Exhibit 3.1
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PENNSYLVANIA DEPARTMENT OF STATE
CORPORATION BUREAU
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Entity Number Statement with Respect to Shares
869683 Domestic Business Corporation
(15 Pa.C.S. ss. 1522)
JENNIFER MARKS Document will be returned to the
PENNCORP SERVICEGROUP, INC. name and address you enter to
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Name
600 NORTH SECOND STREET
PO BOX 1210
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Address
HARRISBURG, PA 17018-1210
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City State Zip Code
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Fee: $52
................ Filed in the Department of State on December 5, 2003
/s/ Pedro A. Cortes
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Secretary of the Commonwealth
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In compliance with the requirements of 15 Pa.C.S. ss. 1522(b) (relating to
statement with respect to shares), the undersigned corporation, desiring to
state the designation and voting rights, preferences, limitations, and special
rights, if any, of a class or series of its shares, hereby states that:
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1. The name of the corporation is:
NeighborCare, Inc.
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2. Check and complete one of the following:
_____ The resolution amending the Articles under 15 Pa.C.S.ss.1522(b)
(relating to divisions and determinations by the board), set forth in
full, is as follows:
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__X__ The resolution amending the Articles under 15 Pa.C.S.ss.1522(b) is set
forth in full in Exhibit A attached hereto and made a part hereof.
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3. The aggregate number of shares of such class or series established and
designated by (a) such resolution, (b) all prior statements, if any,
filed under 15 Pa.C.S. ss. 1522 or corresponding provisions of prior law
with respect thereto, and (c) any other provision of the Articles is
1,000,000 shares.
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4. The resolution was adopted by the Board of Directors or an authorized
committee thereon on:
November 13,2003
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5. Check, and if appropriate complete, one of the following:
__X__ The resolution shall be effective upon the filing of this statement
with respect to shares in the Department of State.
_____ The resolution shall be effective on: _________ at ____________.
Date Hour
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THIS IS A TRUE COPY OF ------------------------------------------
THE ORIGINAL SIGNED IN TESTIMONY WHEREOF, the undersigned
DOCUMENT FILED WITH corporation has caused this statement
THE DEPARTMENT OF to be signed by a duly authorized
STATE. officer thereof this
5th day of December, 2003.
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NeighborCare, Inc.
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Name of Corporation
/s/ John Gaither
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Signature
John Gaither, Senior Vice President,
General Counsel and Secretary
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Title
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EXHIBIT A
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Resolution of the Board of Directors
Of
NeighborCare, Inc.
Establishing and Designating the
Series B Junior Participating Preferred Shares
Adopted November 13, 2003
RESOLVED, that pursuant to the authority expressly vested in the board
of directors by the fifth article of the articles of incorporation of the
Corporation, the board of directors hereby fixes and determines the voting
rights, designations, preferences, limitations and special rights of 1,000,000
Preferred Shares by establishing and designating those shares as a series as
follows:
Section 1. Designation and Amount. The shares of the series shall
be designated as "Series B Junior Participating Preferred Shares" (the "Series B
Preferred Shares") and the number of shares constituting the Series B Preferred
Shares shall be 1,000,000. 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 Series B Preferred Shares 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 Corporation convertible into Series B
Preferred Shares.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any series of
Preferred Shares (or any similar shares) ranking prior and superior to
the Series B Preferred Shares with respect to dividends, the holders of
Series B Preferred Shares, in preference to the holders of Common
Shares, par value $0.02 per share (the "Common Shares"), of the
Corporation, and of any other junior shares, 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 day of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a Series B Preferred
Share, 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, 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 Common Shares or a subdivision of the outstanding
Common Shares (by reclassification or otherwise), declared on the
Common Shares since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a Series B
Preferred Share. In the event the Corporation shall at any time declare
or pay any dividend on the Common Shares payable in Common Shares, or
effect a subdivision or combination or consolidation of the outstanding
Common Shares (by reclassification or otherwise than by payment of a
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dividend in Common Shares) into a greater or lesser number of Common
Shares, then in each such case the amount to which holders of Series B
Preferred Shares 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
Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series B Preferred Shares as provided in paragraph
(A) of this Section immediately after it declares a dividend or
distribution on the Common Shares (other than a dividend payable in
Common Shares); provided that, in the event no dividend or distribution
shall have been declared on the Common Shares during the period between
any Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1 per share on the Series B
Preferred Shares shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding Series B Preferred Shares from the Quarterly 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 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 Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of Series B
Preferred Shares entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the Series B Preferred Shares 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
Series B Preferred Shares 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.
(D) The annual dividend on the Series B Preferred Shares
shall be equal to the sum of the quarterly dividends in each year.
Section 3. Voting Rights. The holders of Series B Preferred Shares
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each Series B Preferred Share shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the shareholders of
the Corporation. In the event the Corporation shall at any time declare
or pay any dividend on the Common Shares payable in Common Shares, or
effect a subdivision or combination or consolidation of the outstanding
Common Shares (by reclassification or otherwise than by payment of a
dividend in Common Shares) into a greater or lesser number of Common
Shares, then in each such case the number of votes per share to which
holders of Series B Preferred Shares were entitled immediately prior to
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such event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number
of Common Shares that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the terms of
any other series of Preferred Shares or any other class or series of
shares of the Corporation, or by law, the holders of Series B Preferred
Shares and the holders of Common Shares and any other capital stock of
the Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of shareholders of the
Corporation.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series B Preferred Shares 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 Shares as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Shares as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on Series B
Preferred Shares outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series B
Preferred Shares;
(ii) declare or pay dividends, or make any other
distributions, on any shares ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series B Preferred Shares, except dividends paid ratably on the
Series B Preferred Shares and all such parity shares 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 any shares ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series B
Preferred Shares, provided that the Corporation may at any time
redeem, purchase or otherwise acquire any such junior shares in
exchange for shares of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Series B Preferred Shares; or
(iv) redeem or purchase or otherwise acquire for
consideration any Series B Preferred Shares, or any shares ranking
on a parity with the Series B Preferred Shares, 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.
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(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares 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.
Section 5. Reacquired Shares. Any Series B Preferred Shares
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 Preferred
Shares and may be reissued as part of a new series of Preferred Shares or as
otherwise provided in the Amended and Restated Articles of Incorporation of the
Corporation, subject to any applicable conditions and restrictions on issuance
set forth in the Amended and Restated Articles of Incorporation or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series B Preferred Shares
unless, prior thereto, the holders of Series B Preferred Shares 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,
provided that the holders of Series B Preferred Shares shall be entitled to
receive an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be distributed
per share to holders of Common Shares, or (2) to the holders of shares ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series B Preferred Shares, except distributions made ratably on the
Series B Preferred Shares and all such parity shares 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 the Corporation shall at
any time declare or pay any dividend on the Common Shares payable in Common
Shares, or effect a subdivision or combination or consolidation of the
outstanding Common Shares (by reclassification or otherwise than by payment of a
dividend in Common Shares) into a greater or lesser number of Common Shares,
then in each such case the aggregate amount to which holders of Series B
Preferred Shares were entitled immediately prior to such event under the proviso
in clause (1) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is the
number of Common Shares that were outstanding immediately prior to such event.
Section 7. Fundamental Transactions. In case the Corporation shall
enter into any consolidation, merger, division, combination or other transaction
in which the Common Shares are exchanged for or changed into other shares or
securities, cash and/or any other property, then in any such case each Series B
Preferred Share shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount of shares, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for which
each Common Share is changed or exchanged. In the event the Corporation shall at
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any time declare or pay any dividend on the Common Shares payable in Common
Shares, or effect a subdivision or combination or consolidation of the
outstanding Common Shares (by reclassification or otherwise than by payment of a
dividend in Common Shares) into a greater or lesser number of Common Shares,
then in each such case the amount set forth in the preceding sentence with
respect to the exchange or change of Series B Preferred Shares shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of Common Shares outstanding immediately after such event and the denominator of
which is the number of Common Shares that were outstanding immediately prior to
such event.
Section 8. No Redemption. The Series B Preferred Shares shall not be
redeemable.
Section 9. Fractional Shares. The Corporation may issue fractions and
certificates representing fractions of a Series B Preferred Share in integral
multiples of 1/100th of a Series B Preferred Share, or in lieu thereof, at the
election of the Board of Directors of the Corporation at the time of the first
issue of any Series B Preferred Shares evidence such fractions by depositary
receipts, pursuant to an appropriate agreement between the Corporation and a
depositary selected by it, provided that such agreement shall provide the
holders of such depositary receipts shall have all the rights, privileges and
preferences to which they would be entitled as beneficial owners of Series B
Preferred Shares. In the event that fractional Series B Preferred Shares are
issued, the holders thereof shall have all the rights provided herein for
holders of full Series B Preferred Shares in the proportion which such fraction
bears to a full share.
Section 10. Amendment. The Amended and Restated Articles of
Incorporation of the Corporation shall not be amended in any manner that would
materially alter or change the powers, preferences or special rights of the
Series B Preferred Shares so as to affect them adversely without the affirmative
vote of the holders of at least two-thirds of the outstanding Series B Preferred
Shares, voting together as a single class.
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