EXHIBIT (3i)(a)
ZAYRE CORP.
Zayre Corp., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of this corporation is Zayre Corp. The date
of filing its original Certificate of Incorporation with the
Secretary of State was April 9, 1962. The date of filing its
Restated Certificate of Incorporation with the Secretary of State
was July 21, 1977.
2. This Second Restated Certificate of Incorporation
restates and integrates the Restated Certificate of Incorporation
of this corporation as heretofore amended and supplemented.
3. The text of the Second Restated Certificate of
Incorporation is herein set forth in full:
SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
Z A Y R E C O R P.
FIRST: The name of this corporation is
ZAYRE CORP.
SECOND: Its registered office in the State of
Delaware is located at Corporation Trust Center, 1209
Orange Street, in the City of Wilmington, County of New
Castle. The name and address of its registered agent is
the Corporation Trust Company, 100 West Tenth Street,
Wilmington, Delaware 19899.
THIRD: The nature of the business of this corporation
and the objects or purposes to be transacted, promoted and
carried on by it are as follows:
1. To engage generally in business in the field of
merchandising, whether wholesale or retail or both.
2. To buy, design, develop, manufacture, produce,
lease or otherwise acquire, and to prepare, finish or
otherwise process, and to own, hold, use, store and
transport, and to sell at wholesale or retail, transfer,
distribute, export, consign, lease or otherwise dispose of,
and generally to deal in and with, all kinds of
merchandise, clothing, articles, equipment, supplies,
goods, wares, foods, drugs, cosmetics and other articles of
whatever nature.
3. To buy, construct, lease or otherwise acquire,
and to own, hold, operate, manage, lease to others, grant
or take concessions for, develop, improve, maintain and
use, and to manage for others and to act as consultants
with respect to, and to sell, convey or otherwise dispose
of, stores, warehouses, shopping centers, parking lots,
retail outlets and other facilities for use in connection
with wholesale and retail merchandising, and land,
buildings, facilities, equipment and all other property and
assets for or incidental to any of the foregoing.
4. To carry on any manufacturing, selling,
management, service or other business, operation or
activity which is lawful to be carried on by a corporation
organized under the General Corporation Law of the State of
Delaware as amended, whether or not similar or related or
incidental to or useful or advantageous in or in connection
with the businesses, operations and activities referred to
in the foregoing paragraphs.
2
5. To manufacture, produce, buy, lease or otherwise
acquire, and to own, operate and use, and to sell, lease or
otherwise dispose of, and generally to deal with and in,
machinery, appliances, equipment, tools, parts, fixtures,
facilities, motor vehicles, materials, supplies, goods,
merchandise and other articles and property of all kinds
incidental to or useful in or in connection with any
business, operation or activity in which this corporation
is engaged or is authorized to engage.
6. To buy, construct, lease or otherwise acquire,
and to own, hold, operate, develop, improve, maintain and
use, and to sell, convey, lease or otherwise dispose of,
and to grant easements, rights or interests in, lands, real
estate, easements, leaseholds and other rights or interests
in real estate, plants, structures, building equipment and
real estate improvements incidental to or useful in or in
connection with any business, operation or activity in
which this corporation is engaged or is authorized to
engage.
7. To apply for, obtain, keep in force and comply
with all licenses and permits from governmental authorities
and others which are deemed requisite or desirable in or in
connection with any business, operation or activity in
which this corporation is engaged or desires or is
authorized to engage.
8. To apply for, obtain, register, devise, adopt,
purchase, lease, take licenses or rights under or otherwise
acquire, and to hold, own, develop, maintain, protect,
operate under, exercise and use, and to grant licenses or
rights under, sell, assign, transfer or otherwise dispose
of, and generally to deal in and with, patents, trade-
marks, copyrights, inventions, improvements, processes,
formulae, trade names, designs and similar properties and
rights, and applications, registrations, reissues,
renewals, licenses and other rights and interests for, in,
to or under the same, and franchises, powers, rights,
privileges, grants, concessions, immunities and guaranties
from public authorities or others, all in or under the laws
of the United States of America or any state or other
government, country or place.
9. To subscribe for, purchase or otherwise acquire,
and to hold and own, and to sell, assign, transfer or
otherwise dispose of, and generally to deal in and with,
securities, and while the holder or owner thereof to have
and exercise all rights, powers and privileges of
ownership, including the right to vote or consent or give
proxies or powers of attorney therefor, and to carry on any
business, operation or activity through a wholly or partly
owned subsidiary.
3
10. To acquire by purchase, exchange, merger or
consolidation or otherwise all or any part of the property
and assets, including the business, good will, rights and
franchises, of any corporation, association, trust, firm or
individual wherever organized, created or located, and in
payment or exchange therefor to pay cash, transfer property
and issue securities to the transferor or its security
holders and to assume or become liable for any liabilities
and obligations, and to hold and operate or in any manner
to dispose of all or any part of the property and assets so
acquired.
11. To dispose by sale, exchange, merger or
consolidation or otherwise of all or any part of the
property and assets, including the business, good will,
rights and franchises of this corporation, to any
corporation, association, trust, firm or individual
wherever organized, created or located, for cash or
property, including securities, or the assumption of the
liabilities and obligations of this corporation, and if
desired, and subject to the rights of creditors and
preferred stockholders, to distribute such cash, securities
or other property to the security holders of this
corporation in exchange for or in partial or complete
liquidation or redemption of their securities.
12. To borrow money and obtain credit, and in
consideration of money borrowed or for the purpose of sale
or pledge or in order to pay, evidence or secure any
liability or obligation, to execute, issue and deliver and
sell, pledge or otherwise dispose of bonds, notes,
debentures or other evidences of indebtedness, secured or
unsecured, and to give security for any such bonds, notes,
debentures or other evidences of indebtedness or for any
purchase price, guaranty, line of credit, covenant,
fidelity or performance bond or any other liability or
obligation and any premium, interest and other sums due
thereon or therewith and any covenants or obligations
connected therewith; and for the foregoing purposes to
mortgage or pledge or execute an indenture of mortgage or
deed of trust upon or create a lien upon or other security
title or security interest in all or any part of the
property and assets, real and personal, of this
corporation, then owned or thereafter acquired.
13. To lend money, credit or security to, and to
guarantee or assume any liabilities and obligations of, and
to aid in any other manner, any corporation, association,
trust, firm or individual, wherever organized, created or
located, any of whose securities are held by this
corporation or in whose affairs or prosperity this
corporation has a lawful interest, and to do all acts and
things designed to protect, improve or enhance the value of
such securities or interest.
4
14. To execute, issue and deliver and to sell or
otherwise dispose of securities of this corporation
convertible into other securities, and options, warrants or
rights to subscribe for or purchase securities of this
corporation, to issue any of such options, warrants or
rights to any employees of this corporation, and to
maintain, operate and carry on for the benefit of any
employees any pension, retirement, profit-sharing, bonus,
health, disability, savings, loan, insurance, educational,
social, recreational or similar plans or arrangements.
15. To make contributions for charitable, scientific
or educational purposes or for the public welfare or for
public purposes, including contributions to corporations,
trusts, funds or foundations organized and operated for any
such purposes, and including any such foundation organized
by this corporation or by its directors or officers, and
including contributions to governments or governmental
bodies or agencies for public purposes, and any
contributions which at the time are allowed as deductions
from corporate gross income under the United States
Internal Revenue Code as amended.
16. To do any and all acts and things in this Article
Third set forth to the same extent as an individual might
or could do, as principal, factor, consignee, agent,
contractor or otherwise, and either alone or in conjunction
or jointly with any corporation, association, trust, firm
or individual, and, in general, to do any and all acts and
things and to engage in any and all businesses whatsoever,
necessary, suitable, advantageous or proper for or in
connection with or incidental to the exercise, transaction,
promotion, carrying on, accomplishment or attainment of any
of the businesses, powers, purposes or objects in this
Article Third set forth, excepting in every case all acts,
things and business forbidden by law.
17. In this Article Third the word "securities"
includes, to the extent that the context permits, stocks,
shares, bonds, notes, debentures and other evidences of
interest in or indebtedness of any corporation,
association, trust or firm wherever organized, created or
located, and notes and other evidences of indebtedness of
any individual wherever located, and bonds, notes,
debentures and other evidences of indebtedness of any
country, state, county, city, town or other governmental
body or agency wherever organized, created or located.
18. In this certificate of incorporation, unless it
is otherwise expressly provided, the conjunctive includes
the disjunctive and the singular includes the plural, and
vice versa; verbs in the present or future include both
present and future or either; the whole includes any part
5
or parts; no mention or inclusion of any particular example
or specific enumeration shall be deemed to limit any
general meaning; the statements of the businesses, objects
and purposes of this corporation shall be construed both as
objects and powers; the enumeration of specific powers
shall not be held to limit or restrict in any manner the
exercise by this corporation of the general powers
conferred upon corporations by the laws of the State of
Delaware, and no statement of any business, object or
purpose shall be deemed to limit or be exclusive of any
other stated business, object or purpose, but all are
separate and cumulative and all may be transacted, promoted
and carried on separately or together and at any time and
from time to time, and any business, object or purpose may
be transacted, promoted or carried on, and any property may
be owned or held, in any part of the world; and references
to the certificate of incorporation mean the provisions of
the certificate of incorporation (as that term is defined
in the General Corporation Law of the State of Delaware) of
this corporation as from time to time in effect, and
references to the by-laws or to any requirement or
provision of law mean the by-laws of this corporation or
such requirement or provision of law as from time to time
in effect.
FOURTH: The total number of shares of capital stock
of all classes which this Corporation shall have authority
to issue shall be forty-five million (45,000,000) shares,
consisting of forty million (40,000,000) shares of Common
Stock of the par value of one dollar ($1.00) per share,
amounting in aggregate to forty million dollars
($40,000,000), and five million (5,000,000) shares of
Preferred Stock of the par value of one dollar ($1.00) per
share, amounting in the aggregate to five million dollars
($5,000,000).
The holders of the Common Stock shall be entitled to
one vote for each share of Common Stock registered in the
name of such holder, and there shall be no cumulative
voting in elections for directors. The holders of the
Common Stock shall be entitled to such dividends as may
from time to time be declared by the Board of Directors,
but only when and as declared by the Board of Directors out
of any funds legally available for declaration of
dividends, and subject to any provisions of this
Certificate of Incorporation, as amended from time to time,
or of resolutions of the Board of Directors adopted
pursuant to authority herein contained, requiring that
dividends be declared and/or paid upon the outstanding
shares of Preferred Stock of any series or upon the
outstanding shares of any other class of capital stock
ranking senior to the Common Stock as to dividends as a
condition to the declaration and/or payment of any dividend
on the Common Stock; but no such provisions shall restrict
6
the declaration or payment of any dividend or distribution
of the Common Stock payable solely in shares of Common
Stock. In the event of the liquidation, dissolution or
winding up of the affairs of the corporation, the holders
of the Common Stock shall be entitled to share pro rata in
the net assets available for distribution to holders of
Common Stock after satisfaction of the prior claims of the
holders of shares of Preferred Stock of any series and
shares of any other class of capital stock ranking senior
to the Common Stock as to assets, in accordance with the
provisions of this Certificate of Incorporation, as amended
from time to time, or of resolutions of the Board of
Directors adopted pursuant to authority herein contained.
The Board of Directors is hereby authorized from time
to time to provide by resolution for the issuance of shares
of Preferred Stock in one or more series not exceeding the
aggregate number of shares of Preferred Stock authorized by
this Certificate of Incorporation, as amended from time to
time, and to determine with respect to each such series,
the voting powers, if any (which voting powers if granted
may be full or limited), designations, preferences, the
relative, participating, optional or other rights, and the
qualifications, limitations and restrictions appertaining
thereto, including, without limiting the generality of the
foregoing, the voting rights appertaining to shares of
Preferred Stock of any series (which may be one vote per
share or a fraction of a vote per share, and which may be
applicable generally or only upon the happening and
continuance of stated events or conditions), the rate of
dividend to which holders of Preferred Stock of any series
may be entitled (which may be cumulative or noncumulative),
the rights of holders of Preferred Stock of any series in
the event of the liquidation, dissolution or winding up of
the affairs of the Corporation and the rights (if any) of
holders of Preferred Stock of any series to convert or
exchange such shares of Preferred Stock of such series for
shares of Common Stock or for shares of Preferred Stock of
any other series or for shares of any other class of
capital stock (including the determination of the price or
prices or the rate or rates applicable to such rights to
convert or exchange and the adjustments thereof, the time
or times during which the right to convert or exchange
shall be applicable and the time or times during which a
particular price or rate shall be applicable).
Before the corporation shall issue any shares of
Preferred Stock of any series, a certificate setting forth
a copy of the resolution or resolutions of the Board of
Directors fixing the voting powers, designations,
preferences, the relative, participating, optional and
other rights, and the qualifications, limitations and
restrictions appertaining to the shares of Preferred Stock
of such series, and the number of shares of Preferred Stock
7
of such series authorized by the Board of Directors to be
issued, shall be made under seal of the corporation and
signed by the president or a vice-president and by the
secretary or an assistant secretary of the corporation and
acknowledged by such president or vice-president as
provided by the laws of the State of Delaware and shall be
filed and a copy thereof recorded in the manner prescribed
by the laws of the State of Delaware.
No pre-emptive rights. No stockholder of this
corporation shall have any pre-emptive or preferential
right to purchase or subscribe to any shares of any class
of this corporation now or hereafter to be authorized, or
any notes, debentures, bonds or other securities
convertible into, or carrying options or warrants to
purchase, shares of any class now or hereafter to be
authorized, whether or not the issue of any such shares or
such notes, debentures, bonds or other securities would
adversely affect the dividend or voting rights of such
stockholder, other than such rights, if any, as the board
of directors in its discretion from time to time may grant
and at such price as the board of directors in its
discretion may fix; and the board of directors may issue
shares of any class of this corporation, or any notes,
debentures, bonds or other securities convertible into or
carrying options or warrants to purchase shares of any
class, or options to purchase shares of any class, without
offering any such shares or securities or options, either
in whole or in part, to the existing stockholders of any
class.
FIFTH: The minimum amount of capital with which this
corporation will commence business is one thousand dollars
($1,000.).
The board of directors, without the assent of or other
action by the stockholders, may from time to time authorize
the issue and sale of shares of stock of this corporation
now or hereafter authorized, for such consideration and
upon such terms as the board may determine.
SIXTH: This corporation is to have perpetual
existence.
SEVENTH: The private property of the stockholders
shall not be subject to the payment of corporate debts.
EIGHTH: The following provisions are inserted for the
regulation and conduct of the affairs of this corporation,
and it is expressly provided that they are intended to be
in furtherance and not in limitation or exclusion of the
powers elsewhere conferred herein or in the by-laws or
conferred by law:
8
(a) Except as may be otherwise expressly required by
law or by other provisions of this certificate of
incorporation or by the by-laws, the board of directors
shall have and may exercise, transact, manage, promote and
carry on all of the powers, authorities, businesses,
objects and purposes of this corporation.
(b) Certain Provisions Relating to Nomination,
Election and Removal of Directors.
1. Election of Directors. Elections of
directors need not be by written ballot
unless the by-laws shall so provide. No
director need be a stockholder.
2. Number, Election and Terms of Directors.
Except as otherwise fixed pursuant to the
provisions of Article FOURTH hereof relating
to the rights of the holders of any class or
series of stock having a preference over the
Common Stock as to dividends or upon
liquidation to elect additional directors
under specified circumstances, the number of
directors of the Corporation shall be fixed
from time to time by or pursuant to the by-
laws. The directors, other than those who
may be elected by the holders of any class
or series of stock having preference over
the Common Stock as to dividends or upon
liquidation, shall be classified, with
respect to the time for which they severally
hold office, into three classes, designated
Class I, Class II and Class III, as nearly
equal in number as possible, with the term
of office of one Class expiring each year.
At the annual meeting of stockholders in
1985, directors of Class I shall be elected
to hold office for a term expiring at the
next succeeding annual meeting, directors of
Class II shall be elected to hold office for
a term expiring at the second succeeding
annual meeting, and directors of Class III
shall be elected to hold office for a term
expiring at the third succeeding annual
meeting, with the members of each Class to
hold office until their successors are
elected and qualified. At each subsequent
annual meeting of the stockholders of the
Corporation, the successors to the Class of
directors whose term expires at such meeting
shall be elected to hold office for a term
expiring at the annual meeting of
stockholders held in the third year
following the year of their election.
9
3. Stockholder Nomination of Director
Candidates. Advance notice of nominations
for the election of directors, other than by
the Board of Directors or a Committee
thereof, shall be given in the manner
provided in the by-laws.
4. Newly Created Directorships and Vacancies.
Except as otherwise fixed pursuant to the
provisions of Article FOURTH hereof relating
to the rights of the holders of any class or
series of stock having a preference over the
Common Stock as to dividends or upon
liquidation to elect directors under
specified circumstances, newly created
directorships resulting from any increase in
the number of directors and any vacancies on
the Board of Directors resulting from death,
resignation, disqualification, removal or
other cause shall be filled solely by the
affirmative vote of a majority of the
remaining directors then in office, even
though less than a quorum of the Board of
Directors, or by a sole remaining director.
Any director elected in accordance with the
preceding sentence shall hold office for the
remainder of the full term of the Class of
directors in which the new directorship was
created or the vacancy occurred and until
such director's successor shall have been
elected and qualified. No decrease in the
number of directors constituting the Board
of Directors shall shorten the term of any
incumbent director.
5. Removal of Directors. Except as otherwise
fixed pursuant to the provisions of Article
FOURTH hereof relating to the rights of the
holders of any class or series of stock
having a preference over the Common Stock as
to dividends or upon liquidation to elect
directors under specified circumstances, any
director may be removed from office without
cause only by the affirmative vote of the
holders of 66-2/3% of the combined voting
power of the then outstanding shares of
stock entitled to vote generally in the
election of directors voting together as a
single class.
(c) By-laws. The Board of Directors and the
stockholders shall each have the power to adopt, alter,
amend and repeal the by-laws; and any by-laws adopted by
10
the directors or the stockholders under the powers
conferred hereby may be altered, amended or repealed by the
directors or by the stockholders; provided, however, that
the by-laws shall not be altered, amended or repealed by
action of the stockholders, and no by-law shall be adopted
by action of the stockholders, without the affirmative vote
of the holders of at least 66-2/3% of the voting power of
all the shares of the Corporation entitled to vote
generally in the election of directors, voting together as
a single class.
(d) The board of directors may at any time set apart
out of any of the funds of this corporation available for
dividends a reserve or reserves for any proper purpose and
may at any time reduce or abolish any such reserve. Any
other proper reserves may also be carried.
(e) This corporation may purchase, hold, sell and
transfer shares of its own capital stock, but 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
the capital of this corporation, subject always to the
right of this corporation to reduce its capital or to
redeem any preferred or special shares out of capital as
permitted by law. Shares of its own capital stock
belonging to this corporation shall not be voted upon
directly or indirectly. The purchase, acquisition or
holding by this corporation of shares of its own capital
stock shall not be deemed to constitute the retirement of
such shares or a reduction of capital except as such shares
are formally retired or the capital is formally reduced in
accordance with the provisions of law therefor.
(f) Nothing in this certificate of incorporation
shall be deemed to prohibit the reissue of any shares of
capital stock of this corporation retired or reduced upon
or in connection with any reduction of capital, but upon
the filing and recording of the certificate of reduction
such shares shall have the status of authorized and
unissued shares of the class of stock to which such shares
belong, if and to the extent permitted by law. So far as
permitted by law the stockholders or board of directors
authorizing or effectuating any reduction of capital may
determine the manner in which such reduction shall be
effected and the extent, if any, to which any assets shall
be distributed to stockholders, and except as and to the
extent that such a distribution is so authorized or
provided for, no stockholder shall be entitled to demand
any distribution of assets in connection with or as the
result of any reduction of capital.
(g) The board of directors may from time to time
determine whether and to what extent and at what times and
places and under what conditions and regulations the
11
accounts and books and papers of this corporation, or any
of them, shall be open to the inspection of the
stockholders, and no stockholder shall have any right to
inspect any account, book or document of this corporation,
except as and to the extent expressly provided by law with
reference to the right of stockholders to examine the
original or duplicate stock ledger, or as otherwise
expressly provided by law, or except as expressly
authorized by resolution of the board of directors.
(h) The board of directors shall have the power to
fix from time to time the compensation of its members. No
person shall be disqualified from holding any office by
reason of any interest. In the absence of fraud or bad
faith, any director, officer or stockholder of this
corporation individually, or any individual having any
interest in any concern which is a stockholder of this
corporation, or any concern in which any such directors,
officers, stockholders or individuals have any interest,
may be a party to, or may be pecuniarily or otherwise
interested in, any contract, transaction or other act of
this corporation, and
(i) such contract, transaction or act shall not be in
any way invalidated or otherwise affected by that
fact;
(ii) no such director, officer, or stockholder shall
be liable to account to this corporation for any
profit or benefit realized through any such
contract, transaction or act; and
(iii) any such director of this corporation may be
counted in determining the existence of a quorum
at any meeting of the board of directors or of
any committee thereof which shall authorize any
such contract, transaction or act, and may vote
to authorize the same,
provided, however, that any contract, transaction or act in
which any director or officer of this corporation is so
interested individually or as a director, officer, trustee
or member of any concern which is not a subsidiary or
affiliate of this corporation, or in which any directors or
officers, respectively, are so interested as holders,
collectively, of a majority of shares of capital stock or
other beneficial interest at the time outstanding in any
concern which is not a subsidiary or affiliate of this
corporation, shall be duly authorized or ratified by a
majority of the board of directors who are not so
interested and to whom the nature of such interest has been
disclosed. With respect to the matters herein contained,
12
(a) the word "interest" shall include personal interest
and interest as a director, officer, stockholder,
shareholder, trustee, member or beneficiary of any
concern;
(b) the word "concern" shall mean any corporation,
association, trust, partnership, firm, person or other
entity other than this corporation; and
(c) the phrase "subsidiary or affiliate" shall mean a
concern in which a majority of the directors,
trustees, partners or controlling persons are elected
or appointed by the directors of this corporation, or
are constituted of the directors or officers of this
corporation.
To the extent permitted by law, the authorizing or
ratifying vote of a majority in interest of each class of
the capital stock of this corporation outstanding and
entitled to vote for directors at an annual meeting or a
special meeting duly called for the purpose (whether such
vote is passed before or after judgment rendered in a suit
with respect to such contract, transaction or act) shall
validate any contract, transaction or act of this
corporation, or of the board of directors or any committee
thereof, with regard to all stockholders of this
corporation, whether or not of record at the time of such
vote, and with regard to all creditors and other claimants
under this corporation, provided, however, that with
respect to the authorization or ratification of contracts,
transactions or acts in which any of the directors,
officers or stockholders of this corporation have an
interest, the nature of such contracts, transactions or
acts and the interest of any director, officer or
stockholder therein shall be summarized in the notice of
any such annual or special meeting, or in a statement or
letter accompanying such notice, and shall be fully
disclosed at any such meeting, and provided also that
stockholders so interested may vote at any such meeting,
and provided further that any failure of the stockholders
to authorize or ratify such contract, transaction or act
shall not be deemed in any way to invalidate the same or to
deprive this corporation, its directors, officers or
employees of its or their right to proceed with such
contract, transaction or act.
No contract, transaction or act shall be avoided by reason
of any provision of this clause (h) which would be valid
but for those provisions.
(i) The Corporation shall indemnify each person who
is or was a director or officer of this Corporation against
expenses (including attorney's fees), judgments, fines and
amounts paid in settlement to the maximum extent permitted
13
from time to time under the General Corporation Law of the
State of Delaware. Such indemnification shall not be
exclusive of other indemnification rights arising under any
by-law, agreement, vote of directors or stockholders or
otherwise and shall inure to the benefit of the heirs and
legal representatives of such person.
(j) Special Voting Requirement for Defined Business
Combinations. The affirmative vote of the holders of not
less than 80 percent of the outstanding shares of Common
Stock and the affirmative vote of the holders of not less
than 67 percent of the outstanding shares of Common Stock
held by stockholders other than a Related Person shall be
required for the approval or authorization of any Business
Combination; provided, however, that the 80 percent and 67
percent voting requirements shall not be applicable if:
Exceptions to Special Voting Requirements:
(1) The Continuing Directors by a two-thirds vote (a)
have expressly approved in advance either the acquisition
of outstanding shares of stock, or the issue or sale by the
Corporation of shares of stock, that caused the Related
Person to become a Related Person and (b) in advance of
such acquisition or issue or sale have determined that the
80 percent and 67 percent voting requirements of this
clause (j) of Article EIGHTH shall not be applicable to
Business Combinations with such Related Person; or
(2) The Continuing Directors have approved the
Business Combination; or
(3) The Business Combination is a merger or
consolidation and the cash or fair market value of each of
the property, securities or other consideration to be
received per share by the holders of Common Stock in the
Business Combination is not less than the highest per share
price (with appropriate adjustments for recapitalizations
and for stock splits, stock dividends and like
distributions, such distributions to be valued as of the
distribution date) paid by the Related Person in acquiring
any of its holdings of Common Stock within the three-year
period preceding the earlier of the Business Combination or
the first public announcement of the proposal of the
Business Combination.
Definitions
For the purposes of this clause (j) of Article EIGHTH:
(i) The term "Business Combination" shall mean any
transaction or other arrangement meeting any of the
following descriptions: (a) any merger or consolidation
of the Corporation or a Subsidiary with or into a Related
14
Person or any other corporation which is, or after such
merger or consolidation would be, an Affiliate of a Related
Person; (b) any sale, lease, exchange, transfer or other
disposition (including without limitation the creation of a
mortgage or any other security device), in one transaction
or a series of transactions, of any substantial part of the
assets of the Corporation (including without limitation any
voting securities of a Subsidiary) or of a Subsidiary to a
Related Person or of an Affiliate of a Related Person; (c)
any sale, lease, exchange, transfer or other disposition of
any substantial part of the assets of a Related Person, or
an Affiliate of a Related Person, to the Corporation or a
Subsidiary; (d) the issuance by the Corporation or any
Subsidiary of any securities of the Corporation or of a
Subsidiary to a Related Person or an Affiliate of a Related
Person, other than pursuant to an employee plan approved by
the Continuing Directors and by the stockholders of the
Corporation; (e) the acquisition by the Corporation or a
Subsidiary of any securities of a Related Person or of an
Affiliate of a Related Person; (f) any reclassification of
securities (including any reverse stock split), or
recapitalization of the Corporation or any other
transaction (whether or not with or into or otherwise
involving a Related Person) which has 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 which is
directly or indirectly owned by any Related Person or any
Affiliate of any Related Person; (g) any transaction
(including a merger or consolidation of the Corporation
with or into a Subsidiary) occurring at a time when a
Related Person exists in which the proportionate interests
of the Stockholders of the Corporation in the assets of the
Corporation are unchanged but as a result of which the
provisions of this clause (j) of Article EIGHTH or
substantially equivalent provisions would thereafter cease
to be in effect; and (h) any agreement, contract or other
arrangement providing for any of the transactions described
in this definition of Business Combination.
(ii) The term "Related Person" shall include any
individual, corporation, partnership or other person or
entity (each of the foregoing constituting a "Person") that
together with its Affiliates and Associates owns in the
aggregate five percent or more of the outstanding shares of
the Common Stock of the Corporation, and any Affiliate or
Associate of any such Person; provided, however, that (a)
the term "Related Person" shall not include the Corporation
or any Subsidiary or any Person that would have been a
Related Person if this clause (j) of Article EIGHTH had
been in effect on December 31, 1982, or any present or
future custodian, trustee or legal representative of such
Person, and (b) any shares of Common Stock owned at any
time by such Person, or by such custodian, trustee or legal
15
representative, shall not at any time be attributed to any
other Person for determining whether such other Person is a
Related Person. The exclusions set forth in (ii)(a) and
(b) above shall cease to apply to any such excluded Person
and his custodians, trustees and legal representatives and
to shares owned by any of them on and after the date on
which such Person ceases to own five percent or more of the
outstanding shares of Common Stock of the Corporation.
(iii) The term "substantial part" shall mean assets
having an aggregate fair value in excess of one million
dollars.
(iv) A Person shall be deemed to own any Common
Stock:
(a) of which such Person would be the beneficial
owner, as such term is defined in Rule 13d-3
promulgated by the Securities and Exchange
Commission (the "Commission") under the
Securities Exchange Act of 1934 (the "Act"), as
such Rule was in effect on December 31, 1982; or
(b) of which such Person would be the beneficial
owner, as such term is defined under Section 16
of the Act and the rules of the Commission
promulgated thereunder, as in effect on December
31, 1982; or
(c) which such Person or any of its Affiliates or
Associates has 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
(d) which such Person's relatives of the fourth
degree of consanguinity or closer would be deemed
to own pursuant to this provision.
(v) For the purposes of subparagraph (3) of this
clause (j) of Article EIGHTH, the term "other consideration
to be received" shall include, without limitation, Common
Stock retained by its existing public stockholders in the
event of a Business Combination in which the Corporation is
the surviving corporation.
(vi) With respect to any proposed Business
Combination, the term "Continuing Director" shall mean (a)
any director who was a member of the Board of Directors of
the Corporation on December 31, 1982, and (b) any director
who was a member of the Board of Directors of the
Corporation immediately prior to the time that any Related
16
Person involved in the proposed Business Combination became
a Related Person (or, if the transaction involves more than
one Related Person, immediately prior to the time the first
of such Persons to become a Related Person became a Related
Person) and (c) any director who is not an Affiliate or
Associate of a Related Person and is recommended for his or
her initial term of office by a two-thirds vote of
Continuing Directors then on the Board.
(vii) "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2
promulgated by the Commission under the Act, as such Rule
was in effect on December 31, 1982.
(viii) "Subsidiary" shall mean any Person of which a
majority of any class of equity security is owned, directly
or indirectly, by the Corporation; provided, however, that
for the purposes of the definition of Related Person, the
term "Subsidiary" shall mean only a Person of which a
majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
Amendment, Expiration and Extension
This clause (j) of Article EIGHTH (including the
provisions set forth in this paragraph) may not be repealed
or amended in any respect, unless such action is approved
by the affirmative vote of the holders of not less than 80
percent of the outstanding shares of Common Stock;
provided, however, that if there is a Related Person, such
action must also be approved by the affirmative vote of the
holders of not less than 67 percent of the outstanding
shares of Common Stock held by stockholders other than the
Related Person. Notwithstanding the preceding sentence,
this clause (j) of Article EIGHTH shall expire at the
Annual Meeting of Stockholders to be held in 1990, unless
its continuance for a fixed or indefinite period has been
specifically approved at any time before that date by an
affirmative majority of the outstanding shares of Common
Stock.
(k) Stockholder Action. Any action required or
permitted to be taken by the stockholders of the
Corporation, or any class or series thereof, must be
effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing
by such holders. Except as otherwise required by law and
subject to the rights of the holders of any class or series
of stock having a preference over the Common Stock as to
dividends or upon liquidation, special meetings of
stockholders of the Corporation may be called only by the
Chairman of the Board, the President or the Board of
Directors pursuant to a resolution approved by a majority
of the entire Board of Directors.
17
(l) Certain Amendments, etc. Notwithstanding
anything contained in this Certificate of Incorporation to
the contrary, the affirmative vote of the holders of at
least 66-2/3% of the voting power of all shares of the
Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be
required to alter, amend, adopt any provision inconsistent
with, or repeal, paragraphs (b), (c), (k) or this paragraph
(1) of this Article EIGHTH or any provision hereof or
thereof.
NINTH: Subject to the applicable provisions (if any)
of this certificate of incorporation, this corporation
reserves the right to amend, alter, change, add to or
repeal any provision contained in this certificate of
incorporation, in the manner now or hereafter prescribed by
law.
IN WITNESS WHEREOF, Zayre Corp. has caused this
certificate to be signed by Sumner Feldberg, its Chairman
of the Board, and Newton A. Lane, its Secretary, and its
corporate seal affixed hereto, this 4th day of June, 1985.
This certificate is to be filed with the Secretary of State
of the State of Delaware, and recorded with the Recorder of
Deeds of New Castle County, Delaware, pursuant to Sections
104 and 245 of the General Corporation Law of the State of
Delaware.
ZAYRE CORP.
By /s/ Sumner Feldberg
Sumner Feldberg,
Chairman of the Board
Attest /s/ Newton A. Lane
Newton A. Lane,
Secretary
18