CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
DEP CORPORATION
DEP CORPORATION, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY THAT:
FIRST: At a meeting of the Board of Directors of the Corporation held
on August 13, 1996, resolutions were duly adopted setting forth proposed
amendments to the Certificate of Incorporation of the Corporation, declaring
said amendments to be advisable and directing that those amendments be adopted
pursuant to Section 303 of the General Corporation Law of the State of Delaware.
The resolutions setting forth the proposed amendments are as follows:
WHEREAS, in connection with the Corporation's Second Amended Plan
of Reorganization dated as of August 23, 1996, which Plan of
Reorganization was duly confirmed by the United States Bankruptcy
Court for the District of Delaware under Section 1129 of the
Bankruptcy Code, the Board of Directors of the Corporation deems it to
be desirable and in the best interests of the Corporation to amend the
Corporation's Certificate of Incorporation to (i) convert each
outstanding share of the Corporation's Class A Common Stock into one
outstanding share of a single class of the Corporation's common equity
securities, to be designated "Common Stock," (ii) convert each
outstanding share of the Corporation's Class B Common Stock into one
outstanding share of such Common Stock, (iii) eliminate the designated
series of Class A Common Stock and Class B Common Stock and (iv)
reduce the number of authorized shares of Common Stock to Fifteen
Million Shares.
NOW, THEREFORE, BE IT RESOLVED, that Article IV of the
Certificate of Incorporation of the Corporation be, and it hereby is,
amended in its entirety to read as follows:
"ARTICLE IV
(A) AUTHORIZED SHARES. The total number of shares of all
classes of capital stock which the Corporation shall have authority to
issue is Eighteen Million (18,000,000) shares, consisting of Fifteen
Million (15,000,000) shares of Common Stock, par value $.01 per share
(such class of stock, the "Common Stock"), and Three Million
(3,000,000)
shares of Preferred Stock, par value $.01 per share (such class of stock,
the "Preferred Stock").
At 5:00 p.m. (New York City time) on the date that this
Certificate of Amendment is filed with the Secretary of State of the
State of Delaware (such time, the "Effective Time"), and without
further action on the part of the Corporation or its stockholders, (i)
each share of Class A Common Stock, par value $.01 per share, of the
Corporation ("Old Class A Common Stock") issued and outstanding
immediately prior to the Effective Time shall automatically be
reclassified as and changed into one validly issued, fully paid and
nonassessable share of Common Stock; and (ii) each share of Class B
Common Stock, par value $.01 per share, of the Corporation ("Old Class
B Common Stock") issued and outstanding immediately prior to the
Effective Time shall automatically be reclassified as and changed into
one validly issued, fully paid and nonassessable share of Common
Stock.
Each stock certificate that theretofore represented shares of Old
Class A Common Stock shall thereafter be deemed to represent that
number of shares of Common Stock into which the shares of Old Class A
Common Stock represented by such certificate shall have been
reclassified; PROVIDED, HOWEVER, that each person holding of record a
stock certificate or certificates that represented shares of Old Class
A Common Stock shall receive, upon surrender of such certificate or
certificates, a new certificate or certificates evidencing and
representing the number of shares of Common Stock to which such person
is entitled. Each stock certificate that theretofore represented
shares of Old Class B Common Stock shall thereafter be deemed to
represent that number of shares of Common Stock into which the shares
of Old Class B Common Stock represented by such certificate shall have
been reclassified; PROVIDED, HOWEVER, that each person holding of
record a stock certificate or certificates that represented shares of
Old Class B Common Stock shall receive, upon surrender of such
certificate or certificates, a new certificate or certificates
evidencing and representing the number of shares of Common Stock to
which such person is entitled.
Subject to the provisions hereof, at each annual or special
meeting of stockholders, each holder of Common Stock shall be entitled
to one (1) vote in person or by proxy for each share of Common Stock
standing in such person's name on the stock transfer records of the
Corporation in connection with the election of directors and all other
actions submitted to a vote of stockholders.
(b) PREFERRED STOCK. The designations, voting powers,
preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions of each series
of the Preferred Stock shall be established by resolution of the Board
of Directors pursuant to Section 151 of the Delaware Law (or any
successor provision then in effect).
(c) NO PREEMPTIVE RIGHTS. No holder of any shares of the
capital stock of the Corporation shall, by reason of such holding,
have any preemptive right to subscribe to any additional issue of
capital stock of any class or series of the Corporation or to any
security of the Corporation convertible into such stock."
SECOND: Said amendments were duly adopted in accordance with the
provisions of Section 303 of the General Corporation Law of the State of
Delaware, having been duly adopted pursuant
2
to a plan of reorganization under the United States Bankruptcy Code (Title 11,
United States Code) with respect to the Corporation that was duly confirmed by
the order of a United States federal court of competent jurisdiction in
accordance with such Section.
IN WITNESS WHEREOF, DEP CORPORATION has caused this certificate to be
signed by Robert Berglass, its President, and Judith R. Berglass, its Secretary,
as of the 4th day of November, 1996.
DEP CORPORATION
By: /s/ Robert Berglass
------------------------------
Robert Berglass
President
Attest: /s/ Judith R. Berglass
----------------------------------
Judith R. Berglass
Secretary
3