EXHIBIT 3.1(a)
RESTATED CERTIFICATE OF INCORPORATION
of
THE NEIMAN MARCUS GROUP, INC.
First: The name of the Corporation is The Neiman
Marcus Group, Inc. (hereinafter the "Corporation").
Second: The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at that address is The Corporation Trust
Company.
Third: The purpose of the Corporation is to engage in
any lawful act or activity for which a corporation may be
organized under the General Corporation Law of the State of
Delaware (the "GCL").
Fourth:
1. Authorized Stock. The total number of shares
which the Corporation is authorized to issue is three hundred
million (300,000,000) shares. Two hundred fifty million
(250,000,000) shares shall be designated common stock (the
"Common Stock"), of which one hundred million (100,000,000)
shares shall be designated Class A Common Stock (the "Class A
Common Stock"), one hundred million (100,000,000) shares shall be
designated Class B Common Stock (the "Class B Common Stock") and
fifty million (50,000,000) shares shall be designated Class C
Common Stock (the "Class C Common Stock"). Fifty million
(50,000,000) shares shall be designated preferred stock (the
"Preferred Stock"), all of which are presently undesignated as to
series. Each share of Preferred Stock shall have a par value of
$0.01 and each share of Common Stock shall have a par value of
$0.01.
2. Common Stock. The Class A Common Stock, the Class
B Common Stock and the Class C Common Stock shall be identical in
all respects, except as otherwise expressly provided herein. The
relative powers, preferences, rights, qualifications, limitations
and restrictions of the shares of Class A Common Stock, Class B
Common Stock and Class C Common Stock shall be as follows:
(a) Cash Dividends. Subject to the rights and
preferences of the Preferred Stock as set forth in any resolution
or resolutions of the Board of Directors providing for the
issuance of such stock pursuant to this Article Fourth, and
except as otherwise provided for herein, the holders of Class A
Common Stock, Class B Common Stock and Class C Common Stock are
entitled to receive dividends out of assets legally available
therefor at such times and in such per share amounts as the Board
of Directors may from time to time determine; provided that
whenever a cash dividend is paid, the same amount shall be paid
in respect of each outstanding share of Class A Common Stock,
Class B Common Stock and Class C Common Stock.
(b) Stock Dividends. If at any time a dividend is to
be paid in shares of Class A Common Stock, shares of Class B
Common Stock or shares of Class C Common Stock (a "stock
dividend"), such stock dividend may be declared and paid only as
follows: only Class A Common Stock may be paid to holders of
Class A Common Stock, only Class B Common Stock may be paid to
holders of Class B Common Stock and only Class C Common Stock may
be paid to holders of Class C Common Stock. Whenever a stock
dividend is paid, the same rate or ratio of shares shall be paid
in respect of each outstanding share of Class A Common Stock,
Class B Common Stock and Class C Common Stock.
(c) Property Dividends. If at any time a dividend is
to be paid in rights to purchase shares of Series A Preferred
Stock, shares of Series B Preferred Stock or shares of Series C
Preferred Stock (a "rights dividend") (including in each case
with adjustments that will, under certain circumstances,
constitute rights to purchase Class A Common Stock, Class B
Common Stock and Class C Common Stock, respectively), such rights
dividend may be declared and paid only as follows: only rights
to purchase Series A Preferred Stock may be paid to holders of
Class A Common Stock, only rights to purchase Series B Preferred
Stock may be paid to holders of Class B Common Stock and only
rights to purchase Series C Preferred Stock may be paid to
holders of Class C Common Stock. Whenever any other property
dividend is paid, the same rate or ratio of shares or other
property shall be paid in respect of each outstanding share of
Class A Common Stock, Class B Common Stock and Class C Common
Stock. The references in this paragraph to any series of
preferred stock contemplate the issuance of such preferred stock
pursuant to a stockholders rights plan adopted by the
Corporation.
(d) Stock Subdivisions and Combinations. The
Corporation shall not subdivide, reclassify or combine stock of
any class of Common Stock without at the same time making a
proportionate subdivision, reclassification or combination of
shares of the other classes.
(e) Voting. Voting power shall be divided between the
classes of stock as follows:
(i) Subject to Sections (2)(e)(ii) and (2)(e)(iv)
of this Article Fourth, with respect to the election of
directors, holders of Class A Common Stock and holders of Class C
Common Stock, voting together as a class, shall be entitled to
elect that number of directors which constitutes 18% of the
authorized number of members of the Board of Directors (or, if
such 18% is not a whole number, then the nearest lower whole
number) (the "Class A Directors"). Each share of Class A Common
Stock shall have one vote in the election of the Class A
Directors and each share of Class C Common Stock shall have one-
tenth (1/10th) of one vote in the election of the Class A
Directors. Subject to Section (2)(e)(ii) of this Article Fourth,
holders of Class B Common Stock shall be entitled to elect the
remaining directors (the "Class B Directors"). The initial Class
A Director shall be designated by a majority of the directors of
the Corporation as of the effectiveness of this Amendment, and
the holders of Class A Common Stock and Class C Common Stock,
voting together as a class, shall be entitled to vote for the
election or replacement of such Class A Director in satisfaction
of their "Special Voting Rights" as defined in clause (ii) below,
at the next election of directors of the Class (e.g. Class I,
Class II or Class III) in which such director serves are elected.
Each share of Class B Common Stock shall have one vote in the
election of Class B Directors. For purposes of this Section
(2)(e)(i), references to the authorized number of members of the
Board of Directors shall not include any directors which the
holders of any shares of any series of Preferred Stock have the
right to elect.
(ii) For purposes of this Section (2)(e)(ii),
"Special Voting Rights" means the different voting rights of the
holders of Class A Common Stock and Class C Common Stock, on the
one hand, and holders of Class B Common Stock, on the other hand,
with respect to the election of the applicable percentage of the
authorized number of members of the Board of Directors as
described in Section (2)(e)(i). If approved by the Board of
Directors, at any annual or special meeting of stockholders of
the Corporation held at any time after the fifth anniversary of
the distribution by Harcourt General, Inc. to its stockholders of
all of the Class B Common Stock owned by it (the "Fifth Year
Anniversary"), a majority of the outstanding shares of the Class
A Common Stock and Class C Common Stock, voting together as a
class, and a majority of the outstanding shares of the Class B
Common Stock, voting separately as a class, may vote to eliminate
the Special Voting Rights, in which case Section (2)(e)(i) of
this Article Fourth shall have no further force or effect, and
thereafter holders of Common Stock shall have voting rights as
are specified in Section (2)(e)(iv) of this Article Fourth and
shall be entitled to elect all members of the Board of Directors.
This Section (2)(e)(ii) shall not be amended prior to the Fifth
Year Anniversary without the affirmative vote of the holders of
at least 66-2/3% of the combined voting power of all of the
Voting Stock, voting together as a single class, together with
any vote of the holders of any class of stock required by law.
(iii) Unless the Special Voting Rights have
been eliminated in accordance with Section (2)(e)(ii) of Article
Fourth, all newly-created directorships resulting from an
increase in the authorized number of directors shall be allocated
between Class A Directors and Class B Directors such that at all
times the number of Class A directorships shall be 18% of the
authorized number of members of the Board of Directors (or, if
such 18% is not a whole number, then the nearest lower whole
number) and the remaining directorships shall be Class B
directorships.
(iv) Except as otherwise specified herein or
required by law, the holders of Class A Common Stock, Class B
Common Stock and Class C Common Stock shall in all matters not
otherwise specified in this Section (2)(e) of this Article Fourth
vote together as one class (including, without limitation, with
respect to increases or decreases in the authorized number of
shares of any class of stock of the Corporation and without the
vote of any class voting separately as a class), with each share
of Class A Common Stock and Class B Common Stock having one vote
and each share of Class C Common Stock having one-tenth (1/10th)
vote.
(v) Every reference in this Restated Certificate
of Incorporation or the Corporation's Amended and Restated By-
laws to a majority or other proportion of shares of stock shall
refer to such majority or other proportion of the votes of such
shares of stock.
(f) Merger or Consolidation. The Corporation shall
not enter into any consolidation of the Corporation with one or
more other corporations, a merger of the Corporation with
another corporation, a reorganization of the Corporation or other
similar combination of the Corporation with one or more third
parties, in which each holder of a share of Class A Common Stock,
Class B Common Stock and Class C Common Stock is not entitled to
receive with respect to such share the same kind and amount of
shares of stock and other securities and property (including
cash) receivable upon such consolidation, merger, reorganization
or other combination as each other holder of a share of Class A
Common Stock, Class B Common Stock and Class C Common Stock;
provided that, in any such transaction, the holders of shares of
Class A Common Stock, Class B Common Stock and Class C Common
Stock may each receive different kinds of shares of stock that
differ to the extent and only to the extent that the Board of
Directors determines in good faith that such shares differ with
respect to the rights of holders of such shares as the Class A
Common Stock, Class B Common Stock and Class C Common Stock
differ as provided herein.
(g) Liquidation. In the event of any liquidation,
dissolution or winding up of the Corporation, the holders of the
Class A Common Stock, Class B Common Stock and Class C Common
Stock shall participate equally per share in any distribution to
stockholders, without distinction between classes.
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 Restated
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 and relative, participating, optional
or other special rights, and the qualifications, limitations or
restrictions relating thereto; including without limiting the
generality of the foregoing, the voting rights relating to shares
of Preferred Stock of any series (which may be one or more votes
per share or a fraction of a vote per share, which may vary over
time 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 liquidation, dissolution or winding up of
the affairs of the Corporation, 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 any other class
or series of capital stock or for any other securities, property
or assets of the Corporation or any subsidiary (including the
determination of the price or prices or the rate or rates
applicable to such rights to convert or exchange and the
adjustment 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),
whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and
at different redemption dates, and whether any shares of that
series shall be redeemed pursuant to a retirement or sinking fund
or otherwise and the terms and conditions of such obligation.
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 or other rights, if any, and
the qualifications, limitations and restrictions, if any,
relating to the shares of Preferred Stock of such series, and the
number of shares of Preferred Stock of such series authorized by
the Board of Directors to be issued shall be made under seal of
the Corporation and signed by and shall be filed and a copy
thereof recorded in the manner prescribed by the GCL. The Board
of Directors is further authorized to increase or decrease (but
not below the number of such shares of such series then
outstanding) the number of shares of any series subsequent to the
issuance of shares of that series.
Fifth: The directors shall have concurrent power with
the stockholders to make, alter, amend, change, add to or repeal
the By-Laws of the Corporation.
Sixth: Whenever a compromise or arrangement is
proposed between the Corporation and its creditors or any class
of them and/or between the Corporation and its stockholders or
any class of them, any court of equitable jurisdiction within the
State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the
Corporation under the provisions of Section 291 of the GCL or on
the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of
Section 279 of the GCL, order a meeting of the creditors or class
of creditors, and/or of the stockholders or class of stockholders
of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of
the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as a
consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if
sanctioned by the court to which the said application has been
made, be binding on all the creditors or class of creditors,
and/or on all the stockholders or class of stockholders, of the
Corporation, as the case may be, and also on the Corporation.
Seventh: Except as otherwise fixed pursuant to the
provisions of Article Fourth of this Restated Certificate of
Incorporation relating to the rights of the holders of any one or
more classes or series of Preferred Stock issued by the
Corporation to call an annual or special meeting of stockholders,
special meetings of the stockholders of the Corporation may not
be called by the stockholders of the Corporation.
Eighth: Notwithstanding the GCL, any action required
to be taken or which may be taken by the holders of the Common
Stock must be effected at a duly called annual or special meeting
of such holders and may not be taken by any consent in writing by
such holders.
Ninth: The directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class
shall consist, as nearly as may be possible, of one third of the
total number of directors constituting the entire Board of
Directors. Initially, Class I directors shall be elected for a
one-year term, Class II directors for a two-year term and
Class III directors for a three-year term. At the annual meeting
of stockholders beginning in 1988, successors to the class of
directors whose term expires at that annual meeting shall be
elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class
as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in
such class shall hold office for a term that shall coincide with
the remaining term of that class, but in no case will a decrease
in the number of directors shorten the term of any incumbent
director. A director shall hold office until the annual meeting
for the year in which his term expires and until his successor
shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from
office. Any vacancy in the office of a director created by the
death, resignation, retirement, disqualification, removal from
office of a director or other cause, elected by (or appointed on
behalf of) the holders of the Class B Common Stock, on the one
hand, or the holders of the Class A Common Stock and any other
class of stock entitled to vote for the class of directors
elected by the holders of the Class A Common Stock, on the other
hand, as the case may be, shall be filled by the vote of the
majority of the directors (or the sole remaining director)
elected by (or appointed on behalf of) such holders of Class B
Common Stock, on the one hand, or Class A Common Stock and any
other class of stock entitled to vote for the class of directors
elected by the holders of the Class A Common Stock, on the other
hand (or on behalf of whom that director was appointed), as the
case may be, unless there are no such directors in such Class, in
which case such vacancy shall be filled by the stockholders of
such Class, or the Special Voting Rights have been eliminated in
accordance with Section (2)(e)(ii) of Article Fourth, in which
case such vacancy shall be filled by the vote of the majority of
the directors (or the sole remaining director), regardless of any
quorum requirements set out in the By-laws. Any director elected
to fill a vacancy not resulting from an increase in the number of
directors shall have the same remaining term as that of his
predecessor.
Unless the Special Voting Rights have been eliminated
in accordance with Section (2)(e)(ii) of Article Fourth, all
newly-created directorships resulting from an increase in the
authorized number of directors shall be allocated pursuant to
Section (2)(e)(iii) of Article Fourth. Once such newly-created
directorships have been allocated as Class A Directors or Class B
Directors, such newly-created directorships shall be filled by
the vote of the majority of the directors in such Class (or the
sole remaining director in such Class), as the case shall be,
unless there are no such directors in such Class, in which case
such vacancy shall be filled by the stockholders of such Class,
or the Special Voting Rights have been eliminated in accordance
with Section (2)(e)(ii) of Article Fourth, in which case such
vacancy shall be filled by the vote of the majority of the
directors (or the sole remaining director), regardless of any
quorum requirements set out in the By-laws.
In the event that there are no remaining directors, any
vacancy in the office of a director shall be filled by the vote
of the majority of stockholders who elected such director (or on
whose behalf such director was appointed.
Notwithstanding the foregoing, whenever pursuant to the
provisions of Article Fourth of this Restated Certificate of
Incorporation, the holders of any one or more classes or series
of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors
at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of this Restated
Certificate of Incorporation applicable thereto, and such
directors so elected shall not be divided into classes pursuant
to this Article Ninth unless expressly provided by such terms.
Tenth: No director shall be personally liable to the
Corporation or any of 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) pursuant to Section 174 of the
GCL or (iv) for any transaction from which the director derived
an improper personal benefit. Any repeal or modification of this
Article Tenth by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification
with respect to acts or omissions for or with respect to any acts
or omissions of such director occurring prior to such repeal or
modification.
Eleventh: Subject to Article Fifth and notwithstanding
anything else contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the
holders of at least 66 2/3% of the combined voting power of all
of the Voting Stock, voting together as a single class, shall be
required to alter, amend, rescind or repeal (A) Article Seventh,
Article Eighth, Article Ninth or this Article Eleventh or to
adopt any provision inconsistent therewith or (B) Section 3 of
Article II, Sections 1, 2 and 10 of Article III, Article VIII or
Article IX of the By-Laws of the Corporation or to adopt any
provision inconsistent therewith.
"Voting Stock" shall mean the securities of the
Corporation which are entitled to vote generally for the election
of directors of the Corporation.
Twelfth: Except as otherwise fixed pursuant to Article
Fourth of this Restated Certificate of Incorporation relating to
the rights of the holders of any one or more classes or series of
Preferred Stock issued by the Corporation acting separately by
class or series, to elect, under specified circumstances,
directors at an annual or special meeting of stockholders, the
Board of Directors shall consist of not less than six nor more
than nine persons, the exact number to be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the Board of Directors. The affirmative
vote of the holders of at least 66-2/3% of the combined voting
power of all of the Voting Stock, voting together as a single
class, shall be required to alter, amend, rescind or repeal this
Article or to adopt any provision inconsistent therewith.
Thirteenth: Notwithstanding anything else contained in
this Restated Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 66-2/3% of the
combined voting power of the Voting Stock, voting together as a
single class, shall be required for the Corporation to effect or
consummate:
(1) any merger or consolidation of the Corporation
with or into any other corporation;
(2) any sale, lease, exchange or other disposition of
all or substantially all of the assets of the Corporation to
or with any other person; or
(3) any issuance by the Corporation of any voting
securities of the Corporation which issuance would require
approval by the stockholders of the Corporation pursuant to
the GCL or the rules of any exchange on which the voting
securities of the Corporation are listed, other than an
issuance by the Corporation of voting securities as required
by any stockholder rights plan adopted by the Corporation,
unless such issuance has been approved by a resolution
adopted by not less than two-thirds of all the directors
then in office;
provided, however, that the foregoing requirement shall not
apply, and the provisions of the GCL relating to the
percentage of stockholder approval, if any, shall apply to
any merger or other transaction described in the preceding
subparagraphs (1), (2) or (3) if the other party to the
merger or other transaction is a Subsidiary of the
corporation.
For purposes of this Article Thirteenth a "Subsidiary" is
any corporation more than 50% of the voting securities of
which are owned directly or indirectly by the Corporation;
and a "person" is any individual, partnership, corporation
or entity.
The affirmative vote of the holders of at least 66-2/3% of
the combined voting power of all of the Voting Stock, voting
together as a single class, shall be required to alter,
amend, rescind or repeal this Article or to adopt any
provision inconsistent therewith.
This Article Thirteenth shall be of no further force and
effect from and after the Fifth Year Anniversary.