Exhibit 3(i)
CERTIFICATE OF RESTATED
CERTIFICATE OF INCORPORATION
OF
APTARGROUP, INC.
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Carl A. Siebel and Stephen J. Hagge, being the duly elected President
and Chief Executive Officer and Secretary, respectively, of AptarGroup, Inc., a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "Corporation"), do hereby certify
as follows:
1. That the Corporation filed its original Certificate of
Incorporation with the Delaware Secretary of State on September 3, 1992.
2. That in accordance with Section 245 of the General Corporation
Law of the State of Delaware, the board of directors of the Corporation duly
adopted resolutions authorizing the Corporation to integrate and restate the
Corporation's Certificate of Incorporation in its entirety to read as set forth
in Exhibit A attached hereto and made a part hereof (the "Restated
Certificate").
3. That the Restated Certificate only restates and integrates and
does not further amend the provisions of the Certificate of Incorporation of the
Corporation as heretofore amended or supplemented and there is no discrepancy
between those provisions and the provisions of this Restated Certificate.
4. The Restated Certificate shall be effective on May 11, 1999.
5. The Certificate of Designation is set forth in the attached
Exhibit B.
IN WITNESS WHEREOF, the undersigned, being the President and Chief
Executive Officer and Secretary hereinabove named, for the purpose of amending
and restating the Certificate of Incorporation of the Corporation pursuant to
the General Corporation Law of the State of Delaware, under penalties of perjury
do each hereby declare and certify that this is the act and deed of the
Corporation and the facts stated herein are true, and accordingly have hereunto
signed this Certificate of Restated Certificate of Incorporation this 11th day
of May, 1999.
/s/ Carl A. Siebel
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Carl A. Siebel
President and Chief Executive Officer
[SEAL]
Attest:
/s/ Stephen J. Hagge
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Stephen J. Hagge, Secretary
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
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OF
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APTARGROUP, INC.
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ARTICLE ONE
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The name of the Corporation is AptarGroup, Inc.
ARTICLE TWO
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The address of the Corporation's registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover, County of
Kent, 19901. The name of its registered agent at such address is the Prentice-
Hall Corporation System, Inc.
ARTICLE THREE
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The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE FOUR
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4.1 Capital Stock. The total number of shares of stock which the
Corporation has authority to issue is 100,000,000 shares, consisting of
1,000,000 shares of Preferred Stock, par value $.01 per share, and 99,000,000
shares of Common Stock, par value $.01 per share. The number of authorized
shares of Preferred Stock may not be decreased unless such decrease is approved
by the affirmative vote of the holders of not less than eighty percent (80%) of
the outstanding Common Stock. Any such decrease may be effected without a vote
of the holders of the Preferred Stock, or of any series thereof, unless a vote
of any such holders is required pursuant to the certificate or certificates
establishing the series of Preferred Stock. In no event may the number of
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authorized shares of Preferred Stock be decreased below the number of shares
thereof then outstanding. Any issuance of capital stock of the Corporation
(other than an issuance pursuant to any plan which has received stockholder
approval, any issuance pursuant to the Rights Agreement dated as of April 6,
1993 by and between AptarGroup, Inc. and Chemical Bank, as amended from time to
time in accordance with its terms, or any issuance in connection with an
acquisition of at least a majority of another corporation, partnership or other
entity) must be approved by a resolution adopted by directors constituting not
less than seventy percent (70%) of the whole Board of Directors.
4.2 Preferred Stock. The Board of Directors of the Corporation may,
by a resolution adopted by directors constituting not less than seventy percent
(70%) of the whole Board of Directors and subject to the limitations prescribed
by law and the provisions of this Certificate of Incorporation, provide for the
issuance of shares of the Preferred Stock or provide for the issuance of shares
of the Preferred Stock in one or more series, establish from time to time the
number of shares to be included in each such series and fix the designations,
voting powers, preferences, rights and qualifications, limitations or
restrictions of the shares of the Preferred Stock of each such series. The
provisions set forth in this Section 4.2 may not be amended, altered, changed or
repealed in any respect unless such action is approved by the affirmative vote
of the holders of not less than eighty percent (80%) of the outstanding shares
of Common Stock entitled to vote on each matter on which the holders of record
of Common Stock shall be entitled to vote.
4.3 Common Stock. Except as otherwise provided by the General
Corporation Law of the State of Delaware, by this Certificate of Incorporation
or any amendments hereto and subject to the rights of holders of Preferred
Stock, all of the voting power of the stockholders of the Corporation shall be
vested in the holders of the Common Stock, and each holder of Common Stock shall
have one (1) vote for each share of Common Stock held by such holder on all
matters voted upon by the stockholders.
4.4 Definition. For purposes of this Article Fourth, "whole Board of
Directors" means the total number of directors which the Corporation would have
on the Board of Directors if there were no vacancies.
ARTICLE FIVE
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In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors of the Corporation is expressly authorized to
adopt, amend or repeal the By-Laws of the Corporation. Any adoption, amendment
or repeal of the By-Laws of the Corporation by the Board of Directors shall
require the approval of directors constituting not less than seventy percent
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(70%) of the whole Board of Directors. The stockholders shall also have power to
adopt, amend or repeal the By-Laws of the Corporation; provided, however, that,
in addition to any vote of the holders of any class or series of stock of the
Corporation required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of not less than eighty percent (80%) of the
outstanding shares of Common Stock entitled to vote on each matter on which the
holders of record of Common Stock shall be entitled to vote shall be required in
order for the stockholders to adopt, amend or repeal any provision of the By-
Laws of the Corporation. For purposes of this Article Five, "whole Board of
Directors" means the total number of directors which the Corporation would have
on the Board of Directors, if there were no vacancies. The provisions set forth
in this Article Five may not be amended, altered, changed or repealed in any
respect unless such action is approved by the affirmative vote of the holders of
not less than eighty percent (80%) of the outstanding shares of Common Stock
entitled to vote on each matter on which the holders of record of Common Stock
shall be entitled to vote.
ARTICLE SIX
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Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws of the Corporation may provide. The books of the
Corporation may be kept 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. All elections of directors shall be by written ballot.
ARTICLE SEVEN
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7.1 Number of Directors. Subject to any rights of the holders of the
Preferred Stock or any series thereof to elect additional directors under
specified circumstances, the number of directors which shall constitute the
whole Board of Directors of the Corporation shall be such number as shall from
time to time be fixed by resolution adopted by directors constituting not less
than seventy (70%) of the whole Board of Directors. The Board is divided into
three classes, as nearly equal in number as possible, with the term of the
office of the first class to expire at the 1994 annual meeting of stockholders,
the term of office of the second class to expire at the 1995 annual meeting of
stockholders and the term of office of the third class to expire at the 1996
annual meeting of stockholders. At each annual meeting of stockholders beginning
with the 1994 annual meeting of stockholders, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to expire at
the third succeeding annual meeting of stockholders after their election. The
foregoing notwithstanding, each director shall serve until his successor shall
have duly elected and qualified, unless he shall resign, die, become
disqualified or be removed.
7.2 Vacancies and Newly Created Directorships. Subject to any rights
of the holders of the Preferred Stock or any series thereof to fill such newly
created directorships or
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vacancies, any newly created directorships resulting from any increase in the
authorized number of directors and any vacancies in the Board of Directors
resulting from death, resignation, disqualification, removal or other cause
shall, unless otherwise provided by law or by a resolution approved by directors
constituting not less than seventy percent (70%) of the whole Board of
Directors, be filled only by a resolution approved by directors constituting not
less than seventy percent (70%) of the whole Board of Directors, and any
directors so chosen shall hold office until the next election of the classes for
which such director shall have been chosen, and until his successor shall have
been duly elected and qualified, unless he shall resign, die, become
disqualified or be removed. Notwithstanding the foregoing, in the event that at
the time of the existence of an unfilled newly created directorship or vacancy
there are unfilled newly created directorships and/or vacancies constituting
more than thirty percent (30%) of the whole Board of Directors, a majority of
the directors then serving on the Board of Directors shall have the authority to
fill enough of such unfilled newly created directorships and/or vacancies so
that, after giving effect thereto, there will be the minimum number of directors
serving on the Board of Directors necessary to constitute seventy percent (70%)
of the whole Board of Directors.
7.3 Powers, Qualifications and Removal. The business of the
Corporation shall managed by or under the direction of the Board of Directors.
Any director may tender his resignation at any time. Subject to any rights of
the holders of the Preferred Stock or any series thereof, any director or the
entire Board of Directors may be removed at any time, but only for cause.
7.4 Definition. For purposes of this Article Seven, "whole Board of
Directors" means the total number of directors which the Corporation would have
on the Board of Directors if there were no vacancies.
7.5 Amendment. The provisions set forth in this Article Seven may
not be amended, altered, changed or repealed in any respect unless such action
is approved by the affirmative vote of the holders of not less than eighty
percent (80%) of the outstanding shares of Common Stock entitled to vote on each
matter on which the holders of record of Common Stock shall be entitled to vote.
ARTICLE EIGHT
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8.1 Special Meetings of Stockholders. Special meeting of
stockholders of the Corporation may be called only by the Board of Directors
pursuant to a resolution approved by a majority of the whole Board of Directors.
8.2 No Stockholder Action by Consent. No action required to be taken
or which may be taken at any annual or special meeting of stockholders of the
Corporation may be taken without a meeting.
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8.3 Advance Notice of Stockholder Nominations. Advance notice of
stockholder nominations of persons for election to the Board of Directors of the
Corporation and of business to be brought before any meeting of the stockholders
by the stockholders of the Corporation shall be given in the manner provided in
the By-Laws of the Corporation.
8.4 Definition. For purposes of this Article Eight, "whole Board of
Directors" means the total number of directors which the Corporation would have
on the Board of Directors if there were no vacancies.
8.5 Amendment. The provisions set forth in this Article Eight may
not be amended, altered, changed or repealed in any respect unless such action
is approved by the affirmative vote of the holders of not less than eighty
percent (80%) of the outstanding shares of Common Stock entitled to vote on each
matter on which the holders of record Common Stock shall be entitled to vote.
ARTICLE NINE
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To the fullest extent permitted by the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended, a director of
the Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for a breach of fiduciary duty as a director. Any repeal or
modification of this Article Nine shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification. The provisions set forth in this Article Nine may not be
amended, altered, changed or repealed in any respect unless such action is
approved by the affirmative vote of the holders of not less than eighty percent
(80%) of the outstanding shares of Common Stock entitled to vote on each matter
on which the holders of record of Common Stock shall be entitled to vote.
ARTICLE TEN
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The Corporation elects not to be governed by Section 203 of the
General Corporation Law of the State of Delaware.
ARTICLE ELEVEN
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11.1 Business Combinations with Interested Stockholders. The
Corporation shall not engage in any business combination with any interested
stockholder for a period of 3 years following the date that such stockholder
became an interested stockholder, unless (A) prior to such date a majority of
the whole Board of Directors approved either the business combination or the
transaction which resulted in the stockholder becoming an interested
stockholder, or (B) upon consummation of the transaction which resulted in the
stockholder becoming an interested
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stockholder, the interested stockholder owned at least 85% of the voting stock
of the Corporation outstanding at the time the transaction commenced, excluding
for purposes of determining the number of shares outstanding those shares owned
(i) by persons who are directors and also officers of the Corporation and (ii)
by employee stock plans of the Corporation or its subsidiaries in which employee
participants do not have the right to determine confidentially whether shares of
stock of the Corporation held subject to the plan will be tendered in a tender
or exchange offer, or (C) on or subsequent to such date the business combination
is approved by a majority of the whole Board of Directors and authorized at an
annual or special meeting of stockholders, and not by written consent, by
affirmative vote of at least 66% of the outstanding voting stock of the
Corporation which is not owned by the interested stockholder.
11.2 Exclusions. The restrictions contained in this Article
Eleven shall not apply if:
(A) a stockholder becomes an interested stockholder inadvertently and
(i) as soon as practicable divests sufficient shares so that the stockholder
ceases to be an interested stockholder and (ii) would not, at any time within
the 3-year period immediately prior to a business combination between the
Corporation and such stockholder, have been an interested stockholder but for
the inadvertent acquisition; or
(B) the business combination is proposed prior to the consummation or
abandonment of and subsequent to the earlier of the public announcement or the
notice required hereunder of a proposed transaction which (i) constitutes one of
the transactions described in the second sentence of this subsection (B); (ii)
is with or by a person who either was not an interested stockholder during the
previous 3 years or who became an interested stockholder with the prior approval
of a majority of the Corporation's whole Board of Directors; and (iii) is
approved or not opposed by a majority of the members of the Board of Directors
then in office (but not less than 1) who were directors prior to any person
becoming an interested stockholder during the previous 3 years or were
recommended for election or elected to succeed such directors by a majority of
such directors. The proposed transactions referred to in the preceding sentence
are limited to (x) a merger or consolidation of the Corporation (except for a
merger in respect of which, pursuant to Section 251 (f) of the General
Corporation Law of the State of Delaware or any successor provision, no vote of
the stockholders of the Corporation is required); (y) a sale, lease, exchange,
mortgage, pledge, transfer or other disposition (in one transaction or a series
of transactions), whether as part of a dissolution or otherwise, of assets of
the Corporation or of any direct of indirect or indirect majority-owned
subsidiary of the Corporation (other than to any direct or indirect wholly-owned
subsidiary or to the Corporation) having an aggregate market value equal to 50%
or more of either the aggregate market value of all of the assets of the
Corporation determined on a consolidated basis or the aggregate market value of
all the outstanding stock of the Corporation; and (z) a proposed tender or
exchange offer for 50% or more of the outstanding voting stock of the
Corporation. The Corporation shall give not less than 20 days' notice to all
stockholders known to it to be interested stockholders prior to the consummation
of any of the transactions described in clause (x) or (y) of the second sentence
of this subsection (B).
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11.3 Definitions. As used in this Article Eleven only, the term:
(A) "affiliate" means a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, another person; provided that, for purposes of this Article
Eleven, the term "affiliate" shall not include any person that is an exempt
person.
(B) "associate," when used to indicate a relationship with any
person, means (i) any corporation or organization of which such person is a
director, officer or partner or is, directly or indirectly, the owner of 20% or
more of any class of voting stock, (ii) any trust or other estate in which such
person has at least a 20% beneficial interest or as to which such person serves
as trustee or in a similar fiduciary capacity, and (iii) any relative or spouse
of such person, or any relative of such spouse, who has the residence as such
person; provided that, for purposes of this Article Eleven, the term "associate"
shall not include any person that is an exempt person.
(C) "business combination," when used in reference to the Corporation
and any interested stockholder of the Corporation, means :
(i) any merger or consolidation of the Corporation or any direct
or indirect majority-owned subsidiary of the Corporation with (1) the
interested stockholder or (2) any other person if the merger or
consolidation is caused by the interested stockholder and as a result
of such merger or consolidation Section 11.1 of this Article Eleven is
not applicable to the surviving person;
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions),
except proportionately as a stockholder of the Corporation, to or with
the interested stockholder, whether as part of a dissolution or
otherwise, of assets of the Corporation or of any direct or indirect
majority-owned subsidiary of the Corporation which assets have an
aggregate market value equal to 10% or more of either the aggregate
market value of all assets of the Corporation determined on a
consolidated basis or the aggregate market value of all the
outstanding stock of the Corporation;
(iii) any transaction which results in the issuance or transfer
by the Corporation or by any direct or indirect majority-owned
subsidiary of the Corporation of any stock of the Corporation or of
such subsidiary to the interested stockholder, except (1) pursuant to
the exercise, exchange or conversion of securities exercisable for,
exchangeable for or convertible into stock of the Corporation or any
such subsidiary which securities were outstanding prior to the time
that the interested stockholder became such, (2) pursuant to a
dividend or distribution paid or made, or the exercise, exchange or
conversion of any security exercisable for, exchangeable for or
convertible into stock of the Corporation or any such subsidiary which
security is
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distributed, pro rata to all holders of a class or series of stock of
the Corporation subsequent to the time the interested stockholder
became such, (3) pursuant to an exchange offer by the Corporation to
purchase stock made on the same terms to all holders of said stock, or
(4) any issuance or transfer of stock by the Corporation, provided
however, that in no case under (2) - (4) above shall there be an
increase in the interested stockholder's proportionate share of the
stock of any class or series of the Corporation or of the voting stock
of the Corporation;
(iv) any transaction involving the Corporation or any direct or
indirect majority-owned subsidiary of the Corporation which has the
effect, directly or indirectly, of increasing the proportionate share
of the stock of any class or series, or of securities exercisable for,
exchangeable for or convertible into the stock of any class or series,
of the Corporation or of any such subsidiary which is owned by the
interested stockholder, except as a result of immaterial changes due
to fractional share adjustments or as a result of any purchase or
redemption of any shares of stock not caused, directly or indirectly,
by the interested stockholder; or
(v) any receipt by the interested stockholder of the benefit,
directly or indirectly (except proportionately as a stockholder of the
Corporation) of any loans, advances, guarantees, pledges, or other
financial benefits (other than those expressly permitted in subsection
(i) - (iv) above) provided by or through the Corporation or any direct
or indirect majority owned subsidiary.
(D) "control," including the terms "controlling," "controlled by" and
"under common control with," means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting stock, by contract, or
otherwise. A person who is the owner of 20% or more of a corporation's
outstanding voting stock shall be presumed to have control of such corporation,
in the absence of proof by a preponderance of the evidence to the contrary.
Notwithstanding the foregoing, a presumption of control shall not apply where
such person holds voting stock, in good faith and not for the purpose of
circumventing this Article Eleven, as an agent, bank, broker, nominee, custodian
or trustee for one or more owners who do not individually or as a group have
control of the Corporation.
(E) "exempt person" means (i) any person that at the time of
determination is the Harris Group, a member thereof or a person or which the
Harris Group or one or more members thereof owns (a) more than fifty percent
(50%) of the voting stock or other voting interests and (b) stock or other
interests representing more than fifty percent (50%) of the total value of the
stock or other interests of such person, (ii) any person that at the time of
determination is the Pfeiffer Group, a member thereof or a person of which the
Pfeiffer Group or one or more members thereof owns (a) more than fifty percent
(50%) of the voting stock or other voting interests and (b) stock or other
interests representing more than fifty percent (50%) of the total value of the
stock or other interests of such person and (iii) any person whose ownership of
shares in excess of the 15% limitation set forth in the definition of
"interested stockholder" is the result of action taken solely by the
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Corporation provided that such person shall cease to be an exempt person if
thereafter he acquires additional shares of voting stock of the Corporation
except as a result of further action by the Corporation not caused, directly or
indirectly, by such person. Notwithstanding the foregoing sentence, none of the
persons described in clause (i) above shall continue to be an exempt person by
virtue of such clause after the earliest date after the Pfeiffer Share Exchange
on which such persons are owners in the aggregate of less than 3% of the
Corporation's outstanding voting stock (determined without taking into account
any securities exercisable or exchangeable for, or convertible into, the
Corporation's voting stock, other than any such securities owned by such
persons), and none of the persons described in clause (ii) above shall continue
to be an exempt person by virtue of such clause after the earliest date after
the Pfeiffer Share Exchange on which such persons are owners in the aggregate of
less than 3% of the Corporation's outstanding voting stock (determined without
taking into account any securities exercisable or exchangeable for, or
convertible into, the Corporation's voting stock, other than any such securities
owned by such persons).
(F) "Harris Group" means Messrs. Irving B. Harris, Neison Harris,
King Harris, William W. Harris and Sidney Barrows and their respective spouses,
descendants and spouses of descendants, trustees of trusts established for the
benefit of such persons (acting in their capacity as trustees of such trusts),
and executors of estates of such persons (acting in their capacity as executors
of such estates).
(G) "interested stockholder" means any person (other than an exempt
person and other than the Corporation and any direct or indirect majority-owned
subsidiary of the Corporation) that (i) is the owner of 15% or more of the
outstanding voting stock of the Corporation, or (ii) is an affiliate or
associate of the Corporation and was the owner of 15% or more of the outstanding
voting stock of the Corporation at any time within the three-year period
immediately prior to the date on which it is sought to be determined whether
such person is an interested stockholder; and the affiliates and associates of
such person. For the purpose of determining whether a person is an interested
stockholder, the voting stock of the Corporation deemed to be outstanding shall
include stock deemed to be owned by the person through application of subsection
(H) of this Section 11.3 but shall not include any other unissued stock of the
Corporation which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
(H) "owners" including the terms "own" and "owned," when used with
respect to any stock means a person that individually or with or through any of
its affiliates or associates:
(i) beneficially owns (as determined pursuant to Rule 13d-3 of
the General Rules and Regulations under the Securities Exchange Act of
1934 or any successor provision) such stock, directly or indirectly;
or
(ii) has (1) the right to acquire such stock (whether such right
is exercisable immediately or only after the passage of time) pursuant
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to any agreement, arrangement or understanding, or upon the exercise
of exercise rights, conversion rights, exchange rights, warrants or
options, or otherwise; provided, however, that a person shall not be
deemed the owner of stock tendered pursuant to a tender or exchange
offer made by such person or any of such person's affiliates or
associates until such tendered stock is accepted for purchase or
exchange; or (2) the right to vote such stock pursuant to any
agreement, arrangement or understanding; provided, however, that a
person shall not be deemed the owner of any stock because of such
person's right to vote such stock if the agreement, arrangement or
understanding to vote such stock arises solely from a revocable proxy
or consent given in response to a proxy or consent solicitation made
to 10 or more persons; or
(iii) has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting (except voting pursuant to a
revocable proxy or consent as described in item (2) of clause (ii) of
this subsection), or disposing of such stock with any other person
that beneficially owns, or whose affiliates or associates beneficially
own, directly or indirectly, such stock.
Nothing in this subsection (H) shall cause a person to be treated as the "owner"
of, or to "own," any securities owned by any other person that is an exempt
person.
(I) "person" means any individual, corporation, partnership,
unincorporated association, trust or other entity.
(J) "Pfeiffer Group" means Peter Pfeiffer, Philipp Pfeiffer, Anne
Pfeiffer, Klaus Pfeiffer, Birgit Pfeiffer, Petra Pfeiffer, Karin Pilz, Norbert
Pilz, Gunther Pilz, Elke Miedler, Gudrun Miedler, Iris Miedler and Stefan
Miedler and their respective spouses, descendants and spouses of descendants,
trustees of trusts established for the benefit of such persons (acting in their
capacity as trustees of such trusts), and executors of estates of such persons
(acting in their capacity as executors of such estates).
(K) "Pfeiffer Share Exchange" has the meaning assigned to such term
in the Combination Agreement dated as of December 31, 1992 to which the
Corporation and certain members of the Pfeiffer Group are parties.
(L) "spouses" includes widows and widowers until first remarried.
(M) "voting stock" means stock of any class or series entitled to
vote generally in the election of directors.
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(N) "whole Board of Directors" means the total number of directors
which the Corporation would have on the Board of Directors if there were no
vacancies.
11.4 Amendment. The provisions set forth in this Article Eleven may
not be amended, altered, changed or repealed in any respect unless such action
is approved by the affirmative vote of at least 66-2/3% of the outstanding
shares of Common Stock entitled to vote on each matter on which the holders of
record of Common Stock shall be entitled to vote which are not owned by an
interested stockholder.
ARTICLE TWELVE
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In the event that it is proposed that the Corporation enter into a
merger or consolidation with any other corporation (other than a direct or
indirect wholly-owned subsidiary of the Corporation), or sell or otherwise
dispose of all or substantially all of its assets or business in one transaction
or a series of transactions, or liquidate or dissolve, the affirmative vote of
the holders of not less than eighty percent (80%) of the outstanding shares of
Common Stock entitled to vote on each matter on which the holders of record of
Common Stock shall be entitled to vote shall be required for the approval of
such proposal; provided, however, that the foregoing shall not apply to any such
merger, consolidation, sale, disposition, liquidation or dissolution which is
approved by resolution of two-thirds of the whole Board of Directors, if the
majority of the members of the Board of Directors adopting such resolution were
members of the Board of Directors of the Corporation prior to the public
announcement of the proposed merger, consolidation, sale, disposition,
dissolution or liquidation and prior to the public announcement of any
transaction relating to such merger, consolidation, sale, disposition,
dissolution or liquidation. If such approval is granted, then such transaction
shall only require the approval otherwise required under the other Articles of
this Certificate of Incorporation and under law. For purposes of this Article
Twelve, "whole Board of Directors" means the total number of directors which the
Corporation would have on the Board of Directors if there were no vacancies. The
provisions set forth in this Article Twelve may not be amended, altered, changed
or repealed in any respect unless such action is approved by the affirmative
vote of the holders of not less than eighty percent (80%) of the outstanding
shares of Common Stock entitled to vote on each matter on which the holders of
record of Common Stock shall be entitled to vote.
ARTICLE THIRTEEN
----------------
13.1 Indemnification of Officers, Directors and Others. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (including
any action by or in the right of the Corporation) (a "Proceeding") by reason of
the fact that he is or was a director, officer or employee of the Corporation,
or is or was serving at the request of the Corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or other
enterprise (including service with respect to any employee benefit plan) against
expenses (including attorneys' fees), judgments, fines, ERISA excise taxes,
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penalties and amounts paid in settlement actually and reasonably incurred by him
in connection with such Proceeding to the fullest extent permitted by the
Delaware General Corporation 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 provide prior to such amendment). The
indemnification provided by this Article Thirteen shall not be deemed exclusive
of any other rights to which any person may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors, or otherwise, both
as to action in his official capacity and as to action in another capacity, and
shall continue as to a person who has ceased to be a director, officer or
employee and shall inure to the benefit of the heirs, executors, administrators
and personal representatives of such a person. It is expressly understood that,
notwithstanding the foregoing, no director, officer or employee shall have any
rights under this Article Thirteen if the Proceeding giving rise to the claim
for indemnification hereunder arises as a result of actions or failures to act
in any capacity other than those set forth in this Section 13.1, and, as such,
no such person shall have any rights under this Article Thirteen if the
Proceeding giving rise to the claim for indemnification arises as a result of
such person's purchase and/or sale of securities of the Corporation (other than
on behalf of the Corporation).
13.2 Procedure for Indemnification of Directors, Officers and
Employees. Any indemnification of a director, officer or employee of the
Corporation or advance of expenses under this Article Thirteen shall be made
promptly upon the written request of the director, officer or employee, and in
any event within 30 days after such request (or, if a determination as described
below is required, within 30 days after such determination has been made or
deemed made). If a determination by the Corporation that the director, officer
or employee is entitled to indemnification pursuant to this Article Thirteen is
required, and the Corporation fails to respond within sixty days to a written
request for indemnity, the Corporation shall be deemed to have approved the
request. If the Corporation denies a written request for indemnification or
advancing of expenses, in whole or in part, or if payment in full pursuant to
such request is not made within 30 days after such request (or, if a
determination as described above is required, within 30 days after such
determination has been made or deemed made), the right to indemnification or
advances as granted by this Article Thirteen shall be enforceable by the
director, officer or employee in any court of competent jurisdiction. Such
person's costs and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation. 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 has been tendered to the Corporation) that the claimant
has not met the standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware for the Corporation to indemnify the
claimant for the amount claimed, but the burden of such defense shall be on the
Corporation. Neither the failure of the Corporation (including its board of
directors, 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 has met the applicable
standard of conduct set forth in the General Corporation Law of the State of
Delaware, nor an actual determination by the Corporation (including its board of
directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable
- 13 -
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.
13.3 Insurance. The Corporation may purchase and maintain insurance
on its own behalf and on behalf of any person who is or was a director, officer
or employee of the Corporation or was serving at the request of the Corporation
as a director, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise (including service with respect to any
employee benefit plan) against any liability asserted against him and incurred
by him in any such capacity, whether or not the Corporation would have the power
to indemnify such person against such liability under this Article Thirteen.
13.4 Expenses. Expenses incurred by any person described in this
Article Thirteen in defending a Proceeding shall be paid by the Corporation in
advance of such Proceeding's final disposition upon receipt of an undertaking by
or on behalf of the director, officer or employee to repay such amount without
interest if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation.
13.5 Contract Rights. The provisions of this Article Thirteen shall
be deemed to be a contract between the Corporation and each director, officer or
employee who serves in any such capacity at any time, and any repeal or
modification of this Article Thirteen or of any relevant provisions of the
General Corporation Law of the State of Delaware or other applicable law shall
not affect any rights or obligations then existing with respect to any state of
facts or Proceeding then existing.
13.6 Merger or Consolidation. For purposes of this Article Thirteen,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers and employees, so that any person who is or was a director,
officer or employee of such a constituent corporation, or is or was serving at
the request of such a constituent corporation as a director, officer or employee
of another corporation, partnership, joint venture, trust or other enterprise
(including service with respect to any employee benefit plan), shall stand in
the same position under this Article Thirteen with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
13.7 Indemnification of Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification and to the advancement of expenses to any agent of the
Corporation to the fullest extent of the provisions of this Article Thirteen
with respect to the indemnification and advancement of expenses of directors,
officers and employees of the Corporation.
13.8 Amendment. The provisions set forth in this Article Thirteen
may not be amended, altered, changed or repealed in any respect unless such
actions approved by the affirmative
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vote of the holders of not less than eighty percent (80%) of the outstanding
shares of Common Stock entitled to vote on each matter on which the holders of
record of Common Stock shall be entitled to vote.
ARTICLE FOURTEEN
----------------
The Corporation is to have perpetual existence.
ARTICLE FIFTEEN
---------------
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation in the manner now
or hereafter prescribed herein and by the laws of the State of Delaware, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
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EXHIBIT B
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF JUNIOR PARTICIPATING PREFERRED STOCK, SERIES A
of
AptarGroup, Inc.
Pursuant to Section 151
of the General Corporation Law
of the State of Delaware
We, Carl A. Siebel, Chairman of the Board and Chief Executive Officer,
and Stephen J. Hagge, Executive Vice President and Chief Financial Officer,
Secretary and Treasurer, of AptarGroup, Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware, in
accordance with the provisions of Section 151 thereof, DO HEREBY CERTIFY:
That (i) pursuant to the authority conferred upon the Board of
Directors of the said Corporation by the Amended and Restated Certificate of
Incorporation of the Corporation, the Board of Directors effective April 6, 1993
adopted the following resolution creating a series of 45,000 shares of Preferred
Stock designated as Junior Participating Preferred Stock, Series A, (ii) such
resolution was amended by a resolution of the said Board of Directors adopted on
January 21, 1999, which authorized an increase in the number of shares
constituting such series to 49,500 shares, subject to the adoption by the
stockholders of the Corporation of an amendment to the Amended and Restated
Certificate of Incorporation to increase the authorized shares of Common Stock
of the Corporation (the "Proposed Amendment"), (iii) the Proposed Amendment was
approved by the Corporation's stockholders on May 11, 1999, (iv) the Corporation
filed a Certificate of Increase in respect of such series with the Secretary of
State of the State of Delaware on May 11, 1999, and (v) the resolution
establishing the Junior Participating Preferred Stock, Series A reads, as
amended to reflect the Certificate of Increase, as follows:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its Amended
and Restated Certificate of Incorporation a series of Preferred Stock of the
Corporation designated Junior Participating Preferred Stock, Series A be, and it
hereby is, created, and that the designations and amount thereof and the voting
powers, preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall
be designated as "Junior Participating Preferred Stock, Series A" (the "Series A
Preferred Stock") and the number of shares constituting such series shall be
49,500.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of Common Stock, par
value $.01 per share, of the Corporation (the "Common Stock") and of any other
stock ranking junior as to dividends, shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash or in kind on the 15th day of
March, June, September and December in each year (each such date being referred
to herein as a "Quarterly Dividend Payment Date") commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Preferred Stock, each in an amount per share (rounded to
the nearest cent) equal to the grater of (a) $10.00 or (b) subject to the
provision for adjustment hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions other
than a dividend payable in Common Stock or a subdivision of the outstanding
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date (inclusive) or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock
(inclusive). In the event the Corporation shall at any time on or after April 6,
1993 declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount to which holders of shares of
Series A Preferred Stock are entitled immediately after such event under the
preceding sentence shall be an amount per share (rounded to the nearest cent)
equal to the greater of (i) $10.00 and (ii) the amount resulting from
multiplying the amount to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event under the preceding sentence by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section
immediately after its declares any dividend or distribution on the Common Stock
(other than a dividend payable in Common Stock or a distribution of Common Stock
pursuant to a subdivision of the outstanding Common Stock), and, unless
previously paid, the Corporation shall pay dividends or distributions on the
Series A Preferred Stock immediately before it pays such dividend or
distribution on the Common Stock (other than a dividend payable in Common Stock
or a distribution of Common Stock pursuant to a subdivision of the outstanding
Common Stock); provided that, in the event no dividend or distribution shall
have been declared on the Common Stock during the period from any Quarterly
Dividend Payment Date to the next subsequent Quarterly Dividend Payment Date (or
if the aggregate amount of any dividends or distributions declared during such
period was less than $10.00), a dividend of $10.00 (or the
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difference between $10.00 and the aggregate amount of dividends or distributions
declared during such period if such amount was less than $10.00) per share on
the Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends on shares of Series A Preferred Stock shall being to
accrue and be cumulative on outstanding shares of Series A Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of issue of such
shares of Series A Preferred Stock, unless the date of issue of such shares is
prior to the record date for the first dividend to be paid on any shares of
Series A Preferred Stock, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend on a particular Quarterly Dividend Payment Date and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata among all such shares at the time outstanding. The Board of
Directors shall fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be the same as any record
date for the determination of holders of shares of Common Stock entitled to
receive payment of a dividend or distribution thereon (other than a dividend
payable in Common Stock or a distribution of Common Stock pursuant to a
subdivision of the outstanding Common Stock) but in any event not more than 60
days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time on or after April 6, 1993 declare
or pay any dividend on Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding Common Stock
(by reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, then in
each such case the number of votes per share to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number of votes by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Preferred Stock and the holders of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the
Corporation.
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(C) Except as set forth herein, holders of Series A Preferred Stock
shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends on, or make any other
distributions on, any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on, or make any other
distributions on, any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A Preferred Stock
and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a parity with the
Series A Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled
- 4 -
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share of holders of Common
Stock, or (2) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time on or
after April 6, 1993 declare or pay any dividend on Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock are entitled immediately after
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In the case the Corporation
shall enter into any consolidation, merger, combination or other transaction in
which the Common Stock is exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Preferred Stock then outstanding shall at the same time be similarly
exchanged for or changed into property in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 1,000 times the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common Stock
is changed or exchanged. In the event the Corporation shall at any time on or
after April 6, 1993 declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding Common Stock (by reclassification of otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such
- 5 -
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 8. Redemption. The shares of Series A Preferred Stock shall
not be redeemable.
Section 9. Other Series of Preferred Stock. Notwithstanding any
other provision of the Certificate of Incorporation of the Corporation, as
amended, the Series A Preferred Stock shall rank prior to each and every class
or series of Common Stock of the Corporation, and junior to each and every other
class or series of the Corporation's Preferred Stock, as to payment of dividends
and distribution of assets except to the extent the terms of any such other
class or series of Preferred Stock shall provide otherwise.
Section 10. Amendment. Neither the Certificate of Incorporation of
the Corporation, this resolution, nor any restated Certificate of Designation,
Preferences and Rights relating to the Series A Preferred Stock shall be amended
in any manner which would alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect the holders of Series A
Preferred Stock adversely without the affirmative vote of the holders of two-
thirds of the outstanding shares of Series A Preferred Stock, voting separately
as a single class.
Section 11. Fractional Shares. Series A Preferred Stock may be issued
in whole shares and fractions of a share. A fraction of a share shall entitle
the holder, in proportion to that fraction, to exercise voting rights, receive
dividends and participate in distributions and to have the benefit of all other
rights of holders of Series A Preferred Stock.
This Certificate of Designation shall become effective at 9:05 a.m., Delaware
time, on April 6, 1993.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury as of this
11th day of May, 1999.
/s/ Carl A. Siebel
-------------------------------------
President and Chief Executive Officer
ATTEST:
/s/ Stephen J. Hagge
- -----------------------
Secretary
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