Attached files
| file | filename |
|---|---|
| EXCEL - IDEA: XBRL DOCUMENT - EXPRESS SCRIPTS INC | Financial_Report.xls |
| 10-K - FORM 10-K - EXPRESS SCRIPTS INC | c54821e10vk.htm |
| EX-3.2 - EX-3.2 - EXPRESS SCRIPTS INC | c54821exv3w2.htm |
| EX-31.1 - EX-31.1 - EXPRESS SCRIPTS INC | c54821exv31w1.htm |
| EX-32.2 - EX-32.2 - EXPRESS SCRIPTS INC | c54821exv32w2.htm |
| EX-31.2 - EX-31.2 - EXPRESS SCRIPTS INC | c54821exv31w2.htm |
| EX-23.1 - EX-23.1 - EXPRESS SCRIPTS INC | c54821exv23w1.htm |
| EX-12.1 - EX-12.1 - EXPRESS SCRIPTS INC | c54821exv12w1.htm |
| EX-32.1 - EX-32.1 - EXPRESS SCRIPTS INC | c54821exv32w1.htm |
| EX-21.1 - EX-21.1 - EXPRESS SCRIPTS INC | c54821exv21w1.htm |
| EX-10.30 - EX-10.30 - EXPRESS SCRIPTS INC | c54821exv10w30.htm |
Exhibit
3.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATIONS OF SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
OF
EXPRESS SCRIPTS, INC.
OF
CERTIFICATE OF DESIGNATIONS OF SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
OF
EXPRESS SCRIPTS, INC.
Express Scripts, Inc., a corporation organized and existing under the General Corporation Law
of the State of Delaware (the “Company”), in accordance with the provisions of Section 151(g) of
the General Corporation Law of the State of Delaware, does hereby certify:
FIRST: No shares of Series A Junior Participating Preferred Stock of the Company have, as of
the date of this certificate, been issued.
SECOND: The following resolution was duly adopted by the Board of Directors of the Company on
December 18, 2009:
“RESOLVED, that the Certificate of Designations of Series A Junior Participating Preferred
Stock of Express Scripts, Inc. (the “Series A Certificate of Designations”) be, and it hereby is,
amended by deleting Section 10 of the Series A Certificate of Designations in its entirety and
replacing it with the following:
“Section 10. Amendment. If any proposed amendment to the Certificate of
Incorporation (including this Certificate of Designations) would alter, change or
repeal any of the preferences, powers or special rights given to the Series A
Preferred Stock so as to affect the Series A Preferred Stock adversely, then the
holders of the Series A Preferred Stock shall be entitled to vote separately as a
class upon such amendment, and the affirmative vote of a majority of the
outstanding shares of the Series A Preferred Stock, voting separately as a class,
shall be necessary for the adoption thereof, in addition to such other vote as may
be required by the General Corporation Law of the State of Delaware.”
IN WITNESS WHEREOF, said Express Scripts, Inc. has caused this certificate to be signed by
George Paz, Chief Executive Officer, an Authorized Officer, this 18th day of December, 2009.
| Date: December 18, 2009 | By: | /s/ George Paz | ||
| George Paz | ||||
| Chief Executive Officer | ||||
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
CERTIFICATE OF AMENDMENT
OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
EXPRESS SCRIPTS, INC.
a corporation organized and existing under a by virtue of the General Corporation Law of
the State of Delaware.
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Express Scripts, Inc., held on
February 21, 2008, resolutions were duly adopted setting forth a proposed amendment of the
Amended and Restated Certificate of Incorporation of said corporation, declaring said
amendment to be advisable and calling a meeting of the stockholders of said corporation for
consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the first paragraph of Article 4 of the Express Scripts, Inc.
Amended and Restated Certificate of Incorporation is amended to be and read
as follows:
“The total number of shares of stock which the Corporation has authority to
issue is 1,005,000,000 shares, of which (i) 5,000,000 shares are preferred
stock, par value $0.01 per share (the “Preferred Stock”), and (ii)
1,000,000,000 shares are common stock, par value $0.01 per share.”
SECOND: That thereafter, pursuant to resolution of its Board of Directors, an annual
meeting of the stockholders of said corporation was duly called and held upon notice in
accordance with Section 222 of the General Corporation Law of the State of Delaware at
which meeting the necessary number of shares as required by statute were voted in favor of
the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section
242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of said corporation shall not be reduced under or by reason of
said amendment.
IN WITNESS WHEREOF, said Express Scripts, Inc. has caused this certificate to be signed by
George Paz, Chief Executive Officer, an Authorized Officer, this 28th day of May, 2008.
| By: | /s/ George Paz | |||||
| Title: | Chief Executive Officer | |||||
| Name: | George Paz |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
CERTIFICATE OF AMENDMENT
OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
EXPRESS SCRIPTS, INC.
a corporation organized and existing under a by virtue of the General Corporation Law of
the State of Delaware.
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Express Scripts, Inc., held on
February 22, 2006, resolutions were duly adopted setting forth a proposed amendment of the
Amended and Restated Certificate of Incorporation of said corporation, declaring said
amendment to be advisable and calling a meeting of the stockholders of said corporation for
consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the first paragraph of Section 4 of the Express Scripts, Inc.
Amended and Restated Certificate of Incorporation is amended to be and read
as follows:
“The total number of shares of stock which the Corporation has authority to
issue is 655,000,000 shares, of which (i) 5,000,000 shares are preferred
stock, par value $0.01 per share (the “Preferred Stock”), and (ii)
650,000,000 shares are common stock, par value $0.01 per share.”
SECOND: That thereafter, pursuant to resolution of its Board of Directors, an annual
meeting of the stockholders of said corporation was duly called and held upon notice in
accordance with Section 222 of the General Corporation Law of the State of Delaware at
which meeting the necessary number of shares as required by statute were voted in favor of
the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section
242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of said corporation shall not be reduced under or by reason of
said amendment.
IN WITNESS WHEREOF, said Express Scripts, Inc. has caused this certificate to be signed by
George Paz, Chief Executive Officer, an Authorized Officer, this 24th day of
May, 2006.
| By: | /s/ George Paz | |||||
| Title: | Chief Executive Officer | |||||
| Name: | George Paz |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
EXPRESS SCRIPTS, INC.
a corporation organized and existing under a by virtue of the General Corporation Law of
the State of Delaware.
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Express Scripts, Inc., held on
February 11, 2004, resolutions were duly adopted setting forth a proposed amendment of the
Amended and Restated Certificate of Incorporation of said corporation, declaring said
amendment to be advisable and calling a meeting of the stockholders of said corporation for
consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the first paragraph of Section 4 of the Express Scripts, Inc.
Amended and Restated Certificate of Incorporation is amended to be and read
as follows:
“The total number of shares of stock which the Corporation has authority to
issue is 280,000,000 shares, of which (i) 5,000,000 shares are preferred
stock, par value $0.01 per share (the “Preferred Stock”), and (ii)
275,000,000 shares are common stock, par value $0.01 per share.”
SECOND: That thereafter, pursuant to resolution of its Board of Directors, an annual
meeting of the stockholders of said corporation was duly called and held upon notice in
accordance with Section 222 of the General Corporation Law of the State of Delaware at
which meeting the necessary number of shares as required by statute were voted in favor of
the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section
242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of said corporation shall not be reduced under or by reason of
said amendment.
IN WITNESS WHEREOF, said Express Scripts, Inc. has caused this certificate to be signed by
Barrett A. Toan, Chairman and Chief Executive Officer, an Authorized
Officer, this 2nd day of June, 2004.
| By: | /s/ Barrett A. Toan | |||||
| Title: | Chairman and Chief Executive Officer | |||||
| Name: | Barrett A. Toan |
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
EXPRESS SCRIPTS, INC.
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
General Corporation Law of the State of Delaware)
Express Scripts, Inc., a corporation organized and existing under the General Corporation Law
of the State of Delaware (the
“Company”), hereby certifies that the following resolution was duly adopted by the Board of Directors of the Company as required by
Section 151 of the General Corporation Law of the State of Delaware on July 25, 2001:
“Company”), hereby certifies that the following resolution was duly adopted by the Board of Directors of the Company as required by
Section 151 of the General Corporation Law of the State of Delaware on July 25, 2001:
RESOLVED, that pursuant to the authority vested in the Board of Directors of the Company
(hereinafter being referred to as the “Board of Directors” or the “Board”) in
accordance with the provisions of the Company’s Amended and Restated Certificate of Incorporation
(hereinafter being referred to as the “Certificate of Incorporation”), the Board of
Directors hereby creates a series of Preferred Stock, par value $.01 per share, of the Company, to
be designated the “Series A Junior Participating Preferred Stock” and hereby adopts the resolution
establishing the designations, number of shares, preferences, voting powers and other rights and
the restrictions and limitations thereof, of the shares of such series as set forth below:
Section 1. Designation and Amount. The shares of such series shall be designated
as “Series A Junior Participating Preferred Stock” (the “Series A Preferred Stock”) and the
number of shares constituting the Series A Preferred Stock shall be 100,000. Such number of shares
may be increased or decreased by resolution of the Board of Directors; provided, that no
decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for issuance upon the exercise
of outstanding options, rights or warrants or upon the conversion of any outstanding securities
issued by the Company convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of Preferred Stock
of the Company (the “Preferred Stock”) (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of Common Stock, par value $.01 per
share, of the Company (the “Common Stock”) and of any other stock of the
2
Company ranking junior to the Series A Preferred Stock, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the last day of January, April, July, and
October in each year (each such date being referred to herein as a “Dividend Payment
Date”), commencing on the first Dividend Payment Date after the first issuance of a
share or fraction of a share of Series A Preferred Stock (the “Issue Date”), in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $1 or (b) subject
to the provision for adjustment hereinafter set forth, 1000 times the aggregate per share
amount of all cash dividends, and 1000 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock, declared on the Common Stock since the immediately preceding
Dividend Payment Date or, with respect to the first Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock. In the event the
Company shall at any time after the Issue Date declare and pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event under clause (b) of
the preceding sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on the Series A Preferred
Stock as provided in paragraph (A) of this Section immediately after it declares a dividend
or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Dividend Payment Date and the
next subsequent Dividend Payment Date, a dividend of $1 per share on the Series A Preferred
Stock shall nevertheless be payable, when, as and if declared, on such subsequent Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative, whether or not earned or
declared, on outstanding shares of Series A Preferred Stock from the Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue of such shares is
prior to the record date for the first Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or unless the date
of issue is a Dividend Payment Date or is a date after the record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Dividend Payment Date, in either of which events such dividends shall begin
to accrue and be cumulative from such Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series A Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the
time outstanding. The Board of Directors may
3
fix a record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared thereon, which
record date shall be not more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock shall
have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth and except as
otherwise provided in the Certificate of Incorporation or required by law, each share of
Series A Preferred Stock shall entitle the holder thereof to 1000 votes on all matters upon
which the holders of the Common Stock of the Company are entitled to vote. In the event the
Company shall at any time after the Issue Date declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, in the Certificate of Incorporation or in any
other Certificate of Designations creating a series of Preferred Stock or any similar stock,
and except as otherwise required by law, the holders of shares of Series A Preferred Stock
and the holders of shares of Common Stock and any other capital stock of the Company having
general voting rights shall vote together as one class on all matters submitted to a vote of
stockholders of the Company.
(C) Except as set forth herein, or as otherwise provided by law, holders of Series A
Preferred Stock shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
(D) If, at the time of any annual meeting of stockholders for the election of
directors, the equivalent of six quarterly dividends (whether or not consecutive) payable on
any share or shares of Series A Preferred Stock are in default, the number of directors
constituting the Board of Directors of the Company shall be increased by two. In addition to
voting together with the holders of Common Stock for the election of other directors of the
Company, the holders of record of the Series A Preferred Stock, voting separately as a class
to the exclusion of the holders of Common Stock shall be entitled at said meeting of
stockholders (and at each subsequent annual meeting of stockholders), unless all dividends
in arrears on the Series A Preferred Stock have been paid or declared and set apart for
payment prior thereto, to vote for the election of two directors of the Company, the holders
of any Series A Preferred Stock being entitled to cast a number of votes per share of Series
A Preferred Stock as is specified in paragraph (A) of this Section 3. Each such additional
director shall serve until the next annual meeting of stockholders for the
4
election of directors, or until his successor shall be elected and shall qualify, or
until his right to hold such office terminates pursuant to the provisions of this Section
3(D). Until the default in payments of all dividends which permitted the election of said
directors shall cease to exist, any director who shall have been so elected pursuant to the
provisions of this Section 3(D) may be removed at any time, without cause, only by the
affirmative vote of the holders of the shares of Series A Preferred Stock at the time
entitled to cast a majority of the votes entitled to be cast for the election of any such
director at a special meeting of such holders called for that purpose, and any vacancy
thereby created may be filled by the vote of such holders. If and when such default shall
cease to exist, the holders of the Series A Preferred Stock shall be divested of the
foregoing special voting rights, subject to revesting in the event of each and every
subsequent like default in payments of dividends. Upon the termination of the foregoing
special voting rights, the terms of office of all persons who may have been elected
directors pursuant to said special voting rights shall forthwith terminate, and the number
of directors constituting the Board of Directors shall be reduced by two. The voting rights
granted by this Section 3(D) shall be in addition to any other voting rights granted to the
holders of the Series A Preferred Stock in this Section 3.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the
Series A Preferred Stock as provided in Section 2 are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not earned or declared, on shares
of Series A Preferred Stock outstanding shall have been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other distributions, on any shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any shares
of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends paid
ratably on the Series A Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any
stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock, provided that the Company may at any
time redeem, purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Company ranking junior (as to dividends and
upon dissolution, liquidation or winding up) to the Series A Preferred Stock or
rights, warrants or options to acquire such junior stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any shares of stock ranking on a parity
5
(either as to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all holders
of such shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and
in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or
otherwise acquired by the Company in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their retirement become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to any conditions and
restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Company, no distribution shall be made (A) to the holders of the
Common Stock or of shares of any other stock of the Company ranking junior, upon liquidation,
dissolution or winding up, to the Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not earned or declared, to the
date of such payment, provided that the holders of shares of Series A Preferred Stock shall be
entitled to receive an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1000 times the aggregate amount to be distributed per share to
holders of shares of Common Stock, or (B) to the holders of shares of stock ranking on a parity
upon liquidation, dissolution or winding up with the Series A Preferred Stock, except distributions
made ratably on the Series A Preferred Stock and all such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event, however, that there are not sufficient assets available to permit
payment in full of the Series A liquidation preference and the liquidation preferences of all other
classes and series of stock of the Company, if any, that rank on a parity with the Series A
Preferred Stock in respect thereof, then the assets available for such distribution shall be
distributed ratably to the holders of the Series A Preferred Stock and the holders of such parity
shares in the proportion to their respective liquidation preferences. In the event the Company
shall at any time after the Issue Date declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (A) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event
6
and the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Neither the merger or consolidation of the Company into or with another entity nor the merger
or consolidation of any other entity into or with the Company (nor the sale of all or substantially
all of the assets of the Company) shall be deemed to be a liquidation, dissolution or winding up of
the Company within the meaning of this Section 6.
Section 7. Consolidation, Merger, etc. In case the Company shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
converted into, exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series A Preferred Stock shall at the same time be
similarly converted into, exchanged for or changed into an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 1000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is converted, exchanged or converted. In the event the Company
shall at any time after the Issue Date declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the conversion, exchange or change of
shares of Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable from any holder.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets upon liquidation, dissolution or winding up of
the Company, junior to all other series of Preferred Stock and senior to the Common Stock.
Section 10. Amendment. If any proposed amendment to the Certificate of
Incorporation (including this Certificate of Designations) would alter, change or repeal any of the
preferences, powers or special rights given to the Series A Preferred Stock so as to affect the
Series A Preferred Stock adversely, then the holders of the Series A Preferred Stock shall be
entitled to vote separately as a class upon such amendment, and the affirmative vote of two-thirds
of the outstanding shares of the Series A Preferred Stock, voting separately as a class, shall be
necessary for the adoption thereof, in addition to such other vote as may be required by the
General Corporation Law of the State of Delaware.
Section 11. Fractional Shares. Series A Preferred Stock may be issued in
fractions of a share that shall entitle the holder, in proportion to such holder’s fractional
shares, to exercise voting rights, receive dividends, participate in distributions and to have the
benefit of all other rights of holders of Series A Preferred Stock.
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of the Company by
its President, Chairman and Chief Executive Officer and attested by its Assistant Secretary this 31
day of July, 2001.
| /s/ Barrett A. Toan | ||||
| Name: | Barrett A. Toan | |||
| Title: | President, Chairman and Chief Executive Officer | |||
Attest:
/s/ Martin P. Akins
Assistant Secretary
Assistant Secretary
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EXPRESS SCRIPTS, INC.
CERTIFICATE OF INCORPORATION
OF
EXPRESS SCRIPTS, INC.
The name under which the Corporation was originally incorporated is Nyles, Inc., and the
original Certificate of Incorporation was filed with the Secretary of State of the State of
Delaware on March 27, 1992.
1. The current name of the Corporation is Express Scripts, Inc.
2. 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.
3. The address of the registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 in the County of New
Castle. The Corporation Trust Company is the Corporation’s registered agent at that address.
4. The total number of shares of stock which the Corporation has authority to issue is
186,000,000 shares, of which (i) 5,000,000 shares are preferred stock, par value $0.01 per share
(the “Preferred Stock”), and (ii) 181,000,000 shares are common stock, par value $0.01 per share.
Upon the effectiveness of this Amended and Restated Certificate of Incorporation, without further
action by the Corporation or any stockholder, (A) each outstanding share, and each treasury share,
of Class A Common Stock, par value $0.01 per share (the “Class A Common Stock”) shall be
automatically reclassified and changed into one share of common stock, par value $0.01 per share
(the “Common Stock”), (B) the authorized Class B Common Stock, par value $0.01 per share, of which
no shares are issued and outstanding, shall be eliminated and extinguished, (C) all stock option
plans covering shares of Class A Common Stock shall now automatically be deemed to cover an equal
number of shares of Common Stock, and (D) each outstanding warrant or option to purchase shares of
Class A Common Stock shall automatically be deemed to represent a warrant or option to purchase the
same number of shares of Common Stock. Holders of record of any certificates that, immediately
prior to the effectiveness of this Amended and Restated Certificate of Incorporation, represented
shares of Class A Common Stock, but which now, by virtue hereof, represent shares of Common Stock,
shall be entitled to receive, upon surrender of such certificates, new certificates that evidence
the appropriate number of shares of Common Stock. Upon consummation of the reclassification set
forth herein, the holders of shares of Common Stock of the Corporation shall have all the rights
accorded to them by law and this Amended and Restated Certificate of Incorporation.
4.1 Preferred Stock.
4.1.1 The Board of Directors is hereby authorized to issue the Preferred Stock
in one or more series, to fix the number of shares of any such series of Preferred
Stock, and to fix, through a certificate of designations filed with the Secretary of
State of the State of Delaware (the “Preferred Stock Designation”), the designation
of any such series as well as the powers, preferences, and rights and the
qualifications, limitations, or restrictions of the Preferred Stock.
4.1.2 The authority of the Board of Directors shall include, without
limitation, the power to fix or alter the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions, if any), the redemption price or prices, and the liquidation preferences
of any wholly unissued series of Preferred Stock , and the number of shares
constituting any such unissued series and the designation thereof, or any of them;
and to increase or decrease the number of shares of any series subsequent to the
issue of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so decreased, the
shares constituting such decrease shall resume the status which they had prior to
the adoption of the resolution originally fixing the number of shares of such
series.
4.2 Common Stock. The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof. Except as otherwise provided by applicable law or
in this Certificate of Incorporation or in a Preferred Stock
Designation, the holders of
shares of Common Stock shall be entitled to one vote for each such share upon all questions
presented to the stockholders, 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.
The Corporation shall be entitled to treat the person in whose name any share of its stock is
registered as the owner thereof for all purposes and shall not be bound to recognize any
equitable or other claim to, or interest in, such share on the part of any other person,
whether or not the Corporation shall have notice thereof, except as expressly provided by
applicable law.
5. The Board of Directors shall have the power to make, alter or repeal the by-laws of the
Corporation.
6. The election of the Board of Directors need not be by written ballot.
7. The Corporation shall indemnify to the fullest extent permitted by Section 145 of the
General Corporation Law of the State of Delaware as amended from time to time each person who is or
was a director or officer of the Corporation and the heirs, executors and administrators of such a
person.
8. No director shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director for any act or omission occurring subsequent to
the date when this provision becomes effective, except that he may be liable (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 General Corporation Law of the State of Delaware or (iv) for
any transaction from which the director derived an improper personal benefit. Neither the
amendment nor repeal of this Article Eight, nor the adoption of any provision of the Certificate of
Incorporation inconsistent with this Article Eight, shall eliminate or reduce the effect of this
Article Eight in respect of any matter occurring, or any cause of action, suit or claim that, but
for this Article Eight, would accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
9. No action required or permitted to be taken at any annual or special meeting of
stockholders of the Corporation may be taken without a meeting, and the power of stockholders of
the Corporation to consent in writing, without a meeting, to the taking of any action is
specifically denied; provided, however, that the holders of Preferred Stock may act
by written consent to the extent provided in a resolution or resolutions of the Board of Directors
authorizing the issuance of a particular series of Preferred Stock pursuant to Article Four of this
Certificate of Incorporation.
10. The Corporation expressly elects not to be governed by Section 203 of the General
Corporation Law of the State of Delaware.
11. This Amended and Restated Certificate of Incorporation is duly adopted in accordance with
Sections 242 and 245 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Express Scripts, Inc. has caused this Amended and Restated Certificate of
Incorporation to be executed by President, Chief Executive Officer and Chairman of the Board this
23rd day of May, 2001.
| /s/ Barrett A. Toan | ||||||
| Name: | Barrett A. Toan | |||||
| Title: | President, Chief Executive Officer | |||||
| and Chairman of the Board | ||||||