EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
of
BAXTER INTERNATIONAL INC.
* * * * *
Baxter International Inc., a Delaware corporation initially incorporated on
October 19, 1931 as Don Baker Intravenous Products Corporation, has duly adopted
by action of its board of directors the following restated certificate of
incorporation in accordance with the provisions of Section 245 of the General
Corporation Law of Delaware. This restatement restates and integrates but does
not further amend the provisions of the corporation's certificate of
incorporation as theretofore amended and supplemented and there is no
discrepancy between those provisions and the provisions of the restated
certificate.
FIRST: The name of the corporation is Baxter International Inc.
SECOND: The registered office of the corporation in the State of Delaware
is located at 1209 Orange Street in the City of Wilmington, County of New
Castle. The name of the registered agent of the corporation is The Corporation
Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is Four Hundred Fifty Million (450,000,000) shares, of
which One Hundred Million (100,000,000) shares of no par value shall be
preferred stock (the "Preferred Stock") and of which Three Hundred Fifty Million
(350,000,000) shares, of the par value of One Dollar ($1) each, amounting in the
aggregate to Three Hundred Fifty Million Dollars ($350,000,000), shall be common
stock (the "Common Stock").
Authority is hereby expressly granted to and vested in the board of
directors of the corporation to provide for the issue of the Preferred Stock in
one or more series and in connection therewith to fix by resolutions providing
for the issue of such series the number of shares to be included in such series
and the designations and such voting powers, full or limited, or no voting
powers, and such of the preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or restrictions
thereof, of such series of the Preferred Stock which are not fixed by the
certificate of incorporation, to the full extent now or hereafter permitted by
the laws of the State of Delaware. Without limiting the generality of the grant
of authority contained in the preceding sentence, the board of directors is
authorized to determine any or all of the
following, and the shares of each series may vary from the shares of any other
series in any or all of the following respects:
1. The number of shares of such series (which may subsequently be
increased, except as otherwise provided by the resolutions of the board of
directors providing for the issue of such series, or decreased to a number not
less than the number of shares then outstanding) and the distinctive designation
thereof;
2. The dividend rights, if any, of such series, the dividend preferences,
if any, as between such series and any other class or series of stock, whether
and the extent to which shares of such series shall be entitled to participate
in dividends with shares of any other series or class of stock, whether and the
extent to which dividends on such series shall be cumulative, and any
limitations, restrictions or conditions on the payment of such dividends;
3. The time or times during which, the price or prices at which, and any
other terms or conditions on which the shares of such series many be redeemed,
if redeemable;
4. The rights of such series, and the preferences, if any, as between
such series and any other class of series of stock, in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
corporation and whether and the extent to which shares of any such series shall
be entitled to participate in such event with any other class or series of
stock;
5. The voting powers, if any, in addition to the voting powers prescribed
by law of shares of such series, and the terms of exercise of such voting
powers;
6. Whether shares of such series shall be convertible into or
exchangeable for shares of any other series or class of stock, or any other
securities, and the terms and conditions, if any, applicable to such rights;
7. The terms and conditions, if any, of any purchase, retirement or
sinking fund which may be provided for the shares of such series.
Series A Junior Participating Preferred Stock.
The terms of the corporation's Series A Junior Participating Preferred Stock are
incorporated from the restated Certificate of Designation pursuant to which it
was created into the certificate of incorporation as follows:
RESOLVED, that pursuant to the authority vested in the board of directors of the
Corporation by the Restated Certificate of Incorporation, the board of directors
does hereby create, authorize and provide for the issue of a series of Preferred
PAGE 2
Stock, without par value, of the Corporation, to be designated "Series A Junior
Participating Preferred Stock" (hereinafter referred to as the "Series A
Preferred Stock"), initially consisting of 3,500,000 shares, and to the extent
that the designations, powers, preferences and relative and other special rights
and the qualifications, limitations or restrictions of the Series A Preferred
Stock are not stated and expressed in the Restated Certificate of Incorporation,
does hereby fix and herein state and express such designations, powers,
preferences and relative and other special rights and qualifications,
limitations and restrictions thereof, as follows:
Section 1. Designation and Amount. The shares of such series shall be
----------------------
designated as "Series A Junior Participating Preferred Stock" and the number of
shares constituting such series shall be 3,500,000.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Junior Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating 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 in cash on
the first day of January, April, July and October in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $5.00
or (b) subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock, par value $1 per share, of the
Corporation (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
Junior Participating Preferred Stock. In the event the Corporation shall at any
time after March 20, 1989 (the "Rights Declaration Date") (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to which holders of
shares of Series A Junior Participating 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
PAGE 3
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 Junior Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, subject to the prior and superior
rights of the holders of any shares of any series of Preferred Stock ranking
prior to and superior to the shares of Series A Junior Participating Preferred
Stock with respect to dividends, a dividend of $5.00 per share on the Series A
Junior Participating 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 Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
A Junior Participating Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
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 Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
-------------
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Junior Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders or
the Corporation. In the event the Corporation shall at any time after the
Rights
PAGE 4
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the number of votes per share to which holders of shares of Series A Junior
Participating 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 Junior Participating Preferred Stock and the holders of shares of
Common Stock shall vote collectively as one class on all matters submitted to a
vote of stockholders of the Corporation.
(C) If at the time of any annual meeting of stockholders for the election
of directors a default in preference dividends on the Preferred Stock shall
exist, the number of directors constituting the board of directors of the
Corporation shall be increased by two, and the holders of the Preferred Stock of
all series shall have the right at such meeting, voting together as a single
class without regard to series, to the exclusion of the holders of Common Stock,
to elect two directors of the Corporation to fill such newly created
directorships. Such right shall continue until there are no dividends in arrears
upon the Preferred Stock. Each director elected by the holders of shares of
Preferred Stock (herein called a "Preferred Director"), shall continue to serve
as such director for the full term for which he shall have been elected,
notwithstanding that prior to the end of such term a default in preference
dividends shall cease to exist. Any Preferred Director may be removed by, and
shall not be removed except by, the vote of the holders of record of the
outstanding shares of Preferred Stock, voting together as a single class without
regard to series, at a meeting of the stockholders, or of the holders of shares
of Preferred Stock, called for the purpose. So long as a default in any
preference dividends on the Preferred Stock shall exist (A) any vacancy in the
office of a Preferred Director may be filled (except as provided in the
following clause (B)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (B) in the case of the
removal of any Preferred Director, the vacancy may be filled by the vote of the
holders of the outstanding shares of Preferred Stock, voting together as a
single class without regard to series, at the same meeting at which such removal
shall be voted. Each director appointed as aforesaid by the remaining Preferred
Director shall be deemed, for all purposes hereof, to be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end and a default
in preference dividends shall no longer exist, the number of directors
constituting the board of directors of the Corporation shall be reduced by two.
For the purposes hereof, a "default in preference dividends" on the Preferred
Stock shall be deemed to have occurred whenever the amount of accrued dividends
upon any series of the Preferred Stock
PAGE 5
shall be equivalent to six full quarter-yearly dividends or more, and, having so
occurred, such default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all shares of Preferred Stock of each and every
series then outstanding shall have been paid or declared and set apart for
payment to the end of the last preceding quarterly dividend period.
(D) Except as set forth herein, holders of Series A Junior Participating
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating 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 Junior Participating
Preferred Stock, except dividends paid ratably on the Series A Junior
Participating Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior Participating Preferred
Stock, provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares of any
stock of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Junior Participating
Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of
Series A Junior Participating Preferred Stock, or any shares of stock ranking on
a parity with the Series A Junior Participating Preferred Stock, except in
accordance with a purchase offer made in writing or by publication (as
determined by the board of directors) to all holders of such shares upon such
terms as the board of directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series and classes, shall determine
PAGE 6
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 consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Required Shares. Any shares of Series A Junior Participating
---------------
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the board of
directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. Liquidation, Dissolution or Winding Up.
--------------------------------------
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Series A Junior Participating
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment (the "Series A Liquidation Preference"). Following
the payment of the full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series A
Junior Participating Preferred Stock unless, prior thereto, the holders of
shares of Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause
(iii), the "Adjustment Number"). Following the payment of the full amount of the
Series A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A Junior Participating Preferred Stock and Common
Stock, respectively, holders of Series A Junior Participating Preferred Stock
and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of
the Adjustment Number to 1 with respect to such Preferred Stock and Common
Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Junior Participating Preferred Stock,
then such remaining assets
PAGE 7
shall be distributed ratably to the holders of such parity shares in proportion
to their respective liquidation preferences. In the event, however, that there
are not sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment 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.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into
---------------------------
any consolidation, merger, combination or other transaction in which the shares
of Common Stock are exchanged for or changed into other stock of securities,
cash and/or any other property, then in any such case the shares of Series A
Junior Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, case and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, 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 Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Junior Participating Preferred
-------------
Stock shall not be redeemable.
Section 9. Ranking. The Series A Junior Participating Preferred Stock shall rank
-------
junior to all other series of the Corporation's Preferred Stock, as to the
payment of dividends and the distribution of assets whether or not upon the
dissolution, liquidation or winding up of the Corporation, unless the terms of
any such series shall provide otherwise.
PAGE 8
Section 10. Amendment. The Restated Certificate of Incorporation of the
---------
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority or more of the outstanding shares
of Series A Junior Participating Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Junior Participating Preferred Stock may
-----------------
be issued in fractions of a share which shall entitle the holder, in proportion
to such holders' 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 Junior Participating Preferred Stock.
FIFTH: The number of directors which shall constitute the whole board of
directors of the corporation shall be the number from time to time fixed by
the board of directors but in no event shall be less than twelve or more than
twenty. A decrease in the number of directors shall not affect the term of
office of any director then in office.
Any vacancy on the board of directors that results from an increase in the
number of directors may be filled by a majority of the directors then in office;
and any other vacancy on the board of directors may be filled by a majority of
the directors then in office, although less than a quorum, or by a sole
remaining director.
SIXTH: The board of directors shall be divided into three classes. The term of
office for one class of directors will expire each year at the annual meeting of
stockholders, or thereafter in each case until the directors' respective
successors are elected and qualified. The directors chosen to succeed those
whose terms are expiring shall be identified as being of the same class as the
directors whom they succeed and shall be elected for a term expiring at the
third succeeding annual meeting of stockholders or thereafter in each case until
their respective successors are elected and qualified, subject to death,
resignation retirement or removal from office.
Any new positions created as a result of the increase in the number of directors
shall be allocated to make the classes of directors as nearly equal as possible.
Any director elected to fill a term resulting from an increase in the number of
directors shall have the same term as the other members of his class. A director
elected to fill any other vacancy shall have the same remaining term as that of
his predecessor.
Notwithstanding the foregoing, whenever the holders of any one or more classes
or series of Preferred 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
PAGE 9
incorporation application thereto, and such directors so elected shall not be
divided into classes pursuant to this Article SIXTH unless expressly provided by
such terms.
This Article SIXTH may not be amended or repealed without the affirmative vote
of at least two-thirds of the holders of all the securities of the corporation
then entitled to vote on such change.
SEVENTH: The board of directors shall have such powers as are permitted by the
General Corporation Law of Delaware, including, without limitation, without the
assent or vote of the stockholders, to make, alter, amend, change, add to, or
repeal the by-laws of the corporation; to fix and vary the amount to be reserved
as working capital; to authorize and cause to be executed mortgages and liens
upon all the property of the corporation, or any part thereof, to determine the
use and disposition of any surplus or net profits over and above the capital
stock paid in, and to fix the times for the declaration and payment of
dividends.
EIGHTH: To the fullest extent permitted by the General Corporation Law of
Delaware as the same exists or may hereafter be amended, a director of the
corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
NINTH: The corporation shall indemnify and advance expenses to each person who
serves as an officer or director of the corporation or a subsidiary of the
corporation and each person who serves or may have served at the request of the
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust or other enterprise from any liability
incurred as a result of such service to the fullest extent permitted by the
General Corporation Law of Delaware as it may from time to time be amended,
except with respect to an action commenced by such director or officer against
the corporation or by such director or officer as a derivative action by or in
the right of the corporation. Each person who is or was an employee or agent of
the corporation and each officer or director who commences any action against
the corporation or a derivative action by or in the right of the corporation may
be similarly indemnified and receive an advance of expenses at the discretion of
the board of directors.
The indemnification and advancement of expenses provided by, or granted pursuant
to, the certificate of incorporation shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
The corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another
PAGE 10
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under the certificate of
incorporation or Delaware law.
The indemnification and advancement of expenses provided by, or granted pursuant
to, the certificate of incorporation shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
TENTH: No amendment to the certificate of incorporation or repeal of any
Article of the certificate of incorporation shall increase the liability or
alleged liability or reduce or limit the right to indemnification of any
directors, officers or employee of the corporation for acts or omissions of such
person occurring prior to such amendment or repeal.
ELEVENTH: No action which requires the vote or consent of stockholders of the
corporation may be taken without a meeting and vote of stockholders and the
power of stockholders to consent in writing without a meeting to the taking of
any action is specifically denied.
IN WITNESS WHEREOF, Baxter International Inc. has caused this Restated
Certificate of Incorporation to be signed by G. Marshall Abbey, its Secretary
and Senior Vice President, and attested by Barbara Y. Morris, its Senior Vice
President, this 15th day of April, 1992.
BAXTER INTERNATIONAL INC.
By: /s/ G. Marshall Abbey
------------------------------------
ATTEST G. Marshall Abbey
Secretary and Senior Vice President
By: /s/ Barbara Y. Morris
---------------------------
Barbara Y. Morris
Senior Vice President
PAGE 11
CERTIFICATE OF DESIGNATION
of
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
of
BAXTER INTERNATIONAL INC.
Pursuant to Section 151 of the General Corporation Law of the State of
Delaware
The undersigned do hereby certify that the following resolution was duly adopted
by the Board of Directors of Baxter International Inc., a Delaware corporation
(the "Company"), at a meeting duly convened and held on November 17, 1998, at
which a quorum was present and acting throughout.
RESOLVED, that pursuant to the authority conferred upon the Board of Directors
of this Company by the Restated Certificate of Incorporation, a series of
Preferred Stock of the Company be and it hereby is created, and that the
designations, powers, preferences and relative and other special rights and
qualifications, limitations or restrictions thereof are as follows:
SECTION 1. DESIGNATION AND AMOUNT.
The shares of such series shall be designated as "Series B Junior Participating
Preferred Stock" and the number of shares constituting such series shall be
3,500,000.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the holders of any shares of
any series of Preferred Stock ranking prior and superior to the shares of Series
B Junior Participating Preferred Stock with respect to dividends, the holders of
shares of Series B Junior Participating 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 in cash on the first day
of January, April, July and October in each year (each such date being referred
to herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series B Junior Participating Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $5.00 or (b)
subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all noncash dividends or other
distributions other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the
Common Stock, par value $1 per share, of the Company (the "Common Stock") since
the immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any share
or fraction of a share of Series B Junior Participating Preferred Stock. In the
event the Company shall at any time after November 17, 1998 (the "Rights
Declaration Date") (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount to which holders of shares of Series B Junior Participating 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 Company shall declare a dividend or distribution on the Series B Junior
Participating Preferred Stock as provided in Paragraph (A) above immediately
after it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock ranking prior to and
superior to the shares of Series B Junior Participating Preferred Stock with
respect to dividends, a dividend of $5.00 per share on the Series B Junior
Participating Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of
Series B Junior Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series B Junior
Participating Preferred Stock, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Series
B Junior Participating Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series B Junior Participating Preferred Stock in an amount
less than the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series B Junior Participating
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 60 days prior to the
date fixed for the payment thereof.
Page 2
SECTION 3. VOTING RIGHTS.
The holders of shares of Series B Junior Participating Preferred Stock shall
have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each share
of Series B Junior Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders of
the Company. In the event the Company shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the number of votes per share to which holders of shares of Series B Junior
Participating 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 B Junior Participating Preferred Stock and the holders of shares of
Common Stock shall vote collectively as one class on all matters submitted to a
vote of stockholders of the Company.
(C) If at the time of any annual meeting of stockholders for the election of
directors a default in preference dividends on the Preferred Stock shall exist,
the number of directors constituting the board of directors of the Company shall
be increased by two, and the holders of the Preferred Stock of all series shall
have the right at such meeting, voting together as a single class without regard
to series, to the exclusion of the holders of Common Stock, to elect two
directors of the Company to fill such newly created directorships. Such right
shall continue until there are no dividends in arrears upon the Preferred Stock.
Each director elected by the holders of shares of Preferred Stock (herein called
a "Preferred Director"), shall continue to serve as such director for the full
term for which he shall have been elected, notwithstanding that prior to the end
of such term a default in preference dividends shall cease to exist. Any
Preferred Director may be removed by, and shall not be removed except by, the
vote of the holders of record of the outstanding shares of Preferred Stock,
voting together as a single class without regard to series, at a meeting of the
stockholders, or of the holders of shares of Preferred Stock, called for the
purpose. So long as a default in any preference dividends on the Preferred Stock
shall exist (A) any vacancy in the office of a Preferred Director may be filled
(except as provided in the following clause (B)) by an instrument in writing
signed by the remaining Preferred Director and filed with the Company and (B) in
the case of the removal of any Preferred Director, the vacancy may be filled by
the vote of the holders of the outstanding shares of Preferred Stock, voting
together as a single class without regard to series, at the same meeting at
which such removal shall be voted. Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for all purposes hereof, to be a
Preferred Director. Whenever the term of office of the Preferred Directors shall
end and a default in preference dividends shall no longer exist, the number of
directors constituting the board of directors of the Company shall be reduced by
two. For the purposes hereof, a "default in preference dividends" on the
Preferred Stock shall be deemed to have occurred whenever the amount of accrued
dividends upon any series of the Preferred Stock shall be equivalent to six full
quarter yearly
Page 3
dividends or more, and, having so occurred, such default shall be deemed to
exist thereafter until, but only until, all accrued dividends on all shares of
Preferred Stock of each and every series then outstanding shall have been paid
or declared and set apart for payment to the end of the last preceding quarterly
dividend period.
(D) Except as set forth herein, holders of Series B Junior Participating
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
SECTION 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or distributions payable on
the Series B Junior Participating Preferred Stock as provided in Section 2 are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series B Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Company shall not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares
of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Junior Participating
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 B Junior
Participating Preferred Stock, except dividends paid ratably on the
Series B Junior Participating Preferred Stock and all such parity
stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of
any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Junior
Participating Preferred Stock, provided that the Company may at any
time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Company ranking
junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series B Junior Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of Series
B Junior Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series B Junior Participating Preferred
Stock, except in accordance with a purchase offer made in writing or
by publication (as determined by the board of directors) to all
holders of such shares upon such terms as the board of directors,
after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
Page 4
(B) The Company shall not permit any subsidiary of the Company to purchase or
otherwise acquire for consideration any shares of stock of the Company unless
the Company could, under Paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES.
Any shares of Series B Junior Participating Preferred Stock purchased or
otherwise acquired by the Company in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any liquidation (voluntary or otherwise), dissolution or winding up of
the Company, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series B Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series B Junior Participating Preferred Stock
shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series B Liquidation Preference"). Following the payment of
the full amount of the Series B Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series B Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series B Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph
(C) below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause (ii),
the "Adjustment Number"). Following the payment of the full amount of the Series
B Liquidation Preference and the Common Adjustment in respect of all outstanding
shares of Series B Junior Participating Preferred Stock and Common Stock,
respectively, holders of Series B Junior Participating Preferred Stock and
holders of shares of Common Stock shall receive their ratable and proportionate
share of the remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Preferred Stock and Common Stock, on a per
share basis, respectively.
(B) In the event, however, that there are not sufficient assets available to
permit payment in full of the Series B Liquidation Preference and the
liquidation preferences of all other series of preferred stock, if any, which
rank on a parity with the Series B Junior Participating Preferred Stock, then
such remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to permit payment in
full of the Common Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Stock.
Page 5
(C) In the event the Company shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such case the
Adjustment Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment 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.
SECTION 7. CONSOLIDATION, MERGER, ETC.
In case the Company shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property, then in
any such case the shares of Series B Junior Participating Preferred Stock shall
at the same time be similarly exchanged or changed in an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Company shall at any
time after the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series B Junior Participating
Preferred Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
SECTION 8. NO REDEMPTION.
The shares of Series B Junior Participating Preferred Stock shall not be
redeemable.
SECTION 9. RANKING.
The Series B Junior Participating Preferred Stock shall rank junior to all other
series of the Company's Preferred Stock as to the payment of dividends and the
distribution of assets whether or not upon the dissolution, liquidation or
winding up of the Company, unless the terms of any such series shall provide
otherwise.
SECTION 10. AMENDMENT.
The Restated Certificate of Incorporation of the Company shall not be further
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series B Junior Participating Preferred
Stock so as to affect them adversely without the affirmative vote of the holders
of a majority or more of the outstanding shares of Series B Junior Participating
Preferred Stock, voting separately as a class.
Page 6
SECTION 11. FRACTIONAL SHARES.
Series B Junior Participating 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 B
Junior Participating Preferred Stock.
BAXTER INTERNATIONAL INC. has caused its corporate seal to be hereunto affixed
and this certificate to be signed by Thomas J. Sabatino, Jr., its Corporate Vice
President and General Counsel, and the same to be attested to by Jan Stern Reed,
its Corporate Secretary, this 1st day of March, 1999.
BAXTER INTERNATIONAL INC.
(Corporate Seal) By: /s/ Thomas J. Sabatino, Jr.
------------------------------
Thomas J. Sabatino, Jr.
Corporate Vice President and
General Counsel
Attest:
/s/ Jan Stern Reed
- ----------------------------
Jan Stern Reed
Corporate Secretary
Page 7
CERTIFICATE OF ELIMINATION
OF
SERIES A PARTICIPATION PREFERRED STOCK
OF
BAXTER INTERNATIONAL INC.
*******
Baxter International Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Company"),
DOES HEREBY CERTIFY.
FIRST: That the board of directors of the Company, at a meeting duly called
and held on November 17, 1998, adopted the following resolution.
"RESOLVED, that the proper officers of the Company be, and each
of them hereby is, authorized, empowered and directed, in the name and
on behalf of the Company, to execute a Certificate of Elimination with
respect to the Company's Series A Participating Preferred Stock (the
"Certificate of Elimination") on or after March 22, 1999, in such form
as the officer executing the same shall determine to be necessary,
advisable or appropriate, such determination to be conclusively
established by the execution thereof, and to file the executed
Certificate of Elimination with the Secretary of State of the State of
Delaware"
SECOND: None of the authorized shares of the Company's Series A Participating
Preferred Stock are outstanding and none will be issued.
THIRD: In accordance with the provisions of Section 151 of the General
Corporation Law of the State of Delaware, the Certificate of
Incorporation is hereby amended to eliminate all reference to the
Company's Series A Participating Preferred Stock.
IN WITNESS WHEREOF, said Baxter International Inc., has caused this
certificate to be signed by Jan Stern Reed, its Secretary this 29/th/ day April,
1999.
Baxter International Inc.
By: /s/ Jan Stern Reed
------------------------------------
Jan Stern Reed, Secretary
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
* * * * *
Baxter International Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware ("Corporation"),
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the Corporation,
resolutions were duly adopted setting forth a proposed amendment
("Amendment") to the Restated Certificate of Incorporation, as amended,
of the Corporation, declaring the Amendment to be advisable and that it
be presented at the next meeting of the stockholders of the Corporation
for consideration. The resolution setting forth the proposed Amendment
is as follows:
RESOLVED, that the Restated Certificate of Incorporation, as amended, of
this Corporation, be amended by deleting the first sentence of Article
Fourth in its entirety and inserting, in lieu thereof, the following new
first sentence of Article Fourth, providing in its entirety as follows:
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is one billion, one hundred million
(1,100,000,000) shares, of which one hundred million (100,000,000)
shares of no par value shall be preference stock (the "Preference
Stock") and of which one billion (1,000,000,000) shares, of the par
value of U.S. one dollar (U.S. $1.00) each, amounting in the
aggregate to U.S. one billion dollars (U.S. $1,000,000,000), shall
be common stock (the "Common Stock").
SECOND: That thereafter, pursuant to resolutions of its Board of Directors, upon
notice in accordance with Section 222 of the General Corporation Law of
the State of Delaware, the annual meeting of the stockholders of the
Corporation was duly called and held, and the necessary number of
shares as required by statute were voted in favor of the Amendment.
THIRD: That the Amendment was duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be hereunto
affixed and this certificate signed by Jan Stern Reed, its Corporate Secretary,
effective as of the first day of May, 2001.
BAXTER INTERNATIONAL INC.
(a Delaware corporation)
By: /s/ Jan Stern Reed
--------------------------
Jan Stern Reed
Corporate Secretary
Page 2
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
* * * * *
Baxter International Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware ("Corporation"),
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the Corporation,
resolutions were duly adopted setting forth a proposed amendment
("Amendment") to the Restated Certificate of Incorporation, as
amended, of the Corporation, declaring the Amendment to be advisable
and that it be presented at the next meeting of the stockholders of
the Corporation for consideration. The resolution setting forth the
proposed Amendment is as follows:
RESOLVED, that the Restated Certificate of Incorporation, as
amended, of this Corporation, be amended by deleting the first
sentence of Article Fourth in its entirety and inserting, in lieu
thereof, the following new first sentence of Article Fourth,
providing in its entirety as follows:
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is two billion, one
hundred million (2,100,000,000) shares, of which one hundred
million (100,000,000) shares of no par value shall be preference
stock (the "Preference Stock") and of which two billion
(2,000,000,000) shares, of the par value of U.S. one dollar
(U.S.$1.00) each, amounting in the aggregate to U.S. two billion
dollars (U.S.$2,000,000,000), shall be common stock (the "Common
Stock").
SECOND: That thereafter, pursuant to resolutions of its Board of Directors,
upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware, the annual meeting of the
stockholders of the Corporation was duly called and held, and the
necessary number of shares as required by statute were voted in
favor of the Amendment.
THIRD: That the Amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be hereunto
affixed and this certificate signed by Jan Stern Reed, its Corporate Secretary,
effective as of the seventh day of May, 2002.
BAXTER INTERNATIONAL INC.
(a Delaware corporation)
By: /s/ Jan Stern Reed
------------------
Jan Stern Reed
Corporate Secretary
Page 2