RESTATED
CERTIFICATE OF INCORPORATION
OF
A. O. SMITH CORPORATION
1. The name of the corporation is A. O. Smith Corporation (the
"Corporation"). The date of filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware was
July 9, 1986.
2. This Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of this
corporation to read as herein set forth in full:
ARTICLE 1
The name of the corporation is "A. O. SMITH CORPORATION."
ARTICLE 2
The address of the corporation's Registered Office in the State of
Delaware is The Prentice-Hall Corporation System, Inc., 1013 Centre Road,
City of Wilmington, County of New Castle. The name of its Registered
Agent at such address is The Prentice-Hall Corporation System, Inc.
ARTICLE 3
The nature of the business or purposes to be conducted or promoted
are:
(A) 1. To manufacture, buy, sell, export, import and generally
deal in all kinds of manufactured products and materials therefor, and in
particular, steel and iron products and materials therefor.
2. To carry on the business of mining, milling, concentrating,
converting, smelting, treating, preparing for market, manufacturing,
buying, selling, exchanging and otherwise producing and dealing in gold,
silver, copper, lead, zinc, brass, iron, steel and all kinds of ores,
metals and minerals and the products and by-products thereof. Without in
any way limiting the foregoing to search for, prospect and explore for
ores and minerals and to locate mining claims, grounds or lodes in the
United States of America or the states or territories thereof or in other
countries and record the same pursuant to the mining laws of the said
United States or the states or territories thereof or other countries.
3. To manufacture, buy, sell, lease and deal in machinery for
mining and other uses and to buy or otherwise acquire, apply for, sell,
deal in, trade and let to lease upon rents or royalties and patents or
patent rights on machinery, tools or equipment which may be used in mining
and to conduct a general mining and manufacturing business.
4. In general, but in connection with the purposes set forth
in this Article 3, to carry on any other business, whether manufacturing
or otherwise, and to have and exercise all the powers conferred by the
laws of Delaware upon secular corporations.
(B) To apply for, obtain, register, purchase, lease, or otherwise
acquire, and to hold, own, use, operate and introduce, and to sell, assign
or otherwise dispose of letters patent, licenses, trademarks, trade names,
and any and all inventions, improvements and processes used in connection
with, or secured under letters patent of the United States of America or
of any other country or government and pending applications therefor,
including any interest therein, and to grant licenses in respect thereto,
or otherwise turn the same to the use and account of the corporation.
(C) To acquire by purchase, lease or otherwise, upon such terms and
conditions and in such manner as the board of directors of the corporation
shall determine or agree to, and to the extent which the same may be
allowed by the Delaware General Corporation Law, all or any part of the
property, real and personal, tangible or intangible, of any nature
whatsoever, including the good will, business and rights of all kinds, or
any other corporation or of any person, firm or association, which may be
useful or convenient in the business of the corporation, and to pay for
the same in cash, stocks, bonds or in other securities of this
corporation, or partly in cash and partly in such stocks, bonds or in
other securities, or in such other manner as may be agreed, and to hold,
possess and improve such properties, and to conduct in any legal manner
the whole or any part of the business so acquired, and to pledge,
mortgage, sell or otherwise dispose of the same.
(D) To borrow money, and, from time to time, to make, accept,
endorse, execute and issue bonds, debentures, promissory notes, bills of
exchange and other obligations of the corporation for moneys borrowed or
in payment for property acquired or for any of the other objects or
purposes of the corporation or its business, and as permitted by law to
secure the payment of any such obligations by mortgage, pledge, deed,
indenture, agreement or other instrument of trust, or by other lien upon,
assignment of or agreement in regard to, all or any part of the property,
rights, privileges or franchises of the corporation wheresoever situated,
whether now owned or hereafter to be acquired.
(E) To acquire by purchase, subscription or otherwise, and to hold
and own and to sell, assign, transfer, pledge or otherwise dispose of the
stock, or certificates of interest in shares of stocks, bonds, debentures,
obligations and other evidences of indebtedness of any other corporation,
domestic or foreign, and to issue in exchange therefor the stock, bonds,
or other obligations of the corporation and while the owner of any such
stock, certificates of interest in shares of stock, bonds, debentures,
obligations and other evidences of indebtedness, to possess and exercise
in respect thereof all of the rights, powers and privileges of ownership,
including the right to vote thereon, and also in the manner, and to the
extent, now or hereafter authorized or permitted by the laws of the State
of Delaware, to purchase, acquire, own and hold and to dispose of (except
as herein otherwise expressly provided) the stock, bonds or other
evidences of indebtedness of the corporation; and to organize or cause to
be organized under the laws of any state or other government,
corporations, companies, associations, trusts, partnerships and other
organizations for any lawful purpose, and to dissolve, liquidate, wind up,
reorganize, merge or consolidate the same or cause the same to be
dissolved, liquidated, wound up, reorganized, merged or consolidated.
(F) To the extent permitted by law, guarantee the payment of
dividends on, or the payment or principal of or interest on, any stocks,
bonds, notes, debentures, or other securities or obligations of any
individual, corporation, company, association, trust, partnership or other
organization in which the corporation has an interest or any of whose
securities it owns; to the extent permitted by law, to become surety for
and to guarantee the carrying out or performance of contracts of every
kind and character of any individual, corporation, company, association,
trust, partnership of other organization in which the corporation has an
interest or any of whose securities it owns; and to aid in any lawful
manner any individual, corporation, company, association, trust,
partnership or other organization in which the corporation has an interest
or any of whose securities it owns.
(G) To execute and deliver general or special powers of attorney to
individuals, corporations, companies, associations, trusts, partnerships
and other organizations, whether public or private, as the board of
directors shall determine.
(H) In general to do any or all of the things hereinbefore set
forth, and such other things as are incidental or conducive to the
attainment of the objects and purposes of the corporation, as principal,
factor, agent, contractor or otherwise, either alone or in conjunction
with any person, firm, association or corporation, and in carrying on its
business and for the purpose of attaining or furthering any of its objects
to make and perform contracts, and to do such acts and things and to
exercise any and all such powers to the same extent as a natural person
might or could lawfully do to the extent allowed by law.
(I) To have one or more offices and to carry on its operations and
transact its business within and without the State of Delaware, and,
without restriction or limit as to amount, to purchase or otherwise
acquire, hold, own, mortgage, sell, convey or otherwise dispose of real
and personal property of every class and description in any of the states,
districts, territories or dependencies of the United States, and in any
and all foreign countries, subject always to the laws of such state,
district, territory, dependency or foreign country.
The foregoing clauses shall each be construed as both purposes and
powers, and the matters expressed in each clause shall, except as
otherwise expressly provided, be in no wise limited by reference to or
inference from the terms of any other clause, but shall be regarded as
independent purposes and powers, and the enumeration of specific purposes
and powers shall not be construed to limit or restrict in any manner the
meaning of 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.
ARTICLE 4
The aggregate number of shares which the corporation has the
authority to issue shall be seventy-seven million (77,000,000) shares,
consisting of:
(a) fourteen million (14,000,000) shares designated as "Class A
Common Stock," with a par value of Five Dollars ($5) per share;
(b) sixty million (60,000,000) shares designated as "Common Stock,"
with a par value of One Dollar ($1) per share; and
(c) three million (3,000,000) shares designated as "Preferred
Stock," with a par value of One Dollar ($1) per share.
Any and all such shares of Class A Common Stock, Common Stock and
Preferred Stock may be issued for such consideration, not less than the
par value thereof, as shall be fixed from time to time by the board of
directors. Upon any distribution of authorized but unissued shares to
stockholders, the part of the surplus of the corporation (not less than
the par value of such shares) which is concurrently transferred to stated
capital shall be deemed the consideration for the issue of such shares.
Any and all such shares so issued, the full consideration for which has
been paid, delivered or so transferred, shall be deemed fully paid stock
and shall not be liable to any further call or assessment thereon, and the
holders of such shares shall not be liable for any further payments except
as otherwise provided by applicable law of the State of Delaware or any
other state in which the corporation holds a certificate of authority to
do business. The relative rights, preferences and limitations of each
class shall be as follows:
(A) Class A Common Stock and Common Stock
Except as provided in this Article 4, the Class A Common Stock and
the Common stock shall have the same rights and privileges and shall rank
equally, share ratably and be identical in all respects as to all matters.
(1) Dividends; Combinations; and Subdivisions.
(a) The holders of the Class A Common Stock and Common Stock
shall be entitled to receive, when and as declared by the
board of directors, such dividends including share
distributions (as defined in paragraph (A)(1)(b)) as may be
declared from time to time by the board of directors
subject to any limitations applicable by law of the State
of Delaware, to the rights of the holders of the Preferred
Stock, and to the following limitation. Whenever a dividend
which is not a share distribution is paid to the holders of
Class A Common Stock, the corporation shall also pay to the
holders of Common Stock a dividend per share at least equal
to the dividend per share paid to the holders of the Class
A Common Stock. The corporation may pay dividends which are
not share distributions to holders of Common Stock in
excess of dividends paid, or without paying dividends, to
holders of Class A Common Stock.
(b) If at any time a distribution is to be paid in Class A
Common Stock or Common Stock (a "share distribution"), such
share distribution may be declared and distributed only as
follows:
(i) Shares of one class of either the Class A Common Stock
or the Common Stock (the "first class") may be
distributed on shares of that class, provided that
there is declared and paid a simultaneous distribution
of shares of the other class of stock (the "second
class") to the holders of the second class which
simultaneous distribution shall consist of a number of
shares of the second class equal on a per share basis
to the number of shares of the first class which are
distributed to holders of the first class.
(ii) Subject to any limitations of the laws of the State of
Delaware, shares of the first class may be distributed
on shares of the second class, provided that there is
declared and paid a simultaneous distribution of
shares of the first class to holders of shares of the
first class which simultaneous distribution shall
consist of a number of shares of the first class equal
on a per share basis to the number of shares of the
first class which are distributed to holders of the
second class.
(c) The corporation shall not combine or subdivide shares of
the first class without making a simultaneous combination
or subdivision of shares of the second class which is equal
on a per share basis to the combination or subdivision of
the shares of the first class.
(2) Voting.
Voting power shall be divided between the Class A Common Stock and
the Common Stock as follows:
(a) With respect to the election of directors, holders of the Common
Stock, voting as a separate class, shall be entitled to elect
that number of directors which constitutes 25% of the authorized
number of members of the board of directors and, if such 25% is
not a whole number, then the holders of the Common Stock shall
be entitled to elect to the nearest higher whole number of
directors that is at least 25% of such membership. Holders of
Class A Common Stock, voting as a separate class but subject to
any voting rights which may be granted to holders of Preferred
Stock, shall be entitled to elect the remaining directors.
(b) The holders of Class A Common Stock shall be entitled to vote as
a separate class but subject to any voting rights which may be
granted to holders of Preferred Stock, on the removal with or
without cause, of any director elected by the holders of Class A
Common Stock, and the holders of Common Stock shall be entitled
to vote as a separate class on the removal, with or without
cause, of any director elected by the holders of Common Stock.
(c) In the discretion of the board of directors, (i) any vacancy in
the office of a director elected by the holders of the Class A
Common Stock may be filled by a vote of such holders, voting as
a separate class but subject to any voting rights which may be
granted to holders of Preferred Stock, and any vacancy in the
office of a director elected by the holders of the Common Stock
may be filled by a vote of such holders, voting as a separate
class, or (ii) in the case of a vacancy in the office of a
director elected by either class, such vacancy may be filled by
the remaining directors. Any director elected by the board of
directors to fill a vacancy shall serve until the next Annual
Meeting of Stockholders and until his successor has been elected
and has qualified. If permitted by the By-Laws, the board of
directors may (i) increase the number of directors and any
vacancy so created may be filled by the board of directors, or
(ii) decrease the number of directors; provided that, so long as
the holders of Common Stock had the rights provided in paragraph
(A)(2)(a) of this Article 4 in respect of the last Annual
Meeting of Stockholders, the board of directors may be so
enlarged (or so decreased) only to the extent that at least 25%
of the enlarged (or decreased) board consists of directors
elected by the holders of the Common Stock or by directors
appointed to fill vacancies created by the death, resignation or
removal of directors elected by the holders of the Common Stock.
(d) The Common Stock will not have the right to elect directors set
forth in paragraphs (A)(2)(a) and (A)(2)(c) of this Article 4,
if, on the record date of any stockholder meeting at which
directors are to be elected, the number of issued and
outstanding shares of Common Stock is less than 10% of the
aggregate number of issued and outstanding shares of Class A
Common Stock and Common Stock. In such case, all directors to
be elected at such meeting shall be elected by holders of Class
A Common Stock and Common Stock, voting together as a single
class but subject to any voting rights which may be granted to
holders of Preferred Stock, provided that with respect to said
election, the holders of Class A Common Stock shall have one
vote per share and holders of Common Stock shall have one-tenth
vote per share. The Class A Common Stock will not have the right
to elect directors set forth in paragraphs (A)(2)(a) and
(A)(2)(c) of this Article 4, if, on the record date for any
stockholder meeting at which directors are to be elected, the
number of issued and outstanding shares of Class A Common Stock
is less than 12.5% of the aggregate number of issued and
outstanding shares of Class A Common Stock and Common Stock. In
such case, holders of Common Stock, voting as a separate class,
shall have the right to elect 25% of the members of the board of
directors as provided in paragraph (A)(2)(a) of this Article 4,
and holders of Class A Common Stock and Common Stock voting
together as a separate class but subject to any voting rights
which may be granted to holders of Preferred Stock, shall be
entitled to elect the remaining directors, provided that with
respect to said election, the holders of Class A Common Stock
shall have one vote per share and the holders of Common Stock
shall have one-tenth vote per share.
(e) Subject to the provisions of section (D) of this Article 4, the
holders of Class A Common Stock and Common Stock shall in all
matters not specified in paragraphs (A)(2)(a), (b), (c) and (d)
of this Article 4 vote together as a single class but subject to
any voting rights which may be granted to holders of Preferred
Stock, provided that the holders of Class A Common Stock shall
have one vote per share and the holders of Common Stock shall
have one-tenth vote per share.
(f) Notwithstanding anything in this subsection (A)(2) or in section
(D) of this Article 4 to the contrary but subject to any voting
rights which may be granted to holders of Preferred Stock, the
holders of Class A Common Stock shall have exclusive voting
power on all matters, at any time when no Common Stock is issued
and outstanding, and the holders of Common Stock shall have
exclusive voting power on all matters at any time when no Class
A Common Stock is issued and outstanding.
(3) Conversion.
(a) The holder of any shares of Class A Common Stock at his option
will be entitled at any time to convert each share of Class A
Common Stock into one share of Common Stock. Such right shall
be exercised by the surrender of the shares of Class A Common
Stock so to be converted to the corporation at any time during
normal business hours at the office or agency then maintained by
it for payment of dividends on the shares of the Class A Common
Stock and the Common Stock (the "Payment Office"), accompanied
by written notice of such holder's election to convert and (if
so required by the corporation or any conversion agent) by
instruments of transfer, in form satisfactory to the corporation
and to any conversion agent, duly executed by the registered
holder or by his duly authorized attorney.
(b) As promptly as practicable after the surrender for conversion of
any shares of Class A Common Stock in the manner provided in
paragraph A(3)(a) of this Article 4, the corporation will
deliver or cause to be delivered at the Payment Office to or
upon the written order of the holder of such shares,
certificates representing the number of full shares of Common
Stock issuable upon such conversion, issued in such name or
names as such holder may direct. Such conversion shall be deemed
to have been made immediately prior to the close of business on
the date of such surrender of the shares of Class A Common
Stock, and all rights of the holder of such shares as a holder
of such shares shall cease at such time and the person or
persons in whose name or names the certificates for shares of
Common Stock are to be issued shall be treated for all purposes
as having become the record holder or holders thereof at such
time; provided, however, that any such surrender on any date
when the stock transfer books of the corporation shall be closed
shall constitute the person or persons in whose name or names
the certificates for such shares of Common Stock are to be
issued as the record holder or holders thereof for all purposes
immediately prior to the close of business on the next
succeeding day on which such stock transfer books are opened.
(c) No adjustments in respect of dividends shall be made upon the
conversion of any shares of the Class A Common Stock; provided,
however, that if shares of Class A Common Stock shall be
converted subsequent to the record date preceding a dividend
payment on the Class A Common Stock but prior to the payment
date for such dividend, the registered holder of such shares of
Class A Common Stock at the close of business on such record
date nonetheless shall be entitled to receive the dividend paid
on such shares, if any, on such payment date notwithstanding the
conversion thereof.
(d) The corporation covenants that it will at all times reserve and
keep available, solely for the purpose of issue upon conversion
of the shares of Class A Common Stock, such number of shares of
Common Stock as shall be issuable upon the conversion of all
such outstanding shares of Class A Common Stock, provided, that
nothing contained herein shall be construed to preclude the
corporation from satisfying its obligations in respect of the
conversion of the shares of Class A Common Stock by delivery of
shares of Common Stock which are held in the treasury of the
corporation.
The corporation covenants that all shares of Common Stock which
shall be issued upon conversion of the shares of the Class A
Common Stock will upon issue be fully paid and non-assessable
and not subject to any preemptive rights, except as otherwise
required by applicable law.
(B) Preferred Stock
(1) Series of Preferred Stock
The board of directors shall have authority, by resolution
or resolutions, to divide the Preferred Stock into series, to
establish and designate each such series and the number of
shares thereof (which number, by like action of the board of
directors from time to time thereafter, may be increased except
when otherwise provided by the board of directors in creating
such series, or may be decreased but not below the number of
shares thereof then outstanding), and to determine and fix the
rights, preferences and limitations in respect of the shares of
each series established prior to the issuance thereof, and the
relative variations therein as between series, to the fullest
extent now or hereafter permitted by applicable law of the State
of Delaware, and (without limiting the generality of the
foregoing) particularly with respect to:
(a) The rate of dividend and the initial original issue date or
other date from which such dividends shall be cumulative;
(b) The price or prices, at the period or periods within, and
the terms and conditions on which shares may or shall be
redeemed;
(c) The amounts payable upon shares in the event of voluntary
liquidation or involuntary liquidation;
(d) The terms of the sinking fund provisions or redemption or
purchase account, if any, for the redemption or purchase of
shares;
(e) The terms and conditions on which shares may be converted
into shares of Class A Common Stock or Common Stock, if the
shares of any series are issued with the privilege of
conversion; and
(f) Whether or not shares shall have voting powers, and the
terms and conditions upon which any voting powers may be
exercised; provided that, so long as any Common Stock is
outstanding, no Preferred Stock with voting powers shall
have more than one vote per share nor shall any such
Preferred Stock be entitled to vote with the Common Stock
in the election of 25% of the members of the board of
directors pursuant to paragraph (A)(2)(a) of this Article
4, on the removal of directors elected by holders of Common
Stock pursuant to paragraph (A)(2)(b) of this Article 4, or
in the filling of vacancies in the office of a director
elected by holders of Common Stock pursuant to paragraph
(A)(2)(d) of this Article 4.
Except as to the matters in respect to which variations are permitted
under this subsection (B)(1), all series of the Preferred Stock of the
corporation, whenever designated and issued, shall have the same rights,
preferences and limitations and shall rank equally, share ratably and be
identical in all respects as to all matters.
All shares of any one series of Preferred Stock established as
hereinabove authorized shall be alike in every particular, and each series
thereof shall be distinctively designated by letter or descriptive words
or figures.
Any shares of Preferred Stock reacquired by the corporation by
purchase or redemption, through conversion, or through the operation of
any sinking fund or redemption or purchase account and which are
thereafter cancelled shall have the status of authorized but unissued
shares of Preferred Stock of the corporation, and, subject to the
provisions of any series of the Preferred Stock, may thereafter be
reissued as part of the same series or may be reclassified and reissued by
the board of directors in the same manner as any other authorized but
unissued shares of Preferred Stock
(2) Dividends.
Before any dividends, other than stock dividends, shall be
paid or set apart for payment upon either the Class A Common
Stock or the Common Stock, the holders of Preferred Stock shall
be entitled to receive dividends at the rate per annum specified
as to each series pursuant to paragraph (B)(1)(a), payable
quarter-annually when and as declared by the board of directors.
Except as otherwise provided with respect to a particular
series pursuant to paragraph (B)(1)(a), dividends shall accrue,
in the case of shares of each particular series:
(i) if issued prior to the record date for the first dividend
on shares of such series, then from the date of initial original
issue of shares of such series;
(ii) if issued during the period commencing immediately after
the record date for a dividend on shares of such series and
terminating at the close of the payment date for such dividend,
then from such last mentioned dividend payment date; and
(iii) otherwise from the quarterly dividend payment date
next preceding the date of original issue of such shares;
provided, that if the date of initial original issue of shares
of any series shall be within thirty (30) days prior to the date
when the first quarter-annual dividend would otherwise be
payable, the board of directors may provide that such first
dividend shall be payable only at the time of payment of the
dividend for the next quarter-annual period, in which case no
deficiency in payment of such first dividend shall exist by
reason of such deferral.
All dividends of Preferred Stock shall be cumulative so that if the
corporation shall not pay the quarterly dividend, or any part thereof, on
the Preferred Stock then issued and outstanding, such deficiency in the
dividend on the Preferred Stock shall thereafter be fully paid, but
without interest, before any cash dividend shall be paid or set apart for
payment on either the Class A Common Stock or the Common Stock.
Any dividend paid upon the Preferred Stock at a time when any accrued
dividends for any prior period are delinquent shall be expressly declared
as a dividend in whole or partial payment of the accrued dividend for the
earliest period for which dividends are then delinquent, and shall be so
designated to each shareholder to whom payment is made.
All shares of Preferred Stock shall rank equally and shall share
ratably, in proportion to the rate of dividend fixed pursuant to paragraph
(B)(1)(a) in respect to each such share, in all dividends paid or set
aside for payment for any dividend period or part thereof upon any such
shares.
(3) Liquidation, Dissolution or Winding Up.
In case of voluntary or involuntary liquidation,
dissolution or winding up of the corporation, the holders of
shares of each series of Preferred Stock shall be entitled to
receive out of the assets of the corporation in money or money's
worth the applicable amount specified pursuant to paragraph
(B)(1)(c) with respect to that series of Preferred Stock,
together with all accrued but unpaid dividends thereon (whether
or not earned or declared), before any of such assets shall be
paid or distributed to holders of Class A Common Stock or Common
Stock, and if the assets of the corporation shall be
insufficient to pay the holders of all of the Preferred Stock
then outstanding the entire amounts to which they may be
entitled, the holders of each outstanding series of the
Preferred Stock shall share ratably in such assets in proportion
to the amounts which would be payable with respect to such
series if all amounts payable thereon were paid in full. The
consolidating or merger of the corporation with or into any
other corporation or corporations, or the merger of any other
corporation or corporations into the corporation, in pursuance
of the laws of the State of Delaware and of any other applicable
state providing for consolidation or merger, shall not be deemed
a liquidation, dissolution or winding up of the affairs of the
corporation within the meaning of the foregoing provisions of
this subsection (B)(3), unless otherwise provided pursuant to
paragraph (B)(1)(c).
(C) Preemptive Rights.
No holder of Preferred, Class A Common Stock or Common Stock shall be
entitled, as of right because of his ownership of such stock, to subscribe
for, purchase or receive any part of any new or additional issue of stock,
whether Preferred Stock, Class A Common Stock or Common Stock, or of
bonds, debentures or other securities convertible into stock, or any part
of any reacquired shares or convertible securities held in treasury, but
all such shares of stock or bonds, debentures or other securities
convertible into stock may be issued and disposed of by the board of
directors to such person or persons and on such terms and for such
consideration (so far as may be permitted by law) as the board of
directors in its absolute discretion may deem advisable. The provisions of
this section (C) shall not impair any conversion right of any such
convertible securities or any other right authorized by the board of
directors to purchase or exchange, or to receive any distribution of, any
securities of the corporation.
(D) Special Voting Rights of Stockholders
(1) Subject to the voting rights of holders of Preferred Stock as
may be established pursuant to subsection (B)(1) of this Article
4, the holders of Class A Common Stock and the holders of Common
Stock shall be entitled to vote, and to vote as separate
classes, upon the authorization of any amendment to this
Certificate of Incorporation, and, in addition to the
authorization of any such amendment by vote of a majority of the
total number of votes represented by all outstanding shares
entitled to vote thereon, the amendment shall be authorized by
vote of a majority of the total number of votes represented by
all outstanding shares of the Class A Common Stock and/or the
Common Stock if such amendment contains any provision which
would:
(a) exclude or limit their right to vote on any matter, except
as such right may be limited by voting rights given to new
shares then being authorized of any existing or new class
or series,
(b) reduce the par value of their shares; or change their
shares into a different number of shares of the same class
or into the same or a different number of shares of any one
or more classes or any series thereof, either with or
without par value; or fix, change or abolish the
designation or any of the relative rights, preferences and
limitations of their shares, including any provision in
respect to any undeclared dividends, whether or not
cumulative or accrued, or the redemption of any shares, or
any sinking fund for the redemption or purchase of their
shares, or any preemptive right to acquire shares or other
securities; or alter the terms or conditions upon which
their shares are convertible or change the shares issuable
upon conversion of their shares; if any such action would
adversely affect such holders, or
(c) subordinate their rights, by authorizing shares having
preferences which would be in any respect superior to those
rights.
(2) Any plan of merger or consolidation shall be adopted at a
meeting of stockholders by a vote of two-thirds of the total
number of votes represented by the outstanding shares entitled
to vote thereon. The holders of shares of a class or series
shall be entitled to vote and to vote as a class if the plan of
merger or consolidation contains any provision which, if
contained in an amendment to the Certificate of Incorporation,
would entitle the holders of shares of such class or series to
vote and vote as a class thereon pursuant to subsection (D)(1)
of this Article 4. In such case, in addition to the
authorization of the plan of merger or consolidation by vote of
two-thirds of the total number of votes represented by all
outstanding shares entitled to vote thereon, the plan of merger
or consolidation shall be authorized by vote of the majority of
the total number of votes represented by all outstanding shares
entitled to vote thereon. Any plan of merger or consolidation of
any subsidiary corporation or corporations, whether domestic or
foreign, with and into the corporation shall not be subject to
the provisions of this subsection (D)(2) if the corporation owns
at least ninety percent of the outstanding shares of each class
of capital stock of such subsidiary corporation or corporations.
For the purposes of this subsection (D)(2), the financial
or other effect of any merger or consolidation on the
corporation shall not be deemed to affect adversely the powers,
preferences or rights of any class or series of stock.
(3) Any sale, lease, exchange or other disposition of all or
substantially all the assets of the corporation, if not made in
the usual or regular course of the business actually conducted
by the corporation shall be authorized by vote at a meeting of
stockholders of two-thirds of the total number of votes
represented by all outstanding shares entitled to vote thereon.
(4) Any amendment to the Certificate of Incorporation of the
corporation which adds a provision specifying that any
stockholders, or the holders of any specified number or
proportion of shares, or of any specified number or proportion
of shares of any class or series thereof, may require the
dissolution of the corporation at will or upon the occurrence of
a specified event, or which changes or strikes out such a
provision, shall be authorized at a meeting of stockholders by a
vote of a majority of the total votes represented by all
outstanding shares, whether or not otherwise entitled to vote on
any such amendment.
(5) Any amendment to the Certificate of Incorporation of the
corporation which changes or strikes out any provision
specifying that the proportion of shares, or the proportion of
shares of any class or series thereof, the holders of which
shall be present in person or by proxy at any meeting of
stockholders in order to constitute a quorum for transaction of
any business or of any specified item of business, including
amendments to this Certificate of Incorporation shall be greater
than the proportion prescribed by law in the absence of such
provision, or any provision specifying that the proportion of
votes of the holders of shares, or of the holders of shares of
any class or series thereof, that shall be necessary at any
meeting of stockholders for the transaction of any business or
of any specified item of business, including amendments to this
Restated Certificate of Incorporation, shall be greater than
such proportion prescribed by law in the absence of such
provision, shall be authorized at a meeting of stockholders by
vote of two-thirds of the total number of votes represented by
all outstanding shares entitled to vote thereon.
ARTICLE 5
The duration of the corporation is to be perpetual.
ARTICLE 6
The number of directors of the corporation shall be not less than
five nor more than such number as shall be fixed by resolution of the
board of directors from time to time.
ARTICLE 7
The board of directors shall have the following powers, in addition
to those prescribed by law or by the By-Laws of the corporation;
(A) To make, alter, amend and repeal the By-Laws of the corporation,
to the extent permitted by the law of Delaware.
(B) To elect or appoint from among their number an Executive
Committee, which committee, to the extent and in the manner provided in
the By-Laws of the corporation, shall have and may exercise all the powers
of the board of directors, in the management of the business and affairs
of the corporation, during the intervals between the meetings of the board
of directors, so far as may be permitted by law, and such other standing
committees as the board from time to time may determine to elect to
appoint, which committees shall have and may exercise such powers as may
be prescribed in the By-Laws or delegated to them by the board.
(C) From time to time to determine, so far as permitted by law,
whether and to what extent, and at what time and places and under what
conditions and regulations the accounts and books of the corporation, or
any of them, shall be open to the inspection of stockholders, and no
stockholder shall have any right to inspect any book or account or
document of the corporation except as conferred by the laws of the State
of Delaware or authorized by the board of directors.
(D) Subject to the provisions of the laws of the State of Delaware
to hold their meetings either within or without the State of Delaware, to
have one or more offices, and to keep the books of the corporation (except
such books as are required by law to be kept at the office of the
corporation in the State of Delaware) outside of the State of Delaware,
and at such place or places as may from time to time be designated by
them.
(E) To elect or appoint such officers, and to provide that the
persons so elected or appointed shall have and may exercise such powers as
may be prescribed from time to time by the By-Laws of the corporation.
ARTICLE 8
The corporation reserves the right to amend, alter, change or repeal
any provision herein contained, in the manner now or hereafter prescribed
by law, and all rights conferred on stockholders hereunder are granted
subject to this provision.
ARTICLE 9
No director of the corporation shall be liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
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.
3. The amendment and restatement of the Certificate of
Incorporation herein certified have been duly adopted by the stockholders
as of January 26, 1993 in accordance with the provisions of Sections 242
and 245 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, A. O. Smith Corporation has caused this Restated
Certificate to be signedby Robert J. O'Toole, its President and attested
by W. David Romoser, its Secretary, this 5th day of February, 1996.
A. O. SMITH CORPORATION
By: /s/ Robert J. O'Toole
Robert J. O'Toole, President
ATTEST:
By: /s/ W. David Romoser
W. David Romoser, Secretary