EXHIBIT 3.1
Amended to and including
amendments of May 9, 2000
CERTIFICATE OF INCORPORATION OF
MINNESOTA MINING AND MANUFACTURING COMPANY
(Original Certificate Filed on June 25, 1929)
FIRST: The name of the Corporation is MINNESOTA MINING AND
MANUFACTURING 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;
(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.
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 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 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 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, 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.
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).
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
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 Minnesota Mining and Manufacturing
Company has caused this certificate to be signed by Roger P.
Smith, its Secretary, and attested by Gregg M. Larson, its
Assistant Secretary, this 19th day of May, 2000.
MINNESOTA MINING AND
MANUFACTURING COMPANY
By /s/ Roger P. Smith
Roger P. Smith
Secretary
ATTEST:
By /s/ Gregg M. Larson
Gregg M. Larson
Assistant Secretary
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