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Exhibit 3.1
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 03/10/1992
920705090 - 2I58107
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
LEE-CONTINENTAL CORP.
The original Certificate of Incorporation of Lee-Continental
Corp. was filed with the Secretary of State of Delaware on April 19, 1988. This
Amended and Restated Certificate of Incorporation not only restates and
integrates the original Certificate of Incorporation and all amendments thereto,
but also includes amendments adopted by the stockholders of Lee-Continental
Corp. on the date hereof. This Amended and Restated Certificate of Incorporation
was duly adopted in accordance with the applicable provisions of Sections 242
and 245 of the General Corporation Law of Delaware and shall become effective
upon filing with the Secretary of State of the State of Delaware.
FIRST: The name of the corporation is HEALTH O METER PRODUCTS,
INC.
SECOND: Its registered office in the State of Delaware is located
at 1013 Centre Road, City of Wilmington, County of New Castle and Corporation
Service Company is the registered agent at such address.
THIRD: The nature of the business and the objects and purposes to
be transacted, promoted and carried on are 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 all classes of capital
stock which the corporation shall have authority to issue is ten million
(10,000,000) shares of common stock (the "Common Stock") with a par value of
$0.01 per share.
Shares of stock of the corporation of any class hereby or
hereafter authorized or created may be issued by the corporation from time to
time for such consideration, but no less than the par value thereof, permitted
by law as may be fixed from time to time by the Board of Directors. Said Board
shall have authority as provided by statute to determine that only a part of the
consideration which shall be received by the corporation for any of the shares
of its stock which it shall issue from time to time shall be capital.
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SECTION A
COMMON STOCK
1. VOTING RIGHTS. Each share of Common Stock shall have one (1)
vote and the holders thereof shall have the right to vote (except to the extent
otherwise provided by law or this Amended and Restated Certificate of
Incorporation) on all matters subject to vote at any meeting of the stockholders
of the corporation.
2. DIVIDENDS AND DISTRIBUTIONS. The holders of Common Stock shall
be entitled to receive such dividends as may from time to time be declared by
the Board of Directors out of assets legally available therefor.
3. PURCHASES. Subject to any applicable provisions of this
Article Fourth, the corporation may at any time or from time to time purchase or
otherwise acquire shares of its Common Stock in any manner now or hereafter
permitted by law, publicly or privately, or pursuant to any agreement.
SECTION B
MISCELLANEOUS
1. PREEMPTIVE RIGHTS. No holder of any share of any class of
stock of the corporation shall have any preemptive right to subscribe for or
acquire additional shares of stock of any class of the corporation or warrants
or options to purchase, or securities convertible into, shares of any class of
stock of the corporation.
SECTION C
STOCK SPLIT
1. STOCK SPLIT. Notwithstanding anything in this Amended and
Restated Certificate of Incorporation to the contrary, as of the effective date
of this Amended and Restated Certificate of Incorporation, each share of issued
and outstanding Common Stock of the corporation shall be automatically
converted, without further action, into three (3) shares of the within
authorized Common Stock. On such effective date, outstanding certificates
representing shares of Common Stock shall thereafter automatically be deemed to
represent certificates for the number of shares of Common Stock determined as
set forth in the preceding sentence; provided, however, that the holders thereof
shall be entitled to present such certificates to the corporation for
replacement with certificates reflecting such number of shares of Common Stock.
FIFTH: The corporation expressly elects not to be governed by
Section 203 of the General Corporation Law of the State of Delaware.
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SIXTH: A. NUMBER, ELECTION AND TERMS OF DIRECTORS. The number of
Directors shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by the Board of Directors. The Directors of the
corporation shall be divided into three classes: Class I, Class II and Class
III. Each class shall consist, as nearly as may be possible, of one-third of the
whole number of the Board of Directors. If the Board of Directors is not evenly
divisible by three, the Board of Directors shall determine the number of
Directors to be elected to each class. The initial member of Class I shall be
Robert W. Miller and he shall hold office for a term to expire at the annual
meeting of the stockholders to be held in 1993; the initial members of Class II
shall be Lawrence Zalusky and Thomas R. Shepherd and they shall hold office for
a term to expire at the annual meeting of the stockholders to be held in 1994;
and the initial member of Class III shall be John W. Childs and he shall hold
office for a term to expire at the annual meeting of the stockholders to be held
in 1995, and in the case of each class, until their respective successors are
duly elected and qualified. At each annual election held commencing with the
annual election in 1993, the Directors elected to succeed those whose terms
expire shall be identified as being of the same class as the Directors they
succeed and shall be elected to hold office for a term to expire at the third
annual meeting of the stockholders after their election and until their
respective successors are duly elected and qualified. If the number of Directors
changes, any increase or decrease in Directors shall be apportioned among the
classes so as to maintain all classes as equal in number as possible, and any
additional Director elected to any class shall hold office for a term which
shall coincide with the terms of the other Directors in such class and until his
successor is duly elected and qualified.
B. STOCKHOLDER NOMINATION OF A DIRECTOR CANDIDATE AND
INTRODUCTION OF NEW BUSINESS. Advance notice of stockholder nominations for the
election of Directors and of new business to be brought by stockholders before
any meeting of the stockholders of the corporation shall be given in a manner
provided by the By-laws of the corporation.
C. REMOVAL. Any Director may be removed from office as a Director
at any time, but only for cause, and only by the affirmative vote of
stockholders of record holding not less than fifty-one percent (51%) of the
outstanding Common Stock of the corporation given at a meeting of the
stockholders called for that purpose.
SEVENTH: A. SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of
the stockholders, for any purpose or purposes (except to the extent otherwise
provided by law or this Amended and Restated Certificate of Incorporation), may
only be called by the Chairman of the Board, the President or a majority of the
Board of Directors then in office.
B. WRITTEN CONSENT BY STOCKHOLDERS WITHOUT A MEETING. Except as
otherwise specified in this Amended and Restated Certificate of Incorporation,
any corporate action upon which a vote of stockholders is required or permitted
under the General Corporation Law of Delaware, this Amended and Restated
Certificate of Incorporation or the By-laws of the corporation may be taken
without a meeting, without prior notice and without a vote of stockholders, if
all stockholders who would have been entitled to vote upon the action, if such
meeting were held, shall consent in writing to such corporate action being
taken.
EIGHTH: A. The Board of Directors of the corporation is
authorized to adopt, amend or repeal the By-laws of the corporation, subject to
applicable law and any applicable provisions in any resolution of the Board of
Directors, except that any By-law provision adopted by the stockholders amending
the By-laws after their initial adoption may be amended or repealed only by the
holders of not less than a majority of the
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outstanding Common Stock of the corporation; provided, however, that Sections
2.3, 2.9, 2.10, 2.11, 3.2 and 8.1(b) of the By-laws of the corporation may be
amended only by the holders of not less than seventy-five percent (75%) of the
outstanding Common Stock of the corporation.
B. Elections of Directors need not be by written ballot unless
the By-laws of the corporation shall so provide.
C. The books of the corporation may be kept at such place within
or without the State of Delaware as the By-laws of the corporation may provide
or as may be designated from time to time by the Board of Directors of the
corporation.
NINTH: Whenever a compromise or arrangement is proposed between
the corporation and its creditors or any class of them and/or between the
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 the corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the 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 the
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 the 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 the stockholders or class of stockholders of the corporation, as the case
may be, agree to any compromise or arrangement and to any reorganization of the
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 on all the stockholders or class of
stockholders, of the corporation, as the case may be, and also on the
corporation.
TENTH: No Director of the corporation shall be personally liable
to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, provided that this Article TENTH shall not
eliminate or limit the liability of a Director: (i) for any breach of the
Director's duty of loyalty to the corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of the General Corporation Law
of the State of Delaware (or the corresponding provision of any successor act or
law); or (iv) for any transaction from which the Director derived an improper
personal benefit. This Article TENTH shall not eliminate or limit the liability
of a Director for any act or omission occurring prior to the date this Article
TENTH becomes effective. Neither the amendment nor repeal of this Article TENTH,
nor the adoption of any provision of this Amended and Restated Certificate of
Incorporation inconsistent with this Article TENTH, shall eliminate or reduce
the effect of this Article TENTH in respect of any matter occurring, or any
cause of action, suit or claim that, but for this Article TENTH, would accrue or
arise, prior to such amendment, repeal or adoption of an inconsistent provision.
ELEVENTH: AMENDMENT, REPEAL OF ALTERATION. Notwithstanding any
other provisions of this Amended and Restated Certificate of Incorporation or
the By-laws of the corporation or the fact that a lesser percentage may be
specified by law, this Amended and Restated Certificate of Incorporation or the
By-laws of the corporation, the affirmative vote of the holders of not less than
seventy-five percent (75%) of the combined voting power of the outstanding stock
of the corporation entitled to vote generally in the election of Directors,
voting together as a single class, shall be required to amend, alter, adopt any
provision inconsistent with or to repeal Article SIXTH or Article SEVENTH of
this Amended and Restated Certificate of Incorporation.
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Furthermore, the corporation reserves the right to amend or repeal any provision
contained in this Amended and Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon a
stockholder herein are granted subject to this reservation.
IN WITNESS WHEREOF, the corporation has caused this Amended and
Restated Certificate to be signed by its duly authorized officers this 5th day
of March, 1992.
Attest:
LEE-CONTINENTAL CORP.
/s/ Francis S. Piotrowski
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Francis S. Piotrowski, Secretary
/s/ Lawrence Zalusky
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Lawrence Zalusky, Chairman of the Board
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 04/27/1995
950093320 - 2l58107
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
HEALTH O METER PRODUCTS, INC.
Pursuant to Section 242 of the
Delaware General Corporation Law
The undersigned, Peter C. McC. Howell, being the Chairman of the
Board of Directors, and Kathryn K. Vanderwist, being the Assistant Secretary of
Health o meter Products, Inc., a Delaware corporation (the "Corporation"),
hereby certify as follows:
1. The name of the Corporation is Health o meter Products, Inc.
2. The amendment of the Certificate of Incorporation as
hereinafter set forth has been duly adopted in accordance with Section 242 of
the Delaware General Corporation Law.
3. The Certificate of Incorporation of the Corporation is hereby
amended by deleting in its entirety the first full sentence of the current
Article Fourth and replacing it with the following:
"The total number of shares of all classes of capital stock which the
corporation shall have authority to issue is twenty million (20,000,000) shares
of Common Stock (the "Common Stock") with a par value of $0.01 per share."
IN WITNESS WHEREOF, the undersigned, being the duly elected and
acting Chairman of the Board of Directors and Assistant Secretary, respectively,
have hereunto subscribed their names to this Certificate of Amendment and affirm
that the facts stated herein are true under penalties of perjury, this 27th day
of April, 1995.
/s/ Peter C. McC. Howell
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Peter C. McC. Howell
Chairman
/s/ Kathryn K. Vanderwist
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Kathryn K. Vanderwist
Assistant Secretary
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CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HEALTH O METER PRODUCTS, INC.
Pursuant to Section 242 of the
Delaware General Corporation Law
The undersigned, Thomas F. McKee, being the Secretary of
Health o meter Products, Inc., a Delaware corporation, does hereby certify that
a meeting of the stockholders of Health o meter Products, Inc. was duly called
and held on March 6, 1997, at which meeting an amendment to the Amended and
Restated Certificate of Incorporation was duly adopted in accordance with
Section 242 of the Delaware General Corporation Law through the adoption of the
following resolution:
RESOLVED, that Article FIRST of the Amended and Restated
Certificate of Incorporation is amended to read in its entirety as follows:
"FIRST: The name of the corporation is Signature Brands USA,
Inc."
IN WITNESS WHEREOF, the undersigned hereunto subscribes this
Certificate of Amendment and affirms that the facts stated herein are true under
penalties of perjury, this 6th day of March, 1997.
/s/ Thomas F. McKee
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Thomas F. McKee
Secretary