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Exhibit 3.1.2
CERTIFICATE OF INCORPORATION
OF
SELFIX, INC.
The undersigned, a natural person, for the purposes of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "Delaware General Corporation Law"), hereby certifies that:
FIRST: The name of the corporation (hereinafter called the "Corporation")
is:
SELFIX, INC.
SECOND: The address, including street, number, city and county of the
registered office of the Corporation in the State of Delaware is 229 South
State Street, City of Dover, County of Kent, and the name of the registered
agent of the Corporation in the State of Delaware at such address is United
States Corporation Company.
THIRD: The nature of the business and of the purposes to be conducted and
promoted by the Corporation shall be to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have the authority to issue is 5,500,000 shares. Of such authorization,
5,000,000 shares shall be designated as Common Stock and shall have a par value
of $0.01 per share and 500,000 shares shall be designated as Preferred Stock
and shall have a par value of $0.01 per share. The Preferred Stock may be
issued from time to time in one or more series. The number of shares, the
stated value and interest rate, if any, of each such series and the preferences
and relative, participating and special rights and the qualifications,
limitations or restrictions shall be fixed in the case of each series by
resolution of the Board of Directors at the time of issuance subject in all
cases to the laws of the State of Delaware applicable thereto, and set forth in
a certificate of designation filed and recorded with respect to each series in
accordance with the laws of the State of Delaware.
Any and all such shares issued, and for which the full consideration has
been paid or delivered, shall be deemed fully paid stock and the holder of such
shares shall not be liable for any further call or assessment or any other
payment thereon.
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FIFTH:The name and the mailing address of the sole incorporator is as follows:
Name Mailing Address
---- ---------------
Karen J. Gilbert 30 South Wacker Drive
Suite 2900
Chicago, Illinois 60606
SIXTH: The books of the Corporation may be kept (subject to any provision
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 or in
the By-Laws of the Corporation.
SEVENTH: 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 179 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 a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation as the case may be,
and also on this Corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and stockholders, it is
further provided:
1. The number of directors of the Corporation shall be as specified in the
By-Laws of the Corporation but such number may from time to time be
increased or decreased in such manner as may be prescribed by the By-Laws.
In no event shall the number of directors be less than the minimum
prescribed by law. The election of directors need not be by ballot.
Directors need not be stockholders.
2. In furtherance and not in limitation of the powers conferred by the laws
of the State of Delaware, the Board of Directors is expressly authorized
and empowered to make,
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alter, amend, and repeal By-Laws, subject to the power of the stockholders
to alter or repeal By-Laws made by the Board of Directors.
3. Any director or any officer elected or appointed by the stockholders or
by the Board of Directors may be removed at any time in such manner as
shall be provided in the By-Laws of the Corporation.
4. Stockholders of the Corporation shall have no pre-emptive right to
subscribe to any capital stock to be hereafter issued, whether now
authorized and unissued or hereafter authorized.
5. In the absence of fraud, no contract or other transaction between the
Corporation and any other Corporation and no act of the Corporation, shall
in any way be affected or invalidated by the fact that any of the
directors of the Corporation are pecuniarily or otherwise interested in,
or are directors or officers of, such other Corporation; and in the
absence of fraud, any director, individually, or any firm of which any
director may be a member, may be a party to, or may be pecuniarily or
otherwise interested in, any contract or transaction of the Corporation;
provided, in any case, that the fact that he or such firm is so interested
shall be disclosed or shall have been known to the Board of Directors or
the majority thereof; and any director of the Corporation, who is also a
director or officer of any such other Corporation, or who is also
interested, may be counted in determining the existence of a quorum at any
meeting of the Board of Directors of the Corporation which shall authorize
any such contract, act or transaction, and may vote thereat to authorize
any such contract, act or transaction, with like force and effect as if he
were not such director or officer of such other corporation, or not so
interested.
6. To the fullest extent permitted by the Delaware General Corporation Law
as it now exists or may hereafter be amended, no director of this
Corporation shall be liable to this Corporation or any of its stockholders
for monetary damages for breach of fiduciary duty as a director.
NINTH: (a) 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 (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action is an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by and in the manner set forth in 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
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provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in paragraph (b)
hereof, the Corporation shall indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation. The right to indemnification conferred in this paragraph
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director of officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise.
(b) If a claim under paragraph (a) of this Article is not paid in full by
the Corporation within thirty days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving 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 or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant
has not met such applicable standard or conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
(c) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article shall not be exclusive of any other right which any person may have or
hereafter acquire under any
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statute, provision of the Certificate of Incorporation, by-law, agreement,
vote of stockholders or disinterested directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability
or loss under the Delaware General Corporation Law.
(e) For the purposes of this Article, references to "the Corporation"
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 or agents, so that
any person who is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation or is or was
serving at the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate existence had
continued.
For the purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Article.
TENTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and
all rights at any time conferred upon the stockholders of the Corporation by
this Certificate are granted subject to the provisions of this Article TENTH.
Executed at Chicago, Illinois on the 15th day of May, 1987.
__________________________
Karen J. Gilbert
Incorporator
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PLAN AND AGREEMENT OF MERGER
by and between
Selfix, Inc.,
an Illinois Corporation
and
Selfix, Inc.,
a Delaware Corporation
This Plan and Agreement of Merger is made pursuant to Section 11.35 of the
Illinois Business Corporation Act of 1983 and Section 252 of the Delaware
General Corporation Law by and between Selfix, Inc., an Illinois corporation
(the "Terminating Corporation") and Selfix, Inc., a Delaware corporation (the
"Surviving Corporation").
RECITALS
WHEREAS,
A. The Terminating Corporation is authorized to issue 1,000 shares of
$100.00 par value Common Stock of which 500 shares are issued and outstanding;
and
B. The Surviving Corporation, of which the Terminating Corporation is the
sole stockholder, is authorized to issue 5,000,000 shares of $0.01 par value
Common Stock, of which one share is issued and outstanding, and 500,000 shares
of $0.01 par value Preferred Stock, of which no shares have been issued; and
C. The respective Boards of Directors of the Terminating Corporation and
the Surviving Corporation have determined that it is in the best interests of
the parties to merge the Terminating Corporation into the Surviving Corporation
(the "Merger") in a transaction intended to qualify as a reorganization under
Section 368(a)(1)(F) of the Internal Revenue Code of 1986 on the terms and
conditions herein contained in order to create a single entity organized under
the laws of the State of Delaware;
D. Jeffrey C. Rubenstein of 30 South Wacker Drive, Suite 2900, Chicago,
Illinois 60606, is the registered agent of the Terminating Corporation upon
whom process against the Terminating Corporation may be served in the State of
Illinois; and
E. United States Corporation Company of 229 South State Street, Dover,
Delaware 19901 is the registered agent of the Surviving Corporation upon whom
process against the Surviving Corporation may be served in the State of
Delaware; and
F. Jeffrey C. Rubenstein of 30 South Wacker Drive, Suite 2900, Chicago,
Illinois 60606 will be the registered agent of the Surviving Corporation upon
whom process against the Surviving Corporation may be served in the State of
Illinois; and
G. The Surviving Corporation has not commenced to do business and has no
liabilities other than the reasonable costs incurred in conjunction with its
incorporation.
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TERMS AND CONDITIONS
NOW, THEREFORE, the parties to this Plan and Agreement of Merger, in
consideration of the premises, mutual covenants, agreements and provisions
herein contained, do hereby agree to and prescribe the terms and conditions of
the Merger and the mode of carrying the same into effect as follows:
1. Merger. The Terminating Corporation shall be merged into the Surviving
Corporation.
2. Effective Date. The Merger shall become effective on May 20, 1987 (the
"Effective Date").
3. Surviving Corporation. The Surviving Corporation shall survive the
Merger and shall continue to be governed by the laws of the State of Delaware,
but the separate corporate existence of the Terminating Corporation shall cease
forthwith upon the Effective Date, or as soon thereafter as is reasonably
possible.
4. Name of Surviving Corporation. The name of the Surviving Corporation
shall be Selfix, Inc.
5. Authorized Capital. The authorized capital stock of the Surviving
Corporation following the Effective Date will be 5,000,000 shares of Common
Stock, $0.01 par value per share, and 500,000 shares of Preferred Stock, $0.01
par value per share, the same as at present, unless and until such authorized
capital shall be changed in accordance with the laws of the State of Delaware.
6. Certificate of Incorporation. The present Certificate of Incorporation
of the Surviving Corporation shall continue to be the Surviving Corporation's
Certificate of Incorporation following the Effective Date, unless and until the
same shall be otherwise amended or repealed in accordance with the provisions
thereof and in accordance with the laws of the State of Delaware.
7. By-Laws. The present By-Laws of the Surviving Corporation shall be the
By-Laws of the Surviving Corporation following the Effective Date unless and
until the same shall be otherwise amended or repealed in accordance with the
provisions thereof and of the Surviving Corporation's Certificate of
Incorporation and in accordance with the laws of the State of Delaware.
8. Employees. Immediately upon the Effective Date, the employees of the
Terminating Corporation shall become the employees of the Surviving
Corporation, and shall continue to be entitled to the same rights and benefits
they enjoyed as employees of the Terminating Corporation.
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9. Incentive Stock Option Plan. Immediately upon the Effective Date, the
Surviving Corporation will assume and continue as its own the Incentive and
Nonstatutory Stock Option Plan (the "Plan") of the Terminating Corporation as
it exists on the Effective Date, subject only to (a) the substitution of 2,615
shares of the Surviving Corporation's Common Stock, $0.01 par value per share
for each share of Common Stock of the Terminating Corporation subject to such
plan, and (b) those adjustments in the exercise price and the number of shares
subject to each outstanding option previously granted pursuant to the Plan, as
such adjustments are effected pursuant to Article VI of the Plan.
10. Directors and Officers. The Terminating Corporation and the Surviving
Corporation hereby agree to cause the election or appointment of the
Terminating Corporation's directors and officers as the directors and officers
of the Surviving Corporation effective on or prior to the day preceding the
Effective Date. All such directors and officers shall continue in office until
their successors shall have been duly elected and qualified.
11. Conversion of Outstanding Shares of Terminating Corporation. The
manner and basis of converting the outstanding shares of capital stock of the
Terminating Corporation into the shares of the Surviving Corporation shall be
as follows:
a. As of the Effective Date, by virtue of the Merger and without
any further action on the part of the Surviving Corporation, the
Terminating Corporation or the holders thereof, each share of the
Common Stock of the Terminating Corporation which is issued and
outstanding immediately prior thereto shall be converted into 2,615 shares
of the Surviving Corporation's Common Stock, $0.01 par value, except that
the one share of such stock currently owned by the Terminating Corporation
shall thereupon be surrendered and cancelled.
b. Upon surrender of the certificates of the capital stock of the
Terminating Corporation to the Surviving Corporation, said
Certificates shall be cancelled by the Surviving Corporation and the
Surviving Corporation's Common Stock, $0.01 par value, will be issued to
the holders of such certificates of record as of the Effective Date in the
appropriate amounts as calculated in accordance with the preceding
paragraph. Until so surrendered, each certificate representing the
Terminating Corporation's Common Stock shall be deemed for all corporate
purposes to evidence the number of shares of the Surviving Corporation's
Common Stock into which such shares of the Terminating Corporation's
Common Stock have been converted in the Merger.
12. Transfer of Tangible and Intangible Property Interests upon the
Effective Date. Immediately upon the Effective Date, without limiting the
force and effect of any applicable provisions of the Illinois Business
Corporation Act of 1983 and the Delaware General Corporation Law with respect
to the legal effect of the Merger, all the real and personal property rights
and interests, privileges, franchises, patents, trade secrets, confidential
information, trademarks, licenses, registrations and all other legal rights and
assets of every kind and description of the Terminating Corporation, whether
tangible or intangible, shall be automatically
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transferred to, vested in and devolve upon the Surviving Corporation without
further act or deed; and all property, rights and every other interest of the
Surviving Corporation and of the Terminating Corporation shall be as
effectively the property of the Surviving Corporation as they theretofore were
of the Surviving Corporation and the Terminating Corporation, respectively.
The Terminating Corporation, and its directors and officers, hereby agree from
time to time as and when requested by the Surviving Corporation or by its
successors or assigns, to execute and deliver or cause to be executed and
delivered all such deeds and instruments and to take or cause to be taken such
further or other actions as the Surviving Corporation may deem necessary or
desirable in order to vest in, and confirm to, the Surviving Corporation, title
to and possession of any and all property of such Terminating Corporation
acquired or to be acquired by reason or as a result of the Merger and otherwise
to carry out all of the intents and purposes hereof. The proper officers and
directors of the Terminating Corporation and the proper officers and directors
of the Surviving Corporation are hereby fully authorized in the name of the
Terminating Corporation and the Surviving Corporation, respectively, to take
any and all such actions on behalf of the respective corporations.
13. Assumption of Contracts. Immediately upon the Effective Date, without
limiting the force and effect of any applicable provisions of the Illinois
Business Corporation Act of 1983 and the Delaware General Corporation Law with
respect to the legal effect of the Merger, all of contracts and agreements to
which the Terminating Corporation is a party shall be automatically assumed by
the Surviving Corporation.
14. Representations of the Terminating Corporation and the Surviving
Corporation. The Terminating Corporation and the Surviving Corporation each
hereby represents and warrants that it is not a party, jointly or severally, to
any contract or agreement, the terms of which would be violated or breached by
it upon execution and consummation of this Plan and Agreement of Merger, such
that this Plan and Agreement of Merger is enforceable against each of the
respective corporations in accordance with its terms.
15. Survival of Representations. All representations and warranties of
the Terminating Corporation and of the Surviving Corporation contained in this
or any other instrument delivered by or on behalf of any of them are true and
correct now, will be true and correct on the Effective Date with the same force
and effect as if made on and as of said date, and will survive the Effective
Date for a period of two (2) years.
16. Entire Agreement. This Plan and Agreement of Merger constitutes the
entire agreement by and between the parties hereto with respect to the matters
herein contemplated. This Plan and Agreement of Merger supersedes all previous
agreements, negotiations and commitments in respect thereto. This Plan and
Agreement of Merger shall not be changed or modified in any manner, except by
mutual consent in a writing of subsequent date signed by the duly authorized
representations of each party hereto.
17. Further Assurances. Following the receipt of all required approvals
of this Plan and Agreement of Merger by the respective stockholders of the
parties, as applicable, each of
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the parties hereto shall immediately execute and deliver to the other party
hereto and file with appropriate governmental authorities such instruments as
may be reasonably required in connection with the consummation of the Merger
contemplated hereby.
18. Binding Effect. This Plan and Agreement of Merger shall be binding
upon and inure to the benefit of all of the parties hereto and their respective
successors in interest.
19. Miscellaneous. Paragraph headings do not form a part of this Plan and
Agreement of Merger, but are for convenience of reference only and shall not
limit or affect in any way the meaning or interpretation hereof. The failure
of either party to enforce any of the provisions hereof shall not waive or
limit the right of such party thereafter to strictly enforce such provision, or
of the right of such party thereafter to enforce each and every provision
hereof.
20. Revocability of Plan and Agreement. Anything herein or elsewhere to
the contrary notwithstanding, this Plan and Agreement of Merger may be
terminated and abandoned by the Board of Directors of the Terminating
Corporation or of the Surviving Corporation at any time prior to the date of
filing the required Plan and Agreement of Merger or Certificate of Merger and
the required Articles of Merger, respectively, with the Secretaries of State of
the States of Delaware and Illinois.
21. Service of Process. The Surviving Corporation hereby agrees that it
may be served with process in the States of Delaware and Illinois in any
proceeding for the enforcement of any obligation of the Terminating Corporation
and in any proceeding for the enforcement of rights of dissenting shareholders,
if any, of such corporation. The Surviving Corporation hereby irrevocably
appoints the Secretary of State of the State of Illinois as its agent to accept
service of process in any such proceeding; hereby designates the following
address to which a copy of any such process shall be mailed by such Secretary
of State: Jeffrey C. Rubenstein, 30 South Wacker Drive, Suite 2900, Chicago,
Illinois 60606; and hereby agrees that it will pay the dissenting
shareholders, if any, of the Terminating Corporation the amount, if any, to
which they shall be entitled under the provisions of the Illinois Business
Corporation Act of 1983 with respect to the rights of dissenting shareholders.
IN WITNESS WHEREOF, the parties hereto, pursuant to the approval and
authority duly given by resolutions adopted by their respective Boards of
Directors, have caused this Plan and
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Agreement of Merger to be executed by their respective Presidents and
attested by their respective Secretaries or Assistant Secretaries this ______
day of __________, 1998.
Selfix, Inc.,
an Illinois corporation
Attest: By:
---------------------
Meyer J. Ragir, Chief
Executive Officer
- ----------------------
Jeffrey C. Rubenstein,
Asst. Secretary
Selfix, Inc.,
a Delaware corporation
Attest: By:
---------------------
Meyer J. Ragir, Chief
Executive Officer
- ----------------------
Jeffrey C. Rubenstein,
Asst. Secretary
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CERTIFICATE
I, Jeffrey C. Rubenstein, Assistant Secretary of SELFIX, INC. (the
"Corporation"), a corporation organized and existing under the laws of the
State of Delaware, hereby certify as such Assistant Secretary, that the Plan
and Agreement of Merger to which this certificate is attached, after having
been first duly signed on behalf of the Corporation and having been signed on
behalf of SELFIX, INC., a corporation of the State of Illinois, has been
consented to in writing by all of the stockholders of the Corporation entitled
to vote on the Plan and Agreement of Merger.
WITNESS my hand on this ______ day of _________________, 1998.
-------------------
Assistant Secretary
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CERTIFICATE
I, Jeffrey C. Rubenstein, Assistant Secretary of SELFIX, INC. (the
"Corporation"), a corporation organized and existing under the laws of the
State of Illinois, hereby certify, as such Assistant Secretary, that the Plan
and Agreement of Merger to which this certificate is attached, after having
been first duly signed on behalf of the Corporation and having been signed on
behalf of SELFIX, INC., a corporation of the State of Delaware, has been
consented to in writing by all of the shareholders of the Corporation entitled
to vote on the Plan and Agreement of Merger.
WITNESS my hand on this ______ day of _________________, 1998.
-------------------
Assistant Secretary
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THE ABOVE PLAN AND AGREEMENT OF MERGER, having been executed on behalf of
each corporate party thereto, and having been adopted separately by each
corporate party thereto, in accordance with the provisions of the General
Corporation Law of the State of Delaware and the Illinois Business Corporation
Act of 1983, the President of each corporate party thereto does now hereby
execute the said Plan and Agreement of Merger and the Secretary or Assistant
Secretary of each corporate party thereto does now hereby attest the said Plan
and Agreement of Merger, as the respective act, deed and agreement of each of
said corporations, on this ______ day of __________________, 1998.
SELFIX, INC.,
a Delaware corporation
Attest: By:
---------------------
Meyer J. Ragir, Chief
Executive Officer
- ----------------------
Jeffrey C. Rubenstein,
Asst. Secretary
SELFIX, INC.,
an Illinois corporation
Attest: By:
---------------------
Meyer J. Ragir, Chief
Executive Officer
- ----------------------
Jeffrey C. Rubenstein,
Asst. Secretary
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CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
OF SELFIX, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
Selfix, Inc.
2. The Certificate of Incorporation of the Corporation is hereby amended
as follows:
Amendment of Article NINTH to be restated in its entirety as follows:
NINTH:
(a) 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
(hereinafter a "proceeding"), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while
serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest
extent authorized by and in the manner set forth in the Delaware
General Corporation Law, as the same exists, against all expense,
liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except at provided in
paragraph (b) hereof, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or
part thereof) initiated by such person only if such proceeding (or
part thereof) was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this
paragraph shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of
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its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service
was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan)
in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced
if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Section or otherwise.
(b) If a claim under paragraph (a) of this Article is not paid in full
by the Corporation within thirty days after a written claim has
been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim, and if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed. 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 or she has met the
applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard
or conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
(c) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition
conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement,
vote of stockholders or disinterested directors or otherwise.
17
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership joint venture, trust
or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the
Delaware General Corporation Law.
(e) For the purposes of this Article, references to
"the Corporation" 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 or agents, so that any person who is or was
serving at the request of such constituent corporation
as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the
provisions of this Article with respect to the
resulting or surviving corporation as he would have
with respect to such constituent corporation if its
separate existence had continued.
For the purposes of this Article, references to "other
enterprises" shall include employee benefit plans; references to
"fine" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and reference to "serving at
the request of the Corporation" shall include any service as a
director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests
of the Corporation" as referred to in this Article.
18
3. The Amendment of the Certificate of Incorporation herein certified has
been duly adopted in accordance with the provisions of Sections 228 and 242 of
the General Corporation Law of the State of Delaware.
Signed and attested to on June 30, 1987.
__________________________________________
President
ATTEST:
__________________________
Asst. Secretary
19
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SELFIX, INC.
Selfix, Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the Corporation
resolutions were duly adopted setting forth a proposed amendment to the
Corporation's Certificate of Incorporation, declaring said amendment to be
advisable and calling a meeting of the stockholders of the Corporation for
consideration thereof. The resolution setting forth the proposed amendment is
as follows:
RESOLVED, that the Corporation's Certificate of Incorporation
be amended by changing ARTICLE FOURTH thereof so that, as amended,
said ARTICLE FOURTH shall be and read as follows:
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is Eight Million (8,000,000) shares. Of such
authorization, Seven Million Five Hundred Thousand (7,500,000) are
designated as Common Stock, $0.01 par value per share, and Five Hundred
Thousand (500,000) are designated as Preferred Stock, $0.01 par value per
share. The Preferred Stock may be issued from time to time in one or more
series. The number of shares, the stated value and interest rate, if any,
of each such series and the preferences and relative, participating and
special rights and the qualifications, limitations or restrictions shall
be fixed in the case of each series by resolution of the Board of
Directors at the time of issuance subject in all cases to the laws of the
State of Delaware applicable thereto, and set forth in a certificate of
designation filed and recorded with respect to each series in accordance
with the laws of the State of Delaware.
Any and all such shares issued, and for which the full consideration
has been paid or delivered, shall be deemed fully paid stock and
the holder of such shares shall not be liable for any further call or
assessment or any other payment thereon.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
an annual meeting of the stockholders of the Corporation was duly called and
held, upon notice in accordance with Section 222 of the General Corporation Law
of the State of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
20
THIRD; That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Selfix, Inc. has caused this Certificate to be
signed by James E. Winslow, its Senior Vice President, this 6th day of June,
1995.
SELFIX, INC.
By:________________________________________
James E. Winslow, Senior Vice President
21
CERTIFICATE OF OWNERSHIP AND MERGER
OF
SAFETY SOURCE, INC.
(AN ILLINOIS CORPORATION)
INTO
SELFIX, INC.
(A DELAWARE CORPORATION)
IT IS HEREBY CERTIFIED THAT:
FIRST: Selfix, Inc. (hereinafter sometimes referred to as the
"Corporation") is a business corporation of the State of Delaware.
SECOND: The Corporation is the owner of all of the issued and
outstanding shares of stock of Safety Source, Inc., which is a business
corporation of the State of Illinois.
THIRD: The laws of the jurisdiction of organization of Safety
Source, Inc. permit the merger of a business corporation of that jurisdiction
with a business corporation of another jurisdiction.
FOURTH: The Corporation hereby merges Safety Source, Inc. into the
Corporation effective at 12:00:01 a.m. on February 18, 1997.
FIFTH: The following is a copy of certain resolutions adopted on
February 13, 1997, by the Board of Directors of the Corporation to merge said
Safety Source, Inc. into the Corporation:
RESOLVED, that Safety Source, Inc. be merged into this
Corporation, and that all of the estate, property, rights,
privileges, powers, and franchises of Safety Source, Inc. be
vested in and held and enjoyed by this Corporation as fully and
entirely and without change or diminution as the same were before
held and enjoyed by Safety Source, Inc. in its name.
RESOLVED, that this Corporation assume all of the
obligations of Safety Source, Inc.
RESOLVED, that this Corporation shall cause to be executed
and filed and/or recorded.
RESOLVED, that the Chairman of the Board and Secretary of the
Corporation are hereby authorized, empowered and directed to
execute and deliver, in the name and on behalf of this
22
Corporation, the documents prescribed by the laws of the
State of Delaware and by the laws of the State of Illinois, and
will cause to be performed all necessary acts within the
jurisdiction of organization of Safety Source, Inc. and of this
Corporation, and to take such actions, execute and deliver such
certificates and such additional documents and effectuate such
filings as are necessary, appropriate or expedient to implement
the terms and provisions of the foregoing resolutions, the making
of any such modifications, the execution and delivery of any such
other documents and the taking of such other action to
conclusively evidence their having so deemed.
Executed on this 14th day of February, 1997.
SELFIX, INC.
By: _______________________________________
James R. Tennant, Chairman of the Board
23
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
OF SELFIX, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
Selfix, Inc.
2. The Certificate of Incorporation of the Corporation is hereby amended
as follows:
Amendment of Article NINTH to be restated in its entirety as follows:
NINTH:
(a) 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
(hereinafter a "proceeding"), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while
serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest
extent authorized by and in the manner set forth in the Delaware
General Corporation Law, as the same exists, against all expense,
liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except at provided in
paragraph (b) hereof, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or
part thereof) initiated by such person only if such proceeding (or
part thereof) was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this
paragraph shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of
24
its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service
was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan)
in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced
if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Section or otherwise.
(b) If a claim under paragraph (a) of this Article is not paid in full
by the Corporation within thirty days after a written claim has
been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim, and if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed. 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 or she has met the
applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard
or conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
(c) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition
conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement,
vote of stockholders or disinterested directors or otherwise.
25
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership joint venture, trust
or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the
Delaware General Corporation Law.
(e) For the purposes of this Article, references to "the Corporation"
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 or agents, so that
any person who is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its
separate existence had continued.
For the purposes of this Article, references to "other
enterprises" shall include employee benefit plans; references to
"fine" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and reference to "serving at
the request of the Corporation" shall include any service as a
director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests
of the Corporation" as referred to in this Article.
26
3. The Amendment of the Certificate of Incorporation herein certified has
been duly adopted in accordance with the provisions of Sections 228 and 242 of
the General Corporation Law of the State of Delaware.
Signed and attested to on September 26, 1988.
___________________________________ President
ATTEST:
__________________________
Secretary
27
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of ____________
, 1998, is by and among SELFIX, INC., a Delaware Corporation ("Selfix"),
HPI MERGER, INC., a Delaware corporation ("Merger Sub"), and HOME
PRODUCTS INTERNATIONAL, INC., a Delaware corporation ("Home Products").
PRELIMINARY STATEMENTS
Selfix has an authorized capitalization consisting of (i) 7,500,000 shares
of Common Stock, $0.01 par value per share ("Selfix Common Stock") of which
3,891,714 shares are issued and outstanding, and (ii) 500,000 shares of
Preferred Stock, $0.01 par value per share, of which no shares are issued and
outstanding.
Home Products has an authorized capitalization consisting of (i) 7,500,000
shares of Common Stock, $0.01 par value per share ("Home Products Common
Stock") of which 1,000 shares are issued and outstanding and owned by Selfix,
and (ii) 500,000 shares of Preferred Stock, $0.01 par value per share, of which
no shares are issued and outstanding.
Merger Sub has an authorized capitalization consisting of 1,000 shares of
Common Stock, $0.01 par value per share ("Merger Sub Common Stock"), all of
which are issued and outstanding and are owned by Home Products.
The Board of Directors of each of Selfix, Home Products and Merger Sub has
heretofore approved the Merger ("Merger") of Merger Sub with and into Selfix in
accordance with the General Corporation Law of the State of Delaware ("DGCL")
and upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby,
Selfix, Home Products and Merger Sub hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.01. The Merger. Upon the terms and subject to the conditions
set forth in this Agreement and in accordance with the DGCL, Merger Sub shall
be merged with and into Selfix at the Effective Time (as hereinafter defined).
Following the Effective Time, the separate corporate existence of Merger Sub
shall cease and Selfix shall continue as the surviving corporation (in such
capacity, the "Surviving Corporation") and shall succeed to and assume all the
rights and obligations of Merger Sub in accordance with the DGCL.
28
Section 1.02. Effective Time. Subject to the provisions of this
Agreement, as soon as practicable on or after the date hereof, Selfix shall
file a copy of this Agreement with the Secretary of State of the State of
Delaware and the Merger shall become effective at the later to occur of (i) the
time of such filing and (ii) 12:01 a.m. on February 18, 1997 ("Effective
Time").
Section 1.03. Effects of the Merger. The Merger shall have the effects
as set forth in Section 259 of the DGCL.
Section 1.04. Certificate Of Incorporation and Bylaws.
(a) At the Effective Time, the Certificate of Incorporation of Selfix, as
amended and in effect immediately prior to the Effective Time, shall be amended
as set forth and as so amended shall thereafter continue in full force and
effect as the certificate of incorporation of the Surviving Corporation until
thereafter changed or amended as provided therein and by the DGCL.
Article FOURTH shall be amended to read in its entirety as follows:
FOURTH. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is One Thousand (1,000) shares
of Common Stock, $0.01 par value per share.
Any and all such shares issued, and for which the full consideration has
been paid or delivered, shall be deemed fully paid stock and the holder of
such shares shall not be liable for any further call or assessment or any
other payment thereon.
Article ELEVENTH shall be added and will read as follows:
Any act or transaction by or involving the Corporation that requires for
its adoption under the Delaware General Corporation Law ("DGCL") or the
Corporation's Certificate of Incorporation the approval of the
stockholders of the Corporation shall, in accordance with Section 251(g)
of the DGCL, require, in addition, the approval of the stockholders of
Home Products International, Inc. ("Home Products") (or any successor by
merger), by the same vote as is required by the DGCL and/or by the
Corporation's Certificate of Incorporation.
(b) At the Effective Time, the By-laws of Merger Sub in effect on the date
thereof, shall be the By-laws of the Surviving Corporation after the Effective
Time until thereafter changed or amended as provided therein or by the DGCL.
29
Section 1.05. Directors. The directors of Selfix immediately prior to
the Effective Time shall be the directors of the Surviving Corporation and
shall serve until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
Section 1.06. Officers. The officers of Selfix immediately prior to the
Effective Time shall be the officers of the Surviving Corporation and shall
serve until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
Section 1.07. Treasury Stock. Selfix will, immediately prior to the
Effective Time of the Merger, contribute to the capital of Home Products all of
the shares of Selfix Common Stock then held by Selfix in its treasury.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS AND
ASSUMPTION OF CERTAIN OBLIGATIONS
Section 2.01. Effect on Capital Stock.
(a) At the Effective Time, by virtue of the Merger and without any action
on the part of Selfix, Merger Sub or Home Products or any holder of capital
stock of Selfix, Merger Sub or Home Products, the following events shall occur:
(i) each issued and outstanding share of Selfix Common Stock shall,
without further act or deed by Selfix or its stockholders, be converted
into one share of Home Products Common Stock, and shall have the same
designations, rights and powers and preferences, and the qualifications,
limitations and restrictions thereof, as the Selfix Common Stock being
converted. Each certificate representing shares of Selfix Common Stock
immediately prior to the Effective Time shall be deemed without the need
for any exchange or transfer to represent the same number of shares of
Home Products Common Stock;
(ii) each share of Selfix Common Stock then held by Home Products in its
treasury immediately prior to the Effective Time shall be converted into
and thereafter represent one duly issued, fully paid and nonassessable
share of Home Products Common Stock held by Home Products in its treasury
immediately after the Effective Time of the Merger;
(iii) each issued and outstanding share of Merger Sub Common Stock shall
be converted into one share of the common stock, $0.01 par value per
share, of the Surviving Corporation; and
30
(iv) each issued and outstanding share of Home Products Common Stock
shall be canceled without any consideration being paid therefor.
(b) From and after the Effective Time, holders of certificates formerly
evidencing Selfix Common Stock shall cease to have any rights as stockholders
of Selfix, except as provided by law; provided, however, that such holders
shall have the rights set forth in Section 2.03 herein.
Section 2.02. Assumption of Selfix' Obligations to Issue Capital Stock.
Immediately prior to the Effective Time, Selfix was a party to or subject to
certain agreements and arrangements, including stock options, and compensation
plans and agreements, pursuant to which parties thereto or beneficiaries
thereof acquired, or acquired certain rights to acquire, shares of Selfix
Common Stock, including but not limited to: (i) Selfix, Inc. 1988 Stock Option
Plan, (ii) Selfix, Inc. 1991 Stock Option Plan, (iii) Selfix, Inc. 1994 Stock
Option Plan, and (iv) Selfix, Inc. 1995 Employee Stock Purchase Plan (all such
stock options, and compensation plans and agreements being referred to herein
individually as a "Plan"). At the Effective Time, Home Products shall adopt,
assume, and agree to be bound by each and every Plan, and any right to acquire
a share of capital stock of Selfix under any such Plan shall, without further
act or deed by Selfix or its stockholders, be converted into a right to acquire
a share of capital stock of Home Products pursuant to such Plan.
Section 2.03. Option to Exchange Selfix Certificate. Each holder of a
certificate formerly representing shares of Selfix Common Stock (a "Selfix
Certificate"), shall have the option, upon surrender of such Selfix Certificate
to Home Product's transfer agent ("Transfer Agent"), to receive a certificate
or certificates of Home Products representing the number of shares of Home
Products Common Stock into which the shares of Selfix Common Stock previously
represented by such Selfix Certificate have been converted pursuant to this
Agreement. The Transfer Agent shall accept such Selfix Certificates upon
compliance with such reasonable terms and conditions as the Transfer Agent may
impose to effect an orderly exchange thereof in accordance with normal exchange
practices. Until surrendered and exchanged in accordance with this Section
2.03 or in the ordinary course, each Selfix Certificate shall be deemed and
treated for all corporate purposes at any time after the Effective Time to
evidence the ownership of the number of shares of Home Products Commons Stock
into which such shares of Selfix Common Stock were converted pursuant to
Section 2.01(a).
Section 2.04 Successor Issuer. It is the intent of the parties hereto
that Home Products, as of the Effective Time, be deemed a "successor issuer"
for all purposes under the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended.
31
ARTICLE III
AMENDMENT AND TERMINATION
Section 3.01 Amendments and Waiver. No amendment, modification,
restatement or supplement of this Agreement shall be valid unless the same is
in writing and signed by the parties hereto. No waiver of any provision of
this Agreement shall be valid unless in writing and signed by the party against
whom that waiver is sought to be enforced. No failure or delay on the part of
any party hereto in exercising any right, power or privilege hereunder and no
course of dealing between or among any of the parties shall operate as a waiver
of any right, power or privilege hereunder. No single or partial exercise
thereof or the exercise of any other right, power or privilege hereunder. No
notice to or demand on any party hereto in any case shall entitle such party to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of any party hereto to any other or further
action in any circumstances without notice or demand.
Section 3.02 Termination. At any time prior to the Effective Time, this
Agreement may be terminated and abandoned by the parties. In the event of any
termination of this Agreement, this Agreement shall forthwith become void and
there shall be no liability on the part of any of the parties hereto or their
respective officers or directors.
ARTICLE IV
MISCELLANEOUS
Section 4.01 Tax Free Reorganization. The Merger is intended to
constitute a tax-free reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended, and this Agreement is intended
to constitute a plan of reorganization.
Section 4.02 Benefit and Burden. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties hereto and their respective
successors and permitted assigns.
Section 4.03 No Third Party Rights. Nothing in this Agreement shall be
deemed to create any right in any creditor or other person or entity, and this
Agreement shall not be construed in any respect to be a contract in whole or in
part for the benefit of any third party.
Section 4.04 Assignments. Neither this Agreement nor any right, interest
or obligation hereunder may be assigned by any of the parties hereto and any
attempt to do so shall be null and void.
Section 4.05 Counterparts. This Agreement may be executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed an original and all of which taken
together shall constitute one and the same agreement.
32
It shall not be necessary in making proof of this Agreement to produce or
account for more than one counterpart signed by the party to be charged
thereby.
Section 4.06 Severability. Should any clause, sentence, paragraph,
subsection, Section or Article of this Agreement be judicially declared to be
invalid, unenforceable or void, such decision will not have the effect of
invalidating or voiding the remainder of this Agreement, and the part or parts
of this Agreement so held to be invalid, unenforceable or void will be deemed
to have been stricken herefrom by the parties hereto, and the remainder will
have the same force and effectiveness as if such stricken part or parts had
never been included herein.
Section 4.07 Applicable Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
Section 4.08. Entire Agreement. This Agreement sets forth all of the
promises, agreements, conditions, understandings, warranties and
representations among the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings among the parties hereto, whether written, oral or otherwise.
There are no promises, agreements, conditions, understandings, warranties or
representations, oral or written, express or implied, among the parties hereto
concerning the subject matter hereof except as set forth herein.
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement and Plan
of Merger to be executed by their respective officers thereunto duly authorized
on this ___ day of February, 1997.
ATTEST: SELFIX, INC.
By:
- ---------------------------- ------------------------------
Secretary James R. Tennant,
Chairman of the Board
ATTEST: HPI MERGER, INC.
By:
- ---------------------------- ------------------------------
Secretary James R. Tennant,
Chairman of the Board
ATTEST: HOME PRODUCTS INTERNATIONAL, INC.
By:
- ---------------------------- ------------------------------
Secretary James R. Tennant,
Chairman of the Board
34
CERTIFICATE OF THE SECRETARY OF SELFIX, INC.
I, James E. Winslow, the Secretary of Selfix, Inc., hereby certify that
the Agreement and Plan of Merger to which this certificate is attached was duly
adopted pursuant to Section 251(g) of the DGCL and that the conditions
specified in the first sentence of Section 251(g) of the DGCL have been
satisfied.
WITNESS my hand this ____ day of February, 1997.
________________________________
Secretary
35
CERTIFICATE OF THE SECRETARY OF HPI MERGER, INC.
I, James E. Winslow, the Secretary of HPI Merger, Inc., hereby certify
that the Agreement and Plan of Merger to which this certificate is attached was
duly adopted pursuant to Section 251(g) of the DGCL and that the conditions
specified in the first sentence of Section 251(g) of the DGCL have been
satisfied.
WITNESS my hand this ____ day of February, 1997.
________________________________
Secretary
36
CERTIFICATE OF THE SECRETARY OF
HOME PRODUCTS INTERNATIONAL, INC.
I, James E. Winslow, the Secretary of Home Products International, Inc.,
hereby certify that the Agreement and Plan of Merger to which this certificate
is attached was duly adopted pursuant to Section 251(g) of the DGCL and that
the conditions specified in the first sentence of Section 251(g) of the DGCL
have been satisfied.
WITNESS my hand this ____ day of February, 1997.
________________________________
Secretary