Exhibit 3(i)
RESTATED
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CERTIFICATE OF INCORPORATION
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OF
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NDCHEALTH CORPORATION
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NDCHealth Corporation (the "Corporation"), a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is NDCHealth Corporation. The Corporation
was originally incorporated under the name National Data Corporation and the
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on July 20, 1967.
2. This Restated Certificate of Incorporation of the Corporation restates
and integrates, and does not further amend, the Certificate of Incorporation of
the Corporation as heretofore amended. This Restated Certificate of
Incorporation has been adopted and approved in accordance with Section 245 of
the General Corporation Law of the State of Delaware. Stockholder approval of
this Restated Certificate of Incorporation was not required.
3. The text of the Certificate of Incorporation of the Corporation, as
heretofore amended, is hereby restated to read in its entirety as follows:
FIRST
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The name of the corporation is NDCHealth Corporation.
SECOND
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The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in Wilmington, County of New
Castle. The name of the registered agent at such address is The Corporation
Trust Company.
THIRD
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The nature of the business or purposes to be conducted or promoted is:
1. To plan, develop, operate, and lease data processing systems on a
nationwide basis; to send and receive data by any means of communication; to
provide data collection, control, and processing services to customers for the
purposes of distribution and inventory control, sales recording, personnel,
equipment, and shipments movements and control, cost control, market sampling,
dictation services, general management statistical information, and other
purposes without limitation; to record,
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format, program, and retain data of any type; and to utilize computers, computer
programming, formatting, and communications devices for the purposes of
systematic data collection and disbursement.
2. To manufacture, lease, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade, deal
in and deal with goods, wares and merchandise and personal property of every
class and description.
3. To enter into, make and perform contracts of every kind (including,
without limitation, contracts of guaranty and suretyship) for any lawful purpose
with any person, firm, association or corporation, municipality, body politic,
country, territory, state, government or dependency thereof.
4. To acquire, and pay for in cash, stock or bonds of this Corporation or
otherwise, the goodwill, rights, assets and property, and to undertake or assume
the whole or any part of the obligations or liabilities of any person, firm,
association or corporation.
5. To acquire, hold, use, sell, assign, lease, grant licenses or
franchises in respect of, mortgage or otherwise dispose of letters patent of the
United States or any foreign country, patent rights, licenses and privileges,
inventions, improvements and processes, copyrights, trademarks and trade names,
relating to or useful in connection with any business of this Corporation.
6. To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or
otherwise dispose of or deal in and with any of the shares of the capital stock,
or any voting trusts certificates in respect of the shares of capital stock,
scrip, warrants, rights, bonds, debentures, notes, trust receipts, and other
securities, obligations, choses in action and evidences of indebtedness or
interest issued or created by any corporation, joint stock companies,
syndicates, associations, firms, trusts or persons, public or private, or by the
Government of the United States of America, or by any foreign government, or by
any state, territory, province, municipality or other political subdivision or
by any governmental agency, and as owner thereof to possess and exercise all the
rights, powers and privileges of ownership, including the right to execute
consents and vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and enhancement in value
thereof.
7. To borrow or raise monies for any of the purposes of the Corporation
and, from time to time without limit as to amount, to draw, to make, accept,
endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of any thereof and of
the interest thereon by mortgage upon or pledge, conveyance or assignment in
trust of the whole or any part of the property of the Corporation, whether at
the time owned or thereafter acquired, and to sell, pledge or otherwise dispose
of such bonds or other obligations of the Corporation for its corporate
purposes.
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8. To purchase, receive, take by grant, give, devise, bequest or
otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and
otherwise deal in and with real or personal property, or any interest therein,
wherever situated, and to sell, convey, lease, exchange, transfer or otherwise
dispose of, or mortgage or pledge, all or any of the Corporation's property and
assets, or interests therein, wherever situated.
9. In general, to possess and exercise all the powers and privileges
granted by the General Corporation Law of Delaware or by any other law of
Delaware or by this Certificate of Incorporation together with any powers
incidental thereto, all to the same extent as natural persons might or could do
in any part of the world, as principals, agents, contractors, trustees, or
otherwise, and either alone or in company with others; provided such powers and
privileges are necessary or convenient to the conduct, promotion or attainment
of the business or purposes of the Corporation.
10. The businesses and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in no manner limited or restricted by
reference to, or inference from, the terms of any other clause in this
Certificate of Incorporation, but the business and purposes specified in each of
the foregoing clauses of this article shall be regarded as independent
businesses and purposes.
FOURTH
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1. The Corporation shall have the authority to be exercised by its Board
of Directors to issue 200,000,000 shares of Common Stock of the par value of
$.125 per share (the "Common Stock") and 1,000,000 shares of Preferred Stock of
the par value of $1.00 per share (the "Preferred Stock").
2. Each holder of Common Stock shall at every meeting of the holders of
Common Stock be entitled to one vote in person or by proxy for each share of
Common Stock held by such holder.
3. Authority is hereby expressly granted to and vested in the Board of
Directors to issue the Preferred Stock from time to time in one or more series
with such voting powers, full or limited, or no voting powers, 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 adopted by the Board of
Directors providing for the issue of such series or in a resolution or
resolutions thereafter from time to time adopted as permitted by law. In fixing
and determining the relative rights and preferences of the shares of any series
of the Preferred Stock, the Board of Directors, within the limits from time to
time of the authorized but unissued shares of Common Stock, may provide that
shares of any such series of the Preferred Stock may be convertible into the
same or a different number of shares of Common Stock. In the event the Board of
Directors specifies that the Preferred Stock (or any series thereof) shall be
entitled to voting rights, the voting rights shall be limited to one vote for
each issued and outstanding share of Preferred Stock, and the Common
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Stock and the Preferred Stock, unless otherwise required by law, shall vote
together as one class; provided, however, that the Board of Directors may
provide that the holders of the Preferred Stock (or any series thereof) shall
have greater or alternative voting rights in the event of a default by the
Corporation in the observance by the Corporation of the terms and conditions
relating to the Preferred Stock (or any series thereof).
4. Subject to the rights, if any, of the holders of the Preferred Stock,
or any series thereof, the amount of authorized stock of any class may be
increased or decreased by the affirmative vote of the holders of a majority of
the shares of Common Stock of the Corporation entitled to vote.
5. 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
such share, right or option on the part of any other person, whether or not the
Corporation shall have notice thereof, except as may be expressly provided by
the laws of the State of Delaware.
Pursuant to the authority conferred by this Article Fourth upon the Board
of Directors of the Company, the Board of Directors created a series of shares
of preferred stock designated as Series A Junior Participating Preferred Stock
by filing the Amended Certificate of Designations, Preferences, Limitations and
Relative Rights of Series A Junior Participating Preferred Stock with the
Secretary of State of the State of Delaware on April 10, 2001. The voting
powers, designations, preferences and relative rights and the qualifications,
limitations and restrictions thereof of the Company's Series A Junior
Participating Preferred Stock are set forth in Appendix A hereto and are
incorporated by reference.
FIFTH
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INTENTIONALLY OMITTED
SIXTH
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INTENTIONALLY OMITTED
SEVENTH
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The Corporation is to have perpetual existence.
EIGHTH
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1. The Board of Directors shall be divided into three classes, designated
Class I, Class II and Class III, as nearly equal in number as the then total
number of directors constituting the whole Board permits, with the term of
office of one class expiring each year. At the annual meeting of stockholder in
1986, directors of Class I shall be elected to hold office for a term expiring
at the next succeeding annual meeting,
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directors of Class II shall be elected to hold office for a term expiring at the
second succeeding annual meeting, and directors of Class III shall be elected to
hold office for a term expiring at the third succeeding annual meeting. At each
annual meeting of stockholders, the successors to the class of directors whose
term shall then expire shall be elected to hold office for a term expiring at
the third succeeding annual meeting.
2. The number of directors constituting the whole Board shall be as fixed
from time to time by vote of a majority of the whole Board, provided, however,
that the number of directors shall not be less than three and that the number
shall not be reduced so as to shorten the term of any director in office. The
number of directors constituting the whole Board shall hereafter be six until
otherwise fixed by a majority of the whole Board in accordance with the
preceding sentence. Any vacancies in the Board for any reason, and any newly
created directorships resulting from any increase in the directors, may be
filled by the Board, acting by a majority of the directors then in office, or by
its sole remaining director. Any director so chosen shall hold office until the
next election of the class for which such director shall have been chosen and
until his successor shall be elected and qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Any
newly created or eliminated directorships resulting from an increase or decrease
in the authorized number of directors shall be appointed by the Board among the
three classes of directors so as to maintain such classes as nearly equal as
possible.
3. Any director, or the entire Board of Directors, may be removed from
office at any time, with or without cause, but only by the affirmative vote of
the holders of at least 80% of all classes of stock of the Corporation entitled
to vote in the election of directors, considered for the purposes of this
Article as one class.
4. In furtherance and not in limitation of the powers conferred by
statute, the Board is expressly authorized:
(a) To authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation.
(b) To set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
(c) By a majority of the whole Board, to designate one or more
committees, each committee to consist of two or more of the directors of
the Corporation. The Board may designate one or more directors as
alternative members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, to
the extent provided in a resolution or in the By-Laws of the Corporation,
shall have and may exercise the powers of the Board in the management of
the business and affairs of the Corporation, and may authorize the seal of
the Corporation to be affixed to all papers which may require it; provided,
however, the By-Laws may provide that in
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the absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board to act at a
meeting in place of any such absent or disqualified member.
NINTH
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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 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 Section 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 the provisions of Section 279 of Title 8 of the
Delaware Code 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
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
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Meetings of stockholders may be held within or without the State of
Delaware, in such manner as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-Laws of the Corporation.
Elections of directors need not be by written ballot unless the By-Laws of the
Corporation shall so provide.
ELEVENTH
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The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are subject to this reservation.
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TWELFTH
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1. The provisions of this Article Twelfth shall apply to any of
the following transactions (hereinafter referred to as "Business Combinations");
(a) any merger or consolidation of the Corporation or any of
its affiliates (as hereinafter defined) with or into any other
corporation, person, or other entity which is the beneficial owner,
directly or indirectly, of 10% or more of the outstanding shares of
capital stock of the Corporation entitled to vote in the election of
directors; or
(b) any sale, lease, exchange, or other disposition (in one
transaction or in a series of related transactions) of all or
substantially all of the assets of the Corporation or any of its
affiliates to any other corporation, person or other entity which is
the beneficial owner, directly or indirectly, of 10% or more of the
outstanding shares of capital stock of the Corporation entitled to vote
in the election of directors; or
(c) any sale, lease, exchange, or other disposition (in one
transaction or in a series of related transactions) to the Corporation
or any of its affiliates of any assets, cash, or securities in exchange
for shares of capital stock of the Corporation or any of its affiliates
entitled to vote in the election of directors (or securities
convertible into or exchangeable for such shares of capital stock, or
options, warrants, or rights to purchase such shares of capital stock
or securities convertible into or exchangeable for such shares of
capital stock) by any corporation, person, or entity which is the
beneficial owner, directly or indirectly, of 10% or more of the
outstanding shares of capital stock of the Corporation entitled to vote
in the election of directors; or
(d) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation; or
(e) any reclassification of securities (including any reverse
stock split), recapitalization or other transaction which would result
in a decrease in the number of holders of the outstanding shares of
capital stock of the Corporation entitled to vote in the election of
directors after any other corporation, person or other entity has
acquired 25% or more of the outstanding shares of capital stock of the
Corporation entitled to vote in the election of directors, unless the
Board of Directors of the Corporation shall have authorized such
Business Combination prior to the time that any such corporation,
person or other entity became the beneficial owner, directly or
indirectly, of 25% or more of the outstanding shares of capital stock
of the Corporation entitled to vote in the election of directors.
A corporation, person or other entity which is the beneficial owner,
directly or indirectly, of 10% or more of the outstanding shares of capital
stock of the Corporation entitled to vote in the election of directors (taken
together as a single class) is herein
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referred to as the "Acquiring Entity." For the purpose of this Article, the term
"affiliate" shall have the meaning defined in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934 as in effect on July
1, 1979.
2. No Business Combination shall be effected unless it is approved
at a meeting of the Corporation's stockholders called for that purpose. The
affirmative vote of the holders of at least 66 2/3% of all classes of capital
stock of the Corporation entitled to vote in the election of directors,
considered for the purposes of this Article as one class, shall be required for
approval of any such Business Combination, excluding all shares of such capital
stock beneficially owned, directly or indirectly, by the Acquiring Entity from
the number of shares deemed to be outstanding at the time of such vote and from
such vote on the Business Combination. The affirmative vote required by this
Article shall be in addition to the vote of the holders of any class or series
of capital stock of the Corporation otherwise required by law, or by the
Certificate of Incorporation of the Corporation, or by the resolution providing
for the issuance of a class or series of stock which has been adopted by the
Board of Directors, or by any agreement between the Corporation and any national
securities exchange.
3. In addition to the affirmative vote required by law or under any
other provision of this Certificate of Incorporation, no Business Combination
shall be effected unless all of the following conditions, to the extent
applicable, are fulfilled.
(a) The ratio of (i) the aggregate amount of the cash and the
fair market value of the other consideration to be received per share
by the holders of the Common Stock of the Corporation in the Business
Combination to (ii) the market price of the Common Stock of the
Corporation immediately prior to the announcement of the Business
Combination shall be at least as great as the ratio of (i) the highest
price per share previously paid by the Acquiring Entity (whether before
or after it became an Acquiring Entity) for any of the shares of Common
Stock of the Corporation at any time beneficially owned, directly or
indirectly, by the Acquiring Entity to (ii) the market price of the
Common Stock of the Corporation on the trading date immediately prior
to the earliest date on which the Acquiring Entity (whether before or
after it became an Acquiring Entity) purchased any shares of Common
Stock of the Corporation during the two-year period prior to the date
on which the Acquiring Entity acquired the shares of Common Stock of
the Corporation at any time owned by it for which it paid the highest
price per share (or, if the Acquiring Entity did not purchase any
shares of Common Stock of the Corporation during such two-year period,
the market price of the Common Stock of the Corporation on the date two
years prior to the date on which the Acquiring Entity acquired the
shares of Common Stock of the Corporation at any time owned by it for
which it paid the highest price per share). For purposes of this
Article, the market price of the Common Stock of the Corporation shall
mean the mean between the high "bid" and the low "asked" prices of the
Common Stock in the over-the-counter market on the day on which such
value is to be determined or, if no shares were traded on such day, on
the next preceding day on which shares were traded, as reported by the
National
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Association of Securities Dealers Automatic Quotation System (NASDAQ)
or other national quotation service. If the Common Stock of the
Corporation is not regularly traded in the over-the-counter market but
is registered on a national securities exchange, the market value of
the Common Stock shall mean the closing price of the Common Stock on
such national securities exchange on the day on which such value is to
be determined or, if no shares were traded on such day, on the next
preceding day on which shares were traded, as reported by National
Quotation Bureau, Incorporated or other national quotation service.
(b) The aggregate amount of the cash and the fair market value
of the other consideration to be received per share by the holders of
the Common Stock of the Corporation in the Business Combination shall
be not less than the higher of (i) the highest price per share
previously paid by the Acquiring Entity (whether before or after it
became an Acquiring Entity) for any of the shares of Common Stock of
the Corporation at any time beneficially owned, directly or indirectly,
by the Acquiring Entity, or (ii) the earnings per share of the Common
Stock of the Corporation for the four full consecutive fiscal quarters
immediately preceding the record date for solicitation of votes on the
Business Combination multiplied by the price/earnings multiple on such
record date of the Common Stock of the Acquiring Entity as customarily
computed and reported in the financial community.
(c) The consideration to be received by the holders of the
Common Stock of the Corporation in the Business Combination shall be in
the same form and of the same kind as the consideration paid by the
Acquiring Entity in acquiring the majority of the shares of Common
Stock of the Corporation already beneficially owned, directly or
indirectly, by the Acquiring Entity.
(d) The Acquiring Entity shall not have acquired from the
Corporation, directly or indirectly, any shares of capital stock of the
Corporation entitled to vote in the election of directors except in a
Business Combination to which this Article did not apply or in a
Business Combination to which this Article did apply and which
satisfied all of the requirements of this Article.
(e) After the time when the Acquiring Entity became the
beneficial owner, directly or indirectly, of 25% or more of the
outstanding shares of capital stock of the Corporation entitled to vote
in the election of directors, and prior to consummation of the Business
Combination, the Acquiring Entity (i) shall not have received the
benefit, directly or indirectly, of any loans, advances, extensions of
credit, guarantees, pledges or other financial assistance or tax
benefits provided, directly or indirectly, by the Corporation; (ii)
shall not have acquired, directly or indirectly, any newly issued
shares of stock of the Corporation (except upon conversion of
convertible securities acquired by the Acquiring Entity prior to the
time when it became the beneficial owner, directly or indirectly, of
25% or more of the outstanding shares of capital stock of the
Corporation entitled to vote in the election of directors or except as
a result of a
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pro rata stock dividend or stock split); and (iii) shall not have
acquired any additional shares of capital stock of the Corporation
entitled to vote in the election of directors or securities convertible
into such capital stock except as part of the transaction pursuant to
which the Acquiring Entity became the beneficial owner, directly or
indirectly, of 25% or more of the outstanding shares of such capital
stock.
(f) A proxy statement complying with the requirements of the
Securities Exchange Act of 1934, or any similar or superseding federal
statute, as then in effect (whether or not the provisions of such act
or statute shall be applicable to the Corporation) shall be mailed to
stockholders of the Corporation for the purpose of soliciting approval
of the Business Combination and shall contain therein, in a prominent
place, a detailed statement showing that the Business Combination, if
approved by the stockholders of the Corporation, will comply with the
terms and provisions of this Article.
4. For the purpose of this Article, any corporation, person or
entity will be deemed to be a beneficial owner of or to beneficially own any
share or shares of capital stock of the Corporation:
(a) which it owns directly, whether or not of record, or
(b) which it has the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement or arrangement or understanding or upon exercise of
conversion rights, exchange rights, warrants or options or otherwise,
or which it has the right to vote pursuant to any agreement,
arrangement, or understanding, or
(c) which are beneficially owned, directly or indirectly
(including shares deemed to be owned through application of clause (b)
above), by any "affiliate" or "associate" as those terms are defined in
Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934 as in effect on July 1, 1979, or
(d) which are beneficially owned, directly or indirectly
(including shares deemed to be owned through application of clause (b)
above), by any other corporation, person or entity with which it or any
of its "affiliates" or "associates" have any agreement or arrangement
or understanding for the purpose of acquiring, holding, voting or
disposing of shares of capital stock of the Corporation entitled to
vote in the election of directors.
For the purpose only of determining whether a corporation, person or
other entity beneficially owns, directly or indirectly, any outstanding shares
of capital stock of the Corporation entitled to vote in the election of
directors, the outstanding shares of capital stock of the Corporation entitled
to vote in the election of directors will be deemed to include any such shares
of capital stock that may be issuable pursuant to any agreement,
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arrangement or understanding or upon exercise of conversion rights, exchange
rights, warrants, options or otherwise which are deemed to be beneficially owned
by such corporation, person or other entity pursuant to the foregoing provisions
of this Section 4, but shall not include any other shares which may be issuable
either immediately or at some future date pursuant to any agreement, arrangement
or understanding or upon exercise of conversion rights, exchange rights,
warrants, options, or otherwise.
5. The provisions of this Article shall not apply to a Business
Combination which was approved by the Board of Directors of the Corporation
prior to the time when the Acquiring Entity became the beneficial owner,
directly or indirectly, of 10% or more of the outstanding shares of capital
stock of the Corporation entitled to vote in the election of directors. The
provisions of this Article also shall not apply to a Business Combination which
(i) does not change any stockholder's percentage ownership in the shares of
capital stock entitled to vote in the election of directors in any successor of
the Corporation from the percentage of the shares of such capital stock
beneficially owned by such stockholder in the Corporation, (ii) provides for the
provisions of this Article, without any amendment, change, alteration or
deletion, to apply to any successor to the Corporation, and (iii) does not
transfer all or substantially all of the Corporation's assets, other than to a
wholly-owned subsidiary of the Corporation; provided, however, that nothing
contained in this Section 5 shall permit the Corporation to issue any of its
shares of capital stock entitled to vote in the election of directors or to
transfer any of its assets to a wholly-owned subsidiary of the Corporation if
such issuance of stock or transfer of assets is part of the plan to transfer
such stock or assets to an Acquiring Entity.
6. Nothing contained in this Article shall be construed to relieve an
Acquiring Entity from any fiduciary obligation imposed by law. In addition,
nothing contained in this Article shall prevent any stockholders of the
Corporation from objecting to any Business Combination and from demanding any
appraisal rights which may be available to such stockholder under Section 262 of
the Delaware General Corporation Law, as such Section may be amended from time
to time.
7. No amendment, alteration, change or repeal of any provision of this
Article may be effected unless it is approved at a meeting of the Corporation's
stockholders called for that purpose. Notwithstanding any other provision of the
Certificate of Incorporation, the affirmative vote of the holders of at least 66
2/3% of all classes of capital stock of the Corporation entitled to vote in the
election of directors, considered for purposes of this Article as one class,
shall be required to amend, alter, change or repeal, directly or indirectly, any
provision of this Article, excluding all shares of such capital stock
beneficially owned, directly or indirectly, by the Acquiring Entity from the
number of shares deemed to be outstanding at the time of such vote and from such
vote on such amendment, alteration, change or repeal of any provision of this
Article.
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THIRTEENTH
Notwithstanding any other provision of this Certificate of Incorporation or
the By-Laws of the Corporation to the contrary, no action shall be taken by the
stockholders of the Corporation except at an annual or a special meeting of the
stockholders of the Corporation.
FOURTEENTH
1. The Board shall have the power to alter, amend or repeal the By-Laws of
the Corporation or adopt new By-Laws, but any By-Laws adopted by the Board may
be altered, amended or repealed, and new By-Laws adopted, by the stockholders of
the Corporation. The stockholders may prescribe that any By-Laws adopted by them
shall not be altered, amended or repealed by the Board.
2. Notwithstanding the foregoing and anything contained in this
Certificate of Incorporation or the By-Laws of the Corporation to the contrary,
any action taken by the Board with respect to altering, amending or repealing
any provision of the By-Laws of the Corporation, or adopting new By-Laws, shall
be effected only by the affirmative vote of at least two-thirds (2/3) of the
total number of directors then holding office.
3. Notwithstanding the foregoing and anything contained in this
Certificate of Incorporation or the By-Laws of the Corporation to the contrary,
any action taken by the stockholders of the Corporation with respect to
altering, amending, or repealing any provision of the By-Laws of the
Corporation, or adopting new By-Laws, or altering, amending or repealing Article
Eighth, Thirteenth, or this Article Fourteenth of the Corporation's Certificate
of Incorporation, shall be effected only by the affirmative vote of the holders
of at least eighty percent (80%) of all classes of stock of the Corporation
entitled to vote in the election of directors, considered for the purposes of
this Article as one class.
FIFTEENTH
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that nothing in this Article Fifteenth shall be
construed so as to eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, (iv) for any transaction from which the
director derived an improper personal benefit or (v) for any act or omission
occurring prior to the effective date of this Article Fifteenth. No amendment to
or repeal of this Article Fifteenth shall adversely affect any right, benefit or
protection of a director of the Corporation existing at the time of such
amendment or repeal with respect to any acts or omissions occurring prior to
such amendment or repeal.
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Appendix A
AMENDED CERTIFICATE OF DESIGNATIONS, PREFERENCES, LIMITATIONS
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AND RELATIVE RIGHTS
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OF
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SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
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OF
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NDCHEALTH CORPORATION
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NDCHealth Corporation, a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY:
That, the Corporation has designated 1,000,00 shares of its Preferred
Stock, par value $1.00 per share (the "Preferred Stock") as Series A Junior
Participating Preferred Stock of the Corporation ("Series A Shares") pursuant to
a Certificate of Designations, originally filed with the Secretary of State of
Delaware on January 22, 1991, and as amended pursuant to an Amended Certificate
of Designations filed with the Secretary of State of Delaware on October 28,
1996 ("Certificate of Designations");
That, none of the Series A Shares have been issued and there are no
securities convertible into the Series A Shares outstanding or reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation;
That, pursuant to the authority conferred upon the Board of Directors of
the Corporation by the Corporation's Certificate of Incorporation, as amended,
the Board of Directors adopted resolutions by unanimous written consent on March
26, 2001 in accordance with the provisions of Section 228 of the Delaware
General Corporation Law, decreasing the number of shares designated as Series A
Shares from 1,000,000 shares to 200,000 shares and replacing the existing
Certificate of Designations in its entirety with the following:
1. Series A Junior Participating Preferred Stock. There is hereby
---------------------------------------------
established a series of Preferred Stock, $1.00 par value per share, of the
Corporation, and the designation and certain terms, powers, preferences and
other rights of the shares of such series, and certain qualifications,
limitations and restrictions thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall be
"Series A Junior Participating Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in all respects with the
other shares of this Series except as to the dates from and after which
dividends thereon shall be cumulative.
(ii) The number of shares in this Series shall initially be 200,000,
which number may from time to time be increased or decreased (but not below the
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number then outstanding) by the Board of Directors. Shares of this Series
purchased by the Corporation shall be canceled and shall revert to authorized
but unissued shares of Preferred Stock undesignated as to series. Shares of this
Series may be issued in fractional shares, which fractional shares shall entitle
the holder, in proportion to such holder's fractional share, to all rights of a
holder of a whole share of this Series.
(iii) The holders of full or fractional shares of this Series shall be
entitled to receive, when and as declared by the Board of Directors, but only
out of funds legally available therefor, dividends, (A) on each date that
dividends or other distributions (other than dividends or distributions payable
in Common Stock of the Corporation) are payable on or in respect of Common Stock
comprising part of the Reference Package (as defined below), in an amount per
whole share of this Series equal to the aggregate amount of dividends or other
distributions (other than dividends or distributions payable in Common Stock of
the Corporation) that would be payable on such date to a holder of the Reference
Package and (B) on the last day of March, June, September and December in each
year, in an amount per whole share of this Series equal to the excess (if any)
of $1.00 over the aggregate dividends paid per whole share of this Series during
the three-month period ending on such last day. Each such dividend shall be paid
to the holders of record of shares of this Series on the date, not exceeding 60
days preceding such dividend or distribution payment date, fixed for that
purpose by the Board of Directors in advance of payment of each particular
dividend or distribution. Dividends on each full and each fractional share of
this Series shall be cumulative from the date such full or fractional share is
originally issued; provided that any such full or fractional share originally
issued after a dividend record date and on or prior to the dividend payment date
to which such record date relates shall not be entitled to receive the dividend
payable on such dividend payment date or any amount in respect of the period
from such original issuance to such dividend payment date.
The term "Reference Package" shall initially mean 1,000 shares of
Common Stock, $.125 par value ("Common Stock"), of the Corporation. In the event
the Corporation shall at any time (A) declare or pay a dividend on any Common
Stock payable in Common Stock, (B) subdivide any Common Stock or (C) combine any
Common Stock into a smaller number of shares, then and in each such case the
Reference Package after such event shall be the Common Stock that a holder of
the Reference Package immediately prior to such event would hold thereafter as a
result thereof.
Holders of shares of this Series shall not be entitled to any
dividends, whether payable in cash, property or stock, in excess of full
cumulative dividends, as herein provided, on this Series.
So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation) shall be declared or paid or
set aside for payment or other distribution declared or made upon the Common
Stock or upon any other stock ranking junior to this Series as to dividends or
upon liquidation, nor shall any Common Stock nor any other stock of the
Corporation ranking junior to or on a parity with this Series as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired
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for any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to this Series as to dividends and upon liquidation), unless, in each
case, the full cumulative dividends (including the dividend to be due upon
payment of such dividend, distribution, redemption, purchase or other
acquisition) on all outstanding shares of this Series shall have been, or shall
contemporaneously be, paid.
(iv) In the event of any merger, consolidation, reclassification or
other transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property, then in
any such case the shares of this Series shall at the same time be similarly
exchanged or changed in an amount per whole share equal to the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as the
case may be, that a holder of the Reference Package would be entitled to receive
as a result of such transaction.
(v) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the holders of
full and fractional shares of this Series shall be entitled, before any
distribution or payment is made on any date to the holders of the Common Stock
or any other stock of the Corporation ranking junior to this Series upon
liquidation, to be paid in full an amount per whole share of this Series equal
to the greater of (A) $1.00 or (B) the aggregate amount distributed or to be
distributed prior to such date in connection with such liquidation, dissolution
or winding up to a holder of the Reference Package (such greater amount being
hereinafter referred to as the "Liquidation Preference"), together with accrued
dividends to such distribution or payment date, whether or not earned or
declared. If such payment shall have been made in full to all holders of shares
of this Series, the holders of shares of this Series as such shall have no right
or claim to any of the remaining assets of the Corporation.
In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to the first paragraph of this Section (v), no such distribution shall
be made on account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such liquidation,
dissolution or winding up unless proportionate distributive amounts shall be
paid on account of the shares of this Series, ratably in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such liquidation, dissolution or winding up.
Upon the liquidation, dissolution or winding up of the Corporation, the
holders of shares of this Series then outstanding shall be entitled to be paid
out of assets of the Corporation available for distribution to its stockholders
all amounts to which such holders are entitled pursuant to the first paragraph
of this Section (v) before any payment shall be made to the holders of Common
Stock or any other stock of the Corporation ranking junior upon liquidation to
this Series.
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For the purposes of this Section (v), the consolidation or merger of,
or binding share exchange by, the Corporation with any other corporation shall
not be deemed to constitute a liquidation, dissolution or winding up of the
Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of stockholders required
by law or by the Certificate of Incorporation of the Corporation, each whole
share of this Series shall, on any matter, vote as a class with any other
capital stock comprising part of the Reference Package and voting on such matter
and shall have the number of votes thereon that a holder of the Reference
Package would have.
*** Signature Page Follows***
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IN WITNESS WHEREOF, NDCHealth Corporation has caused this Restated
Certificate of Incorporation of the Corporation to be signed and acknowledged by
the undersigned this 28th day of November, 2001.
/s/ Patricia A. Wilson
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Patricia A. Wilson
General Counsel and Secretary
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