**Exhibit 3.1**

 

**FOURTH RESTATED CERTIFICATE OF INCORPORATION**

**OF**

**CAREMARK RX, INC.**

 

CAREMARK RX, INC., a corporation organized and existing under and by virtue of the Delaware General Corporation Law (“DGCL”), does hereby certify that:

 

The present name of the corporation is Caremark Rx, Inc.(“Corporation”); 

 

The date of filing of the originalCertificate of Incorporation of the Corporation with the Delaware Secretary of State was August 14, 1995, under the name MedPartners/Mullikin, Inc.; 

 

The date of filing of the Restated Certificate of Incorporation of the Corporation with the Delaware Secretary of State was November 29, 1995; 

 

The date of filing of the Certificate of Correction of RestatedCertificate of Incorporation of the Corporation with the Delaware Secretary of State was May 13, 1996; 

 

The date of filing of the Second Amended and Restated Certificate of Incorporation of the Corporation with the Delaware Secretary of State was May 13,1996; 

 

The date of filing of a Certificate of Amendment toSecond Amended and Restated Certificate of Incorporation of the Corporation with the Delaware Secretary of State was September 5, 1996; 

 

The date of filing of a Certificate of Amendment to Second Amended and Restated Certificate of Incorporation of the Corporation with the DelawareSecretary of State was December 13, 1996; 

 

The date of filingof the Third Restated Certificate of Incorporation of the Corporation with the Delaware Secretary of State was March 24, 1997; 

 

The date of filing the Certificate of Ownership and Merger Merging Caremark Rx, Inc. into MedPartners, Inc. with the Delaware Secretary of State wasSeptember 10, 1999; and 

 

The date of filing the Certificate ofAmendment to the Third Restated Certificate of Incorporation of Caremark Rx, Inc. with the Delaware Secretary of State was March 23, 2004. 

 

The provisions of the Third Restated Certificate of Incorporation, as previously amended, are hereby restated and integrated into the single instrumentwhich is hereinafter set forth, and which is entitled Fourth Restated Certificate of Incorporation of Caremark Rx, Inc., without any further amendment and without any discrepancy between the provisions of the Third Restated Certificate ofIncorporation, as previously amended, and the provisions of the said single instrument hereinafter set forth. 

The Board of Directors of the Corporation duly adopted this Fourth Restated Certificate of Incorporationpursuant to the provisions of Sections 242 and 245 of the DGCL in the form set forth as follows: 

 

**ARTICLE I**

 

The name of the Corporation is Caremark Rx, Inc. 

 

**ARTICLE II**

 

The address of theCorporation’s registered office in the State of Delaware is Corporation Service Company at 2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle. The Registered Agent in charge thereof is Corporation Service Company.

 

**ARTICLE III**

 

The purposes of the Corporation are to engage in any lawful act or activityfor which corporations may be organized under the DGCL, including but not limited to the following: 

 

**Section 3.1** To engage in any lawful act or activity for which corporations may be organized under the DGCL; 

 

**Section 3.2** To manufacture, purchase or otherwise acquire, invest in,own, mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade, deal in and deal with goods, wares and merchandise and personal property of every class and description; 

 

**Section 3.3** To acquire, and pay for in cash, stock or bonds of this Corporation or otherwise, the goodwill, rights,assets and property, and to undertake or assume the whole or any part of the obligations or liabilities of any person, firm, association or corporation; 

 

**Section 3.4** To acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent of the UnitedStates or any foreign country, patent rights, licenses and privileges, inventions, improvements and processes, copyrights, trademarks and trade names, relating to or useful in connection with any business of this Corporation; 

 

**Section 3.5** To acquire by purchase, subscription or otherwise, and toreceive, hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or otherwise dispose of or deal in and with any of the shares of the capital stock, or any voting trust certificates in respect of the shares of capital stock, scrip,warrants, rights, bonds, debentures, notes, trust receipts, and other securities, obligations, choses in action and evidences of indebtedness or interest issued or created by any corporations, joint stock companies, syndicates, associations, firms,trusts or persons, public or private, or by the government of the United States of America, or by any foreign government, or by any state, territory, province, municipality or other political subdivision or by any governmental 

 

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agency, and as owner thereto to possess and exercise all the rights, powers and privileges of ownership, including theright to execute consents and vote thereon, and to do any and all acts and things necessary or advisable for the preservation, protection, improvement and enhancement in value thereof; 

 

**Section 3.6** To borrow or raise money for any of the purposes of the Corporation and, from time to time without limitas to amount, to draw, make, accept, endorse, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures and other negotiable or non-negotiable instruments and evidences of indebtedness, and to secure the payment ofany thereof and of the interest thereon by mortgage upon or pledge, conveyance or assignment in trust of the whole or any part of the property of the Corporation, whether at the time owned or thereafter acquired, and to sell, pledge or otherwisedispose of such bonds or other obligations of the Corporation for its corporate purposes; 

 

**Section 3.7** To purchase, receive, take by grant, gift, devise, bequest or otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and with real or personal property, or anyinterest therein, wherever situated, and to sell, convey, lease, exchange, transfer or otherwise dispose of, or mortgage or pledge, all or any of the Corporation’s property and assets, or any interest therein, wherever situated; and 

 

**Section 3.8** In general, to possess and exercise all the powers andprivileges granted by the DGCL or by any other law of Delaware or by this Certificate of Incorporation together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion orattainment of the business or purposes of the Corporation. 

 

**Section 3.9** The business and purposes specified in the foregoing clauses shall, except where otherwise expressed, be in nowise limited or restricted by reference to, or inference from, the terms of any other clause in thisCertificate of Incorporation, but the business and purposes specified in each of the foregoing clauses of this Article shall be regarded as an independent business and purpose. 

 

**ARTICLE IV**

 

**Section 4.1 Authorization of Capital**. The total number of shares of all classes of capital stock which the Corporation shall have authorityto issue is Seven Hundred Ten Million (710,000,000) shares, comprised of (a) Seven Hundred Million (700,000,000) shares of Common Stock, with a par value of $.001 per share; (b) Five Hundred Thousand (500,000) shares of Series C Junior ParticipatingPreferred Stock (the “Series C Preferred Stock”), with a par value of $.001 per share; and (c) Nine Million Five Hundred Thousand (9,500,000) shares of such other Preferred Stock, with a par value of $.001 per share, as the Board ofDirectors may decide to issue pursuant to Section 4.3, which constitutes a total authorized capital of all classes of capital stock of Seven Hundred Ten Thousand Dollars ($710,000.00). 

 

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A description of the respective classes of stock and a statement of the designations, preferences, votingpowers, relative, participating, optional or other special rights and privileges, and the qualifications, limitations and restrictions of the Series C Preferred Stock, such other Preferred Stock as the Board of Directors may by resolution orresolutions decide to issue, and the Common Stock are as follows: 

 

**Section 4.2 Series C Preferred Stock.**

 

(a) Voting Rights. The holders of shares of Series C Preferred Stock shall have the following voting rights: 

 

(1) Subject to the provisions for adjustment hereinafter set forth, each share of Series C Preferred Stock shall entitle the holder thereof to onehundred (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 (as defined in subsection 4.2(b)) (i) declare any dividend on CommonStock 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 ofSeries C 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 thedenominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 

 

(2) Except as otherwise provided herein or by law, the holders of shares of Series C Preferred Stock and the holders of shares of Common Stock shall votetogether as one class on all matters submitted to a vote of stockholders of the Corporation. 

 

(3) (A) If at any time dividends on any Series C 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 C Preferred Stockthen outstanding shall have been declared and paid or set apart for payment. During each default period, all holders of Preferred Stock (including holders of the Series C 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. 

 

(B) During any default period, such voting right of the holders of Series C Preferred Stock may be exercised initially at a special meeting calledpursuant to subsection 4.2(a)(3)(C) or at any annual meeting of stockholders, and thereafter at annual meetings of stockholders, provided that such voting right shall not be exercised unless the holders of ten percent (10%) in number of shares ofSeries C 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 C Preferred Stock of such voting right. At any meeting atwhich the holders of Series C Preferred Stock shall exercise such voting right initially during an existing default period, 

 

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they shall have the right, voting as a class, to elect Directors to fill such vacancies, if any, in the Board ofDirectors 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 ofthe Series C 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 C Preferred Stock shall have exercisedtheir 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 C Preferred Stock as herein provided or pursuant tothe rights of any equity securities ranking senior to or *pari passu* with the Series C Preferred Stock. 

 

(C) Unless the holders of Series C 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 C Preferred Stock outstanding, irrespective of series, may request, the calling of aspecial meeting of the holders of Series C 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 special meeting at which holders of SeriesC Preferred Stock are entitled to vote pursuant to this subsection 4.2(a)(3)(C) shall be given to each holder of record of Series C Preferred Stock by mailing a copy of such notice to him at his last address as the same appears on the books of theCorporation. Such meeting shall be called for a time not earlier than twenty (20) days and not later than sixty (60) days after such order or request or, in default of the calling of such meeting within sixty (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 Preferred Stock outstanding. Notwithstanding the provisions of this subsection4.2(a)(3)(C), no such special meeting shall be called during the period within sixty (60) days immediately preceding the date fixed for the next annual meeting of the stockholders. 

 

(D) In any default period, the holders of Common Stock, and other classes of stock of the Corporation if applicable, shallcontinue to be entitled to elect the whole number of Directors until the holders of Series C Preferred Stock shall have exercised their right to elect two (2) Directors voting as a class, after the exercise of which right (x) the Directors soelected by the holders of Series C 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 (y) any vacancy in the Board of Directors may (except asprovided in subsection 4.2(a)(3)(B) hereof) 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 thisSection 4.2(a)(3)(D) 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 (y) of the foregoing sentence. 

 

(E) Immediately upon the expiration of a default period, (x) the right ofthe holders of Series C Preferred Stock as a class to elect Directors shall cease, (y) the term of any Directors elected by the holders of Series C Preferred Stock as a class shall terminate, and (z) the number of Directors shall be such number asmay be provided for in this Certificate of 

 

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Incorporation or the Bylaws of the Corporation, irrespective of any increase made pursuant to the provisions ofsubsection 4.2(a)(3)(B) hereof (such number being subject, however, to change thereafter in any manner provided by law or in the Certificate of Incorporation or Bylaws). Any vacancies in the Board of Directors effected by the provisions of clauses(y) and (z) in the preceding sentence may be filled by a majority of the remaining Directors. 

 

(4) Except as set forth herein, holders of Series C 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 CommonStock as set forth herein) for taking any corporate action. 

 

(b) Dividends and Distribution. 

 

(1) Theholders of shares of Series C Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purposes, quarterly dividends payable in cash on the last 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 share ofSeries C Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $.001 or (b) subject to the provision for adjustment hereinafter set forth, one hundred (100) times the aggregate per share amount of all cashdividends, and one hundred (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 CommonStock (by reclassification or otherwise), declared on the Common Stock, 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 fractionof a share of Series C Preferred Stock. In the event the Corporation shall, at any time after November 10, 1994 (the “Rights Declaration Date”), (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide theoutstanding Common Stock, or (iii) 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 C Preferred Stock were entitled immediately prior to such event underclause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number ofshares of Common Stock that were outstanding immediately prior to such event. 

 

(2) The Corporation shall declare a dividend or distribution on the Series C Preferred Stock as provided in subsection 4.2(b)(1) hereof 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 Quarterly Dividend Payment Date and the next subsequentQuarterly Dividend Payment Date, a dividend of $.001 per share on the Series C Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. 

 

(3) Dividends shall begin to accrue and be cumulative on outstanding shares of Series C Preferred Stock from the QuarterlyDividend Payment Date next preceding the 

 

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date of issue of such shares of Series C Preferred Stock, unless the date of issue of such shares is prior to the recorddate 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 recorddate for the determination of holders of shares of Series C Preferred Stock 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 cumulativefrom such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series C Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable onsuch 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 C Preferred Stock entitled to receivepayment of a dividend or distribution declared thereon, which record date shall be no more than thirty (30) days prior to the date fixed for the payment thereof. 

 

(c) Restrictions. 

 

(1) Whenever quarterly dividends or other dividends or distributions payable on the Series C Preferred Stock as provided in subsection 4.2(b) hereof arein arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series C Preferred Stock outstanding shall have been paid in full, the Corporation shall not 

 

(A) declare or pay dividends on, make any other distributions on, or redeemor 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 C Preferred Stock; 

 

(B) declare or pay dividends on or make any other distributions on anyshares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series C Preferred Stock, except dividends paid ratably on the Series C Preferred Stock and all such parity stock on which dividendsare payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; 

 

(C) 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 C 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 C Preferred Stock; or 

 

(D) purchase or otherwise acquire for consideration any shares of Series C Preferred Stock, or any shares of stock ranking on a parity with the Series CPreferred 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 respectiveannual 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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(2) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquirefor consideration any shares of stock of the Corporation unless the Corporation could, under subsection 4.2(c)(1) hereof, purchase or otherwise acquire such shares at such time and in such manner. 

 

(d) Reacquired Shares. Any shares of Series C Preferred Stockpurchased 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 PreferredStock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein. 

 

(e) Liquidation, Dissolution or Winding Up. 

 

(1) Upon any liquidation (voluntary or otherwise), dissolution or windingup 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 C Preferred Stock unless, prior thereto, the holders ofshares of Series C Preferred Stock shall have received an amount equal to one hundred (100) times the Exercise Price, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of suchpayment (the “Series C Liquidation Preference”). The term “Exercise Price” means the price established by the Board of Directors for the purchase of one unit of Series C Preferred Stock equal to one-one-hundredth of one share ofSeries C Preferred Stock. If no shares of convertible Preferred Stock are outstanding at the time of liquidation, then, following the payment of the full amount of the Series C Liquidation Preference, no additional distributions shall be made to theholders of shares of Series C 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 CLiquidation Preference by (ii) one hundred (100) (as approximately adjusted as set forth in subparagraph (3) 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 C Liquidation Preference and the Common Adjustment in respect of all outstanding shares of Series C Preferred Stock and Common Stock, respectively,holders of Series C 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 one (1) with respect to such Series CPreferred Stock and Common Stock, on a per share basis, respectively. 

 

(2) In the event, however, that there are not sufficient assets available to permit payment in full of the Series C Liquidation Preference and the liquidation preferences of all other series of Preferred Stock, if any, which rank on aparity with the Series C Preferred Stock, then such remaining assets shall be distributed ratable to the holders of such parity shares in proportion to their respective liquidation preferences. In the event, however, that there are not sufficientassets available to permit payment in full of the Common Adjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock. 

 

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(3) In the event the Corporation shall at any time after the Rights Declaration Date (i) declare anydividend 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 effectimmediately 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 numberof shares of Common Stock that were outstanding immediately prior to such event. 

 

(f) 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 otherstock or securities, cash and/or any other property, then, in any such case, the shares of Series C Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafterset forth) equal to one hundred (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 theCorporation 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 smallernumber 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 C Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of whichis 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. 

 

(g) No Redemption. The shares of Series C Preferred Stock shall not beredeemable. 

 

(h) Amendment. The Certificate ofIncorporation of the Corporation shall not be further amended in any manner which would materially alter or change the powers, preferences or special rights of the Series C Preferred Stock so as to affect them adversely without the affirmative voteof the holders of a majority or more of the outstanding shares of Series C Preferred Stock, voting separately as a class. 

 

(i) Fractional Shares. Series C Preferred Stock may be issued in fractions of a share which shall entitle the holder, in proportion to suchholder’s fractional shares, to exercise voting rights, to receive dividends, to participate in distributions and to have the benefit of all other rights of holders of Series C Preferred Stock. 

 

**Section 4.3 Other Preferred Stock**. The Board of Directors ofthe Corporation is authorized, subject to the limitations prescribed by law and the provisions of this Section 4.3, to adopt one or more resolutions to provide for the issuance from time to time in one or more series of any number of shares ofPreferred Stock, up to a maximum of nine million five hundred thousand (9,500,000) shares, and to establish the number of shares to be included in each such series, and to 

 

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fix the designation, relative rights, preferences, qualifications and limitations of the shares of each such series. Theauthority of the Board of Directors with respect to each such series shall include, but not be limited to, a determination of the following: 

 

(a) The number of shares constituting that series and the distinctive designation of that series; 

 

(b) The dividend rate on the shares of that series, whether dividends shallbe cumulative and, if so, from which date or dates, and whether they should be payable in preference to, or in another relation to, the dividends payable on any other class or classes or series of stock; 

 

(c) Whether that series shall have voting rights, in addition to the votingrights provided by law, and, if so, the terms of such voting rights; 

 

(d) Whether that series shall have conversion or exchange privileges and, if so, the terms and conditions of such conversion or exchange, including provision for adjustments for the conversion or exchange rate in such events as the Board ofDirectors shall determine; 

 

(e) Whether or not the shares ofthat series shall be redeemable and, if so, the terms and conditions of such redemption, including the manner of selecting shares for redemption if less than all shares are to be redeemed, the date or dates upon or after which they shall beredeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates; 

 

(f) Whether that series shall be entitled to the benefit of a sinking fund to be applied to the purchase or redemption of shares of that series and, ifso, the terms and amounts of such sinking funds; 

 

(g) Therights of the shares of that series to the benefit of conditions and restrictions upon the creation of indebtedness of the Corporation or any subsidiary, upon the issuance of any additional stock (including additional shares of such series or of anyother series) and upon the payment of dividends or the making of other distributions on, and the purchase, redemption or other acquisition by the Corporation or any subsidiary of, any outstanding stock of the Corporation; 

 

(h) The right of the shares of that series in the event of any voluntary orinvoluntary liquidation, dissolution or winding up of the Corporation and whether such rights shall be in preference to, or in other relation to, the comparable rights of any other class or classes or series of stock; and 

 

(i) Any other relative, participating, optional or other special rights,qualifications, limitations or restrictions of that series. 

 

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**Section 4.4 Common Stock.**

 

(a) Voting Rights. Except as otherwise required by law or this Certificate of Incorporation, each holder of CommonStock shall have one vote in respect of each share of stock held by him of record on the books of the Corporation for the election of Directors and on all matters submitted to a vote of stockholders of the Corporation. 

 

(b) Dividends. Except as otherwise provided by the resolution orresolutions of the Board of Directors providing for the issuance of any series of Preferred Stock pursuant to Section 4.3, the holders of shares of Common Stock shall be entitled to receive, when and if declared by the Board of Directors, out of theassets of the Corporation which are by law available therefor, dividends payable either in cash, in property or in shares of capital stock. 

 

(c) Dissolution, Liquidation or Winding Up. Except as otherwise provided by the resolution or resolutions of the Board of Directors providing forthe issuance of any series of Preferred Stock pursuant to Section 4.3, in the event of any dissolution, liquidation or winding up of the affairs of the Corporation, after distribution in full of the preferential amounts, if any, to be distributed tothe holders of the Series C Preferred Stock, the rights of the holders of Common Stock to receive any remaining assets of the Corporation shall be as provided in subsection 4.2(e). 

 

**ARTICLE V**

 

**Section 5.1 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 Bylaws of the Corporation, and may be increased or decreased as therein provided. Directors of the Corporation need not be elected by ballot unlessrequired by the Bylaws. 

 

**Section 5.2 Classification ofBoard of Directors**. The Directors shall be divided into three (3) 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 suchgroups as the Board of Directors shall designate. The first class of Directors will be elected for a term which expires in 1996. The second class will be elected for a term which expires in 1997. The third class will be elected to a term whichexpires in 1998. At each annual meeting of stockholders, beginning in 1996, successors to the class of Directors whose term expires at the annual meeting shall be elected for a three-year term. If the number of Directors is changed, any increase ordecrease 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 Directormay 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 electedand qualify. No alteration, amendment or repeal of this Article V or the Bylaws 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 Directorto be removed without cause, or to increase the number of Directors in any class or 

 

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in the aggregate from that existing at the time of such alteration, amendment or repeal until the expiration of the termsof 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 Bylaws, suchalteration, 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. 

 

**Section 5.3 Directors Appointed by a Specific Class of Stockholders**. To the extent that any holders of anyclass 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 additionalclass 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 suchclass of Directors shall be in addition to the classes designated above. 

 

**Section 5.4 Nominations**. Advance notice of nominations for the election of Directors shall be given in the manner and to the extent provided in the Bylaws of the Corporation. 

 

**Section 5.5 Vacancies**. Vacancies and newly createddirectorships resulting from any increase in the authorized number of Directors may be filled by a majority of the Board of Directors, and any vacancies on the Board of Directors resulting from death, resignation, removal or other cause shall onlybe filled by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining Director. Any Director elected in accordance with the preceding sentence ofthis Section 5.5 shall hold office for the remainder of the full term of the Directors whose vacancy is so filled and until such Director’s successor shall have been elected and qualified. 

 

**ARTICLE VI**

 

The Corporation is to have perpetual existence. 

 

**ARTICLE VII**

 

In furtherance and not in limitation of the powers conferred upon it by law,the Board of Directors is expressly authorized: 

 

**Section7.1** To adopt, repeal, alter or amend the Bylaws of the Corporation by a vote of a majority of the entire Board of Directors. 

 

**Section 7.2** To authorize and cause to be executed mortgages and liens upon the real and personal property of the Corporation. 

 

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**Section 7.3** To set apart, out of any of the funds of the Corporation available for dividends, areserve or reserves for any proper purpose and to abolish any such reserve in the manner in which it was created. 

 

**Section 7.4** By a majority of the whole Board of Directors, to designate one or more committees, each committee to consist of one or more of theDirectors of the Corporation. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The Bylaws may provide that, in theabsence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board ofDirectors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, or in the Bylaws of the Corporation, shall have and may exercise all thepowers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have thepower or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’sproperty and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the Bylaws of the Corporation; and, unless the resolution or Bylaws expressly so provide, no such committee shallhave the power or authority to declare a dividend or to authorize the issuance of stock. 

 

**Section 7.5** When and as authorized by the stockholders in accordance with statute, to sell, lease or exchange all or substantially all of the property and assets of the Corporation, including its goodwill andits corporate franchises, upon such terms and conditions and for such consideration, which may consist in whole or in part of money or property, including shares of stock in and/or other securities of any other corporation or corporations, as theBoard of Directors shall deem expedient and for the best interests of the Corporation. 

 

**ARTICLE VIII**

 

**Section8.1** Except as provided in Section 8.2 of this Article VIII, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of the stockholders of the Corporationand may not be effected by any consent in writing by such stockholders. Advance notice of items of business to be considered at any meeting of the stockholders shall be given in the manner and to the extent provided in the Bylaws of the Corporation.

 

**Section 8.2** Notwithstanding the foregoing, this ArticleVIII shall not apply to the Corporation if it does not have a class of voting stock that is either (i) listed on a national securities exchange, (ii) authorized for quotation on an inter dealer quotation system of the registered national securitiesassociation, or (iii) held of record by more than two thousand (2,000) stockholders. 

 

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**ARTICLE IX**

 

**Section 9.1 Limitation of Liability of Directors**. A Director of the Corporation shall not be personally liable to the Corporation or itsstockholders for monetary damages for breach of fiduciary duty as a Director, except for liability (i) for any breach of the Director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith orwhich involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the Director derived an improper personal benefit. 

 

If the DGCL is amended after the date hereof to authorized action bycorporations organized pursuant to the DGCL to further eliminate or limit the personal liability of directors, then the liability of a Director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, asamended. 

 

**Section 9.2 Indemnification of Directors.**

 

(a) Each person who was or is made a party to, or isthreatened to be made a party to, or is involved in, any threatened, pending or completed action, suit or proceeding, whether formal or informal, whether of a civil, criminal, administrative or investigative nature (hereinafter a“proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a Director of the Corporation, whether the basis of such proceeding is an alleged action or inaction in an officialcapacity or in any other capacity while serving as a Director, shall be indemnified and held harmless by the Corporation to the fullest extent permissible under Delaware law, as the same exists or may hereafter exist in the future (but, in the caseof any future change, only to the extent that such change permits the Corporation to provide broader indemnification rights than the law permitted prior to such change), against all costs, charges, expenses, liabilities and losses (including,without limitation, attorneys’ fees, judgments, fines, Employee Retirement Income Security Act of 1974 (“ERISA”) excise taxes, or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such personin connection therewith, and such indemnification shall continue as to a person who has ceased to be a Director and shall inure to the benefit of his or her heirs, executors and administrators. 

 

(b) The Corporation shall pay expenses actually incurred in connection withany proceeding in advance of its final disposition; provided, however, that if Delaware law then requires, the payment of such expenses incurred in advance of the final disposition of a proceeding shall be made only upon delivery to the Corporationof an undertaking, by or on behalf of such Director or officer, to repay all amounts so advanced if it shall ultimately be determined that such Director or officer is not entitled to be indemnified. 

 

(c) If a claim under subsection 9.2(a) hereof is not paid in full by theCorporation within thirty (30) days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or inpart, the claimant shall be entitled to be paid also the expense of prosecuting such claim. Neither the failure of the Corporation (including its Board of Directors, 

 

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independent legal counsel or its stockholders) to have made a determination that indemnification of the claimant ispermissible in the circumstances because the claimant has met the applicable standard of conduct, if any, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or its stockholders) that theclaimant has not met the standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the standard of conduct. 

 

**Section 9.3 Indemnification of Officers, Employees and Agents**. The Corporation may provide indemnification to employees and agents of theCorporation to the fullest extent permissible under Delaware law. 

 

**Section 9.4 Expenses as a Witness**. To the extent that any Director, officer, employee or agent of the Corporation is, by reason of such position, or position with another entity at the request of the Corporation, a witness inany action, suit or proceeding, he or she shall be indemnified against all costs and expenses actually and reasonably incurred by him or her on his or her behalf in connection therewith. 

 

**Section 9.5 Insurance**. The Corporation may maintain insurance, at its expense, to protect itself and anyDirector, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify suchperson against such expense, liability or loss under Delaware law. 

 

**Section 9.6 Indemnity Agreements**. The Corporation may enter into agreements with any Director, officer, employee or agent of the Corporation providing for indemnification to the fullest extent permissible under Delaware law.

 

**Section 9.7 Separability**. Each and everyparagraph, sentence, term and provision of this Article IX is separate and distinct, so that if any paragraph, sentence, term or provision hereof shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shallnot affect the validity or enforceability of any other paragraph, sentence, term or provision hereof. To the extent required, any paragraph, sentence, term or provision of this Article IX may be modified by a court of competent jurisdiction topreserve its validity and to provide the claimant with, subject to the limitations set forth in this Article IX and any agreement between the Corporation and claimant, the broadest possible indemnification permitted under applicable law. 

 

**Section 9.8 Contract Right**. Each of the rights conferred onDirectors of the Corporation by Sections 9.1, 9.2 and 9.4 of this Article IX, and on officers, employees or agents of the Corporation by Section 9.4 of this Article, shall be a contract right, and any repeal or amendment of the provisions of thisArticle shall not adversely affect any right hereunder of any person existing at the time of such repeal or amendment with respect to any act or omission occurring prior to the time of such repeal or amendment, and, further, shall not apply to anyproceeding, irrespective of when the proceeding is initiated, arising from the service of such person prior to such repeal or amendment. 

 

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**Section 9.9 Nonexclusivity**. The rights conferred in this Article shall not be exclusive ofany other rights that any person may have or hereafter acquire under any statute, Bylaw, agreement, vote of stockholders or disinterested Directors or otherwise. 

 

**ARTICLE X**

 

The Corporation reserves the right to amend, alter or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafterprescribed by statute, and all rights conferred upon stockholders herein are subject to this reservation. 

 

IN WITNESS WHEREOF, Caremark Rx, Inc. does hereby submit for filing with the Secretary of State of the State of Delaware this Fourth Restated Certificateof Incorporation this 6th day of May, 2004. 

 
**Caremark Rx, Inc.**
By:
 
/s/ Howard A. McLure

Name:
 
Howard A. McLure

Title:
 
Executive Vice President and Chief Financial Officer

 

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