Attached files
file | filename |
---|---|
8-K - FORM 8-K - MEDCO HEALTH SOLUTIONS INC | c01123e8vk.htm |
EX-3.2 - EXHIBIT 3.2 - MEDCO HEALTH SOLUTIONS INC | c01123exv3w2.htm |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MEDCO HEALTH SOLUTIONS, INC.
OF
MEDCO HEALTH SOLUTIONS, INC.
Adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State
of Delaware
of Delaware
Medco Health Solutions, Inc. (the Corporation), a corporation organized and existing
under, and by virtue of, the General Corporation Law of the State of Delaware (the DGCL),
does hereby certify as follows:
1. The Corporation was originally formed as a limited liability company by the filing of a
certificate of formation under the name Mergerco Delaware No. 1, L.L.C. with the Secretary of
State of the State of Delaware (the Secretary of State) on August 26, 1996. The name of
the Corporation was changed to Merck-Medco Managed Care, L.L.C. pursuant to a merger effective
upon the filing of a certificate of merger with the Secretary of State on December 27, 1996. The
Corporation converted from a limited liability company to a corporation effective upon the filing
of a certificate of conversion with the Secretary of State on May 21, 2002. In connection with this
conversion, a certificate of incorporation for the Corporation was filed with the Secretary of
State under the name MedcoHealth Solutions, Inc. on May 21, 2002. The present name of the
Corporation is Medco Health Solutions, Inc., as changed pursuant to a filing of an Amended and
Restated Certificate of Incorporation with the Secretary of State on June 07, 2002. The Second
Amended and Restated Certificate of Incorporation of the Corporation, which was filed with the
Secretary of State on July 31, 2003, was duly amended on May 25, 2007. The Third Amended and
Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State on
May 22, 2008.
2. This Amended and Restated Certificate of Incorporation of the Corporation, dated as of
May 12, 2010, was, in accordance with Sections 242 and 245 of the DGCL, (a) duly proposed by
resolutions adopted and declared advisable by the Board of Directors of the Corporation (the
Board of Directors), (b) approved by its stockholders at its annual meeting of
stockholders and (c) duly executed by an authorized officer of the Corporation pursuant to Section
103 of the DGCL.
3. This Amended and Restated Certificate of Incorporation of the Corporation restates,
integrates and further amends the provisions of the Corporations Certificate of Incorporation, as
heretofore amended, corrected or supplemented, and, upon filing with the Secretary of State in
accordance with Section 103, shall supersede the Certificate of Incorporation of the Corporation,
as heretofore amended and restated, corrected or supplemented, and shall, as it may thereafter be
amended in accordance with its terms and applicable law, be the Certificate of Incorporation of the
Corporation.
4. Pursuant to Section 103(d) of the DGCL, this Amended and Restated Certificate of
Incorporation shall become effective upon filing with the Secretary of State.
5. The text of the Certificate of Incorporation of the Corporation is hereby amended and
restated to read in its entirety as follows:
FIRST. The name of the Corporation is Medco Health Solutions, Inc.
SECOND. The address of the Corporations registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the DGCL.
FOURTH. The total number of shares of all classes of stock which the Corporation shall have
authority to issue is 2,010,000,000, of which 2,000,000,000 shares with the par value of $0.01 per
share shall constitute a class designated as Common Stock, and 10,000,000 shares with the par value
of $0.01 per share shall constitute a class designated as Preferred Stock. Shares of Preferred
Stock may be issued in one or more series from time to time. The Board of Directors is expressly
authorized to fix by resolution or resolutions the designations and the powers, preferences and
rights, and the qualifications, limitations and restrictions of the shares of each series of
Preferred Stock (with respect to each series of Preferred Stock, the Preferred Stock
Designation).
FIFTH. The Board of Directors is expressly authorized to adopt, amend or repeal any bylaws
of the Corporation by resolutions duly adopted by a majority of the directors then in office, but
the stockholders entitled to vote may adopt additional bylaws and may amend or repeal any bylaw
whether or not adopted by them, at a meeting duly called for that purpose, by the affirmative vote
of the holders of not less than eighty percent (80%) of the voting power of all outstanding shares
of capital stock of the Corporation entitled to vote generally in the election of directors,
considered for purposes hereof as a single class.
SIXTH. Elections of directors need not be by written ballot except and to the extent
provided in the bylaws of the Corporation.
SEVENTH. The number of directors constituting the entire Board of Directors shall be not less
than three (3), nor more than fifteen (15), as may be fixed from time to time by resolutions duly
adopted by the Board of Directors.
Each director who is serving as a director as of the date of this Certificate of Amendment, or
is hereafter elected a director, shall hold office until the expiration of the term for which he or
she has been elected, and until his or her successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification, or removal from office. At the
2008 annual meeting of shareholders, the successors of the class of directors whose terms expire at
that meeting shall be elected for a two-year term expiring at the 2010 annual meeting of
shareholders. At the 2009 annual meeting of shareholders, the successors of the class of directors
whose terms expire at that meeting shall be elected for a one-year term expiring at the 2010
annual meeting of shareholders. At the 2010 annual meeting of shareholders, and at each annual
meeting of shareholders thereafter, all directors shall be elected for terms expiring at the next
annual meeting of shareholders. Continuing until after the annual meeting of shareholders in 2009,
if the number of directors is changed, any increase or decrease shall be apportioned among Class I,
Class II, and Class III so as to maintain the number of directors in each class as nearly equal as
possible.
A director may be removed from office with cause, or in the case of any director elected for a
one-year term without cause, but in each case only by the affirmative vote of the holders of not
less than eighty percent (80%) of the voting power of all outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors, considered for purposes
hereof as a single class.
Except as otherwise provided pursuant to the provisions of the Certificate of Incorporation of
the Corporation (including any Preferred Stock Designation), newly created directorships resulting
from any increase in the number of directors, and any vacancies on the Board of Directors
(resulting from death, resignation, retirement, disqualification, removal, or other cause), shall
be filled by the affirmative vote of a majority of the directors then in office. Any director
elected in accordance with the preceding sentence shall hold office for the remainder of the
one-year term, or if applicable, the remainder of the full term of the class of directors, in which
the new directorship was created or the vacancy occurred, and until such directors successor shall
have been duly elected and qualified, or until his or her death, resignation, retirement,
disqualification, or removal. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
EIGHTH. Except as otherwise provided pursuant to provisions of the Certificate of
Incorporation of the Corporation (including any Preferred Stock Designation) fixing the powers,
privileges or rights of any class or series of stock other than the Common Stock in respect of
action by written consent of the holders of such class or series of stock, after Merck & Co., Inc.,
a New Jersey corporation (Merck), ceases to be the sole stockholder of the Corporation,
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 such holders and may not be effected by any consent in
writing by such holders.
Except as otherwise provided pursuant to provisions of the Certificate of Incorporation of the
Corporation (including any Preferred Stock Designation) fixing the powers, privileges or rights of
any class or series of stock other than the Common Stock, special meetings of stockholders of the
Corporation of any class or series of capital stock for any purpose or purposes may be called only
by the Chairman of the Board of Directors, the President, the Chief Executive Officer of the
Corporation or a majority of the Board of Directors pursuant to a resolution stating the purpose or
purposes thereof or, as and to the extent required by the bylaws of the Corporation, by the
secretary of the Corporation upon the written request of the holders of record of not less than
forty percent (40%) of the voting power of all outstanding shares of Common Stock of the
Corporation (the Requisite Percent). A special meeting validly requested by stockholders shall
be held at such date and time as may be fixed by the Board of Directors; provided, however, that
such special meeting shall be called for a date not less than 90
nor more than 100 calendar days after the first date on which unrevoked valid requests for such
special meeting satisfying the requirements set forth in this Article EIGHTH and in the bylaws of
the Corporation and constituting not less than the Requisite Percent shall have been delivered to
the Corporation. No business other than that stated in the notice sent by the Corporation for a
special meeting shall be transacted at such special meeting.
NINTH. 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, except to the extent
that such exemption from liability or limitation thereof is not permitted under the DGCL as
currently in effect or as the same may hereafter be amended. If the DGCL is amended after the
effective date of this Certificate of Incorporation of the Corporation to authorize corporate
action further eliminating or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent permitted by the
DGCL, as so amended.
No amendment, modification or repeal of this Article NINTH shall adversely affect any right or
protection of a director with respect to events occurring prior to such amendment, modification or
repeal.
TENTH. Certain Transactions With Merck & Co., Inc.
No contract, agreement, arrangement or transaction (or any amendment, modification or
termination thereof) entered into between the Corporation or any of its Affiliated Companies, on
the one hand, and Merck, or any of its Affiliated Companies, on the other hand, before the
Corporation ceased to be a wholly owned subsidiary of Merck shall be void or voidable or be
considered to be unfair to the Corporation for the reason that Merck or any of its Affiliated
Companies, are parties thereto, or because directors or officers of Merck or any of its Affiliated
Companies were present at or participated in any meeting of the Board of Directors or committee
thereof which authorized the contract, agreement, arrangement or transaction (or the amendment,
modification or termination thereof), or because his, her or their votes were counted for such
purpose. No such contract, agreement, arrangement or transaction (or the amendment, modification or
termination thereof) or the performance thereof by the Corporation or any of its Affiliated
Companies shall be considered to be contrary to any fiduciary duty owed to the Corporation or to
any stockholder of the Corporation by any director or officer of the Corporation or of any of its
Affiliated Companies (including directors or officers of the Corporation or its Affiliated
Companies who may have been directors or officers of Merck or any of its Affiliated Companies) and
such directors and officers of the Corporation or any of its Affiliated Companies shall be deemed
to have acted in good faith and in a manner such persons reasonably believe to be in or not opposed
to the best interests of the Corporation and shall be deemed not to have breached their duties of
loyalty to the Corporation or its stockholders, and not to have derived an improper personal
benefit therefrom. No director, officer or employee of the Corporation or any of its Affiliated
Companies shall have or be under any fiduciary duty to the Corporation to refrain from acting on
behalf of the Corporation or any of its Affiliated Companies in respect of any such contract,
agreement, arrangement or transaction (or the amendment, modification or termination thereof) or to
refrain from performing any such contract, agreement, arrangement or transaction (or the amendment,
modification or termination
thereof) in accordance with its terms.
Any person purchasing or otherwise acquiring any shares of capital stock of the Corporation,
or any interest therein, shall be deemed to have notice of and to have consented to the provisions
of this Article TENTH. The failure of any contract, agreement, arrangement or transaction (or the
amendment, modification or termination thereof) between the Corporation or any of its Affiliated
Companies, on the one hand, and Merck or any of its Affiliated Companies, on the other hand, to
satisfy the requirements of this Article TENTH shall not, by itself, cause such contract,
agreement, arrangement or transaction (or the amendment, modification or termination thereof) to
constitute any breach of any fiduciary duty to the Corporation, or to any stockholder by any
director, officer or employee of the Corporation.
For purposes of this Article TENTH, Affiliated Company shall mean in respect of
Merck, any company which is controlled by Merck, controls Merck or is under common control with
Merck (other than the Corporation and any company that is controlled by the Corporation), and in
respect of the Corporation shall mean any company controlled by the Corporation.
In addition to any other affirmative vote or written consent required by applicable law, this
Article TENTH may not be amended, modified or repealed except by the affirmative vote of the
holders of not less than eighty percent (80%) of the voting power of all outstanding shares of
stock of the Corporation entitled to vote generally in the election of directors, considered for
purposes hereof as a single class. Notwithstanding the foregoing, the amendment or removal of this
Article TENTH shall not terminate the effect of the provisions hereof with respect to any contract,
agreement, arrangement or transaction (or the amendment, modification or termination thereof)
between the Corporation or any of its Affiliated Companies, on the one hand, and Merck or any of
its Affiliated Companies, on the other hand, that was entered into before the Corporation ceased to
be a wholly owned subsidiary of Merck.
IN WITNESS WHEREOF, Medco Health Solutions, Inc. has caused this Amended and Restated
Certificate of Incorporation to be duly executed by an authorized officer of Medco Health
Solutions, Inc. as of this 12th day of May, 2010.
MEDCO HEALTH SOLUTIONS, INC. |
||||
By: | /s/ Thomas M. Moriarty | |||
Name: | Thomas M. Moriarty | |||
Title: | General Counsel, Secretary and Senior Vice President, Pharmaceutical Contracting |