CERTIFICATE OF INCORPORATION
OF
POSITIVE ID WHOLESALE INC.
ARTICLE 1: The name of the Corporation is POSITIVE ID WHOLESALE INC.
ARTICLE 2: The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
ARTICLE 3: The purpose of the Corporation is to engage in any lawful
act or activities for which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE 4: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 1,125 of which 1,000 shall be
common stock, with a par value of $.01 per share ("Common Stock"), and of which
125 shares shall be preferred stock, with a par value of $.01 per share
("Preferred Stock"), issuable in one or more series.
The designations and the powers, preferences and rights, and
the qualifications, limitations or restrictions of the shares of each class or
stock are, so far as not inconsistent
with the provisions of this Certificate of Incorporation or the General
Corporation Law of the State of Delaware, as follows:
PREFERRED STOCK
(a) The Preferred Stock may be issued from time to time in one or
more series. All shares of Preferred Stock shall be identical and of equal rank
except in respect to the particulars that may be fixed by the Board of Directors
as provided herein, and all shares of each series of Preferred Stock shall be
identical and of equal rank except as to the time from which cumulative
dividends, if any, thereof shall be cumulative.
(b) Subject to the limitations set forth herein and any limitations
prescribed by law, the Board of Directors is expressly authorized, prior to
issuance of any series of Preferred Stock, to fix by resolution or resolutions
providing for the issue of any series the number of shares included in such
series and the designation, relative powers, preferences and rights and the
qualifications, limitations or restrictions of such series. Pursuant to the
foregoing general authority vested in the Board of Directors, but not in
limitation of the powers conferred on the Board of Directors thereby and by the
General Corporation Law of the State of Delaware, the Board of Directors is
expressly authorized to determine with respect to each series of Preferred
Stock:
(i) the designation or designations of such series and the
number of shares (which number from time to time may
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be decreased by the Board of Directors, but not below the number of such shares
then outstanding, or may be increased by the Board of Directors, but not above
any number or limit specified in such series) constituting such series;
(ii) the rate or amount and times at which, and preferences and
conditions under which, dividends shall be payable on shares of such series, the
status of such dividends as cumulative or noncumulative, the date or dates from
which dividends, if cumulative, shall accumulate, and the status of such shares
as participating or nonparticipating after the payment of dividends as to which
such shares are entitled to any preference;
(iii) the rights and preferences, if any, of the holders of
shares of such series upon the liquidation, dissolution or winding up of the
affairs of, or upon any distribution of the assets of, the Corporation, which
amount may vary depending upon whether such liquidation, dissolution or winding
up is voluntary or involuntary and, if voluntary, may vary at different dates,
and the status of the shares of such series as participating or nonparticipating
after the satisfaction of any such rights and preferences;
(iv) the full or limited voting rights, if any, to be provided
for shares of such series, in addition to the voting rights provided by law;
(v) the times, terms and conditions, if any, upon which shares
of such series shall be subject to redemption,
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including the amount the holders of shares of such series shall be entitled to
receive upon redemption (which amount may vary under different conditions or at
different redemption dates);
(vi) the amount, terms, conditions and manner of operation of
any purchase, retirement or sinking fund to be provided for the shares of such
series;
(vii) the rights, if any, of holders of shares of such series to
convert such shares into, or to exchange such shares for, shares of any other
class or classes or of any other series of the same class, the prices or rates
of conversion or exchange, and adjustments thereto, and any other terms and
conditions applicable to such conversion or exchange;
(viii) the limitations, if any, applicable while such series is
outstanding on the payment or dividends or making of distributions on, or the
acquisition or redemption of, Common Stock or any other class of shares ranking
junior as to dividends or upon liquidation, to the shares of such series;
(ix) the conditions or restrictions, if any, upon the issuance
of any additional shares (including additional shares of such series or any
other series or of any other class) ranking on a parity with or prior to the
shares of, such series either as to dividends or upon liquidation; and
(x) any other relative powers, preferences, participation
rights, options or other special rights, and the
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qualifications, limitations or restrictions thereof, of shares of such series.
COMMON STOCK
Subject to all of the rights of the Preferred Stock, and except as may be
expressly provided with respect to the Preferred Stock herein, by law or by the
Board of Directors pursuant to this Article 4:
(a) Common Stock may be issued from time to time for such
consideration as may be fixed from time to time by the Board of Directors of the
Corporation. Except as otherwise provided herein, all shares of Common Stock
shall be identical and shall entitle the holders thereof to the same rights and
privileges;
(b) dividends may be declared and paid or set apart for payment upon
the Common Stock out of any assets or funds of the Corporation legally available
for the payment of dividends;
(c) the holders of Common Stock shall have the exclusive right to
vote for the election of directors and on all other matters requiring
stockholder action, each share being entitled to one vote; and
(d) upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the net assets of the Corporation shall be
distributed pro rata to the holders of the Common Stock in accordance with their
respective rights and interests.
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PREEMPTIVE RIGHTS
No current or future holder of any stock of the Corporation, whether
heretofore or hereafter issued, shall be entitled as such, as a matter of right,
to subscribe for or purchase any part of any new or additional issue of stock of
any class whatsoever of the Corporation, or of securities (including bonds and
debentures) convertible into stock of any class whatsoever, whether now or
hereafter authorized, or whether issued for cash or other consideration or by
way of dividend.
ARTICLE 5: The name and mailing address of the sole incorporator are
Colleen A. Van Gelder, Esq., c/o Jaeckle, Fleischmann & Mugel, 800 Fleet Bank
Building, 12 Fountain Plaza, Buffalo, New York 14202.
ARTICLE 6: In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly authorized to adopt,
amend or repeal the by-laws of the Corporation.
ARTICLE 7: Election of directors need not be by written ballot unless
the by-laws of the Corporation shall so provide.
ARTICLE 8: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute and this Certificate of
Incorporation, and all rights
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conferred upon stockholders herein are granted subject to this reservation.
ARTICLE 9: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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 Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
The undersigned, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is her act and deed and the facts herein stated are true, and
accordingly has hereunto set her hand this 17th day of January 1996.
/s/ Colleen A. Van Gelder
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Colleen A. Van Gelder
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