CERTIFICATE OF INCORPORATION
OF
PROFESSIONAL DETAILING, INC.
The undersigned, being a natural person, solely for the purpose of
organizing a corporation under the provisions and subject to the requirements of
the laws of the State of Delaware (particularly Chapter 1, Title 8 of the
Delaware Code and the acts amendatory thereof and supplemental thereto, and
known, identified and referred to as the "General Corporation Law of the State
of Delaware"), hereby certifies that:
FIRST: The name of the corporation is Professional Detailing,
Inc. (hereinafter called the "Corporation").
SECOND: The address of the registered office of the Corporation
in the State of Delaware is 9 East Loockerman Street, Dover, Delaware 11901. The
name of the registered agent of the Corporation at such address is National
Registered Agents, Inc. The Corporation's principle executive offices are
located at 599 MacArthur Boulevard, Mahwah, New Jersey 07430.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock which
this Corporation shall have authority to issue is 35,000,000 shares, consisting
of (i) 30,000,000 shares of Common Stock, $.01 par value per share ("Common
Stock"), and (ii) 5,000,000 shares of Preferred Stock, $.01 par value per share
("Preferred Stock").
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of this Corporation.
(a) COMMON STOCK.
1. General. All shares of Common Stock are of one class. All
authorized and outstanding shares of Common Stock are to be fully
paid and non-assessable. The Common Stock has no preemptive,
conversion or other subscription rights to subscribe for any
shares of any class of stock of this Corporation whether
now or hereafter authorized. The holders of Common Stock are
entitled to one vote for each share held of record on all matters
submitted to a vote of stockholders. The voting, dividend and
liquidation rights of the holders of the Common Stock are subject
to and qualified by the rights of the holders of the Preferred
Stock of any series as may be designated by the Board of
Directors upon any issuance of the Preferred Stock of any series.
2. No Pre-emptive Rights. No holder of any of the shares of the
Common Stock of the Corporation, whether now or hereafter
authorized and issued, shall be entitled as of right to purchase
or subscribe for (1) any unissued stock of any class, or (2) any
additional shares of any class to be issued by reason of any
increase of the authorized capital stock of the Corporation of
any class, or (3) bonds, certificates of indebtedness, debentures
or other securities convertible into stock of the Corporation, or
carrying any right to purchase stock of any class, but any such
unissued stock or such additional authorized issue of any stock
or of other securities convertible into stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant
to resolution of the Board of Directors to such persons, firms,
partnerships, corporations, associations or other entities and
upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its discretion.
3. Voting. The holders of the Common Stock are entitled to one
vote for each share held at all meetings of stockholders. There
shall be no cumulative voting. The number of authorized shares of
Common Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the stock of this
Corporation entitled to vote, irrespective of the provisions of
Section 242(b)(2) of the General Corporation Law of the State of
Delaware.
4. Dividends. Dividends may be declared and paid on the Common
Stock from funds lawfully available therefor as and when
determined by the Board of Directors and subject to any
preferential dividend rights of any then outstanding Preferred
Stock.
5. Liquidation. Upon the dissolution or liquidation of this
Corporation, whether voluntary or involuntary, holders of Common
Stock will be entitled to receive all assets of this Corporation
available for distribution to its stockholders, subject to any
preferential rights of any then outstanding Preferred Stock.
(b) PREFERRED STOCK.
1. General. The Board of Directors, in the exercise of its
discretion, is authorized to issue the undesignated Preferred
Stock in one or more series, to determine the powers, preferences
and rights, and qualifications, limitations or restrictions,
granted to or imposed upon any wholly unissued series of
undesignated
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Preferred Stock, and to fix the number of shares constituting any
series and the designation of such series, without any further
vote or action by the stockholders.
2. No Pre-emptive Rights. No holder of any of the shares of any
series of Preferred Stock of the Corporation, whether now or
hereafter authorized and issued, shall be entitled as of right to
purchase or subscribe for (1) any unissued stock of any class, or
(2) any additional shares of any class to be issued by reason of
any increase of the authorized capital stock of the Corporation
of any class, or (3) bonds, certificates of indebtedness,
debentures or other securities convertible into stock of the
Corporation, or carrying any right to purchase stock of any
class, but any such unissued stock or such additional authorized
issue of any stock or of other securities convertible into stock,
or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to
such persons, firms, partnerships, corporations, associations or
other entities and upon such terms as may be deemed advisable by
the Board of Directors in the exercise of its discretion.
FIFTH: The name and the mailing address of the incorporator are
as follows:
Name Mailing Address
---- ---------------
Terence O'Brien Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, New York 10022
SIXTH: The powers of the incorporator are to terminate upon the
filing of the Certificate of Incorporation.
SEVENTH: (a) The management of the business and the conduct of
the affairs of the Corporation shall be vested in its Board of Directors. The
phrase "whole Board" and the phrase "total number of directors" shall be deemed
to have the same meaning, to wit, the total number of directors which the
Corporation would have if there were no vacancies. The original or other Bylaws
of the Corporation may be adopted, amended or repealed by the initial directors.
After the original or other Bylaws of the Corporation have been adopted,
amended, or repealed, as the case may be, in accordance with the provisions of
Section 109 of the General Corporation Law of the State of Delaware, and after
the Corporation has received any payment for any of its stock, the power to
adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the
Board of Directors of the Corporation.
(b) Until the consummation of an initial public offering (an
"IPO") of the Common Stock under the Securities Act of 1933, as amended (the
"Act"), the Corporation shall have one or more directors, the number of
directors to be determined from time to time
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by vote of a majority of the directors then in office. Immediately upon the
consummation of an IPO, the following provisions shall apply:
1. Number of Directors. The number of directors of the
Corporation shall not be less than one. The exact number of
directors within the limitations specified in the preceding
sentence shall be fixed from time to time by, or in the manner
provided in, the Corporation's Bylaws.
2. Classes of Directors. The Board of Directors shall be and is
divided into three classes: Class I, Class II and Class III. No
one class shall have more than one director more than any other
class. If a fraction is contained in the quotient arrived at by
dividing the designated number of directors by three, then if
such fraction is one-third, the extra director shall be a member
of Class II, and if such fraction is two-thirds, one of the extra
directors shall be a member of Class II and one of the extra
directors shall be a member of Class III, unless otherwise
provided from time to time by resolution adopted by the Board of
Directors. The persons who shall serve as the initial Class I,
Class II and Class III directors upon consummation of the IPO may
be designated by the Board of Directors prior to such IPO.
3. Election of Directors/Terms of Office. Election of directors
need not be by written ballot except as and to the extent
provided in the Bylaws of the Corporation. Except as otherwise
provided herein, each director shall serve for a term ending on
the date of the third annual meeting of the stockholders
following the annual meeting at which such director was elected.
A director shall hold office until the annual meeting for the
year in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office
for cause. Each initial Class I director shall serve for a one
year term; each initial Class II director shall serve for a two
year term; and each initial Class III director shall serve for a
three year term. Notwithstanding the foregoing, the term of each
director shall be subject to the election and qualification of
his successor and to his earlier death, resignation or removal.
4. Allocation of Directors among Classes in the Event of
Increases or Decreases in the Number of Directors. In the event
of any increase or decrease in the authorized number of
directors, (i) each director then serving as such shall
nevertheless continue as a director of the class of which he is a
member and (ii) the newly created or eliminated directorships
resulting from such increase or decrease shall be apportioned
among the three classes of directors so as to ensure that no one
class has more than one director more than any other class. To
the extent possible, consistent with the foregoing rule, any
newly created directorships shall be added to those classes whose
terms of office are to expire at the latest dates following such
allocation, and any newly eliminated directorships shall be
subtracted from those classes whose terms of offices are to
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expire at the earliest dates following such allocation, unless
otherwise provided from time to time by resolution adopted by the
Board of Directors.
5. Preferred Stock Directors. Notwithstanding the foregoing,
whenever the holders of any one or more classes or series of
Preferred Stock issued by the Corporation shall have the right to
vote separately by class or series to elect directors at an
annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such
directorships shall be governed by the terms of this Certificate
of Incorporation applicable thereto, and such directors so
elected shall not be divided into classes provided by this
Article Seventh, unless expressly provided by such terms.
6. Removal. Directors of the Corporation may be removed only for
cause by the affirmative vote of the holders of at least
two-thirds of the shares of capital stock of the Corporation
issued and outstanding and entitled to vote generally in the
election of directors.
7. Vacancies. Any vacancy in the Board of Directors, however
occurring, including a vacancy resulting from an enlargement of
the Board of Directors, shall be filled only by a vote of a
majority of directors then in office, although less than a
quorum, or by a sole remaining director. A director elected to
fill a vacancy shall be elected to hold office until the next
election of the class for which such director shall have been
chosen, subject to the election and qualification of his
successor and to his earlier death, resignation or removal.
8. Stockholder Nominations and Introductions of Business. Advance
notice of stockholder nominations for election of directors and
other business to be brought by stockholders before either an
annual or special meeting of stockholders shall be given in the
manner provided by the Bylaws of the Corporation.
9. Committees. Wherever the term "Board of Directors" is used in
this Certificate of Incorporation, such term shall mean the Board
of Directors of the Corporation; provided, however that to the
extent any committee of directors of the Board of Directors
exists, such committee may exercise any right or authority of the
Board of Directors under this Certificate of Incorporation.
10. Amendments to Article. Notwithstanding any other provision of
law, this Certificate of Incorporation or the Bylaws of the
Corporation, each as amended, and notwithstanding the fact that a
lesser percentage may be specified by law, the affirmative vote
of the holders of at least seventy-five percent (75%) of the
shares of capital stock of the Corporation issued and outstanding
and entitled to vote generally in the election of directors shall
be required to amend or repeal or to adopt any provision
inconsistent with this Article SEVENTH.
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EIGHTH:The Corporation is to have perpetual existence.
NINTH: 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
ss. 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
ss. 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholder or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
TENTH: Whenever the Corporation shall be authorized to issue only
one class of stock each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever the
Corporation shall be authorized to issue more than one class of stock no
outstanding share of any class of stock which is denied voting power under the
provisions of the Certificate of Incorporation shall entitle the holder thereof
to the right to vote at any meeting of stockholders except as the provisions of
paragraph (c)(2) of Section 242 of the General Corporation Law of the State of
Delaware shall otherwise require; provided, that no share of any such class
which is otherwise denied voting power shall entitle the holder thereof to vote
upon the increase or decrease in the number of authorized shares of said class.
ELEVENTH: 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.
TWELFTH: (a) Right to Indemnification. Each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit, claim or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer, of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or
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of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators: provided,
however, that, except as provided in paragraph (b) hereof, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition: provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer (in his or her capacity as a
director or officer and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers mentioned in this Article
Twelfth. Notwithstanding the indemnification provisions throughout the
Certificate of Incorporation, the Corporation shall not be obligated,
contractually or otherwise, to indemnify its directors and officers with respect
to proceedings initiated or brought by any officer or director and not by way of
defense, or, for any amounts paid in settlement of any proceeding against any
officer or director, without the prior written consent of the Company.
(b) Right of Claimant to Bring Suit. If a claim under paragraph
(a) of this Article is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
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Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard or conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
THIRTEENTH: From time to time any of the provisions of this
Certificate of Incorporation may be amended, altered or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the Corporation by
this Certificate of Incorporation are granted subject to the provisions of this
Article Thirteenth.
FOURTEENTH: Meetings of the stockholders may be held within or
without the State of Delaware, as the Bylaws, amendments thereto, or amendments
to this Certificate of Incorporation may provide. The books of the Corporation
may be kept outside of the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or by the Bylaws, and
amendments thereto, or by the amendments to this Certificate of Incorporation.
FIFTEENTH: At any time during which a class of capital stock of
this Corporation is registered under Section 12 of the Securities Exchange Act
of 1934 or any similar successor statute, stockholders of this Corporation may
not take any action by written consent in lieu of a meeting. Notwithstanding any
other provisions of law, this Certificate of Incorporation or the Bylaws of this
Corporation, and notwithstanding the fact that a lesser percentage may be
specified by law, the affirmative vote of the holders of at least seventy-five
percent (75%) of the shares of capital stock of this Corporation issued and
outstanding and entitled to vote generally in the election of directors shall be
required to amend or repeal, or to adopt any provision inconsistent with, this
Article Fifteenth.
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SIXTEENTH: Special meetings of stockholders may be called at any
time by only the Chairman of the Board of Directors of the Corporation, the
Chief Executive Officer (or if there is no Chief Executive Officer, the
President) or the Board of Directors of the Corporation. Business transacted at
any special meeting of stockholders shall be limited to matters relating to the
purpose or purposes stated in the notice of meeting. Notwithstanding any other
provision of law, the Certificate of Incorporation or the Bylaws of the
Corporation, and notwithstanding the fact that a lesser percentage may be
specified by law, the affirmative vote of the holders of at least seventy-five
percent (75%) of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote generally in the election of directors shall be
required to amend or repeal, or to adopt any provision inconsistent with this
Article Sixteenth.
Dated: February 10, 1998
/s/ TERENCE O'BRIEN
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TERENCE O'BRIEN, INCORPORATOR