EXHIBIT 3(i)
Amended to and including
amendments of April 8, 2002
CERTIFICATE OF INCORPORATION OF
3M COMPANY
(ORIGINAL CERTIFICATE FILED ON JUNE 25, 1929)
FIRST: The name of the Corporation is 3M COMPANY.
SECOND: The address of its registered office in the State of Delaware
is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted is: to engage in any lawful act or activity for which Corporations may
be organized under the General Corporation Law of Delaware.
FOURTH: A. The total number of shares of all classes of stock which
this Corporation shall have authority to issue is 1,510,000,000 consisting of
10,000,000 shares of preferred stock without par value and 1,500,000,000 shares
of common stock with a par value of $0.01 per share. Upon the effectiveness of
the amendment of this Article Fourth reducing the par value of the common stock
to $0.01, each outstanding share of common stock shall be reclassified and
changed into one share of common stock, par value $0.01 per share.
B. The designations, powers, preferences, and rights, and the
qualifications, limitations, or restrictions of the preferred stock and the
common stock of the Corporation are as follows:
1. The preferred stock may be issued from time to time as shares of one
or more series in any amount, not exceeding in the aggregate, including all
shares of any and all series previously issued, the total number of shares of
preferred stock hereinabove authorized. All shares of any one series of
preferred stock shall rank equally and be identical, except as to the times from
which cumulative dividends, if any, thereon shall be cumulative.
2. The Board of Directors of the Corporation is hereby expressly
authorized from time to time to issue preferred stock as preferred stock of any
series, and in connection with the creation of each such series to fix by the
resolution or resolutions, providing for the issue of shares thereof, the
designations, preferences and relative, participating, optional, conditional, or
other special rights, and qualifications, limitations, or restrictions thereof,
of such series, to the full extent now or hereafter permitted by the laws of the
State of Delaware, including, without limitation, the following matters:
(a) The designation of such series;
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(b) The rate or amount and times at which, and the preferences
and conditions under which, dividends shall be payable on shares of
such series, the status of such dividends as cumulative or
noncumulative, the date or dates from which dividends, if cumulative,
shall accumulate, and the status of such series as participating or
nonparticipating after the payment of dividends on shares which are
entitled to any preference;
(c) The voting rights, if any, of shares of such series in
addition to those required by law, which may be full, limited,
multiple, fractional, or none, including any right to vote as a class
either generally or in connection with any specified matter or matters;
(d) The amount, times, terms, and conditions, if any, upon
which shares of such series shall be subject to redemption;
(e) The rights and preferences, if any, of the holders of
shares of such series in the event of any liquidation, dissolution, or
winding up of the Corporation;
(f) Whether the shares of such series shall be entitled to the
benefit of a sinking fund to be applied to the purchase or redemption
of such series, and if so entitled, the amount of such fund and the
manner of its application; and
(g) Whether the shares of such series shall be made
convertible into, or exchangeable for, shares of any other class or
classes or of any other series of the same or any other class or
classes of stock of the Corporation, and if made so convertible or
exchangeable, the conversion price or prices, or the rates of exchange,
and the adjustments, if any, at which such conversion or exchange may
be made.
C. Except for and subject to those rights expressly granted to the
holders of preferred stock, or any series thereof, by the Board of Directors,
pursuant to the authority hereby vested in the Board or as provided by the laws
of the State of Delaware, the holders of the Corporation's common stock shall
have exclusively all rights of shareholders and shall possess exclusively all
voting power. Each holder of common stock of the Corporation shall be entitled
to one vote for each share of such stock standing in such holder's name on the
books of the Corporation.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: 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 Bylaws of the Corporation.
To authorize and cause to be executed mortgages and liens upon
the real and personal property of the Corporation.
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To set apart out of any funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
By a majority of the whole Board, to designate one or more
committees, each committee to consist of one or more of the directors
of the Corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. The Bylaws may
provide that in the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether the member or members constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, or in the Bylaws of the
Corporation, shall have and may exercise all the powers and authority
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; but no such committee shall
have the power or authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease, or exchange of all or
substantially all of the Corporation's property and assets recommending
to the stockholders a dissolution of the Corporation or a revocation of
a dissolution, or amending the Bylaws of the Corporation; and, unless
the resolution or Bylaws expressly so provide, no such committee shall
have the power or authority to declare a dividend or to authorize the
issuance of stock.
When and as authorized by the stockholders in accordance with
statute, to sell, lease, or exchange all or substantially all of the
property and assets of the Corporation, including its goodwill and its
corporate franchises, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money or
property, including 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 interest of the Corporation.
SEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws may 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 Bylaws of the Corporation.
EIGHTH: This 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.
NINTH: 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
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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 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or 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 the majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation as the case may be,
and also on this Corporation.
TENTH: A. The number of directors of the Corporation shall be fixed
from time to time by or pursuant to the Bylaws of the Corporation. At the 1986
Annual Meeting of Stockholders of the Corporation, the directors shall be
divided, with respect to the terms for which they severally hold office, into
three classes, as nearly equal in number of directors as possible, as determined
by the Board of Directors, with the term of office of the first class to expire
at the Annual Meeting of Stockholders to be held in 1987, the term of office of
the second class to expire at the Annual Meeting of Stockholders to be held in
1988, and the term of office of the third class to expire at the Annual Meeting
of Stockholders to be held in 1989, with each class of directors to hold office
until their successors are duly elected and have qualified. At each Annual
Meeting of Stockholders following such initial classification and election,
directors elected to succeed those directors whose terms expire at such annual
meeting, other than those directors elected under particular circumstances by a
separate class vote of the holders of any class or series of stock having a
preference over the common stock, of a par value of $0.01 per share, of the
Corporation (the "Common Stock") as to dividends or upon liquidation of the
Corporation, shall be elected to hold office for a term expiring at the Annual
Meeting of Stockholders in the third year following the year of their election
and until their successors are duly elected and have qualified. When the number
of directors is changed, any newly created directorships or any decrease in
directorships shall be so apportioned among the classes as to make all classes
as nearly equal in number of directors as possible, as determined by the Board
of Directors. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director. The provisions of
this Paragraph are subject to the provisions of Paragraph D of this Article.
B. Except as may be provided in the terms of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation of the Corporation relating to the rights of the holders of such
class or series to elect, by separate class vote, additional directors, no
member of the Board of Directors may be removed from office except for cause.
C. Subject to the provisions of Paragraph D of this Article TENTH,
newly created directorships resulting from an increase in the number of
directors of the Corporation and vacancies occurring in the Board of Directors
resulting from death, resignation, retirement, removal, or any
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other reason shall be filled by the affirmative vote of a majority of the
directors, although less than a quorum, then remaining in office and elected by
the holders of the capital stock of the Corporation entitled to vote generally
in the election of directors or, in the event that there is only one such
director, by such sole remaining director. Any director elected in accordance
with the preceding sentence shall hold office for the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until such director's successor shall have been elected and qualified.
D. In the event that the holders of any class or series of stock of the
Corporation having a preference over the Common Stock as to dividends or upon
liquidation of the Corporation are entitled, by a separate class vote, to elect
directors pursuant to the terms of such class or series, then the provisions of
such class or series with respect to such rights of election shall apply to the
election of such directors. The number of directors that may be elected by the
holders of any such class or series of stock shall be in addition to the number
fixed by or pursuant to the Bylaws. Except as otherwise expressly provided in
the terms of such class or series, the number of directors that may be so
elected by the holders of any such class or series of stock shall be elected for
terms expiring at the next Annual Meeting of Stockholders and without regard to
the classification of the remaining members of the Board of Directors, and
vacancies among directors so elected by the separate class vote of any such
class or series of stock shall be filled by the affirmative vote of a majority
of the remaining directors elected by such class or series, or, if there are no
such remaining directors, by the holders of such class or series in the same
manner in which such class or series initially elected a director.
If at any meeting for the election of directors, more than one class of
stock, voting separately as classes, shall be entitled to elect one or more
directors and there shall be a quorum of only one such class of stock, that
class of stock shall be entitled to elect its quota of directors notwithstanding
absence of a quorum of the other class or classes of stock.
E. Notwithstanding any other provisions of this Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding that a
lesser percentage may be specified by law), the provisions of this Article TENTH
may not be amended or repealed unless such action is approved by the affirmative
vote of the holders of not less than eighty percent (80%) of the voting power of
all of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, considered for purposes of this
Article as a single class.
ELEVENTH: Subject to any limitations imposed by this Certificate of
Incorporation, the Board of Directors shall have power to adopt, amend, or
repeal the Bylaws of the Corporation. Any Bylaws made by the directors under the
powers conferred hereby may be amended or repealed by the directors or by the
stockholders. Notwithstanding the foregoing and any other provisions of this
Certificate of Incorporation or the Bylaws of this Corporation (and
notwithstanding that a lesser percentage may be specified by law), no provisions
of the Bylaws shall be adopted, amended, or repealed by the stockholders without
an affirmative vote of the holders of not less than eighty percent (80%) of the
voting power of all of the outstanding shares of capital stock of the
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Corporation entitled to vote generally in the election of directors, considered
for the purposes of this Article as a single class.
Notwithstanding the foregoing and any other provisions of this
Certificate of Incorporation or the Bylaws of the Corporation (and
notwithstanding that a lesser percentage may be specified by law), the
provisions of this Article ELEVENTH may not be amended or repealed unless such
action is approved by the affirmative vote of the holders of not less than
eighty percent (80%) of the voting power of all of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors, considered for purposes of this Article as a single class.
TWELFTH: No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in writing, without
a meeting, to the taking of any action is specifically denied.
THIRTEENTH: A. In addition to the requirements of the provisions of any
series of preferred stock which may be outstanding, and whether or not a vote of
the stockholders is otherwise required, the affirmative vote of the holders of
not less than eighty percent (80%) of the outstanding shares of the Common Stock
shall be required for the approval or authorization of any Business Transaction
with a Related Person, or any Business Transaction in which a Related Person has
an interest (other than only a proportionate interest as a stockholder of the
Corporation); provided, however, that the eighty percent (80%) voting
requirement shall not be applicable if (1) the Business Transaction is Duly
Approved by the Continuing Directors, or (2) all of the following conditions are
satisfied:
(a) the Business Transaction is a merger or consolidation or
sale of substantially all of the assets of the Corporation, and the
aggregate amount of cash to be received per share (on the date of
effectiveness of such merger or consolidation or on the date of
distribution to stockholders of the Corporation of the proceeds from
such sale of assets) by holders of Common Stock of the Corporation
(other than such Related Person) in connection with such Business
Transaction is at least equal in value to such Related Person's Highest
Common Stock Purchase Price; and
(b) after such Related Person has become the Beneficial Owner
of not less than ten percent (10%) of the voting power of the Voting
Stock and prior to the consummation of such Business Transaction, such
Related Person shall not have become the Beneficial Owner of any
additional shares of Voting Stock or securities convertible into Voting
Stock, except (i) as a part of the transaction which resulted in such
Related Person becoming the Beneficial Owner of not less than ten
percent (10%) of the voting power of the Voting Stock or (ii) as a
result of a pro rata stock dividend or stock split; and
(c) prior to the consummation of such Business Transaction,
such Related Person shall not have, directly or indirectly, (i)
received the benefit (other than only a proportionate benefit as a
stockholder of the Corporation) of any loans, advances,
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guarantees, pledges, or other financial assistance or tax credits
provided by the Corporation or any of its subsidiaries, (ii) caused any
material change in the Corporation's business or equity capital
structure, including, without limitation, the issuance of shares of
capital stock of the Corporation, or (iii) except as Duly Approved by
the Continuing Directors, caused the Corporation to fail to declare and
pay (y) at the regular date therefor any full quarterly dividends on
any outstanding preferred stock or (z) quarterly cash dividends on the
outstanding Common Stock on a per share basis at least equal to the
cash dividends being paid thereon by the Corporation immediately prior
to the date on which the Related Person became a Related Person.
B. For the purpose of this Article THIRTEENTH:
1. The term "Business Transaction" shall mean (a) any merger or
consolidation involving the Corporation or a subsidiary of the Corporation, (b)
any sale, lease, exchange, transfer, or other disposition (in one transaction or
a series of related transactions), including, without limitation, a mortgage or
any other security device, of all or any Substantial Part of the assets either
of the Corporation or of a subsidiary of the Corporation, (c) any sale, lease,
exchange, transfer, or other disposition (in one transaction or a series of
related transactions) of all or any Substantial Part of the assets of an entity
to the Corporation or a subsidiary of the Corporation, (d) the issuance, sale,
exchange, transfer, or other disposition (in one transaction or a series of
related transactions) by the Corporation or a subsidiary of the Corporation of
any securities of the Corporation or any subsidiary of the Corporation, (e) any
recapitalization or reclassification of the securities of the Corporation
(including, without limitation, any reverse stock split) or other transaction
that would have the effect of increasing the voting power of a Related Person or
reducing the number of shares of each class of Voting Stock outstanding, (f) any
liquidation, spin-off, split-off, split-up, or dissolution of the Corporation,
and (g) any agreement, contract, or other arrangement providing for any of the
transactions described in this definition of Business Transaction.
2. The term "Related Person" shall mean and include (a) any individual,
corporation, partnership, group, association, or other person or entity which,
together with its Affiliates and Associates, is the Beneficial Owner of not less
than ten percent (10%) of the voting power of the Voting Stock or was the
Beneficial Owner of not less than ten percent (10%) of the voting power of the
Voting Stock (i) at the time the definitive agreement providing for the Business
Transaction (including any amendment thereof) was entered into, (ii) at the time
a resolution approving the Business Transaction was adopted by the Board of
Directors of the Corporation, or (iii) as of the record date for the
determination of stockholders entitled to notice of and to vote on, or consent
to, the Business Transaction, and (b) any Affiliate or Associate of any such
individual, corporation, partnership, group, association, or other person or
entity; provided, however, and notwithstanding anything in the foregoing to the
contrary, the term "Related Person" shall not include the Corporation, a wholly
owned subsidiary of the Corporation, any employee stock ownership or other
employee benefit plan of the Corporation or any wholly owned subsidiary of the
Corporation, or any trustee of, or fiduciary with respect to, any such plan when
acting in such capacity.
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3. The term "Beneficial Owner" shall be defined by reference to Rule
13d-3 under the Securities Exchange Act of 1934, as amended, as in effect on May
13, 1986; provided, however, that any individual, corporation, partnership,
group, association, or other person or entity which has the right to acquire any
Voting Stock at any time in the future, whether such right is contingent or
absolute, pursuant to any agreement, arrangement, or understanding or upon
exercise of conversion rights, warrants or options, or otherwise, shall be
deemed the Beneficial Owner of such Voting Stock.
4. The term "Highest Common Stock Purchase Price" shall mean the
highest amount of consideration paid by such Related Person for a share of
Common Stock of the Corporation (including any brokerage commissions, transfer
taxes, and soliciting dealers' fees) in the transaction which resulted in such
Related Person becoming a Related Person or within one year prior to the date
such Related Person became a Related Person, whichever is higher; provided,
however, that the Highest Common Stock Purchase Price shall be appropriately
adjusted to reflect the occurrence of any reclassification, recapitalization,
stock split, reverse stock split, or other similar corporate readjustment in the
number of outstanding shares of Common Stock of the Corporation between the last
date upon which such Related Person paid the Highest Common Stock Purchase Price
to the effective date of the merger or consolidation or the date of distribution
to stockholders of the Corporation of the proceeds from the sale of
substantially all of the assets of the Corporation referred to in subparagraph
(2)(a) of Section A. of this Article THIRTEENTH.
5. The term "Substantial Part" shall mean more than five percent (5%)
of the fair market value of the total assets of the entity in question, as
reflected on the most recent consolidated balance sheet of such entity existing
at the time the stockholders of the Corporation would be required to approve or
authorize the Business Transaction involving the assets constituting any such
Substantial Part.
6. The term "Voting Stock" shall mean all outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors, considered for the purpose of this Article THIRTEENTH as one class.
7. The term "Continuing Director" shall mean a director who either was
a member of the Board of Directors of the Corporation on May 13, 1986 or who
became a director of the Corporation subsequent to such date and whose election,
or nomination for election by the Corporation's stockholders, was Duly Approved
by the Continuing Directors on the Board at the time of such nomination or
election, either by a specific vote or by approval of the proxy statement issued
by the Corporation on behalf of the Board of Directors in which such person is
named as nominee for director, without due objection to such nomination;
provided, however, that in no event shall a director be considered a "Continuing
Director" if such director is a Related Person and the Business Transaction to
be voted upon is with such Related Person or is one in which such Related Person
has an interest (other than only a proportionate interest as a stockholder of
the Corporation).
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8. The term "Duly Approved by the Continuing Directors" shall mean an
action approved by the vote of at least a majority of the Continuing Directors
then on the Board, except, if the votes of such Continuing Directors in favor of
such action would be insufficient to constitute an act of the Board of Directors
if a vote by all of its members were to have been taken, then such term shall
mean an action approved by the unanimous vote of the Continuing Directors then
on the Board so long as there are at least three Continuing Directors on the
Board at the time of such unanimous vote.
9. The term "Affiliate," used to indicate a relationship to a specified
person, shall mean a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such specified person.
10. The term "Associate," used to indicate a relationship with a
specified person, shall mean (a) any corporation, partnership, or other
organization of which such specified person is an officer or partner, (b) any
trust or other estate in which such specified person has a substantial
beneficial interest or as to which such specified person serves as trustee or in
a similar fiduciary capacity, (c) any relative or spouse of such specified
person, or any relative of such spouse who has the same home as such specified
person, or who is a director or officer of the Corporation or any of its parents
or subsidiaries, and (d) any person who is a director, officer, or partner of
such specified person or of any corporation (other than the Corporation or any
wholly owned subsidiary of the Corporation), partnership or other entity which
is an Affiliate of such specified person.
C. For the purpose of this Article THIRTEENTH, so long as Continuing
Directors constitute at least a majority of the entire Board of Directors, the
Board of Directors shall have the power to make a good faith determination, on
the basis of information known to them, of: (1) the number of shares of Voting
Stock of which any person is the Beneficial Owner, (2) whether a person is a
Related Person or is an Affiliate or Associate of another, (3) whether a person
has an agreement, arrangement, or understanding with another as to the matters
referred to in the definition of Beneficial Owner herein, (4) whether the assets
subject to any Business Transaction constitute a Substantial Part, (5) whether
any Business Transaction is with a Related Person or is one in which a Related
Person has an interest (other than only a proportionate interest as a
stockholder of the Corporation), (6) whether a Related Person, has, directly or
indirectly, received any benefits or caused any of the changes or caused the
Corporation to fail to declare and pay any of the dividends referred to in
subparagraph (2) (c) of Section A. of this Article THIRTEENTH, and (7) such
other matters with respect to which a determination is required under this
Article THIRTEENTH; and such determination by the Board of Directors shall be
conclusive and binding for all purposes of this Article THIRTEENTH.
D. Nothing contained in this Article THIRTEENTH shall be construed to
relieve any Related Person of any fiduciary obligation imposed by law.
E. The fact that any Business Transaction complies with the provisions
of Section A. of this Article THIRTEENTH shall not be construed to impose any
fiduciary duty, obligation, or
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responsibility on the Board of Directors, or any member thereof, to approve such
Business Transaction or recommend its adoption or approval to the stockholders
of the Corporation.
F. Notwithstanding any other provisions of this Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding that a
lesser percentage may be specified by law), the provisions of this Article
THIRTEENTH may not be repealed or amended in any respect, unless such action is
approved by the affirmative vote of the holders of not less than eighty percent
(80%) of the outstanding shares of the Common Stock.
FOURTEENTH: The liability of the Corporation's Directors to the
Corporation or its stockholders shall be eliminated to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as the same
exists or may be amended from time to time. Any repeal or amendment of this
Article FOURTEENTH by the stockholders of the Corporation shall not adversely
affect any right or protection of a director existing at the time of such repeal
or amendment.
IN WITNESS WHEREOF, said 3M Company has caused this certificate to be
signed by Gregg M. Larson, its Secretary, and attested by Thomas A. Boardman,
its Assistant Secretary, this 8th day of April, 2002.
3M COMPANY
By /s/ Gregg M. Larson
-------------------
Gregg M. Larson
Secretary
ATTEST:
By /s/ Thomas A. Boardman
----------------------
Thomas A. Boardman
Assistant Secretary
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Amended to and including
amendments of April 8, 2002
CERTIFICATE OF INCORPORATION OF
3M COMPANY
(ORIGINAL CERTIFICATE FILED ON JUNE 25, 1929)
FIRST: The name of the Corporation is 3M COMPANY.
SECOND: The address of its registered office in the State of Delaware
is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted is: to engage in any lawful act or activity for which Corporations may
be organized under the General Corporation Law of Delaware.
FOURTH: A. The total number of shares of all classes of stock which
this Corporation shall have authority to issue is 1,510,000,000 consisting of
10,000,000 shares of preferred stock without par value and 1,500,000,000 shares
of common stock with a par value of $0.01 per share. Upon the effectiveness of
the amendment of this Article Fourth reducing the par value of the common stock
to $0.01, each outstanding share of common stock shall be reclassified and
changed into one share of common stock, par value $0.01 per share.
B. The designations, powers, preferences, and rights, and the
qualifications, limitations, or restrictions of the preferred stock and the
common stock of the Corporation are as follows:
1. The preferred stock may be issued from time to time as shares of one
or more series in any amount, not exceeding in the aggregate, including all
shares of any and all series previously issued, the total number of shares of
preferred stock hereinabove authorized. All shares of any one series of
preferred stock shall rank equally and be identical, except as to the times from
which cumulative dividends, if any, thereon shall be cumulative.
2. The Board of Directors of the Corporation is hereby expressly
authorized from time to time to issue preferred stock as preferred stock of any
series, and in connection with the creation of each such series to fix by the
resolution or resolutions, providing for the issue of shares thereof, the
designations, preferences and relative, participating, optional, conditional, or
other special rights, and qualifications, limitations, or restrictions thereof,
of such series, to the full extent now or hereafter permitted by the laws of the
State of Delaware, including, without limitation, the following matters:
(a) The designation of such series;
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(b) The rate or amount and times at which, and the preferences
and conditions under which, dividends shall be payable on shares of
such series, the status of such dividends as cumulative or
noncumulative, the date or dates from which dividends, if cumulative,
shall accumulate, and the status of such series as participating or
nonparticipating after the payment of dividends on shares which are
entitled to any preference;
(c) The voting rights, if any, of shares of such series in
addition to those required by law, which may be full, limited,
multiple, fractional, or none, including any right to vote as a class
either generally or in connection with any specified matter or matters;
(d) The amount, times, terms, and conditions, if any, upon
which shares of such series shall be subject to redemption;
(e) The rights and preferences, if any, of the holders of
shares of such series in the event of any liquidation, dissolution, or
winding up of the Corporation;
(f) Whether the shares of such series shall be entitled to the
benefit of a sinking fund to be applied to the purchase or redemption
of such series, and if so entitled, the amount of such fund and the
manner of its application; and
(g) Whether the shares of such series shall be made
convertible into, or exchangeable for, shares of any other class or
classes or of any other series of the same or any other class or
classes of stock of the Corporation, and if made so convertible or
exchangeable, the conversion price or prices, or the rates of exchange,
and the adjustments, if any, at which such conversion or exchange may
be made.
C. Except for and subject to those rights expressly granted to the
holders of preferred stock, or any series thereof, by the Board of Directors,
pursuant to the authority hereby vested in the Board or as provided by the laws
of the State of Delaware, the holders of the Corporation's common stock shall
have exclusively all rights of shareholders and shall possess exclusively all
voting power. Each holder of common stock of the Corporation shall be entitled
to one vote for each share of such stock standing in such holder's name on the
books of the Corporation.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: 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 Bylaws of the Corporation.
To authorize and cause to be executed mortgages and liens upon
the real and personal property of the Corporation.
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To set apart out of any funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
By a majority of the whole Board, to designate one or more
committees, each committee to consist of one or more of the directors
of the Corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. The Bylaws may
provide that in the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether the member or members constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, or in the Bylaws of the
Corporation, shall have and may exercise all the powers and authority
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; but no such committee shall
have the power or authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease, or exchange of all or
substantially all of the Corporation's property and assets recommending
to the stockholders a dissolution of the Corporation or a revocation of
a dissolution, or amending the Bylaws of the Corporation; and, unless
the resolution or Bylaws expressly so provide, no such committee shall
have the power or authority to declare a dividend or to authorize the
issuance of stock.
When and as authorized by the stockholders in accordance with
statute, to sell, lease, or exchange all or substantially all of the
property and assets of the Corporation, including its goodwill and its
corporate franchises, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money or
property, including 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 interest of the Corporation.
SEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws may 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 Bylaws of the Corporation.
EIGHTH: This 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.
NINTH: 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
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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 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or 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 the majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation as the case may be,
and also on this Corporation.
TENTH: A. The number of directors of the Corporation shall be fixed
from time to time by or pursuant to the Bylaws of the Corporation. At the 1986
Annual Meeting of Stockholders of the Corporation, the directors shall be
divided, with respect to the terms for which they severally hold office, into
three classes, as nearly equal in number of directors as possible, as determined
by the Board of Directors, with the term of office of the first class to expire
at the Annual Meeting of Stockholders to be held in 1987, the term of office of
the second class to expire at the Annual Meeting of Stockholders to be held in
1988, and the term of office of the third class to expire at the Annual Meeting
of Stockholders to be held in 1989, with each class of directors to hold office
until their successors are duly elected and have qualified. At each Annual
Meeting of Stockholders following such initial classification and election,
directors elected to succeed those directors whose terms expire at such annual
meeting, other than those directors elected under particular circumstances by a
separate class vote of the holders of any class or series of stock having a
preference over the common stock, of a par value of $0.01 per share, of the
Corporation (the "Common Stock") as to dividends or upon liquidation of the
Corporation, shall be elected to hold office for a term expiring at the Annual
Meeting of Stockholders in the third year following the year of their election
and until their successors are duly elected and have qualified. When the number
of directors is changed, any newly created directorships or any decrease in
directorships shall be so apportioned among the classes as to make all classes
as nearly equal in number of directors as possible, as determined by the Board
of Directors. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director. The provisions of
this Paragraph are subject to the provisions of Paragraph D of this Article.
B. Except as may be provided in the terms of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation of the Corporation relating to the rights of the holders of such
class or series to elect, by separate class vote, additional directors, no
member of the Board of Directors may be removed from office except for cause.
C. Subject to the provisions of Paragraph D of this Article TENTH,
newly created directorships resulting from an increase in the number of
directors of the Corporation and vacancies occurring in the Board of Directors
resulting from death, resignation, retirement, removal, or any
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other reason shall be filled by the affirmative vote of a majority of the
directors, although less than a quorum, then remaining in office and elected by
the holders of the capital stock of the Corporation entitled to vote generally
in the election of directors or, in the event that there is only one such
director, by such sole remaining director. Any director elected in accordance
with the preceding sentence shall hold office for the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until such director's successor shall have been elected and qualified.
D. In the event that the holders of any class or series of stock of the
Corporation having a preference over the Common Stock as to dividends or upon
liquidation of the Corporation are entitled, by a separate class vote, to elect
directors pursuant to the terms of such class or series, then the provisions of
such class or series with respect to such rights of election shall apply to the
election of such directors. The number of directors that may be elected by the
holders of any such class or series of stock shall be in addition to the number
fixed by or pursuant to the Bylaws. Except as otherwise expressly provided in
the terms of such class or series, the number of directors that may be so
elected by the holders of any such class or series of stock shall be elected for
terms expiring at the next Annual Meeting of Stockholders and without regard to
the classification of the remaining members of the Board of Directors, and
vacancies among directors so elected by the separate class vote of any such
class or series of stock shall be filled by the affirmative vote of a majority
of the remaining directors elected by such class or series, or, if there are no
such remaining directors, by the holders of such class or series in the same
manner in which such class or series initially elected a director.
If at any meeting for the election of directors, more than one class of
stock, voting separately as classes, shall be entitled to elect one or more
directors and there shall be a quorum of only one such class of stock, that
class of stock shall be entitled to elect its quota of directors notwithstanding
absence of a quorum of the other class or classes of stock.
E. Notwithstanding any other provisions of this Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding that a
lesser percentage may be specified by law), the provisions of this Article TENTH
may not be amended or repealed unless such action is approved by the affirmative
vote of the holders of not less than eighty percent (80%) of the voting power of
all of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, considered for purposes of this
Article as a single class.
ELEVENTH: Subject to any limitations imposed by this Certificate of
Incorporation, the Board of Directors shall have power to adopt, amend, or
repeal the Bylaws of the Corporation. Any Bylaws made by the directors under the
powers conferred hereby may be amended or repealed by the directors or by the
stockholders. Notwithstanding the foregoing and any other provisions of this
Certificate of Incorporation or the Bylaws of this Corporation (and
notwithstanding that a lesser percentage may be specified by law), no provisions
of the Bylaws shall be adopted, amended, or repealed by the stockholders without
an affirmative vote of the holders of not less than eighty percent (80%) of the
voting power of all of the outstanding shares of capital stock of the
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Corporation entitled to vote generally in the election of directors, considered
for the purposes of this Article as a single class.
Notwithstanding the foregoing and any other provisions of this
Certificate of Incorporation or the Bylaws of the Corporation (and
notwithstanding that a lesser percentage may be specified by law), the
provisions of this Article ELEVENTH may not be amended or repealed unless such
action is approved by the affirmative vote of the holders of not less than
eighty percent (80%) of the voting power of all of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors, considered for purposes of this Article as a single class.
TWELFTH: No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in writing, without
a meeting, to the taking of any action is specifically denied.
THIRTEENTH: A. In addition to the requirements of the provisions of any
series of preferred stock which may be outstanding, and whether or not a vote of
the stockholders is otherwise required, the affirmative vote of the holders of
not less than eighty percent (80%) of the outstanding shares of the Common Stock
shall be required for the approval or authorization of any Business Transaction
with a Related Person, or any Business Transaction in which a Related Person has
an interest (other than only a proportionate interest as a stockholder of the
Corporation); provided, however, that the eighty percent (80%) voting
requirement shall not be applicable if (1) the Business Transaction is Duly
Approved by the Continuing Directors, or (2) all of the following conditions are
satisfied:
(a) the Business Transaction is a merger or consolidation or
sale of substantially all of the assets of the Corporation, and the
aggregate amount of cash to be received per share (on the date of
effectiveness of such merger or consolidation or on the date of
distribution to stockholders of the Corporation of the proceeds from
such sale of assets) by holders of Common Stock of the Corporation
(other than such Related Person) in connection with such Business
Transaction is at least equal in value to such Related Person's Highest
Common Stock Purchase Price; and
(b) after such Related Person has become the Beneficial Owner
of not less than ten percent (10%) of the voting power of the Voting
Stock and prior to the consummation of such Business Transaction, such
Related Person shall not have become the Beneficial Owner of any
additional shares of Voting Stock or securities convertible into Voting
Stock, except (i) as a part of the transaction which resulted in such
Related Person becoming the Beneficial Owner of not less than ten
percent (10%) of the voting power of the Voting Stock or (ii) as a
result of a pro rata stock dividend or stock split; and
(c) prior to the consummation of such Business Transaction,
such Related Person shall not have, directly or indirectly, (i)
received the benefit (other than only a proportionate benefit as a
stockholder of the Corporation) of any loans, advances,
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guarantees, pledges, or other financial assistance or tax credits
provided by the Corporation or any of its subsidiaries, (ii) caused any
material change in the Corporation's business or equity capital
structure, including, without limitation, the issuance of shares of
capital stock of the Corporation, or (iii) except as Duly Approved by
the Continuing Directors, caused the Corporation to fail to declare and
pay (y) at the regular date therefor any full quarterly dividends on
any outstanding preferred stock or (z) quarterly cash dividends on the
outstanding Common Stock on a per share basis at least equal to the
cash dividends being paid thereon by the Corporation immediately prior
to the date on which the Related Person became a Related Person.
B. For the purpose of this Article THIRTEENTH:
1. The term "Business Transaction" shall mean (a) any merger or
consolidation involving the Corporation or a subsidiary of the Corporation, (b)
any sale, lease, exchange, transfer, or other disposition (in one transaction or
a series of related transactions), including, without limitation, a mortgage or
any other security device, of all or any Substantial Part of the assets either
of the Corporation or of a subsidiary of the Corporation, (c) any sale, lease,
exchange, transfer, or other disposition (in one transaction or a series of
related transactions) of all or any Substantial Part of the assets of an entity
to the Corporation or a subsidiary of the Corporation, (d) the issuance, sale,
exchange, transfer, or other disposition (in one transaction or a series of
related transactions) by the Corporation or a subsidiary of the Corporation of
any securities of the Corporation or any subsidiary of the Corporation, (e) any
recapitalization or reclassification of the securities of the Corporation
(including, without limitation, any reverse stock split) or other transaction
that would have the effect of increasing the voting power of a Related Person or
reducing the number of shares of each class of Voting Stock outstanding, (f) any
liquidation, spin-off, split-off, split-up, or dissolution of the Corporation,
and (g) any agreement, contract, or other arrangement providing for any of the
transactions described in this definition of Business Transaction.
2. The term "Related Person" shall mean and include (a) any individual,
corporation, partnership, group, association, or other person or entity which,
together with its Affiliates and Associates, is the Beneficial Owner of not less
than ten percent (10%) of the voting power of the Voting Stock or was the
Beneficial Owner of not less than ten percent (10%) of the voting power of the
Voting Stock (i) at the time the definitive agreement providing for the Business
Transaction (including any amendment thereof) was entered into, (ii) at the time
a resolution approving the Business Transaction was adopted by the Board of
Directors of the Corporation, or (iii) as of the record date for the
determination of stockholders entitled to notice of and to vote on, or consent
to, the Business Transaction, and (b) any Affiliate or Associate of any such
individual, corporation, partnership, group, association, or other person or
entity; provided, however, and notwithstanding anything in the foregoing to the
contrary, the term "Related Person" shall not include the Corporation, a wholly
owned subsidiary of the Corporation, any employee stock ownership or other
employee benefit plan of the Corporation or any wholly owned subsidiary of the
Corporation, or any trustee of, or fiduciary with respect to, any such plan when
acting in such capacity.
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3. The term "Beneficial Owner" shall be defined by reference to Rule
13d-3 under the Securities Exchange Act of 1934, as amended, as in effect on May
13, 1986; provided, however, that any individual, corporation, partnership,
group, association, or other person or entity which has the right to acquire any
Voting Stock at any time in the future, whether such right is contingent or
absolute, pursuant to any agreement, arrangement, or understanding or upon
exercise of conversion rights, warrants or options, or otherwise, shall be
deemed the Beneficial Owner of such Voting Stock.
4. The term "Highest Common Stock Purchase Price" shall mean the
highest amount of consideration paid by such Related Person for a share of
Common Stock of the Corporation (including any brokerage commissions, transfer
taxes, and soliciting dealers' fees) in the transaction which resulted in such
Related Person becoming a Related Person or within one year prior to the date
such Related Person became a Related Person, whichever is higher; provided,
however, that the Highest Common Stock Purchase Price shall be appropriately
adjusted to reflect the occurrence of any reclassification, recapitalization,
stock split, reverse stock split, or other similar corporate readjustment in the
number of outstanding shares of Common Stock of the Corporation between the last
date upon which such Related Person paid the Highest Common Stock Purchase Price
to the effective date of the merger or consolidation or the date of distribution
to stockholders of the Corporation of the proceeds from the sale of
substantially all of the assets of the Corporation referred to in subparagraph
(2)(a) of Section A. of this Article THIRTEENTH.
5. The term "Substantial Part" shall mean more than five percent (5%)
of the fair market value of the total assets of the entity in question, as
reflected on the most recent consolidated balance sheet of such entity existing
at the time the stockholders of the Corporation would be required to approve or
authorize the Business Transaction involving the assets constituting any such
Substantial Part.
6. The term "Voting Stock" shall mean all outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors, considered for the purpose of this Article THIRTEENTH as one class.
7. The term "Continuing Director" shall mean a director who either was
a member of the Board of Directors of the Corporation on May 13, 1986 or who
became a director of the Corporation subsequent to such date and whose election,
or nomination for election by the Corporation's stockholders, was Duly Approved
by the Continuing Directors on the Board at the time of such nomination or
election, either by a specific vote or by approval of the proxy statement issued
by the Corporation on behalf of the Board of Directors in which such person is
named as nominee for director, without due objection to such nomination;
provided, however, that in no event shall a director be considered a "Continuing
Director" if such director is a Related Person and the Business Transaction to
be voted upon is with such Related Person or is one in which such Related Person
has an interest (other than only a proportionate interest as a stockholder of
the Corporation).
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8. The term "Duly Approved by the Continuing Directors" shall mean an
action approved by the vote of at least a majority of the Continuing Directors
then on the Board, except, if the votes of such Continuing Directors in favor of
such action would be insufficient to constitute an act of the Board of Directors
if a vote by all of its members were to have been taken, then such term shall
mean an action approved by the unanimous vote of the Continuing Directors then
on the Board so long as there are at least three Continuing Directors on the
Board at the time of such unanimous vote.
9. The term "Affiliate," used to indicate a relationship to a specified
person, shall mean a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such specified person.
10. The term "Associate," used to indicate a relationship with a
specified person, shall mean (a) any corporation, partnership, or other
organization of which such specified person is an officer or partner, (b) any
trust or other estate in which such specified person has a substantial
beneficial interest or as to which such specified person serves as trustee or in
a similar fiduciary capacity, (c) any relative or spouse of such specified
person, or any relative of such spouse who has the same home as such specified
person, or who is a director or officer of the Corporation or any of its parents
or subsidiaries, and (d) any person who is a director, officer, or partner of
such specified person or of any corporation (other than the Corporation or any
wholly owned subsidiary of the Corporation), partnership or other entity which
is an Affiliate of such specified person.
C. For the purpose of this Article THIRTEENTH, so long as Continuing
Directors constitute at least a majority of the entire Board of Directors, the
Board of Directors shall have the power to make a good faith determination, on
the basis of information known to them, of: (1) the number of shares of Voting
Stock of which any person is the Beneficial Owner, (2) whether a person is a
Related Person or is an Affiliate or Associate of another, (3) whether a person
has an agreement, arrangement, or understanding with another as to the matters
referred to in the definition of Beneficial Owner herein, (4) whether the assets
subject to any Business Transaction constitute a Substantial Part, (5) whether
any Business Transaction is with a Related Person or is one in which a Related
Person has an interest (other than only a proportionate interest as a
stockholder of the Corporation), (6) whether a Related Person, has, directly or
indirectly, received any benefits or caused any of the changes or caused the
Corporation to fail to declare and pay any of the dividends referred to in
subparagraph (2) (c) of Section A. of this Article THIRTEENTH, and (7) such
other matters with respect to which a determination is required under this
Article THIRTEENTH; and such determination by the Board of Directors shall be
conclusive and binding for all purposes of this Article THIRTEENTH.
D. Nothing contained in this Article THIRTEENTH shall be construed to
relieve any Related Person of any fiduciary obligation imposed by law.
E. The fact that any Business Transaction complies with the provisions
of Section A. of this Article THIRTEENTH shall not be construed to impose any
fiduciary duty, obligation, or
9
responsibility on the Board of Directors, or any member thereof, to approve such
Business Transaction or recommend its adoption or approval to the stockholders
of the Corporation.
F. Notwithstanding any other provisions of this Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding that a
lesser percentage may be specified by law), the provisions of this Article
THIRTEENTH may not be repealed or amended in any respect, unless such action is
approved by the affirmative vote of the holders of not less than eighty percent
(80%) of the outstanding shares of the Common Stock.
FOURTEENTH: The liability of the Corporation's Directors to the
Corporation or its stockholders shall be eliminated to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as the same
exists or may be amended from time to time. Any repeal or amendment of this
Article FOURTEENTH by the stockholders of the Corporation shall not adversely
affect any right or protection of a director existing at the time of such repeal
or amendment.
IN WITNESS WHEREOF, said 3M Company has caused this certificate to be
signed by Gregg M. Larson, its Secretary, and attested by Thomas A. Boardman,
its Assistant Secretary, this 8th day of April, 2002.
3M COMPANY
By /s/ Gregg M. Larson
-------------------
Gregg M. Larson
Secretary
ATTEST:
By /s/ Thomas A. Boardman
----------------------
Thomas A. Boardman
Assistant Secretary
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