EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
CHURCH & DWIGHT CO., INC.
CHURCH & DWIGHT CO., 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 CHURCH & DWIGHT CO., INC. The date of
filing its original Certificate of Incorporation with the Secretary of State was
December 14, 1925.
2. This Restated Certificate of Incorporation and subsequent amendments
have been duly proposed by the board of directors of this Corporation and
adopted by its stockholders in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware.
3. This Restated Certificate of Incorporation restates and integrates and
further amends the provisions of this Corporation's Certificate of Incorporation
as heretofore amended or supplemented.
4. The text of the Certificate of Incorporation as heretofore amended or
supplemented is hereby restated and integrated and further amended to read as
herein set forth in full:
FIRST: The name of the corporation is:
CHURCH & DWIGHT CO., INC.
SECOND: The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted
is as follows:
(a) To manufacture, buy, sell, import, export, deal in and use chemicals,
grocery products, food products, drugs, cleaners, detergents, water softeners,
disinfectants, and consumer or industrial products of every nature and
description; and
(b) To conduct any lawful business; to exercise any lawful purpose or
power; and to engage in any lawful act or activity for which a corporation may
be organized under the General Corporation Law of Delaware.
The foregoing clause of this Article THIRD shall be construed as purposes,
objects and powers. The enumeration of specified purposes, objects and powers
shall not be construed to exclude, limit or restrict in any manner, any power,
right or privilege given to the Corporation by law, or to limit or restrict the
meaning of the general terms or the general powers of the Corporation, nor shall
the expression of one thing be deemed to exclude another, although it be of like
nature, not expressed, it being the intent of this Article THIRD that this
Corporation shall have and may exercise all the powers now or which hereafter
may be conferred by the laws of the State of Delaware upon corporations formed
under the General Corporation Law. Nothing herein contained shall be construed
as giving the Corporation any rights, powers or privileges not permitted to it
by law, but the occurrence within any of the foregoing clauses of any purpose,
power or object prohibited by the laws of the State of Delaware or any other
state, or of any territory, dependency or foreign country, in which the
Corporation may carry on business, shall not invalidate any other purpose, power
or object not so prohibited, by reason of its contiguity or apparent association
therewith.
FOURTH: (a) The total number of shares of capital stock which the
Corporation shall have authority to issue is 102,500,000 shares of two classes.
100,000,000 shares shall be Common Stock at $1.00 par value per share, and
2,500,000 shares shall be Preferred Stock, at $1.00 par value per share.
(b) A holder of Common Stock shall, be entitled to one (1) vote on each
matter submitted to a vote at a meeting of stockholders for each share of Common
Stock held of record by such holder as of the record date for such meeting.
(c) The class of Preferred Stock may be divided into and issued in one or
more series as follows:
Shares of Preferred Stock may be issued from time to time in one or
more series, the shares of each series to have such voting powers, fully or
limited, or no voting powers, and such designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed herein and in a resolution or resolutions providing for the issue
of such series adopted by a two-thirds vote of the entire Board of
Directors of the Corporation.
The Board of Directors of the Corporation is hereby expressly
authorized, by a two-thirds vote of the entire Board, subject to the
limitations provided by law, to establish and designate series of the
Preferred Stock, to fix the number of shares constituting each series, and
to fix the designations and the relative powers, rights and preferences,
and the qualifications, limitations, or restrictions thereof, of the shares
of each series and the variations in the relative powers, rights,
preferences and limitations as between series, and to increase and to
decrease the number of shares constituting each series.
The authority of the Board of Directors of the Corporation with
respect to each series shall include, but shall not be limited to, the
authority to determine the following:
(1) The designation of such series;
(2) The number of shares initially constituting such series;
(3) The increase, and the decrease to a number not less than the
number of the outstanding shares of such series, of the number of
shares constituting such series theretofore fixed;
(4) The rate or rates and the times and conditions under which
dividends on the shares of such series shall be paid, and (x) if such
dividends are payable in preference to, or in relation to, the
dividends payable on any other class or classes of stock, the terms
and conditions of such payment, and (y) if such dividends shall be
cumulative, the date or dates from and after which they shall
accumulate;
(5) Whether or not the shares or such series shall be redeemable,
and, if such shares shall be redeemable, the designations,
preferences, and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof, and
the terms and conditions of such redemption, including, but not
limited to, the date or dates upon or after which such shares shall be
redeemable and the amount period share which shall be payable upon
such redemption, which amount may vary under different conditions and
at different redemption dates;
(6) The amount payable on the shares in the event of the
dissolution of, or upon any distribution of the assets of, the
Corporation;
(7) Whether or not the shares of such series may be convertible
into, or exchangeable for, shares of any other class or series and the
price or prices and the rates of exchange and the terms of any
adjustments to be made in connection with such conversion or exchange;
(8) Whether or not the shares of such series shall have voting
rights, in addition to the voting rights provided by law, and, if such
shares shall have such voting rights, the terms and conditions
thereof, including, but not limited to, the right of the holders of
such shares to vote as a separate class either alone or with the
holders of shares of one or more other series of Preferred Stock and
the right to have more (or less) than one vote per share;
(9) Whether or not a purchase fund shall be provided for the
shares of such series, and if such a purchase fund shall be provided,
the terms and conditions thereof;
(10) Whether or not a sinking fund shall be provided for the
redemption of the shares of such series, and if such a sinking fund
shall be provided, the terms and conditions thereof; and
(11) Any other powers, preferences and relative, participating,
optional or other special rights and the qualifications, limitations
or restrictions thereof, which shall not be inconsistent with the
provisions of this Article FOURTH or the limitations provided by law.
(d) No stockholder shall have any preemptive right to subscribe to any
shares of stock of the Corporation of any class or series thereof, now or
hereafter authorized, or any security convertible into such stock.
(e) Every reference in this Certificate of Incorporation or in the
By-Laws to a majority or other proportion of stock shall refer to such majority
or other proportion of the votes of such stock.
(f) Pursuant to authority conferred by this Article Fourth upon the
Board of Directors of the Corporation, the Board of Directors created a series
of Preferred Stock designated as Junior Participating Cumulative Preferred
Stock, which consists of 225,000 shares with a par value of $1.00 per share, by
filing a Certificate of Designation of the Corporation with the Secretary of
State of the State of Delaware on April 28, 1989, and the voting powers,
designations, preferences and relative, participating and other special rights,
and the qualifications, limitations and restrictions thereof, of the Junior
Participating Cumulative Preferred Stock of the Corporation are as set forth in
Exhibit A hereto and are incorporated herein by reference.
FIFTH: (a) The number of directors of the Corporation shall not be less
than three nor more than fifteen, the exact number of directors to be determined
from time to time by resolution adopted by affirmative vote of a majority of the
entire Board of Directors. Such exact number shall be 10 until otherwise
determined by resolution adopted by affirmative vote of a majority of the entire
Board of Directors. As used in this Certificate of Incorporation, the term
"entire Board" means the total number of directors which the Corporation would
have if there were no vacancies.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number (as determined by the Board of Directors) as the then total
number of directors constituting the entire Board permits, with the term of
office of one class expiring each year. At the annual meeting of stockholders in
1980, directors of the first class shall be elected to hold office for a term
expiring at the next succeeding annual meeting, directors of the second class
shall be elected to hold office for a term expiring at the second succeeding
annual meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. At each annual
meeting of stockholders after 1980, the successors to the class of directors
whose terms shall then expire shall be elected to hold office for a term
expiring at the third succeeding annual meeting.
(c ) Any director may be removed from office, but only for cause at a
meeting of stockholders, by the affirmative vote of the holders of at least a
majority of the outstanding shares of capital stock of the Corporation entitled
to vote for the election of directors. If any director shall be removed by the
stockholders pursuant to this paragraph, the stockholders of the Corporation
may, at the meeting at which such removal is effected, fill the resulting
vacancy by the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote for the
election of directors. If the vacancy is not filled by the stockholders, the
vacancy shall be filled by the affirmative vote of two-thirds of the directors
then in office, although less than a quorum. Any newly created directorships
resulting from any increase in the number of directors may be filled by the
affirmative vote of two-thirds of the directors then in office, although less
than a quorum. Any directors chosen pursuant to the provisions of this paragraph
shall hold office until the next election of the class for which such directors
shall have been chosen and until their successors shall be elected and
qualified.
(d) The number of directors is changed pursuant to paragraph (a) of this
Article FIFTH, any newly created directorships or any decrease in directorships
shall be so apportioned among the classes as to make all classes as nearly equal
in number (as determined by the Board of Directors) as may be. No decrease in
the number of directors shall shorten the term of any incumbent director.
(e) Notwithstanding any of the foregoing provisions of this Article FIFTH,
each director shall hold office until his successor shall have been duly elected
and qualified, unless he shall resign, become disqualified or disabled, or be
removed in accordance with this Article.
SIXTH: In furtherance, and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
(a) To make, alter or repeal the By-Laws of the Corporation;
(b) To set apart out of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish such
reserve.
SEVENTH: (a) A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (1) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law (3) under Section 174 of the Delaware General
Corporation Law, or (4) for any transaction from which the director derived an
improper personal benefit.
(b)(1) Right of Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(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, officer,
employee or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action or inaction in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent permitted by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in this paragraph (b), the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this paragraph (b)
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition as authorized by the Board of Directors; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director, officer, employee or agent of the Company
in his or her capacity as such in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director, officer, employee or agent of the
Company, to repay all amounts so advanced if it shall ultimately be determined
that such director, officer, employee or agent of the Company is not entitled to
be indemnified under this Section or otherwise.
(2) Right of Claimant to Bring Suit. If a claim under subparagraph (b)(1)
is not paid in full by the Corporation within 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 in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standard of conduct which make it permissible under the
Delaware General Corporation Law for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
(3) Non-Exclusivity of Rights. The right to indemnification and the Payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this paragraph (b) shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, By-Law, agreement, vote of
stockholders or disinterested directors or otherwise.
(4) Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, 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 such person against such expense, liability or
loss under the Delaware General Corporation Law.
EIGHTH: (a) The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
(b) Notwithstanding any other provisions of this Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Certificate of
Incorporation or the By-Laws of the Corporation), the affirmative vote of the
holders of two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors shall be
required to amend, alter, change or repeal Article FIFTH, EIGHTH and NINTH of
this Certificate of Incorporation.
(c) No action by the stockholders of the Corporation may be taken otherwise
than at the annual or special meeting of stockholders.
NINTH: (a) Except as otherwise provided in paragraph (b) of this Article
NINTH, the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in elections of directors shall be required at a meeting of
stockholders (held in accordance with the provisions of this Certificate of
Incorporation and the By-Laws of the Corporation) to adopt, authorize, or
approve any of the following actions:
(1) A merger or consolidation by the Corporation with any
corporation, other than a merger or consolidation with a wholly-owned,
direct or indirect subsidiary of the Corporation in a transaction
which this Corporation is the surviving corporation and in which all
stockholders of this Corporation retain the same proportional voting
and equity interests in the Corporation which they had prior to the
consummation of the transaction; and
(2) Any sale, lease, exchange or other disposition, other than in
the ordinary course of business (in a single transaction or in a
related series of transactions) to any other corporation, person or
other entity of any substantial assets of the Corporation, or the
voting of any shares of any direct or indirect subsidiary, by proxy,
written consent or otherwise, to permit such sale, lease, or other
disposition by any direct or indirect subsidiary of the Corporation.
For purposes of this Article NINTH, "substantial assets" shall mean
assets in excess of twenty-five percent (25%) of the value of the
gross assets of the Corporation on a consolidated basis, at the time
of the transaction to which this definition relates, as determined by
the Board of Directors.
(b) If any action referred to above in paragraph (a) has first been
approved by resolution adopted by not less than two-thirds of the directors then
in office, such action may be adopted, authorized, or approved by a majority of
the votes cast by holders of shares of the Corporation entitled to vote thereon.
TENTH: (a) Special meetings of stockholders may be called by a majority of
the directors then in office or by the Chief Executive Officer at any time for
any purpose or purposes.
(b) To be properly brought before an annual meeting of stockholders,
nominations of persons for election to the Board of Directors of the Corporation
and the proposal of business to be considered by the stockholders at an annual
meeting of stockholders must be either (i) specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (ii) otherwise properly
brought before the annual meeting by or at the direction of the President, the
Chairman of the Board of Directors or by vote of a majority of the full Board or
Directors, or (iii) otherwise brought before the annual meeting by any
stockholder of the Corporation who is a stockholder of record on the date of the
giving of the notice, who is entitled to vote at the meeting and who complied
with the notice procedures set forth in this Article TENTH.
(c) For nominations or other business to be properly brought before an
annual meeting by a stockholder under this Article TENTH, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation
and such business must be a proper subject for stockholder action under the
Delaware General Corporation Law. To be timely, a stockholder's notice must be
delivered to the Secretary at the principal executive offices of the Corporation
not less than 120 days (unless such day is not a business day, in which case the
immediately preceding business day) prior to the first anniversary of the date
of the Corporation's proxy statement released to stockholders in connection with
the previous year's annual meeting; provided, however, that if the date of the
annual meeting is advanced by more than 40 days or delayed by more than 40 days
from such anniversary date, then notice by the stockholder to be timely must be
delivered not later than the close of business on the later of the 120th day
prior to the annual meeting or the 10th day following the day on which the date
of the meeting is publicly announced. In no event shall the public announcement
of a postponement or adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. Such stockholder's
notice must set forth (i) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (ii) as
to any other business that the stockholder proposes to bring before the meeting,
a brief description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial owner, if any,
on whose behalf the proposal is made; and (iii) as to the stockholder giving the
notice and the beneficial owners, if any, on whose behalf the nomination or
proposal is made (A) the name and address of such stockholder, as they appear on
the Corporation's books, and of such beneficial owner, (B) the number of shares
of the Corporation which are owned (beneficially or of record) by such
stockholder and such beneficial owner, (C) a description of all arrangements or
understandings between such stockholder and such beneficial owner and any other
person or persons (including their names) in connection with the proposal of
such business by such stockholder and any material interest of such stockholder
and of such beneficial owner in such business, and (D) a representation that
such stockholder or its agent or designee intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting.
Notwithstanding anything in this Article TENTH to the contrary, if the
number of directors to be elected to the Board of Directors of the Corporation
is increased and there is no public announcement specifying the size of the
increased Board of Directors made by the Corporation at least 120 days prior to
the first anniversary of the preceding year's annual meeting, then a
stockholder's notice required by this Article TENTH will also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it is delivered to the Secretary at the principal executive offices
of the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation.
(d) Only such business may be conducted at a special meeting of
stockholders as has been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (i)
by or at the direction of the Board of Directors or (ii) by any stockholder of
the Corporation who is a stockholder of record at the time of giving the notice
required by this Article TENTH, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Article TENTH. Nominations
by stockholders of persons for election to the Board of Directors may be made at
such a special meeting of stockholders if the stockholder's notice required by
this Article TENTH is delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the later of
the 120th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting.
(e) Only those persons who are nominated in accordance with the procedures
set forth in this Article TENTH will be eligible for election as directors at
any meeting of stockholders. Only business brought before the meeting in
accordance with the procedures set forth in this Article TENTH may be conducted
at a meeting of stockholders. The Chairman of the meeting has the power and duty
to determine whether a nomination or any business proposed to be brought before
the meeting was made in accordance with the procedures set forth in this Article
TENTH and, if any proposed nomination or business is not in compliance with this
Article TENTH, to declare that such defective proposal shall be disregarded.
(f) For purposes of this Article TENTH, "public announcement" shall include
disclosure in a press release reported by the Dow Jones News Service, Associated
Press, Business Wire, PR Newswire or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to the Exchange Act.
(g) Notwithstanding the foregoing provisions of this Article TENTH, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Article TENTH. Nothing in this Article TENTH shall be deemed to
remove any obligation of stockholders to comply with the requirements of Rule
14a-8 under the Exchange Act with respect to proposals requested to be included
in the Corporation's proxy statement pursuant to said Rule 14a-8.
IN WITNESS WHEREOF, CHURCH & DWIGHT CO., INC. has caused its corporate seal
to be hereto affixed and this Restated Certificate of Incorporation to be signed
by its Chairman of the Board and attested by its Acting General Counsel &
Secretary this 6th day of June, 2003. CHURCH & DWIGHT CO., INC.
By: /s/ ROBERT A. DAVIES, III
-------------------------
Robert A. Davies, III
Chairman of the Board
ATTEST:
By: /s/ ANDREW C. FORSELL
---------------------
Andrew C. Forsell
Acting General Counsel & Secretary