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RESTATED CERTIFICATE OF INCORPORATION
OF
OMNICARE, INC.
1. The name of the corporation is OMNICARE, INC.
2. The address of its registered office in the State of Delaware is No.
100 West Tenth Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is:
To engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have
authority to issue is One Hundred Eleven Million (111,000,000), of
which One Hundred Ten Million (110,000,000) shares of the par value of
One Dollar ($1.00) each, amounting in the aggregate to One Hundred Ten
Million Dollars ($110,000,000), shall be common stock and of which One
Million (1,000,000) shares, without par value, shall be preferred
stock.
Authority is hereby expressly granted to and vested in the Board of
Directors at any time, or from time to time, to issue the preferred
stock in one or more series and, in connection with the creation
of each such series, to fix by the resolution or resolutions
providing for the issue of shares thereof the number of shares to
be included in such series; the dividend rate; the redemption
price or prices if any; the terms and conditions of the
redemption of or purchase of the shares of such series; the terms
and conditions on which such shares are convertible into common
stock or any other securities, if they are convertible; and any
and all other designations, preferences and relative,
participating, optional, voting or other special rights and
qualifications, limitations or restrictions thereof, of such
series, to the full extent now or hereafter granted by the laws
of the State of Delaware.
5. A. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
K. L. Husfelt 100 West Tenth Street
Wilmington, Delaware 19801
B. A. Schuman 100 West Tenth Street
Wilmington, Delaware 19801
M. A. Ferrucci 100 West Tenth Street
Wilmington, Delaware 19801
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B. The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or
until a successor is elected and qualified is as follows:
NAME MAILING ADDRESS
---- ---------------
E. L. Hutton 1200 DuBois Tower
Cincinnati, Ohio 45202
W. F. Johnson 1200 DuBois Tower
Cincinnati, Ohio 45202
J. L. Kenrich 1200 DuBois Tower
Cincinnati, Ohio 45202
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the Corporation.
8. Elections of directors need not be by written ballot unless the by-
laws of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the
corporation may be kept (subject to any provision contained in
the statutes) outside the State of Delaware at such place or
places as may be designated from time to time by the board of
directors or in the by-laws of the Corporation.
9. A. Except as otherwise expressly provided in Clause B of this
Paragraph 9:
(i) any merger or consolidation of the Corporation with or into any
other corporation;
(ii) any sale, lease, exchange or other disposition of all or any
substantial part of the assets of the Corporation to or with any other
corporation, person or other entity;
(iii) the issuance or transfer of any securities of the Corporation to
any other corporation, person or other entity in exchange for
assets or securities or a combination thereof (except assets or
securities or a combination thereof so acquired in a single
transaction or a series of related transactions having an
aggregate fair market value of less than $5,000,000); or
(iv) the issuance or transfer of any securities of the Corporation to
any other corporation, person or other entity for cash;
shall require the affirmative vote of the holders of at least a
majority of the outstanding shares of capital stock of the
Corporation which are not beneficially owned by such other
corporation, person or other entity if, as of the record date for
the determination of stockholders entitled to notice thereof and
to vote thereon, such other corporation, person or entity is the
beneficial owner, directly or indirectly, of 10% or more of the
outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of Directors, considered for
the purposes of this Paragraph 9 as one class. Such affirmative
vote shall be required notwithstanding the fact that no vote may
be required, or that some
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lesser percentage may be specified, by law or in any agreement with
any national securities exchange.
B. The provisions of this Paragraph 9 shall not apply to any transaction
described in clauses (i), (ii), (iii) or (iv) of Clause A of this Paragraph 9,
(i) with another corporation if a majority, by vote, of the outstanding shares
of all classes of capital stock of such other corporation entitled to vote
generally in the election of Directors, considered for this purpose as one
class, is owned of record or beneficially by the Corporation and/or its
subsidiaries; (ii) with another corporation, person or other entity if the
Board of Directors of the Corporation shall by resolution have approved a
memorandum of understanding with such other corporation, person or other
entity with respect to and substantially consistent with such transaction
prior to the time such other corporation, person or other entity became the
beneficial owner, directly or indirectly, of 10% or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of Directors; or (iii) approved by resolution unanimously adopted by
the whole Board of Directors of the Corporation at any time prior to the
consummation thereof.
C. For the purposes of this Paragraph 9, a corporation, person or other entity
shall be deemed to be the beneficial owner of any shares of capital stock of
the Corporation (i) which it has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise; or (ii) which are beneficially owned, directly or indirectly
(including shares deemed owned through application of clause (i) above), by
any other corporation, person or other entity with which it or its 'affiliate'
or 'associate' (as defined below) has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of
capital stock of the Corporation or which is its 'affiliate' or 'associate' as
those terms were defined in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934 as in effect on May 14, 1981. For
the purposes of this Paragraph 9, the outstanding shares of any class of
capital stock of the Corporation shall include shares deemed owned through the
application of clauses (i) and (ii) of this Clause C but shall not include any
other shares which may be issuable pursuant to any agreement, or upon exercise
of conversion rights, warrants or options, or otherwise.
D. The Board of Directors of the Corporation shall have the power and duty to
determine for the purposes of this Paragraph 9, on the basis of information
then known to it, whether (i) any other corporation, person or other entity
beneficially owns, directly or indirectly, 10% or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of Directors, or is an 'affiliate' or 'associate' (as defined above)
of another, (ii) any proposed sale, lease, exchange or other disposition of
part of the assets of the Corporation involves a substantial part of the
assets of the Corporation, (iii) assets or securities, or a combination
thereof, to be acquired in exchange for securities of the Corporation, have an
aggregate fair market value of less than $5,000,000 and whether the same are
proposed to be acquired in a single transaction or a series of related
transactions, and (iv) the memorandum of understanding referred to above is
substantially consistent with the transaction to which it relates. Any such
determination by the Board shall be conclusive and binding for all purposes of
this Paragraph 9.
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10. A Director or the entire Board of Directors of the Corporation may be
removed without cause only by the holders of two-thirds of the shares
then entitled to vote at an election of Directors, notwithstanding
any provision of the General Corporation Law of the State of Delaware
which may provide for such action to be taken by the holders of a
lesser percentage of such shares. For purposes of this Section, the
term "cause" shall mean (i) negligence or misconduct in the
performance of his duties to the Corporation by a Director if he did
not act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Corporation; or
(ii) the commission of an unlawful act by a Director which was
committed in the capacity of a Director, officer, employee or agent
of the Corporation provided he had reasonable cause to believe that
his conduct was unlawful.
11. To the full extent permitted by the General Corporation Law of the
State of Delaware, as amended or interpreted from time to time, a
Director of the Corporation shall not be liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as
a Director. Neither the amendment nor repeal of this Article Eleven,
nor the adoption of any other provision of this certificate of
incorporation that is inconsistent with this Article Eleven, shall
eliminate or reduce the effect of this Article Eleven with respect to
any matter occurring, or any cause of action, suit or claim that but
for this Article Eleven would accrue or arise prior to such
amendment, repeal or adoption.
12. The Corporation shall, to the full extent permitted by the General
Corporation Law of the State of Delaware, as amended or interpreted
from time to time, indemnify all Directors, officers and employees
whom it may indemnify pursuant thereto; and the Corporation may, to
the full extent permitted thereby, indemnify agents of the Corporation
or other persons.
13. The Board of Directors of the Corporation, when evaluating any offer
of another party to (i) make a tender or exchange offer for any
equity security of the Corporation, (ii) merge or consolidate the
Corporation with another corporation, or (iii) purchase or otherwise
acquire all or substantially all of the properties and assets of the
Corporation, shall, in connection with the exercise of its judgment
in determining what is in the best interests of the Corporation and
its stockholders, give due consideration to all relevant factors,
including without limitation the social and economic effects on the
employees, customers, suppliers and other constituents of the
Corporation and its subsidiaries and on the communities in which the
Corporation and its subsidiaries operate or are located.
14. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in its Certificate of Incorporation, in the
manner now or hereafter provided by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
Notwithstanding the foregoing, Paragraphs 7, 9, 10, 11 and 12 of the
Corporation's Certificate of Incorporation may not be altered,
amended or repealed unless two-thirds of the outstanding stock of
each class entitled to vote thereon as a class, have been voted in
favor of such action.
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