1
EXHIBIT 3.5
-----------
RESTATED CERTIFICATE OF INCORPORATION
OF
CURTIS INDUSTRIES, INC.
Curtis Industries, Inc., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Curtis Industries, Inc. and the name
under which the Corporation was orginally incorporated is BTIC Acquisition
Corp.
The date of filing its original Certificate of Incorporation with the
Secretary of State was July 27, 1990.
2. This Restated Certificate of Incorporation restates and integrates
and further amends the Certificate of Incorporation of the Corporation.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended hereby to read as herein set forth
in full:
FIRST: The name of the Corporation is Curtis Industries, Inc.
SECOND: The address of its registered office in the State of Delaware
is 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted are to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
FOURTH:
A. GENERAL AUTHORIZATION. The aggregate number of shares of capital
stock which the Corporation is authorized to issue is Seven Hundred Twelve
Thousand One Hundred Sixty Nine (712,169) shares, consisting of:
1. Five Hundred Thousand (500,000) shares of common stock having a par
value of one cent ($.01) per share; and
2
2. Two Hundred Twelve Thousand Six Hundred Nineteen (212,619)
shares of preferred stock having a par value of one cent ($.01) per
share.
B. COMMON STOCK. A statement of the designations and the powers,
preferences and rights, including voting rights, and the qualifications,
limitations and restrictions in respect of the common stock is as follows:
1. DIVIDENDS. Except as otherwise provided in this Restated
Certificate of Incorporation, the Board of Directors of the Corporation
may cause dividends to be paid to the holders of shares of common stock
out of funds legally available for the payment of dividends by declaring
an amount per share as dividends. When and as dividends are declared
other than dividends declared with respect to the preferred stock,
whether payable in cash, in property or in shares of common stock, the
holders of common stock shall be entitled to share equally, share for
share, in such dividends.
2. LIQUIDATION RIGHTS. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, after payment shall have been made to the holders of
preferred stock of the full amount to which they shall be entitled, the
holders of common stock shall be entitled, to the exclusion of the
holders of preferred stock, to share, ratably according to the number of
shares of common stock held by them, in all remaining assets of the
Corporation available for distribution to its stockholders.
3. VOTING RIGHTS. Except as otherwise provided in this Restated
Certificate of Incorporation or by applicable law, the holders of common
stock shall be entitled to vote on each matter on which the stockholders
of the Corporation shall be entitled to vote, and each holder of common
stock shall be entitled to one vote for each share of such stock held by
such holder.
C. PREFERRED STOCK. A statement of the designations and the powers,
preferences and rights, including voting rights, if any, and the qualifications,
limitations and restrictions in respect of the shares of preferred stock is as
follows:
1. Subject to Article EIGHTH and the express provisions of each
series of preferred stock, the Board of Directors is hereby empowered to
cause the preferred stock to be issued from time to time for such
consideration as it may from time to time fix, and to cause such
preferred stock to be issued in one or more series, with such voting
powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional and other special
rights, and qualifications, limitations or restrictions thereof, as
shall be stated and expressed in the resolution or resolutions providing
for the issues of such stock adopted by the Board of Directors. Each
senes of preferred stock shall be distinctly designated. Except in
respect of the particulars fixed by the Board of Directors for each
series as permitted hereby, all shares of preferred stock shall be of
equal rank and shall be identical. All shares of any one senes
-2-
3
of preferred stock so designated by the Board of Directors shall be
alike in every particular, except that shares of any one series issued
at different times may differ as to the dates from which dividends
thereon shall be cumulative. The voting rights, if any, of each such
series and the preferences and relative, participating, optional and
other special rights of each such series and the qualifications,
limitations and restrictions thereof, if any, may differ from those of
any and all other series at any time outstanding; and the Board of
Directors of the Corporation is hereby expressly granted authority to
fix, by resolutions duly adopted prior to the issuance of any shares of
a particular series of preferred stock so designated by the Board of
Directors, the voting powers of stock of such series, if any, and the
designations, preferences and relative, participating, optional and
other special rights and the qualifications, limitations and
restrictions thereof, if any, for such series, including without
limitation the following:
(a) The distinctive designation of and the number of
shares of preferred stock which shall constitute such series
provided that such number may be increased (but not above the
total number of authorized shares of preferred stock) or
decreased (but not below the number of shares thereof then
outstanding) from time to time by like action of the Board of
Directors;
(b) The rate and time at which, and the terms and
conditions upon which, dividends, if any, on preferred stock of
such series shall be paid, the extent of the preference or
relation, if any, of such dividends to the dividends payable on
any other series of preferred stock or any other class of stock
of the Corporation and whether such dividends shall be
cumulative or noncumulative;
(c) The right, if any, of the holders of preferred stock
of such series to convert the same into, or exchange the same
for, shares of any other class of stock or any series of any
class of stock of the Corporation and the terms and conditions
of such conversion or exchange;
(d) Whether or not preferred stock of such series shall
be subject to redemption, and the redemption price or prices and
the time or times at which and the terms and conditions upon
which, preferred stock of such series may be redeemed;
(e) The rights, if any, of the holders of preferred
stock of such senes upon the dissolution, liquidation or
winding-up of the Corporation, whether voluntary or involuntary;
(f) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the preferred
stock of such series; and
(g) The voting powers, if any, of the holders of such
series of preferred stock which may, without limiting the
generality of the foregoing,
-3-
4
include the right, voting as a series by itself or together with
any other series of the preferred stock as a class, (i) to vote
more or less than one vote per share on any or all matters voted
by the stockholders and (ii) to elect one or more directors of
the Corporation if there has been a default in the payment of
dividends on any one or more series of the preferred stock or
under such other circumstances and upon such other condition as
the Board of Directors may fix.
2. The Board may, in establishing any series of preferred stock,
provide limitations on the payment of dividends on the common stock
while any dividends on shares of preferred stock are accrued and unpaid.
D. PROVISIONS RELATING TO ALL CLASSES OF STOCK. The Corporation may
issue shares of its preferred stock or common stock from time to time for such
consideration (not less than the par value thereof) as may be fixed from time to
time by the Board. Any and all shares so issued, for which such consideration
has been paid or delivered to the Corporation, shall be deemed fully paid shares
and shall not be liable to any further call or assessments thereon, and the
holders of such shares shall not be liable for any further payments in respect
of such shares.
FIFTH: 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 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 a majority of the whole board, to designate one or more
committees, each committee to consist of one or more of the directors of
the Corporation.
When and as authorized by the stockholders in accordance with
statute, to sell lease or exchange all or substantially all of the
property and assets of the Corporation, including its good will and its
corporate franchises, upon such terms and conditions and for such
consideration, which may consist, in whole or in part, of money or
property including shares of stock in, and/or other securities of, any
other corporation or corporations, as its Board of Directors shall deem
expedient and for the best interests of the Corporation.
SIXTH: No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (1) for any breach of the director's duty of
loyalty to the Corporation or its stockholders (2) for
-4-
5
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) under Section 174 of the Delaware General
Corporation Law, or (4) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law hereafter is
amended to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation, in addition to
the limitations on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended Delaware General Corporation Law. Any
repeal or modification of this Article shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or modification.
SEVENTH:
A. Each person who was or is made a party to or is threatened to be made
a party to or is involved in any 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 or officer 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 the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than 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
subsection B of this Article, the Corporation shall indemnify any such person
seeking indemnification in (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification conferred in this
Article shall be a contract right and shall include the right to connection
with a proceeding (or part thereof) initiated by such person only if such
proceeding 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 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 Article or otherwise. The Corporation may, by action
of
-5-
6
its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
B. If a claim under subsection A of this Article is not paid in full by
the Corporation within thirty (30) 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 of 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 this Restated 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. As used in this Article, references to "the Corporation" shall
include, in addition to the resulting or surviving corporation, any constituent
corporation absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees and agents, so that any person who is or was a
director, officer, employee or agent of such constituent 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.
-6-
7
F. If this Article or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director, officer, employee and agent of the
Corporation as to expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including a grand jury
proceeding and an action by the Corporation, to the fullest extent permitted by
any applicable portion of this Article that shall not have been invalidated or
by any other applicable law.
EIGHTH: 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.
NINTH: Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. 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. Elections of directors
need not be by written ballot unless the by-laws of the Corporation shall so
provide.
TENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated 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.
4. This Restated Certificate of Incorporation was duly adopted by vote
of the stockholders in accordance with Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
-7-
8
IN WITNESS WHEREOF, said Curtis Industries, Inc. has caused this
certificate to be signed by Maurice P. Andrien, Jr., its President, and attested
by Scott A. Boyle, its Secretary, this 17th day of August, 1992.
CURTIS INDUSTRIES, INC.
By: /s/ Maurice P. Andrien
----------------------------------
Maurice P. Andrien, Jr., President
ATTEST:
By: /s/ Livio M. Borghese
--------------------------------------
Livio M. Borghese, Assistant Secretary
-8-