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EXHIBIT 3.1
CERTIFICATE OF MERGER
OF
EUROSTAR PERFUMES, INC.
(a Texas corporation)
INTO
TRISTAR CORPORATION
(a Delaware corporation)
Pursuant to Section 252(c) of the
State of Delaware General Corporation Law
TRISTAR CORPORATION, a Delaware corporation, hereby certifies as
follows:
FIRST: The names of the constituent corporations to the
merger are TRISTAR CORPORATION, whose State of incorporation is Delaware, and
Eurostar Perfumes, Inc., whose State of incorporation is Texas.
SECOND: An Agreement and Plan of Merger has been approved,
adopted, certified, executed and acknowledged by each constituent corporation
in accordance with Section 252 of the General Corporation Law of the State of
Delaware.
THIRD: TRISTAR CORPORATION shall be the surviving corporation.
FOURTH: The Certificate of Incorporation of the surviving
corporation shall be its Certificate of Incorporation, except that paragraph IV
of the Certificate of Incorporation of TRISTAR CORPORATION, as the surviving
corporation, which sets forth the authorized capital stock of TRISTAR
CORPORATION, is hereby amended to read in its entirety as follows:
"ARTICLE IV
CAPITAL STOCK
Section 1. Classes and Shares Authorized. The authorized
capital stock of the Corporation shall consist of 30,000,000 shares of
Common Stock, $.01 par value per share (hereinafter referred to as
either the "Common Shares" or "Common Stock") and 1,000,000 shares of
Preferred Stock, $.05 par value per share (hereinafter referred to as
either the "Preferred Shares" or "Preferred Stock").
Section 2. Preferred Stock. The shares of Preferred Stock
shall be issuable from time to time in one or more series, with
respect to each of which series the Board of Directors shall be
authorized, without further approval from the shareholders of the
Corporation, to fix:
(a) the designation of the series;
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(b) the number of shares of each series, which number the
Board of Directors may increase or decrease (but not below the number
of shares thereof then outstanding);
(c) the annual dividend rate of the series;
(d) the dates at which dividends, if declared, shall be
payable, and the dates from which the dividends shall be cumulative;
(e) the redemption rights, if any, for shares of the series;
(f) the terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series;
(g) the amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation;
(h) whether the shares of the series shall be convertible
into Common Stock or other securities, and, if so, the conversion
price or prices, any adjustments thereof, and all other terms and
conditions upon which such conversion may be made;
(i) restrictions on the issuance of the shares of the same
series or of any other class or series; and
(j) the voting rights, if any, exercisable by the holders of
the shares of such series. Shareholders shall have no preemptive
rights."
FIFTH: The executed Agreement and Plan of Merger is on file
at the principal place of business of the surviving corporation; the address of
said principal place of business is as follows:
TRISTAR CORPORATION
12500 San Pedro Avenue, Suite 500
San Antonio, Texas 78216
Attn: Secretary
SIXTH: A copy of the Agreement and Plan of Merger will be
furnished by the surviving corporation, TRISTAR CORPORATION, on request and
without cost, to any stockholder of any constituent corporation.
SEVENTH: The authorized capital stock of the non-surviving
corporation, which is incorporated under the laws of the State of Texas, is
1,000,000 shares of Common Stock, $.001 par value.
EIGHTH: This Certificate of Merger shall become effective at
11:59 P.M. Central Daylight Savings Time on August 31, 1995.
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IN WITNESS WHEREOF, this certificate is hereby executed 30th
day of August, 1995.
TRISTAR CORPORATION
By: /s/ Viren S. Sheth
---------------------------------
Viren S. Sheth,
President and Chief Executive
Officer
ATTEST:
/s/ Loren M. Eltiste
----------------------------------
Loren M. Eltiste,
Assistant Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Ross Cosmetics Distribution Centers, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware.
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting
duly held, adopted the following resolution proposing and declaring advisable
an amendment to the certificate of Incorporation of said corporation:
RESOLVED, that the Board recommends to the shareholders of the
Company that, at the Annual Meeting of the Company, they approve the
amendment to the Company's Certificate of Incorporation changing the
Company's corporate name to TRISTAR CORPORATION;
SECOND: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 of the General Corporation Law
of Delaware.
THIRD: Accordingly, Article I of the Company's Certificate of
Incorporation is hereby amended to read as follows:
"The name of the corporation is TRISTAR CORPORATION."
IN WITNESS WHEREOF, said corporation has caused this certificate to be
signed by Richard P. Rifenburgh, its Chairman of the Board of Directors, and
attested by James M. Shoemaker, Jr., its Secretary, this 16th day of March,
1993.
Ross Cosmetics Distribution Centers, Inc.
By /s/ Richard P. Rifenburgh
----------------------------------
Richard P. Rifenburgh
Chairman of the Board of Directors
ATTEST:
By /s/ James M. Shoemaker, Jr.
--------------------------------
James M. Shoemaker, Jr.
Secretary
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CERTIFICATE OF OWNERSHIP AND MERGER
(ARTICLES OF MERGER)
MERGING
ROSS COSMETICS DISTRIBUTION CENTER S.W., INC.,
A TEXAS CORPORATION
INTO
ROSS COSMETICS DISTRIBUTION CENTERS, INC.
A DELAWARE CORPORATION
Pursuant to Section 253 of the General Corporation Law of the State of Delaware
and Article 5.16 of the Texas Business Corporation Act.
Ross Cosmetics Distribution Centers, Inc. (hereinafter referred to as
the "Corporation"), a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Delaware GCL"), does hereby
certify that:
1. The Corporation was incorporated on June 5, 1987, pursuant to
the Delaware GCL and is existing under such Law. The address of the
Corporation's registered office in Delaware is 32 Loockerman Square, Suite
L-100, Dover, Delaware 19901.
2. Ross Cosmetics Distribution Center S.W., Inc. ("RCDCSW") was
incorporated on May 10, 1985, pursuant to the Texas Business Corporation Act
and is existing under such Law.
3. RCDCSW has only one class of shares outstanding (Common Stock
$.001 par value per share) and the number of outstanding shares of RCDCSW
Common Stock is 1,000, all of which is owned by the Corporation.
4. The Corporation, by the following resolutions of its Board of
Directors, duly adopted on the 25th day of January 1993, determined to merge
into itself RCDCSW on the conditions set forth in such resolutions.
WHEREAS the Corporation lawfully owns all the outstanding
stock of RCDCSW, a corporation organized and existing under the laws
of Texas; and
WHEREAS the Corporation desires to merge into itself RCDCSW,
and to be processed of all the estate, property, rights, privileges
and franchises of said corporation.
NOW, THEREFORE, BE IT RESOLVED, that the Corporation merge
into itself, and it does hereby merge into itself RCDCSW and assumes
all of its liabilities and obligations, and
FURTHER RESOLVED, that the president or a vice-president, and
the secretary or treasurer of the Corporation be and they hereby are
directed to make and execute, under the corporate seal of the
Corporation, a certificate of ownership setting forth a copy of the
resolution, to merge RCDCSW and assume its liabilities and
obligations, and the date of adoption thereof, and to file the same in
the offices of the Secretary of the State of Delaware and Texas, and a
certified copy thereof in the office of the Recorder of Deeds in Kent
County, Delaware, and in such other places as may be proper; and
FURTHER RESOLVED, that the officers of the Corporation be and
they hereby are authorized and directed to do all acts and things
whatsoever, whether within or
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without the State of Delaware and Texas, which may be in any way
necessary or proper to effect said merge.
IN WITNESS WHEREOF, the authorized officers of the below named
corporations have herewith set their hands and seals this 25th day of January
1993.
ROSS COSMETICS DISTRIBUTION CENTERS,
INC.
ATTEST:
/s/ James M. Shoemaker, Jr. By: /s/ Richard P. Rifenburgh
------------------------------------ --------------------------------
Secretary Title: Chairman
--------------------------------
ROSS COSMETICS DISTRIBUTION CENTER
S.W., INC.
ATTEST:
/s/ James M. Shoemaker, Jr. By: /s/ Eugene H. Karam
------------------------------------ --------------------------------
Secretary Title: President
--------------------------------
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Certificate of Restoration and Revival of
Certificate of Incorporation
of
Ross Cosmetics Distribution Centers, Inc.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation") is
Ross Cosmetic Distribution Centers, Inc.
2. The corporation was organized under the provisions of the General
Corporation Law of the State of Delaware. The date of filing of its
original certificate of incorporation with the Secretary of State of
the State of Delaware is June 5, 1987.
3. The address, including the street, city, and county, of the registered
office of the corporation in the State of Delaware and the name of the
registered agent at such address as follows: The Prentice-Hall
Corporation System, Inc., 32 Loockerman Square, Suite L-100, Dover,
Delaware 19901, County of Kent.
4. The corporation hereby procures a restoration and revival of its
certificate of incorporation, which became inoperative by law on March
1, 1991 for failure to file annual reports and non-payment of taxes
payable to the State of Delaware.
5. The certificate of incorporation of the corporation, which provides
for and will continue to provide for, perpetual duration, shall, upon
the filing of this Certificate of Restoration and Revival of the
Certificate of Incorporation in the Department of State of the State
of Delaware, be restored and revived and shall become fully operative
on February 28, 1991.
6. This Certificate of Restoration and Revival of the Certificate of
Incorporation is filed by authority of the duly elected directors and
prescribed by Section 312 of the General Corporation Law of the State
of Delaware.
Signed and attested to on April 8, 1991.
/s/ Eugene H. Karam
---------------------------------------
Vice President
Attest:
/s/ Michael E. Emery
----------------------------------
Assistant Secretary
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REGISTERED OFFICE AND OF REGISTERED AGENT
PURSUANT TO SECTION 134 OF TITLE 8 OF THE DELAWARE CODE
TO: DEPARTMENT OF STATE
Division of Corporations
Townsend Building
Federal Street
Dover, Delaware 19903
Pursuant to the provisions of Section 134 of Title 8 of the Delaware
Code, the undersigned Agent for service of process, in order to change the
address of the registered office of the corporations for which it is registered
agent, hereby certifies that:
1. The name of the agent is Corporate Filing Service, Inc.
2. The address of the old registered office was 229 South State
Street, Kent County, Delaware 19901.
3. The address to which the registered office is to be changed is
32 Loockerman Square, Suite L-100, Dover, Kent County, Delaware 19901. The
new address will be effective on October 27, 1989.
4. The names of the corporations represented by said agent are
set forth on the list annexed to this certificate and made a part hereof by
reference.
IN WITNESS WHEREOF, said agent has caused this certificate to be
signed on its behalf by its Vice President and Assistant Secretary this 10th
day of October 1989.
CORPORATE FILING SERVICE, INC.
/s/ Alan E. Spiewak
---------------------------------------
Alan Spiewak, Vice President
ATTEST:
/s/ Richard L. Kushay
--------------------------------------
Richard L. Kushay, Assistant Secretary
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Certificate
for Renewal and Revival of Charter
Ross Cosmetics Distribution Centers, Inc., a corporation organized under the
laws of Delaware, the charter of which was voided for non-payment of taxes, now
desires to procure a restoration, renewal and revival of its charter, and
hereby certifies as follow:
1. The name of this corporation is Ross Cosmetics Distribution
Centers, Inc.
2. Its registered office in the State of Delaware is located at
229 South State Street, City of Dover, Zip Code 19901, County of Dover, the
name and address of its registered agent is Corporate Filing Services, Inc.
(#9007630).
3. The date of filing of the original Certificate of
Incorporation in Delaware was June 5, 1987.
4. The date when restoration, renewal, and revival of the charter
of this company is to commence is the 28th day of February, same being prior to
the date of the expiration of the charter. This renewal and revival of the
charter of this corporation is to be perpetual.
5. This corporation was duly organized and carried on the
business authorized by its charter until the 1st day of March, 1989 A.D. 19___
at which time its charter became inoperative and void for non-payment of taxes
and this certificate for renewal and revival is filed by authority of the duly
elected directors of the corporation in accordance with the laws of the State
of Delaware.
IN TESTIMONY WHEREOF, and in compliance with the provisions of Section
312 of the General Corporation Law of the State of Delaware, as amended,
providing for the renewal, extension and restoration of charters, Ross A.
Freitas the last and acting President, and Carolyn S. Kenner, the last and
acting Secretary of Ross Cosmetics Distribution Centers, Inc., have hereunto
set their hands to this certificate this 28th day of May, 1989.
/s/ Ross A. Freitas
---------------------------------------
Last and Acting President
ATTEST:
/s/ Carolyn S. Kenner
---------------------------------------
Last and Acting Secretary
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CERTIFICATE OF CHANGE OF ADDRESS OF
REGISTERED OFFICE AND OF REGISTERED AGENT
PURSUANT TO SECTION 134 OF TITLE 8 OF THE DELAWARE CODE
TO: DEPARTMENT OF STATE
Division of Corporations
Townsend Building
Federal Street
Dover, Delaware 19903
Pursuant to the provisions of Section 134 of Title 8 of the Delaware
Code, the undersigned Agent for service of process, in order to change the
address of the registered office of the corporations for which it is registered
agent, hereby certifies that:
1. The name of the agent is CORPORATE FILING SERVICE, INC.
2. The address of the old registered office was 410 South State
Street, Dover, Delaware 19901.
3. The address to which the registered office is to be changed is
229 South State Street, Dover, Delaware 19901. The new address will be
effective on September 1, 1987.
4. The names of the corporations represented by said agent are
set forth on the list annexed to this certificate and made a part hereof by
reference.
IN WITNESS WHEREOF, said agent has caused this certificate to be
signed on its behalf by its Vice President and Secretary this 27th day of
September 1987.
CORPORATE FILING SERVICE, INC.
/s/
---------------------------------------
ATTEST:
/s/
----------------------------------------
Secretary
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CERTIFICATE OF MERGER
OF
ROSS COSMETICS DISTRIBUTION CENTERS, INC.
(a New York Corporation)
INTO
ROSS COSMETICS DISTRIBUTION CENTERS, INC.
(a Delaware Corporation)
Under Section 252 of the Business Corporation Law
of the State of Delaware
--------------------------------------------------------------------------------
The undersigned, Ross Freitas, being the President of Ross Cosmetics
Distribution Centers, Inc., a domestic corporation duly organized and existing
under and by virtue of the laws of the State of Delaware and being, the
President of Ross Cosmetics Distribution Centers, Inc., a foreign corporation
duly organized and existing by virtue of the laws of the State of New York, do
hereby certify that:
1. The name of each constituent corporation is as follows: (i)
Ross Cosmetics Distribution Centers, Inc. (hereinafter "RCDC"), (a New York
corporation); and (ii) Ross Cosmetics Distribution Centers, Inc. (the
"Surviving Corporation"), (a Delaware corporation).
2. The Agreement of Merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations in accordance
with Section 252.
3. The name of the surviving corporation is Ross Cosmetics
Distribution Centers, Inc., a Delaware corporation.
4. An Agreement of Merger has been adopted by the Board of
Directors of the Surviving Corporation and thereafter was duly ratified by
shareholders of the Surviving Corporation in accordance with Section 252 of the
Delaware Corporation Law.
5. The authorized capital stock of RCDC is 10,000,000 shares of
Common Stock.
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6. The designation and number of outstanding shares of RCDC
entitled to vote on the merger is 2,144,231 shares of Common Stock, $.01 par
value per share.
7. The merger of RCDC and the Surviving Corporation into the
Surviving Corporation was authorized by RCDC at a meeting of shareholders by a
vote of the holders of a minimum of sixty-seven (67%) per cent of all
outstanding shares of RCDC entitled to vote thereon pursuant to New York
Business Corporation Law and Delaware Corporation Law.
8. An executed copy of the Agreement of Merger is on file at the
principal place of business of the Surviving Corporation at 135 Canal Street,
Staten Island, New York 10304, and shall be furnished to any stockholder of a
constituent corporation requesting such without cost.
9. The Certificate of Incorporation of the constituent Delaware
corporation shall be the Certificate of Incorporation of the Surviving
Corporation and shall not be amended or changed.
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IN WITNESS WHEREOF, I have executed and subscribed this Certificate of
Merger and do affirm the foregoing statements made herein are true under the
penalties of perjury this 17th day of September, 1987.
ROSS COSMETICS DISTRIBUTION CENTERS,
INC., (a New York Corporation)
ATTEST:
By: /s/ Carolyn Safer Kenner By: /s/ Ross Freitas
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CAROLYN SAFER KENNER, ROSS FREITAS, President
Secretary
ROSS COSMETICS DISTRIBUTION CENTERS,
INC., (a Delaware Corporation)
ATTEST:
By: /s/ Carolyn Safer Kenner By: /s/ Ross Freitas
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CAROLYN SAFER KENNER, ROSS FREITAS, President
Secretary
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CERTIFICATE OF INCORPORATION
OF
ROSS COSMETICS DISTRIBUTION CENTERS, INC.
* * * * * * * * * * * * * * *
ARTICLE I
NAME
The name of the corporation is Ross Cosmetics Distribution Centers, Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The registered office of the Corporation in the State of Delaware is
located at 410 South State Street in the City of Dover, County of Kent. The
name of its registered agent at that address is Corporate Filing Services, Inc.
ARTICLE III
PURPOSE
To conduct, carry on and engage in the wholesale distribution
of cosmetic products, perfumes, colognes, beauty aids and health care
products; and in connection therewith to manufacture, buy, sell, job,
import, export and otherwise deal in and with cosmetics, chemicals and
pharmaceutical products, lipsticks, rouges, powders, soaps, colognes,
perfumes, toilet waters, hair bleaches, henna, hair rinses and washes,
hair dressings, lotions, fresheners, shadow and eyebrow pencils,
massage creams, cold cream, vanishing cream, balms, ointments, drugs,
medicines, pharmaceutical and chemical products, preparations and
compounds, sanitary and hygienic goods and products, nail polishes,
bleaches, cuticle removers, baby oils, deodorants, depilatories, witch
hazel, rubbing alcohol, astringents, dentifrices, mouth washes,
gargles, shaving creams, shaving stocks, shaving soaps, mineral oils,
smelling salts, tooth brushes, combs, brushes, vanities, nail files,
cuticle scissors, paper towels and tissues, jars, bottles, tubes,
perfume bases, oils, extracts, flavors and other cosmetics, perfumes,
toilet preparations, beauty preparations, chemicals and
pharmaceuticals of every kind and description; and all products,
by-products, materials, supplies, machinery, tools, packaging
materials, applicators and devices used or useful in connection with
or resulting from the manufacture, sale, marketing, distribution or
use thereof.
To purchase, lease, copyright, produce, construct and
otherwise acquire, and to use, operate, repair, maintain, develop and
improve and to sell, trade, exchange, rent, lease, create security
interests in and otherwise dispose of any and all materials,
facilities, appliances, articles, products, equipment or supplies
proper for or adapted to be used in connection with or incidental to
the business and affairs of the corporation as the same pertain to the
conduct and operation of the corporation's principal or ancillary
business activities and to do any and
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all things incidental thereto, or necessary to expedient or proper to
be done in connection with the matters set out herein.
To take, buy, sell, exchange, rent, lease, sublease or
otherwise acquire, and to erect, construct, maintain, improve,
rebuild, enlarge, alter, manage, control, develop, assign, transfer,
convey, pledge, alienate or otherwise dispose and to mortgage or
otherwise encumber, and to generally deal in real and personal
property wherever situated, either directly or through ownership of
shares in any corporation, and to acquire, buy, hold, sell, assign,
transfer, mortgage, pledge, exchange or otherwise encumber or dispose
of the securities of any corporation, domestic or foreign, including
but not limited to shares, scrip, bonds, notes, evidences of
indebtedness, debentures, commercial paper, whether such corporation
be public or private, and to do any other lawful acts necessary,
incidental or proper thereto, not prohibited by law, and while the
holder of any securities, to exercise all rights and privileges of
ownership, and to collect all dividends, and interest payable thereon,
and to do all things not prohibited by law, to protest, conserve, or
increase the value of all property and of all securities held by it.
To have as part of the corporate purposes, all of the powers
conferred upon corporations organized under the General Corporation
Law subject to any limitations thereof contained in the Certificates
of Incorporation or in the laws of the State of Delaware.
ARTICLE IV
CAPITAL STOCK
Section 1. Classes and Shares Authorized. The authorized capital
stock of the Corporation shall consist of 10,000,000 shares of Common Stock,
$.01 par value per share (hereinafter referred to as either the "Common Shares"
or "Common Stock") and 1,000,000 shares of Preferred Stock, $.05 par value per
share (hereinafter referred to as either the "Preferred Shares" or "Preferred
Stock").
Section 2. Preferred Stock. The shares of Preferred Stock shall be
issuable from time to time in one or more series, with respect to each of which
series the Board of Directors shall be authorized, without further approval
from the shareholders of the Corporation, to fix:
(a) the designation of the series;
(b) the number of shares of each series, which number the
Board of Directors may increase or decrease (but not below the number
of shares thereof then outstanding);
(c) the annual dividend rate of the series;
(d) the dates at which dividends, if declared, shall be
payable, and the dates from which the dividends shall be cumulative;
(e) the redemption rights, if any, for shares of the
series;
(f) the terms and amount of any sinking fund provided for
the purchase or redemption of shares of the series;
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(g) the amounts payable on shares of the series in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation;
(h) whether the shares of the series shall be convertible
into Common Stock or other securities, and, if so, the conversion
price or prices, any adjustments thereof, and all other terms and
conditions upon which such conversion may be made;
(i) restrictions on the issuance of the shares of the
same series or of any other class or series; and
(j) the voting rights, if any, exercisable by the holders
of the shares of such series. Shareholders shall have no pre-emptive
rights.
ARTICLE V
PRE-EMPTIVE RIGHTS
Stockholders of the Corporation shall not have pre-emptive rights to
acquire unissued or treasury shares of the Corporation or securities
convertible into such shares of carrying a right to subscribe to or acquire
such shares.
ARTICLE VI
PLACE OF BUSINESS
Part or all of the business of the Corporation may be conducted in the
City of Dover, County of Kent, or any place in the State of Delaware or outside
of the State of Delaware, in other states or territories of the United States
and in foreign countries.
ARTICLE VII
BOARD OF DIRECTORS
Section 1. Board of Directors: Number. The governing board of the
Corporation shall be known as the Board of Directors, shall consist of a
minimum of three and a maximum of nine members, subject, however, to the number
being from time to time increased or decreased in such manner as shall be
provided in the By-laws of the Corporation, provided that the number of
directors shall not be reduced to less than three except that there need be
only as many directors as there are stockholders in the event that the
outstanding shares are held of record by fewer than three stockholders.
Section 2. Classification of Directors. The Board of Directors may,
but need not be divided into three classes, Class 1, Class 2 and Class 3, each
class to be as nearly equal in number as possible. In the event the
Corporation elects to adopt a "staggered" Board, the term of office of Class 1
directors shall expire at the first annual meeting of stockholders after their
election, that of Class 2 directors shall expire at the second annual meeting
after their election, and that of Class 3 directors shall expire at the third
annual meeting after their election. At each annual meeting after such
classification, the number of directors equal to the number of the class whose
term expires at the time of such meeting shall be elected to hold office until
the third succeeding annual meeting. No classification of directors shall be
effective prior to the first annual meeting of stockholders or at any time when
the Board of Directors consists of less than six members. Notwithstanding the
foregoing, and except as otherwise required by
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law, whenever the holders of any one or more series of Preferred Stock shall
have the right, voting separately as a class, to elect one or more directors of
the Corporation, the terms of the director or directors elected by such holders
shall expire at the next succeeding annual meeting of stockholders.
Section 3. Nomination of Directors. (a) Nominations for the
election of directors may be made by the Board of Directors, by a committee of
the Board of Directors or by any stockholder entitled to vote for the election
of directors. Nominatings by stockholders shall be made by notice, in writing,
delivered or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days prior
to any meeting of the stockholders called for the election of directors;
provided, however, that if less than 21 days notice of the meeting is given to
stockholders, such written notice shall be delivered or mailed, as prescribed,
to the Secretary of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to stockholders.
(b) Each notice under subsection (a) shall set forth: (i) the
name, age, business address and, if known, residence address after each nominee
proposed in such notice; (ii) the principal occupation or employment of each
such nominee, and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(c) The chairman of the stockholders' meeting may, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded.
Section 4. Certain Powers of the Board of Directors. In furtherance
and not in limitation of the powers conferred by statute, and subject to the
rights of the holders of the Corporation's Preferred Stock as specified in
Section 5 of Article IV, the Board of Directors is expressly authorized:
(a) to manage and govern the Corporation by majority vote of
members present at any regular or special meeting at which a quorum shall be
present, to make, alter, or amend the By-laws of the Corporation at any regular
or special meeting, to fix the amount to be reserved as working capital over
and above its capital stock paid in, to authorize and cause to be executed
mortgages and liens upon the real and personal property of this Corporation,
and to designate one or more of committees, each committee to consist of two or
more of the directors of the Corporation, which, 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 (such committee or committees shall have such name
or names as may be stated in the By-laws of the Corporation or as may be
determined from time to time by resolution adopted by the Board of Directors);
(b) to sell, lease, exchange, or otherwise dispose of all of or
substantially all of the property and assets of the Corporation in the ordinary
course of its business upon such terms and conditions as the Board of Directors
may determine without vote or consent of the stockholders;
(c) to sell, pledge, lease, exchange, liquidate, or otherwise
dispose of all or substantially all the property or assets of the Corporation,
including its goodwill, if not in the ordinary course of its business, upon
such terms and conditions as the Board of Directors may determine; provided,
however, that such transaction is authorized or ratified by the affirmative
vote of the holders of at least a majority to the shares entitled to vote
thereon at a stockholders' meeting duly called for such purpose, or is
authorized or ratified by the written
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consent of the holders of all of the shares entitled to vote thereon; and
provided, further, that any such transaction with any substantial stockholder
or affiliate of the corporation shall be authorized or ratified by the
affirmative vote of the holders of at least two-thirds of shares entitled to
vote thereon at a stockholders' meeting duly called for that purpose, unless
such transaction is with any subsidiary of the Corporation or is approved by
the affirmative vote of a majority of the continuing directors of the
Corporation, or is authorized or ratified by the written consent of the holders
of all the shares entitled to vote thereon;
(d) to merge, consolidate, or exchange all of the issued and
outstanding shares of one or more classes of the Corporation upon such terms
and conditions as the Board of Directors may authorize; provided, however, that
such merger, consolidation, or exchange is approved or ratified by the
affirmative vote of the holders of at least a majority of the shares entitled
to vote thereon at a stockholders' meeting duly called for that purpose, or is
authorized or ratified by the written consent of the holders of all of the
shares entitled to vote thereon; and provided, further, that any such merger,
consolidation or exchange with any substantial stockholder or affiliate of the
Corporation shall be authorized or ratified by the vote of the holders of at
least two-thirds of the shares entitled to vote thereon at a stockholders'
meeting duly called for that purpose, unless such merger, consolidation or
exchange is with any subsidiary of the Corporation or is approved by the
affirmative vote of a majority of the continuing directors of the Corporation,
or is authorized or ratified by the written consent of the holders of all the
shares entitled to vote thereon; and
(e) to distribute to the stockholders of the Corporation, without
the approval of the stockholders, in partial liquidation, out of stated capital
or capital surplus of the Corporation, a portion of its assets, in cash or in
property, so long as the partial liquidation is in compliance with the Delaware
General Corporation Law.
(f) as used in this Section 5, the following terms shall have the
following meanings:
(i) an "affiliate" shall mean any person or entity which
is an affiliate within the meaning of Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended;
(ii) a "continuing director" shall mean a director who was
elected before the substantial stockholder or affiliate of the Corporation
which is to be a party to a proposed transaction within the scope of
subsections (c) and (d) of this Section 5 became such a substantial stockholder
or affiliate of the Corporation, as the case may be, or is designated at or
prior to his first election or appointment to the Board of Directors by the
affirmative vote of a majority of the Board of Directors who are continuing
directors;
(iii) a "subsidiary" shall mean any corporation in which
the Corporation owns the majority of each class of equity security; and
(iv) a "subsidiary stockholder" shall mean any person or
entity which is the beneficial owner, within the meaning of Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended, of 10% or more of the outstanding capital stock of the Corporation.
ARTICLE VIII
CONFLICTS OF INTEREST
Section 1. Related Party Transactions. No contract or other
transaction of the Corporation with any other person, firm or corporation, or
in which the corporation is
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interested, shall be affected or invalidated by (a) the fact that any one or
more of the directors or officers of this Corporation is interested in or is a
director or officer of such other firm or corporation; or (b) the fact that any
director or officer of this Corporation, individually or jointly with others,
may be a party to or may be interested in any such contract or transaction, so
long as the contract or transaction is authorized, approved or ratified at a
meeting of the Board of Directors by sufficient vote thereon by directors not
interested therein, to which such fact of relationship or interest has been
disclosed, or the contract or transaction has been approved or ratified by vote
or written consent of the stockholders entitled to vote, to whom such fact of
relationship or interest has been disclosed, or so long as the contract or
transaction is fair and reasonable to the Corporation. Each person who may
become a director or officer of the Corporation is hereby relieved from any
liability that might otherwise arise by reason of his contracting with the
Corporation for the benefit of himself or any firm or corporation in which he
may be in any way interested.
Section 2. Corporate Opportunities. The officers, directors and
other members of management of the Corporation shall be subject to the doctrine
of corporate opportunities only insofar as it applies to business opportunities
in which the Corporation has expressed an interested as determined from time to
time by resolution of the Board of Directors. When such areas of interest are
delineated, all such business opportunities within such areas of interest which
come to the attention of the officers, directors and other members of
management of the Corporation shall be disclosed promptly to the Corporation
and made available to it. The Board of Directors may reject any business
opportunity presented to it, and thereafter any officer, director, or other
member of management may avail himself of such opportunity. Until such time as
the Corporation, through its Board of Directors, has designated an area of
interest, the officers, directors, and other members of management of the
Corporation shall be free to engage in such areas of interest on their own and
the provisions hereof shall not limit the rights of any officer, director, or
other member of management of the Corporation to continue a business existing
prior to the time that such area of interest is designated by the Corporation.
This provision shall not be construed to release any employee of the
Corporation (other than an officer, director or member of management) from any
duties which such employee may have to the Corporation.
ARTICLE IX
INDEMNIFICATION
Section 1. Liability of Directors. No Director shall be personally
liable to the Corporation or any stockholder for monetary damages for breach of
fiduciary duty as a director, except for any matter is respect of which such
director shall be liable under Section 174 of Title 8 of the Delaware Code
(relating to the Delaware General Corporation Law) or any amendment thereto or
successor provision thereto as shall be liable for reason that, in addition to
any and all other requirements for such liability, he: (i) shall have breached
his duty of loyalty to the Corporation or its stockholders; (ii) shall not have
acted in good faith, or in failing to act, shall not have acted in good faith;
(iii) shall have acted in a manner involving intentional misconduct or a
knowing violation of law or, in failing to act, shall have acted in a manner
involving intentional misconduct or a knowing violation of law; or (iv) shall
have derived an improper personal benefit. Neither the amendment nor repeal of
this Article IX, nor the adoption of any provision of the Certificate of
Incorporation inconsistent with this Article IX, shall eliminate or reduce the
effect of this Article IX in respect to any matter occurring, or any cause of
action, suit or claim that, but for this Article IX would accrue or arise,
prior to such amendment, repeal or adoption of an inconsistent provision.
Section 2. Insurance. The Board of Directors may exercise the
Corporation's power to purchase and maintain insurance on behalf of any person
who is or was a director, officer,
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employee, fiduciary or agent of the Corporation, or is or was serving at the
request of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, fiduciary or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such
liability under this Article X.
Section 3. Miscellaneous. The indemnification provided by this
Article X shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under these Articles of Incorporation,
the By-laws, agreements, vote of the stockholders or disinterested directors,
or otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office, and shall continue as to
a person who has ceased to be a director, officer, employee, fiduciary or agent
and shall inure to the benefit of the heirs and personal representatives of
such person.
ARTICLE X
ARRANGEMENTS WITH CREDITORS
Whenever a compromise or arrangement is proposed by the Corporation
between it and its creditors or any class of them, and/or between the
Corporation and its stockholders or any class of the, any court of equitable
jurisdiction may, on summary application by the Corporation, or by a majority
of its stockholders, or on the application of any receiver or receivers
appointed for the Corporation, or on the application of trustees in
dissolution, order a meeting of the creditors or class of creditors and/or of
the stockholders or class of stockholders of the Corporation, as the case may
be, to be notified in such manner as the court decides. If a majority in
number representing at least three-fourths in amount of the creditors or class
or creditors, and/or the holders of the majority of the stock or class of stock
of the Corporation, as the case may be, agree to any compromise or arrangement
and/or to any reorganization of the Corporation, as a consequence of such
compromise or arrangement and/or said reorganization shall, if sanctioned by
the court to which the application has been made, be binding upon all the
creditors or class of creditors and/or on all the stockholders or class of
stockholders of the Corporation, as the case may be, and also on the
Corporation.
ARTICLE XII
SHAREHOLDERS' MEETINGS
Stockholders' meetings may be held at such time and place as may be
stated or fixed in accordance with the By-laws. At all stockholders' meetings
one-third of all shares entitled to vote shall constitute a quorum.
ARTICLE XII
AMENDMENT
These Articles of Incorporation may be amended by resolution of the
Board of Directors if no shares have been issued, and if shares have been
issued, by the affirmative vote of the holders of at least a majority of the
shares entitled to vote thereon at a meeting duly called for that purpose, or,
when authorized, when such action is ratified by the written consent of all the
stockholders entitled to vote thereon.
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ARTICLE XIII
SHAREHOLDER VOTE
Whenever the laws of the State of Delaware require the vote or
concurrence of the holders of two-thirds of the outstanding shares entitled to
vote thereon, with respect to any action to be taken by the stockholders of the
Corporation, such action may be taken by the vote or concurrence of the holders
of at least a majority of the shares entitled to vote thereon.
ARTICLE XIV
DISSOLUTION
Section 1. Procedure. The Corporation shall be dissolved upon the
affirmative vote of the holders of at least a majority of the shares entitled
to vote thereon at a meeting duly called for that purpose, or when authorized
or ratified by the written consent of the holders of all of the shares entitled
to vote thereon.
Section 2. Revocation. The corporation shall revoke voluntary
dissolution proceedings upon the affirmative vote of the holders of at least a
majority of the shares entitled to vote at a meeting duly called for that
purpose, or when authorized or ratified by the written consent of the holders
of all of the shares entitled to vote thereon.
ARTICLE XV
The names and addresses of each Incorporator are:
Ross A. Freitas
135 Canal Street
Staten Island, New York 10305
Carolyn Safer Kenner
135 Canal Street
Staten Island, New York 10305
IN WITNESS WHEREOF, the undersigned officers for and on behalf of the
Corporation have signed this Certificate of Incorporation this 22nd day of May,
1987.
ROSS COSMETICS DISTRIBUTION
CENTERS, INC.
By: /s/ Ross Freitas
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Ross Freitas, Incorporator
By: /s/ Carolyn Safer Kenner
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Carolyn Safer Kenner, Incorporator
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