EXHIBIT 3.1(b)
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
THE NEIMAN MARCUS GROUP, INC.
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
___________________
The Neiman Marcus Group, Inc., a corporation organized
and existing under the General Corporation Law of the State of
Delaware (hereinafter called the "Company"), hereby certifies
that the following resolution was duly adopted by the Board of
Directors of the Company as required by Section 151 of the
General Corporation Law of the State of Delaware at a meeting
duly called and held on October 6, 1999:
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of the Company (hereinafter
called the "Board of Directors" or the "Board") in accordance
with the provisions of the Company's Restated Certificate of
Incorporation, as amended to date (hereinafter called the
"Certificate of Incorporation"), the Board of Directors hereby
creates a series of Preferred Stock, par value $.01 per share
(the "Preferred Stock"), of the Company and hereby adopts the
resolution establishing the designation, number of shares,
preferences, voting powers and other rights, and the restrictions
and limitations thereof, as follows:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series A Junior Participating
Preferred Stock" (the "Series A Preferred Stock") and the number
of shares constituting the Series A Preferred Stock shall be
100,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Preferred Stock to
a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Company convertible into
Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares
of any series of Preferred Stock (or any similar stock) ranking
prior and superior to the Series A Preferred Stock with respect
to dividends, the holders of shares of Series A Preferred Stock,
in preference to the holders of Class A Common Stock, par value
$.01 per share, of the Company ("Class A Common Stock"), Class B
Common Stock, par value $.01 per share, of the Company ("Class B
Common Stock") and Class C Common Stock, par value $.01 per
share, of the Company ("Class C Common Stock" and, together with
the Class A Common Stock and Class B Common Stock, the "Common
Stock") and of any other stock of the Company ranking junior to
the Series A Preferred Stock, and on a pari passu basis with the
Series B Preferred Stock and the Series C Preferred Stock, shall
be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for such purpose,
quarterly dividends payable in cash on the last day of March,
June, September and December in each year (each such date being
referred to herein as a "Dividend Payment Date"), commencing on
the first Dividend Payment Date after the first issuance of a
share or fraction of a share of Series A Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (a) $1 or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount
of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Class A
Common Stock, declared on the Class A Common Stock since the im-
mediately preceding Dividend Payment Date or, with respect to the
first Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the
event the Company shall at any time after October 18, 1999
declare or pay any dividend on the Class A Common Stock payable
in shares of Class A Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Class A
Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Class A Common Stock) into a greater or
lesser number of shares of Class A Common Stock, then in each
such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Class A Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Class A Common Stock that were outstanding
immediately prior to such event.
(B) The Company shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Class A Common Stock (other than
a dividend payable in shares of Class A Common Stock); provided,
that, in the event no dividend or distribution shall have been
declared on the Class A Common Stock during the period between
any Dividend Payment Date and the next subsequent Dividend
Payment Date, a dividend of $1 per share on the Series A Prefer-
red Stock shall nevertheless be payable, when, as and if
declared, on such subsequent Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative,
whether or not earned or declared, on outstanding shares of
Series A Preferred Stock from the Dividend Payment Date next
preceding the date of issue of such shares, unless the date of
issue of such shares is prior to the record date for the first
Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Dividend Payment Date or is a date
after the record date for the determination of holders of shares
of Series A Preferred Stock entitled to receive a quarterly
dividend and before such Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be
cumulative from such Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares
of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of
Series A Preferred Stock shall have the following voting rights;
(A) Subject to the provision for adjustment
hereinafter set forth and except as otherwise provided in the
Certificate of Incorporation or required by law, each share of
Series A Preferred Stock shall entitle the holder thereof to a
number of votes equal to 1,000 times the number of votes which
each share of Class A Common Stock is entitled to vote, on all
matters upon which the holders of the Class A Common Stock of the
Company are entitled to vote. In the event the Company shall at
any time after October 18, 1999 declare or pay any dividend on
the Class A Common Stock payable in shares of Class A Common
Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Class A Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Class A Common Stock) into a greater or lesser number
of shares of Class A Common Stock, then in each such case the
number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Class A Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class A Common
Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the
Certificate of Incorporation or in any other Certificate of
Designations creating a series of Preferred Stock or any similar
stock, and except as otherwise required by law, the holders of
shares of Series A Preferred Stock and the holders of shares of
Class A Common Stock and any other capital stock of the Company
having general voting rights shall vote together as one class on
all matters submitted to a vote of stockholders of the Company.
(C) Except as set forth herein, or as otherwise
provided by law, holders of Series A Preferred Stock shall have
no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
Class A Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not earned or
declared, on shares of Series A Preferred Stock outstanding shall
have been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking
junior (as to dividends) to the Series A Preferred
Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (as to dividends) with the Series A Preferred
Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock, provided that the Company may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Company ranking junior (as to dividends and upon
dissolution, liquidation or winding up) to the Series A
Preferred Stock or rights, warrants or options to
acquire such junior stock;
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock,
or any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
in accordance with a purchase offer made in writing or
by publication (as determined by the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(B) The Company shall not permit any subsidiary of the
Company to purchase or otherwise acquire for consideration any
shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Company in
any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof.
Section 6. Liquidation, Dissolution or Winding Up.
Upon any liquidation, dissolution or winding up of the Company,
no distribution shall be made (A) to the holders of the Common
Stock or of shares of any other stock of the Company ranking
junior, upon liquidation, dissolution or winding up, to the
Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received $1,000 per
share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or declared, to the
date of such payment, provided that the holders of shares of
Series A Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for ad-
justment hereinafter set forth, equal to 1,000 times the
aggregate amount to be distributed per share to holders of shares
of Class A Common Stock, or (B) to the holders of shares of stock
ranking on a parity upon liquidation, dissolution or winding up
with the Series A Preferred Stock, except distributions made
ratably on the Series A Preferred Stock and all such parity stock
in proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Company shall at any time after
October 18, 1999 declare or pay any dividend on the Class A
Common Stock payable in shares of Class A Common Stock, or effect
a subdivision or combination or consolidation of the outstanding
shares of Class A Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Class A Common Stock)
into a greater or lesser number of shares of Class A Common
Stock, then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (A)
of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Class A Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of
Class A Common Stock that were outstanding immediately prior to
such event.
Section 7. Consolidation, Merger, etc. In case the
Company shall enter into any consolidation, merger, combination
or other transaction in which the shares of Class A Common Stock
are converted into, exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
each share of Series A Preferred Stock shall at the same time be
similarly converted into, exchanged for or changed into an amount
per share (subject to the provision for adjustment hereinafter
set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Class A
Common Stock is converted, exchanged or converted. In the event
the Company shall at any time after October 18, 1999 declare or
pay any dividend on the Class A Common Stock payable in shares of
Class A Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Class A Common Stock) into a greater or lesser number
of shares of Class A Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the
conversion, exchange or change of shares of Series A Preferred
Stock shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Class A Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class A Common
Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A
Preferred Stock shall not be redeemable from any holder.
Section 9. Rank. The Series A Preferred Stock shall
rank, with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding
up of the Company, pari passu with the Series B and the Series C
Preferred Stock, junior to all other series of Preferred Stock
and senior to all classes of Common Stock.
Section 10. Amendment. If any proposed amendment to
the Certificate of Incorporation (including this Certificate of
Designations) would alter, change or repeal any of the
preferences, powers or special rights given to the Series A
Preferred Stock so as to affect the Series A Preferred Stock
adversely, then the holders of the Series A Preferred Stock shall
be entitled to vote separately as a class upon such amendment,
and the affirmative vote of two-thirds of the outstanding shares
of the Series A Preferred Stock, voting separately as a class,
shall be necessary for the adoption thereof, in addition to such
other vote as may be required by the General Corporation Law of
the State of Delaware.
Section 11. Fractional Shares. The Series A Preferred
Stock may be issued in fractions of a share that shall entitle
the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series A Stock.
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Company by its Secretary this 15th day
of October, 1999.
________________________________________
Name:
Title:
CERTIFICATE OF DESIGNATIONS
OF
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
OF
THE NEIMAN MARCUS GROUP, INC.
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
___________________
The Neiman Marcus Group, Inc., a corporation organized
and existing under the General Corporation Law of the State of
Delaware (hereinafter called the "Company"), hereby certifies
that the following resolution was duly adopted by the Board of
Directors of the Company as required by Section 151 of the
General Corporation Law of the State of Delaware at a meeting
duly called and held on October 6, 1999:
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of the Company (hereinafter
called the "Board of Directors" or the "Board") in accordance
with the provisions of the Company's Restated Certificate of
Incorporation, as amended to date (hereinafter called the
"Certificate of Incorporation"), the Board of Directors hereby
creates a series of Preferred Stock, par value $.01 per share
(the "Preferred Stock"), of the Company and hereby adopts the
resolution establishing the designation, number of shares,
preferences, voting powers and other rights, and the restrictions
and limitations thereof, as follows:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series B Junior Participating
Preferred Stock" (the "Series B Preferred Stock") and the number
of shares constituting the Series B Preferred Stock shall be
100,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series B Preferred Stock to
a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Company convertible into
Series B Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares
of any series of Preferred Stock (or any similar stock) ranking
prior and superior to the Series B Preferred Stock with respect
to dividends, the holders of shares of Series B Preferred Stock,
in preference to the holders of Class A Common Stock, par value
$.01 per share, of the Company ("Class A Common Stock"), Class B
Common Stock, par value $.01 per share, of the Company ("Class B
Common Stock") and Class C Common Stock, par value $.01 per
share, of the Company ("Class C Common Stock" and, together with
the Class A Common Stock and Class B Common Stock, the "Common
Stock") and of any other stock of the Company ranking junior to
the Series B Preferred Stock, and on a pari passu basis with the
Series C Preferred Stock and the Series A Preferred Stock, shall
be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for such purpose,
quarterly dividends payable in cash on the last day of March,
June, September and December in each year (each such date being
referred to herein as a "Dividend Payment Date"), commencing on
the first Dividend Payment Date after the first issuance of a
share or fraction of a share of Series B Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (a) $1 or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount
of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Class B
Common Stock, declared on the Class B Common Stock since the im-
mediately preceding Dividend Payment Date or, with respect to the
first Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series B Preferred Stock. In the
event the Company shall at any time after October 18, 1999
declare or pay any dividend on the Class B Common Stock payable
in shares of Class B Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Class B
Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Class B Common Stock) into a greater or
lesser number of shares of Class B Common Stock, then in each
such case the amount to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Class B Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Class B Common Stock that were outstanding
immediately prior to such event.
(B) The Company shall declare a dividend or
distribution on the Series B Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Class B Common Stock (other than
a dividend payable in shares of Class B Common Stock); provided,
that, in the event no dividend or distribution shall have been
declared on the Class B Common Stock during the period between
any Dividend Payment Date and the next subsequent Dividend
Payment Date, a dividend of $1 per share on the Series B Prefer-
red Stock shall nevertheless be payable, when, as and if
declared, on such subsequent Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative,
whether or not earned or declared, on outstanding shares of
Series B Preferred Stock from the Dividend Payment Date next
preceding the date of issue of such shares, unless the date of
issue of such shares is prior to the record date for the first
Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Dividend Payment Date or is a date
after the record date for the determination of holders of shares
of Series B Preferred Stock entitled to receive a quarterly
dividend and before such Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be
cumulative from such Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares
of Series B Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders
of shares of Series B Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of
Series B Preferred Stock shall have the following voting rights;
(A) Subject to the provision for adjustment
hereinafter set forth and except as otherwise provided in the
Certificate of Incorporation or required by law, each share of
Series B Preferred Stock shall entitle the holder thereof to a
number of votes equal to 1,000 times the number of votes which
each share of Class B Common Stock is entitled to vote, on all
matters upon which the holders of the Class B Common Stock of the
Company are entitled to vote. In the event the Company shall at
any time after October 18, 1999 declare or pay any dividend on
the Class B Common Stock payable in shares of Class B Common
Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Class B Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Class B Common Stock) into a greater or lesser number
of shares of Class B Common Stock, then in each such case the
number of votes per share to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Class B Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class B Common
Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the
Certificate of Incorporation or in any other Certificate of
Designations creating a series of Preferred Stock or any similar
stock, and except as otherwise required by law, the holders of
shares of Series B Preferred Stock and the holders of shares of
Class B Common Stock and any other capital stock of the Company
having general voting rights shall vote together as one class on
all matters submitted to a vote of stockholders of the Company.
(C) Except as set forth herein, or as otherwise
provided by law, holders of Series B Preferred Stock shall have
no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
Class B Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not earned or
declared, on shares of Series B Preferred Stock outstanding shall
have been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking
junior (as to dividends) to the Series B Preferred
Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (as to dividends) with the Series B Preferred
Stock, except dividends paid ratably on the Series B
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock, provided that the Company may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Company ranking junior (as to dividends and upon
dissolution, liquidation or winding up) to the Series B
Preferred Stock or rights, warrants or options to
acquire such junior stock;
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series B Preferred Stock,
or any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or
winding up) with the Series B Preferred Stock, except
in accordance with a purchase offer made in writing or
by publication (as determined by the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(B) The Company shall not permit any subsidiary of the
Company to purchase or otherwise acquire for consideration any
shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series B
Preferred Stock purchased or otherwise acquired by the Company in
any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof.
Section 6. Liquidation, Dissolution or Winding Up.
Upon any liquidation, dissolution or winding up of the Company,
no distribution shall be made (A) to the holders of the Common
Stock or of shares of any other stock of the Company ranking
junior, upon liquidation, dissolution or winding up, to the
Series B Preferred Stock unless, prior thereto, the holders of
shares of Series B Preferred Stock shall have received $1,000 per
share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or declared, to the
date of such payment, provided that the holders of shares of
Series B Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for ad-
justment hereinafter set forth, equal to 1,000 times the
aggregate amount to be distributed per share to holders of shares
of Class B Common Stock, or (B) to the holders of shares of stock
ranking on a parity upon liquidation, dissolution or winding up
with the Series B Preferred Stock, except distributions made
ratably on the Series B Preferred Stock and all such parity stock
in proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Company shall at any time after
October 18, 1999 declare or pay any dividend on the Class B
Common Stock payable in shares of Class B Common Stock, or effect
a subdivision or combination or consolidation of the outstanding
shares of Class B Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Class B Common Stock)
into a greater or lesser number of shares of Class B Common
Stock, then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (A)
of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Class B Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of
Class B Common Stock that were outstanding immediately prior to
such event.
Section 7. Consolidation, Merger, etc. In case the
Company shall enter into any consolidation, merger, combination
or other transaction in which the shares of Class B Common Stock
are converted into, exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
each share of Series B Preferred Stock shall at the same time be
similarly converted into, exchanged for or changed into an amount
per share (subject to the provision for adjustment hereinafter
set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Class B
Common Stock is converted, exchanged or converted. In the event
the Company shall at any time after October 18, 1999 declare or
pay any dividend on the Class B Common Stock payable in shares of
Class B Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Class B Common Stock) into a greater or lesser number
of shares of Class B Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the
conversion, exchange or change of shares of Series B Preferred
Stock shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Class B Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class B Common
Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series B
Preferred Stock shall not be redeemable from any holder.
Section 9. Rank. The Series B Preferred Stock shall
rank, with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding
up of the Company, pari passu with the Series C and the Series A
Preferred Stock, junior to all other series of Preferred Stock
and senior to all classes of Common Stock.
Section 10. Amendment. If any proposed amendment to
the Certificate of Incorporation (including this Certificate of
Designations) would alter, change or repeal any of the
preferences, powers or special rights given to the Series B
Preferred Stock so as to affect the Series B Preferred Stock
adversely, then the holders of the Series B Preferred Stock shall
be entitled to vote separately as a class upon such amendment,
and the affirmative vote of two-thirds of the outstanding shares
of the Series B Preferred Stock, voting separately as a class,
shall be necessary for the adoption thereof, in addition to such
other vote as may be required by the General Corporation Law of
the State of Delaware.
Section 11. Fractional Shares. The Series B Preferred
Stock may be issued in fractions of a share that shall entitle
the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series B Stock.
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Company by its Secretary this 15th day
of October, 1999.
________________________________________
Name:
Title:
CERTIFICATE OF DESIGNATIONS
OF
SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
OF
THE NEIMAN MARCUS GROUP, INC.
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
___________________
The Neiman Marcus Group, Inc., a corporation organized
and existing under the General Corporation Law of the State of
Delaware (hereinafter called the "Company"), hereby certifies
that the following resolution was duly adopted by the Board of
Directors of the Company as required by Section 151 of the
General Corporation Law of the State of Delaware at a meeting
duly called and held on October 6, 1999:
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of the Company (hereinafter
called the "Board of Directors" or the "Board") in accordance
with the provisions of the Company's Restated Certificate of
Incorporation, as amended to date (hereinafter called the
"Certificate of Incorporation"), the Board of Directors hereby
creates a series of Preferred Stock, par value $.01 per share
(the "Preferred Stock"), of the Company and hereby adopts the
resolution establishing the designation, number of shares,
preferences, voting powers and other rights, and the restrictions
and limitations thereof, as follows:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series C Junior Participating
Preferred Stock" (the "Series C Preferred Stock") and the number
of shares constituting the Series C Preferred Stock shall be
50,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series C Preferred Stock to
a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Company convertible into
Series C Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares
of any series of Preferred Stock (or any similar stock) ranking
prior and superior to the Series C Preferred Stock with respect
to dividends, the holders of shares of Series C Preferred Stock,
in preference to the holders of Class A Common Stock, par value
$.01 per share, of the Company ("Class A Common Stock"), Class B
Common Stock, par value $.01 per share, of the Company ("Class B
Common Stock") and Class C Common Stock, par value $.01 per
share, of the Company ("Class C Common Stock" and, together with
the Class A Common Stock and Class B Common Stock, the "Common
Stock") and of any other stock of the Company ranking junior to
the Series C Preferred Stock, and on a pari passu basis with the
Series A Preferred Stock and the Series B Preferred Stock, shall
be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for such purpose,
quarterly dividends payable in cash on the last day of March,
June, September and December in each year (each such date being
referred to herein as a "Dividend Payment Date"), commencing on
the first Dividend Payment Date after the first issuance of a
share or fraction of a share of Series C Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (a) $1 or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount
of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Class C
Common Stock, declared on the Class C Common Stock since the im-
mediately preceding Dividend Payment Date or, with respect to the
first Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series C Preferred Stock. In the
event the Company shall at any time after October 18, 1999
declare or pay any dividend on the Class C Common Stock payable
in shares of Class C Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Class C
Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Class C Common Stock) into a greater or
lesser number of shares of Class C Common Stock, then in each
such case the amount to which holders of shares of Series C
Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Class C Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Class C Common Stock that were outstanding
immediately prior to such event.
(B) The Company shall declare a dividend or
distribution on the Series C Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Class C Common Stock (other than
a dividend payable in shares of Class C Common Stock); provided,
that, in the event no dividend or distribution shall have been
declared on the Class C Common Stock during the period between
any Dividend Payment Date and the next subsequent Dividend
Payment Date, a dividend of $1 per share on the Series C Prefer-
red Stock shall nevertheless be payable, when, as and if
declared, on such subsequent Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative,
whether or not earned or declared, on outstanding shares of
Series C Preferred Stock from the Dividend Payment Date next
preceding the date of issue of such shares, unless the date of
issue of such shares is prior to the record date for the first
Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Dividend Payment Date or is a date
after the record date for the determination of holders of shares
of Series C Preferred Stock entitled to receive a quarterly
dividend and before such Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be
cumulative from such Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares
of Series C Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders
of shares of Series C Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of
Series C Preferred Stock shall have the following voting rights;
(A) Subject to the provision for adjustment
hereinafter set forth and except as otherwise provided in the
Certificate of Incorporation or required by law, each share of
Series C Preferred Stock shall entitle the holder thereof to a
number of votes equal to 1,000 times the number of votes which
each share of Class C Common Stock is entitled to vote, on all
matters upon which the holders of the Class C Common Stock of the
Company are entitled to vote. In the event the Company shall at
any time after October 18, 1999 declare or pay any dividend on
the Class C Common Stock payable in shares of Class C Common
Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Class C Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Class C Common Stock) into a greater or lesser number
of shares of Class C Common Stock, then in each such case the
number of votes per share to which holders of shares of Series C
Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Class C Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class C Common
Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the
Certificate of Incorporation or in any other Certificate of
Designations creating a series of Preferred Stock or any similar
stock, and except as otherwise required by law, the holders of
shares of Series C Preferred Stock and the holders of shares of
Class C Common Stock and any other capital stock of the Company
having general voting rights shall vote together as one class on
all matters submitted to a vote of stockholders of the Company.
(C) Except as set forth herein, or as otherwise
provided by law, holders of Series C Preferred Stock shall have
no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
Class C Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series C Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not earned or
declared, on shares of Series C Preferred Stock outstanding shall
have been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking
junior (as to dividends) to the Series C Preferred
Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (as to dividends) with the Series C Preferred
Stock, except dividends paid ratably on the Series C
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Preferred
Stock, provided that the Company may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Company ranking junior (as to dividends and upon
dissolution, liquidation or winding up) to the Series C
Preferred Stock or rights, warrants or options to
acquire such junior stock;
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series C Preferred Stock,
or any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or
winding up) with the Series C Preferred Stock, except
in accordance with a purchase offer made in writing or
by publication (as determined by the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(B) The Company shall not permit any subsidiary of the
Company to purchase or otherwise acquire for consideration any
shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series C
Preferred Stock purchased or otherwise acquired by the Company in
any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof.
Section 6. Liquidation, Dissolution or Winding Up.
Upon any liquidation, dissolution or winding up of the Company,
no distribution shall be made (A) to the holders of the Common
Stock or of shares of any other stock of the Company ranking
junior, upon liquidation, dissolution or winding up, to the
Series C Preferred Stock unless, prior thereto, the holders of
shares of Series C Preferred Stock shall have received $1,000 per
share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or declared, to the
date of such payment, provided that the holders of shares of
Series C Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for ad-
justment hereinafter set forth, equal to 1,000 times the
aggregate amount to be distributed per share to holders of shares
of Class C Common Stock, or (B) to the holders of shares of stock
ranking on a parity upon liquidation, dissolution or winding up
with the Series C Preferred Stock, except distributions made
ratably on the Series C Preferred Stock and all such parity stock
in proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Company shall at any time after
October 18, 1999 declare or pay any dividend on the Class C
Common Stock payable in shares of Class C Common Stock, or effect
a subdivision or combination or consolidation of the outstanding
shares of Class C Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Class C Common Stock)
into a greater or lesser number of shares of Class C Common
Stock, then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (A)
of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Class C Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of
Class C Common Stock that were outstanding immediately prior to
such event.
Section 7. Consolidation, Merger, etc. In case the
Company shall enter into any consolidation, merger, combination
or other transaction in which the shares of Class C Common Stock
are converted into, exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
each share of Series C Preferred Stock shall at the same time be
similarly converted into, exchanged for or changed into an amount
per share (subject to the provision for adjustment hereinafter
set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Class C
Common Stock is converted, exchanged or converted. In the event
the Company shall at any time after October 18, 1999 declare or
pay any dividend on the Class C Common Stock payable in shares of
Class C Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Class C Common Stock) into a greater or lesser number
of shares of Class C Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the
conversion, exchange or change of shares of Series C Preferred
Stock shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Class C Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class C Common
Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series C
Preferred Stock shall not be redeemable from any holder.
Section 9. Rank. The Series C Preferred Stock shall
rank, with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding
up of the Company, pari passu with the Series A and the Series B
Preferred Stock, junior to all other series of Preferred Stock
and senior to all classes of Common Stock.
Section 10. Amendment. If any proposed amendment to
the Certificate of Incorporation (including this Certificate of
Designations) would alter, change or repeal any of the
preferences, powers or special rights given to the Series C
Preferred Stock so as to affect the Series C Preferred Stock
adversely, then the holders of the Series C Preferred Stock shall
be entitled to vote separately as a class upon such amendment,
and the affirmative vote of two-thirds of the outstanding shares
of the Series C Preferred Stock, voting separately as a class,
shall be necessary for the adoption thereof, in addition to such
other vote as may be required by the General Corporation Law of
the State of Delaware.
Section 11. Fractional Shares. The Series C Preferred
Stock may be issued in fractions of a share that shall entitle
the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series C Stock.
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Company by its Secretary this 15th day
of October, 1999.
________________________________________
Name:
Title: