

10th and King Streets, Wilmington, Delaware 19801.

 

     THIRD: The nature of the business and the objects and purposes

proposed to be transacted, promoted and carried on are to do any and all

things herein mentioned as fully and to the same extent as natural persons

might or could do, and in any part of the world, viz.,

 

          (a)  To acquire by construction, purchase, exchange or other

means, and thereafter to own, maintain, operate and carry on, or to sell

or otherwise dispose of, sanitariums, nursing homes, rest homes,

convalescence homes, and other establishments suitable for the care and

treatment of elderly, disabled, or convalescent persons.

 

          (b)  To adopt, apply for, obtain, register, purchase, lease

or otherwise acquire, and to maintain, protect, hold, use, own, exercise,

develop, operate and introduce, and to sell, lease or grant licenses,

franchises, or other rights in respect of, and assign, pledge or otherwise

dispose of or turn to account, any trademarks, trade names, patents,

patent rights, copyrights, and distinctive marks and rights analogous

thereto, and invention, improvements, processes, formulae and the like,

including such thereof as may be covered by, used in connection with, or

secured or received under Letters Patent of the United States of America

or elsewhere, or otherwise, which may be deemed capable of use in

connection with any of the purposes of the corporation herein stated; and

to acquire, use, exercise or otherwise turn to account licenses in respect

of any such trademarks, trade names, patents, patent rights, copyrights,

inventions, improvements, processes, formulae and the like.

 

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          (c)  To carry on the business of providing administrative,

financial, development, promotion, supervisory, management, technical and

other services to business of all kinds, on a fee, commission, franchise,

rental, sale or other basis.

 

          (d)  To engage in manufacturing, processing, buying, selling,

leasing, and otherwise producing, investing or dealing in any product or

article of commerce, or any goods, wares, merchandise, and real or

personal property, of every class and description whatsoever, in any part

of the world.

 

          (e)  To acquire by purchase, subscription or otherwise, to

hold, mortgage or pledge, sell, assign, transfer, exchange or otherwise

dispose of shares of the capital stock of, or voting trust certificates

for shares of the capital stock of, and any bonds and other securities or

evidences of indebtedness created by, any other corporation or

corporations organized under the laws of the State of Delaware or of any

other state, or of any country, nation or subdivision thereof, or

government, and to pay therefor, in whole or in part, with cash or other

property or with shares of the capital stock, bonds or other obligations

of this corporation, and, while the owner or holder of any such shares of

the capital stock, or voting trust certificates for shares of the capital

stock, or bonds, or other securities or indebtedness of any such other

corporation or corporations, to possess and exercise in respect thereof

all the rights, powers and privileges of ownership, including the right to

vote thereon and to consent in respect thereof for any and all purposes.

 

          (f)  To acquire all or any part of the good will, rights,

property and business of any person, firm, trust, association or

corporation heretofore or hereafter created, to pay for the same in cash

or in stock or bonds of this corporation or otherwise, to hold, utilize,

and in any manner dispose of the whole or any part of the rights and

property so acquired, assume in connection therewith any liabilities of

any such person, firm, trust, association or corporation and conduct in

any lawful manner the whole or any part of the business thus acquired.

 

          (g)  To aid by loan, guaranty, subsidy or in any other manner

whatsoever, insofar as may be permitted by law, any person, association,

partnership, corporation or corporations, organized under the laws in the

State of Delaware or of any other state, or of any country, nation or

government, any shares of the capital stock, or voting trust certificates

for shares of the capital stock, or bonds, or other securities or

evidences of indebtedness of which shall be held by or for the

corporation, or in which, or in the welfare of which, the corporation

shall have any interest, and to do any acts or things designed to protect,

preserve, improve or enhance the value of any such shares, voting trust

certificates, bonds, or interest, or other securities or evidences of

indebtedness, and to do any and all acts designed to accomplish any such

purpose.

 

          (h)  To guarantee the payments of dividends upon, or any

sinking fund payments in respect of, any shares of the capital stock, or

the payment of the principal of, or interest on, or sinking fund payments

in respect of, any bonds or other securities or evidences of indebtedness,

or the performance of any contract, of any other corporation, trust or

association insofar as and to the extent that a guaranty in respect

thereof by the corporation may be permitted by law.

 

          (i)  To enter into, make and perform contracts of every sort

and description with any person, firm, trust, association, corporation,

municipality, body politic, county, state or government or colony or

dependency thereof.

 

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          (j)  To purchase, hold, cancel, reissue, sell or transfer

shares of its own capital stock, provided that it shall not use its funds

or property for the purchase of shares of its own capital stock when such

use would cause any impairment of its capital, and further, that shares of

its own capital stock belonging to it shall not be voted upon directly or

indirectly.

 

          (k)  In general, to carry on any business not contrary to the

laws of the State of Delaware.

 

          (l)  To make donations for the public welfare or for

charitable, scientific or educational purposes.

 

          (m)  To conduct its business, without restriction or limit as

to amount, in all or any of its branches in the State of Delaware and in

any or all other states, territories, possessions, colonies, and

dependencies of the United States of America, and in the District of

Columbia, and in any or all foreign countries to have one or more offices

within and outside the State of Delaware; and to purchase, take on lease

or otherwise acquire, own, hold, develop, operate, lease, mortgage or

pledge, sell, assign, transfer, exchange, or otherwise dispose of or turn

to account, and convey real and personal property of every class and

description or any interest therein, including without limitation

developed or undeveloped mineral properties and any and all types of

interests therein anywhere in the world.

 

          (n)  To carry out all or any part of the foregoing objects

and purposes as principal, agent, contractor, or otherwise, either alone

or in conjunction (including partnership) with any person, firm, trust,

association or other corporation, and in any part of the world; and, in

carrying on its business and for the purpose of attaining or furthering

any of its objects or purposes, to make and perform contracts of any kind

and description, to do such acts and things and to exercise any and all

such powers, as a natural person could lawfully make, perform, do or

exercise, provided that the same be not inconsistent with the laws of the

State of Delaware.

 

          (o)  To do any and all things necessary, suitable, convenient

or proper for, or in connection with, or incidental to, the accomplishment

of any of the purposes or the attainment of any one or more of the objects

herein enumerated, or designed directly or indirectly to promote the

interests of the corporation, or to enhance the value of any of its

properties; and in general to do any and all things and exercise any and

all powers which it may now or hereafter be lawful for the corporation to

do or to exercise under the laws of the State of Delaware that may now or

hereafter be applicable to the corporation.

 

     It is the intention that, except where otherwise expressed in this

Article THIRD, the objects and purposes specified in any of the forgoing

clauses of this Article shall not in anywise be limited or restricted by

reference to, or inference from, the terms of any other clause of this

Article or of any other Article of this Certificate of Incorporation, but

that the objects and purposes specified in each of the clauses of this

Article shall be regarded as independent objects and purposes.

 

     It is also the intention that said clauses be construed as powers as

well as objects and purposes; and, generally, that the corporation shall

be authorized to exercise and enjoy all other powers, rights and

privileges granted by the laws of the State of Delaware to corporations

organized thereunder, and the enumeration herein of certain powers is not

intended as exclusive of, or a waiver of, any of the powers, rights or

 

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privileges granted or conferred by said laws now or hereafter in force;

provided, however, that the corporation shall not carry on any business

nor exercise any powers in any state, district, territory, possession or

country which a corporation organized under the laws of such state,

district, territory, possession or country could not carry on or exercise,

except to the extent permitted or authorized by the laws of such state,

district, territory, possession or country.

 

     FOURTH: The total number of shares of all classes of capital stock

which the Corporation shall have authority to issue is Three Hundred Ten

Million (310,000,000) shares aggregating a total amount of Sixty Million

Dollars ($60,000,000.00), which shall be divided into two classes as

follows:

 

     Three Hundred Million (300,000,000) shares of Common Stock having a

par value of Sixteen and Two-Thirds Cents ($.16-2/3) per share,

aggregating a total amount of Fifty Million Dollars ($50,000,000.00);

 

     Ten Million (10,000,000) shares of Preferred Stock, each of which

shall have a par value of One Dollar ($1.00) per share, aggregating a

total amount of Ten Million Dollars ($10,000,000.00).

 

 

     The amount of capital with which the corporation shall commence

business is the sum of One Thousand Dollars ($1,000.00).

 

     The designations, voting powers, preferences and relative,

participating, optional or other special rights, qualifications,

limitations or restrictions of the above classes of stock shall be as

follows:

 

          (a)  The Board of Directors is authorized to issue shares of

Preferred Stock, from time to time, in such class or classes, and such

series within any class, and such designations, preferences and relative,

participating, optional or other special rights, and qualifications,

limitations or restrictions thereof, as shall be stated and expressed in

the resolution or resolutions providing for the issue of such stock

adopted by the Board of Directors, and as are not stated or expressed in

this Certificate of Incorporation or any amendment thereto including, but

not limited to, determination of any of the following:

 

               (1)   The distinctive serial designation and the number

of shares constituting a series;

 

               (2)   The dividend rate or rates, whether dividends

shall be cumulative and, if so, from what date, the payment date or dates

for dividends, and the participating or other special rights, if any, with

respect to dividends;

 

               (3)   The voting powers, full or limited, if any, of the

shares of such series;

 

               (4)   Whether the shares shall be redeemable and, if so,

the price or prices at which, and the terms and conditions on which, the

shares may be redeemed;

 

               (5)   The amount or amounts payable upon the shares in

the event of voluntary or involuntary liquidation, dissolution or winding

up of the corporation prior to any payment or distribution of the assets

of the corporation to any class or classes of stock of the corporation

ranking junior to the Preferred Stock;

 

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               (6)   Whether the shares shall be entitled to the

benefit of a sinking or retirement fund to be applied to the purchase or

redemption of shares of a series and, if so entitled, the amount of such

fund and the manner of its application, including the price or prices at

which the shares may be redeemed or purchased through the application of

such fund;

 

               (7)   Whether the shares shall be convertible into, or

exchangeable for, shares of any other class or classes or of any other

series of the same or any other class or classes of stock of the

corporation or any other corporation, and if so convertible or

exchangeable, the conversion price or prices, or the rates of exchange,

and the adjustments thereof, if any, at which such conversion or exchange

may be made, and any other terms and conditions of such conversion or

exchange; and

 

               (8)   Any other preferences, privileges and powers, and

relative, participating, optional, or other special rights, and

qualifications, limitations or restrictions of such series, as the Board

of Directors may deem advisable and as shall not be inconsistent with the

provisions of the Certificate of Incorporation.

 

          (b)  Subject to the preferential rights of the Preferred

Stock, the holders of the Common Stock shall be entitled to receive, to

the extent permitted by law, such dividends as may be declared from time

to time by the Board of Directors. Except as may be otherwise required by

law or this Certificate of Incorporation, each holder of Common Stock

shall have one vote in respect of each share of stock held by him of

record on the books of the corporation on all matter voted upon by the

stockholders.

 

          (c)  Subject to the protective conditions and restrictions of

any outstanding Preferred Stock, any amendment to this Certificate of

Incorporation which shall increase or decrease the authorized capital

stock of any class or classes may be adopted by the affirmative vote of

the holders of a majority of the outstanding shares of the voting stock of

the corporation.

 

          (d)  No holder of Preferred or Common Stock shall have any

right as such holder to purchase or subscribe for any security of the

corporation now or hereafter authorized or issued. All such securities may

be issued and disposed of by the Board of Directors to such persons,

firms, corporations and associations for such lawful considerations, and

on such terms, as the Board of Directors in its discretion may determine,

without first offering the same, or any part thereof, to the holders of

Preferred or Common Stock.

 

          (e)  There is hereby created a series of Preferred Stock, par

value $1.00 per share out of the authorized but unissued shares of the

capital stock of the corporation, to be designated "Series A Participating

Preferred Stock" ("Participating Preferred Stock") to consist of 2,500,000

shares, of which the preferences and relative and other rights, and the

qualifications, limitations or restrictions thereof, shall be as follows:

 

               1.    Future Increase or Decrease. Subject to paragraph

4(e) of this resolution, the number of shares of said series may at any

time or from time to time be increased or decrease by the Board of

Directors notwithstanding that shares of such series may be outstanding at

such time of increase or decrease.

 

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               2.    Dividend Rate. (a) The holders of shares of

Participating Preferred Stock shall be entitled to receive, when, as and

if declared by the Board of Directors out of funds legally available for

the purpose, quarterly dividends payable in cash on the first day of each

November, February, May and August in each year (each such date being

referred to herein as a "Quarterly Dividend Payment Date"), commencing on

the first Quarterly Dividend Payment Date after the first issuance of a

share or fraction of a share of Participating Preferred Stock, in an

amount per share (rounded to the nearest cent) equal to the greater of (a)

$20 or (b) subject to the provision for adjustment hereinafter set forth,

100 times the aggregate per share amount of all cash dividends and 100

times the aggregate per share amount (payable in kind) of all non-cash

dividends or other distributions other than a dividend payable in shares

of Common Stock or a subdivision of the outstanding shares of Common Stock

(by reclassification or otherwise), declared on the Common Stock, par

value $.16 2/3 per share, of the corporation (the "Common Stock") since

the immediately preceding Quarterly Dividend Payment Date, or, with

respect to the first Quarterly Dividend Payment Date, since the first

issuance of any share or fraction of a share of Participating Preferred

Stock. In the event the corporation shall at any time after March 5, 1987

(the "Rights Declaration Date") (i) declare any dividend on Common Stock,

payable in shares of Common Stock, (ii) subdivide the outstanding Common

Stock, or (iii) combine the outstanding Common Stock into a smaller number

of shares, then in each such case the amount to which holders of shares of

Participating Preferred Stock were entitled immediately prior to such

event under clause (b) of the preceding sentence shall be adjusted by

multiplying such amount by a fraction the numerator of which is the number

of shares of Common Stock outstanding immediately after such event and the

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event.

 

          (b)  On or after the first issuance of any share or

fractional share of Participating Preferred Stock, no dividend on Common

Stock shall be declared unless concurrently therewith a dividend or

distribution is declared on the Participating Preferred Stock as provided

in paragraph (a) above; and the declaration of any such dividend on the

Common Stock shall be expressly conditioned upon payment or declaration of

the provision for a dividend on the Participating Preferred Stock as above

provided. In the event no dividend or distribution shall have been

declared on the Common Stock during the period between any Quarterly

Dividend Payment Date and the next subsequent Quarterly Dividend Payment

Date, a dividend of $20 per share on the Participating Preferred Stock

shall nevertheless be payable on such subsequent Quarterly Dividend

Payment Date.

 

          (c)  Dividends shall begin to accrue and be cumulative on

outstanding shares of Participating Preferred Stock from the Quarterly

Dividend Payment Date next preceding the date of issue of such shares of

Participating Preferred Stock, unless the date of issue of such shares is

prior to the record date for the first Quarterly Dividend Payment Date, in

which case dividends on such shares shall begin to accrue from the date of

issue of such shares, or unless the date of issue is a Quarterly Dividend

Payment Date or is a date after the record date for the determination of

holders of shares of Participating Preferred Stock entitled to receive a

quarterly dividend and before such Quarterly Dividend Payment Date, in

either of which events such dividends shall begin to accrue and be

cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid

dividends shall not bear interest. The Board of Directors may fix a record

date for the determination of holders of shares of Participating Preferred

Stock entitled to receive payment of a dividend or distribution declared

thereon, which record date shall be no more than 30 days prior to the date

fixed for the payment thereof.

 

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    3.  Dissolution, Liquidation and Winding Up.

 

 

          (a)  In the event of any voluntary or involuntary

dissolution, liquidation or winding up of the affairs of the corporation

(hereinafter referred to as a "Liquidation"), the holders of Participating

Preferred Stock shall receive at least $1,000 per share, plus an amount

equal to accrued and unpaid dividends and distributions thereon, whether

or not declared, to the date of such payment, provided that the holders of

shares of Participating Preferred Stock shall be entitled to receive at

least an aggregate amount per share, subject to the provision for

adjustment hereinafter set forth, equal to 100 times the aggregate amount

to be distributed per share to holders of Common Stock (the "Participating

Preferred Liquidation Preference").

 

          (b)  In the event the corporation shall at any time declare

or pay any dividend on the Common Stock payable in shares of Common Stock,

or effect a subdivision or combination or consolidation of the outstanding

Common Stock (by reclassification or otherwise than by payment of a

dividend in Common Stock) into a greater or lesser number of shares of

Common Stock, then in each such case the amount which holders of

Participating Preferred Stock were entitled immediately prior to such

event pursuant to the provision set forth in paragraph (a) above, shall be

adjusted by multiplying such amount by a fraction the numerator of which

is the number of shares of Common Stock outstanding immediately after such

event and the denominator of which is the number of shares of Common Stock

that were outstanding immediately prior to such event.

 

     4.   Voting Rights.  The holders of shares of Participating

Preferred Stock shall have the following voting rights:

 

          (a)  Each share of Participating Preferred Stock shall

entitle the holder thereof to one (l) vote on all matters submitted to

vote of the stockholders of the Company.

 

          (b)  Except as otherwise provided herein, or by law, the

Certificate of Incorporation or the By-Laws, the holders of shares of

Participating Preferred Stock and the holders of shares of Common Stock

shall vote together as one class on all matters submitted to a vote of

stockholders of the Company.

 

          (c)  If and whenever dividends on the Participating Preferred

Stock shall be in arrears in an amount equal to six quarterly dividend

payments, then and in such event the holders of the Participating

Preferred Stock, voting separately as a class (subject to the provisions

of subparagraph (d) below), shall be entitled at the next annual meeting

of the stockholders or at any special meeting to elect two (2) directors.

Each share of Participating Preferred Stock shall be entitled to one vote,

and holders of fractional shares shall have the right to a fractional

vote. Upon election, such directors shall become additional directors of

the corporation and the authorized number of directors of the corporation

shall thereupon be automatically increased by such number of directors.

Such right of the holders of Participating Preferred Stock to elect

directors may be exercised until all dividends in default on the

Participating Preferred Stock shall have been paid in full, and dividends

for the current dividend period declared and funds therefor set apart, and

when so paid and set apart, the right of the holders of Participating

Preferred Stock to elect such number of directors shall cease, the term of

such directors shall thereupon terminate, and the authorized number of

directors of the corporation shall thereupon return to the number of

 

 

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authorized directors otherwise in effect, but subject always to the same

provisions for the vesting of such special voting rights in the case of

any such future dividend default or defaults. The fact that dividends have

been paid and set apart as required by the preceding sentence shall be

evidenced by a certificate executed by the President and the chief

financial officer of the corporation and delivered to the Board of

Directors. The directors so elected by holders of Participating Preferred

Stock shall serve until the certificate described in the preceding

sentence shall have been delivered to the Board of Directors or until

their respective successors shall be elected or appointed and qualify.

 

          At any time when such special voting rights have been so

vested in the holders of the Participating Preferred Stock, the Secretary

of the corporation may, and upon the written request of the holders of

record of 10% or more of the number of shares of the Participating

Preferred Stock then outstanding addressed to such Secretary at the

principal office of the corporation in the Commonwealth of Kentucky,

shall, call a special meeting of the holders of the Participating

Preferred Stock for the election of the directors to be elected by them as

hereinabove provided, to be held in the case of such written request

within forty (40) days after delivery of such request, and in either case

to be held at the place and upon the notice provided by law and in the

corporation's By-Laws for the holding of meetings of stockholders;

provided, however, that the Secretary shall not be required to call such

a special meeting (i) if any such request is received less than ninety

(90) days before the date fixed for the next ensuing annual or special

meeting of stockholders or (ii) if at the time any such request is

received, the holders of Participating Preferred Stock are not entitled to

elect such directors by reason of the occurrence of an event specified in

the third sentence of subparagraph (d) below.

 

          (d)  If, at any time when the holders of Participating

Preferred Stock are entitled to elect directors pursuant to the foregoing

provisions of this paragraph 4, the holders of any one or more additional

series of Preferred Stock are entitled to elect directors by reason of any

default or event specified in the corporation's Restated Certificate of

Incorporation, as amended, as in effect at the time of the certificate of

designation for such series, and if the terms for such other additional

series so permit, the voting rights of the two or more series then

entitled to vote shall be combined (with each series having a number of

votes proportional to the aggregate liquidation preference of its

outstanding shares). In such case, the holders of Participating Preferred

Stock and of all such other series then entitled so to vote, voting as a

class, shall elect such directors. If the holders of any such other series

have elected such directors prior to the happening of the default or event

permitting the holders of Participating Preferred Stock to elect

directors, or prior to a written request for the holding of a special

meeting being received by the Secretary of the corporation from the

holders of not less than 10% of the then outstanding shares of

Participating Preferred Stock, then such directors so previously elected

will be deemed to have been elected by and on behalf of the holders of

Participating Preferred Stock as well as such other series, without

prejudice to the right of the holders of Participating Preferred Stock to

vote for directors if such previously elected directors shall resign,

cease to serve or fail to stand for reelection while the holders of

Participating Preferred Stock are entitled to vote. If the holders of any

such other series are entitled to elect in excess of two (2) directors,

the Participating Preferred Stock shall not participate in the election of

more than two (2) such directors, and those directors whose terms first

expire shall be deemed to be the directors elected by the holders of

Participating Preferred Stock; provided that, if at the expiration of such

 

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terms the holders of Participating Preferred Stock are entitled to vote in

the election of directors pursuant to the provisions of this paragraph 4,

then the Secretary of the corporation shall call a meeting (which meeting

may be the annual meeting or special meeting of stockholders referred to

in subparagraph (c)) of holders of Participating Preferred Stock for the

purpose of electing replacement directors (in accordance with the

provisions of this subparagraph 4) to be held on or prior to the time of

expiration of the expiring terms referred to above.

 

          (e)  Except as otherwise set forth herein or required by law,

the corporation's Restated Certificate of Incorporation or By-Laws,

holders of Participating Preferred Stock shall have no special voting

rights and their consent shall not be required (except to the extent they

are entitled to vote with holders of Common Stock as set forth herein) for

the taking of any corporate action. No consent of the holders of

outstanding shares of Participating Preferred Stock at any time

outstanding shall be required in order to permit the Board of Directors

to: (i) increase the number of authorized shares of Participating

Preferred Stock or to decrease such number to a number not below the sum

of the number of shares of Participating Preferred Stock then outstanding

and the number of shares with respect to which there are outstanding

rights to purchase; or (ii) to issue Preferred Stock which is senior to

the Participating Preferred Stock, junior to the Participating Preferred

Stock or on a parity with the Participating Preferred Stock.

 

     5.   Redemption. The shares of Participating Preferred Stock shall

not be redeemable.

 

     6.   Conversion Rights. The Participating Preferred Stock is not

convertible into Common Stock or any other security of the corporation.

 

     FIFTH: This corporation is to have perpetual existence.

 

     SIXTH: The private property of the stockholders shall not be subject

to the payment of corporate debts to any extent whatsoever.

 

     SEVENTH: In the absence of fraud, no contract or transaction between

the corporation and any other corporation, association or firm, and no act

of the corporation, shall in any way be affected or invalidated by the

fact that any of the directors or officers of the corporation is in

anywise, pecuniarily or otherwise, interested in, or is a shareholder,

director, officer or member of, or is otherwise connected with, such other

corporation, association or firm. A director or officer of the corporation

shall not be disqualified by his office from dealing or contracting with

the corporation, either as vendor, purchaser or otherwise; and any

director or officer of the corporation, or any firm, corporation or

association of which any director or officer is a member, shareholder,

director or officer or with which he is otherwise connected, may, in the

absence of fraud, be a party to, or pecuniarily or otherwise interested

in, any contract or transaction of the corporation; nor shall any such

officer or directors, in the absence of fraud, be liable to account to the

corporation for any profits realized by, from, through or as a result of

any such contract or transaction.

 

     EIGHTH: Whenever a compromise or arrangement is proposed between

this corporation and its creditors or any class of them and/or between

this corporation and its stockholders or any class of them, any court of

equitable jurisdiction within the State of Delaware may, on the

application in a summary way of this corporation or of any creditor or

stockholder thereof, or on the application of any receiver or receivers

appointed for this corporation under the provisions of Title 8, Section

 

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291 of the Revised Code of 1953 of said State, or on the application of

trustees in dissolution or of any receiver or receivers appointed for this

corporation under the provisions of Section 279 of the General Corporation

Law of the State of Delaware, order a meeting of the creditors or class of

creditors and/or of the stockholders or class of stockholders, of this

corporation, as the case may be, to be summoned in such manner as the said

court directs. If a majority in number representing three-fourths in value

of the creditors or class of creditors, and/or of the stockholders or

class of stockholders, of this corporation, as the case may be, agree to

any compromise or arrangement and to any reorganization of this

corporation as a consequence of such compromise or arrangement, the said

compromise or arrangement and the said reorganization shall, if sanctioned

by the Court to which the said application has been made, be binding on

all the creditors or class of creditors, and/or on all the stockholders or

class of stockholders, of this corporation, as the case may be, and also

on this corporation.

 

     NINTH: The following provisions are hereby adopted for the

regulation and management of the business and the conduct of the affairs

of the corporation and for the purposes of creating, limiting, defining

and regulating the rights and powers of the directors and of the

stockholders,

viz.:

 

          (a)  The Board of Directors at any regular or special

meeting, and the stockholders at any annual meeting, shall have the power

to make, alter, amend and repeal the By-Laws of the corporation, provided,

however, that By-Laws made or adopted by the Stockholders pursuant to the

powers reserved to Stockholders in the Certificate of Incorporation shall

not be subject to alteration or repeal by the Board of Directors, and

provided further that the Board of Directors or the Stockholders shall not

have authority to authorize the election of directors of the corporation

by cumulative voting, or to classify the directors by terms differing in

dates of expiration, unless by unanimous approval of the Stockholders of

the corporation.

 

          (b)  The Board of Directors shall have the power to fix, from

time to time, the amount of the accumulated profits of the corporation to

be reserved as working capital or for any other lawful purpose.

 

          (c)  The Board of Directors shall have the power to

determine, from time to time, whether and to what extent and at what times

and places and under what conditions and regulations the accounts and

books of the corporation, or any of them, shall be open to the inspection

of the stockholders; and no stockholder shall have any rights to inspect

any account or book or document of the corporation, except as conferred by

the laws of the State of Delaware, unless and until authorized so to do by

resolution of the Board of Directors or stockholders of the corporation.

 

          (d)  The Board of Directors shall have power, without the

assent or vote of the stockholders, to authorize and to cause to be

executed mortgage and liens upon the real and personal property of the

corporation, including after-acquired property.

 

          (e)  The Board of Directors shall have power at any time or

from time to time (without any action by the stockholders of the

corporation) to create and issue, whether or not in connection with the

issue and sale of any shares of stock or other securities of the

corporation, rights, options or warrants entitling the holders thereof to

purchase from the corporation any shares of its capital stock of any class

or classes or of any series of any class or classes, such rights, options

 

                              10

 

<PAGE>

 

or warrants to be evidenced by or in such instrument or instruments as

shall be approved by the Board of Directors. The terms upon which, the

time or times, which may be limited or unlimited in duration, at or within

which, and the price or prices at which any such shares may be purchased

from the corporation upon the exercise of any such right, option, or

warrant shall be such as shall be fixed and stated in the resolution or

resolutions adopted by the Board of Directors providing for the creation

and issue of such rights, options, or warrants and, in every case, set

forth or incorporated by reference in the instrument or instruments

evidencing such rights, options or warrants. In the absence of actual

fraud in the transaction, the judgment of the directors as to the

consideration for the issuance of such rights, options or warrants and the

sufficiency thereof shall be conclusive.

 

          (f)  Shares of capital stock of the corporation of any class

or classes hereby or hereafter authorized, and any rights, options or

warrants entitling the holders thereof to purchase from the corporation

any shares of its capital stock of any class or classes or of any series

of any class or classes, may be issued by the corporation from time to

time for such legal consideration as may be fixed from time to time by the

Board of Directors. The Board of Directors shall have authority, as

provided by statute, to determine that only a part of the consideration

which shall be received by the corporation for any of the shares of its

capital stock which it shall issue from time to time shall be capital.

 

          (g)  The Board of Directors shall have the power to determine

from time to time the use and disposition of any surplus or net profits

over and above the paid in capital stock of the corporation, and the Board

of Directors in its discretion may use and apply any such surplus or

accumulated profits, or any part thereof, in purchasing or acquiring any

bonds or other obligations or shares of the capital stock of the

corporation, to such extent, in such manner and upon such terms as the

Board may deem expedient. Shares of the capital stock of the corporation

so purchased or acquired may be resold unless such shares shall have been

retired for the purpose of decreasing the corporation's capital stock as

provided by law.

 

          (h)  Elections shall be by ballot whenever requested by any

person entitled to vote, but unless so requested may be conducted in any

way approved at the meeting of the stockholders at which such election is

held.

 

          (i)  The stockholders shall have the power to hold their

meeting within or without the State of Delaware at such places as from

time to time may be designated by the By-Laws or as therein provided; and

the Board of Directors shall have power to hold its meetings at such

places whether within or without said State as from time to time shall be

designated by resolution of the Board of Directors.

 

          (j)  The corporation shall have power, subject to the

provisions of the laws of the State of Delaware and of the By-Laws of the

corporation to keep the books of the corporation outside of said State at

such places as may from time to time be designated by resolution of the

Board of Directors.

 

          (k)  The Board of Directors may, by resolution passed by a

majority of the whole Board, designate two or more of their number to

constitute an Executive Committee, who, to the extent provided in said

resolution or in the By-Laws of the corporation, shall have and exercise

the powers of the Board of Directors in the management of the business and

affairs of the corporation, including the power to authorize the seal of

the corporation to be affixed to all papers which may require it.

 

                              11

 

<PAGE>

          (l)  In addition to the powers and authorities hereinbefore

or by statute expressly conferred upon them, the Board of Directors may

exercise all such powers and do all such acts and things as may be

exercised or done by the corporation; subject, nevertheless, to the

provisions of the laws of the State of Delaware, of this Certificate, and

of the By-Laws of the corporation.

 

          (m)  The corporation shall be entitled to treat the person in

whose name any share, right or option is registered as the owner thereof,

for all purposes, and shall not be bound to recognize any equitable or

other claim to or interest in which share, right or option on the part of

any other person, whether or not the corporation shall have notice

thereof, save as may be expressly provided by the laws of the State of

Delaware.

 

          (n)  In addition to the powers and authorities hereinbefore

or by statute expressly conferred upon them, the Board of Directors may

exercise all such powers and do all such acts and things as may be

exercised or done by the corporation; subject, nevertheless, to the

provisions of the laws of the State of Delaware, of this Certificate and

of the By-Laws of the corporation.

 

     TENTH: 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 except for liability (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

Delaware General Corporation Law, or (iv) for any transaction from which

the director derived an improper personal benefit.

 

     ELEVENTH: Except as otherwise set forth elsewhere in this Eleventh

Article the affirmative vote of three-fourths of the outstanding shares

entitled to vote thereon shall be required:  (a) for the adoption of any

agreement for the merger or consolidation of the corporation with or into

a related company or an affiliate of a related company, (b) to authorize

the sale or lease of all or substantially all of the assets of the

corporation to a related company or affiliate of a related company, or (c)

to authorize the sale or lease to the corporation or any subsidiary of any

assets of a related company or an affiliate of a related company in

exchange for equity securities of the corporation.

 

     A determination of the Board of Directors of the corporation, based

on information known to the Board of Directors and made in good faith,

shall be conclusive as to whether a company, person or other entity is a

related company, an affiliate or an associate and whether a related person

or affiliate thereof beneficially owns more than 5% of any class of equity

securities of the corporation.

 

     The provisions of this Eleventh Article shall not be applicable to

any (i) merger or consolidation of the corporation with or into a related

person or affiliate thereof, (ii) sale or lease of all or any substantial

part of the assets of the corporation to a related person or affiliate

thereof, or (iii) sale or lease of any assets of a related person or

affiliate thereof to the corporation or any subsidiary in exchange for

equity securities of the corporation, if the Board of Directors of the

corporation shall have approved such a transaction with such related

company or affiliate prior to the time that such related company or

affiliate became a holder of more than 5% of any class of equity

securities of the corporation.

 

                              12

 

<PAGE>

 

 

The provisions of this Eleventh Article shall be in addition to the

requirements of the Delaware Corporation Law and shall not be requirements

of the Delaware Corporation Law and shall not be amended or repealed

without the affirmative vote of three-fourths of the outstanding stock of

the corporation entitled to vote thereon.

 

     For purposes of this Eleventh Article a "related company" in respect

of a given transaction is any company, person or other entity which by

itself or together with its affiliates and associates is the beneficial

owner, directly or indirectly, of more than 5% of any class of equity

securities of the corporation as of the record date for the determination

of stockholders entitled to vote on such transactions.  An "affiliate" of

a related company is any company, person or other entity which, directly

or indirectly, through one or more intermediaries, controls or is

controlled by, or is under common control with, the related company.  An

"associate" of a related company is any officer, director or beneficial

owner, directly or indirectly, of 5% or more of any class of equity

securities of such related company or any of its affiliates.  "Equity

security" is any stock or similar security, or any security, convertible,

with or without consideration, into such a security, or carrying any

warranty to subscribe to or purchase such a security, or any such warrant

or right.

 

     A related company shall be deemed to be the beneficial owner of any

equity securities which it or its affiliates or associates has the right

to acquire pursuant to any agreement or which are beneficially owned,

directly or indirectly, by any other company, person or entity (or an

affiliate or associate of such company, person, or entity) with which it

or its affiliates or associates has any agreement or understanding for the

purpose of acquiring, holding, voting or disposing of any equity

securities of the corporation.

 

     TWELFTH: This corporation reserves the right to amend, alter, change

or repeal any provisions contained in this Certificate of Incorporation in

the manner now or hereafter prescribed by the statue, and all rights

conferred upon stockholders herein are granted subject to this

reservation.

 

     IN WITNESS WHEREOF, HUMANA INC. has caused its corporate seal to be

hereunto affixed and this Restated Certificate of Incorporation to be

signed by Thomas J. Flynn, its Executive Vice President and Alice F.

Newton, its Secretary, this 8th day of November, 1989.

 

                                    HUMANA INC.

 

 

                                    By:  THOMAS J. FLYNN

                                         Executive Vice President

 

 

                                    By:  ALICE F. NEWTON

                                         Secretary

 

 

 

Amended Article Fourth:        January 9, 1992

Corrected Article Eleventh:    March 23, 1992

 

                              13

 

<PAGE>

 

 

COMMONWEALTH OF KENTUCKY  )

                          )  SS.

COUNTY OF JEFFERSON       )

 

     BE IT REMEMBERED, that on this 8th day of November, 1989, personally

came before me, a Notary Public in the County and Commonwealth aforesaid,

Thomas J. Flynn and Alice F. Newton, Executive Vice President and

Secretary, respectively, of HUMANA INC., a corporation of the State of

Delaware, the corporation described in and which executed the foregoing

Restated Certificate of Incorporation, known to me personally to be such,

and, they, the said Thomas J. Flynn and Alice F. Newton, as such Executive

Vice President and Secretary, respectively, duly executed said Certificate

before me and acknowledged the said Certificate to be their act and deed

and the act and deed of said corporation and that the facts stated in said

Certificate are true; that the signatures of the said Executive Vice

President and Secretary, respectively, of said corporation to the

foregoing Certificate are in the handwriting of the said Executive Vice

President and Secretary, respectively, and that the seal affixed to said

Certificate is the corporate seal of said corporation.

 

     IN WITNESS WHEREOF, I have hereunto set my hand and seal of office

the day and year first above written.

 

 

                          LISA J. BENSON

                          Notary Public, Jefferson County, Kentucky

 

 

                          My commission expires:  October 11, 1993

 

 

[As Filed: 02-02-1994]