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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
PRACTICEWORKS, INC.
ARTICLE I.
The name of the Corporation is PracticeWorks, Inc. (the "Corporation").
ARTICLE II.
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road in Wilmington, Delaware 19805 in the County of New
Castle. The name of its registered agent at such address is Corporation Service
Company.
ARTICLE III.
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 Delaware and the Corporation shall have all powers necessary to engage in
such acts or activities including, but not limited to, the powers enumerated in
the General Corporation Law of Delaware or any amendment thereto.
ARTICLE IV
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 120,000,000, of which 100,000,000
shares, par value $0.01 per share, shall be designated as common stock (the
"Common Stock") and 20,000,000 shares, par value $0.01 per share, shall be
designated as preferred stock (the "Preferred Stock").
A. COMMON STOCK
(1) Voting. Except as may be provided in this Certificate of
Incorporation or required by law, the Common Stock shall have voting rights in
the election of directors and on all other matters presented to stockholders,
with each holder of Common Stock being entitled to one vote for each share of
Common Stock held of record by such holder
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at the time determined according to law.
(2) Dividends. Subject to the rights of the holders of any series of
Preferred Stock, holders of Common Stock shall be entitled to receive such
dividends and distributions (whether payable in cash or otherwise) as may be
declared on the Common Stock by the board of directors of the Corporation from
time to time out of assets or funds of the Corporation legally available
therefor; provided that the board of directors of the Corporation shall declare
no dividend, and no dividend shall be paid, with respect to any outstanding
share of Common Stock, whether in cash or otherwise (including any dividend in
shares of Common Stock on or with respect to shares of Common Stock ("Stock
Dividends")), unless, simultaneously, the same dividend is declared or paid with
respect to each share of Common Stock. Stock Dividends with respect to Common
Stock may be paid only with shares of Common Stock.
(3) Subdivisions, Combinations and Mergers. In the event of any merger,
statutory share exchange, consolidation or similar form of corporate transaction
involving the Corporation (whether or not the Corporation is the surviving
entity), the holders of Common Stock shall be entitled to receive the same per
share consideration, if any.
(4) Rights on Liquidation. Subject to the rights of the holders of any
series of Preferred Stock, in the event of any liquidation, dissolution or
winding-up of the Corporation (whether voluntary or involuntary), the assets of
the Corporation available for distribution to stockholders shall be distributed
in equal amounts per share to the holders of Common Stock. For purposes of this
paragraph, a merger, statutory share exchange, consolidation or similar
corporate transaction involving the Corporation (whether or not the Corporation
is the surviving entity), or the sale, transfer or lease by the Corporation of
all or substantially all its assets, shall not constitute or be deemed a
liquidation, dissolution or winding-up of the Corporation.
B. PREFERRED STOCK
Shares of Preferred Stock may be issued in one or more series from time
to time as determined by the board of directors of the Corporation, and the
board of directors of the Corporation is authorized to fix by resolution or
resolutions the designations and the powers, preferences and rights, and the
qualifications, limitations and restrictions thereof, of the shares of each
series of Preferred Stock, including the following:
(i) the distinctive serial designation of such series which shall
distinguish it from other series;
(ii) the number of shares included in such series which may be
increased or decreased (but not below the number of shares of that series then
outstanding) by resolution of the board of directors;
(iii) whether dividends shall be payable to the holders of the shares
of such series and, if so, the basis on which such holders shall be entitled to
receive dividends (which
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may include, without limitation, a right to receive such dividends or
distributions as may be declared on the shares of such series by the board of
directors of the Corporation, a right to receive such dividends or
distributions, or any portion or multiple thereof, as may be declared on the
Common Stock or any other class of stock or, in addition to or in lieu of any
other right to receive dividends, a right to receive dividends at a particular
rate or at a rate determined by a particular method, in which case such rate or
method of determining such rate may be set forth), whether such dividends shall
be cumulative, the form of such dividend, any conditions on which such dividends
shall be payable, the preference or relation which such dividends shall bear to
the dividends payable on any shares of stock of any other class or any other
series of the same class and the date or dates, if any, on which such dividends
shall be payable;
(iv) the amount or amounts, if any, which shall be payable out of the
assets of the Corporation to the holders of the shares of such series upon the
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, or upon any distribution of the assets and the relative rights of
priority, if any, of payment of the shares of such series;
(v) the price or prices (in cash, securities or other property or a
combination thereof) at which, the period or periods within which and the terms
and conditions upon which the shares of such series may be redeemed, in whole or
in part, at the option of the Corporation or at the option of the holder or
holders thereof or upon the happening of a specified event or events;
(vi) the obligation, if any, of the Corporation to purchase or redeem
shares of such series pursuant to a sinking fund or otherwise and the price or
prices (in cash, securities or other property or a combination thereof) at
which, the period or periods within which and the terms and conditions upon
which the shares of such series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(vii) whether or not the shares of such series shall be convertible or
exchangeable, at any time or times at the option of the holder or holders
thereof or at the option of the Corporation or upon the happening of a specified
event or events, into shares of any other class or classes or any other series
of the same or any other class or classes of stock of the Corporation or any
other securities or property of the Corporation or any other entity, and the
price or prices (in cash, securities or other property or a combination thereof)
or rate or rates of conversion or exchange and the method, if any, of adjusting
the same and any other terms and conditions of conversion or exchange and any
adjustments applicable thereto;
(viii) whether or not the holders of the shares of such series shall
have voting rights, in addition to the voting rights provided by law, and if so
the terms of such voting rights, which may provide, among other things and
subject to the other provisions of this Certificate of Incorporation, that each
share of such series shall carry one vote or more or less than one vote per
share, that the holders of such series shall be entitled to vote on certain
matters as a separate class (which for such purpose may be comprised solely of
such series or of such series and one or more other series or classes of stock
of the
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Corporation) and that all the shares of such series entitled to vote on a
particular matter shall be deemed to be voted on such matter in the manner that
a specified portion of the voting power of the shares of such series or separate
class are voted on such matter.
(ix) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issue of any additional stock,
including additional shares of such class or series or of any other series of
the same class or of any other class;
(x) the ranking (be it pari passu, junior or senior) of each class or
series vis-a-vis any other class or series of any class of Preferred Stock as to
the payment of dividends, the distribution of assets and all other matters; and
(xi) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations and
restrictions thereof, insofar as they are not inconsistent with the provisions
of this Certificate of Incorporation, to the full extent permitted in accordance
with the laws of the State of Delaware.
For all purposes, this Certificate of Incorporation shall include each
certificate of designations (if any) setting forth the terms of a series of
Preferred Stock.
Except as otherwise required by law or provided in the certificate of
designations for the relevant series, holders of Common Stock, as such, shall
not be entitled to vote on any amendment of this Certificate of Incorporation
that alters or changes the powers, preferences, rights or other terms of one or
more outstanding series of Preferred Stock if the holders of such affected
series of Preferred Stock are entitled, either separately or together with the
holders of one or more other series of Preferred Stock, to vote thereon as a
separate class pursuant to this Certificate of Incorporation or pursuant to the
Delaware General Corporation Law as then in effect.
ARTICLE V.
A. All corporate powers shall be exercised by the board of directors of
the Corporation, except as otherwise specifically required by law or as
otherwise provided in this Certificate of Incorporation. Any meeting of
stockholders may be postponed by action of the board of directors at any time in
advance of such meeting. The board of directors of the Corporation shall have
the power to adopt such rules and regulations for the conduct of the meetings
and management of the affairs of the Corporation as they may deem proper and the
power to adjourn any meeting of stockholders without a vote of the stockholders,
which powers may be delegated by the board of directors to the chairman of such
meeting either in such rules and regulations or pursuant to the by-laws of the
Corporation.
B. Special meetings of stockholders of the Corporation may be called at
any time by, but only by, the chairman of the board of directors, the chief
executive officer or a majority of the board of directors of the Corporation, to
be held at such date, time and
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place either within or without the State of Delaware as may be stated in the
notice of the meeting.
C. The board of directors of the Corporation is authorized to adopt,
amend or repeal by-laws of the Corporation. No adoption, amendment or repeal of
a by-law by action of stockholders shall be effective unless approved by the
affirmative vote of the holders of not less than 66 2/3% of the voting power of
all outstanding shares of Common Stock of the Corporation and all other
outstanding shares of stock of the Corporation entitled to vote on such matter,
with such outstanding shares of Common Stock and other stock considered for this
purpose as a single class. Any vote of stockholders required by this Article V
shall be in addition to any other vote of stockholders that may be required by
law, this Certificate of Incorporation, the by-laws of the Corporation, any
agreement with a national securities exchange or otherwise.
ARTICLE VI.
Elections of directors need not be by written ballot, except and to the
extent provided in the by-laws of the Corporation.
ARTICLE VII.
The name and mailing address of the incorporator is: James A. Cochran,
1765 The Exchange, Suite 500, Atlanta, Georgia 30339.
ARTICLE VIII.
A. The directors of the Corporation shall be divided into three
classes. The number of directors of the Corporation and the number of directors
in each class of directors shall be fixed only by resolution of the board of
directors of the Corporation from time to time. The initial term of office of
the first such class of directors shall expire at the annual meeting of
stockholders in 2001, the initial term of office of the second such class of
directors shall expire at the annual meeting of stockholders in 2002 and the
initial term of office of the third such class of directors shall expire at the
annual meeting of stockholders in 2003, with each such class of directors to
hold office until their successors have been duly elected and qualified. At each
annual meeting of stockholders, directors elected to succeed the directors whose
terms expire at such annual meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders in the third year following the
year of their election and until their successors have been duly elected and
qualified. If the number of directors is changed, any increase or decrease shall
be apportioned among the classes in such manner as the board of directors of the
Corporation shall determine, but no decrease in the number of directors may
shorten the term of any incumbent director.
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B. No director who is part of any such class of directors may be
removed except for cause.
C. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors or from any other cause (other
than vacancies and newly created directorships which the holders of any class or
classes of stock or series thereof are expressly entitled by this Certificate of
Incorporation to fill) shall be filled by, and only by, a majority of the
directors then in office, although less than a quorum, or by the sole remaining
director. Any director appointed to fill a vacancy or a newly created
directorship shall hold office until the next election of the class of directors
of the director which such director replaced or the class of directors to which
such director was appointed, and until his or her successor is elected and
qualified or until his or her earlier resignation or removal.
D. Notwithstanding the foregoing, in the event that the holders of any
class or series of Preferred Stock of the Corporation shall be entitled, voting
separately as a class, to elect any directors of the Corporation, then the
number of directors that may be elected by such holders voting separately as a
class shall be in addition to the number fixed pursuant to a resolution of the
board of directors of the Corporation. Except as otherwise provided in the terms
of such class or series, (i) the terms of the directors elected by such holders
voting separately as a class shall expire at the annual meeting of stockholders
next succeeding their election without regard to the classification of other
directors and (ii) any director or directors elected by such holders voting
separately as a class may be removed, with or without cause, by the holders of a
majority of the voting power of all outstanding shares of stock of the
Corporation entitled to vote separately as a class in an election of such
directors.
ARTICLE IX.
In taking any action, including action that may involve or relate to a
change or potential change in the control of the Corporation, a director of the
Corporation may consider, among other things, both the long-term and short-term
interests of the Corporation and its stockholders and the effects that the
Corporation's actions may have in the short term or long term upon any one or
more of the following matters:
(i) the prospects for potential growth, development, productivity and
profitability of the Corporation;
(ii) the Corporation's current employees;
(iii) the Corporation's employees and other beneficiaries receiving or
entitled to receive retirement, welfare or similar benefits from or pursuant to
any plan sponsored, or agreement entered into, by the Corporation;
(iv) the Corporation's customers and creditors;
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(v) the ability of the Corporation to provide, as a going concern,
goods, services, employment opportunities and employment benefits and otherwise
to contribute to the communities in which it does business; and
(vi) such other additional factors as a director may consider
appropriate in such circumstances.
Nothing in this Article IX shall create any duty owed by any director
of the Corporation to any person or entity to consider, or afford any particular
weight to, any of the foregoing matters or to limit his or her consideration to
the foregoing matters. No such employee, former employee, beneficiary, customer,
creditor or community or member thereof shall have any rights against any
director of the Corporation or the Corporation under this Article IX.
ARTICLE X.
No provision of Article V, Article VIII, Article IX or Article XI or of
this Article X shall be amended, modified or repealed, and no provision
inconsistent with any such provision shall become part of this Certificate of
Incorporation, unless such matter is approved by the affirmative vote of the
holders of not less than 66 2/3% of the voting power of all outstanding shares
of Common Stock of the Corporation and all other outstanding shares of stock of
the Corporation entitled to vote on such matter, with such outstanding shares of
Common Stock and other stock considered for this purpose as a single class. Any
vote of stockholders required by this Article X shall be in addition to any
other vote of the stockholders that may be required by law, this Certificate of
Incorporation, the by-laws of the Corporation, any agreement with a national
securities exchange or otherwise.
ARTICLE XI.
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
of the Corporation, except to the extent that such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation Law
as currently in effect or as the same may hereafter be amended.
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed and attested by its duly authorized officer on this 10th day of August,
2000.
By: /s/ James A. Cochran
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James A. Cochran
Incorporator
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