RESTATED CERTIFICATE OF INCORPORATION
OF
THE FORSCHNER GROUP, INC.
-------------------------
It is hereby certified that:
FIRST: The present name of the corporation (hereinafter
referred to as the "Corporation") is The Forschner Group, Inc.
The Corporation was originally incorporated under the name R. H.
Forschner Co., Inc. The original Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on
December 12, 1974.
SECOND: The provisions of the Certificate of Incorporation
as heretofore amended are hereby restated and integrated into a
single instrument that is entitled Restated Certificate of
Incorporation of The Forschner Group, Inc. There is no
discrepancy between the provisions of the Certificate of
Incorporation as heretofore amended and the provisions of the
Restated Certificate of Incorporation of the Forschner Group as
hereinafter set forth.
THIRD: The Board of Directors of the Corporation has duly
adopted this Restated Certificate of Incorporation of the
Corporation pursuant to the provisions of Section 245 of the
General Corporation Law of the State of Delaware in the form set
forth as follows:
"RESTATED CERTIFICATE OF INCORPORATION
of
THE FORSCHNER GROUP, INC.
-------------------------
FIRST: The name of the corporation is:
THE FORSCHNER GROUP, INC.
SECOND: The address of its registered office in the State of
Delaware is 26 The Green, in the City of Dover, County of Kent.
The name of the registered agent at such address is XL Corporate
Services, Inc.
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THIRD: The nature of the business or purposes to be
conducted or promoted is to engage in any lawful act or activity
for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares which the Corporation
shall have the authority to issue shall be Eight Million
(8,000,000) shares, par value $.10 per share, all of which shall
be designated as Common Stock.
FIFTH: The corporation reserves the right to amend, alter,
change or repeal any provision contained in this certificate of
incorporation, in the manner now or hereafter prescribed by
statute, and all rights and powers conferred herein upon
stockholders and directors are granted subject to this
reservation.
SIXTH: To the fullest extent permitted by the Delaware
General Corporation Law as the same exists or may hereafter be
amended, a director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director. Without limiting the
foregoing in any respect, a director of this Corporation shall
not be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any 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) under Section 174
of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal
benefit.
SEVENTH: (a) Right to Indemnification. (i) Each person who
was or is made a party or is threatened to be made a party to or
is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a
director or officer of the Corporation, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including
attorneys' fees,
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judgments, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators, and
(ii) the Corporation may indemnify and hold harmless in such
manner any person who was or is made a party or is threatened to
be made a party to a proceeding by reason of the fact that he,
she or a person of whom he or she is the legal representative, is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or a
partnership, joint venture, trust or other enterprise; provided,
however, that except as provided in paragraph (b) hereof, the
Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part
thereof) was authorized by the board of directors of the
Corporation. In the event a director or officer of the
Corporation shall serve as a director, officer, employee or agent
of any corporation, partnership, joint venture, trust or other
enterprise in which the Corporation maintains an investment it
shall be conclusively presumed for purposes of the
indemnification provided for in subsection (ii) above that such
service has been undertaken at the request of the Corporation.
The foregoing presumption shall apply regardless of whether such
director or officer is serving such entity at the request of a
third party or that his or her service with such entity was
commenced prior to the effectiveness of this Article of the
Certificate of Incorporation or prior to his or her becoming an
officer or director of the Corporation. The right to
indemnification conferred in subsection (i) above shall be a
contract right based upon an offer from the Corporation which
shall be deemed to be accepted by such person's service or
continued service with the Corporation for any period after the
adoption of this Article of the Certificate of Incorporation and
shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may,
by action of its Board of Directors, provide
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indemnification to employees or agents of the Corporation
with the same scope and effect as the foregoing indemnification
of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under
subsection a(i) of this Article is not paid in full by the
Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the claimant
has not met the standards of conduct which make it permissible
under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders), that
the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Section shall
not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Certificate
of Incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at
its expense, to protect itself and any director, officer,
employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such
expense, liability or loss under the Delaware Corporation Law.
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EIGHTH: The Board of Directors of the Corporation is
expressly authorized to adopt, amend or repeal the By-Laws of the
Corporation."
IN WITNESS WHEREOF, the undersigned have executed this
Restated Certificate of Incorporation this 10th day of June,
1987.
Signature
James W. Kennedy
President
ATTEST:
Signature
Joel Wulinsky
Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE FORSCHNER GROUP, INC.
The Forschner Group, Inc. (the "Corporation"), a corporation
organized and existing by virtue of the General Corporation Law
of the State of Delaware, does hereby certify as follows:
1. The Certificate of Incorporation of the Corporation, as
heretofore amended, authorized the issuance of eight million
(8,000,000) shares of capital stock, all of which shares were
designated Common Stock, par value $.10 per share.
2. In order to change the capital structure of the
Corporation, Article FOURTH of the Certificate of Incorporation
of the Corporation is hereby amended to read in its entirety as
follows:
"FOURTH: Capital Stock. The total number of shares of
capital stock ("Capital Stock") which the Corporation shall have
authority to issue is fourteen million (14,000,000), all of the
par value $.10 per share, of which twelve million (12,000,000)
shares shall be designated Common Stock and two million
(2,000,000) shares shall be designated Preferred Stock.
Except for shares of Preferred Stock, the powers,
preferences and relative, participating, optional or other
special rights, including, without limitation, the right to
receive dividends, and the qualifications, limitations or
restrictions with respect thereto, of each share of capital stock
shall be identical, share for share.
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(a) Voting. Shares of Common Stock shall entitle the holders
thereof to one vote for each share upon all matters upon which
stockholders have the right to vote. Shares of Preferred Stock
shall entitle the holders thereof to such vote, if any, as shall
be fixed by the Board of Directors (or duly authorized committee
thereof) pursuant to Article FOURTH (b).
(b) Preferred Stock. Authority is hereby expressly granted
to the Board of Directors or a duly authorized committee thereof
at any time and from time to time to issue shares of Preferred
Stock in one or more series and for such consideration as may be
fixed from time to time by the Board of Directors, and to fix,
before the issuance of any shares of a particular series of
Preferred Stock, the designation of such series; the number of
shares to comprise such series; the dividend rate per annum,
liquidation rights and redemption price or prices, if any, of
such series; the terms and conditions of any such redemption; the
sinking fund provisions, if any, in respect of such series; the
terms and conditions on which the shares of such series are
convertible, if they are convertible; and any other rights,
preferences and limitations pertaining to such series. All shares
of any one series of Preferred Stock shall be identical. To the
extent so fixed by the Board of Directors and consistent with
applicable law, each such series of Preferred Stock shall have
rights and preferences senior to the rights herein granted to the
Common Stock.
(c) Dividends. Subject to the rights of the holders of
shares of Preferred Stock (if any shares of Preferred Stock shall
be issued), dividends payable in cash or property are payable if,
when, and as declared by the Board of Directors out of funds
legally available therefor.
(d) Reservation of Shares. Such number of shares of Common
Stock as may from time to time be required for the purpose shall
be reserved for issuance (i) upon conversion of any Preferred
Stock which shall be convertible or any obligation of the
Corporation convertible into shares of Common Stock and (ii) upon
exercise of any options or warrants to purchase shares of Common
Stock."
3. This amendment to the Certificate of Incorporation has
been duly adopted by the vote of the holders of a majority of the
outstanding securities of the Corporation entitled to vote
thereon in accordance with the provisions of Section 242 of the
Delaware General Corporation Law.
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IN WITNESS WHEREOF, the undersigned have executed this
Certificate as of this 30th day of June, 1993.
Signature
James W. Kennedy
President and Chief
Executive Officer
Attest:
Signature
Thomas M. Lupinski
Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE FORSCHNER GROUP, INC.
The Forschner Group, Inc. (the "Corporation"), a corporation
organized and existing by virtue of the General Corporation Law
of the State of Delaware, does hereby certify as follows:
FIRST: The name of the Corporation is "THE FORSCHNER GROUP,
INC."
SECOND: The Certificate of Incorporation of the Corporation
was filed in the Office of the Secretary of State of the State of
Delaware on the 12th day of December, 1974 under the name R.H.
Forschner Co., Inc.
THIRD: A Certificate of Amendment to the Certificate of
Incorporation was filed in the office of the Secretary of State
of Delaware on the 4th day of December, 1983 for the purpose of
changing the name of the Corporation to The Forschner Group, Inc.
FOURTH: The purpose of the amendment of the Certificate of
Incorporation effected by this Certificate of Amendment is to
change the name of the Corporation.
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FIFTH: To accomplish the foregoing amendment, Article FIRST
of the Certificate of Incorporation of the Corporation is hereby
deleted in its entirety and a new Article FIRST is inserted in
its stead, to read as follows:
"FIRST: The name of the Corporation is: SWISS ARMY BRANDS,
INC."
SIXTH: This amendment to the Certificate of Incorporation
has been duly adopted by the vote of the holders of a majority of
the outstanding securities of the Corporation entitled to vote
thereon in accordance with the provisions of Section 242 of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned have executed this
Certificate as of this 16th day of May, 1996.
Signature
J. Merrick Taggart
President
Attest:
Signature
Thomas M. Lupinski
Secretary
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