RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICAN STANDARD INC.
AMERICAN STANDARD INC., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is American Standard Inc. The name under
which the Corporation was originally incorporated is American Radiator &
Standard Sanitary Corporation. The date of filing of the corporation's original
Certificate of Incorporation with the Secretary of State of the State of
Delaware is March 26, 1929.
2. At a meeting duly held on May 4, 1995, the Board of Directors of the
corporation adopted a resolution authorizing the amendment and restatement of
the corporation's Certificate of Incorporation as set forth herein in accordance
with the provisions of Sections 242 and 245 of the General corporation Law of
the State of Delaware. In lieu of a meeting and vote of the stockholders of the
corporation, the Corporation's sole stockholder, by written consent dated May 4,
1995, approved the amendment and restatement of the Corporation's Certificate of
Incorporation and the taking of the actions contemplated thereby, and such
consent was filed with the minutes of the proceedings of stockholders of the
Corporation. The Restated Certificate of Incorporation so approved was filed
with the Secretary of State of the State of Delaware on May 9, 1995.
3. At a meeting duly held on March 5, 1998, the Board of Directors of
the Corporation adopted a resolution authorizing the amendment and restatement
of the Corporation's Restated Certificate of Incorporation as set forth herein
in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware. At the Annual Meeting of Stockholders
of the Corporation, held on May 7, 1998, by the vote of more than a majority of
the shares of the Corporation's outstanding common stock, the Corporation's
stockholders approved the amendment and restatement of the Corporation's
Restated Certificate of Incorporation as set forth herein.
4. Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware, this Restated Certificate of Incorporation amends and
restates the provisions of the Restated Certificate of Incorporation of the
Corporation as heretofore in effect. The amendments have the effect of (i)
removing certain obsolete provisions; (ii) making a clarifying change to Article
SIXTH conforming to the Corporation's Amended By-laws; and (iii) making such
other changes as are proper under the general Corporation Law of the State of
Delaware and deemed necessary or appropriate by the Board of Directors.
5. The text of the Restated Certificate of Incorporation as heretofore
amended is hereby amended and restated to read in its entirety as follows:
FIRST: The name of the Corporation is AMERICAN STANDARD INC.
SECOND: The Corporation's registered office in the State of Delaware is
located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle; and the name and address of its registered
agent is The Corporation Trust Company, Corporation Trust Center, 1209 Orange
Street, Wilmington, Delaware 19801.
THIRD: The nature of the business of the Corporation is to engage in
any lawful act or activity for which corporations maybe organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 2,501,000 shares, consisting of 1,000 shares of
common stock, $.01 par value per share (the "Common Stock"), and 2,500,000
shares of preferred stock, $.01 par value per share (the "Preferred Stock"). The
designations and the powers, preferences and rights, and the qualifications,
limitations or restrictions of the Preferred Stock and the Common Stock shall be
as follows:
(a) The Preferred Stock may be issued at any time and from time to time
in one or more series.
(i) Series A Preferred Stock. A series of the Preferred Stock shall
have the number of shares, designation, powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, specified below:
(A) Designation. The designation of the aforementioned series
of Preferred Stock shall be "Series A Preferred Stock, $.01 par value per share"
(the "Series A Preferred Stock"). The maximum number of shares of the Series A
Preferred Stock shall be 10,000.
(B) Rank. The Series A Preferred Stock shall, with respect to
dividend rights and rights on liquidation, winding up and dissolution, rank
prior to all classes of common stock, including, without limitation, the Common
Stock. All equity securities of the Corporation with respect to which the Series
A Preferred Stock ranks prior are collectively referred to in this clause as the
"Junior Securities". The Corporation may authorize, create or issue any class or
series of stock which ranks prior to, or on a parity with, the Series A
Preferred Stock with respect to either dividend rights or rights on liquidation,
winding up or dissolution and may increase the authorized number of shares of
Series A Preferred Stock.
(C) Dividends. (1) The holders of the shares of the Series A
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available for the payment of dividends,
cash dividends at the rate of $.24 per share for each calendar quarter and no
more. Such dividends shall be payable on the last business day of each of March,
June, September and December (each of such dates being a "dividend payment
date"), commencing with the first such dividend payment date following the
issuance of the Series A Preferred Stock, in preference to dividends on the
Junior Securities. Such dividend shall be paid to the holders of record at the
close of business on the date specified by the Board of Directors of the
Corporation at the time such dividend is declared; provided, however, that such
date shall not be more than 60 days nor less than 10 days prior to the
respective dividend payment date. Dividends payable on shares of the Series A
Preferred Stock shall be fully cumulative and shall accrue (whether or not
earned or declared) from the date of original issue of such shares.
(2) Notwithstanding anything contained herein to the contrary,
no dividends shall be declared by the Board of Directors, paid or set
apart for payment by the Corporation at such time if the terms and
provisions of any debt instruments or agreement of the Corporation,
including, but not limited to, any credit agreement or debt indentures
outstanding on the date hereof, prohibit such declaration, payment or
setting apart for payment or provide that such declaration, payment or
setting apart for payment would constitute a breach thereof or a
default thereunder.
(3) The Corporation shall not declare, pay or set apart for
payment any dividend on any of the Junior Securities or make any
distribution in respect thereof, either directly or indirectly, and
whether in cash, obligations or shares of the Corporation or other
property (other than distributions or dividends in Junior Securities)
and shall not permit any corporation or other entity directly or
indirectly controlled by the Corporation to do so unless prior to or
concurrently with such declaration, as the case may be, all accrued and
unpaid dividends, if any, on shares of the Series A Preferred Stock not
paid on the dates provided for in paragraph (c)(2) hereof shall have
been or be paid; provided, however, that without limiting the
foregoing, the Corporation shall not effect any such declaration or
payment, as the case may be, with respect to the Junior Securities
unless on the immediately preceding dividend payment date the
Corporation has declared and paid or set aside for payment one full
quarterly cash dividend on the Series A Preferred Stock.
(4) Subject to the foregoing provisions of this paragraph (c)
and to the provisions of paragraph (d) below, the Board of Directors
may declare, and the Corporation may pay or set apart for payment,
dividends and other distributions on any of the Junior Securities, and
may purchase or otherwise redeem any of the Junior Securities or any
warrants, rights or options exercisable for or convertible into any of
the Junior Securities, and the holders of the shares of the Series A
Preferred Stock shall not be entitled to share therein.
(D) Liquidation Preference. (1) In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of the shares of Series A Preferred Stock then
outstanding shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders an amount in cash equal to $11.50
for each share outstanding, plus an amount in cash equal to all accrued but
unpaid dividends (whether or not earned or declared) thereon to the date fixed
for liquidation, dissolution or winding up before any payment shall be made or
any assets distributed to the holders of any of the Junior Securities. Except as
provided in the preceding sentence, holders of Series A Preferred Stock shall
not be entitled to any distribution in the event of liquidation, dissolution or
winding up of the affairs of the Corporation. If the assets of the Corporation
are not sufficient to pay in full the liquidation payments payable to the
holders of outstanding shares of the Series A Preferred Stock, then the holders
of all such shares shall share ratably in such distribution of assets in
accordance with the amount which would be payable on such distribution if the
amounts to which the holders of outstanding shares of Series A Preferred Stock
are entitled were paid in full.
(2) For the purpose of this paragraph (D), neither the
voluntary sale, lease, conveyance, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all the property or assets of the Corporation, nor the
consolidation or merger of the Corporation with one or more other
corporations, shall be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary, unless such voluntary sale,
lease, conveyance, exchange or transfer shall be in connection with a
plan of liquidation, dissolution or winding up of the Corporation.
(E) Redemption. (1) To the extent the Corporation shall have
funds legally available for such redemption, the Corporation may redeem at its
option, at any time and from time to time, the Series A Preferred Stock, in
whole or in part, at a redemption price of $11.50 per share, plus an amount in
cash equal to all accrued and unpaid dividends (whether or not earned or
declared) thereon to the date fixed for redemption, without interest.
(2) Shares of Series A Preferred Stock which have been issued
and reacquired in any manner, including shares purchased or redeemed or
exchanged, shall (upon compliance with any applicable provisions of the
laws of the State of Delaware) have the status of authorized and
unissued shares of the class of Preferred Stock undesignated as to
series and may be redesignated and reissued as part of any series of
the Preferred Stock.
(F) Procedure for Redemption. (1) In the event that fewer than
all the outstanding shares of Series A Preferred Stock are to be redeemed, the
number of shares to be redeemed shall be determined by the Board of Directors
and the shares to be redeemed shall be selected by lot or pro rata as may be
determined by the Board of Directors, except that in any redemption of fewer
than all the outstanding shares of Series A Preferred Stock, the corporation may
first redeem all shares held by any holders of a number of shares not to exceed
100 as may be specified by the Corporation.
(2) In the event the Corporation shall redeem shares of Series
A Preferred Stock, notice of such redemption shall be given by first
class mail, postage prepaid, and mailed not less than 30 days nor more
than 60 days prior to the redemption date, to each holder of record of
the shares to be redeemed at such holder's address as the same appears
on the stock register of the Corporation; provided, however, that no
failure to give such notice nor any defect therein shall affect the
validity of the proceeding for the redemption of any shares of Series A
Preferred Stock to be redeemed except as to the holder to whom the
Corporation has failed to give said notice or except as to the holder
whose notice was defective. Each such notice shall state: (a) the
redemption date; (b) the number of shares of Series A Preferred Stock
to be redeemed; and, if less than all the shares held by such holder
are to be redeemed, the number of such shares to be redeemed; (c) the
redemption price; (d) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and
(e) that dividends on the shares to be redeemed will cease to accrue on
such redemption date.
(3) Notice having been mailed as aforesaid and provided that
on or before the redemption date specified in such notice any and all
funds necessary for such redemption shall have been set aside by the
Corporation, separate and apart from its other funds with a trust
company (having capital and surplus of not less than $25,000,000) in
the Borough of Manhattan, City of New York, in trust for the pro rata
benefit of the holders of the shares so called for redemption, so as to
be and to continue to be available therefor, then, from and after the
redemption date dividends on the shares of Series A Preferred Stock so
called for redemption shall cease to accrue, and said shares shall no
longer be deemed to be outstanding for any purpose and shall not have
the status of shares of Series A Preferred Stock, and all rights of the
holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price without interest and
any required cash payments without interest upon surrender of the
certificates therefor) shall cease. Upon surrender in accordance with
said notice of the certificates for any shares so redeemed, such shares
shall be redeemed by the Corporation at the redemption price. In case
fewer than all the shares represented by any such certificate are
redeemed, a new certificate or certificates shall be issued
representing the unredeemed shares without cost to the holder thereof.
Any funds deposited and unclaimed at the end of one year from the date
fixed for redemption shall be repaid to the Corporation upon its
request, after which repayment the holders of shares called for
redemption shall look only to the Corporation for payment.
(G) Voting Rights. The holders of record of shares of Series A
Preferred Stock shall not be entitled to any voting rights except as otherwise
provided by law.
(ii) Other Series of Preferred Stock. The Board of Directors is hereby
authorized to provide for the issuance of shares of Preferred Stock in one or
more series other than the Series A Preferred Stock and, by filing a certificate
of designation pursuant to the applicable provisions of the General Corporation
Law of the State of Delaware (hereinafter referred to as a "Preferred Stock
Certificate of Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the designation, powers,
preferences and rights of shares of each such series and the qualification,
limitations and restrictions thereof.
The authority of the Board of Directors with respect to each such
series of Preferred Stock shall include, but not be limited to, determination of
the following:
(A) the designation of the series, which may be by
distinguishing number, letter or title;
(B) the number of shares of the series, which number the
Board of Directors may thereafter (except where
otherwise provided in the applicable Preferred Stock
Certificate of Designation) increase or decrease (but
not below the number of shares thereof then
outstanding);
(C) whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series;
(D) the dates on which dividends, if any, shall be payable;
(E) the redemption rights and price or prices, if any, for
shares of the series;
(F) the terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series;
(G) the amounts payable on shares of the series in the
event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the
Corporation;
(H) whether the shares of the series shall be convertible
or exchangeable into shares of any other class or
series, or any other security, of the Corporation or
any other corporation, and, if so, the other
security, the conversion or exchange price or prices
or rate or rates, any adjustments thereof, the date
or dates as of which such shares shall be convertible
or exchangeable and all other terms and conditions
upon which such conversion or exchange may be made;
(I) restrictions on the issuance of shares of the same
series or of any other class or series; and
(J) the voting rights, if any, of the holders of shares of the
series.
(b) Each holder of Common Stock shall be entitled to one vote for each
share of Common Stock held of record by such holder and shall be entitled to
vote with respect to all matters as to which a stockholder of a Delaware
corporation would be entitled to vote.
(c) The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof.
(d) Except as may be required by law or as provided in the Restated
Certificate of Incorporation or in a Preferred Stock Certificate of Designation,
the Common Stock shall have the exclusive right to vote for the election of
Directors and for all other purposes, and holders of Preferred Stock shall not
be entitled to vote on any matter or receive notice of any meeting of
stockholders.
(e) The Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable law.
FIFTH: In furtherance and not in limitation of the powers conferred
upon it by law, the Board of Directors shall have the power without the assent
or vote of the stockholders to adopt, amend, alter or repeal the Amended By-Laws
of the Corporation, except to the extent that the Amended By-Laws or this
Restated Certificate of Incorporation otherwise provide.
SIXTH: (a) The business and affairs of the Corporation shall be managed
by or under the direction of its Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
law or by this Restated Certificate of Incorporation directed or required to be
exercised or done by the stockholders.
(b) Upon the due filing of the Restated Certificate of
Incorporation with the Secretary of State of the State of Delaware, the number
of Directors constituting the Board of Directors shall be eleven (11) and
thereafter the number of Directors shall be as set forth in or determined
pursuant to the Amended By-Laws of the Corporation, but shall not be more than
twenty-one (21). The Board of Directors shall be divided into three classes,
designated Classes I, II and III, the number of directorships in each of which
Classes shall be as nearly equal in number as possible. At the annual meeting of
stockholders in 1995, Directors of Class I were elected for a term expiring at
the 1996 annual meeting of stockholders, Directors of Class II were elected for
a term expiring at the 1997 annual meeting of stockholders and Directors of
Class III were elected for a term expiring at the 1998 annual meeting of
stockholders. At each succeeding annual meeting of stockholders, the respective
successors of the Directors whose terms are expiring shall be elected for terms
expiring at the annual meeting of stockholders held in the third succeeding
year. Vacancies in the Board of Directors may be filled as provided in the
Amended By-Laws. If the number of Director is changed, any increases or
decreases shall be apportioned among the Classes so as to attain or maintain in
each Class a number of Directors are nearly equal as reasonably possible. The
holders of a majority of the shares then entitled to vote at an election of
Directors may remove any Director or the entire Board of Directors, for or
without cause. Notwithstanding the foregoing, the election, term, removal and
filling of vacancies with respect to Directors elected separately by the holders
of one or more series of Preferred Stock other than the Series A Preferred
Stock, shall not be governed by this Article SIXTH, but rather shall be as
provided for in the Preferred Stock Certificate of Designation applicable to
such series and, with respect to the Series A Preferred Stock, shall be as
provided for in Article Fourth, clause (a) (i) (G) of this Restated Certificate
of Incorporation.
SEVENTH: (a) A Director shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director; provided that this provision shall not eliminate or limit
the liability of a Director (i) for any breach of his duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of the law, (iii)
under Section 174 of the General Corporation Law of the State of Delaware, or
(iv) for any transaction from which the Director derives an improper personal
benefit. If after the filing of this Restated Certificate of Incorporation with
the Secretary of State of the State of Delaware the General Corporation Law of
the State of Delaware is amended to authorize corporate action further
eliminating or limiting 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 general Corporation Law of the State of Delaware, as so
amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing in respect of any act or
omission occurring prior to the time of such repeal or modification.
(b) The Corporation shall indemnify, to the fullest extent now
or hereafter permitted by the General Corporation Law of the State of Delaware,
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was or has agreed to become a Director or officer of the Corporation, or
is or was serving or has agreed to serve at the request of the Corporation as a
Director or officer of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to be taken or omitted in
such capacity, and may to the same extent indemnify any person who was or is a
party or is threatened to be made a party to such an action, suit or proceeding
by reason of the fact that he or she is or was or has agreed to become an
employee or agent of the Corporation, or is or was serving or has agreed to
serve at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding or any appeal
therefrom.
EIGHTH: A Director of the Corporation, in determining what he
reasonably believes to be in the best interests of the Corporation, shall
consider the interests of the Corporation's stockholders and, in his discretion,
may consider any of the following:
(a) The interests of the Corporation's employees,
suppliers, creditors and customers;
(b) The state of the U.S. and global economy;
(c) Community and societal interests; and
(d) The long-term as well as short-term interests of the
Corporation and its stockholders, including the
possibility that these interests may be best served
by the continued independence of the Corporation.
NINTH: Election of Directors at an annual or special meeting of
stockholders need not be by written ballot unless the Amended By-Laws of the
Corporation shall so provide.
TENTH: Cumulative voting for the election of Directors shall not be
permitted.
ELEVENTH: The Corporation reserves the right at any time and from time
to time to amend, alter, change or repeal any provision contained in this
Restated Certificate of Incorporation, and any other provisions authorized by
the laws of the State of Delaware at the time in force may be added or inserted,
in the manner now or hereafter prescribed herein or by applicable law, and all
rights, preferences and privileges of whatsoever nature conferred upon
stockholders, Directors or any other persons whomsoever by and pursuant to this
Restated Certificate of Incorporation in its present form or as hereafter
amended are granted subject to the right reserved in this Article ELEVENTH;
provided however, that any amendment or repeal of Article SEVENTH of this
Restated Certificate of Incorporation shall not adversely affect any right or
protection existing hereunder immediately prior to such amendment or repeal.
IN WITNESS WHEREOF, American Standard Inc. has caused this certificate
to be signed by Richard A. Kalaher its Vice President, General Counsel and
Secretary, and attested by Frederick C. Paine its Assistant Secretary, this 2nd
day of September, 1998.
AMERICAN STANDARD INC.
By: ______________________________
Vice President, General
Counsel and Secretary
ATTEST:
By: ________________________________
Assistant Secretary
STATE OF NEW JERSEY)
)SS:
COUNTY OF MIDDLESEX)
On the 2nd day of September, 1998 before me personally came
Richard A. Kalaher and Frederick C. Paine to me known, who, being by me duly
sworn, did depose and say: That they reside in Mendham, New Jersey and Lebanon,
New Jersey, respectively; that they are Vice President, General Counsel and
Secretary, and Assistant Secretary, respectively, of American Standard Inc., the
corporation described in and which executed the foregoing instrument; and that
they are authorized to sign their names thereto.
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Notary Public