AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

                                      OF

                          SCHICK TECHNOLOGIES, INC.

 

                  The undersigned, Zvi N. Raskin, hereby certifies that:

 

                  1. He is Secretary of the corporation mentioned herein.

 

                  2. Such corporation is a corporation duly organized and

validly existing under the General Corporation Law of the State of Delaware, as

amended (the "Law").

 

                  3. The name of such corporation is Schick Technologies, Inc.

 

                  4. The date on which the original certificate of incorporation

of such corporation was filed with the Secretary of State of the State of

Delaware is April 25, 1997.

 

                  5. This Amended and Restated Certificate of Incorporation (i)

amends the certificate of incorporation of such corporation so as, among other

things, to clarify provisions regarding the authorized number of directors of

such corporation, the proportion of directors and stockholders required to

approve certain matters, the authorized capital stock of such corporation, the

right of stockholders to act by consent in writing, limitations on persons

entitled to call special meetings of stockholders and limitations on amendment

of such certificate of incorporation and the by-laws of such corporation, and

(ii) integrates into one instrument all of the provisions of such certificate of

incorporation, as so amended, which are effective and operative.

 

                  6. This Amended and Restated Certificate of Incorporation was

duly adopted, effective on May 9, 1997, in accordance with Sections 241 and 245

of the Law and the applicable provisions of such certificate of incorporation.

The corporation has not received any payment for any of its stock.

 

                  7. The provisions of such certificate of incorporation, as so

amended and restated, are as follows:

 

FIRST:            NAME

 

                  The name of this corporation is Schick Technologies, Inc.

(the "Corporation").

 

 

<PAGE>

 

SECOND:           ADDRESS

 

                  The address, including street number, street, city and county,

of the registered office of the Corporation in the State of Delaware is

Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New

Castle. The name of the registered agent of the Corporation in the State of

Delaware at such address is The Corporation Trust Company.

 

 

 

THIRD:            PURPOSE

 

                  The nature of the businesses to be conducted and the purposes

to be promoted by the Corporation is engaging in any lawful act or activity for

which corporations may be organized under the General Corporation Law of the

State of Delaware, as amended (the "Law").

 

FOURTH:           POWERS

 

                  In order to conduct its businesses and promote and accomplish

its purposes, the Corporation shall have and may exercise all of the powers

conferred by the Law upon corporations formed thereunder.

 

FIFTH:            PERPETUAL EXISTENCE

 

                  The Corporation shall have perpetual existence.

 

SIXTH:            CAPITAL STOCK

 

                  The aggregate number of shares of all classes of capital stock

which the Corporation shall have authority to issue is twenty-seven million five

hundred thousand (27,500,000), of which twenty-five million (25,000,000) shall

be common stock, par value $.01 per share (the "Common Stock"), and two million

five hundred thousand (2,500,000) shall be preferred stock, par value $.01 per

share (the "Preferred Stock").

 

                  Shares of Preferred Stock may be issued in one or more series.

The number of shares included in any series of Preferred Stock and the full or

limited voting rights, if any, the cumulative or non-cumulative dividend rights,

if any, the conversion, redemption or sinking fund rights, if any and the

priorities, preferences and relative, participating, optional and other special

rights, if any, in respect of the Preferred Stock, any series of Preferred Stock

or any rights pertaining thereto, and the qualification, limitations or

restrictions on the Preferred Stock, any series of Preferred Stock or any rights

pertaining thereto, shall be those set forth in the resolution or resolutions

providing for the issuance of the Preferred Stock or such series of Preferred

Stock adopted at any time and from time to time by the affirmative vote of a

majority of the total number of directors which the Corporation would have if

there were no vacancies on the Board of Directors of the Corporation (the

"Board") at the time of the vote (the "Whole Board") on such resolution or

resolutions and filed with the Secretary of State of the State of Delaware. The

Board is hereby expressly vested with authority, to

 

 

                                     - 2 -

 

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the full extent now or hereafter provided by the Law, to adopt any such

resolution or resolutions.

 

SEVENTH:  DIRECTORS

 

 

 

                  The business and affairs of the Corporation shall be managed

by or under the direction of the Board. The number of directors shall, at the

time of filing of this Amended and Restated Certificate of Incorporation (this

"Certificate of Incorporation") with the Secretary of State of the State of

Delaware (the "Effective Time"), be the number of directors then in office and

shall thereafter, subject to any limitations which may be set forth in the

By-Laws and subject to the right, if any, of holders of shares of Preferred

Stock outstanding to elect additional directors expressly set forth in the

resolution or resolutions providing for the issuance of such shares, be such

number or such greater or lesser number as may be fixed from time to time and at

any time by a resolution or resolutions adopted by the affirmative vote of a

majority of the Whole Board.

 

                  The directors shall be divided into three classes, each

composed of such number of directors as is nearly equal in number as possible;

provided, however, that no director who has been designated as a member of a

class shall change to a different class or have his membership in a class

changed by the Board or the stockholders to a different class if such classes

cease to be as nearly equal in number as possible due to the death, resignation

or removal of one or more directors of any other class or for any other reason.

 

                  The Board shall, at or before the first meeting of the Board

following the Effective Time, designate which class each director then serving

shall be a member of. The initial term of the first, second and third class

shall continue until the due election and qualification of the successor

directors who are to be members of such class (which may be one or more of the

same directors, if he or they are re-elected) at the first, second and third

annual meeting of stockholders following the Effective Time. Thereafter the term

of each class shall continue until the due election and qualification of the

successor directors who are to be members of such class (which may be one or

more of the same directors, if he or they are re-elected) at each third

following annual meeting of stockholders.

 

                  Except as otherwise provided in the By-Laws, the election of

directors is not required to be conducted by written ballot.

 

                  Except for the right, if any, of holders of shares of

Preferred Stock then outstanding to remove one or more directors expressly set

forth in the resolution or resolutions providing for the issuance of such shares

and except as otherwise required by the law, directors can be removed only for

cause and only upon the affirmative vote of holders of at least 75% of the

voting power of all shares of capital stock of the Corporation then outstanding

entitled to vote generally for the election of directors.

 

                  Except for the right, if any, of holders of shares of

Preferred Stock then outstanding to fill such vacancies expressly set forth in

the resolution or resolutions providing

 

 

                                     - 3 -

 

<PAGE>

for the issuance of such shares and except as otherwise required by the law, any

vacancies on the Board resulting from an increase in the authorized number of

directors, from death, resignation, retirement, disqualification or removal of a

director or from any other event can be filled by a majority vote of the

directors then in office (even though they constitute less than a quorum),

unless no directors are then in office in which (but only in which) event such

vacancies can be filled by the stockholders. The designation of directors

filling such vacancies among the three classes shall be made by the Board at the

time such vacancies are filled. The term of a director elected to fill such a

vacancy shall continue until the due election and qualification of his successor

(which may be such director, if he is re-elected) at the annual meeting of

stockholders at which the term of members of his class expires. No decrease in

the authorized number of directors shall shorten the term of any incumbent

director.

 

                  In connection with managing the business and affairs of the

Corporation, including, but not limited to, determining whether and to what

extent any action may be in the best interests of the Corporation or the

stockholders, approving or disapproving any action or determining whether to

make any recommendation and what recommendation to make to stockholders with

respect to any matter, each director and the Board (and any committee of the

Board) may consider: (i) the long-term and short-term interests of the

employees, suppliers, creditors and customers of the Corporation and its

subsidiaries; (ii) the long-term and short-term interests of the communities in

which the Corporation and its subsidiaries conduct any business or other

activities; and (iii) the long-term and short-term interests of the Corporation,

its subsidiaries and the stockholders, including the possibility that such

interests may best be served by the continued independence of the Corporation.

 

EIGHTH:           VOTING

 

                  Except for the right, if any, of holders of shares of

Preferred Stock then outstanding to cumulate votes expressly set forth in the

resolution or resolutions providing for the issuance of such shares, cumulative

voting is not permitted with respect to the election of directors.

 

                  Except as otherwise permitted with respect to meetings

consisting solely of, and actions required or permitted to be taken at meetings

consisting solely of, holders of shares of Preferred Stock then outstanding as

expressly set forth in the resolution or resolutions providing for the issuance

of such shares, (i) any action required or permitted to be taken by the

stockholders must be taken at a duly called and convened meeting of stockholders

and cannot be taken by consent in writing and (ii) special meetings of

stockholders can be called only (a) by or at the direction of the Board pursuant

to a resolution or resolutions adopted by the affirmative vote of a majority of

the Whole Board, (b) by or at the direction of a committee of the Board which

has been expressly authorized by the Board pursuant to a resolution or

resolutions adopted by the affirmative vote of a majority of the Whole Board to

call special meetings of stockholders or (c) by the chief executive officer or

president of the Corporation.

 

                                     - 4 -

 

<PAGE>

NINTH:            BY-LAWS

 

                  All or any part of the By-Laws of the Corporation (the

"By-Laws") may be amended, modified or repealed and new By-Laws may be adopted

at any time and from time to time pursuant to (but only pursuant to) a

resolution or resolutions adopted by the affirmative vote of a majority of the

Whole Board, but subject to the power of the holders of shares of capital stock

of the Corporation then outstanding to adopt, amend, modify or repeal the

By-Laws as provided in the next paragraph and to the limitations set forth in

the By-Laws at the Effective Time.

 

                  All or any part of the By-Laws may be amended, modified or

repealed and new By-Laws may be adopted by the stockholders upon (but only upon)

the affirmative vote of holders of at least 75% of the voting power of all

shares of capital stock of the Corporation then outstanding entitled to vote

generally for the election of directors.

 

TENTH:            EXCULPATION

 

                  A director shall not be personally liable to the Corporation

or the stockholders for monetary damages for breach of fiduciary duty as a

director, except (i) for any breach of the duty of loyalty of such director to

the Corporation or such holders, (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 Law and (iv) for any transaction from which such director

derives an improper personal benefit. If the Law is hereafter amended to

authorize corporate action further eliminating or limiting the personal

liability of directors, then the liability of a director shall be eliminated or

limited to the fullest extent permitted by the Law, as so amended. No repeal or

modification of this Article TENTH shall adversely affect any right of or

protection afforded to a director prior to such repeal or modification.

 

ELEVENTH:         AMENDMENTS

 

                  Notwithstanding any other provision contained in this

Certificate of Incorporation and notwithstanding that a lesser percentage may be

specified by law, the By-Laws or otherwise, Articles SEVENTH, EIGHTH, NINTH and

TENTH of this Certificate of Incorporation and this Article ELEVENTH shall not

be amended or repealed, and no provision inconsistent therewith or providing for

cumulative voting in the election of directors shall be adopted, unless such

adoption, amendment or repeal is approved by the affirmative vote of holders of

at least 75% of the voting power of all shares of capital stock of the

Corporation then outstanding entitled to vote generally for the election of

directors.

 

                  Subject to the immediately preceding paragraph of this Article

ELEVENTH, the Corporation reserves the right to amend, alter, change or repeal

any provision contained herein in the manner now or hereafter prescribed by law.

 

                                     - 5 -

 

<PAGE>

 

TWELFTH:          COMPROMISE

 

                  Whenever a compromise or arrangement is proposed between the

Corporation and its creditors or any class of them and/or between the

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 the Corporation or of any creditor or stockholder thereof or on the

application of any receiver or receivers appointed for the Corporation under the

provisions of Section 291 of Title 8 of the Delaware Code or on the application

of trustees in dissolution or of any receiver or receivers appointed for the

Corporation under the provisions of Section 279 of Title 8 of the Delaware Code

order a meeting of the creditors or class of creditors, and/or of the

stockholders or class of stockholders of the 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 the Corporation, as the

case may be, agree to any compromise or arrangement and to any reorganization of

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 the Corporation, as the case may be, and also on the

Corporation.

 

                  IN WITNESS WHEREOF, the undersigned has signed this Amended

and Restated Certificate of Incorporation on this 28th day of May, 1997.

 

                                                  /s/ Zvi N. Raskin  

                                                  -----------------------------

                                                  Secretary

 

 

 

 

 

 

CERTIFICATE OF AMENDMENT

TO

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

SIRONA DENTAL SYSTEMS, INC.

 

Pursuant to Section 242 of the General Corporation Law of the State of Delaware (the “General Corporation Law”), Sirona Dental Systems, Inc., a Delaware corporation (the “Corporation”), hereby certifies as follows:

 

1.           That the Amended and Restated Certificate of Incorporation of the Corporation, as heretofore amended, is hereby further amended by deleting Article SEVENTH thereof and replacing it with the following:

 

“SEVENTH: DIRECTORS

 

The business and affairs of the Corporation shall be managed by or under the direction of the Board. The number of directors shall, at the time this Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Corporation becomes effective pursuant to the Law (the “Effective Time”), be the number of directors then in office and shall thereafter, subject to any limitations which may be set forth in the By-Laws and subject to the right, if any, of holders of shares of Preferred Stock outstanding to elect additional directors expressly set forth in the resolution or resolutions providing for the issuance of such shares, be such number or such greater or lesser number as may be fixed from time to time and at any time by a resolution or resolutions adopted by the affirmative vote of a majority of the Whole Board.

 

At each annual meeting of stockholders commencing with the 2014 annual meeting (i.e., the next annual meeting of stockholders following the 2013 annual meeting of stockholders held in February 2014), the directors shall be elected annually for terms of one year, except that any director in office at the 2014 annual meeting whose term expires at the 2015 or 2016 annual meeting (a “Continuing Classified Director”), or any successor to any such director, shall continue to hold office until the end of the term for which such director was elected or appointed and until such director’s successor shall have been duly elected or qualified, or until such director’s earlier death, resignation, retirement, disqualification or removal. For the avoidance of doubt, at the 2014 annual meeting, the directors whose terms expire at such meeting (or such directors’ successors) shall be elected to hold office for a one-year term expiring at the 2015 annual meeting; at the 2015 annual meeting of stockholders, the directors whose terms expire at such meeting (or such directors’ successors) shall be elected to hold office for a one-year term expiring at the 2016 annual meeting of stockholders; at the 2016 annual meeting of stockholders, the directors whose terms expire at such meeting (or such directors’ successors) shall be elected to hold office for a one-year term expiring at the 2017 annual meeting of stockholders; and at the 2017 annual meeting of stockholders and at each annual

 

 

 

 

meeting of stockholders thereafter, all directors shall be elected to hold office for a one-year term expiring at the next annual meeting of stockholders.

 

Except as otherwise provided in the By-Laws, the election of directors is not required to be conducted by written ballot.

 

Subject to the special rights, if any, of one or more series of Preferred Stock to elect directors, any director may be removed, with or without cause, but only upon the affirmative vote of holders of at least 75% of the voting power of all shares of capital stock of the Corporation then outstanding and entitled to vote generally for the election of directors, except that any Continuing Classified Director and any director appointed to fill a vacancy caused by the death, resignation, retirement, disqualification or removal of any Continuing Classified Director may be removed only for cause and only upon the affirmative vote of the holders of at least 75% of the voting power of all shares of capital stock of the Corporation then outstanding and entitled to vote in the election of directors.

 

Except for the special rights, if any, of holders of one or more series of Preferred Stock then outstanding to fill such vacancies, and except as otherwise required by the law, any vacancies on the Board resulting from an increase in the authorized number of directors, or from the death, resignation, retirement, disqualification or removal of a director or any other cause, shall be filled exclusively by a majority vote of the directors then in office (even though they constitute less than a quorum), unless no directors are then in office in which (but only in which) event such vacancies may be filled by the stockholders. No decrease in the authorized number of directors shall shorten the term of any incumbent director.

 

In connection with managing the business and affairs of the Corporation, including, but not limited to, determining whether and to what extent any action may be in the best interests of the Corporation or the stockholders, approving or disapproving any action or determining whether to make any recommendation and what recommendation to make to stockholders with respect to any matter, each director and the Board (and any committee of the Board) may consider: (i) the long-term and short-term interests of the employees, suppliers, creditors and customers of the Corporation and its subsidiaries; (ii) the long-term and short-term interests of the communities in which the Corporation and its subsidiaries conduct any business or other activities; and (iii) the long-term and short-term interests of the Corporation, its subsidiaries and the stockholders, including the possibility that such interests may best be served by the continued independence of the Corporation.”

 

2.           The foregoing amendments to the Amended and Restated Certificate of Incorporation of the Corporation, as heretofore amended, have been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law.

 

 

 

 

IN WITNESS WHEREOF, the undersigned has caused this Certificate of Amendment to be executed by its duly authorized officer this 19th day of February, 2014.

 

 

SIRONA DENTAL SYSTEMS, INC.

 

 

 

By:

/s/ Jonathan Friedman

 

Name: Jonathan Friedman

 

Title: General Counsel and Secretary

 

 

[As Filed: 02-24-2014]