AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
INNOVATIVE CLINICAL SOLUTIONS, LTD.
Innovative Clinical Solutions, Ltd. (the "Corporation") filed its
original certificate of incorporation with the Secretary of State of the State
of Delaware on October 5, 1995 under the name Continuum Care Corporation. A
Restated Certificate of Incorporation, amending and restating the original
Certificate of Incorporation, was filed with the Secretary of State of the State
of Delaware on December 27, 1995 changing the name of the Corporation to
PhyMatrix Corp. A Certificate of Ownership and Merger was filed with the
Secretary of State of the State of Delaware on June 28, 1999 changing the name
of the Corporation to Innovative Clinical Solutions, Ltd.
Provision for the making of this Amended and Restated Certificate of
Incorporation is contained in an Order, dated September 25, 2000 (the
"Confirmation Order"), of the United States Bankruptcy Court for the District of
Delaware in Case No. 00 - 3027 confirming the Chapter 11 Plan of Reorganization
of the Corporation (the "Plan"). The Confirmation Order empowers and directs the
Corporation to execute such documents and take, or cause to be taken, any and
all actions required to enable the effective implementation of the Plan and the
Confirmation Order. Sections 7.02 and 9.02 of the Plan contemplate the filing of
this Amended and Restated Certificate of Incorporation in order to effectuate
such Plan provisions.
In accordance with Sections 242, 245 and 303 of the General Corporation
Law of the State of Delaware, this Amended and Restated Certificate of
Incorporation restates and integrates and further amends the provisions of the
(i) Restated Certificate of Incorporation filed on December 27, 1995, and (ii)
the Certificate of Ownership and Merger filed with the Secretary of State of the
State of Delaware on June 28, 1999 changing the name of the Corporation to
Innovative Clinical Solutions, Ltd. (together, the "Previously Amended
Certificate of Incorporation").
The Previously Amended Certificate of Incorporation is hereby amended
and restated to read in its entirety as follows:
FIRST: The name of the corporation is Innovative Clinical Solutions,
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Ltd.
SECOND: The address of the registered office of the Corporation in
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the State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle. The name of its registered agent at that address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
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or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware
Code (the "GCL").
FOURTH:
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A. The aggregate number of shares which the Corporation shall have
authority to issue is Forty Million (40,000,000), all of which shares shall be
designated common stock, $.01 par value per share (the "Common Stock"). The
number of shares of Common Stock may be increased or decreased (but, not below
the number of shares thereof then outstanding or the issuance of which is then
authorized under any stock option or similar plan to which the Corporation is a
party) by the affirmative vote of the holders of a majority in voting power of
the stock of the Corporation entitled to vote thereon.
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B. Except as otherwise provided by the GCL, the holders of Common
Stock shall exclusively possess all voting power. Each holder of record of
issued and outstanding Common Stock shall be entitled to one (1) vote on all
matters for each share so held.
C. Pursuant to Section 7.05 of the Chapter 11 Plan of Reorganization
(the "Plan"), as confirmed by the United States Bankruptcy Court for the
District of Delaware in Case No. 00 - 3027, as of the Effective Date (as that
date is defined in the Plan), any and all of the authorized capital stock of the
Corporation existing immediately prior to the Effective Date, whether issued or
unissued, including any right to acquire such capital stock pursuant to any
agreement, arrangement, or understanding, or upon exercise of conversion rights,
exchange rights, warrants, options or other rights, was deemed cancelled and of
no further force and effect without any action on the part of the stockholders
or Board of Directors of the Corporation. The holders of such cancelled capital
stock and any cancelled right to acquire such capital stock have no rights
arising from or relating to such capital stock (or the stock certificates
representing such cancelled stock) or any right to acquire such capital stock.
D. To the extent prohibited by Section 1123 of Title 11 of the United
States Code (the "Bankruptcy Code"), the Corporation will not issue non-voting
equity securities; provided, however, that the foregoing (i) will have no
further force and effect beyond that required under Section 1123 of the
Bankruptcy Code, (ii) will have such force and effect, if any, only for so long
as such Section 1123 is in effect and applicable to the Corporation, and (iii)
may be amended or eliminated in accordance with applicable law as from time to
time in effect.
FIFTH: The following provisions are inserted for the management of
the business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
B. The Board of Directors shall have the power to make, alter, amend,
change, add to or repeal the By-Laws of the Corporation, subject to the right of
the stockholders to make, alter, amend, change, add to or repeal the By-Laws,
provided that any such action by the stockholders shall require the affirmative
vote of the holders of at least a majority of the then outstanding shares of
capital stock entitled to vote generally in the election of directors.
C. The number of directors of the Corporation shall be as from time
to time fixed by, or in the manner provided in, the By-Laws of the Corporation.
Election of directors need not be by written ballot unless the By-Laws so
provide. The term of office of each director shall expire at the next annual
meeting of stockholders after his or her election. In accordance with the
By-Laws, directors appointed to fill vacancies created by the resignation or
removal of any director shall serve for the remainder of the term of the
director who resigned or was removed. A director may be removed only for cause
by the affirmative vote of the holders of at least a majority of the then
outstanding shares of capital stock entitled to vote generally in the election
of directors.
D. No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent that such exemption from liability or limitation
thereof is not permitted under the GCL as the same exists or may hereafter be
amended. Any repeal or modification of this Article FIFTH by the stockholders of
the Corporation shall not adversely affect any right or protection of a director
of the Corporation existing at the time of such repeal or modification with
respect to acts or omissions occurring prior to such repeal or modification.
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<PAGE>
E. The Corporation shall indemnify any director who, as the result of
his acting as a director of the Corporation, was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, and upon
request shall pay any expense incurred by any director in connection with any
such action, suit or proceeding in advance of the final disposition of such
matter, all to the fullest extent permitted by Delaware law.
F. In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, subject, nevertheless, to the provisions of the GCL, this
Amended and Restated Certificate of Incorporation and any By-Laws adopted by the
stockholders; provided, however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors which would have
been valid if such By-Laws had not been adopted.
G. Meetings of stockholders may be held within or without the State
of Delaware, as the By-Laws may provide. Special meetings of stockholders must
be called by the Secretary upon the request in writing of a stockholder or
stockholders holding of record at least twenty-five percent (25%) of the issued
and outstanding Common Stock entitled to vote at such meeting.
H. The books of the Corporation may be kept (subject to any
provisions contained in the GCL) outside the State of Delaware at such places as
may be designated from time to time by the Board of Directors or in the By-Laws
of the Corporation.
I. The By-Laws shall not contain any super-majority voting provisions
regarding any matters as to which the Board of Directors or stockholders shall
vote.
SIXTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribe by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
The undersigned President, Chief Executive Officer and Chairman of
the Corporation, Michael T. Heffernan, hereby executes this Amended and Restated
Certificate of Incorporation on this 15th day of September, 2000.
INNOVATIVE CLINICAL SOLUTIONS, LTD.
By: /s/ Michael T. Heffernan
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Name: Michael T. Heffernan
Its: President, Chief Executive Officer
and Chairman
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