RESTATED
CERTIFICATE OF INCORPORATION
OF
MOHAWK INDUSTRIES, INC.
MOHAWK INDUSTRIES, INC. (the 'Corporation') is a corporation duly organized
and existing under the General Corporation Law of the State of Delaware. Its
original Certificate of Incorporation was filed with the Secretary of State of
Delaware on December 22, 1988.
This Restated Certificate of Incorporation was duly adopted by the Board of
Directors of the Corporation in accordance with the provisions of Section 245 of
the General Corporation Law of the State of Delaware.
This Restated Certificate of Incorporation merely restates and integrates the
provisions of the Corporation's Certificate of Incorporation as heretofore
amended and supplemented, does not further amend such provisions and contains no
discrepancy between such provisions and the provisions hereof.
1. Name. The name of the Corporation is Mohawk Industries, Inc.
2. Registered Office and Agent. The address of its registered office in the
State of Delaware is Corporation Trust Center, 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.
3. Purpose. The purposes for which the Corporation is formed are to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware and to possess and exercise all
of the powers and privileges granted by such law and other law of Delaware.
4. Authorized Capital. The aggregate number of shares of stock which the
Corporation shall have authority to issue is 75,060,000 shares, divided into two
(2) classes consisting of 75,000,000 shares of common stock, par value $.01 per
share ('Common Stock'), and 60,000 shares of preferred stock, par value $.01 per
share ('Preferred Stock').
The following is a statement of the designations, preferences,
qualifications, limitations, restrictions and the special or relative rights
granted to or imposed upon the shares of each such class.
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(a) Common Stock
(i) Dividends. Holders of Common Stock will be entitled to
receive such dividends as may be declared by the Board of Directors.
(ii) Distribution of Assets. In the event of the voluntary or
involuntary liquidation, dissolution or winding-up of the
Corporation, holders of Common Stock will be entitled to receive pro
rata all of the remaining assets of the Corporation available for
distribution to its stockholders after all amounts to which the
holders of Preferred Stock are entitled have been paid or set aside
in cash for payment.
(iii) Voting Rights. The holders of Common Stock shall have the
general right to vote for all purposes, including the election of
directors, as provided by law. Each holder of Common Stock shall be
entitled to one vote for each share thereof held.
(b) Preferred Stock
(i) Issue in Series. Preferred Stock may be issued from time to
time in one or more series, each such series to have the terms
stated herein and in the resolution of the Board of Directors of the
Corporation providing for its issue. All shares of any one series of
Preferred Stock will be identical, but shares of different series of
Preferred Stock need not be identical or rank equally except insofar
as provided by law or herein.
(ii) Creation of Series. The Board of Directors shall have
authority by resolution to cause to be created one or more series of
Preferred Stock, and to determine and fix with respect to each
series prior to the issuance of any shares of the series to which
such resolution relates:
(A) The distinctive designation of the series and the
number of shares which will constitute the series, which number
may be increased or decreased (but not below the number of
shares then outstanding) from time to time by action of the
Board of Directors;
(B) The dividend rate and the times of payment of
dividends on the shares of the series, whether dividends will
be cumulative, and if so, from what date or dates;
(C) Whether or not the shares of the series will be
redeemable and, if redeemable, the price or prices at which,
and the terms and conditions on which, the shares of the series
may be redeemed at the option of the Corporation;
(D) Whether or not the shares of the series will be
entitled to the benefit of a retirement or sinking fund to be
applied to the purchase or redemption of such shares and, if so
entitled, the amount of such fund and the terms and provisions
relative to the operation thereof;
(E) Whether or not the shares of the series will be
convertible into, or exchangeable for, any other shares of
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stock of the Corporation or other securities, and if so
convertible or exchangeable, the conversion price or prices, or
the rates of exchange, and any adjustments thereof, at which
such conversion or exchange may be made, and any other terms
and conditions of such conversion or exchange;
(F) The rights of the shares of the series in the event of
voluntary or involuntary liquidation, dissolution or winding-up
of the Corporation;
(G) Whether or not the shares of the series will have
priority over or be on a parity with or be junior to the shares
of any other series or class in any respect or will be entitled
to the benefit of limitations restricting the issuance of
shares of any other series or class having priority over or
being on a parity with the shares of such series in any
respect, or restricting the payments of dividends on or the
making of other distributions in respect of shares of any other
series or class ranking junior to the shares of the series as
to dividends or assets, or restricting the purchase or
redemption of the shares of any such junior series or class,
and the terms of any such restriction;
(H) Whether the series will have voting rights, in
addition to any voting rights provided by law, and, if so, the
terms of such voting rights; and
(I) Any other preferences, qualifications, privileges,
options and other relative or special rights and limitations of
that series.
(iii) Dividends. Holders of Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors, out of
funds legally available for the payment thereof, dividends at the
rates fixed by the Board of Directors for the respective series, and
no more, before any dividends shall be declared and paid, or set
apart for payment, on Common Stock with respect to the same dividend
period.
(iv) Preference on Liquidation. In the event of the voluntary
or involuntary liquidation, dissolution or winding-up of the
Corporation, holders of each series of Preferred Stock will be
entitled to receive the amount fixed for such series plus, in the
case of any series on which dividends will have been determined by
the Board of Directors to be cumulative, an amount equal to all
dividends accumulated and unpaid thereon to the date of final
distribution whether or not earned or declared before any
distribution shall be paid, or set aside for payment, to holders of
Common Stock. If the assets of the Corporation are not sufficient to
pay such amounts in full, holders of all shares of Preferred Stock
will participate in the distribution of assets ratably in proportion
to the full amounts to which they are entitled or in such order of
priority, if any, as will have been fixed in the resolution or
resolutions providing for the issue of the series of Preferred
Stock. Neither the merger nor consolidation of the Corporation into
or with any other corporation, nor a sale, transfer or lease of all
part of its assets, will be deemed a liquidation, dissolution or
winding-up of the Corporation within the meaning of this paragraph
except to the extent specifically provided for in the resolution or
resolutions providing for the issue of the series of Preferred
Stock.
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(v) Redemption. The Corporation, at the option of the Board of
Directors, may, if so provided for in the resolutions providing for
its issue, redeem all or part of the shares of any series of
Preferred Stock on the terms and conditions fixed for such series.
(vi) Voting Rights. Except as otherwise required by law, as
otherwise provided herein or as otherwise determined by the Board of
Directors as to the shares of any series of Preferred Stock prior to
the issuance of any such shares, the holders of Preferred Stock
shall have no voting rights and shall not be entitled to any notice
of meeting of stockholders.
5. Term. The Corporation shall have perpetual existence.
6. By-laws. The Board of Directors of the Corporation is expressly
authorized to adopt, alter, amend or repeal the By-laws of the Corporation,
except as otherwise specifically provided therein.
7. Elections of Directors. Election of directors need not be by written
ballot unless the By-laws of the Corporation shall so provide.
8. Number of Directors.
(a) The business and affairs of the Corporation shall be managed by,
or under the direction of, a Board of Directors comprised as follows:
(i) The number of directors of the Corporation shall be not
less than two (2) and not more than eleven (11), the exact number
within such minimum and maximum limits to be fixed and determined
from time to time by resolution of a majority of the Board of
Directors.
(ii) The Board of Directors shall be divided into three classes
consisting, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors. The
first class of directors shall be elected for a year term expiring
upon the next following Annual Meeting of Stockholders and the
election and qualification of their respective successors, the
second class of directors shall be elected for a term expiring upon
the second next Annual Meeting of Stockholders and the election and
qualification of their respective successors, and the third class of
directors shall be elected for a term expiring upon the third next
Annual Meeting of Stockholders and the election and qualification of
their respective successors. At each succeeding Annual Meeting of
Stockholders, successors to the class of directors whose term
expires at that Annual Meeting of Stockholders shall be elected for
a three-year term. If the number of directors has changed, any
increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as
possible, and any additional director of any class elected to fill a
vacancy resulting from an increase in such a class shall hold office
for a term that shall coincide with the remaining term of that
class, unless otherwise required by law, but in no case shall a
decrease in the number of directors for a class shorten the term of
an incumbent director.
(iii) A director shall hold office until the Annual Meeting of
Stockholders upon which his term expires and until his successor
shall be elected and qualified, subject, however, to prior death,
resignation or removal from office.
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(iv) Any vacancy on the Board of Directors that results from an
increase in the number of directors or from the death, resignation
or removal from office of a director shall be filled by a majority
of the Board of Directors then in office, though less than a quorum,
or by the sole remaining director, and any director so chosen shall
have the same remaining term as that of his predecessor.
(v) Notwithstanding the foregoing, whenever the holders of any
one or more classes or series of Preferred Stock issued by the
Corporation shall have the right, voting separately by class or
series, to elect directors at an Annual or Special Meeting of
Stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms
of this Certificate of Incorporation and the resolution of the Board
of Directors creating such class or series, to the extent applicable
thereto, and such directors so elected shall not be divided into
classes pursuant to this Section (a) of Article 8 unless expressly
provided by such terms.
(b) Notwithstanding any other provision of this Certificate of
Incorporation or the By-laws of the Corporation (and notwithstanding the
fact that a lesser percentage for separate class vote for certain actions
may be permitted by law, by this Certificate of Incorporation or by the
By-laws of the Corporation), the affirmative vote of the holders of not
less than 80% of the votes entitled to be cast by the holders of all then
outstanding shares of capital stock, voting together as a single class,
shall be required to make, alter, amend, change, add to or repeal any
provision of this Article 8 or any other provision of this Certificate of
Incorporation or the By-laws of the Corporation in a manner inconsistent
with this Article 8.
(c) The invalidity or unenforceability of this Article 8 or any
portion hereof, or of any action taken pursuant to this Article 8, shall
not affect the validity or enforceability of any other provision of this
Certificate of Incorporation, any action taken pursuant to such other
provision, or any action taken pursuant to this Article 8.
9. Written Consent. Action required to be taken or which may be taken at any
Annual Meeting or Special Meeting of the Stockholders may be taken without a
meeting, without prior notice and without a vote if a consent in writing,
setting forth the action so taken, shall be signed by all the holders of
outstanding shares of stock entitled to vote on such action.
10. Right to Amend. The Corporation reserves the right to amend the provisions
in this Certificate, as the same may from time to time be in effect, in the
manner now or hereafter provided by law, and all rights conferred on
stockholders or others hereunder or thereunder are granted subject to such
reservation.
11. Limited Liability. No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law ('DGCL'), or (iv) for any transaction from which the director derived an
improper personal benefit. If the DCGL is amended hereafter to authorize the
further elimination or limitation of the personal liability of directors, or to
authorize the elimination or limitation of the personal liability of officers or
other agents of the Corporation, then the liability of such person or persons
shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended. Any repeal or modification of this Article 11 shall be prospective
only, and shall not affect to the detriment of any director, or officer or other
agent if applicable thereto, of the Corporation any limitation on the personal
liability of such person existing at the time of such repeal or modification.
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12. Indemnification. The Corporation shall indemnify any person who is or was
a director or officer of the Corporation, or any other person who is serving or
did serve at the request of the Corporation in any such capacity with another
corporation, partnership, joint venture, trust or other enterprise to the
fullest extent permitted by the laws of the State of Delaware as in effect on
the date hereof or as may hereafter be amended.
IN WITNESS WHEREOF, the Company has caused its corporate seal to be hereunto
affixed and this Certificate to be executed by David L. Kolb, its Chairman and
Chief Executive Officer and by Barbara B. Lance its Secretary, this the 13th day
of February, 1997.
MOHAWK INDUSTRIES, INC.
/s/ DAVID L. KOLB
--------------------------------------
David L. Kolb
Chairman and Chief Executive Officer
Attest:
/s/ BARBARA B. LANCE
------------------------
Barbara B. Lance
Secretary
[CORPORATE SEAL]
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
MOHAWK INDUSTRIES, INC.
MOHAWK INDUSTRIES, INC., a corporation organized and existing under and by
virtue of the Delaware General Corporation Law (the 'Corporation'), DOES HEREBY
CERTIFY:
FIRST: That on February 27, 1998 the Board of Directors of the
Corporation adopted resolutions setting forth a proposed amendment of the
Restated Certificate of Incorporation of the Corporation, declaring said
amendment to be advisable and submitting the proposed amendment to the
stockholders of the Corporation for their consideration and approval. The
proposed amendment is as follows:
NOW, THEREFORE, BE IT HEREBY RESOLVED, that the Board of Directors deems it
advisable that the following amendment (the 'Amendment') to the Corporation's
Restated Certificate of Incorporation be adopted:
'RESOLVED, that the Restated Certificate of Incorporation of the
Corporation, as in force and effect on the date hereof, be and hereby is,
amended by deleting the introductory paragraph of Article 4 in its entirety
and by substituting in lieu thereof the following:
4. Authorized Capital. The aggregate number
of shares of stock which the Corporation shall have
authority to issue is 150,060,000 shares, divided into two
(2) classes consisting of 150,000,000 shares of common
stock, par value $.01 per share ('Common Stock'), and
60,000 shares of preferred stock, par value $.01 per share
('Preferred Stock').'
SECOND: That thereafter on May 21, 1998, the stockholders of the
Corporation approved the proposed amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, Mohawk Industries, Inc. has caused this certificate to
be signed by a duly authorized officer this 2nd day of June, 1998.
MOHAWK INDUSTRIES, INC.
By: /s/ Barbara B. Lance
------------------------------
Barbara B. Lance
Secretary
Certificate of Incorporation - Mohawk Industries Inc.
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