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RESTATED
CERTIFICATE OF INCORPORATION
OF
ERESEARCH TECHNOLOGY, INC.
ERESEARCH TECHNOLOGY, INC., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is eResearch Technology, Inc.
2. The original Certificate of Incorporation of the corporation was
filed with the Secretary of State of the State of Delaware on December 9, 1999.
3. This Restated Certificate of Incorporation amends and restates
the Certificate of Incorporation of the corporation.
4. This Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
5. The text of the corporation's Certificate of Incorporation is
hereby amended and restated in full so as to read as follows:
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RESTATED
CERTIFICATE OF INCORPORATION
OF
ERESEARCHTECHNOLOGY, INC.
FIRST. The name of the corporation is eResearchTechnology, Inc.
(the "Corporation").
SECOND. The registered office of the Corporation in the State of
Delaware is located at 1013 Centre Street, in the City of Wilmington, County of
New Castle. The registered agent at this address is Corporation Service
Company.
THIRD. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "GCL").
FOURTH. (a) The aggregate number of shares of stock that the
Corporation shall have authority to issue is 60,000,000 shares, consisting of
(i) 50,000,000 shares of Common Stock, par value $.01 per share (the "Common
Stock") and (ii) 10,000,000 shares of Series Preferred Stock, without par value
(the "Preferred Stock").
(b) The Preferred Stock may be issued from time to time by
the Board of Directors as herein provided in one or more series. The
designations, relative rights, preferences and limitations of the Preferred
Stock, and particularly of the shares of each series thereof, may, to the extent
permitted by law, be similar to or may differ from those of any other series.
The Board of Directors of the Corporation is hereby expressly granted authority,
subject to the provisions of this Article Fourth, to issue from time to time
Preferred Stock in one or more series and to fix from time to time before
issuance thereof, by filing a certificate pursuant to the GCL, the number of
shares in each such series and all designations, relative rights (including the
right, to the extent permitted by law, to convert into shares of any class or
into shares of any series of any class), preferences and limitations of the
shares in each such series. Except as provided to the contrary in the provisions
establishing a specific series of the Preferred Stock, the number of authorized
shares of any class or classes of stock may be increased or decreased (but not
below the number of shares then outstanding) by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to vote
irrespective of any other voting requirements set forth in Section 242(b)(2) of
the GCL.
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(c) All shares of the Preferred Stock of the same series
shall be identical in all respects, except that shares of any one series issued
at different times may differ as to the dates, if any, from which dividends
thereon may accumulate.
FIFTH. The Corporation shall have perpetual existence.
SIXTH. 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, however, to the extent required by Section
102(b)(7) or any successor provision of the GCL, this Article Sixth shall not
eliminate or limit the liability of a director, to the extent such liability is
provided by applicable laws, (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 GCL, or (iv) for any transaction from which
the director derived an improper personal benefit. No amendment to or repeal of
this Article Seventh shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
The liability of a director of the Corporation shall be further eliminated or
limited to the fullest extent allowable under the GCL as it may in the future be
amended.
SEVENTH. In furtherance and not in limitation of the power conferred
upon the Board of Directros by law, the Board of Directors shall have the power
to adopt, amend and repeal from time to time bylaws of the Corporation.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be signed on its behalf by its duly authorized
officers this 23rd day of March, 2000.
Attest: eResearch Technology, Inc.
/s/ John Bauer By: /s/Joel Morganroth, M.D., Chairman
----------------------------- ----------------------------------
John Bauer, Secretary Joel Morganroth, M.D., Chairman
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CERTIFICATE OF DESIGNATION
OF SERIES A CONVERTIBLE PREFERRED STOCK
OF ERESEARCHTECHNOLOGY, INC.
(a Delaware corporation)
The undersigned, Joel Morganroth, the Chairman of eResearchTechnology,
Inc., does hereby certify, pursuant to Section 151 of the General Corporation
Law of the State of Delaware, that:
1. He is the duly elected and acting Chairman of eResearchTechnology,
Inc., a Delaware corporation (the "Company").
2. The Restated Certificate of Incorporation of the Company authorizes
10,000,000 shares of preferred stock, without par value, none of which have been
issued.
3. The following is a true and correct copy of resolutions duly adopted
by the Board of Directors at a duly convened meeting held on March 23, 2000 at
which a quorum was present and acting throughout, which constitutes all
requisite action on the part of the Company for adoption of such resolutions.
RESOLUTIONS
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Company by the provisions of its
Restated Certificate of Incorporation, the Board of Directors does hereby
establish and designate and provide for the issuance of a series of the
Preferred Stock of the Company designated as "Series A Convertible Preferred
Stock," which shall consist of 95,000 shares, and the Board of Directors does
hereby fix the terms, voting powers, preferences and relative rights,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations and restrictions thereof, to be as follows;
Section 1. Designation, Amount and Par Value. The series of Preferred
Stock shall be designated as the Series A Convertible Preferred Stock (the
"Series A Preferred"), and the number of shares so designated shall be 95,000.
Each share of Series A Preferred shall have no par value. Each share of Series A
Preferred shall have a stated value of $100.00 per share (the "Stated Value").
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Section 2. Dividends.
(a) Subject to Section 2(b) and to the rights of the holders of Senior
Securities, if any, the holders of the Series A Preferred shall be entitled to
receive cash dividends, out of any assets legally available therefor, at a per
annum rate (compounded on a quarterly basis) of 7% of the sum of (i) the Stated
Value plus (ii) the aggregate amount of any dividends which have then accrued
but remain unpaid, per share (as adjusted for any stock dividends, combinations
or splits with respect to such shares). The holders of the Series A Preferred
shall be entitled to receive dividends prior and in preference to any
declaration or payment of any dividend (payable other than in Common Stock or
other securities and rights convertible into or entitling the holder thereof to
receive, directly or indirectly, additional shares of Common Stock of the
Company) on the Common Stock or any other class or series of capital stock of
the Company. The party that holds the Series A Preferred on an applicable record
date for any dividend payment will be entitled to receive such dividend payment
and any accrued and unpaid dividends which were declared prior to such dividend
payment date, without regard to any sale or disposition of such Series A
Preferred subsequent to the applicable record date.
(b) Dividends on shares of the Series A Preferred shall not accrue and
no dividends will be payable if the Company consummates its initial Public
Offering on or before the six month anniversary of the Closing Date. If the
Company does not consummate its initial Public Offering on or before the six
month anniversary of the Closing Date, then dividends on shares of the Series A
Preferred shall be payable no later than the first anniversary of the Closing
Date and thereafter on the last business day of each fiscal quarter of the
Company until the Company's initial Pubic Offering to such stockholders of
record as determined on the 10th day preceding each such dividend payment date.
Dividends on the Series A Preferred shall accrue and be deemed to accrue from
the date on which the Series A Preferred is issued and from day to day whether
or not earned or declared, shall be cumulative and shall be compounded on a
quarterly basis as set forth in Section 2(a).
(c) In the event the Company shall declare a distribution payable in
securities of other persons, evidences of indebtedness issued by the Company or
other persons, assets (excluding cash dividends) or options or rights to
purchase any such securities or evidences of indebtedness, then, in each such
case, the holders of the Series A Preferred shall be entitled to a proportionate
share of any such distribution as though the holders of the Series A Preferred
were the holders of the number of shares of Common Stock of the Company into
which their respective shares of Series A Preferred are convertible as of the
record date fixed for the determination of the holders of Common Stock of the
Company entitled to receive such distribution. The conversion ratio for such
determination will be based upon the Stated Value of the total number of shares
of Series A
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Preferred outstanding divided by the value of the Company at that time as
determined in good faith by the Board of Directors with the approval of the
Series A Director (as defined below).
Section 3. Voting Rights; Protective Provisions.
(a) For so long as any shares of Series A Preferred are outstanding,
the Company shall not, without first obtaining the approval (by vote or written
consent, as provided in the Delaware General Corporation Law (the "DGCL")) of
the holders of a majority of the shares of Series A Preferred then outstanding,
voting as a separate class:
(i) Amend, alter or change the Restated Certificate of Incorporation or
bylaws of the Company so as to alter or change the rights, preferences or
privileges of the shares of Series A Preferred Stock so as to affect adversely
such shares;
(ii) Increase or decrease the total number of authorized shares of the
Series A Preferred;
(iii) Authorize or issue, or obligate itself to issue, any class or
series of Senior Securities;
(iv) Pay or declare any dividend with respect to outstanding shares of
Common Stock or any other class or series of capital stock of the Company; or
(v) Take any other action which requires the approval of the holders of
the shares of Series A Preferred, voting as a separate class, under the DGCL.
(b) For so long as any shares of Series A Preferred are outstanding,
the holders of the Series A Preferred then outstanding, voting as a separate
class, shall be entitled to elect one member of the Board of Directors (the
"Series A Director"). Subject to the DGCL, any Series A Director may be removed
during his term of office, either for or without cause, by, and only by, the
affirmative vote of the holders of a majority of the shares of Series A
Preferred, given at a special meeting of such holders duly called or by an
action by written consent for that purpose. Any vacancy in the Board of
Directors caused by the removal, resignation or death of the Series A Director
shall be filled by, and only by, the vote of the holders of a majority of the
shares of Series A Preferred then outstanding in accordance with the DGCL.
Section 4. Liquidation.
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(a) Subject to the rights of the holders of Senior Securities, if any,
upon any liquidation, dissolution or winding-up of the Company, whether
voluntary or involuntary (a "Liquidation"), the holders of shares of Series A
Preferred shall be entitled to receive out of the assets of the Company, whether
such assets are capital or surplus, for each share of Series A Preferred then
outstanding an amount equal to the Stated Value plus any accrued but unpaid
dividends to the date of such payment on the Series A Preferred (the
"Liquidation Preference"), before any distribution or payment shall be made to
the holders of any Junior Securities, provided that such assets shall be shared
ratably with holders of shares of any class of the Company's capital stock
ranking pari passu with the Series A Preferred. If the assets of the Company
shall be insufficient to pay in full such amounts, then the entire assets to be
distributed shall be distributed, subject to the rights of the holders of Senior
Securities, if any, among the holders of Series A Preferred and other classes of
capital stock ranking pari passu with the Series A Preferred ratably, in
accordance with the respective amounts that would be payable on such shares if
all amounts payable thereon were paid in full.
(b) After payment or setting apart of payment of the amounts to which
the holders of Series A Preferred are entitled pursuant to Section 4(a), if
applicable, the remaining assets of the Company available for distribution to
stockholders shall be distributed among the holders of Junior Securities.
(c) For purposes of this Section 4, (i) any acquisition of the Company
by means of consolidation, merger or other form of corporate reorganization in
which outstanding shares of the Company are exchanged for securities or other
consideration issued, or caused to be issued, by the acquiring company or its
subsidiary (other than a mere reincorporation transaction), and pursuant to
which the holders of the issued and outstanding securities entitling such
holders to vote for the election of the members of the Board of Directors
generally ("Voting Securities") immediately prior to such consolidation, merger
or other form of corporate reorganization fail to hold Voting Securities
representing a majority of the voting power of the Company or surviving entity
immediately following such consolidation, merger or other form of corporate
reorganization, or (ii) a sale, lease or exchange of all or substantially all of
the assets of the Company, or (iii) any other transaction or series of related
transactions pursuant to which the holders of the outstanding Voting Securities
of the Company immediately prior to which transaction or series of transactions
fail to hold Securities representing a majority of the voting power of the
Company immediately following such transaction (clauses (i), (ii) and (iii)
being collectively referred to herein as a "Change of Control"), shall be
treated as a liquidation, dissolution or winding up of the Company and shall
entitle the holders of Series A Preferred to receive at the closing in cash,
securities or other property (valued as provided in Section 4(d) below) amounts
as specified in Section 4(a).
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(d) Whenever the distribution provided for in this Section 4 shall be
payable in securities or property other than cash, the value of such
distribution shall be the fair market value of such securities or other property
as determined in good faith by the Board of Directors with the approval of the
Series A Director.
Section 5. Mandatory Conversion.
(a) (i) Upon the occurrence of (A) a Public Offering resulting in
aggregate proceeds of less than $25,000,000 and with the written consent of a
majority of the holders of Series A Preferred then outstanding or (B) a
Qualified Public Offering, each outstanding share of Series A Preferred shall
automatically be converted into such number of shares of Common Stock as is
determined by dividing (x) the Stated Value by (y) the Per Share IPO Price. Any
mandatory conversion hereunder shall be effected automatically upon the
occurrence of the event giving rise to such conversion, without any action of
the holders thereof unless specifically required pursuant to Section 5(a)(i)(A)
and whether or not the certificates representing the shares of Series A
Preferred are surrendered to the Company or its transfer agent; provided,
however, that the Company shall not be obligated to issue certificates
evidencing the shares of Common Stock issuable upon such conversion unless the
certificates evidencing such shares of Series A Preferred are either delivered
to the Company or its transfer agent as provided below, or the holder notifies
the Company or its transfer agent that such certificates have been lost, stolen
or destroyed and executes an agreement reasonably satisfactory to the Company to
indemnify the Company from any loss incurred by it in connection with such
certificates.
(ii) All holders of record of shares of Series A Preferred will be
given at least three business days' prior written notice of the date fixed and
the place designated for mandatory conversion of all such shares of Series A
Preferred pursuant to this Section 5(a). On or before the date fixed for
conversion (the "Mandatory Conversion Date"), each holder of shares of Series A
Preferred shall surrender his or its certificate(s) for all such shares to the
Company at the place designated in such notice, and shall thereafter receive
certificate(s) for the number of shares of Common Stock to which such holder is
entitled pursuant to this Section 5(a). As soon as practicable after the
Mandatory Conversion Date and the surrender of the certificate(s) for Series A
Preferred, the Company shall cause to be issued and delivered to such holder, or
on his or its written order, such certificate(s) for the number of full shares
of Common Stock issuable on such conversion in accordance with the provisions
hereof and cash as provided in Section 5(a)(iii) in respect of any fraction of a
share of Common Stock otherwise issuable upon such conversion.
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(iii) The Company may, if it so elects, issue fractional shares of
Common Stock upon the conversion of shares of Series A Preferred. If the Company
does not elect to issue fractional shares, the Company shall pay to the holder
of the shares of Series A Preferred which were converted a cash adjustment in
respect of such fractional shares in an amount equal to the same fraction of the
Per Share IPO Price at the close of business on the Mandatory Conversion Date.
The determination as to whether or not any fractional shares are issuable shall
be based upon the total number of shares of Series A Preferred being converted
at any one time by any holder thereof, not upon each share of Series A Preferred
being converted.
(b) The Company shall at all times reserve and keep available out of
its authorized but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the shares of the Series A Preferred, such number of
its shares of Common Stock as shall from time to time be sufficient to effect
the conversion of all outstanding shares of the Series A Preferred, and if at
any time the number of authorized but unissued shares of Common Stock shall not
be sufficient to effect the conversion of all then outstanding shares of the
Series A Preferred, the Company shall take such corporate action as may be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purpose.
(c) The issuance of certificates for shares of Common Stock on
conversion of Series A Preferred shall be made without charge to the holders
thereof for any documentary stamp or similar taxes that may be payable in
respect of the issue or delivery of such certificate, provided that the Company
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate upon
conversion in a name other than that of the holder of such shares of Series A
Preferred so converted and the Company shall not be required to issue or deliver
such certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
(d) Shares of Series A Preferred converted into Common Stock shall be
canceled and shall have the status of authorized but unissued shares of
preferred stock.
Section 6. Definitions. For the purposes hereof, the following terms
shall have the following meanings:
"Closing Date" means March 24, 2000.
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"Common Stock" means shares now or hereafter authorized of the class of
Common Stock, par value $.01 per share, of the Company and stock of any other
class into which such shares may hereafter have been reclassified or changed.
"Junior Securities" means the Common Stock and any other class or
series of capital stock of the Company specifically ranking, by its terms,
junior to the Series A Preferred, as to distribution of assets upon liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary, or
as to redemption rights.
"Per Share IPO Price" means the per share offering price (less
underwriters' commissions) in the Company's initial Public Offering.
"Person" means a corporation, an association, a partnership,
organization, a business, an individual, a government or political subdivision
thereof or a governmental agency.
"Public Offering" means any sale of shares of Common Stock in an
underwritten public offering pursuant to an effective registration statement on
Form S-1 or similar form under the Securities Act of 1933, as amended, or any
successor statute.
"Purchase Agreement" means the Series A Preferred Stock Purchase
Agreement, dated as of March 24, 2000, among the Company and the Purchaser
identified therein.
"Qualified Public Offering" means any sale of shares of Common Stock
resulting in gross proceeds of at least $25,000,000 in a firm commitment
underwritten public offering pursuant to an effective registration statement on
Form S-1 or similar form under the Securities Act of 1933, as amended, or any
successor statute.
"Senior Securities" means any class or series of capital stock of the
Company specifically ranking, by its terms, pari passu or senior to the Series A
Preferred, as to distribution of assets upon liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary, or as to redemption rights.
RESOLVED FURTHER, that the Chairman of the Company be, and hereby, is
authorized and directed to prepare, execute, verify, and file in Delaware, a
Certificate of Designation in accordance with these resolutions and as required
by law.
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IN WITNESS WHEREOF, eResearchTechnology, Inc. has caused its corporate
seal to be hereunto affixed and this certificate to be signed by Joel
Morganroth, its Chairman, this 24th day of March, 2000.
ERESEARCHTECHNOLOGY, INC.
By: /s/ Joel Morganroth
-----------------------
Joel Morganroth
Chairman
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ERESEARCHTECHNOLOGY, INC.
eResearchTechnology, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY THAT:
FIRST: The Board of Directors of eResearchTechnology, Inc. (the "Corporation"),
at a meeting of the Board of Directors held June 13, 2000, pursuant to notice
duly given, duly adopted resolutions setting forth a proposed amendment of the
Restated Certificate of Incorporation of the Corporation, declaring said
amendment to be advisable and calling for consideration thereof by the
stockholders of the Corporation. The resolution setting forth the proposed
amendment is as follows:
RESOLVED, that the Board of Directors hereby declares it
advisable and in the best interests of the Corporation and its
stockholders that Article FOURTH of the Restated Certificate of
Incorporation of the Corporation shall be amended by adding a new
Section (d) to read in its entirety as follows:
"(d) Effective as of 5:00 p.m. Eastern time (the
"Effective Time") on the date of filing with the Secretary of
State of the State of Delaware of a Certificate of Amendment
of the Restated Certificate of Incorporation of the
Corporation amending this Article Fourth, each share of Common
Stock issued and outstanding immediately prior to the
Effective Time (the "Old Common Stock") shall be changed and
divided into 10,000 shares of Common Stock. At the Effective
Time, the certificates representing the Old Common Stock shall
be deemed canceled and shall not be recognized as outstanding
on the books of the Corporation for any purpose. Thereupon,
there shall be issued and delivered to each holder of Old
Common Stock, promptly in its name and at its address as shown
on the records of the Corporation, a certificate for the
number of shares of Common Stock into which the shares of Old
Common Stock were divided."
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SECOND: Thereafter, pursuant to a resolution of the Board of Directors, the
holders of at least a majority of the outstanding shares of Common Stock and
Series A Preferred Stock of the Corporation, voting together as a single class,
voted in favor of the amendment.
THIRD: Such amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this Certificate of
Amendment to be signed by Joseph A. Esposito, its President, and Bruce Johnson,
its Secretary, this 18th day of July, 2000.
Attest: eResearchTechnology, Inc.
/s/ Bruce Johnson By: /s/ Joseph A. Esposito
------------------------- -----------------------------
Bruce Johnson, Secretary Joseph A. Esposito, President
