Exhibit 3.2
RESTATED
CERTIFICATE OF INCORPORATION
OF
McKESSON CORPORATION
(Duly Adopted in Accordance with Section 245 of
the Delaware General Corporation Law)
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Originally Incorporated on July 7, 1994
Under the Name SP Ventures, Inc.
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(Restates and Integrates Only)
ARTICLE I.
The name of the Corporation is McKesson Corporation.
ARTICLE II.
The address of the registered office of the Corporation within
the State of Delaware is 1013 Centre Road, City of Wilmington
19805-1297, County of New Castle. The name of the registered
agent of the Corporation at such address is The Prentice-Hall
Corporation System, Inc.
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 the State of Delaware.
ARTICLE IV.
The total number of shares of stock of all classes which the
Corporation has authority to issue is 500,000,000 shares, divided
into 100,000,000 shares of Series Preferred Stock, par value
$0.01 per share (herein called the "Series Preferred Stock"), and
400,000,000 shares of Common Stock, par value $.01 per share
(herein called the "Common Stock"). The aggregate par value of
all shares having par value is $5,000,000.
The Board of Directors of the Corporation is expressly
authorized, as shall be stated and expressed in the resolution or
resolutions it adopts, subject to limitations prescribed by law
and the provisions of this Article IV, to provide for the
issuance of the shares of Series Preferred Stock in one or more
class or series, in addition to the shares thereof specifically
provided for in this Article IV, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included
in each such series, and to fix for each such class or series
such voting powers, full or limited, or no voting powers, and
such distinctive designations, powers, preferences and relative,
participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, including
without limitation, the authority to provide that any such class
or series may be (i) subject to redemption at such time or times
and at such price or prices; (ii) entitled to receive dividends
(which may be cumulative or non-cumulative) at such rates, on
such conditions, and at such times, and payable in preference to,
or in relation to, the dividends payable on any other class or
classes or any other series; (iii) entitled to such rights upon
the dissolution of, or upon any distribution of the assets of,
the Corporation; (iv) convertible into, or exchangeable for,
shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, of the
Corporation at such price or prices or at such rates of exchange
and with such adjustments; or (v) subject to the terms and
amounts of any sinking fund provided for the purchase or
redemption of the shares of such series; all as may be stated in
such resolution or resolutions.
The number of authorized shares of Series Preferred Stock may be
increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders
of a majority of the Common Stock, without a vote of the holders
of the Series Preferred Stock, as the case may be, or of any
series thereof, unless a vote of any such holders is required
pursuant to the provisions of this Article IV or the certificate
or certificates establishing any additional series of such stock.
A description of each class of the Corporation's stock, with the
powers, designations, preferences and relative, participating,
optional and other rights, if any, and the qualifications,
limitations and restrictions thereof, is as follows:
I. SERIES PREFERRED STOCK
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A. General Provisions Relating to All Series
1. The Board of Directors shall have authority to classify and
reclassify any unissued shares of the Series Preferred Stock from
time to time by setting or changing in any one or more respects
the powers, designations, preferences and relative,
participating, optional and other rights, if any, and the
qualifications, limitations and restrictions of the Series
Preferred Stock. Subject to the foregoing, the power of the Board
of Directors to classify and reclassify any of the shares of
Series Preferred Stock shall include, without limitation, subject
to the provisions of this Certificate of Incorporation, authority
to classify or reclassify any unissued shares of such stock into
one or more series of Series Preferred Stock, and to divide and
classify shares of any series into one or more series of Series
Preferred Stock by determining, fixing or altering one or more of
the following:
(a) The distinctive designation of such series and the
number of shares to constitute such series; provided that,
unless otherwise prohibited by the terms of such or any
other series, the number of shares of any series may be
decreased by the Board of Directors in connection with any
classification or reclassification of unissued shares and
the number of shares of such series may be increased by the
Board of Directors in connection with any such
classification or reclassification, and any shares of any
series which have been redeemed, purchased, otherwise
acquired or converted into shares of Common Stock or any
other series shall remain part of the authorized Series
Preferred Stock and be subject to classification and
reclassification as provided in this Section.
(b) Whether or not and, if so, the rates, amounts and times
at which, and the conditions under which, dividends shall be
payable on shares of such series, whether any such dividends
shall rank senior or junior to or on a parity with the
dividends payable on any other series of Series Preferred
Stock, and the status of any such dividends as cumulative,
cumulative to a limited extent or non-cumulative and as
participating or non-participating.
(c) Whether or not shares of such series shall have voting
rights, in addition to any voting rights provided by law
and, if so, the terms of such voting rights.
(d) Whether or not shares of such series shall have
conversion or exchange privileges and, if so, the terms and
conditions thereof, including provision for adjustment of
the conversion or exchange rate in such events or at such
times as the Board of Directors shall determine.
(e) Whether or not shares of such series shall be subject
to redemption and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which
they shall be redeemable and the amount per share payable in
case of redemption, which amount may vary under different
conditions and at different redemption dates; and whether or
not there shall be any sinking fund or purchase account in
respect thereof, and if so, the terms thereof.
(f) The rights of the holders of shares of such series upon
the liquidation, dissolution or winding up of the affairs
of, or upon any distribution of the assets of, the
Corporation, which rights may vary depending upon whether
such liquidation, dissolution or winding up is voluntary or
involuntary and, if voluntary, may vary at different dates,
and whether such rights shall rank senior or junior to or on
a parity with such rights of any other series of Series
Preferred Stock.
(g) Whether or not there shall be any limitations
applicable, while shares of such series are outstanding,
upon the payment of dividends or making of distributions on,
or the acquisition of, or the use of moneys for purchase or
redemption of, any stock of the Corporation, or upon any
other action of the Corporation, including action under this
Section, and, if so, the terms and conditions thereof.
(h) Any other powers, designations, preferences and
relative, participating, optional and other rights, if any,
and any other qualifications, limitations and restrictions,
on the shares of such series, not inconsistent with law and
this Certificate of Incorporation.
2. For the purposes hereof and of any certificate providing for
the classification or reclassification of any shares of Series
Preferred Stock or of any other charter document of the
Corporation (unless otherwise provided in any such certificate or
document), any class or series of stock of the Corporation shall
be deemed to rank:
(a) Prior to a particular class or series of stock if the
holders of such class or classes or series shall be entitled
to the receipt of dividends or of amounts distributable in
the event of any liquidation, dissolution or winding up, as
the case may be, in preference to or with priority over the
holders of such particular class or series of stock;
(b) On a parity with a particular class or series of stock,
whether or not the dividend rates, dividend payment dates,
voting rights or redemption or liquidation prices per share
thereof, be different from those of such particular class or
series of stock, if the rights of holders of such class or
classes or series to the receipt of dividends or of amounts
distributable in event of any liquidation, dissolution or
winding up, as the case may be, shall be neither (i) in
preference to, or with priority over, nor (ii) subject or
subordinate to, the rights of holders of such particular
class or series of stock in respect of the receipt of
dividends or of amounts distributable in the event of any
liquidation, dissolution or winding up of the Corporation,
as the case may be; and
(c) Junior to a particular class or series of stock if the
rights of the holders of such class or classes or series
shall be subject or subordinate to the rights of the holders
of such particular class or series of stock in respect of
the receipt of dividends or of amounts distributable in the
event of any liquidation, dissolution or winding up, as the
case may be.
B. Series A Junior Participating Preferred Stock
1. Designation and Amount. The shares of this series shall be
designated as "Series A Junior Participating Preferred Stock" and
the number of shares constituting such series shall initially be
10,000,000, par value $0.01 per share, such number of shares to
be subject to increase or decrease by action of the Board of
Directors as evidenced by a certificate or certificates
evidencing such change.
2. Dividends and Distributions.
(a) The holders of shares of Series A Junior Participating
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 first business day of January, April, July and
October in each year (each such date being referred to
herein as a "Series A Quarterly Dividend Payment Date"),
commencing on the first Series A Quarterly Dividend Payment
Date after the first issuance of a share or fraction of a
share of Series A Junior Participating Preferred Stock, in
an amount per share (rounded to the nearest cent) equal to
the greater of (i) $10.00 or (ii) subject to the provision
for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100
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 or a subdivision
of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock
since the immediately preceding Series A Quarterly Dividend
Payment Date, or, with respect to the first Series A
Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the Corporation
shall at any time after November 1, 1994 (the "Rights
Declaration Date") (A) declare any dividend on Common Stock
payable in shares of Common Stock, (B) subdivide the
outstanding Common Stock, or (C) combine the outstanding
Common Stock into a smaller number of shares, then in each
such case the amount to which holders of shares of Series A
Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (ii) 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 Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred
Stock as provided in paragraph (a) above 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 Series A Quarterly Dividend Payment Date
and the next subsequent Series A Quarterly Dividend Payment
Date, a dividend of $10.00 per share on the Series A Junior
Participating Preferred Stock shall nevertheless be payable
on such subsequent Series A Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating
Preferred Stock from the Series A Quarterly Dividend Payment
Date next preceding the date of issue of such shares of
Series A Junior Participating Preferred Stock, unless the
date of issue of such shares is prior to the record date for
the first Series A Quarterly 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 Series A Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of
shares of Series A Junior Participating Preferred Stock
entitled to receive a quarterly dividend and before such
Series A Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be
cumulative from such Series A Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Junior
Participating 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 fix a record date
for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon,
which record date shall be no more than 30 days prior to the
date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting
rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Junior Participating Preferred
Stock shall entitle the holder thereof to 100 votes on all
matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares,
then in each such case the number of votes per share to
which holders of shares of Series A Junior Participating
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 or by law, the
holders of shares of Series A Junior Participating Preferred
Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(c) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an
amount equal to six (6) quarterly dividends thereon,
the occurrence of such contingency shall mark the
beginning of a period (herein called a "default
period") which shall extend until such time when all
accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend
period on all shares of Series A Junior Participating
Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each
default period, all holders of Series Preferred Stock,
(including holders of the Series A Junior Participating
Preferred Stock) with dividends in arrears in an amount
equal to six (6) quarterly dividends thereon, voting as
a class, irrespective of series, shall have the right
to elect two (2) Directors.
(ii) During any default period, such voting right of
the holders of Series A Junior Participating Preferred
Stock may be exercised initially at a special meeting
called pursuant to subparagraph (iii) of this Section
3(c) or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders, provided
that neither such voting right nor the right of the
holders of any other series of Series Preferred Stock,
if any, to increase, in certain cases, the authorized
number of Directors shall be exercised unless the
holders of ten percent (10%) in number of shares of
Series Preferred Stock outstanding shall be present in
person or by proxy. The absence of a quorum of the
holders of Common Stock shall not affect the exercise
by the holders of Series Preferred Stock of such voting
right. At any meeting at which the holders of Series
Preferred Stock shall exercise such voting right
initially during an existing default period, they shall
have the right, voting as a class, to elect Directors
to fill such vacancies, if any, in the Board of
Directors as may then exist up to two (2) Directors or,
if such right is exercised at an annual meeting, to
elect two (2) Directors. If the number which may be so
elected at any special meeting does not amount to the
required number, the holders of the Series Preferred
Stock shall have the right to make such increase in the
number of Directors as shall be necessary to permit the
election by them of the required number. After the
holders of the Series Preferred Stock shall have
exercised their right to elect Directors in any default
period and during the continuance of such period, the
number of Directors shall not be increased or decreased
except by vote of the holders of Series Preferred Stock
as herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with
the Series A Junior Participating Preferred Stock.
(iii) Unless the holders of Series Preferred Stock
shall, during an existing default period, have
previously exercised their right to elect Directors,
the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than ten
percent (10%) of the total number of shares of Series
Preferred Stock outstanding, irrespective of series,
may request, the calling of a special meeting of the
holders of Series Preferred Stock, which meeting shall
thereupon be called by the President, a Vice-President
or the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of
Series Preferred Stock are entitled to vote pursuant to
this paragraph (c)(iii) shall be given to each holder
of record of Series Preferred Stock by mailing a copy
of such notice to him at his last address as the same
appears on the books of the Corporation. Such meeting
shall be called for a time not earlier than 20 days and
not later than 60 days after such order or request or
in default of the calling of such meeting within 60
days after such order or request, such meeting may be
called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten
percent (10%) of the total number of shares of Series
Preferred Stock outstanding. Notwithstanding the
provisions of this paragraph (c)(iii), no such special
meeting shall be called during the period within 60
days immediately preceding the date fixed for the next
annual meeting of the stockholders.
(iv) In any default period, the holders of Common
Stock, and other classes of stock of the Corporation if
applicable, shall continue to be entitled to elect the
whole number of Directors until the holders of Series
Preferred Stock shall have exercised their right to
elect two (2) Directors voting as a class, after the
exercise of which right (A) the Directors so elected by
the holders of Series Preferred Stock shall continue in
office until their successors shall have been elected
by such holders or until the expiration of the default
period, and (B) any vacancy in the Board of Directors
may (except as provided in paragraph (c)(ii) of this
Section 3) be filled by vote of a majority of the
remaining Directors theretofore elected by the holders
of the class of stock which elected the Director whose
office shall have become vacant. References in this
paragraph (c) to Directors elected by the holders of a
particular class of stock shall include Directors
elected by such Directors to fill vacancies as provided
in clause (B) of the preceding sentence.
(v) Immediately upon the expiration of a default
period, (A) the right of the holders of Series
Preferred Stock as a class to elect Directors shall
cease, (B) the term of any Directors elected by the
holders of Series Preferred Stock as a class shall
terminate, and (C) the number of Directors shall be
such number as may be provided for in this Certificate
of Incorporation or the By-laws of the Corporation
irrespective of any increase made pursuant to the
provisions of paragraph (c)(ii) of this Section 3 (such
number being subject, however, to change thereafter in
any manner provided by law or in this Certificate of
Incorporation or the By-laws of the Corporation). Any
vacancies in the Board of Directors effected by the
provisions of clauses (B) and (C) in the preceding
sentence may be filled by a majority of the remaining
Directors.
(d) Except as set forth herein or as otherwise
required by applicable law, holders of Series A Junior
Participating 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.
4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating
Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series
A Junior Participating Preferred Stock outstanding shall
have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay dividends on 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 Junior
Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating 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 on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series
A Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration
any shares of Series A Junior Participating Preferred
Stock, or any shares of stock ranking on a parity with
the Series A Junior Participating 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 Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under paragraph (a) of this Section
4, purchase or otherwise acquire such shares at such time
and in such manner.
5. Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by
the Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued
shares of Series Preferred Stock and may be reissued as part of
a new series of Series Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the
holders of shares of Series A Junior Participating Preferred
Stock shall have received $100 per share, plus an amount
equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such
payment (the "Series A Liquidation Preference"). Following
the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the
holders of shares of Series A Junior Participating Preferred
Stock unless, prior thereto, the holders of shares of Common
Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i)
the Series A Liquidation Preference by (ii) 100 (as
appropriately adjusted as set forth in subparagraph C below
to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such
number in clause (ii), the "Adjustment Number"). Following
the payment of the full amount of the Series A Liquidation
Preference and the Common Adjustment in respect of all
outstanding shares of Series A Junior Participating
Preferred Stock and Common Stock, respectively, holders of
Series A Junior Participating Preferred Stock and holders of
shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1 with
respect to such Preferred Stock and Common Stock, on a per
share basis, respectively.
(b) 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 series of preferred stock, if any, which rank on
a parity with the Series A Junior Participating Preferred
Stock, then such remaining assets shall be distributed
ratably to the holders of such parity shares in proportion
to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to
permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders
of Common Stock.
(c) In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares,
then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by
multiplying such Adjustment 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.
7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for
or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series A Junior
Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 100
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 changed or exchanged.
In the event the Corporation shall at any time after the Rights
Declaration Date (a) declare any dividend on Common Stock payable
in shares of Common Stock, (b) subdivide the outstanding Common
Stock, or (c) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of
shares of Series A Junior Participating 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.
8. No Redemption. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable.
9. Ranking. The Series A Junior Participating Preferred Stock
shall rank junior to all other series of the Corporation's Series
Preferred Stock as to the payment of dividends and the
distribution of assets, unless the terms of any such series shall
provide otherwise.
10. Amendment. This Certificate of Incorporation shall not be
further amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A
Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of
two-thirds or more of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a class.
11. Fractional Shares. Series A Junior Participating Preferred
Stock may be issued in fractions of a share which 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 Junior Participating Preferred Stock.
II. COMMON STOCK
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A. Dividends. Subject to all of the rights of the Series
Preferred Stock, dividends may be paid upon the Common Stock as
and when declared by the Board of Directors out of funds legally
available for the payment of dividends.
B. Liquidation Rights. In the event of any liquidation,
dissolution or winding-up of the Corporation, whether voluntary
or involuntary, and after the holders of the Series Preferred
Stock shall have been paid in full amounts to which they
respectively shall be entitled, or an amount sufficient to pay
the aggregate amount to which such holders shall be entitled
shall have been deposited in trust with a bank or trust company
having its principal office in the Borough of Manhattan, City,
County and State of New York, having a capital, undivided profits
and surplus aggregating at least $5,000,000, for the benefit of
the holders of the Series Preferred Stock, the remaining net
assets of the Corporation shall be distributed pro rata to the
holders of the Common Stock.
C. Voting Rights. Except as otherwise expressly provided with
respect to the Series Preferred Stock and except as otherwise may
be required by law, the Common Stock shall have the exclusive
right to vote for the election of directors and for all other
purposes and each holder of Common Stock shall be entitled to one
vote for each share held.
ARTICLE V.
A. Board of Directors of the Corporation.
1. General Provisions. The business and affairs of the
Corporation shall be managed under the direction of the Board of
Directors. The exact number of directors shall be fixed from time
to time by, or in the manner provided in, the By-Laws of the
Corporation and may be increased or decreased as therein
provided. Directors of the Corporation need not be elected by
ballot unless required by the By-laws.
2. Classification of Board of Directors. The directors shall
be divided into three classes. Each such class shall consist, as
nearly as may be possible, of one-third of the total number of
directors, and any remaining directors shall be included within
such group or groups as the Board of Directors shall designate.
At the annual meeting of stockholders in 1994, a class of
directors shall be elected for a one-year term, a class of
directors for a two-year term and a class of directors for a
three-year term. At each succeeding annual meeting of
stockholders, beginning in 1995, successors to the class of
directors whose term expires at that annual meeting shall be
elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class
as nearly equal as possible, but in no case shall a decrease in
the number of directors shorten the term of any incumbent
director. A director may be removed from office for cause only
and, subject to such removal, death, resignation, retirement or
disqualification, shall hold office until the annual meeting for
the year in which his term expires and until his successor shall
be elected and qualify. No alteration, amendment or repeal of
this Article V or the By-Laws of the Corporation shall be
effective to shorten the term of any director holding office at
the time of such alteration, amendment or repeal, to permit any
such director to be removed without cause, or to increase the
number of directors in any class or in the aggregate from that
existing at the time of such alteration, amendment or repeal
until the expiration of the terms of office of all directors then
holding office, unless (i) in the case of this Article V, such
alteration, amendment or repeal has been approved by the holders
of all shares of stock entitled to vote thereon, or (ii) in the
case of the By-Laws, such alteration, amendment or repeal has
been approved by either the holders of all shares entitled to
vote thereon or by a vote of a majority of the entire Board of
Directors.
3. Directors Appointed by a Specific Class of Stockholders. To
the extent that any holders of any class or series of stock other
than Common Stock issued by the Corporation shall have the
separate right, voting as a class or series, to elect directors,
the directors elected by such class or series shall be deemed to
constitute an additional class of directors and shall have a term
of office for one year or such other period as may be designated
by the provisions of such class or series providing such separate
voting right to the holders of such class or series of stock, and
any such class of directors shall be in addition to the classes
designated above.
ARTICLE VI.
A. General Provisions. The following provisions are hereby
adopted for the purpose of defining, limiting and regulating the
powers of the Corporation and of its directors and stockholders:
1. Amendments to the Certificate of Incorporation. Subject to
the provisions of applicable law, the Corporation reserves the
right from time to time to make any amendment to its Certificate
of Incorporation, now or hereafter authorized by law, including
any amendment which alters the contract rights as expressly set
forth therein, of any outstanding stock.
2. Amendments to the By-Laws. The Board of Directors is
expressly authorized to adopt, alter and repeal the By-Laws of
the Corporation in whole or in part at any regular or special
meeting of the Board of Directors, by vote of a majority of the
entire Board of Directors. Except where this Certificate of
Incorporation otherwise requires a higher vote, the By-Laws may
also be adopted, altered or repealed in whole or in part at any
annual or special meeting of the stockholders by the affirmative
vote of three-fourths of the shares of the Corporation
outstanding and entitled to vote thereon.
3. No Preemptive Rights. No holder of any class of stock of
the Corporation, whether now or hereafter authorized or
outstanding, shall have any preemptive, preferential or other
right to subscribe for or purchase any class of the Corporation's
stock, whether now or hereafter authorized or outstanding, which
it may at any time issue or sell, or to subscribe for or purchase
any notes, debentures, bonds or other securities which it may at
any time issue or sell, whether or not the same be convertible
into or exchangeable for or carry options or warrants to purchase
shares of any class of the Corporation's stock or other
securities, or to receive or purchase any warrants or options
which may be issued or granted evidencing the right to purchase
any such stock or other securities, it being intended by this
Section 3 that all preemptive rights of any kind applicable to
securities of the Corporation are eliminated.
4. Vote Required to Take Action; Action by Written Consent.
Except as otherwise provided in this Certificate of Incorporation
and except as otherwise provided by applicable law, the
Corporation may take or authorize any action upon the affirmative
vote of the majority of shares present in person or represented
by proxy at the meeting and entitled to vote on the subject
matter thereof. Action shall be taken by stockholders of the
Corporation only at annual or special meetings of stockholders,
and stockholders may act in lieu of a meeting only by unanimous
written consent.
5. Compensation of Directors. The Board of Directors may
determine from time to time the amount and type of compensation
which shall be paid to its members for service on the Board of
Directors. The Board of Directors shall also have the power, in
its discretion, to provide for and to pay to directors rendering
services to the Corporation not ordinarily rendered by directors,
as such, special compensation appropriate to the value of such
services, as determined by the Board from time to time.
6. Interested Transactions. Any director or officer
individually, or any partnership of which any director or officer
may be a member, or any corporation or association of which any
director or officer may be an officer, director, trustee,
employee or stockholder, may be a party to, or may be pecuniarily
or otherwise interested in, any contract or transaction of the
Corporation, and in the absence of fraud no contract or other
transaction shall be thereby affected or invalidated. Any
director of the Corporation who is so interested, or who is also
a director, officer, trustee, employee or stockholder of such
other corporation or association or a member of such partnership
which is so interested, may be counted in determining the
existence of a quorum at any meeting of the Board of Directors of
the Corporation which shall authorize any such contract or
transaction, and may vote thereat to authorize any such contract
or transaction, with like force and effect as if he were not such
director, officer, trustee, employee or stockholder of such other
corporation or association or not so interested or a member of a
partnership so interested; provided that in case a director, or
a partnership, corporation or association of which a director is
a member, officer, director, trustee or employee is so
interested, such fact shall be disclosed or shall have been known
to the Board of Directors or a majority thereof. This paragraph
shall not be construed to invalidate any such contract or
transaction which would otherwise be valid under the common and
statutory law applicable thereto.
7. Indemnification. The Corporation shall indemnify (a) its
directors to the fullest extent permitted by the laws of the
State of Delaware now or hereafter in force, including the
advancement of expenses under the procedures provided by such
laws, (b) all of its officers to the same extent as it shall
indemnify its directors, and (c) its officers who are not
directors to such further extent as shall be authorized by the
Board of Directors and be consistent with law. Subject only to
any limitations prescribed by the laws of the State of Delaware
now or hereafter in force, the foregoing shall not limit the
authority of the Corporation to indemnify the directors, officers
and other employees and agents of this Corporation consistent
with law and shall not be deemed to be exclusive of any rights to
which those indemnified may be entitled as a matter of law or
under any resolution, By-Law provision, or agreement.
8. Court-Ordered Meetings of Creditors and/or Stockholders.
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between
this Corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may,
on the application in a summary way of this Corporation or of any
creditor or stockholder thereof, or on the application of any
receiver or receivers appointed for this Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on
the application of trustees in dissolution or of any receiver or
receivers appointed for this Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders
or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as such court directs. If a
majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization
of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which such
application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also
on this Corporation.
9. Liability of Directors. To the fullest extent permitted by
Delaware statutory or decisional law, as amended or interpreted,
no director of this Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director. This Section 9 does not affect
the availability of equitable remedies for breach of fiduciary
duties.
ARTICLE VII.
A. Vote Required for Certain Business Combinations
1. Voting Requirements. In addition to any vote otherwise
required by law or this Certificate of Incorporation, a Business
Combination (such term, and certain other capitalized terms
referred to in this Article VII, as defined in Section 3 of this
Article VII) shall be recommended by the Board of Directors and
approved by the affirmative vote of at least:
(a) 80 percent of the votes entitled to be cast by
outstanding shares of voting stock of the Corporation,
voting together as a single voting group; and (b) Two-thirds
of the votes entitled to be cast by holders of voting stock
other than voting stock held by an Interested Stockholder
who is (or whose Affiliate is) a party to the Business
Combination or an Affiliate or Associate of the Interested
Stockholder, voting together as a single voting group.
2. When Voting Requirements Not Applicable.
(a) The vote required by Section 1 of this Article VII does
not apply to a Business Combination if each of the following
conditions is met:
(i) The aggregate amount of the cash and the Market
Value as of the Valuation Date of consideration other
than cash to be received per share by holders of common
stock in such Business Combination is at least equal to
the highest of the following:
(A) The highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Stockholder for any shares of common stock of the
same class or series acquired by it: (x) within
the 2 year period immediately prior to the
Announcement Date of the proposal of the Business
Combination; or (y) in the transaction in which
it became an Interested Stockholder, whichever is
higher; or
(B) The Market Value per share of common stock
of the same class or series on the Announcement
Date or on the Determination Date, whichever is
higher; or
(C) The price per share equal to the Market
Value per share of common stock of the same class
or series determined pursuant to subparagraph
(i)(B) of this paragraph (a), multiplied by the
fraction of: (x) the highest per share price
(including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of common
stock of the same class or series acquired by it
within the 2 year period immediately prior to the
Announcement Date, over (y) the Market Value per
share of common stock of the same class or series
on the first day in such 2 year period on which
the Interested Stockholder acquired any shares of
common stock.
(ii) The aggregate amount of the cash and the Market
Value as of the Valuation Date of consideration other
than cash to be received per share by holders of shares
of any class or series of outstanding stock other than
Common Stock is at least equal to the highest of the
following (whether or not the Interested Stockholder
has previously acquired any shares of a particular
class or series of stock):
(A) The highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Stockholder for any shares of such class of stock
acquired by it: (x) within the 2 year period
immediately prior to the Announcement Date of the
proposal of the Business Combination; or (y) in
the transaction in which it became an Interested
Stockholder, whichever is higher; or
(B) The highest preferential amount per share to
which the holders of shares of such class of
stock are entitled in the event of any voluntary
or involuntary liquidation, dissolution or
winding up of the Corporation; or
(C) The Market Value per share of such class of
stock on the Announcement Date or on the
Determination Date, whichever is higher; or
(D) The price per share equal to the Market
Value per share of such class of stock determined
pursuant to subparagraph (ii)(B) of this
paragraph (a), multiplied by the fraction of: (x)
the highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Stockholder for any shares of any class of Voting
Stock acquired by it within the 2 year period
immediately prior to the Announcement Date, over
(y) the Market Value per share of the same class
of voting stock on the first day in such 2 year
period on which the Interested Stockholder
acquired any shares of the same class of Voting
Stock.
(iii) The consideration to be received by holders of
any class or series of outstanding stock is to be in
cash or in the same form as the Interested Stockholder
has previously paid for shares of the same class or
series of stock. If the Interested Stockholder has paid
for shares of any class of stock with varying forms of
consideration, the form of consideration for such class
of stock shall be either cash or the form used to
acquire the largest number of shares of such class or
series of stock previously acquired by it.
(iv) After the Interested Stockholder has become an
Interested Stockholder and prior to the consummation of
such Business Combination:
(A) There shall have been: (x) no reduction in
the annual rate of dividends paid on any class or
series of stock of the Corporation that is not
preferred stock (except as necessary to reflect
any subdivision of the stock); (y) an increase in
such annual rate of dividends as necessary to
reflect any reclassification (including any
reverse stock split), recapitalization,
reorganization or any similar transaction which
has the effect of reducing the number of
outstanding shares of the stock; and (z) the
Interested Stockholder did not become the
beneficial owner of any additional shares of
stock of the Corporation except as part of the
transaction which resulted in such Interested
Stockholder becoming an Interested Stockholder or
by virtue of proportionate stock splits or stock
dividends.
(B) The provisions of subparagraphs (x) and (y)
of subparagraph (iv)(A) do not apply if no
Interested Stockholder or an Affiliate or
Associate of the Interested Stockholder voted as
a director of the Corporation in a manner
inconsistent with such sub-subparagraphs and the
Interested Stockholder, within 10 days after any
act or failure to act inconsistent with such
sub-subparagraphs, notifies the Board of
Directors of the Corporation in writing that the
Interested Stockholder disapproves thereof and
requests in good faith that the Board of
Directors rectify such act or failure to act.
(v) After the Interested Stockholder has become an
Interested Stockholder, the Interested Stockholder may
not have received the benefit, directly or indirectly
(except proportionately as a stockholder), of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages
provided by the Corporation or any of its Subsidiaries,
whether in anticipation of or in connection with such
Business Combination or otherwise.
(b) The requirements of Section 1 of this Article VII do
not apply to Business Combinations that, as to specifically
identified Interested Stockholders or their Affiliates, have
been approved or exempted therefrom by resolution of the
Board of Directors of the Corporation at any time prior to
the time that the Interested Stockholder first became an
Interested Stockholder. If the Board of Directors so
provides, the resolution shall be subject to approval of the
stockholders in the manner and by the vote specified in the
resolution.
3. Definitions. In this Article VII, the following words have
the meanings indicated:
(a) "Affiliate," including the term "affiliated person,"
means a person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is
under common control with, a specified person.
(b) "Announcement Date" means the first general public
announcement of the proposal or intention to make a proposal
of the Business Combination or its first communication
generally to stockholders of the Corporation, whichever is
earlier;
(c) "Associate," when used to indicate a relationship with
any person, means:
(i) Any corporation or organization (other than the
Corporation or a Subsidiary of the Corporation) of
which such person is an officer, director, or partner
or is, directly or indirectly, the beneficial owner of
10 percent or more of any class of Equity Securities;
(ii) Any trust or other estate in which such person
has a substantial beneficial interest or as to which
such person serves as trustee or in a similar fiduciary
capacity; and
(iii) Any relative or spouse of such person, or any
relative of such spouse, who has the same home as such
person or who is a director or officer of the
Corporation or any of its Affiliates.
(d) "Beneficial Owner," when used with respect to any
Voting Stock, means a person:
(i) That, individually or with any of its Affiliates
or Associates, beneficially owns Voting Stock, directly
or indirectly; or
(ii) That, individually or with any of its Affiliates
or Associates, has:
(A) The right to acquire Voting Stock (whether
such right is exercisable immediately or only
after the passage of time), pursuant to any
agreement, arrangement, or understanding or upon
the exercise of conversion rights, exchange
rights, warrants or options, or otherwise; or
(B) The right to vote Voting Stock pursuant to
any agreement, arrangement, or understanding; or
(iii) That has any agreement, arrangement, or
understanding for the purpose of acquiring, holding,
voting or disposing of Voting Stock with any other
person that beneficially owns, or whose Affiliates or
Associates beneficially own, directly or indirectly,
such shares of Voting Stock.
(e) "Business Combination" means:
(i) Unless the merger, consolidation, or share
exchange does not alter the contract rights of the
stock as expressly set forth in this Certificate of
Incorporation or change or convert in whole or in part
the outstanding shares of stock of the Corporation, any
merger or consolidation of the Corporation or any
Subsidiary with (A) any Interested Stockholder or (B)
any other corporation (whether or not itself an
Interested Stockholder) which is, or after the merger
or consolidation, would be, an Affiliate of an
Interested Stockholder that was an Interested
Stockholder prior to the transaction.
(ii) Any sale, lease, transfer or other disposition,
other than in the ordinary course of business, in one
transaction or a series of transactions in any 12-month
period, to any Interested Stockholder or any Affiliate
of any Interested Stockholder (other than the
Corporation or any of its Subsidiaries) of any assets
of the Corporation or any Subsidiary having, measured
at the time the transaction or transactions are
approved by the Board of Directors of the Corporation,
an aggregate book value as of the end of the
Corporation's most recently ended fiscal quarter of 10
percent or more of the total Market Value of the
outstanding stock of the Corporation or of its net
worth as of the end of its most recently ended fiscal
quarter;
(iii) The issuance or transfer by the Corporation, or
any Subsidiary, in one transaction or a series of
transactions, of any Equity Securities of the
Corporation or any Subsidiary which have an aggregate
Market Value of 5 percent or more of the total Market
Value of the outstanding stock of the Corporation to
any Interested Stockholder or any Affiliate of any
Interested Stockholder (other than the Corporation or
any of its Subsidiaries) except pursuant to the
exercise of warrants or rights to purchase securities
offered pro rata to all holders of the Corporation's
voting stock or any other method affording
substantially proportionate treatment to the holders of
Voting Stock;
(iv) The adoption of any plan or proposal for the
liquidation or dissolution of the Corporation in which
anything other than cash will be received by an
Interested Stockholder or any Affiliate of any
Interested Stockholder; or
(v) Any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation, of the
Corporation with any of its Subsidiaries which has the
effect, directly or indirectly, in one transaction or
a series of transactions, of increasing by 5 percent or
more of the total number of outstanding shares, the
proportionate amount of the outstanding shares of any
class of Equity Securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any
Interested Stockholder.
(f) "Common Stock" means any stock other than preferred or
preference stock.
(g) "Control," including the terms "controlling,"
"controlled by" and "under common control with," means the
possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a
person, whether through the ownership of voting securities,
by contract, or otherwise, and the beneficial ownership of
10 percent or more of the votes entitled to be cast by a
corporation's voting stock creates a presumption of control.
(h) "Determination Date" means the date on which an
Interested Stockholder first became an Interested
Stockholder;
(i) "Equity Security" means:
(i) Any stock or similar security, certificate of
interest, or participation in any profit sharing
agreement, voting trust certificate, or certificate of
deposit for an equity security;
(ii) Any security convertible, with or without
consideration, into an equity security, or any warrant
or other security carrying any right to subscribe to or
purchase an equity security;
or
(iii) Any put, call, straddle, or other option or
privilege of buying an equity security from or selling
an equity security to another without being bound to do
so.
(j) "Interested Stockholder" means any person (other than
the Corporation or any Subsidiary) that:
(i) (A) Is the beneficial owner, directly or
indirectly, of 10 percent or more of the voting
power of the outstanding voting stock of the
Corporation; or
(B) Is an Affiliate of the Corporation and at
any time within the 2 year period immediately
prior to the date in question was the beneficial
owner, directly or indirectly, of 10 percent or
more of the Voting Power of the then outstanding
voting stock of the Corporation.
(ii) For the purpose of determining whether a person
is an Interested Stockholder, the number of shares of
Voting Stock deemed to be outstanding shall include
shares deemed owned by the person through application
of subsection (d) of this section but may not include
any other shares of Voting Stock which may be issuable
pursuant to any agreement, arrangement, or
understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(k) "Market Value" means:
(i) In the case of stock, the highest closing sale
price during the 30 day period immediately preceding
the date in question of a share of such stock on the
composite tape for New York Stock Exchange listed
stocks, or, if such stock is not quoted on the
composite tape, on the New York Stock Exchange, or if
such stock is not listed on such exchange, on the
principal United States securities exchange registered
under the Securities Exchange Act of 1934 on which such
stock is listed, or, if such stock is not listed on any
such exchange, the highest closing bid quotation with
respect to a share of such stock during the 30 day
period preceding the date in question on the National
Association of Securities Dealers, Inc. automated
quotations system or any system then in use, or if no
such quotations are available, the fair market value on
the date in question of a share of such stock as
determined by the Board of Directors of the Corporation
in good faith; and
(ii) In the case of property other than cash or stock,
the fair market value of such property on the date in
question as determined by the Board of Directors of the
Corporation in good faith.
(l) "Subsidiary" means any corporation of which voting
stock having a majority of the votes entitled to be cast is
owned, directly or indirectly, by the Corporation.
(m) "Valuation Date" means: (i) for a Business Combination
voted upon by stockholders, the later of the day prior to
the date of the stockholders' vote or the day 20 days prior
to the consummation of the Business Combination; and (ii)
for a Business Combination not voted upon by stockholders,
the date of the consummation of the Business Combination.
(n) "Voting Stock" means shares of capital stock of the
Corporation entitled to vote generally in the election of
directors.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be executed and attested to by
its duly authorized officers this 30th day of July, 1998.
McKESSON CORPORATION
By: /s/ Nancy A. Miller
-------------------------
Nancy A. Miller
Vice President
and Corporate Secretary
Attest:
/s/ Dana T. Iapicca
- -------------------------
Dana T. Iapicca
Assistant Secretary