EXHIBIT 3.2
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MEDE AMERICA CORPORATION
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FIRST: The name of the Corporation is MEDE AMERICA
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 purpose for which the Corporation is formed is 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 all classes of stock
which the Corporation shall have authority to issue is 35,000,000 shares,
consisting of 5,000,000 shares of Preferred Stock, $.01 par value ("Preferred
Stock"), of which 250,000 shares are hereby designated as Series A Preferred
Stock, $.01 par value ("Series A Preferred Stock"), and 30,000, 000 shares of
Common Stock, $.01 par value ("Common Stock").
Effective immediately upon the filing of this Amended and Restated
Certificate of Incorporation in the office of the Secretary of State of the
State of Delaware, the outstanding shares of capital stock of the Corporation
shall be and hereby are combined and reclassified as follows: each shares of
Preferred Stock shall be reclassified as and converted into one share of Series
A Preferred Stock, and each 4.5823 shares of Common Stock shall be reclassified
as and converted into one share of Common Stock; provided, however, that
fractional shares of Common Stock will not be issued in connection with such
combination and reclassification, and each holder of a fractional share of
Common Stock shall receive in lieu thereof a cash payment from the Corporation,
the fair value of which shall be determined by the Board of Directors in good
faith within 90 days after the filing of this Amended and Restated Certificate
of Incorporation.
Certificates representing shares combined and reclassified as provided
in this Amended and Restated Certificate of Incorporation are hereby canceled,
and, upon presentation of the canceled certificates to the Corporation, the
holders thereof shall be entitled to receive new certificates representing the
shares resulting from such combination and reclassification.
The Board of Directors is authorized to provide for the issuance of the
shares of Preferred Stock in series and, by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the qualifi
cations, limitations or restrictions thereof. The authority of the Board of
Directors with respect to the Preferred Stock shall include, but not be limited
to, determination of the following:
1. The number of shares constituting that series and
the distinctive designation of that series;
2. The dividend rate on the shares of that series,
whether dividends shall be cumulative, and, if so, from which date or
dates, and the relative rights of priority, if any, of payment of
dividends on share of that series;
3. Whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the terms of
such voting rights;
4. Whether that series shall have conversion
privileges, and, if so, the terms and conditions of such conversion,
including provision for adjustment of the conversion rate in such
events as the Board of Directors shall determine;
5. Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different
redemption dates;
6. Whether that series shall have a sinking fund for
the redemption or purchase of shares of that series, and, if so, the
terms and amount of such sinking fund;
7. The rights of the shares of that series in the
event of voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, and the relative rights of priority, if any, of
payment of shares of that series; and
8. Any other relative rights, preferences and
limitations of that series.
All cross-references in each subdivision of this Article FOURTH refer
to other para graphs in such subdivision unless otherwise indicated. The
following is a statement of the designations,
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and the powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, in respect of each class of stock of the Corporation:
I.
SERIES A PREFERRED STOCK
Except as otherwise expressly provided herein, all shares of
Series A Preferred Stock shall be identical and shall entitle the
holders thereof to the same rights and privileges.
1. Cumulative Dividends.
(i) The holders of Series A 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 $10.00 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 September 30.
(ii) In no event, so long as any Series A 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 distribu tion
payable in shares of Common Stock, nor, without the written
consent of the holders of 66-2/3% of the outstanding Series A
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 Series A Preferred Stock for all past dividend
periods shall have been paid in full.
2. Redemption.
2A. Mandatory Redemptions. The Series A Preferred Stock
shall be redeemed in full in two equal installments on September 30,
2001 and September 30, 2002, at the Redemption Price (as defined
below).
2B. Optional Redemptions. The Series A 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 Series A Preferred
Stock under this paragraph 2 shall be referred to as a "Redemption
Date." The per share "Redemption Price" of the Series A
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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 Series A 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 Series A 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 Series A 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 Series A 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 Series A 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 Series A Preferred Stock on a
Redemption Date, all shares of Series A 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 Series A 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 Series A 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
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such redemption, for each share of Series A Preferred Stock held by
such holder. If upon such Liquidation, the assets to be distributed
among the holders of Series A Preferred Stock shall be insufficient to
permit payment to the holders of Series A Preferred Stock of that
amount distributable as aforesaid, then the entire assets of the
Corporation to be dis tributed shall be distributed ratably among the
holders of Series A Preferred Stock. Upon any such Liquidation, after
the holders of the Series A 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 Liquida tion, stating a payment date, the
aggregate amount of the payments to which such holder of Series A
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 Series A 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 Corpora tion, shall be deemed to be a
Liquidation.
4. Voting Rights. Except as otherwise provided by law or
this Certificate of Incorporation, the holders of Series A 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 Series A
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 Series A 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
Series A 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 Series A Preferred Stock both as to
dividends and as to the distribution of assets on Liquidation,
or increase the authorized amount of the Series A Preferred
Stock, or increase the authorized amount of any additional
class of shares unless the same ranks junior to the Series A
Preferred Stock both as to dividends and as to the
distribution of assets on Liquidation, or create or authorize
any obligations or securities convert ible into or
exchangeable for shares of Series A Preferred Stock or into
shares of any other class unless the same ranks junior to the
Series A 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.
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(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' reso lutions 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 Series A Preferred
Stock or the Common Stock or which in any manner adversely
affects the Series A Preferred Stock or the Common Stock or
the holders thereof.
6. Conversion. The shares of Series A Preferred Stock
shall be convertible as follows:
6A. In the event that, at any time while any of the
Series A Preferred Stock shall be outstanding, the Corporation shall
complete a firm commitment initial public offering of shares of Common
Stock registered under the Securities Act of 1933, as amended, in which
the net proceeds paid by the public to the Corporation are at least
$20,000,000, then all outstanding shares of Series A Preferred Stock
shall, automatically and without further action on the part of the
holders of the Series A Preferred Stock, be converted into such number
of fully paid and nonassessable whole shares of Common Stock as is
obtained by dividing the aggregate Liquidation Payments that would then
be payable in respect of the Series A Preferred Stock by the price to
the public in such initial public offering. Such conversion shall be
effective simultaneously with the closing of such public offering;
provided, however, that certificates evidencing the shares of Common
Stock issuable upon such conversion shall not be issued except on
surrender of the certificates for the shares of the Series A Preferred
Stock so converted.
6B. Fractional Shares; Dividends. No fractional shares
may be issued upon conversion of the Series A Preferred Stock into
Common Stock. If any fractional interest in a share of Common Stock
would, except for the provisions of the preceding sentence, be
deliverable upon any such conversion, the Corporation, in lieu of
delivering the fractional share thereof, shall pay to the holder
surrendering the Series A Preferred Stock for conversion an amount in
cash equal to the current market price of such fractional interest as
determined in good faith by the Board of Directors of the Corporation.
No cash dividends shall be paid in respect of the Series A Preferred
Stock upon such conversion.
6C. Stock to be Reserved. Prior to the consummation of an
initial public offering of its Common Stock, the Corporation will
reserve and keep available out of its authorized Common Stock or its
treasury shares, solely for the purpose of issue upon the conversion of
the Series A Preferred Stock as herein provided, such number of shares
of Common Stock as shall then be issuable upon the conversion of all
outstanding shares of Series A Preferred Stock. The Corporation
covenants that all shares of Common Stock which shall be so issued
shall be duly and validly issued and fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue
thereof. The Corporation will take all such action as may be necessary
to assure that all such shares of Common
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Stock may be so issued without violation of any applicable law or
regulation, or of any requirements of any national securities exchange
upon which the Common Stock of the Corporation may be listed.
6E. Issue Tax. The issuance of certificates for shares of
Common Stock upon conversion of the Series A Preferred Stock shall be
made without charge to the holders thereof for any issuance tax in
respect thereof; provided that the Corporation shall not be required to
pay any tax which may be payable in respect of any transfer involved in
the issuance and delivery of any certificate in a name other than that
of the holder of the Series A Preferred Stock which is being converted.
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.
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
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 Amended and Restated 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,
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directors or any other persons whomsoever by and pursuant to this Amended and
Restated 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 transaction from which the director derived an improper
personal benefit.
NINTH: Every person now or hereafter serving as a director or
officer of the Corporation and every such director or officer serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified by the Corporation in accordance with and to the fullest extent
permitted by law for the defense of, or in connection with, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, arising out of or in connection with such
service. Expenses incurred by any person so entitled to indemnification in
defending a civil or criminal action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the specific case upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized in this Article.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by Thomas P. Staudt, its
President and Chief Executive Officer, this day of July, 1998.
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Thomas P. Staudt
President and
Chief Executive Officer
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