CERTIFICATE OF INCORPORATION
OF
FOR BETTER LIVING, INC.
(As Amended 17 October 1994)
1. The name of the Corporation is For Better Living, Inc.
2. The address of the Corporation's registered office in
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware,
19001, and the name of its registered agent at said address is The Corporation
Trust Company.
3. The purpose of the Corporation is to engage in any lawful
act or activity for which Corporations may be organized under the Delaware
General Corporation Law.
4. The Corporation shall have authority to issue 2,650,000
shares of stock, consisting of 2,500,000 shares of Common Stock, par value $.05
per share, and 150,000 shares of Preferred Stock par value $1 per share.
The shares of Preferred Stock may be issued from time to time
in one or more series. The Board of Directors is expressly granted authority to
fix by resolution the designations and the powers, preferences and relative,
participating, optional or other rights (including voting powers, full or
limited, or no voting powers) and the qualifications, limitations or
restrictions thereof, in respect of the Preferred Stock or any series thereof,
and by resolution to fix, increase or decrease (but not below the number of
shares thereof then outstanding) the number of shares of any such series. Except
as otherwise provided by law or this Certificate of Incorporation as amended
from time to time or the resolutions of the Board of Directors relating to the
Preferred Stock or any series thereof (i) the Common Stock shall possess the
full voting power of the Corporation and each share thereof shall be entitled to
one vote, and (ii) the number of authorized shares of any class or classes may
be increased or decreased by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote.
5. The Board of Directors shall have the power to make, alter
or repeal the By-Laws of the Corporation, subject to any voting requirements
contained in the By-Laws, including any such requirements relating to the vote
required for amendment of any By-Law by the Board of Directors. Elections of
directors need not be by ballot unless the By-Laws so provide.
6. The Corporation is authorized to provide indemnification to
all persons whom it may indemnify pursuant to applicable law, through By-Law
provisions,
agreements or otherwise, to the fullest extent permissible under Delaware, or if
applicable, California law, as amended from time to time.
7. The affirmative vote of the holders of four-fifths of the
outstanding shares of the capital stock of the Corporation entitled to vote
shall be required (a) for the adoption of any agreement for the merger or
consolidation of the Corporation with or into any other Corporation, and (b) to
authorize any sale, lease or exchange of all or substantially all of the assets
of the Corporation to or with, or any sale, lease or exchange to or with the
Corporation (in exchange for its securities in a transaction for which
stockholder approval is required by law or any agreement between the Corporation
and any national securities exchange) of any assets of, any other corporation,
person or other entity, if (as of the record date for the determination of
stockholders entitled to notice thereof and to vote thereon) such other
corporation, person or entity referred to in clause (a) or clause (b) above, is
the beneficial owner, directly, or indirectly, of more than 10% of any class of
capital stock of the Corporation. For the purposes hereof any corporation,
person or other entity shall be deemed to be the beneficial owner of any shares
of capital stock of the Corporation, (1) which it has the right to acquire
pursuant to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise, or (ii) which are beneficially owned, directly or
indirectly (including shares deemed owned through application of clause (1)
above), by any other corporation, person or entity with which it has any
agreement, arrangement or understanding with respect to the acquisition,
holding, voting or disposition of stock of the Corporation, or which is its
"affiliate" or "associate" as those terms are defined in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934.
8. Whenever a compromise or arrangement is proposed between
the Corporation and its creditors or any class of them and/or between the
Corporation and its shareholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or shareholder thereof, or on the
application of any receiver or receivers appointed for the 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 the
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
shareholders or class of shareholders of the 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 shareholders or class of shareholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the 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
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class of creditors, and/or on all the shareholders or class of shareholders, of
the Corporation, as the case may be, and also on the Corporation.
9. The names and mailing addresses of the incorporators are as
follows:
NAME MAILING ADDRESS
---- ---------------
B.J. Consono Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19001
F.J. Obara, Jr. Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19001
A.D. Grier Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19001
10. 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 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, as the same exists or hereafter may be amended, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
Delaware General Corporation Law is hereafter amended to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on liability provided
by this Article 10, shall be limited to the fullest extent permitted by any such
amended Delaware General Corporation Law. Any repeal or modification of this
Article 10 or any new provision of the Certificate of Incorporation inconsistent
with this Article 10 shall be prospective only and shall not adversely affect
any limitation on the personal liability of a director of the Corporation
existing at the time of such repeal or modification or adoption of such
inconsistent provision.
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