CERTIFICATE OF INCORPORATION
OF
HIS HOLDINGS CORPORATION
------------------------
FIRST: The name of the Corporation is
HIS HOLDINGS CORPORATION
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1013 Centre Road, in the City of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is Corporation Service Company.
THIRD: The purposes for which the Corporation is formed are
to engage in any lawful act or activity for which corporations may be organized
under the Delaware General Corporation Law.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 1,000 shares of the par value of
$.01 per share. All such shares shall be of one class and shall be designated
Common Stock.
FIFTH: The name and mailing address of the sole incorporator
of the Corporation are as follows:
Revital D. Havazelet
45 Rockefeller Plaza
New York, N.Y. 10111
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SIXTH: In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of Directors of the
Corporation is expressly authorized and empowered to make, alter or repeal the
By-laws of the Corporation, subject to the power of the stockholders of the
Corporation to alter or repeal any By-law made by the Board of Directors.
SEVENTH: The Corporation reserves the right at any time and
from time to time to amend, alter, change or repeal any provisions contained in
this Certificate of Incorporation; 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 now or hereafter prescribed by law; and all rights, preferences and
privileges of whatsoever nature conferred upon stockholders, directors or any
other persons whomsoever by and pursuant to this Certificate of Incorporation in
its present form or as hereafter amended are granted subject to the right
reserved in this Article.
EIGHTH: No person shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided, however, that the foregoing shall not 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 General Corporation Law of the State of
Delaware or (iv) for any transac-
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tion from which the director derived an improper personal benefit.
IN WITNESS WHEREOF, the undersigned, being the incorporator
hereinabove named, for the purpose of forming a corporation pursuant to the
General Corporation Law of the State of Delaware, does make this Certificate,
hereby declaring, certifying and acknowledging under penalties of perjury that
the facts herein stated are true and that this Certificate is her act and deed,
and accordingly has hereunto set her hand, this 13th day of February, 1995.
--------------------------------
Revital D. Havazelet
Incorporator
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Exhibit A
---------
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
HIS HOLDINGS CORPORATION
--------------------
HIS HOLDINGS CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
FIRST: that the following resolutions were duly adopted by
unanimous written consent of the Board of Directors of the Corporation, setting
forth a proposed amendment to the Certificate of Incorporation of the
Corporation; and declaring such amendment to be advisable and directing that
such amendment be submitted to the stockholders of the Corporation for their
approval. The resolutions are as follows:
"RESOLVED that there is hereby adopted an amendment to the
Corporation's amended Certificate of Incorporation pursuant to which
the name of the Corporation shall be changed to MedE America
Corporation, and, in connection with such change, Article FIRST of the
amended Certificate of Incorporation of the Corporation shall be
amended to read in its entirety as follows:
'FIRST: The name of the Corporation is
MedE America Corporation .'
RESOLVED that the Board of Directors declares the foregoing
amendment to the Corporation's amended Certificate of Incorporation to
be advisable and directs that the amendment be submitted to the
stockholders of the Corporation for their approval pursuant to Section
242(b) of the General Corporation Law of the State of Delaware."
SECOND: that the Amendment of the amended Certificate of
Incorporation effected by this Certificate was duly authorized by the holders of
a majority of the outstanding capital stock of the Corporation entitled to vote
thereon, after having been declared advisable by the Board of Directors of the
Corporation, all in accordance with the provisions of Section 228 of the General
Corporation Law of the State of Delaware and that written notice has been given
as provided in such Section.
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IN WITNESS WHEREOF, HIS HOLDINGS CORPORATION has caused its
corporate seal to be hereunto affixed and this certificate to be signed by Othon
Prounis, its Assistant Secretary, on this day of March, 1995.
HIS HOLDINGS CORPORATION
By
--------------------------
Othon Prounis
Assistant Secretary
CERTIFICATE OF AMENDMENT
to
CERTIFICATE OF INCORPORATION
of
MEDE AMERICA CORPORATION
MEDE AMERICA CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
FIRST: that the following resolutions were duly adopted by
unanimous written consent of the Board of Directors of the Corporation, setting
forth proposed amendments to the Certificate of Incorporation of the
Corporation; determining that the capital of the Corporation will not be
decreased on account of such amendments; and declaring such amendments to be
advisable and directing that such amendments be submitted to the stockholders of
the Corporation for its approval. The resolutions are as follows:
"RESOLVED, that there is hereby adopted an amendment to the
Corporation's Certificate of Incorporation pursuant to which (i) the
authorized capital stock of the Corporation shall be changed from
40,000 shares Common Stock, $.01 par value, to 25,011,000 shares,
consisting of 11,000 shares of Preferred Stock, $.01 par value, and
25,000,000 shares of Common Stock, $.01 par value, and (ii) the
relative voting, dividend, liquidation, redemption and other rights,
and the qualifications, limitations and restrictions thereof, in
respect of said Preferred Stock and Common Stock shall be restated;
and, in connection with such changes, Article FOURTH of the Certificate
of Incorporation of the Corporation shall be amended to read in its
entirety as follows:
'FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 25,011,000
shares, consisting of 11,000 shares of Preferred Stock, $.01 par value
("Preferred Stock") and 25,000,000 shares of Common Stock, $.01 par
value ("Common Stock").
All cross-references in each subdivision of this Article
FOURTH refer to other paragraphs in such subdivision unless otherwise
indicated.
The following is a statement of the designations, and the
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, in respect of each class of stock of the
Corporation:
I.
PREFERRED STOCK
1. Cumulative Dividends. (i) The holders of Preferred Stock
shall be entitled to receive, when and as declared by the Board of
Directors out of funds legally available for such purpose, cash
dividends at the rate of $8.00 per share per annum, and no more. In the
event such dividends are declared, the dividend payment dates with
respect thereto shall be the immediately succeeding March 31.
(ii) In no event, so long as any Preferred Stock shall remain
outstanding, shall any dividend whatsoever be declared or paid upon,
nor shall any distribution be made upon, any Common Stock, other than a
dividend or distribution payable in shares of Common Stock, nor,
without the written consent of the holders of 66 2/3% of the
outstanding Preferred Stock, shall any shares of Common Stock be
purchased or redeemed by the Corporation, nor shall any moneys be paid
to or made available for a sinking fund for the purchase or redemption
of any Common Stock, unless in each instance cumulative dividends
accrued and unpaid on all outstanding shares of the Preferred Stock for
all past dividend periods shall have been paid in full.
2. Redemption.
2A. Mandatory Redemptions.
(i) The Corporation shall redeem on March 31, 2000, all shares of
Preferred Stock which shall then be outstanding, at the Redemption
Price (as defined below).
(ii) Upon the consummation of an underwritten public offering pursuant
to an effective registration statement under the Securities Act of
1933, as amended, covering the offering and sale of the Corporation's
Common Stock pursuant to which the Corporation receives aggregate net
proceeds of at least $15 million (after underwriters', brokers' and
deal- ers' fees and commissions and underwriters' discounts and any
other offering expenses required to be disclosed in Part II of the
applicable registration statement) (a "Qualified Public Offering"), the
Corporation shall redeem all then outstanding shares of Preferred Stock
at the Redemption Price.
2B. Optional Redemptions. The Preferred Stock may be redeemed in
whole at any time or in part from time to time, at the option of the
Corporation, at the Redemption Price.
2C. Redemption Date; Redemption Price. Any date on which the
Corporation elects or is required to redeem Preferred Stock under this
paragraph 2 shall be referred to as a "Redemption Date." The per share
"Redemption Price" of the Preferred Stock to be redeemed on a
Redemption Date shall be the sum of (x) $100.00 per share, plus (y) any
accrued but unpaid dividends thereon to the date of such redemption.
2D. Notice of Redemption. Not less than 30 days before any Redemption
Date, written notice shall be given by mail, postage prepaid to the
holders of record of the Preferred Stock to be redeemed, addressed to
each such stockholder at his or its post office address as shown by the
records of the Corporation, specifying the number of shares to be
redeemed, the subparagraph or subparagraphs of this paragraph 2
pursuant to which such redemption shall be made, the Redemption Price
and the place at which and the date, which date shall not be a day on
which banks in the City of New York are required or authorized to
close, on which the shares of Preferred Stock will be redeemed. If such
notice of redemption shall have been duly given and if on or before
such Redemption Date the funds necessary for redemption shall have been
set aside so as to be and continue to be available therefor, then,
notwithstanding that any certificate for shares of Preferred Stock to
be redeemed shall not have been surrendered for cancellation, after the
close of business on such Redemption Date, such shares shall no longer
be deemed outstanding, the dividends thereon shall cease to accrue, and
all rights with respect to such shares shall forthwith after the close
of business on the Redemption Date, cease, except only the right of the
holders thereof to receive the Redemption Price for such shares,
without interest.
2E. Redeemed or Otherwise Acquired Shares to be Retired. Any shares of
Preferred Stock redeemed pursuant to this paragraph 2 or otherwise
acquired by the Corporation in any manner whatsoever shall be
permanently retired and shall not under any circumstances be reissued;
and the Corporation may from time to time take such appropriate
corporate action as may be necessary to reduce the authorized Preferred
Stock accordingly.
2F. Shares to be Redeemed, Purchased or Retired. In case of the
redemption, purchase or retirement, for any reason, of only a part of
the outstanding shares of the Preferred Stock on a Redemption Date, all
shares of Preferred Stock to be redeemed, purchased or retired shall be
selected pro
rata, and there shall be so redeemed, purchased or retired from each
registered holder in whole shares, as nearly as practicable to the
nearest share, the proportion of all the shares to be redeemed,
purchased or retired which the number of shares held of record by such
holder bears to the total number of shares of Preferred Stock at the
time outstanding.
3. Liquidation. Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, or the sale of
all or substantially all the assets of the Corporation (each such event
being referred to as a "Liquidation"), a holder of the shares of
Preferred Stock shall be entitled, before any distribution or payment
is made upon any Common Stock, to receive out of the assets of the
Corporation (x) $100.00 per share, plus (y) any accrued but unpaid
dividends thereon to the date of such redemption, for each share of
Preferred Stock held by such holder. If upon such Liquidation, the
assets to be distributed among the holders of Preferred Stock shall be
insufficient to permit payment to the holders of Preferred Stock of
that amount distributable as aforesaid, then the entire assets of the
Corporation to be distributed shall be distributed ratably among the
holders of Preferred Stock. Upon any such Liquidation, after the
holders of the Preferred Stock shall have been paid in full the amounts
to which they shall be entitled, the holders of the Common Stock will
share the remaining net assets of the Corporation. Written notice of
such Liquidation, stating a payment date, the aggregate amount of the
payments to which such holder of Preferred Stock is entitled and the
place where said sums shall be payable shall be given by mail, postage
prepaid, not less than 30 days prior to the payment date stated
therein, to the holders of record of the Preferred Stock, such notice
to be addressed to each stockholder at its post office address as shown
by the records of the Corporation. Neither the consolidation or merger
of the Corporation into or with any other corporation or corporations,
nor the reduction of the capital stock of the Corporation, shall be
deemed to be a Liquidation.
4. Voting Rights. Except as otherwise provided by law or this
Certificate of Incorporation, the holders of Preferred Stock shall not
be entitled to vote on matters presented to the stockholders of the
Corporation.
5. Restrictions. At any time when shares of Preferred Stock
are outstanding, except where the vote or written consent of the
holders of a greater number of shares of the Corporation is required by
law or by this Certificate of Incorporation, and in addition to any
other vote required by law, without the prior consent of the holders of
66 2/3% of the outstanding Preferred Stock, given in person or by
proxy, either in writing or at a special meeting called for that
purpose, at which meeting the holders of the shares of Preferred Stock
shall vote together as a class:
(i) The Corporation will not create or authorize the
creation of any additional class of shares unless the same
ranks junior to the Preferred Stock both as to dividends and
as to the distribution of assets on Liquidation, or increase
the authorized amount of the Preferred Stock, or increase the
authorized amount of any additional class of shares unless the
same ranks junior to the Preferred Stock both as to dividends
and as to the distribution of assets on Liquidation, or create
or authorize any obligations or securities convertible into or
exchangeable for shares of Preferred Stock or into shares of
any other class unless the same ranks junior to the Preferred
Stock both as to dividends and as to the distribution of
assets on Liquidation, whether any such creation or
authorization or increase shall be by means of amendment of
the Certificate of Incorporation, merger, consolidation,
recapitalization or otherwise.
(ii) The Corporation will not amend, alter or repeal the
Corporation's Certificate of Incorporation or By-laws in any
manner, or file any directors' resolutions pursuant to Section
151(g) of the Delaware General Corporation Law containing any
provision, in either case which affects the respective
preferences, voting power, qualifications, special or relative
rights or privileges of the Preferred Stock or the Common
Stock or which in any manner adversely affects the Preferred
Stock or the Common Stock or the holders thereof.
II.
COMMON STOCK
All shares of Common Stock shall be identical and shall
entitle the holders thereof to the same rights and privileges:
1. Dividends
When and as dividends are declared upon the Common Stock,
whether payable in cash, in property or in shares of stock of the
Corporation, the holders of Common Stock shall be entitled to share
equally, share for share, in such dividends.
2. Voting Rights
Each holder of Common Stock shall be entitled to one vote per
share.'
"RESOLVED that the Board of Directors determines that the
capital of the Corporation will not be decreased on account of the
foregoing amendment, declares the foregoing amendment to the
Corporation's Certificate of Incorporation to be advisable and directs
that the amendment be submitted to the stockholders of the Corporation
for their approval pursuant to Section 242(b) of the General
Corporation Law of the State of Delaware."
SECOND: that the Amendment of the Certificate of Incorporation
effected by this Certificate was duly authorized by the holders of a majority of
the outstanding capital stock of the Corporation entitled to vote thereon, after
first having been declared advisable by the Board of Directors of the
Corporation, all in accordance with the provisions of Section 242 of the
Delaware General Corporation Law.
THIRD: Effective upon the filing of this Certificate of
Amendment with the Secretary of State of Delaware (the "Effective Time") each
(1) share of Common Stock, $.01 par value, of the Corporation issued and
outstanding at the Effective Time shall be reclassified as 611.4568797 shares of
Common Stock, $.01 par value, of the Corporation.
FOURTH: that the capital of the Corporation will not be
reduced under, or by reason of, the foregoing amendments to the Certificate of
Incorporation of the Corporation.
IN WITNESS WHEREOF, MEDE AMERICA CORPORATION has caused its
corporate seal to be hereunto affixed and this certificate to be signed by Othon
Prounis, its Assistant Secretary, who hereby acknowledges under penalties of
perjury that the facts herein stated are true and that this certificate is his
act and deed, this 31st day of March, 1995.
MEDE AMERICA CORPORATION
By:
------------------------------
Name: Othon Prounis
Title: Assistant Secretary
7
IN WITNESS WHEREOF, the undersigned, being all the Directors
of the Corporation, have executed this Consent as of this 31st day of March,
1995.
------------------------------
Bruce K. Anderson
------------------------------
Anthony J. deNicola
------------------------------
Thomas E. McInerney
------------------------------
Timothy M. Murray
------------------------------
Dana J. O'Brien
------------------------------
Thomas P. Staudt
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MEDE AMERICA CORPORATION
Written Consent of Stockholders
-------------------------------
-------------------------------------------
Pursuant to Section 228(a) of the General
Corporation Law of the State of Delaware
-------------------------------------------
The undersigned, being the holders of a majority of the issued
and outstanding Common Stock, $.01 par value of MedE America Corporation, a
Delaware corporation (the "Corporation"), acting pursuant to Section 228(a) of
the General Corporation Law of the State of Delaware, DO HEREBY CONSENT to the
adoption of, and DO HEREBY ADOPT the resolutions hereinafter set forth with the
same force and effect as if they had been duly adopted at a special meeting of
the stockholders of the Corporation duly called and held for such purpose, and
DO HEREBY DIRECT the Secretary of the Corporation to file this Consent with the
minutes of proceedings of stockholders of the Corporation:
RESOLVED that, pursuant to the General Corporation Law of the
State of Delaware, the Corporation be, and it hereby is, authorized and
empowered, upon the terms and conditions set forth in the proposed
Certificate of Amendment to Certificate of Incorporation of the
Corporation attached as Exhibit A to the Unanimous Written Consent of
the Board of Directors of the Corporation dated as of the date hereof
("the Certificate of Amendment"), to file with the Secretary of the
State of the state of Delaware a certificate of amendment of the
Corporation's Certificate of Incorporation, substantially in the form
of the Certificate of Amendment, with respect to such change;
RESOLVED that the form, terms and provisions of the
Certificate of Amendment, a copy of which has been submitted to the
undersigned stockholders of the Corporation, be, and they hereby are,
in all respects, approved.
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IN WITNESS WHEREOF, the undersigned stockholders have executed
this Consent on and as of the 31st day of March, 1995.
WELSH, CARSON, ANDERSON & STOWE V, L.P.
By WCAS V Partners, General Partner
By:
------------------------------------
Name:
General Partner
WCAS CAPITAL PARTNERS II, L.P.
By WCAS CP Partners, General Partner
By:
------------------------------------
Name:
General Partner
WILLIAM BLAIR LEVERAGED CAPITAL
FUND, LIMITED PARTNERSHIP
By
General Partner
By:
------------------------------------
Name:
Title:
PRUDENTIAL VENTURE PARTNERS II
By
General Partner
By:
------------------------------------
Name:
Title:
2