Exhibit No. (3)a
RESTATED
CERTIFICATE OF INCORPORATION
OF
KIMBERLY-CLARK CORPORATION
JUNE 12, 1997
RESTATED CERTIFICATE OF INCORPORATION
OF
KIMBERLY-CLARK CORPORATION
The date of filing of the original certificate of incorporation of this
Corporation with the Secretary of State was June 29, 1928.
ARTICLE I
The name of this Corporation is KIMBERLY-CLARK CORPORATION.
ARTICLE II
Its 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. The name and address of its registered agent is The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801.
ARTICLE III
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. The Corporation shall possess and may exercise all powers and
privileges necessary or convenient to effect such purpose and all powers and
privileges now or hereafter conferred by the laws of Delaware upon
corporations formed under the General Corporation Law of Delaware.
ARTICLE IV
The total number of shares of all classes of capital stock which the
Corporation shall have the authority to issue is one billion, two hundred and
twenty million (1,220,000,000) shares which shall be divided into two classes
as follows:
(a) Twenty million (20,000,000) shares of Preferred Stock without par
value; and
(b) One billion, two hundred million (1,200,000,000) shares of Common
Stock of the par value of One Dollar and Twenty-five Cents ($1.25)
per share.
ARTICLE V
A statement of the voting powers and of the designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof, of each class of stock
of the Corporation, is as follows:
(1) In General
No holders of shares of this Corporation of any class, or of bonds,
debentures or other securities convertible into stock of any class, shall be
entitled as of right to subscribe for, purchase, or receive any stock of any
class whether now or hereafter authorized, or any bonds, debentures or other
securities whether now or hereafter authorized, convertible into stock of any
class, or any stock into which said bonds, debentures or other securities may
be convertible, and all such additional shares of stock, debentures or other
securities, together with the stock into which the same may be converted, may
be issued and disposed of by the Board of Directors to such persons and on
such terms and for such consideration (as far as may be permitted by law) as
the Board of Directors in their absolute discretion may deem advisable.
All persons who shall acquire stock in the Corporation shall acquire the
same subject to the provisions of this Certificate of Incorporation.
(2) Preferred Stock
The Preferred Stock may be issued from time to time in one or more
series, with such distinctive serial designations as may be stated or
expressed in the resolution or resolutions providing for the issue of such
stock adopted from time to time by the Board of Directors; and in such
resolution or resolutions providing for the issue of shares of each particular
series, the Board of Directors is also expressly authorized to fix: the
consideration for which the shares of such series are to be issued; the number
of shares constituting such series; the rate of dividends upon which and the
times at which dividends on shares of such series shall be payable and the
preference, if any, which such dividends shall have relative to dividends on
shares of any other class or classes or any other series of stock of the
Corporation; whether such dividends shall be cumulative or noncumulative, and
if cumulative, the date or dates from which dividends on shares of such series
shall be cumulative; the voting rights, if any, to be provided for shares of
such series; the rights, if any, which the holders of shares of such series
shall have in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation; the rights, if
any, which the holders of shares of such series shall have to convert such
shares into or exchange such shares for shares of any other class or classes
or any other series of stock of the Corporation and the terms and conditions,
including price and rate of exchange, of such conversion or exchange; the
redemption price or prices and other terms of redemption, if any, for shares
of such series; and any and all other preferences and relative, participating,
optional or other special rights and qualifications, limitations or
restrictions thereof pertaining to shares of such series.
(3) Common Stock
(a) Subject to preferences and rights to which holders of stock other
than the Common Stock may have become entitled by resolution or resolutions of
the Board of Directors as hereinbefore provided, such dividends (payable in
cash, stock, or otherwise) as may be determined by the Board of Directors may
be declared and paid out of funds legally available therefor upon the Common
Stock from time to time.
(b) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, the holders of the Common Stock shall be entitled
to share ratably in all assets available for distribution to the shareholders,
subject to preferences and rights to which the holders of stock other than the
Common Stock may have become entitled by resolution or resolutions of the
Board of Directors as hereinbefore provided.
(c) The holders of Common Stock shall be entitled to one vote for each of
the shares held by them of record at the time for determining holders thereof
entitled to vote.
(4) Series A Junior Participating Preferred Stock
Pursuant to authority conferred by this Article V upon the Board of
Directors of the Corporation, the Board of Directors created a series of
2,000,000 shares of Preferred Stock designated as Series A Junior
Participating Preferred Stock by filing an Amended Certificate of Designations
of the Corporation with the Secretary of State of the State of Delaware on
July 12, 1995, and the voting powers, designations, preferences and relative,
participating and other special rights, and the qualifications, limitations
and restrictions thereof, of the Series A Junior Participating Preferred Stock
of the Corporation are as set forth in Annex 1 hereto and are incorporated
herein by reference.
ARTICLE VI
(1) The following corporate action shall require the approval, given at a
stockholders' meeting or by consent in writing, of the holders of at least
two-thirds of the stock issued and outstanding and entitled to vote thereon:
(a) the dissolution of the Corporation, or
(b) the sale, lease, exchange or conveyance of all or substantially all
of the property and assets of the Corporation, or
(c) the adoption of an agreement of merger or consolidation, but no
stockholder approval shall be required for any merger or consolidation which,
under the Laws of Delaware, need not be approved by the stockholders of the
Corporation.
(2) The number of authorized shares of any class or classes of stock may
be increased or decreased by the approval of the holders of a majority of all
of the stock of the Corporation entitled to vote thereon, except to the extent
that, in the resolution or resolutions providing for the issuance of a class
or series of stock, the Board of Directors shall specify that approval of the
holders of one or more classes or series of stock shall be required to
increase or decrease the number of authorized shares of one or more classes or
series of stock.
(3) 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
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders, except for stockholder approvals required by
Section (1) of this Article VI.
(4) Meetings of stockholders of the Corporation may be called only by the
Board of Directors pursuant to a resolution adopted by the affirmative vote of
a majority of the entire Board of Directors, by the Chairman of the Board, or
by the Chief Executive Officer.
ARTICLE VII
The private property of the stockholders of the Corporation shall not be
subject to the payment of corporate debts to any extent whatever.
ARTICLE VIII
(1) Power of the Board of Directors. The business and affairs of the
Corporation shall be managed under the direction of its Board of Directors. In
furtherance, and not in limitation, of the powers conferred by the laws of the
State of Delaware, the Board of Directors is expressly authorized:
(a) to make, alter, amend or repeal the By-Laws of the Corporation;
provided, however, that no By-Laws hereafter adopted shall invalidate any
prior act of the Directors that would have been valid if such By-Laws had not
been adopted;
(b) to determine the rights, powers, duties, rules and procedures that
affect the power of the Board of Directors to direct the business and affairs
of the Corporation, including the power to designate and empower committees of
the Board of Directors, to elect, appoint and empower the officers and other
agents of the Corporation, and to determine the time and place of, and the
notice requirements for, Board meetings, as well as quorum and voting
requirements (except as otherwise provided in this Certificate of
Incorporation) for, and the manner of taking, Board action; and
(c) to exercise all such powers and do all such acts as may be exercised
by the Corporation, subject to the provisions of the laws of the State of
Delaware, this Certificate of Incorporation, and any By-Laws of the
Corporation.
(2) Number of Directors. The number of Directors constituting the entire
Board of Directors shall be not less than 11 nor more than 25. The specific
number of Directors constituting the entire Board of Directors shall be as
authorized from time to time exclusively by the affirmative vote of a majority
of the entire Board of Directors. As used in this Certificate of
Incorporation, the term "entire Board of Directors" means the total authorized
number of Directors that the Corporation would have if there were no
vacancies.
(3) Classified Board. At the 1986 Annual Meeting of Stockholders, the
Directors shall be divided into three classes, with respect to the time that
they severally hold office, as nearly equal in number as possible, with the
initial term of office of the first class of Directors to expire at the 1987
Annual Meeting of Stockholders, the initial term of office of the second class
of Directors to expire at the 1988 Annual Meeting of Stockholders and the
initial term of office of the third class of Directors to expire at the 1989
Annual Meeting of Stockholders. Commencing with the 1987 Annual Meeting of
Stockholders, Directors elected to succeed those Directors whose terms have
thereupon expired shall be elected for a term of office to expire at the third
succeeding Annual Meeting of Stockholders after their election, and upon the
election and qualification of their successors. A person elected as a Director
shall be deemed a Director as of the time of such election. If the number of
Directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain or attain, if possible, an equal number of Directors
in each class, but in no case will a decrease in the number of Directors
shorten the term of any incumbent Director. If such equality is not possible,
the increase or decrease shall be apportioned among the classes in such a way
that the difference in the number of Directors in any two classes shall not
exceed one.
(4) Nominations. Subject to the rights of holders of any series of
Preferred Stock or any other class of capital stock of the Corporation (other
than the Common Stock) then outstanding, nominations for the election of
Directors may be made by the affirmative vote of a majority of the entire
Board of Directors or by any stockholder of record entitled to vote generally
in the election of Directors. However, any stockholder of record entitled to
vote generally in the election of Directors may nominate one or more persons
for election as Directors at a meeting only if a written notice of such
stockholder's intent to make such nomination or nominations, meeting the
requirements described below, has been given, either by personal delivery or
by United States mail, postage prepaid, to the Secretary of the Corporation,
and received by the Corporation, not less than 50 days nor more than 75 days
prior to the meeting; provided, however, that in the event that less than 60
days' notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the 10th day following the
day on which such notice of the date of meeting was mailed or such public
disclosure was made, whichever first occurs. Each such notice to the Secretary
shall set forth: (i) the name and address of record of the stockholder who
intends to make the nomination; (ii) a representation that the stockholder is
a holder of record of shares of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice; (iii) the name, age, business
and residence addresses, and principal occupation or employment of each
nominee; (iv) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (v) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission; and (vi) the consent of each nominee to serve as a Director of the
Corporation if so elected. The Corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee to serve as
a Director of the Corporation. The presiding officer of the meeting may, if
the facts warrant, determine that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
(5) Vacancies. Subject to the rights of the holders of any series of
Preferred Stock or any other class of capital stock of the Corporation (other
than the Common Stock) then outstanding, any vacancies in the Board of
Directors for any reason and any newly created Directorships resulting by
reason of any increase in the number of Directors may, if occurring prior to
the expiration of the term of office of the class in which such vacancy or
increase occurs, be filled only by the Board of Directors, acting by the
affirmative vote of a majority of the remaining Directors then in office,
although less than a quorum, and any Directors so elected shall hold office
until the next election of the class for which such Directors have been
elected and until their successors are elected and qualified.
(6) Removal of Directors. Subject to the rights of the holders of any
series of Preferred Stock or any other class of capital stock of the
Corporation (other than the Common Stock) then outstanding, (i) any Director,
or the entire Board of Directors, may be removed from office at any time prior
to the expiration of his or their term of office, but only for cause and only
by the affirmative vote of the holders of record of outstanding shares
representing at least eighty percent (80%) of the voting power of all of the
shares of capital stock of the Corporation then entitled to vote generally in
the election of Directors, voting together as a single class, and (ii) any
Director may be removed from office by the affirmative vote of a majority of
the entire Board of Directors, at any time prior to the expiration of his term
of office, but only for cause.
ARTICLE IX
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this 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 this
Corporation or of any creditor or stockholder thereof, or on the application
of any receiver or receivers appointed for this 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 this Corporation under the provisions of section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this 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
this Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as a 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 this Corporation, as the
case may be, and also on this Corporation.
ARTICLE X
(1) Certain Definitions. For the purposes of this Article X and the
second proviso of Article XI:
A. "Business Combination" means:
(i) any merger or consolidation of the Corporation or any Subsidiary with
(a) an Interested Stockholder or (b) any other Person (whether or not itself
an Interested Stockholder) which is, or after such merger or consolidation
would be, an Affiliate or Associate of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with, or
proposed by or on behalf of, an Interested Stockholder or an Affiliate or
Associate of an Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate Fair Market Value of not less than one percent
(1%) of the total assets of the Corporation as reported in the consolidated
balance sheet of the Corporation as of the end of the most recent quarter with
respect to which such balance sheet has been prepared; or
(iii) the issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of transactions) of any securities of the Corporation
or any Subsidiary to, or proposed by or on behalf of, an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder in
exchange for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of not less than one percent (1%) of the
total assets of the Corporation as reported in the consolidated balance sheet
of the Corporation as of the end of the most recent quarter with respect to
which such balance sheet has been prepared; or
(iv) the adoption of any plan or proposal for the liquidation or dissolution
of the Corporation, or any spin-off or split-up of any kind of the Corporation
or any Subsidiary, proposed by or on behalf of an Interested Stockholder or an
Affiliate or Associate of an Interested Stockholder; or
(v) any reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any Subsidiary or any other transaction (whether or not with
or into or otherwise involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the percentage of the
outstanding shares of (a) any class of equity securities of the Corporation or
any Subsidiary or (b) any class of securities of the Corporation or any
Subsidiary convertible into equity securities of the Corporation or any
Subsidiary, represented by securities of such class which are directly or
indirectly owned by an Interested Stockholder and all of its Affiliates and
Associates; or
(vi) any agreement, contract or other arrangement providing for any one or
more of the actions specified in clauses (i) through (v) of this Section (1)A.
B. "Affiliate" or "Associate" have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in effect
on January 1, 1986.
C. "Beneficial Owner" has the meaning ascribed to such term in Rule 13d-3
of the General Rules and Regulations under the Exchange Act, as in effect on
January 1, 1986.
D. "Continuing Director" means: (i) any member of the Board of Directors
of the Corporation who (a) is neither the Interested Stockholder involved in
the Business Combination as to which a vote of Continuing Directors is
provided hereunder, nor an Affiliate, Associate, employee, agent, or nominee
of such Interested Stockholder, or the relative of any of the foregoing, and
(b) was a member of the Board of Directors of the Corporation prior to the
time that such Interested Stockholder became an Interested Stockholder; and
(ii) any successor of a Continuing Director described in clause (i) who is
recommended or elected to succeed a Continuing Director by the affirmative
vote of a majority of Continuing Directors then on the Board of Directors of
the Corporation.
E. "Fair Market Value" means: (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not reported on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Exchange Act on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing bid quotation with respect to
a share of such stock during the 30-day period preceding the date in question
on the National Association of Securities Dealers, Inc. Automated Quotations
System or any similar interdealer quotation system then in use, or, if no such
quotation is available, the fair market value on the date in question of a
share of such stock as determined by a majority of the Continuing Directors in
good faith; and (ii) in the case of property other than cash or stock, the
fair market value of such property on the date in question as determined by a
majority of the Continuing Directors in good faith.
F. "Interested Stockholder" means any Person (other than the Corporation
or any Subsidiary, any employee benefit plan maintained by the Company or any
Subsidiary or any trustee or fiduciary with respect to any such plan when
acting in such capacity) who or which:
(i) is, or was at any time within the two-year period immediately prior
to the date in question, the Beneficial Owner of five percent (5%) or more of
the voting power of the then outstanding Voting Stock of the Corporation; or
(ii) is an assignee of, or has otherwise succeeded to, any shares of
Voting Stock of the Corporation of which an Interested Stockholder was the
Beneficial Owner at any time within the two-year period immediately prior to
the date in question, if such assignment or succession shall have occurred in
the course of a transaction, or series of transactions, not involving a public
offering within the meaning of the Securities Act of 1933, as amended.
For the purpose of determining whether a Person is an Interested
Stockholder, the outstanding Voting Stock of the Corporation shall include
unissued shares of Voting Stock of the Corporation of which the Interested
Stockholder is the Beneficial Owner but shall not include any other shares of
Voting Stock of the Corporation which may be issuable pursuant to any
agreement, arrangement or understanding, or upon the exercise of conversion
rights, warrants or options, or otherwise, to any Person who is not the
Interested Stockholder.
G. A "Person" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as well as
any syndicate or group deemed to be a person under Section 14(d)(2) of the
Exchange Act.
H. "Subsidiary" means any corporation of which the Corporation owns,
directly or indirectly, (i) a majority of the outstanding shares of equity
securities of such corporation, or (ii) shares having a majority of the voting
power represented by all of the outstanding shares of Voting Stock of such
corporation. For the purpose of determining whether a corporation is a
Subsidiary, the outstanding Voting Stock and shares of equity securities
thereof shall include unissued shares of which the Corporation is the
Beneficial Owner but shall not include any other shares of Voting Stock of the
corporation which may be issuable pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights, warrants or options,
or otherwise, to any Person who is not the corporation.
I. "Voting Stock" means outstanding shares of capital stock of the
relevant corporation entitled to vote generally in the election of Directors.
(2) Higher Vote for Business Combinations. In addition to any affirmative
vote required by law or by this Certificate of Incorporation, and except as
otherwise expressly provided in Section (3) of this Article, any Business
Combination shall require the affirmative vote of the holders of record of
outstanding shares representing at least eighty percent (80%) of the voting
power of the then outstanding shares of the Voting Stock of the Corporation,
voting together as a single class, voting at a stockholders' meeting and not
by consent in writing. Such affirmative vote shall be required notwithstanding
the fact that no vote may be required, or that a lesser percentage may be
specified, by law or in any agreement with any national securities exchange or
otherwise.
(3) When Higher Vote Is Not Required. The provisions of Section (2) of
this Article shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative vote, if
any, of the stockholders as is required by law and any other provision of this
Certificate of Incorporation, if the conditions specified in either of the
following paragraphs A and B are met.
A. Approval by Continuing Directors. The Business Combination shall have
been approved by the affirmative vote of a majority of the Continuing
Directors, even if the Continuing Directors do not constitute a quorum of the
entire Board of Directors.
B. Form of Consideration, Price and Procedure Requirements. All of the
following conditions shall have been met:
(i) With respect to each share of each class of Voting Stock of the
Corporation (including Common Stock), the holder thereof shall be entitled to
receive on or before the date of the consummation of the Business Combination
(the "Consummation Date"), consideration, in the form specified in subsection
(3)(B)(ii) hereof, with an aggregate Fair Market Value as of the Consummation
Date at least equal to the highest of the following:
(a) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the Interested
Stockholder to which the Business Combination relates, or by any Affiliate or
Associate of such Interested Stockholder, for any shares of such class of
Voting Stock acquired by it (1) within the two-year period immediately prior
to the first public announcement of the proposal of the Business Combination
(the "Announcement Date") or (2) in the transaction in which it became an
Interested Stockholder, whichever is higher;
(b) the Fair Market Value per share of such class of Voting Stock of the
Corporation on the Announcement Date; and
(c) the highest preferential amount per share, if any, to which the
holders of shares of such class of Voting Stock of the Corporation are
entitled in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation.
(ii) The consideration to be received by holders of a particular class of
outstanding Voting Stock of the Corporation (including Common Stock) as
described in subsection (3)(B)(i) hereof shall be in cash or if the
consideration previously paid by or on behalf of the Interested Stockholder in
connection with its acquisition of beneficial ownership of shares of such
class of Voting Stock consisted in whole or in part of consideration other
than cash, then in the same form as such consideration. If such payment for
shares of any class of Voting Stock of the Corporation has been made in
varying forms of consideration, the form of consideration for such class of
Voting Stock shall be either cash or the form used to acquire the beneficial
ownership of the largest number of shares of such class of Voting Stock
previously acquired by the Interested Stockholder.
(iii) After such Interested Stockholder has become an Interested
Stockholder and prior to the Consummation Date: (a) except as approved by the
affirmative vote of a majority of the Continuing Directors, there shall have
been no failure to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on the outstanding Preferred
Stock of the Corporation, if any; (b) there shall have been (1) no reduction
in the annual rate of dividends paid on the Common Stock of the Corporation
(except as necessary to reflect any subdivision of the Common Stock), except
as approved by the affirmative vote of a majority of the Continuing Directors,
and (2) an increase in such annual rate of dividends as necessary to reflect
any reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect of reducing the
number of outstanding shares of Common Stock, unless the failure so to
increase such annual rate is approved by the affirmative vote of a majority of
the Continuing Directors; and (c) such Interested Stockholder shall not have
become the Beneficial Owner of any additional shares of Voting Stock of the
Corporation except as part of the transaction which results in such Interested
Stockholder becoming an Interested Stockholder.
(iv) After such Interested Stockholder has become an Interested
Stockholder, neither such Interested Stockholder nor any Affiliate or
Associate thereof shall have received the benefit, directly or indirectly
(except proportionately as a stockholder of the Corporation), of any loans,
advances, guarantees, pledges or other financial assistance or any tax credits
or other tax advantages provided by the Corporation.
(v) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Exchange Act and the
General Rules and Regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to the stockholders
of the Corporation at least 45 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required to
be mailed pursuant to such Act or subsequent provisions thereof).
(4) Powers of Continuing Directors. A majority of the Continuing
Directors shall have the power and duty to determine, on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article, including, without limitation, (A)
whether a Person is an Interested Stockholder, (B) the number of shares of
Voting Stock of the Corporation beneficially owned by any Person, (C) whether
a Person is an Affiliate or Associate of another, (D) whether the requirements
of paragraph B of Section (3) have been met with respect to any Business
Combination, and (E) whether the assets which are the subject of any Business
Combination have, or the consideration to be received for the issuance or
transfer of securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of not less than one percent
(1%) of the total assets of the Corporation as reported in the consolidated
balance sheet of the Corporation as of the end of the most recent quarter with
respect to which such balance sheet has been prepared; and the good faith
determination of a majority of the Continuing Directors on such matters shall
be conclusive and binding for all the purposes of this Article.
(5) No Effect on Fiduciary Obligations.
A. Nothing contained in this Article shall be construed to relieve the
members of the Board of Directors or an Interested Stockholder from any
fiduciary obligation imposed by law.
B. The fact that any Business Combination complies with the provisions of
Section (3) of this Article shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board of Directors, or any member
thereof, to approve such Business Combination or recommend its adoption or
approval to the stockholders of the Corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of or actions and responses
taken with respect to such Business Combination.
(6) Effect on Other Provisions. The provisions of this Article X are in
addition to, and shall not alter or amend, the provisions of Section (1) of
Article VI of this Certificate of Incorporation.
ARTICLE XI
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by law, and all rights and powers conferred herein on
stockholders, directors and officers are subject to this reserved power;
provided that, notwithstanding the fact that a lesser percentage may be
specified by the General Corporation Law of Delaware, the affirmative vote of
the holders of record of outstanding shares representing at least eighty
percent (80%) of the voting power of all of the shares of capital stock of the
Corporation then entitled to vote generally in the election of Directors,
voting together as a single class, shall be required to amend, alter, change,
repeal, or adopt any provision or provisions inconsistent with, Section (2) of
Article V, Sections (3) and (4) of Article VI, and Articles VIII and XI
(except for the second proviso of this Article XI) of this Certificate of
Incorporation unless such amendment, alteration, change, repeal or adoption of
any inconsistent provision or provisions is declared advisable by the Board of
Directors by the affirmative vote of at least seventy-five percent (75%) of
the entire Board of Directors; and provided further that, notwithstanding the
fact that a lesser percentage may be specified by the General Corporation Law
of Delaware, the affirmative vote of the holders of record of outstanding
shares representing at least eighty percent (80%) of the voting power of all
the outstanding Voting Stock of the Corporation, voting together as a single
class, shall be required to amend, alter or repeal, or adopt any provision or
provisions inconsistent with, any provision of Article X or this proviso of
this Article XI, unless such amendment, alteration, repeal, or adoption of any
inconsistent provision or provisions is declared advisable by the Board of
Directors by the affirmative vote of at least seventy-five percent (75%) of
the entire Board of Directors and by a majority of the Continuing Directors.
ARTICLE XII
No Director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
Director as a Director. Notwithstanding the foregoing, a Director shall be
liable to the extent provided by applicable law (i) for breach of the
Director's 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 law, (iii) pursuant to Section 174 of the General
Corporation Law of the State of Delaware or (iv) for any transaction from
which the Director derived an improper personal benefit. No amendment to or
repeal of these provisions shall apply to or have any effect on the liability
or alleged liability of any Director of the Corporation for or with respect to
any acts or omissions of such Director occurring prior to such amendment or
repeal.
ANNEX 1
AMENDED
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
KIMBERLY-CLARK CORPORATION
(PURSUANT TO SECTION 151 OF THE
DELAWARE GENERAL CORPORATION LAW)
Kimberly-Clark Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies that (i) a Certificate of Designations for
the Series A Participating Preferred Stock of the Corporation (the "Preferred
Stock") was filed with the Secretary of State of the State of Delaware on July
1, 1988, (ii) no shares of the Preferred Stock have been issued or are
outstanding, and (iii) the Board of Directors of the Corporation adopted the
following resolution amending in their entireties the voting powers,
preferences and relative, participating, optional and other special rights of
the Preferred Stock as the following resolution was adopted by the Board of
Directors of the Corporation as required by Section 151 of the General
Corporation Law at a meeting duly called and held on June 8, 1995:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the
Certificate of Incorporation, the Board of Directors hereby amends the
provisions of the Series A Junior Participating Preferred Stock of the
Corporation to state the designation and number of shares, and to fix the
relative rights, preferences, and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 2,000,000. Such number of shares may be increased or decreased
by resolution of the Board of Directors; provided, that no decrease shall
reduce the number of shares of Series A Preferred Stock to a number less than
the number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of Common Stock, par
value $1.25 per share (the "Common Stock"), of the Corporation, and of any
other junior stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the first day of March, June, September
and December in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions, other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (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 fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of 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.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section
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 subsequent Quarterly Dividend Payment Date, a dividend of $1 per share on
the Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A 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
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board
of Directors may fix a record date for the determination of holders of shares
of Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60
days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which holders
of shares of Series A 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 the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred Stock and the holders of
shares of Common Stock and any other capital stock of the Corporation having
general voting rights shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law, holders
of Series A 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 Common Stock as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of
any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of
any such junior 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 A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a parity with
the Series A Preferred 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 respective annual dividend rates and other relative
rights and preferences of the respective series and classes, shall determine
in good faith will result in fair and equitable treatment among the respective
series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance set
forth herein, in the Certificate of Incorporation, or in any other Certificate
of Designations creating a series of Preferred Stock or any similar stock or
as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made
(1) to the holders of shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series A Preferred
Stock unless, prior thereto, the holders of shares of Series A Preferred Stock
shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of shares of Common
Stock, or (2) to the holders of shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation, dissolution
or winding up. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which holders of shares
of Series A Preferred Stock were entitled immediately prior to such event
under the proviso in clause (1) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
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.
Section 7. 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 other stock
or securities, cash and/or any other property, then in any such case each
share of Series A Preferred Stock shall at the same time be similarly
exchanged or changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount of
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 the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A Preferred Stock
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 of shares of Common
Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall
not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to all series
of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Series A Preferred
Stock, voting together as a single class.
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of
the Corporation by its Vice President and Secretary this 12th day of July,
1995.
/s/ DONALD M. CROOK
----------------------
Name: Donald M. Crook
Title: Vice President and Secretary
CERTIFICATE OF
INCREASE TO THE AMENDED CERTIFICATE OF DESIGNATIONS OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
KIMBERLY-CLARK CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
Kimberly-Clark Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies that (i) an Amended Certificate of
Designations ("Certificate of Designations") for the Series A Junior
Participating Preferred Stock of the Corporation (the "Series A Preferred
Stock") was filed with the Secretary of State of the State of Delaware on July
12, 1995, and (ii) the Board of Directors of the Corporation (the "Board of
Directors") has adopted the following resolution increasing the number of
shares to which the Certificate of Designations applies in accordance with the
provisions of Section 151(g) of the General Corporation Law of the State of
Delaware:
RESOLVED, that pursuant to the authority granted to and vested in the Board of
Directors of this Corporation by Article V of its Restated Certificate of
Incorporation, and in accordance with the provisions of Section 151(g) of the
General Corporation Law of the State of Delaware, the Board of Directors of
the Corporation hereby authorizes and directs that the number of shares of
Preferred Stock, without par value, of the Corporation authorized and
designated as Series A Junior Participating Preferred Stock ("Series A
Preferred Stock") be increased from 2,000,000 shares to 6,000,000 shares.
* * *
IN WITNESS WHEREOF, this Certificate of Increase is executed on behalf of
the Corporation by its Senior Vice President - Law and Government Affairs and
attested by its Vice President and Secretary this 18th day of February, 2000.
KIMBERLY-CLARK CORPORATION
By: /s/ O. George Everbach
------------------------------------------
Name: O. George Everbach
Title: Senior Vice President - Law
and Government Affairs
Attest:
By: /s/ Ronald D. Mc Cray
-------------------------------------------
Name: Ronald D. Mc Cray
Title: Vice President and Secretary