EXHIBIT 3.1
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Filed May 18, 1987 at 3:00 p.m.
Delaware Secretary of State
RESTATED CERTIFICATE OF INCORPORATION
OF
NEW NEWELL CO.
NEW NEWELL CO., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is NEW NEWELLCO. (the
"Corporation"). The date of filing the Corporation's original
Certificate of Incorporation with the Secretary of State of the State
of Delaware was February 23, 1987.
2. The text of the Certificate of Incorporation of the
Corporation as amended or supplemented heretofore and herewith is
hereby restated to read as herein set forth in full:
FIRST: the name of the Corporation is NEW NEWELL CO.
SECOND: The address of the Corporation's registered office in
the State of Delaware is 229 South State Street in the City of Dover,
County of Kent. The name of the Corporation's registered agent at
such address is United States Corporation Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
FOURTH: The total number of shares which the Corporation shall
have authority to issue is 56,000,000, consisting of 50,000,000 shares
of Common Stock of the par value of $1.00 per share and 6,000,000
shares of Preferred Stock, consisting of 10,000 shares without par
value and 5,990,000 shares of the par value of $1.00 per share. The
designations and the powers, preferences and rights, and the
qualifications, limitations and restrictions thereof, of each of the
classes of stock of the Corporation are as follows:
A. Common Stock. Each holder of Common Stock shall be entitled
to one (1) vote for each such share of Common Stock.
B. Preferred Stock. The Preferred Stock shall be issued from
time to time in one or more series with such distinctive serial
designations and (a) may have such voting powers, full or limited, or
may be without voting powers; (b) may be subject to redemption at such
time or times and at such price or prices; (c) may be entitled to
receive dividends (which may be cumulative or noncumulative) at such
rate or rates, on such conditions, and at such times, and payable in
preference to, or in such relation to, the dividends payable on any
other class or classes of stock; (d) may have such rights upon the
dissolution of, or upon any distribution of the assets of, the
Corporation; (e) may be made convertible into, or exchangeable for,
shares of any other class or classes or of any other series of the
same or any other class or classes of stock of the Corporation, at
such price or prices or at such rates of exchange and with such
adjustments; and (f) shall have such other relative, participating,
optional or other special rights, qualifications, limitations or
restrictions thereof, all as shall hereafter be stated and expressed
in the resolution or resolutions providing for the issue of such
Preferred Stock from time to time adopted by the Board of Directors
pursuant to authority so to do which is hereby expressly vested in the
Board.
C. Increase in Authorized Shares. The number of authorized
shares of any class of stock of the Corporation may be increased by
the affirmative vote of a majority of the stock of the Corporation
entitled to vote thereon, without a vote by class or by series.
FIFTH: The name and mailing address of the incorporator of the
Corporation is as follows:
Name Address
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Lori E. Simon Schiff Hardin & Waite
7200 Sears Tower
Chicago, Illinois 60606
SIXTH: A. The Board of Directors shall be divided into three
classes (which at all times shall be as nearly equal in number as
possible). The initial term of office of the first class ("Class I")
shall expire at the 1988 annual meeting of stockholders, the initial
term of office of the second class ("Class II") shall expire at the
1989 annual meeting of stockholders, and the initial term of office of
the third class ("Class III") shall expire at the 1990 annual meeting
of stockholders. At each annual meeting of stockholders following
such initial classification, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after
their election. The foregoing notwithstanding, each director shall
serve until his successor shall have been duly elected and qualified,
unless he shall cease to serve by reason of death, resignation or
other cause. If the number of directors is changed, any increase or
decease shall be apportioned among the classes so as to maintain the
number of directors in each class as nearly equal as possible, but in
no case shall a decrease in the number of directors shorten the term
of any incumbent director.
B. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors, and the Board of
Directors shall determine the rights, powers, duties, rules and
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procedures that shall affect the power of the Board of Directors to
manage and direct the business and affairs of the Corporation.
C. Newly created directorships resulting from any increase in
the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation or other cause may be
filled only by a majority vote of the directors then in office, though
less than a quorum, or by a sole remaining director. Any director so
chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which he has
been elected expires.
D. The provisions set forth in paragraphs A and C of this
Article SIXTH are subject to the rights of the holders of any class or
series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional directors under
specified circumstances as set forth in this Restated Certificate of
Incorporation or in a resolution providing for the issuance of such
stock adopted by the Board of Directors pursuant to authority vested
in it by this Restated Certificate of Incorporation.
E. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation,
this Article SIXTH may not be amended, altered or repealed in any
respect, nor may any provision inconsistent with this Article SIXTH be
adopted, unless such action is approved by the affirmative vote of the
holders of at least 75% of the total voting power of all shares of
stock of the Corporation entitled to vote in the election of directors
generally, considered for purposes of this Article SIXTH as one class.
SEVENTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized
to make, alter or repeal the By-Laws of the Corporation.
EIGHTH: A. Subject to the rights of holders of any class or
series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional directors under
specified circumstances as set forth in this Restated Certificate of
Incorporation or in a resolution providing for the issuance of such
stock adopted by the Board of Directors pursuant to authority vested
in it by this Restated Certificate of Incorporation, nominations for
the election of directors may be made by the Board of Directors or by
a committee appointed by the Board of Directors, or by any stockholder
entitled to vote in the election of directors generally provided that
such stockholder has given actual written notice of such stockholders'
intent to make such nomination or nominations to the Secretary of the
Corporation not later than (1) with respect to an election to be held
at an annual meeting of stockholders, 90 days prior to the anniversary
date of the immediately preceding annual meeting of stockholders, and
(2) with respect to an election to be held at a special meeting of
stockholders for the election of directors, the close of business on
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the seventh day following (a) the date on which notice of such meeting
is first given to stockholders or (b) the date on which public
disclosure of such meeting is made, whichever is earlier.
B. Each such notice shall set forth: (1) the name and address
of the stockholder who intends to make the nomination and of the
person or persons to be nominated; (2) a representation that the
stockholder is a holder of record of stock 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;
(3) a description of all arrangements or understandings involving any
two or more of the stockholders, each such 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 or
relating to the Corporation or its securities or to such nominee's
service as a director if elected; (4) 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 had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (5) the
consent of each nominee to serve as a director of the Corporation if
so elected. The chairman of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing
procedure.
C. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation,
this Article EIGHTH may not be amended, altered or repealed in any
respect, nor may any provision inconsistent with this Article EIGHTH
be adopted, unless such action is approved by the affirmative vote of
the holders of at least 75% of the total voting powers of all shares
of stock of the Corporation entitled to vote in the election of
directors generally, considered for purposes of this Article EIGHTH as
one class.
NINTH: A. 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.
B. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation,
this Article NINTH may not be amended, altered or repealed in any
respect, nor may any provision inconsistent with this Article NINTH be
adopted, unless such action is approved by the affirmative vote of the
holders of at least 75% of the total voting power of all shares of
stock of the Corporation entitled to vote in the election of directors
generally, considered for purposes of this Article NINTH as one class.
TENTH: A. Notwithstanding any other provision of this Restated
Certificate of Incorporation and in addition to any affirmative vote
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which may be otherwise required, no Business Combination shall be
effected or consummated except as expressly provided in paragraph B of
this Article TENTH, unless such Business Combination has been approved
by the affirmative vote of the holders of at least 75% of the Voting
Shares.
B. The provisions of Article TENTH shall not apply to any
Business Combination if:
1. The Business Combination has been approved by a resolution
adopted by a majority of those members of the Board of Directors who
are not Interested Directors with respect to the Business Combination;
or
2. All of the following conditions have been met: (a) the
aggregate amount of the cash and the Fair Market Value of Other
Consideration to be received for each share of Common Stock in the
Business Combination by holders thereof is not less than the higher
of: (i) the highest per share price (including any brokerage
commissions, transfer taxes, soliciting dealer's fees, dealer-
management compensation and similar expenses) paid or payable by an
Interested Party with an interest in the Business Combination to
acquire beneficial ownership of any shares of Common Stock within the
two-year period immediately prior to the first public announcement of
the proposed Business Combination (the "Announcement Date"), or (ii)
the highest market price per share of the Common Stock on the
Announcement Date or on the date on which the Interested Party became
an Interested Party, whichever is higher; (b) the consideration to be
received in the Business Combination by holders of Common Stock other
than an Interested Party with an interest in the Business Combination
shall be either in cash or in the same form used by an Interested
Party with an interest in the Business Combination to acquire the
largest number of shares of Common Stock acquired by all Interested
Parties with an interest in the Business Combination from one or more
persons who are not Interested Parties with an interest in the
Business Combination; and (c) at the record date for the determination
of stockholders are entitled to vote on the proposed Business
Combination, there shall be one or more directors of the Corporation
who are not Interested Directors with respect to the Business
Combination.
C. For purposes of this Article TENTH.
1. An "Associate" of a specified person is (a) a person that,
directly or indirectly (i) controls, is controlled by, or is under
common control with, the specified person, (ii) is the beneficial
owner of 10% or more of any class of the equity securities of the
specified person, or (iii) has 10% or more of any class of its equity
securities beneficially owned, directly or indirectly, by the
specified person; (b) any person (other than the Corporation or a
Subsidiary) of which the specified person is an officer, director,
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partner or other official and any officer, director, partner or other
official of the specified person; (c) any trust or estate in which the
specified person serves as trustee or in a similar fiduciary capacity,
or any trustee or similar fiduciary of the specified person; and (d)
any relative or spouse who has the same home as the specified person
or who is an officer or director of any person (other than the
Corporation or a Subsidiary), directly or indirectly, controlling,
controlled by or under common control with the specified person. No
director of the Corporation, however, shall be deemed to be an
Associate of any other director of the Corporation by reason of such
service as a director or by concurrence in any action of the Board of
Directors.
2. "Beneficial Ownership" of any Voting Shares shall be
determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934 as in effect on the date on which this Article TENTH is approved
by the stockholders of the Corporation, provided, however, that a
person shall in any event, be the beneficial owner of any Voting
Shares; (a) which such person, or any of such person's Associates,
beneficially owns, directly or indirectly; (b) which such person or
any of such person's Associates, directly or indirectly, (i) has the
right to acquire (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement, arrangement
or understanding; or upon the exercise of conversion rights, exchange
rights, warrants or options; or pursuant to the power to revoke a
trust, discretionary account or other arrangement; or (ii) has or
shares the power, or has the right to acquire (whether such right is
exercisable immediately or only after the passage of time) the
exclusive or shared power, to vote or direct the vote pursuant to any
agreement, arrangement, relationship or understanding; or pursuant to
the power to revoke a trust, discretionary account or other
arrangement; or (c) which are beneficially owned, directly or
indirectly, by any other person with which such first-mentioned person
or any of its Associates has any agreement, arrangement or
understanding, or is acting in concert with respect to acquiring,
holding, voting or disposing of any Voting Shares; provided, however,
that no director of the Corporation shall be deemed to be acting in
concert with any other director of the Corporation by reason of such
service as a director or by concurrence in any action of the Board of
Directors.
3. "Business Combination" shall mean: (a) any merger or
consolidation of the Corporation or any Subsidiary with or into any
Interested Party or any Associate or an Interested Party; (b) any
sale, lease, exchange, mortgage, pledge, transfer or other disposition
(in one or a series of related transactions) of all or any Substantial
Part of the Consolidated Assets of the Corporation to or with any
Interested Party or any Associate of an Interested Party; (c) any
issuance, sale, exchange, transfer or other disposition by the
Corporation or any Subsidiary (in one or a series of related
transactions) of any securities of the Corporation or any Subsidiary
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to or with any Interested Party or any Associate of an Interested
Party; or (d) any spin-off, split-up, reclassification of securities
(including any reverse stock split), recapitalization, reorganization,
liquidation or dissolution of the Corporation with any Subsidiary or
any other transaction involving the Corporation or any Subsidiary
(whether or not with or otherwise involving an Interested Party) that
has the effect, directly or indirectly, of increasing the
proportionate interest of any Interested Party or any Associate of an
Interested Party in the equity securities or assets of the Corporation
or any Subsidiary.
4. "Fair Market Value" means: (a) in the case of stock, the
average 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 the New York Stock Exchange Listed Stocks, or, if
such stock is not quoted 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
Securities Exchange Act of 1934 on which such stock is listed, or, if
such stock is not listed on any such exchange, the average closing bid
quotation with respect to a share of such stock during the 30-day
period immediately preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotation System or
any system then in use, provided that, if no such prices or quotations
are available, or if a majority of those members of the Board of
Directors who are not Interested Directors with respect to the
Business Combination determine that such prices or quotations do not
represent fair market value, the Fair Market Value of such stock shall
be determined pursuant to clause (b) below; and (b) in the case of
property other than cash or stock, or in the case of stock as to which
Fair Market Value is not determined pursuant to clause (a) above, the
Fair Market Value on the date in question as determined by a majority
of those members of the Board of Directors who are not Interested
Directors with respect to the Business Combination. In making any
such determination, the Board of Directors may, but shall not be
required to, engage the services of an Investing Banking Firm.
5. "Interested Director" shall mean each director of the
Corporation who (a) is an Interested Party or an Associate of an
Interested Party; (b) has an Associate who is an Interested Party; (c)
was nominated or proposed to be elected as a director of the
Corporation by an Interested Party or an Associate of an Interested
Party; or (d) is, or has been nominated or proposed to be elected as,
an officer, director or employee of an Interested Party or of an
Associate of an Interested Party.
6. "Interested Party" shall mean any person (other than the
Corporation or a Subsidiary) that is the beneficial owner, directly or
indirectly, of 5% or more of the Voting Shares (a) in connection with
determining the required vote by stockholders on any Business
Combination, as of any of the following dates: the record date for the
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determination of stockholders entitled to notice of or to vote on such
Business Combination or immediately prior to the consummation of any
such Business Combination or the adoption by the Corporation of any
plan or proposal with respect thereto; (b) in connection with
determining the required vote by stockholders on any amendment,
alteration or repeal of, or adoption of a provision inconsistent with,
this Article TENTH pursuant to paragraph E of this Article TENTH, as
of the record date for the determination of stockholders entitled to
notice and to vote on such amendment, alteration, repeal or
inconsistent provision; and (c) in connection with determining whether
a director is an "Interested Director" in respect of any determination
made by the Board of Directors pursuant to paragraph D of this Article
TENTH, as of the date at which the vote on such recommendation or
determination is being undertaken, or as close as is reasonably
practicable to such date.
7. An "Investment Banking Firm" shall mean an investment
banking firm that has not previously been associated with any
Interested Party with an interest in the Business Combination, which
is selected by a majority of the directors of the Corporation who are
not Interested Directors with respect to the Business Combination,
engaged solely on behalf of the holders of Common Stock other than
Interested Parties with an interest in the Business Combination, and
paid a reasonable fee for its services.
8. "Other Consideration" shall include (without limitation)
Common Stock and/or any other class or series of stock of the
Corporation retained by stockholders of the Corporation in the event
of a Business Combination in which the Corporation is the surviving
corporation.
9. A "Person" shall include (without limitation) any natural
person, corporation, partnership, trust or other entity, organization
or association, or any two or more persons acting in concert or as a
syndicate, joint venture or group.
10. "Subsidiary" shall mean any corporation of which a majority
of any class of equity securities is owned, directly or indirectly, by
the Corporation; provided, however, that for purposes of paragraph C.6
of this Article TENTH, the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity securities is
owned, directly or indirectly, by the Corporation.
11. "Substantial Part of the Consolidated Assets" of the
Corporation shall mean assets of the Corporation and/or any Subsidiary
having a book value (determined in accordance with generally accepted
accounting principles) in excess of 10% of the book value (determined
in accordance with generally accepted accounting principles) of the
total consolidated assets of the Corporation and all Subsidiaries
which are consolidated for public financial reporting purposes, at the
end of its most recent quarterly fiscal period ending prior to the
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time the determination is made for which f financial information is
available.
12. "Voting Shares" shall mean the outstanding shares of all
classes of stock of the Corporation entitled to vote for the election
of directors generally, considered for purposes of this Article TENTH
as one class. "Voting Shares" shall include shares deemed owned by any
Interested Party or any Associate of an Interested Party through
application of paragraph C.2 of this Article TENTH, but shall not
include any other shares which may be issuable based upon a right to
acquire such shares (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement, arrangement
or understanding, or upon the exercise of conversion rights, exchange
rights, warrants or options, or pursuant to the power to revoke a
trust, discretionary account, or other arrangement or otherwise.
D. A majority of those members of the Board of Directors who
are not Interested Directors with respect to the Business Combination
shall have the power and duty to interpret the provisions of this
Article TENTH and to make all determinations to be made under this
Article TENTH. Any such interpretation or determination shall be
conclusive and binding for all purposes of this Article TENTH.
E. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation, the
provisions set forth in this Article TENTH may not be amended, altered
or repealed in any respect, nor may any provision inconsistent with
this Article TENTH be adopted, unless such action is approved by the
affirmative vote of the holders of at least 75% of the Voting Shares.
F. Nothing contained in this Article TENTH shall be construed
to relieve any Interested Party from any fiduciary obligation imposed
by law.
ELEVENTH: Except as otherwise provided in this Restated
Certificate of Incorporation, the Board of Directors shall have
authority to authorize the issuance, from time to time without any
vote or other action by the stockholders, of any or all shares of
stock of the Corporation of any class at any time authorized, any
securities convertible into or exchangeable for any such shares so
authorized, and any warrant, option or right to purchase, subscribe
for or otherwise acquire, shares of stock of the Corporation of any
class at any time authorized, in each case to such persons and for
such consideration and on such terms as the Board of Directors from
time to time in its discretion lawfully may determine; provided,
however, that the consideration for the issuance of shares of stock of
the corporation having par value shall not be less than such par
value. Stock so issued, for which the consideration has been paid to
the Corporation, shall be fully paid stock, and the holders of such
stock shall not be liable to any further call or assessments thereon.
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TWELFTH: No holder of stock of any class of the Corporation or
of any security convertible into, or of any warrant, option or right
to purchase, subscribe for or otherwise acquire, stock of any class of
the Corporation, whether now or hereafter authorized, shall, as such
holder, have any pre-emptive right whatsoever to purchase, subscribe
for or otherwise acquire, stock of any class of the Corporation or any
security convertible into, or any warrant, option or right to
purchase, subscribe for or otherwise acquire, stock of any class of
the Corporation, whether now or hereafter authorized.
THIRTEENTH: Anything herein contained to the contrary
notwithstanding, any and all right, title, interest, and claim in or
to any dividends declared, or other distributions made, by the
Corporation, whether in cash, stock or otherwise, which are unclaimed
by the stockholder entitled thereto for a period of six years after
the close of business on the payment date, shall be and be deemed to
be extinguished and abandoned; and such unclaimed dividends or other
distributions in the possession of the Corporation, its transfer
agents or other agents or depositaries, shall at such time become the
absolute property of the Corporation, free and clear of any and all
claims of any persons whatsoever.
FOURTEENTH: A. The Corporation shall indemnify 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 (other than an action
by or in the right of the Corporation) by reason of the fact that he
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 have been taken or omitted in such
capacity, against costs, charges and other expenses (including
attorneys' fees) ("Expenses"), judgments, fines and amount paid in
settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding and any appeal thereof if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful. For purposes of this Article, "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" shall include any service by a director or officer of the
Corporation as a director, officer, employee, agent or fiduciary of
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such other Corporation, partnership, joint venture, trust or other
enterprise, or with respect to any employee benefit plan (or its
participants or beneficiaries) of the Corporation or any such other
enterprise.
B. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he 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 have been taken or omitted in such capacity
against Expenses actually and reasonably incurred by him in connection
with the investigation, defense or settlement of such action or suit
and any appeal thereof if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnify for such Expenses which the Court of Chancery of
Delaware or such other court shall deem proper.
C. To the extent that any person referred to in paragraphs (A)
or (B) of this Article has been successful on the merits or otherwise,
including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to
therein or in defense of any claim, issue or matter therein, he shall
be indemnified against Expenses actually and reasonably incurred by
him in connection therewith.
D. Any indemnification under paragraphs (A) or (B) of this
Article (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct
set forth in paragraphs (A) or (B). Such determination shall be made
(i) by the board of directors by a majority vote of a quorum (as
defined in the By-Laws of the Corporation) consisting of directors who
were not parties to such action, suit or proceeding, or (ii) if such
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders.
E. Expenses incurred in defending a civil or criminal action,
suit or proceeding shall be paid by the Corporation in advance of the
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final disposition of such action, suit or proceeding and appeal upon
receipt by the Corporation of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation.
F. The determination of the entitlement of any person to
indemnification under paragraphs (A), (B) or (C) or to advancement of
Expenses under paragraph (E) of this Article shall be made promptly,
and in any event within 60 days after the Corporation has received a
written request for payment from or on behalf of a director or officer
and payment of amounts due under such sections shall be made
immediately after such determination. If no disposition of such
request is made within said 60 days or if payment has not been made
within 10 days thereafter, or if such request is rejected, the right
to indemnification or advancement of Expenses provided by this Article
shall be enforceable by or on behalf of the director or officer in any
court of competent jurisdiction. In addition to the other amounts due
under this Article, Expenses incurred by or on behalf of a director or
officer in successfully establishing his right to indemnification or
advancement of Expenses, in whole or in part, in any such action (or
settlement thereof) shall be paid by the Corporation.
G. The indemnification and advancement of Expenses provided by
this Article shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of Expenses may be
entitled under any law (common or statutory), By-Law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity
while holding such office, or while employed by or acting as a
director or officer of the Corporation or as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise, and shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person. Notwithstanding the
provisions of this Article, the Corporation shall indemnify or make
advancement of Expenses to any person referred to in paragraphs (A) or
(B) of this Article to the full extent permitted under the laws of
Delaware and any other applicable laws, as they now exist or as they
may be amended in the future.
H. All rights to indemnification and advancement of Expenses
provided by this Article shall be deemed to be a contract between the
Corporation and each director or officer of the Corporation who
serves, served or has agreed to serve in such capacity, or at the
request of the Corporation as director or officer of another
corporation, partnership, joint venture, trust or other enterprise, at
any time while this Article and the relevant provisions of the
Delaware General Corporation Law or other applicable law, if any, are
in effect. Any repeal or modification of this Article, or any repeal
or modification of relevant provisions of the Delaware General
12
Corporation Law or any other applicable law, shall not in any way
diminish any rights to indemnification of or advancement of Expenses
to such director or officer or the obligations of the Corporation.
I. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who 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, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of this Article.
J. The Board of Directors may, by resolution, extend the
provisions of this Article pertaining to indemnification and
advancement of Expenses to 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 by reason of the fact that he is or was or
has agreed to become an employee, agent or fiduciary of the
Corporation or is or was serving or has agreed to serve at the request
of the Corporation as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust or
other enterprise or with respect to any employee benefit plan (or its
participants or beneficiaries) of the corporation or any such other
enterprise.
K. The invalidity or unenforceability of any provision of this
Article shall not affect the validity or enforceability of the
remaining provisions of this Article.
FIFTEENTH: No person who was or is a director of this
Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for breach of the duty of loyalty
to the Corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or knowing
violation of law; (iii) under Section 174 of the Delaware General
Corporation Law; or (iv) for any transaction from which the director
derived an improper personal benefit. If the Delaware General
Corporation Law is amended after the effective date of this Article to
further eliminate or limit, or to authorize further elimination or
limitation of, the personal liability of directors for breach of
fiduciary duty as a director, then the personal liability of a
director to this Corporation or its stockholders shall be eliminated
or limited to the full extent permitted by the Delaware General
Corporation Law, as so amended. For purposes of this Article,
"fiduciary duty as a director" shall include any fiduciary duty
arising out of serving at the request of this Corporation as a
director of another corporation, partnership, joint venture, trust or
other enterprise, and "personally liable to the Corporation" shall
13
include any liability to such other Corporation, partnership, joint
venture, trust or other enterprise, and any liability to this
Corporation in its capacity as a security holder, joint venturer,
partner, beneficiary, creditor or investor of or in any such other
corporation, partnership, joint venture, trust or other enterprise.
Any repeal or modification of the foregoing paragraph by the
stockholders of this Corporation shall not adversely affect the
elimination or limitation of the personal liability of a director for
any act or omission occurring prior to the effective date of such
repeal or modification. This provision shall not eliminate or limit
the liability of a director for any act or omission occurring prior to
the effective date of this Article.
SIXTEENTH: 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 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 this Corporation.
SEVENTEENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Restated Certificate
of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon the stockholders herein are
granted subject to this reservation.
Notwithstanding the foregoing, the provisions set forth in
Articles SIXTH, EIGHTH, NINTH, and TENTH may not be amended, altered
or repealed in any respect nor may any provision inconsistent with any
of such Articles be adopted unless such amendment, alteration, repeal
or inconsistent provision is approved as specified in each such
respective Article.
14
3. This Restated Certificate of Incorporation was duly
authorized by a resolution duly adopted and approved by consent of the
sole Director, dated as of May 1, 1987, the Corporation not yet having
received payment for any of its stock, in accordance with the
provisions of Section 241 and Section 245 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, New Newell Co. has caused this Restated
Certificate of Incorporation to be signed by William T. Alldredge, its
Vice President-Finance, and attested by Roland E. Knecht, its
Secretary this 18th day of May, 1987.
NEW NEWELL CO.
By /s/ William T. Alldredge
------------------------------------
William T. Alldredge
Vice President-Finance
ATTEST:
/s/ Roland E. Knecht
----------------------------
Roland E. Knecht
Secretary
15
Filed June 23, 1987 at 9:01 a.m.
877174060 Delaware Secretary of State
CERTIFICATE OF DESIGNATIONS AS TO THE RESOLUTION PROVIDING FOR THE
POWERS DESIGNATION, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
THEREOF, AS ARE NOT STATED AND EXPRESSED IN THE RESTATED CERTIFICATE
OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
CUMULATIVE PREFERRED STOCK
($2,000 Stated Value)
of
NEW NEWELL CO.
__________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
__________________
The undersigned DOES HEREBY CERTIFY that the following resolution
was duly adopted by the written consent of the sole director of New
Newell Co., a Delaware corporation, on May 18, 1987:
RESOLVED by the Board of Directors of New Newell Co., a Delaware
corporation (the "Corporation"), that, pursuant to authority expressly
granted to it by the Restated Certificate of Incorporation of the
Corporation, a total of 7,500 shares of the preferred stock without
par value, of the Corporation are hereby respectively constituted as
Series 1 Cumulative Preferred Stock, Series 2 Cumulative Preferred
Stock, Series 3 Cumulative Preferred Stock, Series 4 Cumulative
Preferred Stock and Series 5 Cumulative Preferred Stock, with an
aggregate stated value of $15,000,000 (hereinafter called "Cumulative
Preferred Stock"). Each series of such Cumulative Preferred Stock
shall consist of 1,500 shares, with a stated value of $2,000 per
share. Shares of Cumulative Preferred Stock shall be issued only upon
effectiveness of the merger of Newell Co., a Delaware corporation, and
Newell Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of the Corporation (the "Merger"). The preferences and the
relative, participating, optional and other special rights of the
shares of Cumulative Preferred Stock and the qualifications,
limitations or restrictions thereof, shall be as follows:
1. CUMULATIVE DIVIDENDS. (a) The holders of record of shares of
each series of Cumulative Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors out of funds
16
Legally available for the payment thereof, cumulative cash dividends
at the rate specified in subsection (b) below, and no more. The
holders of shares of Cumulative Preferred Stock shall not be entitled
to any dividends other than the cash dividends provided for in this
section. Dividends shall accrue daily from the date of issuance,
whether or not earned or declared, and shall be payable quarterly on
such dates as the Board of Directors may from time to time determine.
The dividends shall be in preference to dividends upon any stock
(including common stock) of the Corporation ranking junior to the
Cumulative Preferred Stock as to dividends. If the Corporation has not
paid full dividends upon the shares of Cumulative Preferred Stock for
any preceding quarter, the Corporation shall declare and pay the
amount for payment, before declaring or paying any cash dividends on
the common stock of the Corporation. Accrued dividends on Cumulative
Preferred Stock shall not bear interest.
(b) The dividend rate for each series of Cumulative Preferred
Stock is as follows:
(i) For Series 1, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1989, after which
time the rate shall be $160 per share per annum.
(ii) For Series 2, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1990, after which
time the rate shall be $160 per share per annum.
(iii) For Series 3, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1991, after which
time the rate shall be $160 per share per annum.
(iv) For Series 4, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1992, after which
time the rate shall be $160 per share per annum.
(v) For Series 5, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1993, after which
time the rate shall be $160 per share per annum.
2. LIQUIDATION. (a) In the event of a voluntary or involuntary
liquidation, dissolution, or winding up of the Corporation, the
holders of shares of Cumulative Preferred Stock shall be entitled to
receive out of the assets of the Corporation an amount equal to the
stated value per share plus an amount equal to any accrued and unpaid
dividends thereon to the date fixed for distribution. This
distribution shall be in preference to any such distribution upon any
stock (including common stock) of the Corporation ranking junior to
Cumulative Preferred Stock as to liquidation preferences, but subject
to the prior rights of the holders of shares of all stock ranking
senior to Cumulative Preferred Stock as to liquidation preferences.
If the assets of the Corporation are not sufficient to pay the full
17
amounts to the holders of Cumulative Preferred Stock and all other
series of preferred stock of the Corporation ranking equally with the
shares of Cumulative Preferred Stock as to liquidation preferences,
then the holders of Cumulative Preferred Stock and of such other
series shall share ratably in the distribution of any assets remaining
after distribution to holders of stock ranking senior to Cumulative
Preferred Stock as to liquidation preferences.
(b) Nothing in this section, however, shall be deemed to prevent
the Corporation from redeeming or purchasing Cumulative Preferred
Stock as permitted by Section 3.
(c) A merger or consolidation of the Corporation with any other
corporation or a sale, lease, or conveyance of assets or a business
combination involving the Corporation or any related or similar
transaction shall not be considered a liquidation, dissolution, or
winding up the Corporation within the meaning of this section.
3. REDEMPTION. (a) The Corporation may redeem any or all
shares of one or more series of Cumulative Preferred Stock at its
option by resolution of the Board of Directors, at any time and from
time to time on or after issuance, in cash, at the stated value of the
shares plus an amount equal to any accrued and unpaid dividends
thereon to the date fixed for redemption. In the event that the
Corporation redeems less than the entire number of shares of any
series of Cumulative Preferred Stock outstanding at any one time, the
Corporation shall select the shares to be redeemed by lot or pro rata
or by any other manner that the Board of Directors deems equitable.
No less than 20 nor more than 120 days prior to the date fixed for any
entire or partial redemption of Cumulative Preferred Stock, the
Corporation shall mail a notice of the redemption to the holders of
record of the shares to be redeemed at their addresses as they appear
on the books of the Corporation. The notice shall state the time and
place of redemption and shall identify the particular shares to be
redeemed if less than all of the outstanding shares are to be
redeemed. Failure to mail a notice or a defect in a notice or its
mailing shall not affect the validity of the redemption proceedings.
(b) On or before the date fixed for redemption each holder of
shares of Cumulative Preferred Stock called for redemption shall
surrender his certificate representing his shares to the Corporation
or its agent at the place designated in the redemption notice. If the
Corporation redeems less than all of the shares represented by a
surrendered certificate, the Corporation shall issue a new certificate
representing the unredeemed shares. If the Corporation has duly given
notice of redemption and if funds necessary for the redemption are
available on the redemption date, then notwithstanding that any holder
has not surrendered his certificate representing shares called for
redemption, all rights with respect to those shares shall cease and
determine immediately after the redemption date, except that such a
18
holder shall have the right to receive the redemption price without
interest upon surrender of his certificate.
(c) The Corporation may, at its option at any time after giving
a notice of redemption, deposit a sum sufficient to redeem the shares
called for redemption, plus any accrued and unpaid dividends thereon
to the redemption date, with any bank or trust company in the City of
Chicago, Illinois, or in the City of Minneapolis, Minnesota, having
capital, surplus, and undivided profits aggregating at least
$50,000,000 as a trust fund with irrevocable instructions and
authority to the bank or trust company to mail notice of redemption if
the Corporation has not begun or completed such mailing at the time of
the deposit and to pay, on and after the date fixed for redemption or
prior thereto, the redemption price of the shares to their respective
holders upon the surrender of their share certificates. From the date
the Corporation makes such a deposit, the shares designated for
redemption shall be treated as redeemed and no longer outstanding, and
no dividends shall accrue on the shares after the date fixed for
redemption. The deposit shall be deemed to constitute full payment of
the shares to their holders. From the date of the deposit, the
holders of the shares shall cease to be stockholders with respect to
the shares; they shall have no interest in or claim against the
Corporation by virtue of the shares; and they shall have no rights
with respect to the shares except the right to receive from the bank
or trust company payment of the redemption price of the shares,
without interest, upon surrender of their certificates. At the
expiration of five years after the redemption date, the bank or trust
company shall pay over to the Corporation any funds then remaining on
deposit, free of trust. Thereafter the holders of certificates for
the shares shall have no claims against the bank or trust company, but
only claims as unsecured creditors against the Corporation for amounts
equal to their pro rata portions of the funds paid over, without
interest, subject to compliance by the holders with the terms of the
redemption. Any interest on or other accretions to funds deposited
with the bank or trust company shall belong to the Corporation.
(d) Nothing in this Resolution shall prevent or restrict the
Corporation from purchasing, from time to time, at public or private
sale, any or all of the Cumulative Preferred Stock at whatever prices
the Corporation may determine, but at prices not exceeding those
permitted by Delaware law.
(e) Nothing in this Resolution shall give any holder of
Cumulative Preferred Stock the right to require the Corporation to
redeem any or all shares of the Stock.
4. CONVERSION. The Cumulative Preferred Stock is not
convertible into any other class or series of common or preferred
stock of the Corporation.
19
5. STATUS OF REACQUIRED STOCK. The Corporation shall retire
and cancel any shares of Cumulative Preferred Stock that it redeems,
purchases, or acquires. Such shares thereafter shall have the status
of authorized but unissued shares of preferred stock. Subject to the
limitations in this Resolution or in any resolutions adopted by the
Board of Directors providing for the reissuance of the shares, the
Corporation may reissue the shares as shares of Cumulative Preferred
Stock or may reclassify and reissue them as preferred stock of any
class or series other than Cumulative Preferred Stock.
6. VOTING RIGHTS. (a) Except as otherwise provided herein or
as may be required by law, the holders of Cumulative Preferred Stock
shall be entitled to one vote per share on every question submitted to
holders of record of the common stock of the Corporation, voting
together with the common stock of the Corporation as a single class.
(b) Notwithstanding the foregoing, (i) without the affirmative
vote or consent of at least a majority of the shares of Cumulative
Preferred Stock then outstanding voting as a separate class, the
Corporation shall not amend the Restated Certificate of Incorporation
if the amendment would alter or change the powers, preferences, or
special rights of the shares of Cumulative Preferred Stock so as to
affect them adversely, provided that this clause "(i)" shall not apply
to an increase or decrease (but not below the number of shares thereof
then outstanding) in the number of authorized shares of any class or
classes of stock; and (ii) so long as at least 3,100 shares of
Cumulative Preferred Stock are outstanding, without the affirmative
vote or consent of the holders of at least a majority of the shares of
Cumulative Preferred Stock then outstanding voting as a separate
class, the Corporation shall not issue any stock ranking senior to the
Cumulative Preferred Stock with respect to the payment of dividends or
the distribution of assets upon liquidation, except that the
Corporation may issue such stock if the consideration therefore
consists of cash. For purposes of any vote required pursuant to
clause (i) of this subsection (b) if any proposed amendment would
alter or change the powers, preferences, or special rights of one or
more of Series 1, 2, 3, 4, or 5 of Cumulative Preferred Stock so as to
affect them adversely but shall not so affect the entire class, then
only the shares of the series so affected by the amendment shall be
considered a separate class.
7. NO OTHER RIGHTS. The shares of Cumulative Preferred Stock
shall not have any relative, participating, optional or other special
rights or powers other than as set forth above and in the Restated
Certificate of Incorporation of the Corporation.
20
IN WITNESS WHEREOF, New Newell Co. has caused this resolution to
be signed by William T. Alldredge, its Vice President - Finance, and
attested by Roland E. Knecht, its Secretary, this 22nd day of June,
1987.
NEW NEWELL CO.
By /s/ William T. Alldredge
------------------------------------
William T. Alldredge
Vice President - Finance
ATTEST:
/s/ Roland E. Knecht
----------------------------
Roland E. Knecht,
Secretary
21
Filed July 2, 1987 at 9:29 a.m.
877183082 Delaware Secretary of State
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NEW NEWELL CO.
__________________________
Adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware
__________________________
New Newell Co., a corporation existing under the laws of the
State of Delaware, does hereby certify as follows:
FIRST: That Article First of the Restated Certificate of
Incorporation of the Corporation has been amended in its entirety to
read as follows:
FIRST: The name of the Corporation is NEWELL CO.
SECOND: That the foregoing amendment has been duly adopted in
accordance with provisions of the General Corporation Law of the State
of Delaware by the written consent of the holder of all outstanding
shares entitled to vote.
IN WITNESS WHEREOF, New Newell Co. has caused this Certificate to
be signed and attested by its duly authorized officers this 30th day
of June 1987.
NEW NEWELL CO.
By: /s/ William T. Alldredge
----------------------------
Vice President - Finance
Attest:
/s/ Roland E. Knecht
----------------------------
Secretary
22
Filed October 31, 1988 at 9:00 a.m.
688305050 Delaware Secretary of State
CERTIFICATE OF DESIGNATIONS AS TO THE RESOLUTION PROVIDING FOR THE
POWERS, DESIGNATION, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
THEREOF, AS ARE NOT STATED AND EXPRESSED IN THE RESTATED CERTIFICATE
OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
JUNIOR PARTICIPATING PREFERRED STOCK, SERIES B
of
NEWELL CO.
__________________________
Pursuant to Section 151 of the
General Corporation Law of
the State of Delaware
__________________________
NEWELL CO., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called
the "Corporation"), hereby certifies that 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 October 20, 1988:
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 Corporation's Restated Certificate of Incorporation, the Board
of Directors hereby creates a series of Preferred Stock, par value
$1.00 per share (the "Preferred Stock"), of the Corporation and hereby
states the designation and number of shares, and fixes the relative
rights, preferences and limitations of such series, as follows:
Junior Participating Preferred Stock, Series B:
Section 1. Designation and Amounts. The shares of such series
shall be designated as "Junior Participating Preferred Stock, Series
B" (the "Series B Preferred Stock") and the number of shares
constituting the Series B Preferred Stock shall be 500,000. Such
number of shares may be increased or decreased by resolution of the
Board; provided, that no decrease shall reduce the number of shares of
Series B 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
23
conversion of any outstanding securities issued by the Corporation
convertible into Series B 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 B Preferred Stock with respect to dividends,
the holders of shares of Series B Preferred Stock, in preference to
the holders of Common Stock, par value $1.00 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 B Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $15 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 B 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 B 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 B 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 $15 per share on the Series B
24
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 B 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 B 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 B 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 B 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 B
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series B 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 B 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 B
Preferred Stock and the holders of shares of Common Stock and any
other capital stock of the Corporation having general voting rights
25
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 B 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 B 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 B 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 B 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 B Preferred Stock, except dividends paid ratably
on the Series B 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 B 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 B Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series B Preferred Stock, or any
shares of stock ranking on a parity with the Series B 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
26
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 B 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
Corporation's Restated 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 (A) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred Stock unless,
prior thereto, the holders of shares of Series B Preferred Stock shall
have received $10,000 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 B 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 (B) 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 B Preferred
Stock, except distributions made ratably on the Series B 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 B Preferred Stock were entitled
immediately prior to such event under the proviso in clause (A) 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
27
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 B 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 B 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 B Preferred Stock
shall not be redeemable.
Section 9. Rank. The Series B 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 Restated 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 B 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 B Preferred Stock, voting
together as a single class.
28
IN WITNESS WHEREOF, this Certificate of Designations is executed
on behalf of the Corporation by its Chairman of the Board and attested
by its Secretary this 20th day of October 1988.
/s/ William T. Alldredge
-----------------------------------
William T. Alldredge
Vice President - Finance
Attest:
/s/ Roland E. Knecht
-------------------------
Roland E. Knecht
Secretary
29
Filed September 13, 1989
Delaware Secretary of State
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NEWELL CO.
__________________________
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
__________________________
We, William T. Alldredge, Vice President, and Roland E. Knecht,
Secretary, of Newell Co., a corporation existing under the laws of the
State of Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is Newell Co., formerly
known as New Newell Co.
SECOND: That the date of filing the corporation's original
Certificate of Incorporation by the Secretary of State of Delaware was
the 23rd day of February, 1987, and that the Restated Certificate of
Incorporation of the corporation was filed by the Secretary of State
of Delaware on the 18th day of May, 1987.
THIRD: That the first sentence of Article Fourth of the Restated
Certificate of Incorporation of said Corporation has been amended as
follows:
FOURTH: The total number of shares which the
Corporation shall have authority to issue is 110,000,000,
consisting of 100,000,000 shares of Common Stock of the par
value of $1.00 per share and 10,00,000 shares of Preferred
Stock, consisting of 10,000 shares without par value and
9,990,000 shares of the par value of $1.00 per share.
30
FOURTH: That said amendment has been duly adopted in accordance
with provisions of the General Corporation Law of the State of
Delaware by the affirmative vote of the holders of a majority of all
outstanding common and preferred stock entitled to vote at a meeting
of stockholders.
IN WITNESS WHEREOF, we have signed this certificate this 28th day
of June, 1989.
NEWELL CO.
By /s/ William T. Alldredge
------------------------------
William T. Alldredge
Vice President - Finance
ATTEST:
/s/ Roland E. Knecht
--------------------------
Roland E. Knecht
Secretary
31
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 05/15/1991
911355135 - 2118347
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION OF
NEWELL CO.
__________________________
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
__________________________
We, William T. Alldredge, Vice President and Roland E. Knecht,
Secretary, of Newell Co., a corporation existing under the laws of the
State of Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is Newell Co.
SECOND: That the date of filing the corporation's original
Certificate of Incorporation by the Secretary of State of Delaware was
the 23rd day of February, 1987, that the Restated Certificate of
Incorporation of the corporation was filed by the Secretary of State
of Delaware on the 18th day of May, 1987, a Certificate of Amendment
was filed by the Secretary of State of Delaware on the second day of
July, 1987, and a Certificate of Amendment was filed by the Secretary
of State of Delaware on 13th day of September, 1989.
THIRD: That the first sentence of Article Fourth of the Restated
Certificate of Incorporation of said Corporation has been amended as
follows:
FOURTH: The total number of shares which the
Corporation shall have authority to issue is 310,000,000,
consisting of 300,000,000 shares of Common Stock of the par
value of $1.00 per share and 10,000,000 shares of Preferred
Stock, consisting of 10,000 shares without par value, and
9,990,000 shares of the par value of $1.00 per share.
32
FOURTH: That said amendment has been duly adopted in accordance
with provisions of the General Corporation Law of the State of
Delaware by the affirmative vote of the holders of a majority of all
outstanding common and preferred stock entitled to vote at a meeting
of stockholders.
IN WITNESS WHEREOF, we have signed this certificate this 9th day
of May, 1991.
NEWELL CO.
By /s/ William T. Alldredge
---------------------------------
William T. Alldredge
Vice President - Finance
ATTEST:
/s/ Roland E. Knecht
-------------------------
Roland E. Knecht
Secretary
33
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 06/11/1991
911625086 - 2118347
AMENDED CERTIFICATE OF DESIGNATIONS AS TO THE RESOLUTION PROVIDING FOR
THE POWERS, DESIGNATION, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS THEREOF, AS ARE NOT STATED AND EXPRESSED IN THE RESTATED
CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
JUNIOR PARTICIPATING PREFERRED STOCK, SERIES B
of
NEWELL CO.
__________________________
Pursuant to Section 151 of the General
Corporation Law of the
State of Delaware
__________________________
NEWELL CO., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called
the "Corporation"), hereby certifies that 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 February 14, 1991:
RESOLVED, that the first sentence of Section 1 of the Certificate
of Designations as to the resolution providing for the powers,
designation, preferences and relative, participating, optional or
other rights, and the qualifications, limitations or restrictions
thereof, as are not stated and expressed in the Restated Certificate
of Incorporation or in any amendment thereto, of the Junior
Participating Preferred Stock, Series B of Newell Co. (the
"Certificate of Designations") which was filed in the Office of the
Secretary of State of Delaware on October 31, 1988, is hereby amended
to read as follows:
The shares of such series shall be designated as "Junior
Participating Preferred Stock, Series B" (the "Series B Preferred
Stock") and the number of shares constituting the Series B Preferred
Stock shall be 5,000,000.
34
IN WITNESS WHEREOF, this Amended Certificate of Designations is
executed on behalf of the Corporation by its Vice President-Finance
and attested by its Secretary this 5th day of June, 1991.
/s/ William T. Alldredge
-----------------------------
William T. Alldredge
Vice President - Finance
Attest:
/s/ Roland E. Knecht
---------------------------
Roland E. Knecht
Secretary
35
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 02:00 PM 11/03/1994
944211670 - 2118347
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
Newell Co., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
The present registered agent of the corporation is United States
Corporation Company and the present registered office of the
corporation is in the county of Kent.
The Board of Directors of adopted the following resolution on the
2nd day of November, 1994.
Resolved, that the registered office of Newell Co. in the state
of Delaware be and it hereby is changed to Corporation Trust Center,
1209 Orange Street, in the City of Wilmington, County of New Castle,
and the authorization of the present registered agent of this
corporation be and the same is hereby withdrawn, and THE CORPORATION
TRUST COMPANY, shall be and is hereby constituted and appointed the
registered agent of this corporation at the address of its registered
office.
IN WITNESS WHEREOF, Newell Co. has caused this statement to be
signed by Richard H. Wolff, its Secretary*, this 25th day of October
1994.
/s/ Richard H. Wolff
----------------------------------
Secretary
----------------------------------
(Title)
* Any authorized officer of the Chairman or Vice-Chairman of the
Board of Directors may execute this certificate.
36
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED MAY 11, 1995
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION OF
NEWELL CO.
__________________________
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
__________________________
I, William T. Alldredge, Vice President-Finance of Newell Co., a
corporation existing under the laws of the State of Delaware, do
hereby certify as follows:
FIRST: That the name of the corporation is Newell Co., formerly
known as New Newell Co.
SECOND: That the first sentence of Article Fourth of the
Restated Certificate of Incorporation of said Corporation has been
amended as follows:
FOURTH: The total number of shares which the
Corporation shall have authority to issue is 410,000,000,
consisting of 400,000,000 shares of Common Stock of the par
value of $1.00 per share and 10,00,000 shares of Preferred
Stock, consisting of 10,000 shares without par value and
9,990,000 shares of the par value of $1.00 per share.
THIRD: That said amendment has been duly adopted in accordance
with provisions of the General Corporation Law of the State of
Delaware by the affirmative vote of the holders of a majority of all
outstanding common and preferred stock entitled to vote at a meeting
of stockholders.
37
IN WITNESS WHEREOF, we have signed this certificate this 10th day
of May, 1995.
NEWELL CO.
By: /s/ Dale L. Matschullat
----------------------------
Dale L. Matschullat
Vice President
38
Filed September 11, 1995 at 9:00 p.m.
Delaware Secretary of State
CERTIFICATE OF ELIMINATION
OF NEWELL CO.
I, Dale L. Matschullat, Vice President - General Counsel of
Newell Co., a corporation organized and existing under the General
Corporation Law of the State of Delaware, do hereby certify as
follows:
FIRST: That the Board of Directors of Newell Co. (the
"Corporation"), by resolutions adopted at a meeting on August 9, 1995,
determined to eliminate all of the Cumulative Preferred Stock, Series
1, 2, 3, 4 and 5, of the Corporation, said resolutions being as
follows:
WHEREAS, the Corporation redeemed all of the outstanding shares of
Cumulative Preferred Stock, Series 1, of the Corporation on November
8, 1989;
WHEREAS, the Corporation redeemed all of the outstanding shares
of Cumulative Preferred Stock, Series 2, of the Corporation on
September 24, 1990;
WHEREAS, the Corporation redeemed all of the outstanding shares
of Cumulative Preferred Stock, Series 3, 4 and 5, of the Corporation
on September 24, 1991; and
WHEREAS, no shares of the Preferred Stock are issued and
outstanding and no shares will be issued.
NOW, THEREFORE, BE IT RESOLVED, that the Preferred Stock be
returned to the status of "authorized but not issued," and that the
proper officers, or any one of them acting alone, be, and each of them
hereby is, authorized and directed, in the name and on behalf of the
Corporation, to execute and cause to filed with the Secretary of State
of Delaware, a Certificate of Elimination, and to execute all other
instruments and documents and to do and cause to be done all such
further acts and things, as may be necessary or advisable to eliminate
the Preferred Stock and that all actions of said officers are hereby
ratified, approved and confirmed in all respects.
SECOND: None of the authorized shares of the Preferred Stock are
outstanding and none will be issued.
THIRD: In accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware, the Restated
Certificate of Incorporation is hereby amended to eliminate all
39
reference to the Preferred Stock, and the Preferred Stock shall be
returned to the status of "authorized but not issued."
IN WITNESS WHEREOF, I have signed this Certificate, this 7th day
of September, 1995.
NEWELL CO.
By: /s/ Dale L. Matschullat
--------------------------------
Dale L. Matschullat
Vice President - General Counsel
40
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED MARCH 24, 1999
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NEWELL CO.
Adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware I, Dale L.
Matschullat, Vice President - General Counsel of Newell Co., a
corporation existing under the laws of the State of Delaware, do
hereby certify as follows:
FIRST: That the name of the corporation is Newell Co.
SECOND: That Article First of the Restated Certificate of
Incorporation of the corporation, as heretofore amended, has been
amended in its entirety to read as follows:
FIRST: The name of the corporation is Newell Rubbermaid Inc.
THIRD: That the foregoing amendment has been duly adopted in
accordance with provisions of the General Corporation Law of the State
of Delaware by the majority vote of all the outstanding shares
entitled to vote at a meeting of stockholders.
IN WITNESS WHEREOF, I have signed this certificate this 24th day
of March, 1999.
NEWELL CO.
By: /s/ Dale L. Matschullat
------------------------------
Dale L. Matschullat
Vice President - General Counsel
Attest:
/s/ Richard H. Wolff
-------------------------
Richard H. Wolff
Secretary
41
Filed May 27, 1999 at 4:30 p.m.
Delaware Secretary of State
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION OF
NEWELL RUBBERMAID INC.
Adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware
I, Dale L. Matschullat, Vice President - General Counsel of
Newell Rubbermaid Inc., a corporation existing under the laws of the
State of Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is Newell Rubbermaid
Inc.
SECOND: That the first sentence of Article Fourth of the
Restated Certificate of Incorporation of the Corporation, as
heretofore amended, has been amended as follows:
FOURTH: The total number of shares which the Corporation
shall have authority to issue is 810,000,000, consisting of
800,000,000 shares of Common Stock of the par value of $1.00 per
share and 10,000,000 shares of Preferred Stock, consisting of
10,000 shares without par value, and 9,990,999 shares of the par
value of $1.00 per share.
THIRD: That the foregoing amendment has been duly adopted in
accordance with provisions of the General Corporation Law of the State
of Delaware by the affirmative vote of the holders of a majority of
all outstanding shares of Common Stock entitled to vote at a meeting
of stockholders.
IN WITNESS WHEREOF, I have signed this certificate this 26th day
of May, 1999.
NEWELL RUBBERMAID INC.
By: /s/ Dale L. Matschullat
------------------------------
Dale L. Matschullat
Vice President - General Counsel
42
Filed April 5, 2001 at 9:00 a.m.
Delaware Secretary of State
CERTIFICATE OF CORRECTION
OF
NEWELL RUBBERMAID INC.
Pursuant to Section 103(f) of the General Corporation Law of the State
of Delaware, Newell Rubbermaid Inc., a corporation organized under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation (hereinafter called the
"Corporation") is Newell Rubbermaid Inc.
2. The Certificate of Amendment of Restated Certificate of
Incorporation of Newell Rubbermaid Inc., which was filed with the
Secretary of State of Delaware on May 27, 1999 (the "Certificate of
Amendment"), contained an inaccurate record of the corporate action
therein referred to.
3. The inaccuracy in the Certificate of Amendment to be
corrected hereby is that the second paragraph of the Certificate of
Amendment stated, among other things, that the number of shares of
Preferred Stock, par value $1.00 per share, which the Corporation has
the authority to issue is 9,990,999 shares, when, in fact, the correct
number is 9,990,000 shares. The second paragraph of the Certificate
of Amendment is hereby corrected and restated in its entirety as
follows:
"SECOND: That the first sentence of Article Fourth of the
Restated Certificate of Incorporation of the Corporation, as
heretofore amended, has been amended as follows:
FOURTH: The total number of shares which the
Corporation shall have authority to issue is 810,000,000,
consisting of 800,000,000 shares of Common Stock of the par
value of $1.00 per share and 10,000,000 shares of Preferred
Stock, consisting of 10,000 shares without par value, and
9,990,000 shares of the par value of $1.00 per share."
43
Signed and attested to on April 5th, 2001.
NEWELL RUBBERMAID INC.,
a Delaware corporation
/s/ Dale L. Matschullat
-------------------------------
Dale L. Matschullat
Vice President General Counsel
ATTEST:
/s/ Richard H. Wolff
-------------------------
Richard H. Wolff
Secretary
U:\EDGAR\NEWELL\EXH-3.1
44