RESTATED CERTIFICATE OF INCORPORATION
OF
IMS HEALTH INCORPORATED
The name of the corporation is IMS Health Incorporated, and the
original Certificate of Incorporation of the corporation was filed with the
Secretary of State of the State of Delaware on February 3, 1998. The original
Certificate of Incorporation of the corporation is hereby amended and restated
to read in its entirety as follows:
"FIRST: The name of the corporation is IMS Health Incorporated.
SECOND: The registered office of the corporation in the State of
Delaware is located at No. 1209 Orange Street, in the City of Wilmington,
County of New Castle; and the name of its registered agent at such address
is The Corporation Trust Company.
THIRD: The purposes of the corporation are to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
(1) FOURTH: The total number of shares of all classes of stock which the
corporation shall have authority to issue is 420,000,000, consisting of (1)
10,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred
Stock"), (2) 400,000,000 shares of Common Stock, par value $.01 per share
("Common Stock"), and (3) 10,000,000 shares of Series Common Stock, par
value $.01 per share ("Series Common Stock"). The number of authorized
shares of any of the Preferred Stock, the Common Stock or the Series 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 in voting power of the stock of the corporation entitled to vote
thereon irrespective of the provisions of Section 242(b)(2) of the General
Corporation Law of the State of Delaware (or any successor provision
thereto), and no vote of the holders of any of the Preferred Stock, the
Common Stock or the Series Common Stock voting separately as a class shall
be required therefor.
(2)
(3) (2) The Board of Directors is hereby expressly authorized, by
resolution or resolutions, to provide, out of the unissued shares of
Preferred Stock, for series of Preferred Stock and, with respect to each
such series, to fix the number of shares constituting such series and the
designation of such series, the voting powers (if any) of the shares of
such series, and the preferences and relative, participating, optional or
other special rights, if any, and any qualifications, limitations or
restrictions thereof, of the shares of such series. The powers, preferences
and relative, participating, optional and other special rights of each
series of Preferred Stock, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding.
(4)
(5) (3) The Board of Directors is hereby expressly authorized, by
resolution or resolutions, to provide, out of the unissued shares of Series
Common Stock, for series of Series Common Stock and, with respect to each
such series, to fix the number of shares
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constituting such series and the designation of such series, the voting
powers (if any) of the shares of such series, and the preferences and
relative, participating, optional or other special rights, if any, and any
qualifications, limitations or restrictions thereof, of the shares of such
series. The powers, preferences and relative, participating, optional and
other special rights of each series of Series Common Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ
from those of any and all other series at any time outstanding.
(6)
(7) (4)(a) Each holder of Common Stock, as such, shall be entitled to
one vote for each share of Common Stock held of record by such holder on
all matters on which stockholders generally are entitled to vote; provided,
however, that, except as otherwise required by law, holders of Common
Stock, as such, shall not be entitled to vote on any amendment to this
Restated Certificate of Incorporation (including any certificate of
designations relating to any series of Preferred Stock or Series Common
Stock) that relates solely to the terms of one or more outstanding series
of Preferred Stock or Series Common Stock if the holders of such affected
series are entitled, either separately or together with the holders of one
or more other such series, to vote thereon pursuant to this Restated
Certificate of Incorporation (including any certificate of designations
relating to any series of Preferred Stock or Series Common Stock) or
pursuant to the General Corporation Law of the State of Delaware.
(8)
(9) (b) Except as otherwise required by law, holders of a series of
Preferred Stock or Series Common Stock, as such, shall be entitled only to
such voting rights, if any, as shall expressly be granted thereto by this
Restated Certificate of Incorporation (including any certificate of
designations relating to such series).
(10)
(11) (c) Subject to applicable law and the rights, if any, of the holders
of any outstanding series of Preferred Stock or Series Common Stock or any
class or series of stock having a preference over or the right to
participate with the Common Stock with respect to the payment of dividends,
dividends may be declared and paid on the Common Stock at such times and in
such amounts as the Board of Directors in its discretion shall determine.
(12)
(13) (d) Upon the dissolution, liquidation or winding up of the
corporation, subject to the rights, if any, of the holders of any
outstanding series of Preferred Stock or Series Common Stock or any class
or series of stock having a preference over or the right to participate
with the Common Stock with respect to the distribution of assets of the
corporation upon such dissolution, liquidation or winding up of the
corporation, the holders of the Common Stock, as such, shall be entitled to
receive the assets of the corporation available for distribution to its
stockholders ratably in proportion to the number of shares held by them.
(14)
(15) FIFTH: The Board of Directors shall be authorized to make, amend,
alter, change, add to or repeal the By-Laws of the corporation in any
manner not inconsistent with the laws of the State of Delaware, subject to
the power of the stockholders to amend, alter, change, add to or repeal the
By-Laws made by the Board of Directors. Notwithstanding anything contained
in this Restated Certificate of
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Incorporation to the contrary, the affirmative vote of the holders of at
least 80 percent in voting power of all the shares of the corporation
entitled to vote generally in the election of directors, voting together as
a single class, shall be required in order for the stockholders to alter,
amend or repeal any provision of the By-laws which is to the same effect as
Article Fifth, Article Seventh, and Article Eighth of this Restated
Certificate of Incorporation or to adopt any provision inconsistent
therewith.
(16)
(1)
(17) SIXTH: To the fullest extent permitted by the laws of the State of
Delaware:
(18)
(a) The corporation shall indemnify any person (and such person's heirs,
executors or administrators) who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding (brought in the right of the corporation or otherwise), whether
civil, criminal, administrative or investigative, and whether formal or
informal, including appeals, by reason of the fact that such person is or
was a director or officer of the corporation or, while a director or
officer of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, limited liability
company or other enterprise, for and against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person or such heirs, executors or
administrators in connection with such action, suit or proceeding,
including appeals. Notwithstanding the preceding sentence, the corporation
shall be required to indemnify a person described in such sentence in
connection with any action, suit or proceeding (or part thereof) commenced
by such person only if the commencement of such action, suit or proceeding
(or part thereof) by such person was authorized by the Board of Directors
of the corporation. The corporation may indemnify any person (and such
person's heirs, executors or administrators) who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (brought in the right of the corporation or
otherwise), whether civil, criminal, administrative or investigative, and
whether formal or informal, including appeals, by reason of the fact that
such person is or was an employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint
venture, trust, limited liability company or other enterprise, for and
against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person
or such heirs, executors or administrators in connection with such action,
suit or proceeding, including appeals.
(b)
(c) The corporation shall promptly pay expenses incurred by any person
described in the first sentence of subsection (a) of this Article Sixth,
Section (1) in defending any action, suit or proceeding in advance of the
final disposition of such action, suit or proceeding, including appeals,
upon presentation of appropriate documentation.
(d)
(e) The corporation may purchase and maintain insurance on behalf of any
person described in subsection (a) of this Article Sixth, Section (1)
against any liability
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asserted against such person, whether or not the corporation would have the
power to indemnify such person against such liability under the provisions
of this Article Sixth, Section (1) or otherwise.
(f)
(g) The provisions of this Article Sixth, Section (1) shall be
applicable to all actions, claims, suits or proceedings made or commenced
after the adoption hereof, whether arising from acts or omissions to act
occurring before or after its adoption. The provisions of this Article
Sixth, Section (1) shall be deemed to be a contract between the corporation
and each director or officer who serves in such capacity at any time while
this Article Sixth, Section (1) and the relevant provisions of the laws of
the State of Delaware and other applicable law, if any, are in effect, and
any repeal or modification hereof shall not affect any rights or
obligations then existing with respect to any state of facts or any action,
suit or proceeding then or theretofore existing, or any action, suit or
proceeding thereafter brought or threatened based in whole or in part on
any such state of facts. If any provision of this Article Sixth, Section
(1) shall be found to be invalid or limited in application by reason of any
law or regulation, it shall not affect the validity of the remaining
provisions hereof. The rights of indemnification provided in this Article
Sixth, Section (1) shall neither be exclusive of, nor be deemed in
limitation of, any rights to which an officer, director, employee or agent
may otherwise be entitled or permitted by contract, this Restated
Certificate of Incorporation, vote of stockholders or directors or
otherwise, or as a matter of law, both as to actions in such person's
official capacity and actions in any other capacity while holding such
office, it being the policy of the corporation that indemnification of any
person whom the corporation is obligated to indemnify pursuant to the first
sentence of subsection (a) of this Article Sixth, Section (1) shall be made
to the fullest extent permitted by law.
(h)
(i) For purposes of this Article Sixth, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer, employee or
agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries.
(j)
(19) A director of the corporation shall not be liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended. Any amendment,
modification or repeal of the foregoing sentence shall not adversely affect
any right or protection of a director of the corporation hereunder in
respect of any act or omission occurring prior to the time of such
amendment, modification or repeal.
(20)
(1)
(21) SEVENTH: The business and affairs of the corporation shall be managed
by or under the direction of a Board of Directors consisting of not less
than three directors, the exact number of directors to be determined from
time to time by
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resolution adopted by affirmative vote of a majority of the Board of
Directors. The directors shall be divided into three classes designated
Class I, Class II and Class III. Each class shall consist, as nearly as
possible, of one-third of the total number of directors constituting the
entire Board of Directors. Class I directors shall be originally elected
for a term expiring at the succeeding annual meeting of stockholders, Class
II directors shall be originally elected for a term expiring at the second
succeeding annual meeting of stockholders, and Class III directors shall be
originally elected for a term expiring at the third succeeding annual
meeting of stockholders. At each succeeding annual meeting of stockholders
following 1998, successors to the class of directors whose term expires at
that annual meeting shall be elected for a term expiring at the third
succeeding annual meeting. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as possible,
and any additional director of any class elected to fill a newly created
directorship resulting from an increase in such class shall hold office for
a term that shall coincide with the remaining term of that class, but in no
case shall a decrease in the number of directors remove or shorten the term
of any incumbent director. 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. Any newly
created directorship on the Board of Directors that results from an
increase in the number of directors and any vacancy occurring in the Board
of Directors shall be filled only by a majority of the directors then in
office, although less than a quorum, or by a sole remaining director. If
any applicable provision of the General Corporation Law of the State of
Delaware expressly confers power on stockholders to fill such a
directorship at a special meeting of stockholders, such a directorship may
be filled at such meeting only by the affirmative vote of at least 80
percent of the voting power of all shares of the corporation entitled to
vote generally in the election of directors voting as a single class. Any
director elected to fill a vacancy not resulting from an increase in the
number of directors shall have the same remaining term as that of his
predecessor. Directors may be removed only for cause, and only by the
affirmative vote of at least 80 percent in voting power of all shares of
the corporation entitled to vote generally in the election of directors,
voting as a single class.
(22)
(23) Notwithstanding the foregoing, whenever the holders of any one or
more series of Preferred Stock or Series Common Stock issued by the
corporation shall have the right, voting separately as a series or
separately as a class with one or more such other series, to elect
directors at an annual or special meeting of stockholders, the election,
term of office, removal, filling of vacancies and other features of such
directorships shall be governed by the terms of this Restated Certificate
of Incorporation (including any certificate of designations relating to any
series of Preferred Stock or Series Common Stock) applicable thereto, and
such directors so elected shall not be divided into classes pursuant to
this Article Seventh unless expressly provided by such terms.
(24)
(25) EIGHTH: Any action required or permitted to be taken by the holders
of the Common Stock of the corporation must be effected at a duly called
annual or special meeting of such holders and may not be effected by any
consent in writing by such holders. Except as otherwise required by law and
subject to the rights of the holders of
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any series of Preferred Stock or Series Common Stock, special meetings of
stockholders of the corporation may be called only by the Chief Executive
Officer of the corporation or by the Board of Directors pursuant to a
resolution approved by the Board of Directors.
(26)
(27) NINTH: Notwithstanding anything contained in this Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80 percent in voting power of all the shares of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to alter, amend or repeal
Article Fifth, Article Seventh, Article Eighth or this Article Ninth or to
adopt any provision inconsistent therewith."
(28)
(1)
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IMS Health Incorporated does hereby further certify that this
Restated Certificate of Incorporation was duly adopted by the Board of Directors
and by unanimous written consent of the stockholders in accordance with the
provisions of Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware.
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IN WITNESS WHEREOF, IMS HEALTH INCORPORATED has caused its corporate
seal to be hereunto affixed and this certificate to be signed by Kenneth S.
Siegel, its Senior Vice President, General Counsel and Secretary, this 29th
day of May, 1998.
IMS HEALTH INCORPORATED
By: /s/Kenneth S. Siegel
-------------------------------
Name: Kenneth S. Siegel
Title: Senior Vice President,
General Counsel and
Secretary