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EXHIBIT 3(a)
Composite of the Registrant's Restated Certificate of
Incorporation as amended, including amendment filed March 15, 1990
with the Secretary of the State of Delaware.*
COMPOSITE
CERTIFICATE OF INCORPORATION
OF
DUPLEX PRODUCTS INC.
*******
FIRST. The name of the corporation is
DUPLEX PRODUCTS INC.
SECOND. Its principal office in the State of Delaware is located at No.
100 West Tenth Street, in the City of Wilmington 99, County of New Castle. The
name and address of its resident agent is The Corporation Trust Company, No.
100 West Tenth Street, Wilmington 99, Delaware.
THIRD. The nature of the business, or objects or purposes to be
transacted, promoted or carried on are:
To manufacture, purchase, print, engrave, acquire, own, use, sell,
distribute, and otherwise dispose of and deal in printed forms and printed
material of all kinds.
To engage in and transact the business of printing, engraving, and to
manufacture, purchase, lease, acquire, own, maintain, use, operate and deal in
printing machines, composing machines, binding machines, type, metal, ink,
paper and any articles, materials, products, machinery, equipment and property
related or incidental to or useful in connection with the business of printing
and engraving.
To build, purchase, lease, acquire, own, occupy, maintain, improve, use
and operate printing plants, print shops, printeries, binderies, shops,
studios, factories, laboratories, offices, buildings, structures, and works
suitable, necessary or convenient to any of the business of the corporation.
To establish, maintain, conduct and carry on a general merchandising
business; and in conjunction therewith to manufacture, produce, buy, import and
otherwise acquire, own, store, hold, use, sell, export, distribute, lease,
pledge and otherwise dispose of and generally deal in and with, at wholesale or
retail, as principal or agent for others, upon commission, consignment or
otherwise, goods, wares, commodities, merchandise and personal property of
every class, name, nature and description.
To manufacture, purchase or otherwise acquire, invest in, own, mortgage,
pledge, sell, assign and transfer or otherwise dispose of, trade, deal in and
deal with goods, wares and merchandise and personal property of every class and
description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trade-marks and trade names, relating
to or useful in connection with any business of this corporation.
To acquire by purchase, subscription or otherwise, and to receive, hold,
own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or otherwise
dispose of or deal in and with any of the shares of the capital stock, or any
voting trust certificates in respect of the shares of capital stock, scrip,
warrants, rights, bonds, debentures, notes, trust receipts, and other
securities, obligations,
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chooses in action and evidence of indebtedness or interest issued or created by
any corporations, joint stock companies, syndicates, associations, firms,
trusts or persons, public or private, or by the government of the United States
of America, or by any foreign government, or by any state, territory, province,
municipality or other political subdivision or by any governmental agency, and
as owner thereof to possess and exercise all the rights, powers and privileges
of ownership, including the right to execute consents and vote thereon, and to
do any and all acts and things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof.
To enter into, make and perform contracts of every kind and description
with any person, firm, association, corporation, municipality, county, state,
body politic or government or colony or dependency thereof.
To borrow or raise moneys for any of the purposes of the corporation and,
from time to time without limit as to amount, to draw, make, accept, endorse,
execute and issue promissory notes, drafts, bills of exchange, warrants, bonds,
debentures and other negotiable or non-negotiable instruments and evidences of
indebtedness, and to secure the payment of any thereof and of the interest
thereon by mortgage upon or pledge, conveyance or assignment in trust of the
whole or any part of the property of the corporation, whether at the time owned
or thereafter acquired, and to sell, pledge or otherwise dispose of such bonds
or other obligations of the corporation for its corporate purposes.
To loan to any person, firm or corporation any of its surplus funds,
either with or without security.
To purchase, hold, sell and transfer the shares of its own capital stock;
provided it shall not use its funds or property for the purchase of its own
shares of capital stock when such use would cause any impairment of its capital
except as otherwise permitted by law, and provided further that shares of its
own capital stock belonging to it shall not be voted upon directly or
indirectly.
To have one or more offices, to carry on all or any of its operations and
business and without restriction or limit as to amount to purchase or otherwise
acquire, hold, own, mortgage, sell, convey or otherwise dispose of, real and
personal property of every class and description in any of the states,
districts, territories or colonies of the United States, and in any and all
foreign countries, subject to the laws of such state, district, territory,
colony or country.
In general, to carry on any other business in connection with the
foregoing, and to have and exercise all the powers conferred by the laws of
Delaware upon corporations formed under the General Corporation Law of the
State of Delaware, and to do any or all of the things hereinbefore set forth to
the same extent as natural persons might or could do.
The objects and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in nowise limited or restricted by reference to,
or inference from, the terms of any other clause in this certificate of
incorporation, but the objects and purposes specified in each of the foregoing
clauses of this article shall be regarded as independent objects and purposes.
FOURTH. The total number of shares of stock which the Corporation shall
have authority to issue is twenty-one million (21,000,000) of which twenty
million (20,000,000) shares shall be Common Stock having a par value of One
Dollar ($1.00) per share, amounting in the aggregate to Twenty Million Dollars
($20,000,000), and of which one million (1,000,000) shares shall be Preferred
Stock having a par value of One Dollar ($1.00) per share, amounting in the
aggregate to One Million Dollars ($1,000,000). The Preferred Stock shall be
issuable in series.
The board of directors shall have authority to authorize the issuance,
from time to time without any vote or other action by the stockholders, of any
or all shares of stock of the corporation of any class at any time authorized,
and any securities convertible into or exchangeable for any such shares, in
each case to such persons and for such consideration and on such terms as the
board of directors from time to time in its discretion lawfully may determine;
provided, however, that the consideration for the issuance of shares of stock
of the corporation having par value shall not be less than such par value.
Shares so issued, for which the consideration has been paid to the corporation,
shall be fully paid stock, and the holders of such stock shall not be liable to
any further call or assessments thereon.
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1. Common Stock
(a) Dividend rights. Subject to provisions of law and the preferences of
the Preferred Stock, the holders of the Common Stock shall be entitled to
receive dividends at such times and in such amounts as may be determined by the
board of directors.
(b) Liquidation rights. In the event of any liquidation, dissolution or
winding up of the corporation, whether voluntary or involuntary, after payment
or provision for payment of the debts and other liabilities of the corporation
and the preferential amounts to which the holders of the Preferred Stock shall
be entitled, the holders of the Common Stock shall be entitled to share ratably
in the remaining assets of the corporation.
2. Preferred Stock
(a) General provisions fixed by Certificate of Incorporation. The
Preferred Stock of each series (which may have varying dividend rates) shall
rank on a parity with the Preferred Stock of every other series in priority of
payment of dividends and in the distribution of assets in the event of any
liquidation, dissolution or winding up of the corporation, whether voluntary or
involuntary, to the extent of the preferential amounts (which amounts may be
variable by series) to which the Preferred Stock of the respective series shall
be entitled under the provisions of the certificate of incorporation or any
amendment thereto or the resolution or resolutions of the board of directors
providing for the issue of such series. All shares of any one series of
Preferred Stock shall be identical except as to the dates of issue and the
dates from which dividends on shares of the series issued on different dates
shall accumulate (if cumulative).
Shares of Preferred Stock purchased, redeemed or converted into or
exchanged for shares of any other class or series shall be deemed to be
authorized but unissued shares of Preferred Stock undesignated as to series.
The board of directors may set a record date in the manner and for the
purposes authorized in the by-laws of the corporation, with respect to shares
of stock of the corporation of any class or series.
(b) Authority of the board of directors to issue in series. The
Preferred Stock may be issued from time to time in one or more series. Subject
to the limitations prescribed by law and to the provisions of the certificate
of incorporation or any amendment thereto, authority is expressly granted to
the board of directors to authorize the issue of one or more series of
Preferred Stock, and to fix by resolution or resolutions providing for the
issue of each such series the designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations
and restrictions thereof (sometimes referred to as powers, preferences and
rights) to the full extent now or hereafter permitted by law, including but not
limited to the following:
(1) the number of shares of such series (which may subsequently be
increased by resolutions of the Board of Directors) and the distinctive
designation thereof;
(2) the dividend rate of such series and any limitations, restrictions or
conditions on the payment of such dividends;
(3) the price or prices at which, and the terms and conditions on which,
the shares of such series may be redeemed;
(4) the amounts which the holders of the shares of such series are
entitled to receive upon any liquidation, dissolution or winding up of the
corporation;
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(5) the terms of any purchase, retirement or sinking fund to be provided
for the shares of such series;
(6) the terms, if any, upon which the shares of such series shall be
convertible into or exchangeable for shares of any other series, class or
classes, or other securities, and the terms and conditions of such conversion
or exchange; and
(7) the voting powers, if any (not to exceed one vote per share), of the
shares of such series.
The provisions set forth in this paragraph and in the first two paragraphs
of this ARTICLE FOURTH and in subparagraphs 1 and 2 thereof, may be changed,
altered or amended upon approve by affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for such purpose, provided, always,
(1) That such change, alteration or amendment shall not affect adversely
the provisions of previously issued Preferred Stock;
(2) That the shareholders of the $1.00 par value Cumulative Convertible
Preferred Shares, Series A, voting as a class, must approve the authorization
of any additional class of preferred shares by the affirmative vote of a
majority of the Series A shares if the additional class of preferred shares is
equal in preference to the Series A shares or by the affirmative vote of at
least two-thirds of the Series A shares if the additional class of preferred
shares is senior to the Series A shares.
(3) That in the event there is a default for a period of two years in the
payment of the fixed dividend requirements of the Cumulative Convertible
Preferred Shares, Series A, the holders of Series A shares, voting as a class,
shall have the right to elect two members of the Board of Directors of the
Corporation at the first annual meeting of stockholders (or any adjournment
thereof) immediately following such two year period.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
No stockholder of this corporation shall by reason of his holding shares
of any class have any preemptive or preferential right to purchase or subscribe
to any shares of any class of this corporation, now or hereafter to be
authorized, or any notes, debentures, bonds, or other securities convertible
into or carrying options or warrants to purchase shares of any class, now or
hereafter to be authorized, whether or not the issuance of any such shares, or
such notes, debentures, bonds or other securities, would adversely affect the
dividend or voting rights of such stockholder, other than such rights, if any,
as the board of directors, in its discretion from time to time may grant and at
such price as the board of directors in its discretion may fix; and the board
of directors may issue shares of any class of this corporation, or any notes,
debentures, bonds, or other securities convertible into or carrying options or
warrants to purchase shares of any class, without offering any such shares of
any class, either in whole or in part, to the existing stockholders of any
class.
Each shareholder of this corporation, unless otherwise restricted by
statute or this Certificate of Incorporation, shall be entitled to one vote for
each share of capital stock held by such stockholder. There shall be no
cumulative voting of shares of this corporation and any rights thereto are
expressly denied by this Certificate of Incorporation.
Any amendment to this Certificate of Incorporation which would change any
of the provisions of this ARTICLE, except as has been hereinabove otherwise
provided in paragraph 3 thereof, shall not be made except upon the approval by
affirmative vote of the holders of not less than SEVENTY-FIVE percent (75%) of
the stock issued and outstanding, having voting power given at a stockholders'
meeting duly called for such purpose.
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FIFTH. The minimum amount of capital with which the corporation will
commence business is One Thousand Dollars ($1,000.00).
SIXTH. The names and places of residence of the incorporators are as
follows:
NAMES RESIDENCES
R. F. Westover Wilmington, Delaware
H. C. Broadt Wilmington, Delaware
A. D. Atwell Wilmington, Delaware
SEVENTH. The corporation is to have perpetual existence.
EIGHTH. The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatever.
NINTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the By-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By resolution passed by a majority of the whole board, to designate one or
more 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 this
Certificate of Incorporation, shall have and may exercise the powers of the
Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it. 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.
By resolution approved by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for that purpose:
(a) to merge or consolidate the corporation with or into any other
corporation or business entity;
(b) to sell, lease or exchange all or substantially all of the property
and assets of the corporation;
(c) to dissolve or liquidate the corporation;
(d) in any manner to amend this Certificate of Incorporation;
provided, however, that, unless any such action shall have been first
authorized by the unanimous vote of all directors then in office, no such
action may be taken except upon approval by affirmative vote of the holders of
not less than SEVENTY-FIVE PER CENT (75%) of the stock issued and outstanding
having voting power given at a stockholders' meeting duly called for such
purpose, in the case of:
(i) any merger or consolidation of the corporation with or into any
Related Person or an affiliate of a Related Person;
(ii) any sale, lease or exchange of all or substantially all of the
property and assets of the corporation to a Related Person or an affiliate of a
Related Person;
(iii) any dissolution or liquidation of the corporation at a time when
there exists a Related Person; or
(iv) any amendment to this Certificate of Incorporation which would
change any of the provisions of this Article.
For purposes of this paragraph:
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(v) The term "Related Person" shall mean a corporation, entity or
individual which, together with its affiliates and associates (as defined
below), owns of record or beneficially FIVE PER CENT (5%) or more of the stock
of the corporation issued and outstanding having voting power with respect to
the proposed transaction; and any determination made in good faith by the Board
of Directors of the corporation, on the basis of information available to it,
as to whether any corporation, entity or individual is a Related Person within
the meaning hereof shall be final and binding;
(vi) Any corporation, entity or individual shall be deemed to be the
beneficial owner of any issued and outstanding stock of the corporation (a)
which it has the right to acquire pursuant to any agreement or upon exercise of
conversion rights, warrants or options, or otherwise, or (b) which are
beneficially owned, directly or indirectly, by any other corporation, entity or
individual with which it has any agreement, arrangement or understanding with
respect to the acquisition, holding, voting or disposition of stock of the
corporation, or which is its "affiliate" or "associate."
(vii) An "affiliate" of any specified corporation, entity or individual
is any person, other corporation, or entity that directly, or indirectly
through one of more intermediaries, controls, or is controlled by, or is under
common control with the corporation, entity or individual specified.
(viii) The term "associate" used to indicate a relationship with any
specified person, corporation or entity, means (1) any corporation, entity, or
person of which such specified person, corporation, or entity is an officer or
partner or is, directly or indirectly, the beneficial owner of TEN PER CENT
(10%) or more of any class of equity securities, (2) any trust or other estate
in which such specified person, corporation or entity has a substantial
beneficial interest or as to which said specified person, corporation or entity
serves as Trustee or in a similar fiduciary capacity, and (3) any relation or
spouse of such specified person, corporation or entity, or any relation of such
spouse.
To manage the business of the corporation and exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by this Certificate of Incorporation directed or required to be exercised or
done by the stockholders.
TENTH. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under the provisions of section 279 of Title 8
of the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
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ELEVENTH. The books of the corporation may be kept (subject to any provisions
contained in the statutes) outside the State of Delaware at such place or
places as may be designated from time to time by the Board of Directors.
Meetings of the stockholders for the election of the directors or for any
other purpose shall be held on such date and at such time and place within or
without the State of Delaware as shall be determined by a majority vote of all
directors then in office, provided, however, that the Annual Meeting of
Stockholders in each year shall be held within 150 days after the end of the
corporation's fiscal year.
At the Annual Meeting of Stockholders the stockholders shall elect, by a
plurality vote, by ballot, a class of directors, and transact such other
business as may properly be brought before the meeting.
Special meetings of the stockholders, for any proper purpose or purposes,
unless otherwise prescribed by statue or by this Certificate of Incorporation,
may be called by the President and shall be called by the President or
Secretary at the request in writing of a majority of all directors then in
office, or at the request in writing of stockholders owning SEVENTY-FIVE PER
CENT (75%) in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting and the determination of the propriety of such
purpose made in good faith by a majority of the Board of Directors then in
office shall be final and binding.
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 and the power of stockholders to consent in writing to the taking of
any action is specifically denied.
Commencing with the adoption of this amendment at the annual meeting of
stockholders in 1976, and the filing of a Certificate of amendment with the
Secretary of State, the Board of Directors shall be divided into three classes,
identified as Class I, Class II, and Class III, respectively.
The term of office of the directors in one class shall expire each year.
Each director shall serve for a term ending on the third annual meeting
following the annual meeting at which such director was elected; provided,
however, that the director or directors first elected to Class I shall serve
for a term ending on the annual meeting next ensuing; the directors first
elected to Class II shall serve for a term ending on the second annual meeting
following the annual meeting at which such directors were first elected; and
the directors first elected to Class III shall serve a full term as hereinabove
provided. Notwithstanding the foregoing, each director shall serve until his
successor shall have been duly elected and qualified unless he shall resign or
become disqualified, disabled or shall otherwise be removed.
Vacancies and newly created directorships resulting from any increase in
the authorized number of directors shall be filled by a majority of the
directors then in office, though less than a quorum, and the directors so
chosen shall hold office until the next election of the Class for which such
directors shall have been chosen and until their successors are duly elected
and shall qualify, unless sooner displaced.
Any amendment to this Certificate of Incorporation which would change any
of the provisions of this Article shall not be made except upon approval by
affirmative vote of the holders of not less than SEVENTY-FIVE PER CENT (75%) of
the stock issued and outstanding having voting power given at a stockholders'
meeting duly called for such purpose.
TWELFTH. 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 by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
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THIRTEENTH. The corporation shall indemnify any and all of its
directors or officers or former directors or officers or any person who may
have served at its request as a director or officer of another corporation in
which it owns shares of capital stock or of which it is a creditor who was or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her
in connection with such action, suit or proceeding, to the extent and under the
circumstances permitted by the General Corporation Law of the State of
Delaware. Such indemnification (unless ordered by a court) shall be made as
authorized in a specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standards of conduct set forth in the General
Corporation Law of the State of Delaware. Such determination shall be made (1)
by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such quorum is not obtainable, or even if obtainable as a quorum of
disinterested directors so direct, by independent legal counsel in a written
opinion, or (3) by the stockholders. Any and all expenses incurred in
defending such action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding as
authorized by the Board of Directors in the specific case upon receipt of an
undertaking by or on behalf of the person or his or her agent to repay such
amount unless it shall ultimately be determined that he or she is entitled to
be indemnified by the corporation as authorized herein. The foregoing rights
of indemnification shall not be deemed exclusive of any other rights to which
those seeking indemnification shall not be deemed exclusive of any other rights
to which those seeking indemnification may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise, and
shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
FOURTEENTH. To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
this corporation shall not be liable to this corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director.
FIFTEENTH. New by-laws may be adopted or the by-laws may be amended or
repealed by affirmative vote of the holders of not less than SEVENTY-FIVE PER
CENT (75%) of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for such purpose. By-laws may also be
adopted, amended, or repealed by the Board of Directors.
Any amendment to this Certificate of Incorporation which would change any
of the provisions of this Article shall not be made except upon approval by
affirmative vote of the holders of not less than SEVENTY-FIVE PER CENT (75%) of
the stock issued and outstanding having voting power given at a stockholders'
meeting duly called for such purpose.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation
law of the State of Delaware, do make this certificate, hereby declaring and
certifying that the facts herein stated are true, and accordingly have hereunto
set our hands and seals this 11th day of June A.D. 1958.
R. F. Westover (SEAL)
-------------------------
H. C. Broadt (SEAL)
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--------------------------
A. D. Atwell (SEAL)
--------------------------
STATE OF DELAWARE )
) SS:
COUNTY OF NEW CASTLE )
BE IT REMEMBERED that on this 11th day of June A.D. 1958, personally came
before me, a Notary Public for the State of Delaware, R. F. Westover, H. C.
Broadt and A. C. Atwell, all of the parties to the foregoing certificate of
incorporation, known to me personally to be such, and severally acknowledged
the said certificate to be the act and deed of the signers respectively and
that the facts therein stated are truly set forth.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/Harold E. Grantland
--------------------
Notary Public
Harold E. Grantland
Notary Public
Appointed Jan. 12, 1957
State of Delaware
Term 2 Years