**RESTATED CERTIFICATE OF INCORPORATION****OF****SPARTECH CORPORATION**     This Restated Certificate of Incorporation of Spartech Corporation was duly adopted by theBoard of Directors of the Corporation in accordance with the provisions of Section 245 of theGeneral Corporation Law of the State of Delaware. The Corporation was originally incorporated asPermaneer Corporation of Delaware, and its original Certificate of Incorporation was filed with theSecretary of State of Delaware on April 23, 1968. This Restated Certificate of Incorporationrestates and integrates and does not further amend the provisions of the Corporation’s Certificateof Incorporation as heretofore restated, amended or supplemented, and there is no discrepancybetween those provisions and the provisions of this Restated Certificate of Incorporation.     FIRST: The name of the corporation (which is hereinafter referred to as the“Corporation”) is SPARTECH CORPORATION.     SECOND: The registered office of the Corporation in the State of Delaware is locatedat 1209 Orange Street in the City of Wilmington, County of New Castle. The name and address of itsregistered agent at such address is The Corporation Trust Company.     THIRD: The purpose of the corporation is to engage in any lawful act or activity forwhich corporations may be organized under the General Corporation Law of the State of Delaware.     FOURTH: The total number of shares of stock which the Corporation shall have theauthority to issue is Fifty-Nine Million (59,000,000), of which stock Four Million (4,000,000)shares shall be Preferred Stock, $1.00 per share par value, (hereinafter called “Preferred Stock”),and Fifty-Five Million (55,000,000) shares shall be Common Stock, $.75 per share par value(hereinafter called “Common Stock”).     The designations, preferences, privileges and voting powers of the shares of Preferred Stockand Common Stock and the qualifications, limitations, and restrictions thereof, are as follows:     1. Issuance of Preferred Stock in Series. The Board of Directors of the Corporationis authorized to issue the Preferred Stock of the Corporation from time to time, in one or moreSeries, all of which shall rank equally and be identical except with respect to the voting rights,if any, and the distinctive serial designation of each Series; the rate or rates of preferential,non-participating dividends payable in cash annually, semi-annually, or quarterly; the times ofpayment of dividends and whether dividends shall be cumulative and if cumulative the dates fromwhich dividends shall be cumulative; the price or prices and the time at which the same may beredeemed, which shall be not less than the par value thereof, plus dividend arrearages, if any; thenotice of redemption required; the amount and terms of any sinking or purchase fund, if any, forthe purpose or redemption thereof, provided such sinking or purchase fund is payable only out offunds legally available therefor; the terms, conditions, rights, privileges, and other provisions,if any, respecting the conversion of any or all Series of Preferred Stock into Common Stock orshares of another Series of Preferred Stock; and the preferential amount or amounts which shall bepaid to the holders thereof in the event of liquidation, dissolution, or winding up of theCorporation, whether voluntary or involuntary, which shall be not less than the par value plusdividend arrearages, if any.

 

2CERTIFICATE OF DESIGNATIONS OF SERIES Z PREFERRED STOCK     RESOLVED, that pursuant to the authority granted to and vested in the Board of Directorsof the Company (hereinafter called the “Board of Directors” or the “Board”) inaccordance with the provisions of the Company’s Restated Certificate of Incorporation, asamended to date (hereinafter called the “Certificate of Incorporation”), the Board ofDirectors hereby creates a series of Preferred Stock, par value $1 per share (the“Preferred Stock”), of the Company and hereby states the designation and number ofshares, and fixes the relative rights, powers and preferences thereof, and the limitationsthereof, as follows:     (A) Designation and Amount. The shares of such series shall be designated as“Series Z Preferred Stock” (the “Series Z Preferred Stock”) and the number of sharesconstituting the Series Z Preferred Stock shall be 75,000. Such number of shares may beincreased or decreased by resolution of the Board of Directors; provided, that nodecrease shall reduce the number of shares of Series Z Preferred Stock to a number less thanthe number of shares then outstanding plus the number of shares reserved for issuance upon theexercise of outstanding options, rights or warrants or upon the conversion of any outstandingsecurities issued by the Company convertible into Series Z Preferred Stock.     (B) Dividends and Distributions.     (1) Subject to the rights of the holders of any shares of any stock of the Companyranking prior and superior to the Series Z Preferred Stock with respect to dividends, theholders of shares of Series Z Preferred Stock, in preference to the holders of Common Stock,par value $.75 per share (the “Common Stock”) and of any other stock of the Companyranking junior to the Series Z Preferred Stock, shall be entitled to receive, when, as and ifdeclared by the Board of Directors out of funds legally available for such purpose, quarterlydividends payable in cash on the last day of March, June, September and December in each year(each such date being referred to herein as a “Dividend Payment Date”), commencing onthe first Dividend Payment Date after the first issuance of a share or fraction of a share ofSeries Z Preferred Stock, in an amount per share (rounded to the nearest cent) equal to thegreater of (a) $1 or (b) subject to the provision for adjustment hereinafter set forth, 1,000times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate pershare amount (payable in kind) of all non-cash dividends or other distributions other than adividend payable in shares of Common Stock, declared on the Common Stock since the immediatelypreceding Dividend Payment Date or, with respect to the first Dividend Payment Date, since thefirst issuance of any share or fraction of a share of Series Z Preferred Stock. In the eventthe Company shall at any time after April 2, 2001, declare or pay any dividend on the CommonStock payable in shares of Common Stock, or effect a subdivision or combination orconsolidation of the outstanding shares of Common Stock (by reclassification or otherwise thanby payment of a dividend in shares of Common Stock) into a greater or lesser number of sharesof Common Stock, then in each such case the amount to which holders of shares of Series ZPreferred Stock were entitled immediately prior to such event under clause (b) of thepreceding sentence shall be adjusted by multiplying such amount by a fraction, the numeratorof which is the number of shares of Common Stock outstanding immediately after such event andthe denominator of which is the number of shares of Common Stock that were outstandingimmediately prior to such event.     (2) The Company shall declare a dividend or distribution on the Series Z Preferred Stockas provided in paragraph (A) of this Section immediately after it declares a dividend ordistribution on the Common Stock (other than a dividend payable in shares of Common Stock);provided, that, in the event no dividend or distribution shall have been declared onthe Common Stock during the period between any Dividend Payment Date and the next subsequentDividend Payment Date, a dividend of $1 per share on the Series Z Preferred Stock shallnevertheless be payable, when, as and if declared, on such subsequent Dividend Payment Date.     (3) Dividends shall begin to accrue and be cumulative, whether or not earned or declared,on outstanding shares of Series Z Preferred Stock from the Dividend Payment Date nextpreceding the date of issue of such shares, unless the date of issue of such shares is priorto the record date for the first Dividend Payment Date, in which case dividends on such sharesshall begin to accrue from the date of issue of such

 

3shares, or unless the date of issue is aDividend Payment Date or is a date after the record date for the determination of holders ofshares of Series Z Preferred Stock entitled to receive a quarterly dividend and before suchDividend Payment Date, in either of which events such dividends shall begin to accrue and becumulative from such Dividend Payment Date. Accrued but unpaid dividends shall not bearinterest. Dividends paid on the shares of Series Z Preferred Stock in an amount less than thetotal amount of such dividends at the time accrued and payable on such shares shall beallocated pro rata on a share-by-share basis among all such shares at the time outstanding.The Board of Directors may fix a record date for the determination of holders of shares ofSeries Z Preferred Stock entitled to receive payment of a dividend or distribution declaredthereon, which record date shall be not more than 60 days prior to the date fixed for thepayment thereof.     (C) Voting Rights. The holders of shares of Series Z Preferred Stock shall havethe following voting rights;     (1) Each whole share of Series Z Preferred Stock shall entitle the holder thereof to 1000votes on all matters upon which the holders of the Common Stock of the Company are entitled tovote.     (2) Except as otherwise provided herein, in the Certificate of Incorporation or in anyother Certificate of Designations creating a series of Preferred Stock or any similar stock,and except as otherwise required by law, the holders of shares of Series Z Preferred Stock andthe holders of shares of Common Stock and any other capital stock of the Company havinggeneral voting rights shall vote together as one class on all matters submitted to a vote ofstockholders of the Company.     (3) Except as set forth herein, or as otherwise provided by law, holders of Series ZPreferred Stock shall have no special voting rights and their consent shall not be required(except to the extent they are entitled to vote with holders of Common Stock as set forthherein) for taking any corporate action.     (D) Certain Restrictions.     (1) Whenever quarterly dividends or other dividends or distributions payable on theSeries Z Preferred Stock as provided in Section 2 are in arrears, thereafter and until allaccrued and unpaid dividends and distributions, whether or not earned or declared, on sharesof Series Z Preferred Stock outstanding shall have been paid in full, the Company shall not:     (i) declare or pay dividends, or make any other distributions, on any shares of stockranking junior (as to dividends or upon liquidation, dissolution or winding up) to the SeriesZ Preferred Stock;     (ii) declare or pay dividends, or make any other distributions, on any shares of stockranking on a parity (as to dividends or upon liquidation, dissolution or winding up) with theSeries Z Preferred Stock, except dividends paid ratably on the Series Z Preferred Stock andall such parity stock on which dividends are payable or in arrears in proportion to the totalamounts to which the holders of all such shares are then entitled;     (iii) redeem or purchase or otherwise acquire for consideration shares of any stockranking junior (either as to dividends or upon liquidation, dissolution or winding up) to theSeries Z Preferred Stock, provided that the Company may at any time redeem, purchase orotherwise acquire shares of any such junior stock in exchange for shares of any stock of theCompany ranking junior (as to dividends and upon dissolution, liquidation or winding up) tothe Series Z Preferred Stock or rights, warrants or options to acquire such junior stock;     (iv) redeem or purchase or otherwise acquire for consideration any shares of Series ZPreferred Stock, or any shares of stock ranking on a parity (either as to dividends or uponliquidation, dissolution or winding up) with the Series Z Preferred Stock, except inaccordance with a purchase offer made in writing or by publication (as determined by the Boardof Directors) to all holders of such shares upon such terms as the Board of Directors, afterconsideration of the respective annual dividend rates and other relative rights andpreferences of the respective series and classes, shall determine in good faith will result infair and equitable treatment among the respective series or classes.

 

4     (2) The Company shall not permit any subsidiary of the Company to purchase or otherwiseacquire for consideration any shares of stock of the Company unless the Company could, underparagraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and insuch manner.     (E) Reacquired Shares. Any shares of Series Z Preferred Stock purchased orotherwise acquired by the Company in any manner whatsoever shall be retired and cancelledpromptly after the acquisition thereof.     (F) Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution orwinding up of the Company, no distribution shall be made (1) to the holders of the CommonStock or of shares of any other stock of the Company ranking junior, upon liquidation,dissolution or winding up, to the Series Z Preferred Stock unless, prior thereto, the holdersof shares of Series Z Preferred Stock shall have received an amount equal to the greater of(i) $1,000 per share, plus an amount equal to accrued and unpaid dividends and distributionsthereon, whether or not earned or declared, to the date of such payment and (ii) an aggregateamount per share, subject to the provision for adjustment hereinafter set forth, equal to1,000 times the aggregate amount to be distributed per share to holders of shares of CommonStock, or (2) to the holders of shares of stock ranking on a parity upon liquidation,dissolution or winding up with the Series Z Preferred Stock, except distributions made ratablyon the Series Z Preferred Stock and all such parity stock in proportion to the total amountsto which the holders of all such shares are entitled upon such liquidation, dissolution orwinding up. In the event the Company shall at any time after April 2, 2001, declare or payany dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision orcombination or consolidation of the outstanding shares of Common Stock (by reclassification orotherwise than by payment of a dividend in shares of Common Stock) into a greater or lessernumber of shares of Common Stock, then in each such case the aggregate amount to which holdersof shares of Series Z Preferred Stock were entitled immediately prior to such event under theproviso in clause (A) of the preceding sentence shall be adjusted by multiplying such amountby a fraction the numerator of which is the number of shares of Common Stock outstandingimmediately after such event and the denominator of which is the number of shares of CommonStock that were outstanding immediately prior to such event.     (G) Consolidation, Merger, etc. In case the Company shall enter into anyconsolidation, merger, combination or other transaction in which the shares of Common Stockare converted into, exchanged for or changed into other stock or securities, cash and/or anyother property, then in any such case each share of Series Z Preferred Stock shall at the sametime be similarly converted into, exchanged for or changed into an amount per share (subjectto the provision for adjustment hereinafter set forth) equal to 1,000 times the aggregateamount of stock, securities, cash and/or any other property (payable in kind), as the case maybe, into which or for which each share of Common Stock is converted, exchanged or converted.In the event the Company shall at any time after April 2, 2001, declare or pay any dividend onthe Common Stock payable in shares of Common Stock, or effect a subdivision or combination orconsolidation of the outstanding shares of Common Stock (by reclassification or otherwise thanby payment of a dividend in shares of Common Stock) into a greater or lesser number of sharesof Common Stock, then in each such case the amount set forth in the preceding sentence withrespect to the conversion, exchange or change of shares of Series Z Preferred Stock shall beadjusted by multiplying such amount by a fraction, the numerator of which is the number ofshares of Common Stock outstanding immediately after such event and the denominator of whichis the number of shares of Common Stock that were outstanding immediately prior to such event.     (H) No Redemption. The shares of Series Z Preferred Stock shall not be redeemablefrom any holder.     (I) Rank. The Series Z Preferred Stock shall rank, with respect to the paymentof dividends and the distribution of assets upon liquidation, dissolution or winding up of theCompany, senior to the Common Stock.     (J) Amendment. If any proposed amendment to the Certificate of Incorporation(including this Certificate of Designations) would alter, change or repeal any of thepreferences, powers or special rights

 

5given to the Series Z Preferred Stock so as to affectthe Series Z Preferred Stock adversely, then the holders of the Series Z Preferred Stock shallbe entitled to vote separately as a class upon such amendment, and the affirmative vote oftwo-thirds of the outstanding shares of the Series Z Preferred Stock, voting separately as aclass, shall be necessary for the adoption thereof, in addition to such other vote as may berequired by the General Corporation Law of the State of Delaware.     2. Dividends. Subject to the limitations prescribed in this Article Fourth andany further limitations in accordance herewith, the holders of Common Stock shall be entitled toreceive, when and as declared by the Board of Directors of the Corporation, out of the assets ofthe Corporation which are by law available therefor, dividends payable either in cash, in property,or in Common Stock. No dividends other than dividends payable in Common Stock shall be paid onCommon Stock, if cash dividends in full on all outstanding Preferred Stock to which the holdersthereof are entitled shall not have been paid or declared and set apart for payment. Nothingherein contained shall be deemed to limit, curtail or divest the authority of the Board ofDirectors to pay dividends in Common Stock in relation to the Corporation’s authorized and unissuedor treasury Common Stock.     3. Voting Rights. At every meeting of shareholders, each holder of shares of theCorporation, be it Common Stock or Preferred Stock, shall be entitled to one vote for each shareheld. The Common Stock and Preferred Stock shall vote together as one class, except that if andwhenever and as often as dividends on all series of Preferred Stock shall be in arrears in anaggregate amount equivalent to six (6) quarterly dividends on all shares of all Series of PreferredStock at the time outstanding, then and in such event, the holders of all Series of Preferred Stockthen outstanding, voting as a separate class made up of all such Series, shall be entitled at eachmeeting of Shareholders thereafter held for the election of Directors to elect two (2) of the totalnumber of Directors to be elected at such meeting. Such class voting right shall continue untilsuch time as all accumulated dividends on all Series of Preferred Stock at the time outstandinghave been paid or declared and set aside for payment, whereupon such right shall cease until suchtime, if any, as such right shall again accrue as hereinabove provided. While the holders ofPreferred Stock, voting as a class, are entitled to elect two (2) Directors, they shall not beentitled to participate with the holders of the Common Stock in the election of any otherDirectors. In the event of any vacancy occurring in the case of a Director elected by thePreferred Stock voting as a class (unless at the time when such vacancy shall occur, allaccumulated dividends on Preferred Stock shall have been paid or declared and set aside forpayment), a Special Meeting of the holders of all Series of Preferred Stock shall be calledpromptly to fill any such vacancy. Such meeting shall be held within forty days after such call ata place and upon notice as provided for the holding of meetings of shareholders, except that nosuch Special Meeting shall be required to be called if any such vacancy shall occur less thanninety days before the date fixed for the Annual Meeting of Shareholders. At any such meeting ofPreferred Stock, a majority of the outstanding Preferred Stock shall be required to constitute aquorum for the election of the two (2) Directors or to fill any vacancy. The Directors elected bythe class vote of the Preferred Stock shall serve until the next Annual Meeting of the Shareholdersor until their successors shall be elected, and shall qualify, and shall not be removable fromoffice other than by class vote of the Preferred Stock, notwithstanding any by-law otherwiseproviding for removal of directors; provided, however, that whenever during the term of office ofsuch Directors, all accumulated dividends shall have been paid or declared and set aside forpayment, the term of office of such Directors shall forthwith terminate.     Notwithstanding the foregoing, the Board of Directors, in originally fixing the designations,relative rights, preferences and limitations of any series of Preferred Stock, may fix byresolution, with respect to the shares of such series, the powers and rights with respect to votingto the full extent now or hereafter permitted by law, including providing any series of PreferredStock with (i) the right to vote as

 

6a separate class on any matters and (ii) more than one (1) voteper share, in each case as the Board of Directors may determine.     4. Preemptive Rights. No holder of any of the Common Stock or Preferred Stock of theCorporation shall be entitled as of right to purchase or to subscribe for any unissued shares ofany class, or any additional shares of any class to be issued by reason of any increase of theauthorized capital stock of the Corporation of any class, or bonds, certificates of indebtedness,debentures, or other securities convertible into shares of the Corporation or carrying any right topurchase shares of any class, but any such unissued shares, or such additional authorized issue ofany shares, or of other securities convertible into shares or carrying any right to purchaseshares, may be issued and disposed of, pursuant to resolutions of the Board of Directors to suchpersons, firms, corporations or associations and upon such terms as may be deemed advisable by theBoard of Directors in the exercise of its discretion.     5. Limitations. So long as Preferred Stock of any series shall be outstanding, theCorporation shall not, without affirmative vote or written consent of the holders of record of atleast a majority of the shares of all such Series at the time outstanding, whether by an amendmentto the Certificate of Incorporation or by merger or consolidation or in any other manner: (a) increase the total number of authorized shares of Preferred Stock, or authorize anyclass of stock ranking prior to or on a parity with the Preferred Stock either in thepayment of dividends or in the distribution of assets, or (b) alter or change the preferences or limitations with respect to the Preferred Stockin any material respect so as to affect adversely the holders thereof; provided, however,that any such alteration or change affecting a particular Series of Preferred Stock whichdoes not adversely affect the holders of any other Series may be effected by theaffirmative vote or written consent of the holders of record of a majority of the numberof shares at the time outstanding of the particular Series affected by such alteration orchange without the necessity of the class vote or written consent of the holders ofshares of all Series;provided, however, that nothing herein contained shall require such a class vote or consent inconnection with (i) any increase in the total number of authorized shares of Common Stock or (ii)the fixing of any of the specific rights, preferences and limitations of other Series of thePreferred Stock that may be fixed by the Board of Directors, and provided further, that no classvote or written consent of the holders of the Preferred stock or any Series thereof shall berequired, if, at or prior to the time the issuance of any such prior stock is to be made or anysuch change is to take effect, provision is made for the redemption of all Preferred Stock at thetime outstanding or, if only one or more Series is entitled to such class vote, provision is madefor the redemption of all shares of such Series at the time outstanding.     6. Liquidation Rights. In the event of any dissolution, liquidation or winding up ofthe affairs of the Corporation, after payment or provision for payment of the debts and otherliabilities of the Corporation, the holders of each Series of Preferred Stock shall be entitled toshare ratably with other holders in the same Series and to receive, out of the net assets of theCorporation, the preferential amount fixed for their respective series by the resolutions of theBoard of Directors providing for the issuance thereof, plus an amount equal to all dividendarrearages on each such share up to the date fixed for distribution and no more, before anydistribution shall be made to the holders of the Common Stock.     Neither the merger or consolidation of the Corporation, nor the sale, lease or conveyance ofall or a part of its assets, shall be deemed to be a liquidation, dissolution or winding up of theaffairs of the Corporation within the meaning of this Section 6.

 

7     FIFTH: The existence of the Corporation is to be perpetual.     SIXTH: The private property of the stockholders of the Corporation shall not besubject to the payment of corporate debts to any extent whatsoever.     SEVENTH: For the management of the business and for the conduct of the affairs of theCorporation and in further definition, limitation and regulation of the powers of the Corporation,and the directors and the stockholders of the Corporation, it is further provided as follows:     1. The number of directors of the Corporation shall be fixed by, or in the manner provided in,the by-laws of the Corporation, but in no case shall the number of directors be less than three.Directors need not be stockholders. Vacancies in the Board of Directors resulting from anyincrease in the authorized number of directors or from the death, resignation, disqualification ofany director or from any other cause may be filled by a majority of directors then in office,though less than a quorum.     2. A director shall be fully protected in relying in good faith upon the books of account ofthe Corporation or statements prepared by any of its officials as to the value and amount of theassets, liabilities and/or net profits of the Corporation, or any other facts pertinent to theexistence and amount of surplus or other funds from which dividends might properly be declared andpaid.     3. The Corporation shall be entitled to treat the person in whose name any share, right,option, warrant, security or other obligation is registered as the owner thereof, for all purposes,and shall not be bound to recognize any equitable or other claim to or interest in such share,right, option, warrant, security or other obligation on the part of any other person, whether ornot the Corporation shall have notice thereof, save as may be expressly provided by the laws of theState of Delaware.     4. (a) No contract or other transaction between the Corporation and any other corporation andno other act of the Corporation with relation to any other corporation shall, in the absence offraud, in any way be invalidated or otherwise affected by the fact that any one or more of thedirectors or officers of the Corporation are directors or officers or stockholders of, such othercorporation or are pecuniarily or otherwise interested in such other corporation or in suchcontract or other transaction or in such act of the Corporation. Any director of the Corporationindividually, or any firm or association of which any director may be a member, or any corporationof which the director may be a director, officer or stockholder, may be a party to, or may bepecuniarily or otherwise interested in any contract or transaction of the Corporation, providedthat the fact that the director individually or such firm or association or such corporation issuch a party or is so interested shall be disclosed or shall have been known to the Board ofDirectors or a majority of such members thereof as shall be present at any meeting of the Board ofDirectors at which action upon any such contract or transaction shall be taken. Any director ofthe Corporation who is so interested individually, or is a member of any firm or association or isa director, officer or stockholder of any corporation which is a party to such contract or othertransaction, or is so pecuniarily or otherwise interested, may be counted in determining theexistence of a quorum at any meeting of the Board of Directors which shall authorize any suchcontract or transaction, and may vote thereat to authorize or ratify any such contract ortransaction. Any director of the Corporation may vote upon any contract or other transactionbetween the Corporation and any subsidiary or affiliated corporation without regard to the factthat the director is also a director, officer or stockholder of such subsidiary or affiliatedcorporation.     (b) No person shall be liable to the Corporation for any loss or damage suffered by it onaccount of any action taken or omitted to be taken by such person as a director of officer of theCorporation if such person (i) exercised or used the same degree of care and skill as a prudentperson would have exercised or used under the circumstances in the conduct of his or her ownaffairs, or (ii) took or omitted to take, such action in reliance in good faith upon advice ofcounsel for the Corporation

 

8or upon the books of account or reports made to the Corporation by anyof its officials, or by an independent certified public accountant or accountants or by anappraiser selected with reasonable care by the Board of Directors, or by any committee designatedby the Board of Directors or in reliance in good faith upon any other records of the Corporation.     (c) Except as may otherwise be provided by law, any contract, transaction or act of theCorporation or of the Board of Directors which shall be ratified by a majority of a quorum of thestockholders entitled to vote at any annual meeting or at any special meeting called for thatpurpose shall be as valid and binding as though ratified by every stockholder of the Corporation;provided, however, that any failure of the stockholders to approve or ratify such contract,transaction or act when and if submitted, shall not be deemed in any way to invalidate the same orto deprive the Corporation, its directors or officers of their rights to proceed with suchcontract, transaction or act.     5. In furtherance and not in limitation of the powers conferred by statute, the Board ofDirectors is expressly authorized: (a) To make, amend, alter, change, add to or repeal the by-laws of the Corporation inany manner not inconsistent with the laws of the State of Delaware, subject to the powerof the stockholders to amend, alter, change, add to or repeal the by-laws made by theBoard of Directors.  (b) To fix, determine, and vary from time to time the amount to be maintained assurplus and the amount or amounts to be set apart as working capital.  (c) To set apart out of any of the funds of the Corporation legally available fordividends a reserve or reserves for any proper purposes and/or to abolish any suchreserve or reserves in the manner in which created.  (d) To authorize and cause to be executed mortgages and liens, with or without limit asto amount, upon the real or personal property of the Corporation.  (e) From time to time to determine whether and to what extent, at what time and place,and under what conditions and regulations the accounts and books of the Corporation, orany of them, shall be open to the inspection of any stockholder and no stockholder shallhave any right to inspect any account or book or document of the Corporation except asconferred by statute or the by-laws of the Corporation or as authorized by resolution ofthe stockholders or Board of Directors.  (f) To authorize the payment of compensation to the directors for services to theCorporation or any subsidiary or affiliated corporation including fees and expenses forattendance at meetings of the Board of Directors, the Executive Committee and othercommittees and/or salaries for serving as such directors or committee members, and todetermine the amount of such compensation.  (g) From time to time to formulate, establish, promote and carry out, and to amend,alter, change, revise, recall, repeal or abolish, a plan or plans for the participationby all or any of the employees, including directors and officers, of the Corporation, orof any corporation, company, association, trust or organization in which or in thewelfare of which the Corporation has any interest, and those actively engaged in theconduct of the Corporation’s business, in the profits, gains or business of theCorporation or of any branch or division thereof, as part of the Corporation’s legitimateexpenses and for the furnishing to such employees, directors, officers or persons, or anyof them, at the Corporation’s expense, of medical services, insurance against accident,sickness or death, pensions during

 

9   old age, disability or unemployment, education,housing, social services, recreation or other similar aids for their relief or generalwelfare, in such manner and upon such terms and conditions as the Board of Directorsshall determine.  (h) From time to time to formulate, establish and carry out, and to amend, alter,change, revise, recall, repeal or abolish, a plan or plans providing for the purchase ofshares of stock of the Corporation by, or for the granting of options or other rights topurchase shares of stock of the Corporation to, all or any of the officers and otheremployees of the Corporation, upon such terms and conditions and for such considerationas the Board of Directors may determine in good faith to be fair and reasonable.  (i) By resolution passed by a majority of the whole board, to designate one or morecommittees, each committee to consist of two or more directors of the Corporation, which,to the extent provided in the resolution or in the by-laws of the Corporation, shall haveand may exercise the powers of the Board of Directors in the management of the businessand affairs of the Corporation, and may authorize the seal of the Corporation to beaffixed to all papers which may require it. Such committee or committees shall have suchname or names as may be stated in the by-laws of the Corporation or as may be determinedfrom time to time by resolution adopted by the Board of Directors.  (j) When and as authorized by the affirmative vote of the holders of a majority of thestock issued and outstanding having voting power given at a stockholders’ meeting dulycalled for that purpose, or when authorized by the written consent of the holders of amajority of the voting stock issued and outstanding, to sell, lease or exchange all ofthe property and assets of the Corporation, including its good will and its corporatefranchises, upon such terms and conditions and for such consideration, which may be inwhole or in part shares of stock in, and/or other securities of, any other corporation orcorporations, as its Board of Directors shall deem expedient and for the best interestsof the Corporation.  (k) Without the assent or vote of the stockholders, to authorize and issue obligationsof the Corporation, secured or unsecured, to include therein such provisions as toredeemability, convertibility or otherwise, as the Board of Directors, in its solediscretion, may determine, and to authorize the mortgaging or pledging, as securitytherefor, of any property of the Corporation, real or personal, including after-acquiredproperty.     6. At any time and from time to time when authorized by resolution of the Board of Directorsand without any action by its stockholders, the Corporation may issue or sell any shares of itscapital stock of any class or series, whether out of the unissued shares thereof authorized by theCertificate of Incorporation of the Corporation as originally filed or by any amendment thereof orout of shares of its capital stock acquired by it after the issue thereof, and whether or not theshares thereof so issued or sold shall confer upon the holders thereof the right to exchange orconvert such shares for or into other shares of capital stock of the Corporation of any class orclasses or any series thereof. When similarly authorized, but without any action by itsstockholders, the Corporation may issue or grant rights, warrants or options, in bearer orregistered or such other form as the Board of Directors may determine, for the purchase of sharesof the capital stock of any class or series of the Corporation within such period of time, orwithout limit as to time, to such aggregate number of shares, and at such price per share, as theBoard of Directors may determine. Such rights, warrants or options may be issued or grantedseparately or in connection with the issue of any bonds, debentures, notes, obligations or otherevidence of indebtedness or shares of the capital stock of any class or series of the Corporationand for such consideration and on such terms and conditions as the Board of Directors in its solediscretion may determine. In each case the consideration to be received by the Corporation for anysuch shares so issued or sold shall be such as shall be fixed from time to time by resolution ofthe Board of Directors.

 

10Each share of the capital stock of the Corporation issued or sold pursuantto the foregoing provisions of this Paragraph 6 and the full consideration for which in each caseas so fixed by the Board of Directors shall have been paid or delivered to the Corporation, shallbe conclusively deemed to be full paid stock and shall not be liable to any further call orassessments thereon, and the holders thereof shall not be liable for any further payments inrespect thereof. The Corporation may receive in payment, in whole or in part, for any shares ofits capital stock issued or sold by it, cash, labor done, personal property, or real property orleases thereof, and in the absence of actual fraud in the transaction, the judgment of the Board ofDirectors as to the value of the labor, personal property or real property or leases thereof soreceived shall be conclusive.     EIGHTH: A.1. The Corporation shall indemnify and hold harmless, to the fullest extentpermitted by applicable law as its now exists or may hereafter be amended, any person who was or ismade or is threatened to be made a party to or is otherwise involved in any action, suit orproceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason ofthe fact that such person is or was a director or officer of the Corporation, or is or was servingat the request of the Corporation as a director, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise, including service with respect to employeebenefit plans, against all liability and loss suffered and expenses, including attorneys’ fees,judgments, fines and amounts paid in settlement actually and reasonably incurred by such person inconnection with such action, suit or proceeding if such person acted in good faith and in a mannerhe or she reasonably believed to be in or not opposed to the best interests of the Corporation,and, with respect to any criminal action or proceeding, had no reasonable cause to believe his orher conduct was unlawful. The termination of any action, suit or proceeding by judgment, order,settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,create a presumption that the person did not act in good faith and in a manner which he or shereasonably believed to be in or not opposed to the best interests of the Corporation, and, withrespect to any criminal action or proceeding, had reasonable cause to believe that his or herconduct was unlawful. The Corporation shall be required to indemnify a person in connection with aproceeding (or part thereof) initiated by such person only if the proceeding (or part thereof) wasauthorized by the Board of Directors of the Corporation.     2. The Corporation may, in its discretion, in specific cases, extend the indemnificationprovided in the preceding paragraph to any person who was or is made or is threatened to be made aparty to or is otherwise involved in a proceeding by reason of the fact that such person is or wasan employee or agent of the Corporation other than a director or officer of the Corporation.     3. The Corporation may, in its discretion, pay the expenses (including attorneys’ fees)incurred in defending any proceeding in advance of its final disposition upon receipt of anundertaking by or on behalf of the director, officer, employee or agent to repay such amount if itshall ultimately be determined that such person is not entitled to be indemnified by theCorporation as authorized in this Article or otherwise.     4. The indemnification and advancement of expenses provided by, or granted pursuant to, thisArticle shall not be deemed exclusive of any other rights to which those seeking indemnification oradvancement of expenses may be entitled under or any other bylaw, agreement, vote of stockholdersor disinterested directors or otherwise, and shall, unless otherwise provided when authorized orratified, continue as to a person who has ceased to be a director, officer, employee or agent andshall inure to the benefit of the heirs, executors, administrators and personal representatives ofsuch a person. The Corporation may purchase and maintain insurance on behalf of any personentitled to be indemnified under this Article, whether or not the Corporation would have the powerto indemnify such person against such liability under the provisions of this Article.

 

11     5. Any repeal or modification of this Article shall not adversely affect any right orprotection of any person hereunder in respect of any act or omission occurring prior to theeffective time of such repeal or modification.     B. A director of the Corporation shall not be personally liable to the Corporation or itsstockholders for monetary damages for breach of fiduciary duty as a director; provided, however,that the foregoing clause shall not apply to any liability of a director (i) for any breach of thedirector’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions notin good faith or which involve intentional misconduct or a knowing violation of law, (iii) undersection 174 of the General Corporation Law of the Sate of Delaware, or (iv) for any transactionfrom which the director derived an improper personal benefit. The preceding sentence shall noteliminate or limit the liability of a director for any act or omission occurring prior to the timethe preceding sentence became effective. No amendment to or repeal of this Article Eighth shallhave any effect on the liability or right to indemnification of any director for or with respect toany acts or omissions of such director occurring prior to the effective date of such amendment orrepeal.     NINTH: Meetings of the stockholders may be held outside the State of Delaware if theby-laws so provide. The books of the Corporation may be kept (subject to any provision containedin the statutes) outside the State of Delaware at such place or places as may be designated fromtime to time by the Board of Directors or in the by-laws of the Corporation.     TENTH: The powers and authorities conferred in this Certificate of Incorporation or inthe by-laws upon the Board of Directors are in furtherance of, and not in limitation of, thoseconferred by the laws of the State of Delaware.     ELEVENTH: The Corporation reserves the right at any time and from time to time toamend, alter, change or repeal any provision contained in this Certificate of Incorporation in themanner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoevernature conferred upon stockholders, directors or any other persons whomsoever by and pursuant tothis Certificate of Incorporation in its present form or as hereafter amended are granted subjectto the rights reserved in this Article.     TWELFTH: Members of the Board of Directors may be elected either by written ballot ata meeting of shareholders, or by written ballot or by voice vote at a meeting of the Board ofDirectors. The Board of Directors may from time to time make, amend, modify or rescind the By-lawsof the Corporation, except to the extent that such authority is limited to the stockholders of theCorporation by the specific provisions set forth in the By-laws; provided that any By-law made,amended, modified or rescinded by the Board of Directors may be amended, modified or rescinded andany By-law may be made by the stockholders of the Corporation, pursuant to the express provisionsset forth in the By-laws. No action required to be taken or which may be taken at any annual orspecial meeting of stockholders of the Corporation may be taken without a meeting, and the power ofstockholders to consent in writing, without a meeting, to the taking of any action is specificallydenied.     THIRTEENTH: [LEFT BLANK INTENTIONALLY]     FOURTEENTH: Any or all of the directors of the Corporation may be removed only forcause and only by the affirmative vote, at any stockholders’ meeting, of the holders of at least80% of the outstanding stock of the Corporation entitled to vote generally in the election ofdirectors, considered for such purpose as one class, and, in addition, by the affirmative vote ofat least a majority of the outstanding shares of capital stock of the Corporation which are notbeneficially owned by any corporation, person or other entity which is the beneficial owner,directly or indirectly, of 10% or more

 

12of the outstanding shares of capital stock of theCorporation entitled to vote generally in the election of directors, considered for such purpose asone class.     FIFTEENTH: When the Certificate of Incorporation of the Corporation provides for moreor less than one vote for any share, on any matter, every reference in the Certificate ofIncorporation or the Delaware General Corporation Law to a majority or other proportion orpercentage of the shares of stock entitled to vote shall refer to such majority or other proportionor percentage of the votes of such stock.     SIXTEENTH: None of the provisions of Articles TWELFTH, FOURTEENTH or FIFTEENTH or ofthis Article SIXTEENTH of this Certificate of Incorporation, may be amended, modified or rescindedexcept by the affirmative vote of the holders of at least 80% of the capital stock of theCorporation entitled to vote generally in the election of directors, considered for such purpose asone class, and, in addition, by the affirmative vote of the holders of at least a majority of theoutstanding shares of capital stock of the Corporation entitled to vote generally in the electionof directors, considered for such purpose as one class, which are not beneficially owned, directlyor indirectly, by any corporation, person or other entity which is the beneficial owner, directlyor indirectly, of 10% or more of the outstanding shares of such capital stock, considered for suchpurpose as one class.     IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been executed this8th day of March, 2006.      SPARTECH CORPORATION