AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PRECISE TECHNOLOGY, INC.
(Originally incorporated under the name KDI Auto-Trol Corporation)
Precise Technology, Inc., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on August 14, 1969.
Certificates of Amendment of the Certificate of Incorporation of the Corporation
were filed with the Secretary of State of the State of Delaware on April 10,
1970, June 22, 1987, February 16, 1988, November 5, 1992 and July 25, 1994.
Certificates of Ownership & Merger were filed with the Secretary of State of the
State of Delaware on April 19, 1983, January 24, 1986 and April 19, 1990.
2. Immediately prior to this amendment of the Certificate of Incorporation
of the Corporation, as hereinbelow set forth, the Corporation had authority to
issue an aggregate of one thousand five hundred (1,500) shares, of which one
thousand (1,000) shares, without par value, were designated "Common Stock," and
five hundred (500) shares, without par value, were designated "9-1/2% Preferred
Stock," having a stated value of Ten Thousand Dollars ($10,000) per share.
3. This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of this
Corporation by:
a. Authorizing the issuance and designating the terms of an aggregate
of 2,000 shares, of which 1,000 shares, with no par value, shall be
designated "Common Stock" and 1,000 shares, with no par value but with a
stated value of Ten Thousand Dollars ($10,000) per share shall be
designated "Serial Preferred Stock," in Article FOURTH;
b. Changing the address of the registered agent in Article SECOND;
c. Deleting Article FIFTH, which contained the name of the sole
incorporator, and conforming the remaining Articles accordingly; and
d. Adding Article TENTH pertaining to the action required on matters
on which stockholders are entitled to vote.
4. The text of the Certificate of Incorporation is amended and restated
hereby to read as herein set forth in full:
FIRST.The name of the Corporation is PRECISE TECHNOLOGY, INC.
SECOND. 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.
THIRD.The nature of the business or purposes to be conducted or promoted
is:
To manufacture, compound, produce, purchase or otherwise acquire; to
own, hold, use, develop and otherwise deal in and with; to sell at
wholesale and retail, mortgage, pledge, lease, license the use of and
otherwise dispose of metals, alloys, and by-products, materials commonly
known as plastics, including but without limitation thereto, bitumens,
casein, cellulose and natural and synthetic resins, and all other similar
materials, products and by-products, and all articles composed in whole or
in part of plastic or natural materials and the machinery, equipment,
supplies, molds and appliances used or useful in the manufacture,
processing, production, packaging and marketing of any of the foregoing.
To engage in the business of advisors, consultants, and managers in
all branches of business, and to contract for, acquire, plan, maintain,
manage, cooperate with, and assist in the maintenance and operation of
business enterprises of any and every kind, and to own, manage, assist,
finance, supervise and otherwise deal with corporations, associations,
businesses, financial and other enterprises of all kinds.
To buy, sell, mind, manage, operate, hold and deal in and with real
and personal property of every kind and description.
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
-2-
To manufacture, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade,
deal in and deal with goods, wares and merchandise and personal property of
every class and description.
To acquire, and pay for in cash, stock or bonds of this Corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any
person, firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United States or
any foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and trade names,
relating to or useful in connection with any business of this Corporation.
To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or
otherwise dispose of or deal in and with any of the shares of the capital
stock, or any voting trust certificates in respect of the shares of capital
stock, scrip, warrants, rights, bonds, debentures, notes, trust receipts,
and other securities, obligations, choses in action and evidences of
indebtedness or interests issued or created by any corporations, joint
stock companies, syndicates, associations, firms, trusts or persons, public
or private, or by the government of the United States of America, or by any
foreign government, or by any state, territory, province, municipality or
other political subdivision or by any governmental agency, and as owner
thereof to possess and exercise all the rights, powers and privileges of
ownership, including the right to execute consents and vote thereon, and to
do any and all acts and things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof.
To borrow or raise moneys for any of the purposes of the Corporation
and, from time to time without limit as to amount, to draw, make, accept,
enforce, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness, and to secure the payment of any
thereof and of the interest thereon by mortgage upon or pledge, conveyance
or assignment in trust of the whole or any part of the property of the
Corporation, whether at the time owned or thereafter acquired, and to sell,
pledge or otherwise dispose of such bonds or other obligations of the
Corporation for its corporate purposes.
To purchase, receive, take by grant, gift, devise, bequest or
otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and
otherwise deal in and with real or personal property, or any interest
therein, wherever situated, and to sell, convey, lease, exchange, transfer
or otherwise dispose of, or mortgage or pledge, all or any of the
Corporation's property and assets, or any interest therein, wherever
situated.
In general, to possess and exercise all the powers and privileges
granted by the General Corporation Law of Delaware or by any other law of
Delaware or by this Certificate of
-3-
Incorporation together with any powers incidental thereto, so far as such
powers and privileges are necessary or convenient to the conduct, promotion
or attainment of the business or purposes of the Corporation.
The business and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in no way limited or restricted by
reference to, or inference from the terms of any other clause in this
Certificate of Incorporation, but the business and purposes specified in
each of the foregoing clauses of this article shall be regarded as
independent business and purposes.
FOURTH. The Corporation shall have authority to issue 1,000 shares of
Common Stock, without par value, and 1,000 shares of Serial Preferred Stock,
without par value but with a stated value of Ten Thousand Dollars ($10,000) per
share.
A. Serial Preferred Stock
The Board of Directors is hereby empowered to cause the Serial Preferred
Stock of the Corporation to be issued in series with such of the variations
permitted by clauses (1)-(8) of this paragraph A as shall have been fixed and
determined by the Board of Directors with respect to any series prior to the
issue of any shares of such series.
The shares of the Serial Preferred Stock of different series may vary as
to:
(1) the number of shares constituting such series and the designation of
such series, which shall be such as to distinguish the shares thereof from the
shares of all other series and classes;
(2) the rate of dividend, the time of payment and, if cumulative, the dates
from which dividends shall be cumulative, the extent of participation rights, if
any, and the priority in payment of dividends;
(3) any right to vote with holders of shares of any other series or class
and any right to vote as a class, either generally or as a condition to
specified corporate acts;
(4) the price at and the terms and conditions on which shares may be
redeemed;
-4-
(5) the amount payable upon shares and the priority of payment in event of
involuntary liquidation;
(6) the amount payable upon shares and the priority of payment in event of
voluntary liquidation;
(7) any sinking fund provisions for the redemption or purchase of shares;
and
(8) the terms and conditions on which shares may be converted, if the
shares of any series are issued with the privilege of conversion.
The shares of all series of Serial Preferred Stock shall be identical
except as, within the limitations set forth above in this Section A, shall have
been fixed and determined by the Board of Directors prior to the issuance
thereof. Except as specifically set forth in any Certificate of Serial
Designation filed with the Secretary of State of the State of Delaware or as
required by the Delaware General Corporation Law, none of the shares of any
series of Serial Preferred Stock shall have any right to vote on any matters.
B. Common Stock.
(1) Dividends. The holders of the Common Stock shall be entitled to
receive, out of funds legally available therefor, cash dividends and dividends
payable in property other than securities of the Corporation only at such time
as all dividends on the Serial Preferred Stock through the record date of any
such Common Stock dividend have been paid in full.
(2) Liquidation. In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up of the Corporation, after
distribution in full to the holders of Serial Preferred Stock of their preferred
liquidation payments, the holders of Common Stock shall be entitled to receive
the remaining assets of the Corporation.
-5-
(3) Voting Rights. Except as may be otherwise required by law or the
Certificate of Incorporation of the Corporation, as amended, each share of
Common Stock shall have one (1) vote on all matters voted upon by the
stockholders.
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 by-laws 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 of the 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 two 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. Any such committee, to the extent provided in the resolution or in
the by-laws of the Corporation, shall have and may exercise the powers 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; provided, however, the by-laws may provide that in
the absence or disqualification of any member of such committee or committees,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they 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.
-6-
When and as authorized by the affirmative vote of the holders of a majority
of stock issued and outstanding having voting power given at a stockholders'
meeting duly called upon such notice as is required by statute, or when
authorized by the written consent of the holders of a majority of the voting
stock issued and outstanding, 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
interests of the Corporation.
SEVENTH. 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 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 to 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 a 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 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
-7-
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.
EIGHTH. Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the Corporation may be kept
(subject to any provisions contained in the sutures) 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 by-laws of the Corporation. Elections of Directors
need not be by written ballot unless the by-laws of the Corporation shall so
provide.
NINTH. The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all fights conferred upon stockholders
herein are granted subject to this reservation.
TENTH. Notwithstanding any provision of the General Corporation Law of the
State of Delaware now or later in force that requires for any purpose the
affirmative vote or consent of more than a majority of the holders of shares of
the Corporation or of any class, such action, unless otherwise expressly
required by statute, may be taken by the vote or consent of the holders of the
shares that entitle them to exercise the majority of the voting power of the
Corporation or, if required by law, any class.
5. This Amended and Restated Certificate of Incorporation was duly adopted
by unanimous written consent of the stockholder in accordance with the
applicable provisions of Sections 228, 242 and 245 of the General Corporation
Law of the State of Delaware.
-8-
IN WITNESS WHEREOF, said Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed by John R. Weeks, its President, and
Richard C. Hoffman, its Assistant Secretary, this 29th day of March, 1996.
/s/ John R. Weeks
---------------------------------------
John R. Weeks, President
/s/ Richard C. Hoffman
---------------------------------------
Richard C. Hoffman, Assistant Secretary
-9-