EXHIBIT 4.1



 






EXHIBIT 4.1




SECOND AMENDED AND RESTATED




CERTIFICATE OF INCORPORATION




OF




MIM CORPORATION




     1. The present name of the Corporation is, and the name under which the Corporation was
originally incorporated was, MIM Corporation. The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on March 22, 1996.



     2. The Certificate of Incorporation of the Corporation is amended and restated as follows:



     FIRST: The name of the Corporation is BioScrip, Inc.



     SECOND: The address of the Corporation’s registered office in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at
such address is The Corporation Trust Company.



     THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.



     FOURTH: The total number of shares of capital stock which the Corporation shall have
authority to issue is eighty million (80,000,000) shares, par value one-one hundredth of a cent
($0.0001) per share, of which seventy-five million (75,000,000) shares are designated as Common
Stock and five million (5,000,000) shares are designated as Preferred Stock.



     FIFTH: The Board of Directors is authorized, subject to limitations prescribed by law and the
provisions of Article FOURTH, to provide for the issuance of the shares of Preferred Stock in
series, and by filing a certificate pursuant to the Delaware General Corporation law, to establish
from time to time the number of shares to be included in each series, and to fix the designation,
powers, preferences, and relative rights of each such series and the qualifications, limitations,
or restrictions thereof. Each class or series shall be appropriately designated by a distinguishing
designation prior to the issuance of any shares thereof. The Preferred Stock of all series shall
have powers, preferences and relative rights and shall be subject to qualifications, limitations
and restrictions identical with those of other shares of the same series and, except to the extent
otherwise provided in the description of the series, with those of shares of other series of the
same class.



     SIXTH: In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the
Corporation except as otherwise specifically provided therein.



     SEVENTH: Whenever a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the 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 the Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed by the 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 the Corporation under the provisions of Section 279 of the Delaware Code,
order a meeting of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, to be summoned in such manner as the said
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 the Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of the Corporation as consequence of such compromise or arrangement, the
said compromise or arrangement and the said reorganization shall, if sanctioned by the court to
which the said 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 the Corporation, as the case may be, and
also on the Corporation.



     EIGHTH: A director of the Corporation shall have no personal liability to the Corporation or
to its stockholders for monetary damages for breach of fiduciary duty as a director, except to the
extent that Section 102(b)(7) (or any successor or additional provision) of the Delaware General
Corporation Law, as amended from time to time, expressly provides that the liability of a director
may not be eliminated or limited.



     3. The Amended and Restated Certificate of Incorporation of the Corporation has been duly
adopted in accordance with the provisions of Sections 242 and 245 of the Delaware General
Corporation Law.



     4. The Amended and Restated Certificate of Incorporation of the Corporation shall become
effective at 11:59:59 p.m. on March 12, 2005.



     Dated: March 9, 2004.



	 	 	 	 	 
	 

	 	/s/ Barry A Posner
	 	 
	

	 	 	 	 
	

	 	Barry A. Posner	 	 
	

	 	Executive Vice President,	 	 
	

	 	Secretary and General Counsel	 	 






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