EXHIBIT 3.i
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.
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 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
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terms and conditions upon which the shares are convertible into other
classes of stock of the Corporation, if such shares are to be convertible.
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 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.
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(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 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
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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
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
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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 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
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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 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).
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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 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
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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.
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
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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.
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 23rd day of February, 2006.
MASCO CORPORATION
By: /s/ Richard A. Manoogian
------------------------------------
Richard A. Manoogian
Chairman of the Board and
Chief Executive Officer
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