EXHIBIT 3.i
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE,
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED
CERTIFICATE OF "MASCO CORPORATION", FILED IN THIS OFFICE ON THE SIXTEENTH DAY OF
OCTOBER, A.D. 2001, AT 3 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ HARRIET SMITH WINDSOR
-------------------------
HARRIET SMITH WINDSOR,
SECRETARY OF STATE
0585027 8100 AUTHENTICATION: 1394568
010515343 DATE: 10-17-01
RESTATED CERTIFICATE OF INCORPORATION
OF
MASCO CORPORATION
MASCO CORPORATION, a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is MASCO CORPORATION. The date of filing of
its original Certificate of Incorporation with the Secretary of State of the
state of Delaware was June 15, 1962.
2. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors in accordance with Section 245 of the General Corporation Law
of Delaware.
3. This Restated Certificate of Incorporation only restates and integrates
and does not further amend the provisions of the Certificate of Incorporation of
this corporation as heretofore amended or supplemented and there is no
discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
4. The text of the Certificate of Incorporation as amended or supplemented
heretofore is hereby restated without further amendments or changes to read as
herein set forth in full:
FIRST: The name of the corporation is MASCO CORPORATION.
SECOND: Its registered office in the State of Delaware is located at
the Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name and address of its registered agent is The
Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801.
THIRD: The nature of the business or objects or purposes to be
transacted, promoted or carried on are: To engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
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FOURTH: The total number of shares of stock the Corporation shall have
authority to issue is one billion, four hundred one million (1,401,000,000)
shares.
One billion, four hundred million (1,400,000,000) of such shares shall
consist of common shares, par value one dollar ($1.00) per share, and one
million (1,000,000) of such shares shall consist of preferred shares, par value
one dollar ($1.00) per share.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
A. Each share of common stock shall be equal in all respects
to all other shares of such stock, and each share of outstanding common
stock is entitled to one vote.
B. Each share of preferred stock shall have or not have
voting rights as determined by the Board of Directors prior to
issuance.
Dividends on all outstanding shares of preferred stock must be
declared and paid, or set aside for payment, before any dividends can
be declared and paid, or set aside for payment, on the shares of common
stock with respect to the same dividend period.
In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, the
holders of the preferred stock shall be entitled, before any assets of
the Corporation shall be distributed among or paid over to the holders
of the common stock, to an amount per share to be determined before
issuance by the Board of Directors, together with a sum of money
equivalent to the amount of any dividends declared thereon and
remaining unpaid at the date of such liquidation, dissolution or
winding up of the Corporation. After the making of such payments to the
holders of the preferred stock, the remaining assets of the Corporation
shall be distributed among the holders of the common stock alone,
according to the number of shares held by each. If, upon such
liquidation, dissolution or winding up, the assets of the Corporation
distributable as aforesaid among the holders of the preferred stock
shall be insufficient to permit the payment to them of said amount, the
entire assets shall be distributed ratably among the holders of the
preferred stock.
The Board of Directors shall have authority to divide the
shares of preferred stock into series and fix, from time to time,
before issuance, the number of shares to be included in any series and
the designation, relative rights, preferences and limitations of all
shares of such series. The authority of the Board of Directors with
respect to each series shall include the determination of any or all of
the following, and the shares of each series may vary from the shares
of any other in the following respects: (a) the number of shares
constituting such series and the designation thereof to distinguish the
shares of such series from the shares of all other series; (b) the rate
of dividend, cumulative or noncumulative, and the extent of further
participation in dividend distribution, if any; (c) the prices at which
issued (at not less than par) and the terms and
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conditions upon which the shares may be redeemable by the Corporation;
(d) sinking fund provisions for the redemption or purchase of shares;
(e) the voting rights; and (f) the terms and conditions upon which the
shares are convertible into other classes of stock of the Corporation,
if such shares are to be convertible.
Pursuant to the authority conferred by this Article Fourth
upon the Board of Directors of the Corporation, the Board of Directors
created a series of 175,106 shares of Preferred Stock designated as
Series A Participating Cumulative Preferred Stock by filing a
Certificate of Designation of the Corporation with the Secretary of
State of the State of Delaware on December 13, 1995 and the voting
powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or
restrictions of the Corporation's Series A Participating Cumulative
Preferred Stock are set forth in Appendix A hereto and are incorporated
herein by reference.
In addition, pursuant to such authority conferred by this
Article Fourth, the Board of Directors created a series of 16,666.666
shares of Preferred Stock designated as Series B Participating
Preferred Stock by filing a Certificate of Designation of the
Corporation with the Secretary of State of the State of Delaware on
July 30, 2001 and the voting powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions of the Corporation's Series
B Participating Preferred Stock are set forth in Appendix B hereto and
are incorporated herein by reference.
C. No holder of any class of stock issued by this Corporation
shall be entitled to pre-emptive rights.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatever.
SEVENTH: (a) The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors consisting of not less
than five nor more than twelve directors, the exact number of directors to be
determined from time to time by resolution adopted by affirmative vote of a
majority of the entire Board of Directors. The directors shall be divided into
three classes, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
directors constituting the entire Board of Directors. At the 1988 Annual Meeting
of stockholders, Class I directors shall be elected for a one-year term, Class
II directors for a two-year term and Class III directors for a three-year term.
At each succeeding Annual Meeting of stockholders beginning in 1989, successors
to the class of directors whose term expires at that annual meeting shall be
elected for a three-year term. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a vacancy resulting from an
increase in such class
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shall hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. A director shall hold office until the annual
meeting for the year in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death, resignation,
retirement or removal from office. Except as otherwise required by law, any
vacancy on the Board of Directors that results from an increase in the number of
directors shall be filled only by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in
the Board of Directors shall be filled only by a majority of the directors then
in office, even if less than a quorum, or by a sole remaining director. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall serve for the remaining term of his predecessor.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock or any other class of stock issued by the
Corporation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships shall be
governed by the terms of the Certificate of Designation with respect to such
stock, such directors so elected shall not be divided into classes pursuant to
this Article SEVENTH, and the number of such directors shall not be counted in
determining the maximum number of directors permitted under the foregoing
provisions of this Article SEVENTH, in each case unless expressly provided by
such terms.
(b) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote in the election of
directors. Any stockholder entitled to vote in the election of directors,
however, may nominate one or more persons for election as director only if
written notice of such stockholder's intent to make such nomination or
nominations has been given either by personal delivery or by United States mail,
postage prepaid, to the Secretary of the Corporation not later than (i) with
respect to an election to be held at an Annual Meeting of stockholders, 45 days
in advance of the date on which the Corporation's proxy statement was released
to stockholders in connection with the previous year's Annual Meeting of
stockholders and (ii) with respect to an election to be held at a special
meeting of stockholders for the election of directors, the close of business on
the seventh day following the day on which notice of such meeting is first given
to stockholders. Each such notice shall include: (A) the name and address of the
stockholder who intends to make the nomination or nominations and of the person
or persons to be nominated; (B) 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; (C) a description of all arrangements
or understandings between such stockholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations is or are to be made by the stockholder; (D) such other information
regarding each nominee proposed by such stockholder as would have been required
to be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission if the nominee had been nominated by the
Board of Directors; and (E) the written consent of each nominee to serve as a
director of the Corporation if elected. The chairman of any meeting of
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stockholders may refuse to acknowledge the nomination of any person if not made
in compliance with the foregoing procedure.
(c) Notwithstanding any other provision of this Certificate of
Incorporation or the by-laws (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or the
by-laws), and in addition to any affirmative vote required by law, the
affirmative vote of the holders of at least 80% of the voting power of the
outstanding capital stock of the Corporation entitled to vote, voting together
as a single class, shall be required to amend, adopt in this Certificate of
Incorporation or in the by-laws any provision inconsistent with, or repeal this
Article SEVENTH.
EIGHTH: 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 such holders and may not be effected by any consent in
writing by any such holders. Except as otherwise required by law, special
meetings of stockholders of the Corporation may be called only by the Chairman
of the Board, the President or a majority of the Board of Directors, subject to
the rights of holders of any one or more classes or series of preferred stock or
any other class of stock issued by the Corporation which shall have the right,
voting separately by class or series, to elect directors. Notwithstanding any
other provision of this Certificate of Incorporation or the by-laws (and
notwithstanding that a lesser percentage may be specified by law, this
Certificate of Incorporation or the by-laws), and in addition to any affirmative
vote required by law, the affirmative vote of the holders of at least 80% of the
voting power of the outstanding capital stock of the Corporation entitled to
vote, voting together as a single class, shall be required to amend, adopt in
this Certificate of Incorporation or in the by-laws any provision inconsistent
with, or repeal this Article EIGHTH.
NINTH: 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.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the Corporation.
To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By resolution passed by a majority of the whole board, to designate one
or more committees, each committee to consist of two or more of the Directors of
the Corporation, which, to the extent provided in the resolution or in the
by-laws of the Corporation, shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers which
may require it. Such committee or committees shall have such name or names as
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may be stated in the by-laws of the Corporation or as may be determined from
time to time by resolution adopted by the Board of Directors.
When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for that purpose, to sell, lease or exchange
all of the property and assets of the Corporation, including its good will and
its corporate franchises, upon such terms and conditions and for such
consideration, which may be in whole or in part shares of stock in, and/or other
securities of, any other corporation or corporations, as its Board of Directors
shall deem expedient and for the best interests of the Corporation.
TENTH: 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 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ELEVENTH: Meetings of stockholders may be held outside the State of
Delaware, if the by-laws so provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the by-laws of the Corporation. Elections of Directors
need not be by ballot unless the by-laws of the Corporation shall so provide.
TWELFTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
THIRTEENTH: 1. The affirmative vote of the holders of 95% of all shares
of stock of the Corporation entitled to vote in elections of directors,
considered for the purposes of this Article THIRTEENTH as one class, shall be
required for the adoption or authorization of a business combination (as
hereinafter defined) with any other entity (as hereinafter defined) if, as of
the record date for the determination of stockholders entitled to notice thereof
and to vote
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thereon, such other entity is the beneficial owner, directly or indirectly, of
30% or more of the outstanding shares of stock of the Corporation entitled to
vote in elections of directors considered for the purposes of this Article
THIRTEENTH as one class; provided that such 95% voting requirement shall not be
applicable if:
(a) The cash, or fair market value of other consideration, to be
received per share by common stockholders of the Corporation in such business
combination bears the same or a greater percentage relationship to the market
price of the Corporation's common stock immediately prior to the announcement of
such business combination as the highest per share price (including brokerage
commissions and soliciting dealers' fees) which such other entity has
theretofore paid for any of the shares of the Corporation's common stock already
owned by it bears to the market price of the common stock of the Corporation
immediately prior to the commencement of acquisition of the Corporation's common
stock by such other entity;
(b) The cash, or fair market value of other consideration, to be
received per share by common stockholders of the Corporation in such business
combination (i) is not less than the highest per share price (including
brokerage commissions and soliciting dealers' fees) paid by such other entity in
acquiring any of its holdings of the Corporation's common stock, and (ii) is not
less than the earnings per share of common stock of the Corporation for the four
full consecutive fiscal quarters immediately preceding the record date for
solicitation of votes on such business combination, multiplied by the then
price/earnings multiple (if any) of such other entity as customarily computed
and reported in the financial community;
(c) After such other entity has acquired a 30% interest and prior to
the consummation of such business combination: (i) such other entity shall have
taken steps to ensure that the Corporation's Board of Directors included at all
times representation by continuing director(s) (as hereinafter defined)
proportionate to the stockholdings of the Corporation's public common
stockholders not affiliated with such other entity (with a continuing director
to occupy any resulting fractional board position); (ii) there shall have been
no reduction in the rate of dividends payable on the Corporation's common stock
except as necessary to insure that a quarterly dividend payment does not exceed
5% of the net income of the Corporation for the four full consecutive fiscal
quarters immediately preceding the declaration date of such dividend, or except
as may have been approved by a unanimous vote of the directors; (iii) such other
entity shall not have acquired any newly issued shares of stock, directly or
indirectly, from the Corporation (except upon conversion of convertible
securities acquired by it prior to obtaining a 30% interest or as a result of a
pro rata stock dividend or stock split); and (iv) such other entity shall not
have acquired any additional shares of the Corporation's outstanding common
stock or securities convertible into common stock except as a part of the
transaction which results in such other entity acquiring its 30% interest;
(d) Such other entity shall not have (i) received the benefit, directly
or indirectly (except proportionately as a stockholder) of any loans, advances,
guarantees, pledges or other financial assis-tance or tax credits of or
provided by the Corporation, or (ii) made any major change in the
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Corporation's business or equity capital structure without the unanimous
approval of the directors, in either case prior to the consummation of such
business combination; and
(e) A proxy statement responsive to the requirements of the United
States securities laws shall be mailed to all common stockholders of the
Corporation for the purpose of soliciting stock- holder approval of such
business combination and shall contain on its first page thereof, in a prominent
place, any recommendations as to the advisability (or inadvisability) of the
business combination which the continuing directors, or any of them, may choose
to state and, if deemed advisable by a majority of the continuing directors, an
opinion of a reputable investment banking firm as to the fairness (or not) of
the terms of such business combination, from the point of view of the remaining
public stockholders of the Corporation (such investment banking firm to be
selected by a majority of the continuing directors and to be paid a reasonable
fee for their services by the Corporation upon receipt of such opinion).
The provisions of this Article THIRTEENTH shall also apply to a
business combination with any other entity which at any time has been the
beneficial owner, directly or indirectly, of 30% or more of the outstanding
shares of stock of the Corporation entitled to vote in elections of directors
considered for the purposes of this Article THIRTEENTH as one class,
notwithstanding the fact that such other entity has reduced its shareholdings
below 30% if, as of the record date for the determination of stockholders
entitled to notice of and to vote on to the business combination, such other
entity is an "affiliate" of the Corporation (as hereinafter defined).
2. As used in this Article THIRTEENTH, (a) the term "other entity"
shall include any corporation, person or other entity and any other entity with
which it or its "affiliate" or "associate" (as defined below) has any agreement,
arrangement or understanding, directly or indirectly, for the purpose of
acquiring, holding, voting or disposing of stock of the Corporation, or which is
its "affiliate" or "associate" as those terms are defined in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934 as in
effect on March 31, 1981, together with the successors and assigns of such
persons in any transaction or series of transactions not involving a public
offering of the Corporation's stock within the meaning of the Securities Act of
1933; (b) an other entity shall be deemed to be the beneficial owner of any
shares of stock of the Corporation which the other entity (as defined above) has
the right to acquire pursuant to any agreement, arrangement or understanding or
upon exercise of conversion rights, warrants or options, or otherwise; (c) the
outstanding shares of any class of stock of the Corporation shall include shares
deemed owned through application of clause (b) above but shall not include any
other shares which may be issuable pursuant to any agreement, or upon exercise
of conversion rights, warrants or options, or otherwise; (d) the term "business
combination" shall include any merger or consolidation of the Corporation with
or into any other entity, or the sale or lease of all or any substantial part of
the assets of the Corporation to, or any sale or lease to the Corporation or any
subsidiary thereof in exchange for securities of the Corporation of any assets
(except assets having an aggregate fair market value of less than $5,000,000) of
any other entity; (e) the term "continuing director" shall mean a person who was
a member of the Board of Directors of the Corporation elected by stockholders
prior to the time that such other entity acquired in excess of 10% of the stock
of the Corporation entitled to vote in the election of
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directors, or a person recommended to succeed a continuing director by a
majority of continuing directors; and (f) for the purposes of subparagraphs l(a)
and (b) of this Article THIRTEENTH the term "other consideration to be received"
shall mean, in addition to other consideration received, if any, capital stock
of the Corporation retained by its existing public stockholders in the event of
a business combination with such other entity in which the Corporation is the
surviving corporation.
3. A majority of the continuing directors shall have the power and duty
to determine for the purposes of this Article THIRTEENTH on the basis of
information known to them whether (a) such other entity beneficially owns 30% or
more of the outstanding shares of stock of the Corporation entitled to vote in
elections of directors; (b) an other entity is an "affiliate" or "associate" (as
defined above) of another; (c) an other entity has an agreement, arrangement or
understanding with another; or (d) the assets being acquired by the Corporation,
or any subsidiary thereof, have an aggregate fair market value of less than
$5,000,000.
4. No amendment to the Certificate of Incorporation of the Corporation
shall amend or repeal any of the provisions of this Article THIRTEENTH, unless
the amendment effecting such amendment or repeal shall receive the affirmative
vote of the holders of 95% of all shares of stock of the corporation entitled to
vote in elections of directors, considered for the purposes of this Article
THIRTEENTH as one class; provided that this paragraph 4 shall not apply to, and
such 95% vote shall not be required for, any amendment or repeal unanimously
recommended to the stockholders by the Board of Directors of the Corporation if
all of such directors are persons who would be eligible to serve as "continuing
directors" within the meaning of paragraph 2 of this Article THIRTEENTH.
5. Nothing contained in this Article THIRTEENTH shall be construed to
relieve any other entity from any fiduciary obligation imposed by law.
FOURTEENTH: A director of this Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (a) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (b) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the Delaware General
Corporation Law, or (d) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law hereafter is
amended to authorize the further limitation or elimination of the liability of
directors, then the liability of a director of the Corporation, in addition to
the limitation on liability provided herein, shall be limited to the fullest
extent permitted by the Delaware General Corporation Law, as amended. Any repeal
or modification of this Article FOURTEENTH shall not increase the liability of
any director of this Corporation for any act or occurrence taking place prior to
such repeal or modification, or otherwise adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
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FIFTEENTH: 1. Each person who was or is made a party or is threatened
to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was a director, officer or employee of the
Corporation, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or employee or in any other capacity
while serving as a director, officer, or employee, shall be indemnified and held
harmless by the Corporation to the fullest extent permitted by the Delaware
General Corporation Law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including, without limitation, attorneys' fees,
judgments, fines and amounts paid in settlement) reasonably incurred or suffered
by such person in connection therewith, and such indemnification shall continue
as to a person who has ceased to be a director, officer or employee and shall
inure to the benefit of such person's heirs, executors and administrators. The
Corporation shall indemnify a director, officer or employee in connection with
an action, suit or proceeding (other than an action, suit or proceeding to
enforce indemnification rights provided for herein or elsewhere) initiated by
such director, officer or employee only if such action, suit or proceeding was
authorized by the Board of Directors. The right to indemnification conferred in
this Paragraph 1 shall be a contract right and shall include the right to be
paid by the Corporation the expenses incurred in defending any action, suit or
proceeding in advance of its final disposition; provided, however, that, if the
Delaware General Corporation Law requires, the payment of such expenses incurred
by a director or officer in such person's capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such person) in
advance of the final disposition of an action, suit or proceeding shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal that such director or officer is not entitled to be indemnified for such
expenses under this Article FIFTEENTH or otherwise.
2. The Corporation may, to the extent authorized from time to time by
the Board of Directors, provide indemnification and the advancement of expenses,
to any agent of the Corporation and to any person (other than directors,
officers and employees of the Corporation, who shall be entitled to
indemnification under Paragraph 1 above) who is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, to such extent
and to such effect as the Board of Directors shall determine to be appropriate
and permitted by applicable law, as the same exists or may hereafter be amended.
3. The rights to indemnification and to the advancement of expenses
conferred in this Article FIFTEENTH shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation or by-laws of the Corporation, agreement, vote
of stockholders or disinterested directors or otherwise.
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IN WITNESS WHEREOF, said MASCO CORPORATION has caused this Certificate
to be signed by Richard A. Manoogian, its Chairman of the Board and Chief
Executive Officer this 9th day of October, 2001.
MASCO CORPORATION
By: /s/ Richard A. Manoogian
------------------------------
Richard A. Manoogian
Chairman of the Board and
Chief Executive Officer
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Appendix A
SERIES A PARTICIPATING CUMULATIVE
PREFERRED STOCK
OF
MASCO CORPORATION
Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation of the Corporation, the Board of
Directors on December 6, 1995, adopted a resolution creating a series of
Preferred Stock in the amount and having the designation, voting powers,
preferences and relative, participating, optional and other special rights and
qualifications, limitations and restrictions set forth below:
Section 1. Designation and Number of Shares. The shares of
such series shall be designated as "Series A Participating Cumulative Preferred
Stock" (the "Series A Preferred Stock"), and the number of shares constituting
such series shall be 175,106. Such number of shares of the Series A Preferred
Stock may be increased or decreased by resolution of the Board of Directors;
provided that no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than the number of shares then outstanding plus
the number of shares issuable upon exercise or conversion of outstanding rights,
options or other securities issued by the Corporation.
Section 2. Dividends and Distributions.
(A) The holders of shares of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable on February
15, May 15, August 15 and November 15 of 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 any share or
fraction of a share of Series A Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $1.00 and (b) subject to the
provision for adjustment hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends or other distributions and 1,000 times the
aggregate per share amount of all non-cash dividends or other distributions
(other than (i) a dividend payable in shares of Common Stock, par value $1.00
per share, of the Corporation (the "Common Stock") or (ii) a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise)), declared
on the Common Stock since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Preferred Stock.
If the Corporation shall at any time after December 6, 1995 (the "Rights
Declaration Date") pay any dividend on Common Stock payable in shares of Common
Stock or effect a subdivision or
12
combination of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the amount to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in paragraph (A) above immediately
after it declares a dividend or distribution on the Common Stock (other than as
described in clauses (i) and (ii) of the first sentence of paragraph (A));
provided that if 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 (or, with respect to the
first Quarterly Dividend Payment Date, the period between the first issuance of
any share or fraction of a share of Series A Preferred Stock and such first
Quarterly Dividend Payment Date), a dividend of $1.00 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Preferred Stock, unless the date of issue of such shares is on or before the
record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue and be cumulative from the date
of issue of such shares, or unless the date of issue is a date after the record
date for the determination of holders of shares of Series A Preferred Stock
entitled to receive a quarterly dividend and on or before such Quarterly
Dividend Payment Date, in which case 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 shares of Series A
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall not be more than 60 days
prior to the date fixed for the payment thereof.
Section 3. Voting Rights. In addition to any other voting
rights required by law, the holders of shares of Series A Preferred Stock shall
have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder thereof
to 1,000 votes on all matters submitted to a vote of stockholders of the
Corporation. If the Corporation shall at any time after the Rights Declaration
Date pay any dividend on Common Stock payable in shares of Common Stock or
effect a subdivision or combination of the outstanding shares of Common Stock
(by reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then in
13
each such case the number of votes per share to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series A Preferred Stock and the holders of shares of Common Stock
shall vote together as a single class on all matters submitted to a vote of
stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Preferred
Stock shall be in arrears in an amount equal to six quarterly dividends thereon,
the occurrence of such contingency shall mark the beginning of a period (herein
called a "default period") which shall extend until such time when all accrued
and unpaid dividends for all previous quarterly dividend periods and for the
current quarterly dividend period on all shares of Series A Preferred Stock then
outstanding shall have been declared and paid or set apart for payment. During
each default period, all holders of Preferred Stock and any other series of
Preferred Stock then entitled as a class to elect directors, voting together as
a single class, irrespective of series, shall have the right to elect two
Directors.
(ii) During any default period, such voting right of the
holders of Series A Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this Section 3(C) or at any
annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting right nor the right of the
holders of any other series of Preferred Stock, if any, to increase, in certain
cases, the authorized number of Directors shall be exercised unless the holders
of 10% in number of shares of Preferred Stock outstanding shall be present in
person or by proxy. The absence of a quorum of holders of Common Stock shall not
affect the exercise by holders of Preferred Stock of such voting right. At any
meeting at which holders of Preferred Stock shall exercise such voting right
initially during an existing default period, they shall have the right, voting
as a class, to elect Directors to fill such vacancies, if any, in the Board of
Directors as may then exist up to two Directors or, if such right is exercised
at an annual meeting, to elect two Directors. If the number which may be so
elected at any special meeting does not amount to the required number, the
holders of the Preferred Stock shall have the right to make such increase in the
number of Directors as shall be necessary to permit the election by them of the
required number. After the holders of the Preferred Stock shall have exercised
their right to elect Directors in any default period and during the continuance
of such period, the number of Directors shall not be increased or decreased
except by vote of the holders of Preferred Stock as herein provided or pursuant
to the rights of any equity securities ranking senior to or pari passu with the
Series A Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or stockholders
owning in the aggregate not less than 10% of the total number of shares of
Preferred Stock outstanding, irrespective of series, may request, the calling of
special
14
meeting of holders of Preferred Stock, which meeting shall thereupon be
called by the President, a Vice President or the Secretary of the Corporation.
Notice of such meeting and of any annual meeting at which holders of Preferred
Stock are entitled to vote pursuant to this paragraph (C)(iii) shall be given to
each holder of record of Preferred Stock by mailing a copy of such notice to him
at his last address as the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 20 days and not later than
60 days after such order or request or in default of the calling of such meeting
within 60 days after such order or request, such meeting may be called on
similar notice by any stockholder or stockholders owning in the aggregate not
less than 10% of the total number of shares of Preferred Stock outstanding,
irrespective of series. Notwithstanding the provisions of this paragraph
(C)(iii), no such special meeting shall be called during the period within 60
days immediately preceding the date fixed for the next annual meeting of
stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of Preferred
Stock shall have exercised their right to elect two Directors voting as a class,
after the exercise of which right (x) the Directors so elected by the holders of
Preferred Stock shall continue in office until their successors shall have been
elected by such holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in paragraph
(C)(ii) of this Section 3) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of stock which elected
the Director whose office shall have become vacant. References in this paragraph
(C) to Directors elected by the holders of a particular class of stock shall
include Directors elected by such Directors to fill vacancies as provided in
clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred Stock
as a class shall terminate, and (z) the number of Directors shall be such number
as may be provided for in the certificate of incorporation or bylaws
irrespective of any increase made pursuant to the provisions of paragraph
(C)(ii) of this Section 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the certificate of incorporation
or bylaws). Any vacancies in the Board of Directors effected by the provisions
of clauses (y) and (z) in the preceding sentence may be filled by a majority of
the remaining Directors.
(D) The Certificate of Incorporation of the Corporation shall
not be amended in any manner (whether by merger or otherwise) so as to adversely
affect the powers, preferences or special rights of the Series A Preferred Stock
without the affirmative vote of the holders of a majority of the outstanding
shares of Series A Preferred Stock, voting separately as a class.
(E) Except as otherwise provided herein, holders of Series A
Preferred Stock shall have no special voting rights, and their consent shall not
be required for taking any corporate action.
15
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on outstanding shares of Series A
Preferred Stock shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, or make any other
distributions on, any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
A Preferred Stock;
(ii) declare or pay dividends on, or make any other
distributions on, any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such other 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, purchase or otherwise acquire for value any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock; provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for
shares of stock of the Corporation ranking junior (as to dividends and
upon dissolution, liquidation or winding up) to the Series A Preferred
Stock; or
(iv) redeem, purchase or otherwise acquire for value any
shares of Series A Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of Series A Preferred Stock
and all such other parity stock upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates
and other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for value any shares of stock of
the Corporation unless the Corporation could, under paragraph (A) of this
Section 4, purchase or otherwise acquire such shares at such time and in such
manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred
Stock redeemed, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock without designation as to series and
16
may be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors as permitted by the
Certificate of Incorporation or as otherwise permitted under Delaware Law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $1.00 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment; provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share to holders of Common
Stock, or (2) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all such other 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. If the Corporation shall at any time after the Rights
Declaration Date pay any dividend on Common Stock payable in shares of Common
Stock or effect a subdivision or combination of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. If 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 or any other property, then in any such case the shares of
Series A Preferred Stock shall at the same time be similarly exchanged for or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount of stock,
securities, cash or any other property, as the case may be, into which or for
which each share of Common Stock is changed or exchanged. If the Corporation
shall at any time after the Rights Declaration Date pay any dividend on Common
Stock payable in shares of Common Stock or effect a subdivision or combination
of the outstanding shares of Common Stock (by reclassification or otherwise)
into a greater or lesser number of shares of Common Stock, then in each such
case the amount set forth in the preceding sentence with respect to the exchange
or change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
17
Section 8. No Redemption. The Series A Preferred Stock shall
not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank
junior (as to dividends and upon liquidation, dissolution and winding up) to all
other series of the Corporation's preferred stock except any series that
specifically provides that such series shall rank junior to the Series A
Preferred Stock.
Section 10. Fractional Shares. Series A Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock.
18
Appendix B
SERIES B PARTICIPATING PREFERRED STOCK
OF
MASCO CORPORATION
Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation of the Corporation, the Board of
Directors on June 6, 2001, adopted a resolution creating a series of Preferred
Stock in the amount and having the designation, voting powers, preferences and
relative, participating, optional and other special rights and qualifications,
limitations and restrictions set forth below and in Section 7.13 of the
Agreement and Plan of Reorganization (the "REORGANIZATION AGREEMENT") dated as
of June 12, 2001, as amended from time to time, by and among the Corporation,
Manufacturing Acquisition Corp., a Washington corporation, Tempering Acquisition
Corp, a Washington corporation, Milgard Manufacturing Incorporated, a Washington
corporation, Milgard Tempering Incorporated, a Washington corporation and, for
the purposes set forth in the Reorganization Agreement, the Principal
Shareholders parties thereto, the provisions of which are incorporated by
reference into this Certificate of Designation:
Section 1. Designation and Number of Shares. The
shares of such series shall be designated as "Series B Participating Preferred
Stock" (the "SERIES B PREFERRED STOCK"), and the number of shares constituting
such series shall be 16,666.666. Such number of shares of the Series B Preferred
Stock may be decreased by resolution of the Board of Directors; provided that no
decrease shall reduce the number of shares of the Series B Preferred Stock to a
number less than the number of shares then outstanding.
Section 2. Dividends and Distributions. Except as
provided in Section 5 below, the holders of shares of Series B Preferred Stock
shall be entitled to receive out of funds legally available for the purpose,
immediately prior to the time paid to the holders of Common Stock, dividends
(whether payable in cash, securities or assets, but excluding (x) any dividend
payable in shares of Common Stock, par value $1.00 per share, of the Corporation
("COMMON STOCK") and (y) any subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise) in which event the number of shares of
Common Stock into which each share of Series B Preferred Stock shall be adjusted
pursuant to Section 7(A)-(C) of this Certificate of Designation) in an aggregate
amount per share equal to the product of (i) the aggregate amount to be declared
and distributed (immediately after the distribution of dividends to holders of
shares of Series B Preferred Stock in accordance with this Section 2) per share
to holders of Common Stock, and (ii) the number of shares of Common Stock into
which such share of Series B Preferred Stock would then be convertible for
purposes of transfer as determined under
19
Section 6(E) of this Certificate of Designation. Accrued but unpaid dividends
shall not bear interest. 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 the same as the record date for the Common Stock and shall not be
more than 60 days prior to the date fixed for the payment thereof.
Notwithstanding the foregoing, the holders of shares of Series B Preferred Stock
shall not be entitled to receive any dividends in connection with the dividends
declared on June 29, 2001 and payable on August 13, 2001 to holders of record of
Common Stock as of July 13, 2001.
Section 3. Voting Rights. Except as required by law,
the holders of shares of Series B Preferred Stock shall have the following
voting rights and shall have no other voting rights:
(A) Each share of Series B Preferred Stock shall entitle
the holder thereof to a number votes on all matters submitted to a vote of
stockholders of the Corporation equal to the number of votes of the shares of
Common Stock into which such share of Series B Preferred Stock would then be
convertible for purposes of transfer as determined under Section 6(E) of this
Certificate of Designation.
(B) Except as otherwise provided herein or required by
law, the holders of shares of Series B Preferred Stock and the holders of shares
of Common Stock shall vote together as a single class on all matters submitted
to a vote of stockholders of the Corporation.
(C) Without the written consent of holders of a majority
of the outstanding shares of Series B Preferred Stock or the vote of holders of
a majority of the outstanding shares of Series B Preferred Stock at a meeting of
the holders of the Series B Preferred Stock called for such purpose, the
Corporation shall not have the right to amend, alter or repeal any provision of
this Certificate of Designation so as to materially adversely affect the
preferences, rights or powers of the Series B Preferred Stock.
Section 4. Reacquired Shares. Any shares of Series B
Preferred Stock redeemed, purchased or otherwise acquired by the Corporation in
any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock without designation as to
series and may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors as permitted by
the Certificate of Incorporation or as otherwise permitted under Delaware Law.
Section 5. Liquidation, Dissolution or Winding Up.
Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of Common Stock unless prior
thereto, the holders of Series B Preferred Stock shall have received an
aggregate amount per share equal to declared but unpaid dividends and
distributions thereon plus an amount per share equal to the product of (i) the
aggregate amount to be distributed per share to holders of Common Stock (taking
into account the assumed conversion
20
of the Series B Preferred Stock into Common Stock) and (ii) the number of shares
of Common Stock into which such share of Series B Preferred Stock would then be
convertible for purposes of transfer, as determined pursuant to Section 6(E) of
this Certificate of Designation.
Section 6. Ownership; Transfer; Conversion.
(A) Holders of shares of Series B Preferred Stock may (i)
sell or otherwise dispose of or transfer any or all of the shares of such Series
B Preferred Stock held by them only to persons who at the time of transfer are
Permitted Transferees (as defined herein), and to no other persons, or (ii)
convert any or all of such shares into shares of Common Stock for the purpose of
effecting the sale or disposition of such shares of Common Stock to any person
as provided in subparagraph (C) below. No one other than those persons in whose
names shares of Series B Preferred Stock become registered on the stock ledger
of the Corporation upon original issuance by the Corporation ("INITIAL
HOLDERS"), or transferees or successive transferees who at the time of transfer
are Permitted Transferees, shall by virtue of the acquisition of a certificate
for shares of Series B Preferred Stock have the status of an owner or holder of
shares of Series B Preferred Stock or be recognized as such by the Corporation
or be otherwise entitled to enjoy for such person's benefit the rights and
powers of a holder of shares of Series B Preferred Stock. "PERMITTED TRANSFEREE"
shall mean, any Initial Holder, any Initial Holder's spouse, siblings or lineal
descendants, any estate of any of the foregoing but only to the extent that the
beneficiaries thereof are another Initial Holder or an Initial Holder's spouse
or siblings or lineal descendants of an Initial Holder, any trust for the
exclusive benefit of an Initial Holder or an Initial Holder's spouse, siblings
or lineal descendants (or any combination of the foregoing) and any "private
foundation" within the meaning of Sections 509 and 501(c)(3) of the Internal
Revenue Code of 1986, as amended (the "CODE") with respect to which an Initial
Holder is a "disqualified person" within the meaning of Section 4946(a)(1)(A) of
the Code (provided, however, that "50%" shall be substituted for "2%" where the
latter figure appears in the definition of "substantial contributor" set forth
in Section 507(d)(2) of the Code) or Section 4946(a)(1)(B) of the Code
(provided, however, that for purposes of defining "foundation manager," Section
4946(b)(2) of the Code shall be disregarded). For purposes of determining
whether an Initial Holder is a "substantial contributor" pursuant to the
preceding sentence, (x) contributions made by all of the Initial Holder's
Permitted Transferees (other than private foundations) shall be taken into
account and (y) an Initial Holder will be considered a "substantial contributor"
only if during the five-year period ending with the year in question, such
Initial Holder has contributed (taking into account the contributions attributed
to such person under clause (x) above) more than 50% of the total contributions
received by the foundation since the foundation's inception.
(B) Every certificate for shares of Series B Preferred
Stock shall bear a legend reading as follows: "The shares of Series B Preferred
Stock represented by this certificate may not be transferred to any person who
is not a "Permitted Transferee" as defined in Section 6(A) of the Certificate of
Designation of Series B Participating Preferred Stock of Masco Corporation as
amended, and no person who does not qualify as a Permitted Transferee is
entitled to own or to be registered as the record holder of such shares of
Series B Preferred Stock, but the record holder may at any time convert such
shares of Series B Preferred Stock into a number of shares
21
of Common Stock as determined pursuant to Section 6(E) of the Certificate of
Designation of Series B Participating Preferred Stock of Masco Corporation for
the purpose of effecting the sale or other disposition of such shares of Common
Stock to any person. Each holder of this certificate, by accepting the same,
accepts and agrees to all of the foregoing. The shares of Series B Preferred
Stock represented by this certificate are subject to certain other restrictions
on transfer set forth in the Certificate of Designation of Series B
Participating Preferred Stock of Masco Corporation, including certain provisions
of the Agreement and Plan of Reorganization (the "REORGANIZATION AGREEMENT")
dated as of June 12, 2001, as amended from time to time, by and among Masco
Corporation, Manufacturing Acquisition Corp., a Washington corporation,
Tempering Acquisition Corp, a Washington corporation, Milgard Manufacturing
Incorporated, a Washington corporation, Milgard Tempering Incorporated, a
Washington corporation and, for the purposes set forth in the Reorganization
Agreement, the Principal Shareholders parties thereto, that are incorporated by
reference therein, a copy of which Reorganization Agreement may be obtained at
the principal office of Masco Corporation."
(C) Upon the sale or disposition (including deemed sales
and dispositions as provided in Section 7.13 of the Reorganization Agreement) of
any shares of Series B Preferred Stock to any person who is not a Permitted
Transferee, such shares of Series B Preferred Stock shall be automatically
converted into a number of shares of Common Stock determined pursuant to Section
6(E)(1) of this Certificate of Designation. All certificates evidencing shares
of Series B Preferred Stock that have been automatically converted in accordance
with the provisions hereof shall, from and after the date of such conversion, be
deemed to have been retired and canceled and the shares of Series B Preferred
Stock represented thereby converted at the time of such sale or disposition into
Common Stock in accordance with this Section 6 for all purposes, notwithstanding
the failure of the holder or holders thereof to surrender such certificates.
Upon request for transfer of any Series B Preferred Stock certificate and upon
delivery to the Corporation of the certificates evidencing the shares of Series
B Preferred Stock to be converted upon such transfer, the Corporation shall
issue certificates for the shares of Common Stock into which such shares of
Series B Preferred Stock are convertible as determined pursuant to Section 6(E)
of this Certificate of Designation.
(D) The Corporation may elect, by written notice (the
"CORPORATION CONVERSION NOTICE") delivered to each holder of record of shares of
Series B Preferred Stock by first class mail, postage prepaid at such holder's
address as the same appears on the stock register of the Corporation, to cause
all of the shares of Series B Preferred Stock to be converted into a number of
shares of Common Stock determined pursuant to Section 6(E) of this Certificate
of Designation. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date the Corporation
Conversion Notice shall have been mailed, and the person in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder of record of the
shares of Common Stock determined pursuant to Section 6(E) of this Certificate
of Designation represented thereby at such time on such date. All certificates
evidencing shares of Series B Preferred Stock that have been converted in
accordance with this Section 6(D) shall, from and after the date of such
conversion, be deemed to have been retired and canceled and the shares of
22
Series B Preferred Stock represented thereby converted into Common Stock in
accordance with this Section 6(D) for all purposes, notwithstanding the failure
of the holder or holders thereof to surrender certificates for such shares. Upon
delivery to the Corporation of the certificates evidencing the shares of Series
B Preferred Stock so converted by the Corporation, the Corporation shall issue
certificates for the shares of Common Stock into which such shares of Series B
Preferred Stock have been converted as determined pursuant to Section 6(E) of
this Certificate of Designation.
(E) (1) Upon a conversion in accordance with subparagraph
(C) or (D) above, each share of Series B Preferred Stock shall be converted into
1,000 shares of Common Stock (the "INITIAL CONVERSION RATE"). The Initial
Conversion Rate shall be subject to adjustment as provided in Section 7(A)-(C)
below.
(2) If (x) the Corporation exercises its right to give a
Corporation Conversion Notice (as provided in Section 6(D) of this Certificate
of Designation) and (y) on the date of such Corporation Conversion Notice the
Market Value Trigger has not been achieved, then, notwithstanding Section
6(E)(1) of this Certificate of Designation, each share of Series B Preferred
Stock so converted shall be converted into a number of shares of Common Stock
equal to the product obtained by multiplying (a) the Initial Conversion Rate
(adjusted as provided pursuant to Section 7(A)-(C) of this Certificate of
Designation) by (b) a fraction (which shall in no event be less than 1.00) of
which the numerator is the Price Target (adjusted as provided pursuant to
Section 7(D) of this Certificate Designation), and of which the denominator is
the Adjustment Price on the date of such Corporation Conversion Notice (the
"DELIVERABLE COMMON STOCK AMOUNT"). If the Corporation desires to give a
Corporation Conversion Notice on a date when the Adjustment Price is equal to or
greater than the Dollar Price, then the Corporation shall have the option either
to (x) give a Corporation Conversion Notice on that date, in which event the
Adjustment Price will be deemed to be the Dollar Price or (y) give notice (the
"DOLLAR CONVERSION NOTICE") to the holders that it will give a Corporation
Conversion Notice on a date no later than 60 days after the Dollar Conversion
Notice. If the Corporation gives a Dollar Conversion Notice, then the
Corporation will be required to give a Corporation Conversion Notice on a date
selected by the Corporation in its sole discretion, which date must be on or
after the 10th trading day and on or before the 60th day after the date of the
Dollar Conversion Notice, it being understood that, for purposes of that
Corporation Conversion Notice, the Adjustment Price shall be the greater of the
average of the Daily Per Share Prices of the Common Stock for the 10 trading
days ending on the trading day immediately preceding the date of the Corporation
Conversion Notice and the Dollar Price; provided, however, that if a Market
Value Trigger is achieved after the Corporation gives a Dollar Conversion Notice
but before a Corporation Conversion Notice is given pursuant to this sentence,
the Dollar Conversion should be null and void and such Corporation Conversion
Notice shall not be required. Notwithstanding Section 6(D) of this Certificate
of Designation, the Corporation shall not have the right without the prior
consent of holders of at least a majority of the Series B Preferred Stock to
give a Corporation Conversion Notice on any date on or prior to the first
anniversary of the Effective Time if the applicable Adjustment Price on that
date is less than the Minimum Price.
23
Notwithstanding Section 6(D) of this Certificate of Designation, if the
Corporation gives a Corporation Conversion Notice on a date on or prior to the
earlier of the Adjustment Date and the date on which a Market Value Trigger has
been achieved, such notice shall apply only to shares of Series B Preferred
Stock which, on the date of such Corporation Conversion Notice, are convertible
into shares of Common Stock that are Freely Tradeable, it being understood that
(x) the Corporation shall be entitled to give a Corporation Conversion Notice
which shall apply to all shares of Series B Preferred Stock that are convertible
into Freely Tradeable Common Stock on the date of the Corporation Conversion
Notice and (y) the Corporation shall be entitled to give a Corporation
Conversion Notice from time to time with respect to any remaining shares of
Series B Preferred Stock at such time as the shares of Common Stock into which
such shares of Series B Preferred Stock are convertible are Freely Tradeable, it
being understood that the Corporation shall use all reasonable efforts to assure
that there will be no more than two Corporation Conversion Notices given.
The "ADJUSTMENT PRICE" shall mean on any date the average of the Daily
Per Share Prices of the Common Stock for the 10 trading days ending on the
trading day immediately preceding such date, provided that if such date is after
the third anniversary of the Effective Time (such third anniversary being
referred to herein as the "ADJUSTMENT DATE"), the Adjustment Price shall mean
the average of the Daily Per Share Prices of the Common Stock for the 10 trading
days ending on the trading day immediately preceding the Adjustment Date (the
"THIRD ANNIVERSARY ADJUSTMENT PRICE").
The "DAILY PER SHARE PRICE" of Common Stock on any date shall mean the
average of the high and low prices of a share of Common Stock on the New York
Stock Exchange or such other securities exchange on which the Common Stock is
listed or quoted on such date.
The "DOLLAR PRICE" shall have the meaning set forth in Section 7.13(a)
of the Reorganization Agreement, subject to adjustment as provided below in
Section 7(D) of this Certificate of Designation.
The "EFFECTIVE TIME" shall have the meaning set forth in Section 2.1 of
the Reorganization Agreement.
The "PRICE TARGET" shall have the meaning set forth in Section 7.13(b)
of the Reorganization Agreement, subject to adjustment as provided in Section
7(D) of this Certificate of Designation.
The "MINIMUM PRICE" shall have the meaning set forth in Section 7.13(c)
of the Reorganization Agreement, subject to adjustment as provided below in
Section 7(D).
The "MARKET VALUE TRIGGER" shall have the meaning set forth in Section
7.13(d) of the Reorganization Agreement. The Corporation shall give written
notice (which notice may, but is not required to, be given in a Corporation
Conversion Notice) to the holders of shares of the Series B Preferred Stock as
soon as practicable upon the achievement of the Market Value Trigger, it being
understood that any failure to deliver such notice shall be irrelevant in
24
determining whether the Market Value Trigger has been achieved.
Series B Preferred Stock shall be deemed to be "FREELY TRADEABLE" to
the extent that
(a) a registration statement on Form S-3 (or other applicable
form) is effective with respect to the shares of Common Stock into
which the outstanding shares of Series B Preferred Stock are
convertible, and will remain effective until the earlier of the date 90
days after such effective date or the date on which all registered
shares have been sold or holders request withdrawal of registration; or
(b) the holder of the Series B Preferred Stock can freely sell the
Common Stock into which such Series B Preferred Stock is convertible
within 90 days pursuant to Rule 144. It is understood and agreed that,
if the Corporation is relying on this clause (b) to satisfy the Market
Value Trigger, then, for any holder of shares of Series B Preferred
Stock who, after converting such holder's shares into Common Stock,
would not be permitted to sell all of such shares of Common Stock
within 90 days because of the volume limitations set forth in Rule 144,
the Market Value Trigger shall be achieved only with respect to the
shares of Series B Preferred Stock that, upon conversion into Common
Stock, could be sold within such 90 day period, and shall not be
achieved with respect to the remaining shares of Series B Preferred
Stock held by such holder (such remaining shares being referred to as
the "VOLUME LIMITED SHARES"). The Market Value Trigger shall be deemed
to be achieved with respect to any such Volume Limited Shares if the
average of the Daily Per Share Prices of Common Stock for any five
trading days (whether or not consecutive) during any period of 20
consecutive trading days beginning on or after the ninety-first day
following the achievement of a Market Value Trigger with respect to
non-Volume Limited Shares, is equal to or greater than the Price
Target. Notwithstanding the foregoing, if any Series B Preferred Stock
would have been Freely Tradeable if still held by the Initial Holder of
such Series B Preferred Stock, then such Series B Preferred Stock shall
be deemed Freely Tradeable even if such Series B Preferred Stock has
been or later is transferred to a Permitted Transferee. The holders of
Series B Preferred Stock will cooperate with the Corporation in any of
the Corporation's efforts to register the shares of Common Stock into
which the Series B Preferred Stock is convertible.
(3) If on or after the Adjustment Date (x) any holder of Series B
Preferred Stock causes, after the earlier of the 30th day after the Adjustment
Date and the 10th day after written notice to the Corporation by such holder of
Series B Preferred Stock, the conversion of such Series B Preferred Stock into
Common Stock pursuant to Section 6(C) of this Certificate of Designation, (y)
the Market Value Trigger has not been achieved and (z) the Corporation has not
given a Corporate Conversion Notice, then, notwithstanding Section 6(E)(1) of
this Certificate of Designation, each share of Series B Preferred Stock so
converted shall be converted into a number of shares of Common Stock equal to
the product obtained by multiplying (a) the Initial Conversion Rate (as adjusted
pursuant to Section 7(A)-(C) of this Certificate of Designation) by (b) a
fraction (which shall in no event be less than 1.00) of which the numerator is
the Price
25
Target, and of which the denominator is the Third Anniversary Adjustment Price.
(4) If the Corporation gives a Corporation Conversion Notice on
any date (a) after the first anniversary of the Effective Time, (b) prior to the
first date subsequent to such first anniversary on which a Market Value Trigger
is achieved and (c) prior to the end of the 60th day following the Adjustment
Date, and if, at such time the Adjustment Price is less than the Price Target,
then the Corporation shall have the option (by notice given in the Corporation
Conversion Notice) to require a portion of the Deliverable Common Stock Amount
to be delivered into an escrow account established with Chase Manhattan or
another nationally recognized escrow agent selected by the Corporation (the
"CONVERSION ESCROW ACCOUNT"), which portion may not exceed the quotient obtained
by dividing (i) the difference equal to (x) the Price Target minus (y) the
Adjustment Price by (ii) the Price Target. The Corporation shall be required to
repurchase the shares of Common Stock so delivered into the Conversion Escrow
Account on the third day (or, if such day is not a business day, then on the
next succeeding business day) for an amount per share in cash equal to the
Adjustment Price. Notwithstanding anything to the contrary herein, the
Corporation shall not be permitted to make the election described in this
Section 6(E)(4) unless it has delivered an Officers' Certificate to the effect
that, at the time that the applicable Corporation Conversion Notice is given,
there has been no Actual Repurchase nor is there a Planned Repurchase that
individually or in the aggregate would result in the Actual Ownership being
equal to or greater than the Original Ownership. The cash delivered by the
Corporation into the Conversion Escrow Account shall be promptly delivered by
the escrow agent to the appropriate holders. "OFFICERS' CERTIFICATE" means a
certificate signed by the Chairman of the Board of Directors or the President or
any Vice President (whether or not designated by a number or numbers or a word
or words added before or after the title "Vice President") and by the Treasurer
or the Secretary or any Assistant Secretary of the Corporation.
"ACTUAL OWNERSHIP" means a fraction (x) the numerator of which is the
difference equal to the Deliverable Common Stock Amount minus the number of
shares of Common Stock to be repurchased by the Corporation pursuant to, as
applicable, Section 6(E)(4) or 6(E)(7) and (y) the denominator of which is the
total outstanding shares of Common Stock immediately after the applicable
repurchase (taking into account any Actual Repurchase and Planned Repurchase).
"ORIGINAL OWNERSHIP" means a fraction (x) the numerator of which is the
Deliverable Common Stock Amount and (y) the denominator of which is the sum of
(I) the total outstanding shares of Common Stock immediately before the
applicable conversion and (II) the Deliverable Common Stock Amount (without
taking into account any Actual Repurchase and Planned Repurchase).
"PLANNED REPURCHASE" means any purchase of Common Stock by the
Corporation or any affiliate from stockholders (other than holders of Series B
Preferred Stock) made within six (6) months after the applicable Corporation
Conversion Notice is given and pursuant to a plan which exists at the time such
notice is given.
26
"ACTUAL REPURCHASE" means any purchase of Common Stock by the
Corporation or any affiliate from stockholders (other than holders of Series B
Preferred Stock) made within six (6) months prior to the date that the
applicable Corporation Conversion Notice is given but only if such purchase is
made pursuant to a plan that (i) exists at the time of such purchase and
continues through the date of the applicable Corporation Conversion Notice and
(ii) that includes the applicable repurchase of shares in the Conversion Escrow
Account.
(5) If the Corporation has not given a Corporation Conversion
Notice on or after the Adjustment Date with respect to any shares of Series B
Preferred Stock then outstanding, then, prior to the end of the sixtieth (60th)
day following the Adjustment Date, the holders of a majority of the shares of
Series B Preferred Stock then outstanding may require, by written notice, the
Corporation to deliver as soon as practicable a Corporation Conversion Notice
with respect to the conversion of all outstanding shares of the Series B
Preferred Stock, it being understood that if the Corporation gives a Corporation
Conversion Notice within 10 days after receipt by the Corporation of a written
notice from a majority of the shares of Series B Preferred Stock then
outstanding, then the Corporation shall have the option (by notice given in such
Corporation Conversion Notice) to require a portion of the shares of Common
Stock that would otherwise be delivered upon conversion of such shares to be
delivered into a Conversion Escrow Account in accordance with Section 6(E)(4) of
this Certificate of Designation.
(6) The Corporation shall give a Corporation Conversion Notice
immediately prior to the consummation of any Significant Business Transaction.
A "SIGNIFICANT BUSINESS TRANSACTION" shall mean the sale of all or
substantially all of the Corporation's assets to another corporation in a single
transaction or series of related transactions or a merger, consolidation or
other business combination in which, following such transaction, Common Stock
(or, if in such transaction, the holders of the Common Stock receive stock of
another corporation, the stock of such other corporation) is not listed on the
New York Stock Exchange, NASDAQ or another national securities exchange.
(7) If the Corporation gives a Corporation Conversion Notice at
any time after the first anniversary of the Effective Time and before the end of
the 60th day after the Adjustment Date, and if, at such time the Adjustment
Price is less than the Minimum Price, then, without limiting the Corporation's
rights under Section 6(E)(4) above and notwithstanding Sections 6(D) and 6(E)(1)
of this Certificate of Designation, if a majority of the outstanding shares of
Series B Preferred Stock subject to such Corporation Conversion Notice elect,
the Corporation shall be required to deliver into the Conversion Escrow Account
a portion of the Deliverable Common Stock Amount. Such portion shall be equal to
a fraction of which the numerator is the Minimum Price minus the Adjustment
Price and of which the denominator is the Minimum Price. In determining whether
to make the election set forth in the first sentence of this Section 6(E)(7),
each holder of such Series B Preferred Stock subject to such Corporation
Conversion Notice shall be entitled to request and rely upon an Officers'
Certificate to the effect that, at the time that the applicable Corporation
Conversion Notice is given, there has been no Actual Repurchase nor is there a
Planned Repurchase that would result in the holder's Actual Ownership being
27
equal to or greater than such holder's Original Ownership. The Corporation shall
be required to repurchase the shares of Common Stock so delivered into the
Conversion Escrow Account as determined above in this Section 6(E)(7) on the
third day after such delivery (or, if such day is not a business day, then on
the next succeeding business day) for an amount per share (in cash) or a
principal amount per share (in 3-year notes of the Corporation (bearing a market
rate of interest to be agreed between the Corporation and the Principal
Shareholders and without financial covenants)) equal to the Adjustment Price.
The cash or notes delivered by the Corporation into the Conversion Escrow
Account shall be promptly delivered by the escrow agent to the appropriate
holders.
(F) The Corporation shall at all times reserve and keep
available, out of its authorized but unissued Common Stock, such number of
shares of Common Stock as would become issuable upon the conversion of all
shares of Series B Preferred Stock then outstanding.
Section 7. Anti-Dilution and Adjustment Provisions.
(A) In case the Corporation shall (i) pay a dividend or
make a distribution in shares of Common Stock, (ii) subdivide its outstanding
shares of Common Stock into a greater number of shares or (iii) combine its
outstanding shares of Common Stock into a smaller number of shares, the Initial
Conversion Rate in effect immediately prior to such action shall be adjusted so
that the holder of any shares of the Series B Preferred Stock thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Common Stock which such holder would have owned or have been entitled to receive
immediately following such action had such shares been converted immediately
prior thereto. An adjustment made pursuant to this Section 7(A) shall become
effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision or combination.
(B) In case the Corporation shall consolidate with or
merge into any other Person (other than in a transaction constituting a
Significant Business Transaction as set forth in Section 6(E)(6) of this
Certificate of Designation), then the Initial Conversion Rate in effect at the
time of consolidation or merger shall be adjusted so that the holder of any
shares of the Series B Preferred Stock thereafter surrendered for conversion
shall be entitled to receive the number of shares of Common Stock or other
securities of the Corporation (or shares or other securities of any person into
which such shares of Common Stock have been converted in such consolidation or
merger) and the amount of cash or other property which such holder would have
owned or have been entitled to receive immediately following such action had
such shares been converted immediately prior to such consolidation or merger,
assuming such holder of Common Stock failed to exercise any rights of election
as to the kind or amount of securities, cash and other property receivable upon
such consolidation or merger (provided, that if the kind or amount of
securities, cash and other property receivable upon such consolidation or merger
is not the same for each share of Common Stock held immediately prior to such
consolidation or merger by other than a constituent person or an affiliate
thereof and in respect of which such rights of election shall not have been
exercised ("NON-ELECTING SHARE"), then for the purpose of this subparagraph the
kind and amount of securities, cash and other property receivable upon such
28
consolidation or merger by each non-electing share shall be deemed to be the
kind and amount so receivable per share by a plurality of the non-electing
shares). Such adjustment shall be made successively whenever any event listed
above shall occur.
(C) Notwithstanding the foregoing, the Corporation will
not be required to make any adjustment to the Initial Conversion Rate unless
such adjustment would result in an increase or decrease of at least 1% in such
rate; provided, however, that all smaller adjustments will be carried forward
and taken into account in any subsequent adjustment. All adjustments to the
Initial Conversion Rate will be calculated to the nearest 1/100 of a share of
Common Stock (with 5/1000 of a share being rounded down to the next lower 1/100
of a share).
(D) The Price Target, Minimum Price, Dollar Price,
Permitted Hedging Lower Price and Permitted Hedging Higher Price as set forth in
Section 7.13 of the Reorganization Agreement and for purposes of Section 6(C)
and 6(E) of this Certificate of Designation, as the case may be, shall be
subject to adjustment from time to time as follows:
(1) In case the Initial Conversion Rate shall be adjusted pursuant
to Section 7(A)-(C) of this Certificate of Designation, the
Price Target, Minimum Price, Dollar Price, Permitted Hedging
Lower Price and Permitted Hedging Higher Price shall each be
adjusted to a price, computed to the nearest cent, so that the
same shall equal the price determined by multiplying the Price
Target, Minimum Price, Dollar Price, Permitted Hedging Lower
Price and Permitted Hedging Higher Price, respectively, by a
fraction the numerator of which is the Initial Conversion Rate
in effect immediately preceding such adjustment and the
denominator of which is the Initial Conversion Rate in effect
immediately following such adjustment.
(2) In case the Corporation shall issue rights or warrants to all
holders of Common Stock entitling them (for a period not
exceeding 45 days from the date of such issuance) to subscribe
for or purchase shares of Common Stock at a price per share
less than the current market price per share (as determined
pursuant to Section 8(C) of this Certificate of Designation)
of the Common Stock on the record date mentioned below, the
Price Target, Minimum Price, Dollar Price, Permitted Hedging
Lower Price and Permitted Hedging Higher Price shall each be
adjusted so that the same shall equal the number determined by
multiplying such prices as in effect immediately prior to the
date of issuance of such rights or warrants by a fraction, of
which
(x) the numerator shall be (A) the number of shares of
Common Stock outstanding on the date of issuance of such
rights or warrants, immediately prior to such issuance, plus
(B) the number of shares of Common Stock which the aggregate
offering price of the total number of shares so offered for
subscription or purchase would purchase at such current market
price (determined by multiplying such total number of shares
by the exercise price of such rights or warrants and dividing
the product so obtained by such current market price), and
29
of which
(y) the denominator shall be (A) the number of shares of
Common Stock outstanding on the date of issuance of such
rights or warrants, immediately prior to such issuance, plus
(B) the number of additional shares of Common Stock which are
so offered for subscription or purchase.
Such adjustment shall become effective immediately after the record
date for the determination of holders entitled to receive such rights
and warrants.
(3) In case the Corporation shall distribute to substantially all
holders of Common Stock evidences of indebtedness, equity
securities (including equity interests in the Corporation's
Subsidiaries (as hereinafter defined)) other than the Common
Stock, or other assets (other than cash dividends in an amount
not in excess of 200% of the Corporation's regular quarterly
cash dividends for the last 4 quarters preceding the date of
the Reorganization Agreement, as adjusted for any stock
splits, dividends or combinations or other similar events
after the date of the Reorganization Agreement), or shall
distribute to substantially all holders of Common Stock rights
or warrants to subscribe for securities (other than those
referred to in Section 7(D)(2) of this Certificate of
Designation), then in each such case the Price Target shall be
adjusted so that the same shall equal the Price Target in
effect on the record date for the determination of holders of
shares of Series B Preferred Stock entitled to receive such
distribution less the then fair market value (as determined in
good faith by the Board of Directors, whose determination
thereof shall be conclusive) of the portion of the assets,
evidences of indebtedness and equity securities so distributed
or of such subscription rights or warrants applicable to one
share of Common Stock. As used herein, the term "Subsidiary"
means (x) any corporation or other entity of which securities
or other ownership interest having ordinary voting power to
elect a majority of the board of directors or other person
performing similar functions are at the time directly or
indirectly owned by the Corporation or (y) any partnership of
which more than 50% of the partnership interests are owned by
the Corporation or any Subsidiary. Upon such Price Target
adjustment, the Minimum Price, Dollar Price, Permitted Hedging
Lower Price and Permitted Hedging Higher Price shall each be
adjusted to a price, computed to the nearest cent, so that the
same shall equal the price determined by multiplying the
Minimum Price, Dollar Price, Permitted Hedging Lower Price and
Permitted Hedging Higher Price respectively, by a fraction of
which the numerator is the Price Target immediately following
such adjustment and of which the denominator is the Price
Target immediately prior to such adjustment.
Section 8. Fractional Shares.
(A) Series B Preferred Stock may be issued in ractions of
a share which shall
30
entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series B Preferred Stock.
(B) No fractional shares of Common Stock will be issued
upon conversion of the Series B Preferred Stock. In lieu of any fractional share
otherwise issuable in respect of all Series B Preferred Stock of any holder
which is converted on any conversion date, such holder shall be entitled to
receive an amount in cash equal to the same fraction of the current market price
per share (as determined pursuant to Section 8(C) below) of the Common Stock on
the second trading day immediately preceding the conversion.
(C) For purposes of any computation under Section 7(D) of
this Certificate of Designation and this Section 8, the current market price per
share of Common Stock on any date shall be deemed to be the average of the high
and low prices of a share of Common Stock on the New York Stock Exchange or such
other securities exchange on which the Common Stock is listed or quoted on such
day for the 10 trading days ending on the trading day prior to such date.
Section 9. Waiver.
(A) To the fullest extent permitted by law, any provision
of this Certificate of Designation may be waived as to the Corporation or any
holder or holders of Series B Preferred Stock without the consent of the holders
of Common Stock or the other holders of Series B Preferred Stock if, but only
if, that waiver is in writing and is signed, in the case of a waiver, by the
party or parties against whom the waiver is to be effective; provided that any
waiver that would materially adversely affect the preferences, rights or powers
of the other holders of Series B Preferred Stock shall also require the prior
written consent of the holders of a majority of the Series B Preferred Stock.
(B) No failure or delay on the part of the Corporation in
exercising any right, power or privilege under this Certificate of Designation
shall operate as a waiver, nor shall any single or partial exercise preclude any
other or further exercise of any other right, power or privilege.
31