RESTATED CERTIFICATE OF INCORPORATION
OF
INTERCO INCORPORATED
It is hereby certified that:
1. (a) The present name of the corporation is
INTERCO INCORPORATED (hereinafter called the "Corporation").
(b) The name under which the Corporation was
originally incorporated was International Shoe Company and the date of
filing the original Certificate of Incorporation of the Corporation
with the Secretary of State of the State of Delaware was March 16,
1921.
2. Provision for the making of this Restated Certificate
of Incorporation is contained in an Order of the United States
Bankruptcy Court for the Eastern District of Missouri, Eastern
Division (the "Court") in Consolidated Case No. 9140442172.
3. Such Order authorizes and directs the President of
the Corporation to make, execute and acknowledge this Restated
Certificate of Incorporation.
4. In accordance with Sections 242, 245 and 303 of the
General Corporation Law of the State of Delaware, this Restated
Certificate of Incorporation restates and integrates and further
amends the provisions of the Restated Certificate of Incorporation of
the Corporation filed July 1987, as heretofore amended or supplemented
(the "1987 Restated Certificate of Incorporation".)
5. The text of the 1987 Restated Certificate of
Incorporation is hereby restated and further amended to read in its
entirety as follows:
FIRST. The name of the Corporation is INTERCO
INCORPORATED.
SECOND. Its registered office in the State of Delaware
is located at 32 Loockerman Square, Suite L-100, Dover, Kent County,
Delaware 19901. The name and address of its registered agent is The
Prentice-Hall Corporation System, Inc., 229 South State Street, Dover,
Delaware.
THIRD. The nature of the business, and the objects and
purposes proposed to be transacted, promoted and carried on, are to do
any or all of the things herein mentioned, and in any part of the
world, as fully and to the same extent as natural persons might or
could do, viz:
(1) To produce, prepare, manufacture, buy, sell, and
deal in and with all kinds of boots, shoes, footwear of all kinds,
leather, findings, rubber, rubber materials, and fabrics of all sorts
and the raw materials from which rubber materials or fabrics are
produced and all articles and things of every description that may be
produced or manufactured;
(2) The building, leasing, owning and operating of
factories, tanneries, buildings and warehouses for the purpose of
producing, manufacturing and selling boots, shoes, footwear of all
kinds, leather, rubber and findings, and for the purpose of doing a
general mercantile and manufacturing business;
(3) To manufacture, buy, sell, lease, operate, and deal
in and with all kinds of machinery, tools and implements and
mechanical devices and contrivances of every name and nature
whatsoever; and especially to manufacture, buy, sell, lease, operate,
and deal in and with all sorts of boot and shoe machinery of every
kind and character whatsoever which may be useful in connection with
the manufacture of boots, shoes, or other footwear;
(4) In general, to produce, prepare, manufacture, and
deal in and with goods, wares, merchandise, property, material rights,
and things of every class and description;
(5) To this end, to engage in intrastate and interstate
business, and to do these things either as principals, or as agents,
factors, brokers, consignees, trustees, or otherwise, and in this, and
in all other purposes in this certificate enumerated or referred to,
to have others act as agents, factors, brokers, consignees and
trustees for the corporation, and to exploit and advertise such
businesses by any and all appropriate means, including the
manufacture, purchase, rental, lease, and the sale, lease, or
exhibition, for profit or otherwise, of motion pictures;
(6) To build, purchase, or otherwise acquire, install,
lease, rent, charter, own, manage, operate, use, mortgage, pledge or
otherwise encumber, sell, exchange or otherwise handle, deal with or
dispose of tanneries, factories, manufacturing plants, stores, or
buildings, warehouses, docks, vessels, airships, aeroplanes,
transportation companies and facilities on land and sea and in the
air, with all equipment and other property, real, personal, or mixed,
deemed by the Corporation to be necessary or advisable;
(7) To purchase, or otherwise acquire, take, rent,
lease, own, manage, use, develop, alter, improve, operate, deal in,
handle, hold, borrow or lend money upon, mortgage or otherwise
encumber, assign mortgages and deeds of trust upon, exchange, sell or
otherwise dispose of, convey and transfer, buildings or other real
property, improved and unimproved and any interest therein either
within the State of Delaware or any part of the world;
(8) To apply for, obtain, register, purchase, lease or
otherwise acquire and hold, own, use, operate, introduce, sell,
assign, or otherwise dispose of and deal with any and all licenses,
easements, trademarks, trade names, brands and distinctive marks, and
rights analogous thereto, concessions, copyrights and patent rights,
whether issued or applied for or not, and all inventions,
improvements, formulae, information, and processes used in connection
with or secured under letters patent of the United States or elsewhere
or otherwise; and to use, exercise, develop, grant licenses in respect
of, or otherwise turn to account, any such trademarks, trade names,
brands, distinctive marks, and rights analogous thereto, processes,
formulae, information, patents, patent rights, copyrights, licenses,
inventions, improvements, easements, concessions and the like, and
with a view to the working and development of the same, carry on any
lawful business whatsoever, whether manufacturing or otherwise, which
the Corporation may deem calculated directly or indirectly to
accomplish its objects of any of them;
(9) To make, purchase, otherwise acquire, deal in, enter
into and perform, contracts of every sort and kind in connection with
the business and powers herein stated with any individual, firm,
association or corporation (private, public, quasi-public, or
municipal), and with the government of the United States, or of any
state, territory, colony, or other subdivision or possession thereof,
or of any foreign government, state, territory, colony, or other
subdivision or possession thereof;
(10) To acquire, for the purposes herein set forth, the
whole or any part of the assets, business, good will, formulae,
processes, contracts, bills, notes and accounts receivable, rights and
property of all kinds, and to undertake and assume the whole or any
part of the liabilities, of any person, firm, association or
corporation within the limits of law, and to pay for the same and/or
for any other property, real or personal, which the Corporation may
acquire, in cash, stock of this Corporation of any class or classes,
bonds or otherwise; to hold, own, mortgage, pledge, encumber, use,
operate, develop, manage, hire, lease, rent, assign, transfer,
exchange, trade and deal in and with, sell and convey, or in any
manner dispose of, the whole or any part of the property so acquired;
to conduct in any lawful manner the whole or any part of any business
so acquired and to exercise all the powers necessary or convenient in
and about the conduct and management of such business;
(11) To purchase or otherwise acquire, hold, own, sell,
guarantee the payment of dividends upon, assign, transfer, deliver,
mortgage, pledge or otherwise encumber or dispose of shares of the
capital stock, of any class, or voting trust certificates or other
certificates issued in respect of the shares of the capital stock, or
any class, of other corporations or associations, organized or
existing under the laws of the State of Delaware, or of any other
state, territory, district, colony or dependency of the United States
of America or of any foreign country; to purchase, or otherwise
acquire, hold, own, sell, assign, transfer, deliver, endorse,
guarantee, protect, and assist in the performance and payment of,
mortgage, pledge or otherwise encumber or dispose of, notes, bonds,
debentures or other securities, obligations or evidences of
indebtedness, both principal and interest, or contracts issued,
created or entered into by, or any claims against, any person,
partnership, firm, corporation or association organized or existing
under the laws of the State of Delaware, or of any other state,
territory, district, colony, or dependency of the United States of
America or of any foreign country; to issue and deliver shares of the
capital stock, of any class, bonds, or other obligations of this
Corporation in exchange for any such stock, voting trust or other
certificates, or for any such bonds, notes, debentures, securities,
obligations, contracts, evidences of indebtedness or claims; and while
the owner or holder of any such shares of stock, voting trust or other
certificates, bonds, notes, debentures, securities, obligations,
contracts, evidences of indebtedness or claims, to possess and
exercise in respect thereof any and all of the rights, powers and
privileges of ownership, including the right to vote upon, or in
respect of such shares, voting trust certificates or other
certificates in person or by proxy; and upon a distribution of the
assets or a division of the profits of this Corporation to distribute
any such shares of stock, voting trust or other certificates, bonds,
notes, securities, obligations, contracts, evidences of indebtedness
or claims, or the proceeds thereof, among the holders of the stock of
this Corporation in accordance with their respective interests; to
aid, in any manner, any corporation, association, person, partnership
or firm, the stock, bonds, obligations, voting trust or other
certificates,notes, debentures, securities, contracts, evidences of
indebtedness or claims of or against which, or any part thereof, are
held or are in any manner endorsed or guaranteed by this Corporation,
or in which this Corporation is directly or indirectly interested, and
to do any other acts or things for the preservation, protection,
improvement or enhancement of the value of any such stocks,
certificates, bonds, obligations, notes, debentures, securities,
contracts, evidences of indebtedness or claims, and to do any acts or
things designed for any such purpose;
(12) To borrow money and to issue, sell or pledge or
otherwise encumber bonds, notes, debentures or other evidences of
indebtedness of this Corporation of any character to such amount, and
in such denominations and on such terms as the Board of Directors may
determine, subject to the other provisions of this Restated
Certificate of Incorporation, and to secure the repayment of said
money and the performance of the obligations entered into under said
bonds, notes, debentures and other evidences of indebtedness and the
performance of the covenants, agreements and conditions in any
instrument given to secure the same, by pledge, mortgage, deed of
trust, assignment in trust, or other encumbrances upon any or all of
the property of the Corporation, real, personal or mixed, or
otherwise, or, if deemed advisable, by mortgage of its good will or of
some or all of the franchises of the Corporation in such manner as may
be allowed by law; to draw, make, accept, endorse, take, invest in,
purchase or otherwise acquired, hold, own, execute, issue, sell and
dispose of, trade and deal in, mortgage, pledge, assign, transfer, and
otherwise handle promissory notes, drafts, acceptances, warrants,
debentures, checks and other negotiable, non-negotiable, transferable
or non-transferable instruments or other evidences of indebtedness and
choices in action;
(13) To purchase, hold, sell and transfer the shares of
its own capital stock; provided it shall not use its funds or property
for the purchase of its own shares of capital stock when such use
would cause any impairment of its capital; and provided further that
shares of its own capital stock belonging to it shall not be voted
upon directly or indirectly;
(14) To carry on the above and any other business in any
part of the world, and to do any and all things which may seem to the
Corporation capable of being conveniently carried on or done in
connection with the objects herein set forth, or any of them, or
calculated directly or indirectly to develop the Corporation's
business, or to enhance the value of the Corporation's property or
rights not forbidden by the laws of the State of Delaware; and to do
all or any of the above things in any part of the world, as
principals, agents, contractors, consignees, factors, brokers,
trustees, or otherwise, and by and through trustees, agents,
contractors, consignees, factors, brokers, or otherwise, and either
alone or in conjunction with other individuals, firms, associations or
corporations; and
(15) To engage in any other lawful act or activity for
which corporations may be organized under the General Corporation Law
of the State of Delaware.
The objects and purposes specified herein shall, except
where otherwise expressed, be in no way limited or restricted by
reference to or inference from the terms of any other clause or
paragraph of this Restated Certificate of Incorporation. The objects,
purposes and powers specified in each of the clauses or paragraphs in
this Restated Certificate of Incorporation shall be regarded as
independent objects, purposes and powers.
The foregoing shall be construed both as objects, purposes
and powers and the enumeration thereof shall not be held to limit or
restrict in any manner the lawful powers of this Corporation.
FOURTH. The total number of shares of capital stock of
all classes which the Corporation shall have the authority to issue is
One Hundred Ten Million (110,000,000) shares; all of such shares shall
be without nominal or par value; Ten Million (10,000,000) shares shall
be Preferred Stock and One Hundred Million (100,000,000) shares shall
be Common Stock. All persons who shall acquire stock in the
Corporation shall acquire the same subject to the provisions of this
Restated Certificate of Incorporation.
Pursuant to Section 8.06 of the Joint Plan of Reorganization
of the Corporation as confirmed by the United States Bankruptcy Court
for the Eastern District of Missouri, Eastern Division in Consolidated
Case No. 9140442172 (the "Plan"), as of the Effective Date (as that
term is defined in the Plan), any and all of the authorized capital
stock of the Corporation, whether issued or unissued, including any
right to acquire such capital stock pursuant to any agreement,
arrangement, or understanding, including, but not limited to, the Old
Common Stock Rights Agreement (as that term is defined in the Plan) or
upon exercise of conversion rights, exchange rights, warrants,
options, Old Common Stock Purchase Rights or other rights, existing
immediately prior to the Effective Date was deemed cancelled and of no
further force or effect without any action on the part of the
stockholders or Board of Directors of the Corporation. The holders of
such cancelled capital stock and any cancelled right to acquire such
capital stock have no rights arising from or relating to such capital
stock (or the stock certificates representing such cancelled stock) or
any right to acquire such capital stock or the cancellation thereof.
Notwithstanding anything contained in this Restated
Certificate of Incorporation to the contrary, the Corporation will not
issue nonvoting equity securities to the extent prohibited by Section
1123 of the Bankruptcy Code; provided, however, that this paragraph:
(a) will have no further force and effect beyond that required under
Section 1123 of the Bankruptcy Code, (b) will have such force and
effect, if any, only for so long as such Section is in effect and
applicable to the Corporation, and (c) in all events may be amended or
eliminated in accordance with applicable law from time to time in
effect.
The designations and the powers, preferences and rights, and
the qualifications, limitations or restrictions thereof, of the
classes of stock of this Corporation which are fixed by this Restated
Certificate of Incorporation, and the express grant of authority to
the Board of Directors to fix by resolution or resolutions the
designations and the powers, preferences and rights, and the
qualifications, limitations and restrictions of the shares of
Preferred Stock, which are not fixed by this Restated Certificate of
Incorporation, are as follows:
SUBDIVISION ONE - PREFERRED STOCK
A. The Preferred Stock may be issued from time to time
in any amount, not exceeding in the aggregate (including all shares of
any and all series thereof theretofore issued and not theretofore of
concurrently therewith redeemed or theretofore converted) the total
number of shares of Preferred Stock hereinabove authorized, as
Preferred Stock of one or more series, as hereinafter provided. All
shares of any one series of Preferred Stock shall be alike in every
particular. Each series of Preferred Stock shall be distinctively
designated by letter or descriptive words and all series shall rank
equally and be identical in all respects except as permitted by the
provisions of Section B of this SUBDIVISION ONE.
B. Authority is hereby expressly granted to and vested
in the Board of Directors of the Corporation to cause the Preferred
Stock to be issued from time to time in one or more series and in
connection therewith to fix by resolution or resolutions
(collectively, a "Preferred Stock Designation") providing for the
issue of such series the number of shares to be included in such
series and the designations and such voting powers, full or limited,
or no voting powers, and such of the preferences and relative,
participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of such series of
the Preferred Stock which are not fixed by this Restated Certificate
of Incorporation, to the full extent now or hereafter permitted by the
laws of the State of Delaware. Without limiting the generality of the
grant of authority contained in the preceding sentence, the Board of
Directors is authorized to determine any or all of the following, and
the shares of each series may vary from the shares of any other series
in any or all of the following respects:
(1) The number of shares of such series (which may
subsequently be increased, except as otherwise provided by the
resolutions of the Board of Directors providing for the issue of such
series, or decreased to a number not less than the number of shares
then outstanding) and the distinctive designation thereof;
(2) The dividend rights, if any, of such series, the
dividend preferences, if any, as between such series and any other
class or series of stock, whether and the extent to which shares of
such series shall be entitled to participate in dividends with shares
of any other series or class of stock, whether and the extent to which
dividends on such series shall be cumulative, and any limitations,
restrictions or conditions on the payment of such dividends;
(3) The time or times during which, the price or prices
at which, and any other terms or conditions on which the shares of
such series may be redeemed, if redeemable;
(4) The rights of such series, and the preferences, if
any, as between such series and any other class or series of stock, in
the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation and whether and the extent to which
shares of any such series shall be entitled to participate in such
event with any other class or series of stock;
(5) The voting powers, if any, in addition to the voting
powers prescribed by law of shares of such series, and the terms of
exercise of such voting powers;
(6) Whether shares of such series shall be convertible
into or exchangeable for shares of any other series or class of stock,
or any other securities, and the terms and conditions, if any,
applicable to such right; and
(7) The terms and conditions, if any, of any purchase,
retirement or sinking fund which may be provided for the shares of
such series.
SUBDIVISION TWO - COMMON STOCK
A. The Common Stock of this Corporation may be issued,
from time to time, for such consideration as may be fixed, from time
to time, by the Board of Directors.
B. After full cumulative dividends upon the Preferred
Stock then outstanding shall have been paid for all past dividend
periods in accordance with, and if required by, the terms of any
Preferred Stock Designation, and after or concurrently with making
such payments, or declaring and setting apart for payment in
accordance with, and if required by, the terms of the Preferred Stock
Designation, full dividends on the Preferred Stock then outstanding to
the end of the then current dividend period, then and not otherwise,
the holders of Common Stock shall, subject to the provisions hereof,
be entitled to receive, out of any net profits or net assets of the
Corporation legally available for dividends, such dividends as may
from time to time be declared by the Board of Directors.
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, after the holders of the
Preferred Stock then outstanding shall have received the full
preferential amounts, if any, to which such holders are entitled
pursuant to the terms of the Preferred Stock Designation upon such
voluntary or involuntary liquidation, dissolution or wind up, the
holders of Common Stock shall be entitled to share ratably in all
assets of the Corporation then remaining according to the number of
shares of Common Stock held by them respectively.
All holders of Common Stock shall be entitled to one vote
for each share of Common Stock standing of record in their respective
names; subject, however, to the provisions of the By-Laws of the
Corporation as from time to time amended with respect to the closing
of the transfer books and the fixing of a record date.
C. The holders of Common Stock shall have no preemptive
right to purchase or subscribe for any shares of capital stock of the
Corporation of any class whether now or hereafter authorized.
FIFTH. The Corporation is to have perpetual existence.
SIXTH. The private property of the stockholders of the
Corporation shall not be subject to the payment of corporate debts to
any extent whatsoever.
SEVENTH. (a) The following provisions are inserted
for the conduct of the affairs of the Corporation, and it is expressly
provided that the same are intended to be in furtherance and not in
limitation or exclusion of the powers conferred by statute:
(1) The number of directors of the Corporation
(exclusive of directors (the "Preferred Stock Directors") who may
be elected by the holders of any one or more series of Preferred
Stock which may at any time be outstanding, voting separately as
a class or classes pursuant to rights to elect directors under
specified circumstances) shall not be less than nine nor more
than twenty-one, the exact number within said limits to be fixed
from time to time solely by resolution of the Board of Directors,
acting by not less than a majority of the directors then in
office.
(2) The Board of Directors (exclusive of Preferred Stock
Directors, if any) shall be divided into three classes, as nearly
equal in size as possible, with the term of office of one class
expiring each year. Subject to the provisions of Paragraphs
(a)(3) and (b) of this Article SEVENTH, (i) the terms of one such
class of the directors in office as of the Effective Date shall
expire at the first annual meeting of stockholders held after the
Effective Date, the terms of a second such class of such
directors shall expire at the second annual meeting of
stockholders held after the Effective Date, and the terms of the
third such class of such directors shall expire at the third
annual meeting of stockholders held after the Effective Date, and
(ii) at each annual meeting of stockholders, directors of each
class the term of which shall then expire shall be elected to
hold office for a three-year term and until the election and
qualification of their respective successors in office. If the
number of directors (other than Preferred Stock Directors, if
any) is changed, any increase or decrease shall be apportioned by
the Board of Directors among the three classes so that the number
in each class shall be as nearly equal as possible. Election of
directors need not be by ballot unless the By-Laws so provide.
(3) Pursuant to the Plan, three new directors were
designated as "Class A Directors" to hold office for a term
beginning on the Effective Date and expiring at the third annual
meeting of stockholders held after the Effective Date (but in no
event earlier than June 1, 1995). Such directors and their
successors are referred to herein as "Class A Directors". All
Class A Directors, whether in office at the Effective Date or
elected as a successor to any such director, shall be assigned to
the class of directors whose terms expire at the third annual
meeting of stockholders held after the Effective Date (but in no
event earlier than June 1, 1995), and from and after such meeting
all references to Class A Directors in this Restated Certificate
of Incorporation will expire and have no further force or effect,
without any action on the part of the stockholders or the Board
of Directors of the Corporation.
(4) Subject to the rights of the holders of any one or
more series of Preferred Stock then outstanding to elect
directors under circumstances specified in any Preferred Stock
Designation, newly created directorships resulting from any
increase in the authorized number of directors, or any vacancies
in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause,
shall be filled solely by the Board of Directors, except that
vacancies in the positions of the Class A Directors shall be
filled by the remaining Class A Directors with a substitute
reasonably acceptable to a majority of the directors, other than
the Class A Directors, then in office. Any director elected in
the remainder of the full term of the class of directors in which
the new directorship was created or a vacancy occurred and until
such director's successor shall have been elected and qualified.
No decrease in the number of directors shall shorten the term of
any incumbent director.
(5) Subject to the rights of the holders of any one or
more series of Preferred Stock then outstanding to elect
directors under circumstances specified in any Preferred Stock
Designation, any director, or the entire Board of Directors, may
be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of a majority of the
combined voting power of the outstanding shares of stock of the
Corporation entitled to vote generally in the election of
directors, voting together as a single class; provided that in
the case of Class A Directors the affirmative vote of the holders
of at least a majority of the shares of Commons Stock actually
voting at a meeting called for such purpose, excluding any shares
of Common Stock or other securities of which a Substantial
Stockholder is the Beneficial Owner, shall also be required.
(6) The By-Laws may prescribe the number of directors
necessary to constitute a quorum and such number may be less than
a majority of the total number of directors, but shall not be
less than one-third of the total number of directors.
(7) Except as may be otherwise provided by statute or in
this Restated Certificate of Incorporation, the business and
affairs of the Corporation shall be managed under the direction
of the Board of Directors.
(8) Notwithstanding any other provision of law which
might otherwise permit a lesser vote or no vote, but in addition
to any affirmative vote of the holders of any particular class of
stock of the Corporation entitled to vote generally in the
election of directors required by law of this Restated
Certificate of Incorporation, the affirmative vote of (i) the
holders of not less than three-fourths of the combined voting
power of the outstanding shares of stock of the Corporation
entitled to vote generally in the election of directors, voting
together as a single class at a meeting called for such purpose,
and (ii) in addition, the holders of a majority of the combined
voting power of such shares (or in the case of any alteration,
amendment, adoption of an inconsistent provision or repeal
relating to Class A Directors, a majority of the shares of Common
Stock) actually voting at such meeting excluding any shares of
Common Stock or other securities of which a Substantial
Stockholder is the Beneficial Owner, inconsistent with or repeal
this Article SEVENTH or Paragraph (a) of Article EIGHTH.
(9) For purposes of this Article SEVENTH and Articles
ELEVENTH and TWELFTH, the term "Substantial Stockholder" shall
mean and include (other than the Corporation or any subsidiary
and other than any employee benefit plan of the Corporation or
any subsidiary or any trustee of or fiduciary with respect to any
such plan when acting in such capacity, all of which are excluded
from such definition): (a) any individual, corporation,
partnership or other person or entity which, together with its
Affiliates and Associates, is the Beneficial Owner in the
aggregate of more than ten percent of the combined voting power
of the outstanding shares of stock of the Corporation entitled to
vote generally in the election of directors, and (b) any
Affiliate or Associate of any such individual, corporation,
partnership or other person or entity.
For purposes of this Article SEVENTH and Articles ELEVENTH
and TWELFTH, the following terms shall be defined by reference to
the Securities Exchange Act of 1934 and the Rules in effect
thereunder on the Effective Date: "Affiliate" under Rule 12b-2;
"Associate" under Rule 12b-2; and "Beneficial Owner" under Rule
13d-3.
(b) Notwithstanding anything contained in this Restated
Certificate of Incorporation to the contrary, Paragraphs (a)(1),
(a)(2) and (a)(5) of this Article SEVENTH will expire and have no
further force and effect, and Paragraph (a)(8) of this Article SEVENTH
will apply only to amendment of Paragraph (a)(9) of this Article
SEVENTH, without any action on the part of the stockholders or Board
of Directors of the Corporation, at and from and after the first
annual meeting of stockholders of the Corporation held on or after
June 1, 1995, and the terms of all directors then in office shall
terminate at such meeting, unless such Paragraphs are continued in
effect by the affirmative vote at such meeting of the holders of a
majority of the combined voting power of the outstanding shares of
stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
EIGHTH. In furtherance and not in limitation of the
powers conferred by the laws of the State of Delaware, the Board of
Directors is expressly authorized:
(a) To make and alter the By-Laws of the Corporation
subject to the power of the stockholders, at the time entitled to
vote, to alter or repeal By-Laws made by the Board of Directors;
(b) To fix the amount to be reserved as working capital
and, subject to the other provisions of this Restated Certificate of
Incorporation, to authorize and cause to be executed mortgages and
liens upon the property and franchises of the Corporation;
(c) If a resolution passed by a majority of the whole
Board so provides, to designate three or more of their number to
constitute an Executive Committee, which Committee shall for the time
being, as provided in said resolution or in the By-Laws of the
corporation, have and exercise any or all of the powers of the Board
of Directors in the management of the business and affairs of the
Corporation and have power to authorize the seal of the Corporation to
be affixed to all papers which may require it;
(d) From time to time to determine whether, to what
extent, at what times and places and under what conditions and
regulations the books and accounts of the Corporation, or any of them
other than the stock ledger, shall be open to the inspection of the
stockholders; and no stockholder shall have any right to inspect any
account or book or document of the Corporation, except as conferred by
law or authorized by resolution of the directors or of the
stockholders;
(e) If the By-Laws so provide, the stockholders and
directors shall have power to hold their meetings, to have an office
or offices and to keep the books of the Corporation (subject to the
provisions of the statute) outside of the State of Delaware at such
places as may from time to time be designated by them, whether within
or without the United States of America; and
(f) The Corporation may in its By-Laws confer powers
additional to the foregoing upon the directors, in addition to the
powers and authority expressly conferred upon them by law.
NINTH. No Contract or other transaction between the
Corporation and any other corporation and no act of the Corporation
shall in any way be affected or invalidated by the fact that any of
the directors of the Corporation are pecuniarily or otherwise
interested in, or are directors or officers of, such other
corporation; any director individually, or any firm of which any
director may be a member, may be a party to, or may be pecuniarily or
otherwise interested in, any contract or transaction of the
Corporation, provided that the fact that he or such firm is so
interested, shall be disclosed or shall have been known to the Board
of Directors or a majority thereof; and any director of the
Corporation who is also a director or officer of such other
corporation or who is so interested may be counted in determining the
existence of a quorum at any meeting of the Board of Directors of the
Corporation which shall authorize any such contract or transaction,
and may vote thereat to authorize any such contract or transaction
with like force and effect as if he were not such director or officer
of such other corporation or not so interested.
TENTH. The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Restated
Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ELEVENTH. Except as otherwise provided in this
Restated Certificate of Incorporation, any action required or
permitted to be taken by the stockholders of the Corporation must be
affected at a duly called annual or special meeting of stockholders of
the Corporation and may not be effected by consent in writing by such
stockholders. Special meetings of stockholders of this Corporation
may be called only by the Board of Directors pursuant to a resolution
approved by a majority of the entire Board of Directors, or by the
holders of not less than one-fifth of the combined voting power of the
outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors (by written notice delivered to
the Secretary of the Corporation), upon not less than ten and not more
than sixty days written notice.
This Article ELEVENTH (and paragraph (a)(9) of Article
SEVENTH to the extent the terms being amended are used in this Article
ELEVENTH) may be altered, amended or repealed or an inconsistent
provision adopted only upon the affirmative vote of (i) the holders of
not less than three-fourths of the combined voting power of the
outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single
class at a meeting called for such purpose, and (ii) in addition, the
holders of a majority of the combined voting power of the shares of
Common Stock and any other class of stock voting on such matter as a
single class with the Common Stock actually voting at such meeting,
excluding any shares of Common Stock and other securities of which a
Substantial Stockholder is the Beneficial Owner.
TWELFTH. The Corporation shall not engage in any
Affiliate Transaction unless the same shall have been approved by a
majority of the Disinterested Directors (including, until the first
annual meeting of stockholders of the Corporation held on or after
June 1, 1995, at least one Class A Director) and, if the Affiliate
Transaction must be approved by stockholders under applicable law and
no Substantial Stockholder is the record owner of at least 90% of the
outstanding shares of Common Stock and any other class of stock voting
on such transaction as a single class with such Common Stock, by the
holders of a majority of the combined voting power of such shares
actually voting on such transaction at a meeting called for such
purpose, excluding any shares of Common Stock and other securities of
which the Substantial Stockholder involved in such transaction is the
Beneficial Owner. If, at any time, there is no Disinterested
Director, a Substantial Stockholder will not be permitted to engage in
an Affiliate Transaction except with the affirmative vote of the
holders of at least a majority of the combined voting power of the
shares of Common Stock and any other class of stock voting on such
transaction as a single class with the Common Stock actually voting at
a meeting called for such purpose, excluding any shares of Common
Stock and other securities of which such Substantial Stockholder is
the Beneficial Owner.
For purposes of this Article TWELFTH, the term "Affiliate
Transaction" shall mean:
(1) Any merger or consolidation of the Corporation or any
subsidiary of the Corporation with any Substantial
Stockholder, regardless of which entity survives;
(2) Any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
transactions) to or with any Substantial Stockholder of
any assets of the Corporation or any subsidiary of the
Corporation;
(3) The issuance or transfer by the Corporation or any
subsidiary of the Corporation of any securities of the
Corporation or any such subsidiary to any Substantial
Stockholder in exchange for cash, securities or other
property (or a combination thereof);
(4) Any reclassification of securities, or any
recapitalization, of the Corporation or any of its
subsidiaries, or any merger or consolidation of the
Corporation with any of its subsidiaries (whether or
not involving a Substantial Stockholder) or any similar
transaction, if the transaction would have the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity
or convertible securities of the Corporation or any
subsidiary, of which a Substantial Stockholder is the
Beneficial Owner; or
(5) Any other transaction between the Corporation or any of
its subsidiaries and a Substantial Stockholder,
including, without limitation, payments of compensation
and management fees, but excluding customary directors'
fees and other expense reimbursements payable to all
directors.
Notwithstanding the foregoing, the following shall be excluded
from the definition of "Affiliate Transaction":
(1) Bona fide loans (excluding loans convertible into
equity) made to the Corporation or any of its
subsidiaries by one or more Substantial Stockholders in
an aggregate amount not to exceed $10,000,000 in any
12-month period;
(2) Issuances to a Substantial Stockholder in bona fide
offerings of equity, convertible or equity-related
securities of the Corporation made for the purpose of
raising capital (excluding offerings primarily intended
as management of employee compensation) on the same
terms as are offered to participants who are not
Affiliates, Associates, directors, officers or
employees of the Corporation or any Substantial
Stockholder or any subsidiary of any thereof, but only
to the extent such issuance is required to prevent
dilution of such Substantial Stockholder's percentage
interest in the Common Stock of the Corporation on a
fully diluted basis;
(3) The repurchase of debt or equity securities from a
Substantial Stockholder on terms identical to those
being offered to all other holders of the same
securities or, in the case of debt securities only, at
market;
(4) The preparation and filing of one or more registration
statements with respect to securities of the
Corporation received by any Substantial Stockholder
pursuant to or in connection with the Plan and payment
of reasonable expenses associated therewith, other than
underwriting discounts and commissions, and all actions
relating to the foregoing; and
(5) Immaterial transactions in the ordinary course of
business between the Corporation or any of its
subsidiaries and any Substantial Stockholder.
For purposes of this Article TWELFTH, the term
"Disinterested Director" shall mean any member of the Board of
Directors of the Corporation who, at the relevant time, is not an
employee or officer of the Corporation or any of its subsidiaries,
Affiliates or Associates, and is not a Substantial Stockholder or a
director, officer of employee of a Substantial Stockholder.
This Article TWELFTH (and paragraph (a)(9) or Article
SEVENTH to the extent the terms being amended are used in this
inconsistent provision adopted only upon the affirmative vote of
Article TWELFTH) may be altered, amended or repealed or an
inconsistent provision adopted only upon the affirmative vote of (i)
the holders of not less than three-fourths of the combined voting
power of the outstanding shares of stock of the Corporation entitled
to vote generally in the election of directors, voting together as a
single class at a meeting called for such purpose, and (ii) in
addition, the holders of a majority of the combined voting power of
the shares of Common Stock (and in the case of any alteration,
amendment or repeal or adoption of an inconsistent provision not
relating to Class A Directors, any other class of stock voting on such
matter as a single class with the Common Stock) actually voting at
such meeting, excluding any shares of Common Stock (or other
securities) or which a Substantial Stockholder is the Beneficial
Owner.
In accordance with Section 203(b) of the General Corporation
Law of the State of Delaware, the Corporation hereby elects not to be
governed by Section 203 of the General Corporation Law of the State of
Delaware which restricts the consummation of certain business
combination transactions in certain circumstances.
THIRTEENTH.
1. In addition to any affirmative vote required or
permitted by law or this Restated Certificate of Incorporation or the
By-Laws of the Corporation, and except as otherwise expressly provided
in Paragraphs 1(a) and 1(b) of this Article THIRTEENTH, the
Corporation shall not effect, directly or indirectly, any Stock
Repurchase from an Interested Stockholder unless said Stock Repurchase
is authorized by the affirmative vote of the holders of a majority of
the combined voting power of the outstanding shares of stock of the
Corporation entitled to vote generally in the election of directors
("Voting Stock"), voting together as a single class, actually voting
on such transaction at a meeting called for such purpose, excluding
any shares which are beneficially owned by such Interested
Stockholder.
The preceding provision of this Article THIRTEENTH shall not
be applicable to any Stock Repurchase from an Interested Stockholder
if such Stock Repurchase is effected by the Corporation pursuant to:
(a) a tender offer or exchange offer by the Corporation for
some or all of the outstanding shares of any or all
classes of stock of the Corporation made on the same
terms to all holders of such shares; as
(b) an open market stock purchase program approved by a
majority of those members of the Board of Directors who
are not directors, officers, employees, Affiliates or
Associates of an Interested Stockholder or any
Affiliate or Associate of an Interested Stockholder.
2. For purposes of this Article THIRTEENTH:
(a) The following terms shall be defined by reference to
the Securities Exchange Act of 1934 and the Rules in
effect thereunder on the Effective Date: "Affiliate"
under Rule 12b-2; "Associate" under Rule 12b-2;
"Subsidiary" under Rule 12b-2; and "Beneficial Owner"
under Rule 13d-3.
(b) An "Interested Stockholder" shall mean a Person (other
than any Subsidiary of the Corporation, any profit-
sharing, employee stock ownership or other employee
benefit plan of the Corporation or any Subsidiary of
the Corporation, or any trustee of or fiduciary with
respect to any such plan when acting in such capacity,
all of which shall be excluded from such definition)
who: (i) has been a Beneficial Owner for a period of
less than two years immediately prior to the
Determination Date of five percent or more of the
issued and outstanding shares of Voting Stock
(including any Voting Stock which such Person or any of
its Affiliates or Associates has (a) the right to
acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to
vote pursuant to any agreement, arrangement or
understanding); or (ii) is an Affiliate of the
Corporation who was the Beneficial Owner of five
percent or more of the issued and outstanding shares of
Voting Stock at any time within the two-year period
immediately prior to the Determination Date; or (iii)
is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were beneficially owned by
any Interested Stockholder at any time within the two-
year period immediately prior to the Determination
Date, if such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(c) The term "Stock Repurchase" shall mean any direct or
indirect purchase by the Corporation or any Subsidiary
of the Corporation of any shares of the Voting Stock at
a price greater than the Market Price of such shares,
or any direct or indirect purchase of such shares for
any consideration other than cash.
(d) "Market Price" shall mean the closing sale price on the
last trading day immediately preceding the
Determination Date of a share of the Corporation's
Voting Stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such Voting Stock is not
listed on such Exchange, on the principal United States
securities exchange on which such Voting Stock is
listed, or, if such Voting Stock is not listed on any
such exchange, the closing bid quotation with respect
to a share of such Voting Stock on the last trading day
immediately preceding the Determination Date on the
National Association of Securities Dealers, Inc.
Automated Quotations System or any similar system then
in use, or if no such quotations are available, the
fair market value on the Determination Date of a share
of such Voting Stock as determined in good faith by a
majority of the Board of Directors.
(e) "Determination Date" shall mean the date upon which the
determination of Market Price is made by the Board of
Directors.
(f) The term "Person" shall mean any individual, firm,
corporation or other entity and shall include any group
comprising any person and any other person with whom
such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding,
directly or indirectly, for the purpose of acquiring
holding, voting or disposing of stock.
3. The Board of Directors shall have the power and duty
to determine for the purposes of this Article THIRTEENTH on the basis
of information known to its members after reasonable inquiry, (1)
whether a Person is, and if so, when such Person became, an Interested
Stockholder, (2) the number of shares of Voting Stock of the
Corporation or other securities of which any Person is a Beneficial
Owner and the number of votes entitled to be cast by such Person, (3)
whether a Person is an Affiliate or Associate of another, and (4)
whether the price proposed to be paid for any shares of stock of the
Corporation is in excess of the Market Price of such shares. Any such
determination made in good faith shall be binding on and conclusive
for all parties.
For the purposes of determining whether a Person is an Interested
Stockholder pursuant to Paragraph 2(b) of this Article, the shares of
Voting Stock deemed to be outstanding shall include shares deemed
beneficially owned by such Person through application of Paragraph
2(a) of this Article, but shall not include any other shares of Voting
Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
4. Notwithstanding any other provision of law which
might otherwise permit a lesser vote or no vote, but in addition to
any affirmative vote of the holders of any particular class of Voting
Stock required by law or this Restated Certificate of Incorporation,
the affirmative vote of the holders of at least three-fourths of the
Voting Stock, voting together as a single class, shall be required to
alter, amend, adopt any provision inconsistent with or repeal this
Article THIRTEENTH.
5. Notwithstanding anything contained in this Restated
Certificate of Incorporation to the contrary, Paragraph 4 of this
Article THIRTEENTH will expire and have no further force and effect,
without any action on the part of the stockholders or Board of
Directors of the Corporation, at the first annual meeting of the
stockholders of the Corporation held on or after June 1, 1995 unless
such provisions are continued in effect by the affirmative vote at
such meeting of the holders of not less than a majority of the
combined voting power of the outstanding shares of stock of the
Corporation entitled to vote generally in the election of directors,
voting together as a single class.
FOURTEENTH. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary
damages for any breach of fiduciary duty by such director as a
director, except (i) for 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) pursuant to Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit. The Corporation shall
indemnify its directors and officers to the fullest extent permitted
by Section 145 of the Delaware General Corporation Law. No amendment
to or repeal of this Article FOURTEENTH shall apply to or have any
effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal. If the Delaware
General Corporation Law is amended hereafter to expand or limit the
liability of a director, then the liability of a director of the
Corporation shall be expanded to the fullest extent required or
limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
FIFTEENTH. No director or Substantial Stockholder (as
that term is defined in Article SEVENTH hereof) shall have any
obligation to bring to the attention of the Corporation any business
or other corporate opportunity which has come to his or its attention
solely by virtue of his or its involvement, as the case may be, in any
business enterprise (other than the Corporation or its subsidiaries)
in which such director or Substantial Stockholder has an interest.
SIXTEENTH. Except as provided in Articles FOURTEENTH and
FIFTEENTH hereof, nothing contained in this Restated Certificate of
Incorporation shall be construed to relieve any person or entity from
any fiduciary obligation imposed by law.
Signed and attested to as of July 29, 1992.
R. B. Loynd
----------------------
President
Attest:
D. A. Patterson
--------------------------
Secretary
STATE OF MISSOURI )
) SS.:
COUNTY OF ST. LOUIS )
BE IT REMEMBERED THAT, on July 29, 1992, before me, a Notary
Public duly authorized by law to take acknowledgement of deeds,
personally came R.B. Loynd, who duly signed the foregoing instrument
before me and acknowledged that such signing is his act and deed, that
such instrument as executed is the act and deed of said corporation,
and that the facts stated therein are true.
GIVEN under my hand on July 29, 1992.
Betty Mathes
--------------------------
Notary Public
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
INTERCO INCORPORATED, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a
meeting duly convened and held on the 26th day of January, 1993,
proposed amendments to the corporation's Restated Certificate of
Incorporation, and at such meeting adopted resolutions setting forth
the amendments proposed, declaring their advisability and directing
that the amendments proposed be considered at the next annual meeting
of stockholders of said corporation; said amendments are as follows:
The Restated Certificate of Incorporation of INTERCO INCORPORATED
be, and it hereby is, amended as follows:
Article FOURTH is hereby amended by deleting the third paragraph
thereof.
Article SEVENTH is hereby amended by deleting Paragraph (a)(2)
and substituting the following in lieu thereof:
"(2) As of the Effective Date, The Board of Directors
(exclusive of Preferred Stock Directors, if any) was divided into
three classes, as nearly equal in size as possible, with the term
of office of one class expiring each year. Subject to the
provisions of Paragraphs (a)(3) and (b) of this Article SEVENTH,
(i) the terms of one such class of the directors in office as of
the Effective Date shall expire at the first annual meeting of
stockholders held after the Effective Date, the terms of a second
such class of such directors shall expire at the second annual
meeting of stockholders held after the Effective Date, and the
terms of the third such class of such directors shall expire at
the third annual meeting of stockholders held after the Effective
date, and (ii) at each annual meeting of stockholders, directors
of each class the term of which shall then expire shall be
elected to hold office for a one-year term and until the election
and qualification of their respective successors in office. If
the number of directors (other than Preferred Stock Directors, if
any) is changed, any increase or decrease shall be apportioned by
the Board of Directors among the classes so that the number in
each class shall be as nearly equal as possible. Election of
directors need not be by ballot unless the By-Laws so provide."
Article SEVENTH is hereby further amended by deleting the date,
"June 1, 1995" in the first and last sentences of Paragraph (a)(3) and
in Paragraph (b) and substituting in lieu thereof the date, "May 1, 1995."
Article TWELFTH is hereby amended by deleting the date, "June 1,
1995" in the first sentence of the Article and substituting in lieu
thereof the date, "May 1, 1995."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the stockholders of said corporation
was duly called and held, upon notice in accordance with Section 222
of the General Corporation Law of the State of Delaware at which
meeting the necessary number of shares as required by statute were
voted in favor of the amendments.
THIRD: That said amendments were duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the
State of Delaware.
FOURTH: That the capital of said corporation will not be reduced
under or by reason of said amendments.
IN WITNESS WHEREOF, said INTERCO INCORPORATED has caused its
corporate seal to be hereunto affixed and this certificate to be
signed by Richard B. Loynd, its Chairman of the Board, and attested by
Duane A. Patterson, its Secretary, this 5th day of May, 1993.
INTERCO INCORPORATED
ATTEST: By Richard B. Loynd
-----------------
Richard B. Loynd
By Duane A. Patterson Chairman of the Board
---------------------
Duane A. Patterson
Secretary
Certificate of Ownership and Merger Merging
Interco Furniture, Inc.
into INTERCO INCORPORATED
Pursuant to Section 253 of The General Corporation
Law of the State of Delaware
INTERCO INCORPORATED, a corporation organized and existing
pursuant to the provisions of the General Corporation Law of the State
of Delaware (the "Corporation") DOES HEREBY CERTIFY:
FIRST: That the Corporation owns all the outstanding capital
stock of Interco Furniture, Inc., a Delaware corporation (the
"Subsidiary Corporation"); and
SECOND: That by resolutions of its board of directors duly
adopted on the 30th day of January 1996, the Corporation determined to
effect a merge into itself (the "Merger") of the Subsidiary
Corporation. A true copy of such resolutions, which have not been
modified or amended and remain in full force and effect on the date
hereof, is attached hereto as Exhibit A; and
THIRD: That the Merger shall become effective at 12:01 a.m. on
March 1, 1996; and
FOURTH: That the Corporation shall be the surviving corporation
in the Merger; and
FIFTH: That upon the effectiveness of the Merger, the name of
the Corporation as specified in Paragraph 1(a) of the Corporation's
Restated Certificate of Incorporation, as heretofore amended, shall be
changed to Furniture Brands International, Inc.
IN WITNESS WHEREOF, the Corporation has caused this Certificate
of Ownership and Merger to be signed by its Chairman and attested by
its Secretary, and its corporate seal to be affixed hereto as of the
26th day of February, 1996.
INTERCO INCORPORATED
By Richard B. Loynd
----------------------
Richard B. Loynd
Chairman
Attest:
Lynn Chipperfield
------------------
Lynn Chipperfield
Secretary