EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
SCOVILL HOLDINGS INC.
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ARTICLE I
NAME
The name of the corporation is SCOVILL HOLDINGS INC. (the
"Corporation").
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of Delaware is
located at 1209 Orange Street in the City of Wilmington, Delaware 19801, County
of New Castle. The name of the Corporation's registered agent at such address
is The Corporation Trust Company.
ARTICLE III
CORPORATE PURPOSES AND POWERS
The purpose of the Corporation is to engage in any capacity, whether
by itself or by or through any other person, organization, association,
partnership, corporation or other entity in which the Corporation may have an
interest, in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware, and the Corporation
shall be authorized to exercise and enjoy all powers, rights and privileges
conferred upon corporations by the laws of the State of Delaware as in force
from time to time including, without limitation, all powers necessary or
appropriate to carry out all those acts and activities in which it may lawfully
engage.
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ARTICLE IV
CAPITAL STOCK
The total number of shares of capital stock which the Corporation
shall have authority to issue, from time to time, is (i) 6,000,000 shares of
Common Stock, par value $.0001 per share (the "Common Stock") and (ii) 6,200,000
shares of Preferred Stock, par value $.0001 per share.
Each share of Common Stock shall be entitled to one vote. So long as
any Common Stock is outstanding, and except as otherwise expressly provided
elsewhere herein, each share of Common Stock shall entitle the holder thereof to
one vote on all matters to be voted upon at any meeting of the stockholders of
the Corporation.
The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors of the Corporation (the "Board") is expressly
authorized at any time, and from time to time, to provide for the issuance of
shares of Preferred Stock in one or more series, for such consideration (not
less than its par value) and with such designations, powers, preferences and
relative, participating, optional or special rights, and such qualifications,
limitations or restrictions, as shall be determined by the Board and fixed by
resolution or resolutions adopted by the Board providing for the number of
shares in each series.
The rights of holders of shares of capital stock to take any action as
provided in this Article IV may be exercised at any annual meeting of
stockholders or at a special meeting of stockholders held for such purpose as
provided in the By-laws or at any adjournment thereof, or by the written
consent, delivered to the Secretary of the Corporation, of the holders of the
minimum number of shares required to take such action.
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ARTICLE V
INCORPORATOR
The name and mailing address of the incorporator is as follows:
Robert C. Scherer
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
The power of the incorporator as such shall terminate upon the filing
of this Certificate of Incorporation.
ARTICLE VI
CORPORATE EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE VII
BOARD OF DIRECTORS
(a) Initial Directors. The names and mailing addresses of the
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persons who are to serve as directors until the first annual meeting of
stockholders or until their successors are elected and qualified are as follows:
Christian L. Oberbeck
Saratoga Partners III, L.P.
535 Madison Avenue
New York, NY 10022
David J. Barrett
Scovill Fasteners Inc.
1802 Scovill Drive
Clarkesville, GA 30523
William F. Andrews
c/o Scovill Fasteners Inc.
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1802 Scovill Drive
Clarkesville, GA 30523
(b) Appointment; Number; Removal. Subsequent to the initial
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appointment of the directors herein, members of the board of directors (the
"Board") shall be designated by holders of a majority of the votes under all
outstanding shares of Common Stock. At any time and from time to time,
subsequent to the initial appointment of the directors herein, the number of
directors which shall constitute the whole Board may be increased to not more
than nine or decreased to not less than one. Any change in the number of
directorships must be authorized by a majority of the whole Board, as
constituted immediately prior to such change. Any director may be removed,
either with or without cause, by the holders of the majority of votes under all
outstanding shares of Common Stock.
(c) Power and Authorization of the Board. In furtherance and not in
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limitation of the powers conferred by statute, the Board is expressly
authorized:
(i) To make, alter, amend or repeal the By-laws, except as
otherwise expressly provided in any By-law made by the holders of the
capital stock of the Corporation entitled to vote thereon. Any By-laws
may be altered, amended or repealed by the holders of the capital stock of
the Corporation entitled to vote thereon at any annual meeting or at any
special meeting called for that purpose;
(ii) To determine the use and disposition of any surplus and net
profits of the Corporation, including the determination of the amount of
working capital required, to set apart out of any of the funds of the
Corporation, whether or not 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; and
(iii) To have the general management and control of all the
property of the Corporation and exercise all the powers of the Corporation,
except such as may be expressly by statute, by this Certificate of
Incorporation or by the By-laws conferred upon or reserved to the
stockholders. Without limiting the generality of the foregoing powers, the
Board, without consent or other action of the stockholders of the
Corporation, may authorize the Corporation to purchase, acquire, hold,
lease, mortgage, pledge, sell or convey such property, real and personal,
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as they may, from time to time, determine, and in payment for any property
or for money to issue or cause to be issued, in any manner permitted by
law, stock of the Corporation, or bonds, debentures, notes or other
obligations thereof, secured or unsecured.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS,
OFFICERS AND OTHERS
(a) Limitation of Liability. A director of the Corporation shall not
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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 stock
holders, (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, which provision, among other things, makes
directors personally liable for unlawful dividends or unlawful stock repurchases
or redemptions and expressly sets forth a negligence standard with respect to
such liability, or (iv) for any transaction from which the director derived an
improper personal benefit.
If the Delaware General Corporation Law is amended after approval by
the stockholders of this paragraph (a) of Article VIII to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited
to the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
(b) Indemnification. (1) Each person who was or is made a party or
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is threatened to be made a party or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, investigative or otherwise
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, if the basis of any such
action, suit or proceeding is action in such capacity, shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the
Delaware General Corpora-
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tion Law as the same exists, or may hereafter be amended (but in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than such law permitted the
Corporation to pro vide prior to such amendment), against all expense, liability
and loss (including penalties, fines, judgments, attorneys' fees, amounts paid
or to be paid in settlement and excise taxes or penalties) reasonably incurred
or suffered by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to be a director, officer or agent
and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that the Corporation shall indemnify any such
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person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person (other than pursuant to paragraph (b)(2) of this
Article VIII) only if such proceeding (or part thereof) was authorized by the
Board. The right to indemnification conferred in this paragraph (b)(1) of
Article VIII shall be a contract right and shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that if the Delaware
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General Corporation Law requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer in advance
of the final disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking by or on behalf of such director or officer to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this paragraph
(b)(1) of Article VIII or otherwise. Such expenses incurred by other agents may
be so paid upon such terms and conditions, if any, as the Board deems
appropriate.
(2) If a claim which the Corporation is obligated to pay under
paragraph (b)(1) of this Article VIII is not paid in full by the Corporation
within 60 days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in defending any proceeding in advance
of its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standards
of conduct which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed, but
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the burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board, independent legal counsel or
its stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board, independent legal counsel or its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
(3) The provisions of this Section (b) of Article VIII shall cover
claims, actions, suits and proceedings, civil or criminal, whether now pending
or hereafter commenced and shall be retroactive to cover acts or omissions or
alleged acts or omissions which heretofore have taken place. If any part of
this Section (b) of Article VIII should be found to be invalid or ineffective in
any proceeding, the validity and effect of the remaining provisions shall not be
affected.
(4) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
Section (b) of Article VIII shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of this
Certificate of Incorporation, the By-laws of the Corporation, agreement, vote of
stockholders or disinterested directors or otherwise.
(c) The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any director, officer or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
(d) Any repeal or modification of any provision of this Article VIII
by the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
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ARTICLE IX
RESERVATION OF RIGHT TO AMEND
CERTIFICATE OF INCORPORATION
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 law, and all the provisions of this Certificate of
Incorporation and all rights and powers conferred in this Certificate of
Incorporation on stockholders, directors and officers are subject to this
reserved power.
THE UNDERSIGNED being the incorporator hereinbefore named, for the
purposes of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Certificate hereby declaring and certifying
that the facts herein stated are true; and accordingly has hereunto set his hand
this 20th day of November, 1997.
/s/ Robert C. Scherer
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Robert C. Scherer
Sole Incorporator