CERTIFICATE OF INCORPORATION
OF
ALLOU HEALTH & BEAUTY CARE, INC.
It is hereby certified that:
1. The present name of the corporation (hereinafter called the
"Corporation") is ALLOU HEALTH & BEAUTY CARE, INC., which is the name under
which the Corporation was originally incorporated. The date of filing the
original Certificate of Incorporation of the Corporation with the Secretary of
State of the State of Delaware is January 20, 1989.
2. The provisions of the Certificate of Incorporation of the
Corporation, as heretofore amended and/or supplemented, are hereby restated and
integrated into the single instrument without further amendment and without any
discrepancy between the provisions of the Certificate of Incorporation as
heretofore amended and supplemented and the provisions of the said single
instrument hereinafter set forth.
3. The Board of Directors of the Corporation has duly adopted this
Certificate of Incorporation pursuant to the provisions of Section 245 of the
General Corporation Law of the State of Delaware in the form set forth as
follows:
CERTIFICATE OF INCORPORATION
OF
ALLOU HEALTH & BEAUTY CARE, INC.
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FIRST: The name of the corporation (hereinafter called the
"Corporation") is ALLOU HEALTH & BEAUTY CARE, INC.
SECOND: The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington, County of New Castle; and the name of the registered
agent of the Corporation in the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the 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.
FOURTH: The aggregate number of shares which the Corporation shall have
authority to issue is 18,200,000, divided into three classes: (i) 15,000,000
shares of Class A Common Stock, par value $.001 per share (the "Class A Common
Stock"); (ii) 2,200,000 shares of Class B Common Stock, par value $.001 per
share (the "Class B Common Stock"); (iii) 1,000,000 shares preferred stock, par
value $.001 per share (the "Preferred Stock") (the Class A Common Stock and the
Class B Common Stock collectively referred to herein as the "Common Stock").
A. Common Stock
1. General. The voting, dividend and liquidation rights of the
holders of the Common Stock are subject to and qualified by the rights
of the holders of the Preferred Stock of any class as may be designated
by the Board of Directors upon any issuance of the Preferred Stock of
any class.
2. Voting. Each holder of Class A Common Stock shall have one
vote in respect of each share of Class A Common Stock held by him and
each holder of Class B Common Stock shall have five votes in respect of
each share of Class B Common Stock held by him on all matters voted
upon by the stockholders.
3. Dividends. Dividends may be declared and paid on the Common
Stock from funds lawfully available therefor as and when determined by
the Board of Directors and subject to any preferential dividend rights
of any then outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the
Company, whether voluntary or involuntary, holders of Common Stock will
be entitled to receive all assets of the Company available for
distribution to its stockholders, subject to any preferential rights of
any then outstanding Preferred Stock.
5. Transferability. All outstanding shares of Common Stock
shall be freely transferable.
6. Conversion of Class B Common Stock. All outstanding shares
of Class B Common Stock shall be convertible at all times, at the
election of the holder thereof, into an equal number of fully paid and
nonassessable shares of Class A Common Stock by delivery of written
notice by the holder of such shares of Class B Common Stock to the
Corporation, or its transfer agent, of his election together with the
certificate(s) representing the shares to be converted. Thereupon, the
Corporation, or its transfer agent, as the case may be, shall exchange
such certificate(s) for a certificate or certificates representing an
equal number of shares of Class A Common Stock. Shares of Class B
Common Stock shall be deemed to have been converted immediately prior
to the close of business on the day upon which the Corporation, or its
transfer agent, received such shares for conversion. The person
entitled to receive the Class A Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder of
such Class A Common Stock at such time. Thereafter, the shares of Class
B Common Stock so converted shall be authorized and unissued shares of
Class B Common Stock of the Corporation.
With respect to any shares of Class B Common Stock converted
into Class A Common Stock, until surrender as hereinafter provided,
each outstanding certificate, which prior to such conversion
represented shares of Class B Common Stock, shall be deemed for all
purposes to evidence ownership of the number of shares of Class A
Common Stock into which the shares of Class B Common Stock shall have
been converted. Upon surrender to the Corporation, or its transfer
agent, for cancellation of the certificate or certificates representing
such shares, the holder thereof shall be entitled to receive a
certificate or certificates representing the number of shares of Class
A Common Stock to which such holder is entitled.
B. Preferred Stock
The relative rights, preferences and limitations of the shares
of Preferred Stock are as follows:
The Preferred Stock may be issued, from time to time, in one
or more series, with such designations, preferences and relative
participating, optional or other rights, qualifications, limitations or
restrictions thereof as shall be stated and expressed in the resolution
or resolutions providing for the issue of such series adopted by the
Board of Directors from time to time, pursuant to the authority herein
given, a copy of which resolution or resolutions shall have been set
forth in a Certificate made, executed, acknowledged, filed and recorded
in the manner required by the laws of the State of Delaware in order to
make the same effective. Each series shall consist of such number of
shares as shall be stated and expressed in such resolution or
resolutions providing for the issuance of the stock of such series. All
shares of any one series of Preferred Stock shall be alike in every
particular. The authority of the Board of Directors with respect to
each series shall include, but not be limited to, determination of the
following:
1. the number of shares constituting that series and the
distinctive designation of that series;
2. whether the holders of shares of that series shall be
entitled to receive dividends and, if so, the rates of such dividends,
conditions under which and times such dividends may be declared or
paid, any preference of any such dividends to, and the relation to, the
dividends payable on any other class or classes of stock or any other
series of the same class and whether dividends shall be cumulative or
noncumulative and, if cumulative, from which date or dates;
3. whether the holders of shares of that series shall have
voting rights in addition to the voting rights provided by law and, if
so, the terms of such voting rights;
4. whether shares of that series shall have conversion or
exchange privileges into or for, at the option of either the holder or
the Corporation or upon the happening of a specified event, shares of
any other class or classes or of any other series of the same or other
class or classes of stock of the Corporation and, if so, the terms and
conditions of such conversion or exchange including provision for
adjustment of the conversion or exchange rate in such events as the
Board of Directors shall determine;
5. whether shares of that series shall be redeemable and, if
so, the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable and the amount per
share payable in case redemption, which amount may vary under different
conditions and at different redemption dates;
6. whether shares of that series shall be subject to the
operation of a retirement or sinking fund and, if so subject, the
extent to and the manner in which it shall be applied to the purchase
or redemption of the shares of that series, and the terms and
provisions relative to the operation thereof;
7. the rights of shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and any preference of any such rights to, and the relation
to, the rights in respect thereto of any class or classes of stock or
any other series of the same class; and
8. whether shares of that series shall be subject or entitled
to any other preferences, and the other relative, participating,
optional or other special rights and qualifications, limitations or
restrictions of shares of that series and, if so, the terms thereof;
provided, however, that if the stated dividends and amounts payable on
liquidation with respect to shares of any series of Preferred Stock are
not paid in full, then the shares of all series of Preferred Stock
shall share ratably in the payment of dividends including
accumulations, if any, in accordance with the sums which would be
payable on such shares if all dividends were declared and paid in full,
and in any distribution of assets (other than by way if dividends) in
accordance with the sums which would be payable on such distribution if
all sums payable were discharged in full.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: 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
ss. 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
ss. 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.
SEVENTH: 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 of its
stockholders or any class thereof, as the case may be, it is further provided:
A. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be fixed by, or in the
manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total
number of directors" shall be deemed to have the same meaning, to wit, the total
number of directors which the Corporation would have if there were no vacancies.
No election of directors need be by written ballot.
B. After the original or other Bylaws of the Corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of ss. 109 of the General Corporation Law of the State of Delaware,
and, after the Corporation has received any payment for any of its stock, the
power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised
by the Board of Directors of the Corporation; provided, however, that any
provision for the classification of directors of the Corporation for staggered
terms pursuant to the provisions of subsection (d) of ss. 141 of the General
Corporation Law of the State of Delaware shall be set forth in an initial Bylaw
or in a Bylaw adopted by the stockholders entitled to vote of the Corporation
unless provisions for such classification shall be set forth in this certificate
of incorporation.
C. Whenever the Corporation shall be authorized to issue only one class
of stock, each outstanding share shall entitle the holder thereof to notice of,
and the right to vote at, any meeting of stockholders. Whenever the Corporation
shall be authorized to issue more than one class of stock, no outstanding share
of any class of stock which is denied voting power under the provisions of the
certificate of incorporation shall entitle the holder thereof to the right to
vote at any meeting of stockholders except as the provisions of paragraph (2) of
subsection (b) of ss. 242 of the General Corporation Law of the State of
Delaware shall otherwise require; provided, that no share of any such class
which is otherwise denied voting power shall entitle the holder thereof to vote
upon the increase or decrease in the number of authorized shares of said class.
EIGHTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of ss. 102 of the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented.
NINTH: The Corporation shall, to the fullest extent permitted by ss.
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
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 of incorporation are granted subject to the provisions of this
Article TENTH.
