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EXCEL - IDEA: XBRL DOCUMENT - AMERISOURCEBERGEN CORP | Financial_Report.xls |
10-Q - FORM 10-Q - AMERISOURCEBERGEN CORP | c96105e10vq.htm |
EX-10.3 - EXHIBIT 10.3 - AMERISOURCEBERGEN CORP | c96105exv10w3.htm |
EX-32.1 - EXHIBIT 32.1 - AMERISOURCEBERGEN CORP | c96105exv32w1.htm |
EX-10.1 - EXHIBIT 10.1 - AMERISOURCEBERGEN CORP | c96105exv10w1.htm |
EX-10.4 - EXHIBIT 10.4 - AMERISOURCEBERGEN CORP | c96105exv10w4.htm |
EX-32.2 - EXHIBIT 32.2 - AMERISOURCEBERGEN CORP | c96105exv32w2.htm |
EX-31.1 - EXHIBIT 31.1 - AMERISOURCEBERGEN CORP | c96105exv31w1.htm |
EX-10.2 - EXHIBIT 10.2 - AMERISOURCEBERGEN CORP | c96105exv10w2.htm |
EX-31.2 - EXHIBIT 31.2 - AMERISOURCEBERGEN CORP | c96105exv31w2.htm |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF AMERISOURCEBERGEN CORPORATION
CERTIFICATE OF INCORPORATION
OF AMERISOURCEBERGEN CORPORATION
AmerisourceBergen Corporation, a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
1. The name of the corporation is AmerisourceBergen Corporation. The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware was
March 16, 2001 and the name under which the corporation was originally incorporated is AABB
Corporation.
2. Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware
(the DGCL), and having been duly proposed by the Corporations Board of Directors and
duly adopted in accordance therewith, this Amended and Restated Certificate of Incorporation (this
Certificate) restates and integrates and further amends the provisions of the Amended and
Restated Certificate of Incorporation of AmerisourceBergen Corporation. The amendments contained
herein have been duly adopted by the holders of a majority of the outstanding stock of
AmerisourceBergen Corporation entitled to vote thereon at the annual meeting of the stockholders of
AmerisourceBergen Corporation.
3. The text of the Amended and Restated Certificate of Incorporation of AmerisourceBergen
Corporation, together with all subsequent amendments, is hereby amended and restated in its
entirety to read as follows:
ARTICLE I
NAME
The name of the corporation is AmerisourceBergen Corporation (hereinafter referred to as the
Corporation).
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of Delaware shall be The Corporation
Trust Company, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801,
and the registered agent in charge thereof shall be The Corporation Trust Company.
ARTICLE III
CORPORATE PURPOSE
Section 3.01. Purpose. 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 DGCL, as amended
from time to time, and to possess and exercise all of the powers and privileges granted by such law
and other law of Delaware.
Section 3.02. Term. The Corporation is to have perpetual existence.
ARTICLE IV
CAPITALIZATION
Section 4.01. Authorized Capital. The aggregate number of shares of stock which the
Corporation shall have authority to issue is 610,000,000 shares, divided into two (2) classes
consisting of 600,000,000 shares of Common Stock, par value $0.01 per share (the Common
Stock), and 10,000,000 shares of Preferred Stock, par value $0.01 per share (the
Preferred Stock).
Section 4.02. Common Stock. The Common Stock shall be subject to the express terms of
any series of Preferred Stock.
(a) Voting. Except as may be provided in this Certificate or in a Preferred Stock
Certificate of Designation (as defined below), if any, the Common Stock shall have the exclusive
right to vote for the election of directors and for all other purposes as provided by law, and
holders of Preferred Stock shall not be entitled to receive notice of any meeting of stockholders
at which they are not entitled to vote. The election of directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
(b) Dividends. Subject to any other provisions of this Certificate, and to the rights
of holders of Preferred Stock, if any, holders of Common Stock shall be entitled to receive ratably
on a per share basis such dividends and other distributions in cash, stock or property of the
Corporation as may be declared by the Board of Directors (the Board) of the Corporation
from time to time out of the assets or funds of the Corporation legally available therefor.
(c) Distribution of Assets. Subject to the express terms of any series of Preferred
Stock, in the event of the voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, holders of Common Stock shall be entitled to receive all of the remaining assets of
the Corporation available for distribution to its stockholders.
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Section 4.03. Preferred Stock. (a) The Board is authorized to provide for the
issuance of shares of Preferred Stock in one or more series and, by filing a certificate pursuant
to the applicable provisions of the DGCL (a Preferred Stock Certificate of Designation),
to establish from time to time the number of shares to be included in each such series, with such
designations, preferences, and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof as are stated and expressed in the resolution
or resolutions providing for the issue thereof adopted by the Board (as such resolutions may be
amended by a resolution or resolutions subsequently adopted by the Board), and as are not stated
and expressed in this Certificate including, but not limited to, determination of any of the
following:
(i) the distinctive designation of the series, whether by number, letter or title, and
the number of shares which will constitute the series, which number may be increased or
decreased (but not below the number of shares then outstanding and except where otherwise
provided in the applicable Preferred Stock Certificate of Designation) from time to time by
action of the Board;
(ii) the dividend rate and the times of payment of dividends, if any, on the shares of
the series, whether such dividends will be cumulative, and if so, from what date or dates,
and the relation which such dividends, if any, shall bear to the dividends payable on any
other class or classes of stock;
(iii) the price or prices at which, and the terms and conditions on which, the shares
of the series may be redeemed at the option of the Corporation;
(iv) whether or not the shares of the series will be entitled to the benefit of a
retirement or sinking fund to be applied to the purchase or redemption of such shares and,
if so entitled, the amount of such fund and the terms and provisions relative to the
operation thereof;
(v) whether or not the shares of the series will be convertible into, or exchangeable
for, any other shares of stock of the Corporation or other securities, and if so convertible
or exchangeable, the conversion price or prices, or the rates of exchange, and any
adjustments thereof, at which such conversion or exchange may be made, and any other terms
and conditions of such conversion or exchange;
(vi) the rights of the shares of the series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation;
(vii) whether or not the shares of the series will have priority over or be on a parity
with or be junior to the shares of any other series or class of stock in any respect, or
will be entitled to the benefit of limitations restricting the issuance of shares of any
other series or class of stock, restricting the payment of dividends on or the making of
other distributions in respect of shares of any other series or class of stock ranking
junior to the shares of the series as to dividends or assets, or restricting the purchase or
redemption of the shares of any such junior series or class, and the terms of any such
restriction;
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(viii) whether the series will have voting rights, in addition to any 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, 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 of such series or of such series and one or more other series
or classes of stock of the 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; and
(ix) any other preferences, qualifications, privileges, options and other relative or
special rights and limitations of that series.
(b) Voting Rights. Except as otherwise required by law, as otherwise provided herein
or as otherwise determined by the Board in the applicable Preferred Stock Certificate of
Designation as to the shares of any series of Preferred Stock prior to the issuance of any such
shares, the holders of Preferred Stock shall have no voting rights and shall not be entitled to any
notice of meeting of stockholders.
(c) Dividends. Holders of Preferred Stock shall be entitled to receive, when and as
declared by the Board, out of funds legally available for the payment thereof, dividends at the
rates fixed by the Board for the respective series, and no more, before any dividends shall be
declared and paid, or set apart for payment, on Common Stock with respect to the same dividend
period.
(d) Preference on Liquidation. In the event of the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, holders of each series of Preferred
Stock will be entitled to receive the amount fixed for such series plus, in the case of any series
on which dividends will have been determined by the Board to be cumulative, an amount equal to all
dividends accumulated and unpaid thereon to the date of final distribution whether or not earned or
declared before any distribution shall be paid, or set aside for payment, to holders of Common
Stock. If the assets of the Corporation are not sufficient to pay such amounts in full, holders of
all shares of Preferred Stock will participate in the distribution of assets ratably in proportion
to the full amounts to which they are entitled or in such order or priority, if any, as will have
been fixed in the resolution or resolutions providing for the issue of the series of Preferred
Stock. Neither the merger nor consolidation of the Corporation into or with any other corporation,
nor a sale, transfer or lease of all or part of its assets, will be deemed a liquidation,
dissolution or winding up of the Corporation within the meaning of this paragraph except to the
extent specifically provided for herein or in the applicable Preferred Stock Certificate of
Designation.
(e) Redemption. The Corporation, at the option of the Board, may redeem all or part
of the shares of any series of Preferred Stock on the terms and conditions fixed in the applicable
Preferred Stock Certificate of Designation for such series.
(f) Certificate of Designations. For all purposes, this Certificate shall include
each certificate of designations, if any, setting forth the terms of a series of Preferred Stock.
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(g) Authorized Shares. Subject to the rights, if any, of the holders of any series of
Preferred Stock set forth in a certificate of designations, an amendment of this Certificate to
increase or decrease the number of authorized shares of any series of Preferred Stock (but not
below the number of shares thereof then outstanding) may be adopted by resolution adopted by the
Board of the Corporation and approved by the affirmative vote of the holders of a majority 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 thereon, irrespective of the
provisions of Section 242(b)(2) of the DGCL or any similar provisions hereafter enacted, with such
outstanding shares of Common Stock and other stock considered for this purpose as a single class,
and no vote of the holders of any series of Preferred Stock, voting as a separate class, shall be
required therefor.
ARTICLE V
BOARD OF DIRECTORS
Section 5.01. Election of Directors. Election of directors need not be by written
ballot unless the Bylaws of the Corporation shall so provide. Except as may be provided in this
Certificate or in a Preferred Stock Certificate of Designation, if any, the Common Stock shall have
the exclusive right to vote for the election of directors and for all other purposes, and holders
of Preferred Stock shall not be entitled to receive notice of any meeting of stockholders at which
they are not entitled to vote.
Section 5.02. Number of Directors. The number of directors on the Board shall be
fixed from time to time by a bylaw or amendment thereof duly adopted by the Board or the
stockholders.
Section 5.03. Classified Board. The Board, other than those who may be elected by the
holders of any series of Preferred Stock, if any, shall be and is divided into three classes:
Class I, Class II and Class III, which shall be as nearly equal in number as possible. Each
director shall serve for a term ending on the date of the third annual meeting of stockholders
following the annual meeting at which the director was elected; provided, however,
that each initial director in Class I shall hold office until the annual meeting of stockholders in
2002, each initial director in Class II shall hold office until the annual meeting of stockholders
in 2003, and each initial director in Class III shall hold office until the annual meeting of
stockholders in 2004. Notwithstanding the foregoing provisions of this Section 5.03, each director
shall serve until his successor is duly elected and qualified or until his death, resignation or
removal.
Section 5.04. Nominations. Subject to the rights of holders of any series of
Preferred Stock or any other class of stock of the Corporation (other than the Common Stock) then
outstanding, nominations for the election of directors may be made by the affirmative vote of a
majority of the entire Board or by any stockholder of record entitled to vote generally in the
election of directors subject to Article VI, Section 6.04.
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Section 5.05. Removal. No director who is part of any particular class of directors
may be removed except both for cause and by the affirmative vote of the holders of a majority of
the votes cast for and against the removal by the holders of shares of stock of the Corporation
present in person or represented by proxy at the meeting and entitled to vote generally in the
election of directors, considered for this purpose as a single class. In the event of any increase
or decrease in the authorized number of directors, (a) each director then serving as such shall
nevertheless continue as a director of the class of which he is a member until the expiration of
his current term, or his earlier resignation, removal from office or death, and (b) the newly
created or eliminated directorship resulting from such increase or decrease shall be apportioned by
the Board among the three classes of directors so as to maintain such classes as nearly equal as
possible.
Section 5.06. Vacancies. Subject to the rights of the holders of any series of
Preferred Stock or any other class of stock of the Corporation (other than the Common Stock) then
outstanding, any vacancies in the Board for any reason, including by reason of any increase in the
number of directors, shall, if occurring prior to the expiration of the term of office of the class
in which such vacancy occurs, be filled only by the Board, acting by the affirmative vote of a
majority of the remaining directors then in office, although less than a quorum, and any directors
so elected shall hold office until the next election of the class for which such directors have
been elected and until their successors are duly elected and qualified.
Section 5.07. Directors Meetings, Consents and Elections. Meetings of the Board and
of any committee thereof may be held outside the State of Delaware if the Bylaws so provide. Any
action required or permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting as provided by statute, if the Bylaws of the Corporation so provide.
The elections of directors need not be by written ballot unless the Bylaws of the Corporation so
provide.
ARTICLE VI
STOCKHOLDERS
Section 6.01. Cumulative Voting. No stockholder of the Corporation shall be entitled
to exercise any right of cumulative voting.
Section 6.02. No Preemptive Rights. Except for rights issued pursuant to Article VIII
hereof, no stockholder of the Corporation shall have any preemptive or preferential right, nor be
entitled to such as a matter of right, to subscribe for or purchase any part of any new or
additional issue of stock of the Corporation of any class or series, whether issued for money or
for consideration other than money, or of any issue of securities convertible into stock of the
Corporation.
Section 6.03. Stockholder Action. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or special meeting of the
stockholders of the Corporation, and the ability of the stockholders to consent in
writing to the taking of any action is specifically denied. Special meetings of stockholders
of the Corporation may be called only by the Board pursuant to a resolution duly adopted by a
majority of the members of the Board, and the ability of the stockholders to call a special meeting
of stockholders of the Corporation is specifically denied.
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Section 6.04. Notice. Advance notice of new business and stockholder nominations for
the election of directors shall be given in the manner and to the extent provided in the Bylaws of
the Corporation.
ARTICLE VII
LIMITATION OF DIRECTORS LIABILITY;
INDEMNIFICATION BY THE CORPORATION
INDEMNIFICATION BY THE CORPORATION
Section 7.01. Limitation on Liability. The directors of the Corporation shall be
entitled to the benefits of all limitations on the liability of directors generally that are now or
hereafter become available under the DGCL. Without limiting the generality of the foregoing, no
director of the Corporation shall be liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the
directors duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section
174 of the DGCL, or (d) for any transaction from which the director derived an improper personal
benefit. Any repeal or modification of this Article VII, Section 7.01 shall be prospective only,
and shall not affect, to the detriment of any director, any limitation on the personal liability of
a director of the Corporation existing at the time of such repeal or modification.
Section 7.02. Indemnification. The Corporation shall indemnify any person who is or
was a director or officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, trustee, employee or agent of another corporation, trust or
other enterprise, with respect to actions taken or omitted by such person in any capacity in which
such person serves the Corporation or such other corporation, trust or other enterprise, to the
full extent authorized or permitted by law, as now or hereafter in effect, and such right to
indemnification shall continue as to a person who has ceased to be a director, officer or trustee,
as the case may be, and shall inure to the benefit of such persons heirs, executors and personal
and legal representatives; provided, however, that, except for proceedings to
enforce rights to indemnification, the Corporation shall not be obligated to indemnify any person
in connection with a proceeding (or part thereof) initiated by such person unless such proceeding
(or part thereof) was authorized in advance, or unanimously consented to, by the Board of the
Corporation. Any person who is or was a director, officer, trustee, employee or agent of a
subsidiary of the Corporation shall be deemed to be serving in such capacity at the request of the
Corporation for purposes of this Article VII, Section 7.02. Any repeal or modification of this
Article VII, Section 7.02, shall not adversely affect any rights to indemnification that any person
may have at the time of such repeal or modification with respect to any acts or omissions occurring
prior to such repeal or modification.
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Section 7.03. Expenses. Directors and officers of the Corporation shall have the
right to be paid by the Corporation expenses incurred in defending or otherwise participating in
any proceeding in advance of its final disposition. The Corporation may, to the extent authorized
from time to time by the Board, advance such expenses to any person who is or was serving at the
request of the Corporation as a director, officer or trustee of another corporation, trust or other
enterprise.
Section 7.04. Miscellaneous. (a) The Corporation may, to the extent authorized from
time to time by the Board, provide rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation and to any person serving at the request of the Corporation
as an employee or agent of another corporation, trust or other enterprise.
(b) The rights to indemnification and to the advancement of expenses conferred in this section
shall not be exclusive of any other right that any person may have or hereafter acquire under this
Certificate, the Bylaws, any statute, agreement, vote of stockholders or disinterested directors,
or otherwise.
(c) Any repeal or modification of this section by the stockholders of the Corporation shall
not adversely affect any rights to indemnification and to advancement of expenses that any person
may have at the time of such repeal or modification with respect to any acts or omissions occurring
prior to such repeal or modification.
(d) The Corporation may purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the Corporation or is or was serving at the request of
the Corporation as a director, officer, trustee, employee or agent of another corporation, trust or
other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of such persons status as such, whether or not the Corporation shall have
the power to indemnify such person against such liability under the provisions of this Article VII.
Any person who is or was a director, officer, employee or agent of the Corporation or a subsidiary
of the Corporation shall be deemed to be serving in such capacity at the request of the Corporation
for purposes of this Article VII, Section 7.04.
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ARTICLE VIII
STOCKHOLDER RIGHTS
Section 8.01. Stockholder Rights. The Board is hereby authorized to create and issue,
whether or not in connection with the issuance and sale of any of its stock or other securities or
property, rights entitling the holders thereof to purchase from the Corporation shares of stock or
other securities of the Corporation or any other corporation. The times at which and the terms
upon which such rights are to be issued shall be determined by the Board and set forth in the
contracts or instruments that evidence such rights. The authority of the Board with respect to
such rights shall include, but not be limited to, determination of the following:
(a) the initial purchase price per share or other unit of the stock or other securities or
property to be purchased upon exercise of such rights;
(b) provisions relating to the times at which and the circumstances under which such rights
may be exercised or sold or otherwise transferred, either together with or separately from, any
other stock or securities of the Corporation;
(c) provisions which adjust the number or exercise price of such rights, or amount or nature
of the stock or other securities or property receivable upon exercise of such rights, in the event
of a combination, split or recapitalization of any stock of the Corporation, a change in ownership
of the Corporations stock or other securities or a reorganization, merger, consolidation, sale of
assets or other occurrence relating to the Corporation or any stock of the Corporation, and
provisions restricting the ability of the Corporation to enter into any such transaction absent an
assumption by the other party or parties thereof of the obligations of the Corporation under such
rights;
(d) provisions which deny the holder of a specified percentage of the outstanding stock or
other securities of the Corporation the right to exercise such rights and/or cause the rights held
by such holder to become void;
(e) provisions which permit the Corporation to redeem such rights; and
(f) the appointment of a rights agent with respect to such rights.
ARTICLE IX
BUSINESS COMBINATIONS
Section 9.01. Section 203 of the DGCL. In accordance with Section 203(b) of the DGCL,
the Corporation shall be governed by the provisions contained in Section 203(a) of the DGCL
regarding restrictions on business combinations with interested stockholders.
ARTICLE X
TRANSACTION WITH DIRECTORS AND OFFICERS
Section 10.01. Transaction With Directors and Officers. No contract or transaction
between the Corporation and one or more of its directors or officers, or between the Corporation
and any other corporation, partnership, association, or other organization in which one or more of
its directors or officers are directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer is present at or
participates in the meeting of the Board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (a) the material
facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the
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Board or the committee, and the Board or the committee in good faith authorizes
the contract or transaction by the affirmative vote of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum, or (b) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders, or (c) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified by the Board, a committee
thereof, or the stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board or of a committee which authorizes the contract or
transaction.
ARTICLE XI
AMENDMENTS
Section 11.01. Bylaws. In furtherance and not in limitation of the powers conferred
by statute, the Board is expressly authorized to make, alter, amend or repeal the Bylaws of the
Corporation without the assent or vote of the stockholders of the Corporation. The stockholders
may, at any annual or special meeting of the stockholders of the Corporation, duly called and upon
proper notice thereof, make, alter, amend or repeal the Bylaws by the affirmative vote of a
majority of the votes cast for and against the adoption, alteration, amendment or repeal by the
holders of shares of stock of the Corporation present in person or represented by proxy at the
meeting and entitled to vote on the adoption, alteration, amendment or repeal.
Section 11.02. Certificate. The Corporation reserves the right to amend, alter,
change or repeal the provisions in this Certificate and in any certificate amendatory hereof in the
manner now or hereafter prescribed by law, and all rights conferred in this Certificate on
stockholders, directors and officers are subject to this reserved power.
IN WITNESS WHEREOF, in accordance with the provisions of the General Corporation Law of the
State of Delaware, AmerisourceBergen Corporation has caused this Amended and Restated Certificate
of Incorporation to be signed by R. David Yost, its President and Chief Executive Officer, this 4th
day of March, 2010.
AMERISOURCEBERGEN CORPORATION |
||||
By: | /s/ R. David Yost | |||
R. David Yost | ||||
President and Chief Executive Officer |
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