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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 its original Certificate of Incorporation with the Secretary of State
was June 15, 1962.
2. 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.
3. 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
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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 four hundred one million (401,000,000) shares.
Four hundred million (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
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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 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 preemptive 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.
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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
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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 stock- holder'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.
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(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
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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 and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise
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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
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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 Corpora- tion'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-
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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 stock- holders 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
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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.
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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.
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
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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
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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.
4. 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.
IN WITNESS WHEREOF, said MASCO CORPORATION has caused its
corporate seal to be affixed and this Certificate to be signed by Richard A.
Manoogian, its Chairman of the Board, and attested by Gerald Bright, its
Secretary, this 25th day of May, 1988.
MASCO CORPORATION
BY /s/ Richard A. Manoogian
-----------------------------
Richard A. Manoogian
Chairman of the Board
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ATTEST:
/s/ Gerald Bright
- -----------------------
Gerald Bright
Secretary
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STATE OF MICHIGAN )
)
COUNTY OF WAYNE )
I, , a notary public, do hereby certify
that on this 25th day of May, 1988, personally appeared before me Richard A.
Manoogian, who, being by me first duly sworn, declared that he is the Chairman
of the Board of Masco Corporation, that he signed the foregoing document as
the act and deed of said corporation, and that the statements therein contained
are true.
/s/ Terry Lynn Przybylo
-----------------------
Notary Public
Wayne County, Michigan
My commission expires:
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CERTIFICATE OF MERGER
OF
WASTE KING, INC.
INTO
MASCO CORPORATION
Masco Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the "GCL"),
certifies that:
FIRST: The name and state of incorporation of each of the constituent
corporations is as follows:
State of
Name Incorporation
---- -------------
Masco Corporation ("Masco") Delaware
Waste King, Inc. ("Waste King") Delaware
SECOND: An Agreement of Merger between Masco and Waste King with
respect to the merger of Waste King into Masco (the "Merger"), has been
approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with Section 251 of the GCL.
THIRD: That the name of the surviving corporation of the Merger is
Masco Corporation, a Delaware corporation.
FOURTH: That the Restated Certificate of Incorporation of Masco, which
is the surviving corporation, shall continue in full force and effect as the
Restated Certificate of Incorporation of the surviving corporation.
FIFTH: The executed Agreement is on file at the principal place of
business of the surviving corporation, 21001 Van Born Road, Taylor, Michigan
48180.
SIXTH: A copy of the Agreement will be furnished by the surviving
corporation, on request and without cost, to any stockholder of the constituent
corporations.
SEVENTH: This Certificate of Merger shall be effective as of January
1, 1993.
MASCO CORPORATION
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By /s/ Richard G. Mosteller
-------------------------
Richard G. Mosteller
Senior Vice President - Finance
ATTEST:
By /s/ Gerald Bright
------------------------
Gerald Bright
Secretary
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Exhibit A
CERTIFICATE OF DESIGNATION
OF
SERIES A PARTICIPATING CUMULATIVE
PREFERRED STOCK
OF
MASCO CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the
State of Delaware
We, Richard G. Mosteller, Senior Vice President - Finance, and Eugene
A. Gargaro, Jr., Vice President and Secretary, of Masco Corporation, a
corporation organized and existing under the General Corporation Law of the
State of Delaware ("Delaware Law"), in accordance with the provisions thereof,
DO HEREBY CERTIFY:
That 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 the following 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 thereof as follows:
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.
20
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.
21
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 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));
22
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
23
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
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
24
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
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
25
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.
26
(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.
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
27
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 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
28
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
29
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The 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.
30
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
this 12th day of December, 1995.
/s/ Richard G. Mosteller
--------------------------------
Richard G. Mosteller
Senior Vice President - Finance
Masco Corporation
Attest:
/s/ Eugene A. Gargaro, Jr.
- -------------------------------
Eugene A. Gargaro, Jr.
Vice President and Secretary
Masco Corporation
31
CERTIFICATE OF MERGER
OF
LA GARD, INC.
INTO
MASCO CORPORATION
Masco Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the "GCL"),
certifies that:
FIRST: The name and state of incorporation of each of the
constituent corporations are as follows:
State of
Name Incorporation
---- -------------
La Gard, Inc. ("La Gard") California
Masco Corporation ("Masco") Delaware
SECOND: An Agreement and Plan of Reorganization dated February 21,
1997 (the "Agreement"), among Masco, La Gard and the Shareholders of La Gard,
with respect to, among other things, the merger of La Gard into Masco (the
"Merger"), has been approved, adopted, certified, executed and acknowledged by
each of the constituent corporations in accordance with the requirements of
Section 252 of the GCL.
THIRD: That the name of the surviving corporation of the Merger is
Masco Corporation, a Delaware corporation.
FOURTH: That the Restated Certificate of Incorporation of Masco
Corporation, a Delaware corporation which is surviving the merger, shall be the
Certificate of Incorporation of the surviving corporation.
FIFTH: The executed Agreement is on file at the principal place of
business of the surviving corporation 21001 Van Born Road, Taylor, Michigan
48180.
SIXTH: A copy of the Agreement will be furnished by the surviving
corporation, on request and without cost, to any stockholder of Masco and La
Gard.
SEVENTH: The authorized capital stock of LaGard, Inc., the foreign
corporation which is a party to the merger is 1,000,000 shares of Common Stock,
no par value, of which 134,000 shares are issued, outstanding and owned by the
Stockholders.
32
EIGHTH: The Merger has been approved by the Shareholders of LaGard,
Inc.
This Certificate of Merger shall be effective as of filing with the
Secretary of State of Delaware.
MASCO CORPORATION
By /s/ Richard G. Mosteller
------------------------
Richard G. Mosteller
Vice President
ATTEST:
By /s/ Eugene A. Gargaro, Jr.
-----------------------------
Eugene A. Gargaro, Jr.
33
CERTIFICATE OF MERGER
OF
TEXWOOD INDUSTRIES, INC.
INTO
MASCO CORPORATION
Masco Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the "GCL"),
certifies that:
FIRST: The name and state of incorporation of each of the
constituent corporations are as follows:
State of
Name Incorporation
---- -------------
Texwood Industries, Inc. Texas
Masco Corporation Delaware
SECOND: An Agreement and Plan of Reorganization dated July 24, 1997
(the "Agreement") among Masco Corporation, Texwood Industries, Inc. and the
shareholders of Texwood Industries, Inc., with respect to, among other things,
the merger of Texwood Industries, Inc. into Masco Corporation (the "Merger"),
has been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of Section 252 of
the GCL.
THIRD: That the name of the surviving corporation of the Merger is
Masco Corporation, a Delaware corporation.
FOURTH: That the Restated Certificate of Incorporation of Masco
Corporation, a Delaware corporation which is surviving the merger, shall be the
Certificate of Incorporation of the surviving corporation.
FIFTH: The executed Agreement is on file at the principal place of
business of the surviving corporation, the address of which is 21001 Van Born
Road, Taylor, Michigan 48180.
34
SIXTH: A copy of the Agreement will be furnished by the surviving
corporation, on request and without cost, to any stockholder of either
constituent corporation.
SEVENTH: The authorized capital stock of Texwood Industries, Inc.,
the foreign corporation which is a party to the Merger, is 100,000 shares of
common stock, $1 par value.
EIGHTH: The Merger shall become effective upon filing the
Certificate of Merger with the Secretary of State of Delaware and the Articles
of Merger with the Secretary of State of Texas.
IN WITNESS WHEREOF, Masco Corporation has caused this Certificate of
Merger to be signed by a Vice President and attested by its Secretary this 25th
day of July, 1997.
MASCO CORPORATION
By /s/ John R. Leekley
-------------------------
John R. Leekley
Senior Vice President
ATTEST:
By /s/ Eugene A. Gargaro, Jr.
-----------------------------
Eugene A. Gargaro,Jr.
Secretary