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Exhibit 3.37
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
DELIVERED 07:05 PM 06/25/2003
FILED 07:00 PM 06/25/2003
SRV 030421668 - 3486753 FILE
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THE DENOREX COMPANY
INCORPORATED PURSUANT TO THE CERTIFICATE
OF INCORPORATION FILED WITH THE SECRETARY
OF STATE OF DELAWARE ON JANUARY 31, 2002.
The Denorex Company, a Delaware corporation (the "Corporation"), hereby
certifies that this Amended and Restated Certificate of Incorporation has been
duly adopted in accordance with Sections 242 and 245 of the General Corporation
Law of the State of Delaware:
A. The Certificate of Incorporation of the Corporation is hereby amended
and restated in its entirety.
B. The Certificate of Incorporation of the Corporation as amended and
restated herein shall upon filing of this Amended and Restated
Certificate of Incorporation with the Secretary of State of the State
of Delaware read as follows:
1. The name of this Corporation is The Denorex Company.
2. The registered office of this Corporation in the State of Delaware is
located at 2711 Centerville Road, Suite 400, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is Corporation
Service Company.
3. The purpose of this Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
4. CAPITAL STOCK.
4.1. AUTHORIZED SHARES. The total number of shares of capital stock
that the Corporation has authority to issue is one hundred fifty thousand
(150,000) shares, consisting of:
(a) One hundred thirty thousand (130,000) shares of Class A Common
Stock, par value $0.01 per share ("CLASS A COMMON STOCK"); and
(b) Twenty thousand (20,000) shares of Class L Common Stock, par
value $0.01 per share ("CLASS L COMMON STOCK").
The Class A Common Stock and the Class L Common Stock are referred to
collectively as the "COMMON STOCK". Each class of Common Stock shall be referred
to as a class of Common
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Stock. The shares of Common Stock shall have the rights, preferences, privileges
and limitations set forth below.
4.2. DEFINITIONS. As used in this Article 4, the following terms
have the following definitions:
4.2.1. "AFFILIATE" shall mean, with respect to any Person,
any other Person directly or indirectly controlling, controlled by or
under common control with such Person.
4.2.2. "APPLICABLE PRICE PER SHARE" shall mean, (a) at the
Public Offering Time, the Public Offering Price and (b) at the time of
any other Realization Event, a fraction, the numerator of which is the
excess, if any, of (i) the aggregate value of all Common Stock of the
Corporation over (ii) the aggregate Remaining Class L Minimum Payment
Amount with respect to all shares of Class L Common Stock outstanding
and the denominator of which is the aggregate number of shares (on a
fully diluted basis) of Class A Common Stock and Class L Common Stock
(assuming each share of Class L Common Stock outstanding immediately
prior to such Realization Event had been converted into a number of
shares of Class L Common Stock equal to the Class L Conversion
Constant). For the purpose of clause (b)(i) above, (x) if all of the
Common Stock of the Corporation is being Transferred in the subject
Realization Event, the aggregate value of all Common Stock of the
Corporation shall be the consideration to be paid in respect of Common
Stock in such Realization Event, after deducting all commissions, fees
and expenses paid in connection with such Realization Event and (y) if
less than all of the Common Stock of the Corporation is being
Transferred in the subject Realization Event, the aggregate value of
all Common Stock of the Corporation shall be the consideration to be
paid in respect of Common Stock in such Realization Event, after
deducting all commissions, fees and expenses paid in connection with
such Realization Event, with a proportionate adjustment as determined
by the Board of Directors in good faith.
4.2.3. "BOARD OF DIRECTORS" shall mean the Board of
Directors of the Corporation.
4.2.4. "CLASS L BASE AMOUNT" shall mean $1293.74
4.2.5. "CLASS L CONVERSION CONSTANT" shall mean, at any time
as of which it is to be determined, one, adjusted as provided in
Section 4.7 of this Article 4.
4.2.6. "CLASS L CONVERSION FACTOR" shall mean, at any time
as of which it is to be determined, the sum of
(i) the Class L Conversion Constant
PLUS
(ii) the quotient obtained by DIVIDING
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(a) the Remaining Class L Minimum Payment Amount
BY
(b) Applicable Price per Share,
all determined at such time.
4.2.7. "DISTRIBUTIONS" shall mean all distributions made by
the Corporation to holders of Common Stock, whether by dividend or
otherwise (including but not limited to any distributions made by the
Corporation to holders of Common Stock in complete or partial
liquidation of the Corporation or upon a sale of all or substantially
all of the business or assets of the Corporation and its subsidiaries
on a consolidated basis); PROVIDED, HOWEVER, that the following shall
not be a Distribution: (a) any redemption or repurchase by the
Corporation of any shares of Common Stock for any reason, (b) any
recapitalization or exchange of any shares of Common Stock, (c) any
subdivision or increase in the number of (by stock split, stock
dividend or otherwise), or any combination in any manner of, the
outstanding shares of Common Stock, or (d) a merger, share exchange or
consolidation after the consummation of which the stockholders of the
Corporation immediately prior to such merger, share exchange or
consolidation effectively have the power to elect a majority of the
board of directors of the surviving corporation, or its parent
corporation.
4.2.8. "PERSON" shall mean any individual, partnership,
corporation, association, trust, joint venture, unincorporated
organization or other entity.
4.2.9. "PUBLIC OFFERING PRICE" shall mean the price per
share received by the Corporation in connection with the sale of shares
of Class A Common Stock to the public at the Public Offering Time
(taking into account any subdivision, increase or combination of the
Corporation's common stock in connection with the public offering), net
of any expenses incurred and any underwriting commissions or
concessions paid or allowed by the Corporation in connection therewith.
4.2.10. "PUBLIC OFFERING TIME" shall mean the time of the
initial sale of shares of Class A Common Stock (taking into account any
subdivision, increase or combination of the Corporation's Common Stock
in connection with the public offering) of the Corporation pursuant to
an underwritten initial public offering of such shares registered with
the Securities and Exchange Commission and immediately prior to any
transfer of beneficial ownership of such shares in such offering.
4.2.11. "QUALIFIED INSTITUTIONAL INVESTOR" shall mean TSG3
L.P. and its Affiliates.
4.2.12. "REALIZATION EVENT" shall mean the Transfer of Common
Stock.
4.2.13. "REMAINING CLASS L MINIMUM PAYMENT AMOUNT" shall
mean, with respect to any share of Class L Common Stock at any time the
amount that would then be
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required to be distributed with respect to such share pursuant to
Section 4.6.1 of this Article 4 in order for no further Distributions
to be payable with respect to such share pursuant to such Section
4.6.1.
4.2.14. "TRANSFER" shall mean a sale, transfer or other
disposition for value.
4.3. SHARES IDENTICAL. Except as otherwise provided in this Article
4, for purposes of this Article 4, all shares of Common Stock shall, to the
fullest extent permitted by applicable law, be identical in all respects and
shall entitle the holders thereof to the same rights, privileges and preferences
and shall be subject to the same qualifications, limitations and restrictions.
4.4. VOTING RIGHTS. Subject to the powers, preferences and rights
of any class of stock (or any series thereof) having any preference or priority
over, or rights superior to, the Common Stock that the Corporation may hereafter
become authorized to issue, to the fullest extent permitted by applicable law,
and except as otherwise expressly provided in this Certificate of Incorporation,
with respect to each matter submitted to a vote of the stockholders of the
Corporation, (i) the holders of the Class A Common Stock and Class L Common
Stock shall vote together as a single class; (ii) each holder of Class A Common
Stock shall be entitled to one (1) vote for each share of Class A Common Stock
held by such holder; and (iii) the holder of each share of Class L Common Stock
issued and outstanding shall be entitled to that number of votes equal to the
Class L Conversion Constant.
4.4.1. Notwithstanding the provisions of Section 242(b)(2)
of the Delaware Corporation Law or anything to the contrary in this
Article 4, the number of authorized shares of any class or classes of
capital stock of the Corporation may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the outstanding shares of Common
Stock without a vote by class.
4.5. DIRECTORS. The number of directors constituting the entire
Board of Directors shall be two or such greater number determined as provided in
the Bylaws of the Corporation, in either case subject to reduction as provided
in Section 4.5.2 of this Article 4. The holders of record of the outstanding
shares of Common Stock, voting as a single class, shall be entitled to elect
each of the directors constituting the entire Board of Directors as provided in
the voting agreement contained in Section 2 of the Stockholders Agreement dated
on or about November 6, 2002, as amended and in effect from time to time, among
this Corporation and certain of its Stockholders as defined therein.
4.5.1. Each director shall be entitled to one vote on all
matters to be voted on by the directors.
4.5.2. Any vacancy on the Board of Directors shall be filled
only by vote of the holders of a majority of the outstanding shares of
Common Stock, voting as a single class. The Board of Directors shall be
deemed to be duly constituted notwithstanding one or more vacancies in
its membership, whether because of the failure of the stockholders to
elect the full number of directors to which such class is entitled or
otherwise. Any such vacancy shall automatically reduce the Number of
Directors PRO TANTO, until such
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time as the holders of Common Stock shall have exercised their right to
elect a director to fill such vacancy, whereupon the Number of
Directors shall be automatically increased PRO TANTO.
4.6. DISTRIBUTIONS. All Distributions shall be made to the holders
of Common Stock in the following order of priority.
4.6.1. First, the holders of the shares of Class L Common
Stock (other than shares concurrently being converted into Class A
Common Stock), as a single and separate class, shall be entitled to
receive all Distributions until there has been paid with respect to
each such share from amounts then and previously distributed pursuant
to this Section 4.6.1 an amount equal to the Class L Base Amount plus
an amount sufficient to generate an internal rate of return thereon
equal to eight (8%) per cent per annum, compounded quarterly. Such
internal rate of return shall be calculated in accordance with accepted
financial practices, treating the Class L Base Amount of each share
that is outstanding as of June 25, 2003 as having been paid for on June
25, 2003 and each share that shall be issued after June 25, 2003 as
having been paid for on the date on which such share shall have been
originally issued by the Corporation, and each Distribution with
respect to the Class L Common Stock as having been made on the date it
is actually paid by the Corporation.
4.6.2. Second, after the full required amount of
Distributions have been made pursuant to Section 4.6.1 above, all
holders of the shares of Common Stock, as a single class, shall
thereafter be entitled to receive all remaining Distributions pro rata
based on the number of outstanding shares of Common Stock; PROVIDED
that for purposes of this Section 4.6.2, each share of Class L Common
Stock shall be deemed to have been converted into a number of shares of
Class A Common Stock equal to the Class L Conversion Constant.
4.6.3. All Distributions pursuant to Sections 4.6.1 and
4.6.2 shall be made ratably among the holders of the class or classes
of Common Stock in question, based on the number of shares of such
class held by such holders.
4.7. STOCK SPLITS AND STOCK DIVIDENDS. The Corporation shall not in
any manner subdivide or increase the number of (by stock split, stock dividend
or other similar manner), or combine in any manner, the outstanding shares of
Class L Common Stock. The Corporation shall not in any manner subdivide or
increase the number of (by stock split, stock dividend or other similar manner),
or combine in any manner, the outstanding shares of Class A Common Stock unless
a proportional adjustment is made to the Class L Conversion Constant.
4.8. Mandatory Conversion of Class L Common Stock.
4.8.1. CONVERSION IN CONNECTION WITH PUBLIC OFFERING.
Immediately prior to the Public Offering Time, without any action by
the Board of Directors or any stockholder of the Corporation, each
outstanding share of Class L Common Stock shall automatically convert
into a number of shares of Class A Common Stock equal to the Class L
Conversion Factor at the time of conversion.
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4.8.2. CONVERSION IN CONNECTION WITH A REALIZATION EVENT. At
any time, in connection with a Realization Event, upon a vote of the
Board of Directors each outstanding share of Class L Common Stock shall
automatically convert into a number of shares of Class A Common Stock
equal to the Class L Conversion Factor at the time of conversion; and
such vote may be taken prior to such Realization Event provided that
the effectiveness thereof and the conversion of shares effected thereby
are conditioned and made effective upon the occurrence of such
Realization Event.
4.8.3. FRACTIONAL SHARES, ETC. Upon conversion under Section
4.8.1 or 4.8.2 above, fractional shares shall be converted into
equivalent fractional shares of Class A Common Stock (or, at the
discretion of the Board of Directors, eliminated in return for payment
therefor in cash at the fair market value thereof, as determined in
good faith by the Board of Directors). No Distributions shall be or
become payable on any shares of Class L Common Stock pursuant to
Section 4.6 of this Article 4 at or following such conversion. From and
after such conversion, such shares of Class L Common Stock shall be
retired and shall not be reissued, and upon the filing of a certificate
in accordance with Section 243 of the General Corporation Law of the
State of Delaware, the authorized shares of Class L Common Stock shall
be eliminated.
4.9. EFFECT OF CONVERSION. Upon conversion of any share of Common
Stock, the holder shall surrender the certificate evidencing such share to the
Corporation at its principal place of business. Promptly after receipt of such
certificate, the Corporation shall issue and send to such holder a new
certificate, registered in the name of such holder, evidencing the number of
shares of Class A Common Stock into which such share has been converted. From
and after the time of conversion of any share of Common Stock, the rights of the
holder thereof as such shall cease; the certificate formerly evidencing such
share shall, until surrendered and reissued as provided above, evidence the
applicable number of shares of the applicable class of Common Stock; and such
holder shall be deemed to have become the holder of record of the applicable
number of shares of the applicable class of Common Stock.
4.10. REPLACEMENT. Upon receipt of an affidavit of the registered
owner of one or more shares of any class of Common Stock (or such other evidence
as may be reasonably satisfactory to the Corporation) with respect to the
ownership and the loss, theft, destruction or mutilation of any certificate
evidencing such shares of Common Stock, and in the case of any such loss, theft
or destruction, upon receipt of indemnity reasonably satisfactory to the
Corporation (it being understood that if the holder is a Qualified Institutional
Investor, or any other holder of shares of Common Stock of the Corporation which
is an entity regularly engaged in the business of investing in companies and
meets such requirements of creditworthiness as may reasonably be imposed by the
Corporation in connection with the provisions of this paragraph, its own
agreement will be satisfactory), or, in the case of any such mutilation upon
surrender of such certificate, the Corporation shall execute and deliver in lieu
of such certificate a new certificate of like kind representing the number of
shares of such class represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
4.11. NOTICES. All notices referred to herein shall be in writing,
shall be delivered personally or by first class mail, postage prepaid, and shall
be deemed to have been given when
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so delivered or mailed to the Corporation at its principal executive offices and
to any stockholder at such holder's address as it appears in the stock records
of the Corporation (unless otherwise specified in a written notice to the
Corporation by such holder).
4.12. PROHIBITION ON DISTRIBUTIONS CONSTITUTING TAXABLE EVENTS.
Notwithstanding anything to the contrary in this Article 4, the Corporation
shall not, without the written approval of the holders of a majority of the
shares of Class L Common Stock or, if there is no Class L Common Stock then
outstanding, the holders of a majority of the Class L Common Stock at the time
such Common Stock was converted into Class A Common Stock, pay any dividend or
make any other distribution on any share of capital stock or other security or
interest in the Corporation other than Class L Common Stock, or take any other
action, so long as any share of Class L Common Stock is outstanding and for
three years thereafter, if the effect of such dividend, distribution or action
might be to make (a) an increase of the Remaining Class L Minimum Payment
Amount, (b) a conversion of the Class L Common Stock into Class A Common Stock
or (c) an adjustment of the Class L Conversion Factor a taxable event to the
holders of the Class L Common Stock. No amendment to the provisions of this
Section 4.12 shall be effective without the prior written consent of the holders
of a majority of the then outstanding shares of Class L Common Stock or, if
there is no Class L Common Stock then outstanding, the holders of a majority of
the Class L Common Stock at the time such Common Stock was converted into Class
A Common Stock.
5. The election of directors need not be by ballot unless the Bylaws shall
so require.
6. In furtherance and not in limitation of the power conferred upon the
Board of Directors by law, the Board of Directors shall have power to make,
adopt, alter, amend and repeal from time to time Bylaws of this Corporation,
subject to the right of the stockholders entitled to vote with respect thereto
to alter and repeal by-laws made by the Board of Directors.
7. A director of this Corporation shall not be liable to this Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent that exculpation from liability is not permitted
under the General Corporation Law of the State of Delaware as in effect at the
time such liability is determined. No amendment or repeal of this Article 8
shall apply to or have any effect on the liability or alleged liability of any
director of this Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
8. This Corporation shall, to the maximum extent permitted from time to
time under the law of the State of Delaware, indemnify and upon request shall
advance expenses to any person who is or was a party or is threatened to be made
a party to any threatened, pending or completed action, suit, proceeding or
claim, whether civil, criminal, administrative or investigative, by reason of
the fact that such person is or was or has agreed to be a director or officer of
this Corporation or while a director or officer is or was serving at the request
of this Corporation as a director, officer, partner, trustee, employee or agent
of any corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against expenses
(including attorney's fees and expenses), judgments, fines, penalties and
amounts paid in settlement incurred in connection with the investigation,
preparation to defend or defense of such action, suit, proceeding or claim;
PROVIDED, HOWEVER, that the foregoing shall
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not require this Corporation to indemnify or advance expenses to any person in
connection with any action, suit, proceeding, claim or counterclaim initiated by
or on behalf of such person. Such indemnification shall not be exclusive of
other indemnification rights arising under any by-law, agreement, vote of
directors or stockholders or otherwise and shall inure to the benefit of the
heirs and legal representatives of such person. Any person seeking
indemnification under this Article 9 shall be deemed to have met the standard of
conduct required for such indemnification unless the contrary shall be
established. Any repeal or modification of the foregoing provisions of this
Article 9 shall not adversely affect any right or protection of a director or
officer of this Corporation with respect to any acts or omissions of such
director or officer occurring prior to such repeal or modification.
9. The books of this Corporation may (subject to any statutory
requirements) be kept outside the State of Delaware as may be designated by the
Board of Directors or in the Bylaws of this Corporation.
10. If at any time this Corporation shall have a class of stock registered
pursuant to the provisions of the Securities Exchange Act of 1934, for so long
as such class is so registered, any action by the stockholders of such class
must be taken at an annual or special meeting of stockholders and may not be
taken by written consent.
11. This Corporation shall not be governed by Section 203 of the General
Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by its Vice President as of
this 25th day of June, 2003.
/s/ Yasser Toor
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Yasser Toor
Vice President