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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MONSANTO COMPANY
Monsanto Company, a corporation organized and existing under the laws
of the State of Delaware, does hereby certify:
1. The name of the corporation is Monsanto Company. Monsanto Company
was originally incorporated under the name "Monsanto Ag Company", and the
original Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware on February 9, 2000.
2. This Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") was duly adopted in accordance with Section 245
of the General Corporation Law of the State of Delaware. Pursuant to Sections
242 and 228 of the General Corporation Law of the State of Delaware, the
amendments and restatement herein set forth have been duly adopted by the Board
of Directors and the stockholder of Monsanto Company.
3. Pursuant to Section 245 of the General Corporation Law of the
State of Delaware, this Certificate of Incorporation restates and integrates and
amends the provisions of the amended Certificate of Incorporation of this
corporation.
4. The text of the amended Certificate of Incorporation is hereby
restated and amended to read in its entirety as follows:
ARTICLE I
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The name of the corporation (which is hereinafter referred to as the
"Corporation") is: Monsanto Company
ARTICLE II
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The address of the Corporation's registered office in the State of
Delaware is The Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle.
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The name of the Corporation's registered agent at such address is The
Corporation Trust Company.
ARTICLE III
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The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware.
ARTICLE IV
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Section 1. The Corporation shall be authorized to issue
1,520,000,000 shares of capital stock, of which 1,500,000,000 shares shall be
shares of Common Stock, $0.01 par value ("Common Stock"), and 20,000,000 shares
shall be shares of Preferred Stock, $0.01 par value ("Preferred Stock").
Section 2. Shares of Preferred Stock may be issued from time to
time in one or more series. The Board of Directors of the Corporation (the
"Board") is hereby authorized to fix by resolution or resolutions the voting
powers, if any, designations, powers, preferences and the relative,
participating, optional or other special rights, if any, and the qualifications,
limitations or restrictions thereof, of any unissued series of Preferred Stock;
and to fix the number of shares constituting such series, and to increase or
decrease the number of shares of any such series (but not below the number of
shares thereof then outstanding). The powers, preferences and relative,
participating, optional and other special rights of each series of Preferred
Stock, and the qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding.
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Section 3. Except as otherwise provided by law or by this
Certificate of Incorporation (including any certificate filed with the Secretary
of State of the State of Delaware establishing the terms of a series of
Preferred Stock in accordance with Section 2 of this Article IV), the Common
Stock shall have the exclusive right to vote for the election of directors and
for all other purposes. Each share of Common Stock shall entitle the holder
thereof to one vote on all matters on which stockholders are entitled generally
to vote, and the holders of Common Stock shall vote together as a single class.
ARTICLE V
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Section 1. In anticipation of the possibility (i) that the
Corporation will not be a wholly-owned subsidiary of Pharmacia Corporation and
that Pharmacia Corporation may be a majority or significant stockholder of the
Corporation, (ii) that the officers and/or directors of the Corporation may also
serve as officers and/or directors of Pharmacia Corporation, (iii) that the
Corporation and Pharmacia Corporation may engage in the same or similar
activities or lines of business and have an interest in the same classes or
categories of corporate opportunities, and (iv) in recognition of the benefits
to be derived by the Corporation through its continued contractual, corporate
and business relations with Pharmacia Corporation (including possible service of
officers and/or directors of Pharmacia Corporation as officers and directors of
the Corporation), the provisions of this Article are set forth to regulate and
shall, to the fullest extent permitted by law, define the conduct of the
Corporation with respect to certain classes or categories of business
opportunities that are presented to the Corporation as they may involve
Pharmacia Corporation and its officers and directors, and the powers, rights,
duties and liabilities of the Corporation and its officers, directors and
stockholders in connection therewith.
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Section 2. Except as may be otherwise provided in a written
agreement between the Corporation and Pharmacia Corporation, Pharmacia
Corporation shall have no duty to refrain from engaging in a corporate
opportunity in the same or similar activities or lines of business as the
Corporation (and all corporations, partnerships, joint ventures, associations
and other entities in which the Corporation beneficially owns directly or
indirectly 50 percent or more of the outstanding voting stock, voting power,
partnership interests or similar voting interests) engages in or proposes to
engage in at the time of the initial public offering of the Corporation's Common
Stock (and the Corporation hereby renounces any interest or expectancy, or in
being offered any opportunity to participate in such business opportunities as
may arise in which both the Corporation and Pharmacia Corporation may have an
interest), and, to the fullest extent permitted by law, neither Pharmacia
Corporation nor any officer or director thereof (except as provided in Section 3
of this Article V) shall be liable to the Corporation or its stockholders for
breach of any fiduciary duty by reason of any such activities of Pharmacia
Corporation. In the event that Pharmacia Corporation acquires knowledge of a
potential transaction or matter which may be a corporate opportunity for both
Pharmacia Corporation and the Corporation, Pharmacia Corporation shall, to the
fullest extent permitted by law, have no duty to communicate or offer such
corporate opportunity to the Corporation and shall, to the fullest extent
permitted by law, not be liable to the Corporation or its stockholders for
breach of any fiduciary duty as a stockholder of the Corporation by reason of
the fact that Pharmacia Corporation pursues or acquires such corporate
opportunity for itself, directs such corporate opportunity to another person, or
does not communicate information regarding such corporate opportunity to the
Corporation.
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Section 3. In the event that a director or officer of the
Corporation who is also a director or officer of Pharmacia Corporation acquires
knowledge of a potential transaction or matter which may be a corporate
opportunity (as referenced above in Section 2) for both the Corporation and
Pharmacia Corporation, such director or officer of the Corporation shall, to the
fullest extent permitted by law, have fully satisfied and fulfilled the
fiduciary duty of such director or officer to the Corporation and its
stockholders with respect to such corporate opportunity, if such director or
officer acts in a manner consistent with the following policy:
(a) a corporate opportunity (as referenced above in Section 2) offered to any
person who is an officer of the Corporation, and who is also a director but
not an officer of Pharmacia Corporation, shall belong to the Corporation;
(b) a corporate opportunity (as referenced above in Section 2) offered to any
person who is a director but not an officer of the Corporation, and who is
also a director or officer of Pharmacia Corporation shall belong to the
Corporation if such opportunity is expressly offered to such person in his
or her capacity as a director of the Corporation, and otherwise shall
belong to Pharmacia Corporation; and
(c) a corporate opportunity (as referenced above in Section 2) offered to any
person who is an officer of both the Corporation and Pharmacia Corporation
shall belong to the Corporation if such opportunity is expressly offered to
such person in his or her capacity as an officer of the Corporation and
otherwise shall belong to Pharmacia Corporation.
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Section 4. Any person purchasing or otherwise acquiring any
interest in shares of the capital stock of the Corporation shall be deemed to
have notice of and to have consented to the provisions of this Article V.
Section 5. For purposes of this Article V only:
(a) A director of the Corporation who is Chairman of the Board or of
a committee thereof shall not be deemed to be an officer of the Corporation by
reason of holding such position (without regard to whether such position is
deemed an office of the Corporation under the Amended and Restated By-Laws (the
"By-Laws") of the Corporation), unless such person is a full-time employee of
the Corporation; and
(b) The term "Pharmacia Corporation" shall mean Pharmacia Corporation,
a Delaware corporation (and any successor thereof) and all corporations,
partnerships, joint ventures, associations and other entities (other than the
Corporation (and all corporations, partnerships, joint ventures, associations
and other entities in which the Corporation beneficially owns directly or
indirectly 50 percent or more of the outstanding voting stock, voting power,
partnership interests or similar voting interests)) in which Pharmacia
Corporation beneficially owns (directly or indirectly) 50 percent or more of the
outstanding voting stock, voting power, partnership interests or similar voting
interests.
Section 6. Anything in this Certificate of Incorporation to the
contrary notwithstanding, the foregoing provisions of this Article V shall
terminate, expire and have no further force and effect on the date that (i)
Pharmacia Corporation ceases to beneficially own shares of common stock
representing at least 20 percent of the total voting power of all classes of
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outstanding capital stock of the Corporation entitled to vote in the election of
directors and (ii) no person who is a director or officer of the Corporation is
also a director or officer of Pharmacia Corporation. Neither the alteration,
amendment, termination, expiration or repeal of this Article V nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article V shall eliminate or reduce the effect of this Article V in respect of
any matter occurring, or any cause of action, suit or claim that, but for this
Article V, would accrue or arise, prior to such alteration, amendment,
termination, expiration, repeal or adoption.
ARTICLE VI
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Section 1. Subject to the rights of the holders of any outstanding
series of Preferred Stock or any other series or class of stock as set forth in
this Certificate of Incorporation to elect additional directors under specified
circumstances, the number of directors of the Corporation shall be fixed, and
may be increased or decreased from time to time, by resolution of the Board.
Section 2. Unless and except to the extent that the By-Laws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
Section 3. At the first annual meeting of stockholders (the "First
Meeting") following the first date that Pharmacia Corporation and its affiliates
cease to beneficially own 50 percent or more of the total voting power of the
outstanding shares of all classes of capital stock entitled to vote generally in
the election of directors of the Corporation (the "Pharmacia Required
Percentage"), the directors, other than those who may be elected by the holders
of any
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outstanding series of shares of Preferred Stock or any other series or class of
stock as set forth in this Certificate of Incorporation, shall be divided into
three classes, as nearly equal in number as possible and designated Class I,
Class II and Class III. Class I shall be initially elected for a term expiring
at the first annual meeting of stockholders following the First Meeting, Class
II shall be initially elected for a term expiring at the second annual meeting
of stockholders following the First Meeting, and Class III shall be initially
elected for a term expiring at the third annual meeting of stockholders
following the First Meeting. Members of each class shall hold office until their
successors are elected and qualified. At each succeeding annual meeting of the
stockholders of the Corporation, the successors of the class of directors whose
term expires at that meeting shall be elected for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election. In case of any increase or decrease, from time to time, in the number
of directors, other than those who may be elected by the holders of any
outstanding series of Preferred Stock or any other series or class of stock as
set forth in this Certificate of Incorporation, the number of directors in each
class shall be apportioned as nearly equal as possible.
Section 4. Subject to the rights of the holders of any outstanding
series of Preferred Stock or any other series or class of stock as set forth in
or pursuant to this Certificate of Incorporation to elect additional directors
under specified circumstances, any director or the entire Board may be removed
from office at any time with or without cause, but only by the affirmative vote
of the holders of at least 70 percent of the voting power of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class; provided, however,
that after the first date on which Pharmacia
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Corporation and its affiliates cease to beneficially own the Pharmacia Required
Percentage, a director may be removed from office only for cause and only by the
affirmative vote of the holders of at least 70 percent of the voting power of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
Notwithstanding anything in this Certificate of Incorporation to the contrary
and in addition to any other vote required by law, the affirmative vote of the
holders of at least 70 percent of the voting power of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to amend, repeal
or adopt any provision inconsistent with this Article VI.
Section 5. Subject to the rights, if any, of the holders of any
outstanding series of Preferred Stock, newly created directorships resulting
from any increase in the authorized number of directors or any vacancies in the
Board resulting from death, resignation, retirement, disqualification, removal
from office or other cause shall be filled solely by the affirmative vote of a
majority of the remaining directors then in office, even though less than a
quorum of the Board. Any director so chosen shall hold office until his or her
successor shall be elected and qualified and, if the Board at such time is
classified, until the next election of the class for which such directors shall
have been chosen. No decrease in the number of directors shall shorten the term
of any incumbent director.
ARTICLE VII
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In furtherance and not in limitation of the powers conferred by law,
the Board is expressly authorized and empowered to adopt, amend, alter and
repeal the By-Laws of the Corporation at any regular or special meeting of the
Board or by written consent, subject to the
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power of the stockholders of the Corporation to adopt, amend, alter or repeal
any By-Laws; provided, however, that with respect to the powers of the
stockholders to adopt, amend, alter and repeal By-Laws, notwithstanding any
other provision of this Certificate of Incorporation or any provision of law
which might otherwise permit a lesser vote or no vote, but in addition to any
affirmative vote of the holders of any outstanding series of Preferred Stock
required by law or by this Certificate of Incorporation (including any
certificate filed with the Secretary of State of the State of Delaware
establishing the terms of a series of Preferred Stock in accordance with Section
2 of Article IV), the affirmative vote of the holders of at least 70 percent of
the voting power of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required for stockholders to adopt, amend or repeal any
provision of the By-Laws. Notwithstanding anything contained in this Certificate
of Incorporation to the contrary and in addition to any other vote required by
law, the affirmative vote of the holders of at least 70 percent of the voting
power of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class,
shall be required to amend, repeal or adopt any provision inconsistent with the
preceding sentence.
ARTICLE VIII
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The Corporation reserves the right at any time and from time to time
to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, and any other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
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whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article.
ARTICLE IX
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A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended.
Any amendment, repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to such
amendment, repeal or modification.
ARTICLE X
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Any action required or permitted to be taken at any annual or special
meeting of stockholders of the Corporation may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
capital stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares of
capital stock entitled to vote thereon were present and voted; provided,
however, that after the first date on which Pharmacia Corporation and its
affiliates cease to beneficially own the Pharmacia Required Percentage, any
action required or permitted to be taken by stockholders may be effected only at
a duly called annual or special meeting of stockholders and may not be effected
by a written consent or consents by stockholders in lieu of such a meeting.
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Notwithstanding anything in this Certificate of Incorporation to the contrary
and in addition to any other vote required by law, the affirmative vote of the
holders of at least 70 percent of the voting power of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to amend, repeal
or adopt any provision inconsistent with this Article X.
ARTICLE XI
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The Corporation elects not to be governed by Section 203 of the
General Corporation Law of the State of Delaware until the first date on which
Pharmacia Corporation and its affiliates cease to beneficially own 15 percent or
more of the total voting power of the outstanding shares of all classes of
capital stock entitled to vote generally in the election of directors, at which
time Section 203 of the General Corporation Law of the State of Delaware shall
apply to the Corporation.
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IN WITNESS WHEREOF, Monsanto Company has caused this Amended and
Restated Certificate of Incorporation to be executed by ______________, its
______________ this ______ day of _____________, 2000.
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Name:
Title:
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