Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
MILLFELD TRADING CO. INC.
A CLOSE CORPORATION
FIRST: The name of the corporation is Millfeld Trading Co. Inc.
SECOND: The address of its registered office in the State of Delaware Is
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted
is to act as agent or broker, on commission or otherwise for individuals,
partnerships, corporations, foreign or domestic and to aid and assist, promote,
and conserve the interests of, and afford facilities for the convenient
transaction of business by its principals in all parts of the world with respect
to the importing into the United States of America men's, women's and children's
shoes; to borrow or raise moneys for the aforementioned purposes of the
corporation and, from time to time, without limit as to amount, to draw, make,
accept, endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of any thereof and of
the interest thereon by mortgage upon or pledge, conveyance or assignment in
trust of the whole or any part of the property of the corporation, whether at
the time owned or thereafter acquired, and to sell, pledge or otherwise dispose
of such bonds or other obligations, of the corporation for its corporate
services as are necessary in the furtherance of the aforementioned purposes of
the corporation; and, in general, to possess and exercise all of the powers and
privileges granted by the General Corporation law of Delaware or by any other
law of Delaware or by this Certificate of Incorporation together with any powers
incidental thereto, so far as such powers and privileges are necessary or
convenient to the conduct, promotion or attainment of the aforementioned
purposes of the corporation.
FOURTH: The total number of shares which the corporation is authorized to
issue is one hundred (100) shares of common stock having a par value of one
hundred ($100) dollars per share. Ninety (90) shares shall be classified as
Class A voting common stock with a par value of one hundred ($100) dollars per
share and ten (10) shares shall be classified as Class B non-voting common stock
with a par value of one hundred ($100) dollars per share.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
The holders of Class A and Class B shares (regardless of the class of the
share) shall participate equally to the same amount per share in all dividends
and any distribution of assets upon the liquidation, dissolution or winding up
of the corporation or otherwise.
The holders of Class A shares shall exclusively possess all the voting
power of the corporation for the election of directors, and for all other
purposes, and the holders of Class B shares shall have no voting power and no
holder thereof shall be entitled to receive notice of any meeting of
shareholders.
Notwithstanding any other of the articles of this Certificate of
Incorporation or the General Corporation Law of the State of Delaware, no
amendment to the Certificate of Incorporation of this corporation or other
shareholder action affecting a subdivision or consolidation of an outstanding
class of common shares may be made unless at the same time a similar subdivision
or consolidation of the outstanding shares of the other class is also made, and
the directors shall not declare or pay any dividends payable in Class B shares
to holders of Class B shares nor in Class A shares to the holders of Class A
shares unless at the same time a similar dividend be declared and paid to the
holders of shares of all other classes. Share dividends shall not be declared in
shares of one class to holders of another class.
2
All of the issued and outstanding stock of all classes shall be held of
record by not more than twenty (20) persons, as defined in Section 342 of the
General Corporation Law; the corporation shall make no offering of any of its
stock of any class which would constitute a "public offering" within the meaning
of the United States Securities Act of 1933, as it may be amended from time to
time; and the consent of the directors of the corporation shall be required to
approve the issuance or transfer of any shares as being in compliance with the
foregoing restrictions.
No natural person who is a holder of shares of Class A voting common stock
shall sell, assign or otherwise dispose of any such share or shares of stock of
this corporation to any person, firm, corporation or association, nor shall the
executor, administrator, trustee, assignee or other legal representative of such
deceased stockholder sell, assign, transfer or otherwise dispose of any such
share or shares of the stock of this corporation to any person, firm,
corporation or association, nor to any next of kin or legatee or legatees of a
deceased stockholder, without first offering the said share or shares of stock
for sale to any other natural persons who are holders of Class A voting common
stock of the corporation at a price representing the true book value thereof at
the time of said offer and said stockholders shall have the right to purchase
the sane by the payment of such purchase price at any time within thirty (30)
days alter receipt of written notice of said offer. In the event that said
stockholders accept the offer to sell such share or shares within thirty (30)
days after receipt of the written notice of said offer, the share or shares
shall next be offered for sale to any other holders of Class A voting common
stock of the corporation, at a price representing the true book value thereof at
the time of said offer and such other stockholders shall have the right to
purchase the same by payment of such purchase price at any time within thirty
(30) days after the receipt of written notice of said offer. In the event that
said stockholders do not accept the offer to sell such share or shares within
thirty (30) days after receipt of written notice of said offer, the share or
shares shall next be offered for sale to the corporation at a price representing
the true book value thereof at the time of said offer and the corporation shall
have the right to purchase the same by payment of such purchase price at any
time within thirty (30) days after the receipt of written notice of said offer.
3
No holder of shares of Class A voting common stock which is a firm,
corporation or association shall sell, assign or otherwise dispose of any such
share or shares of stock of this corporation to any person, firm, corporation or
association, nor shall the executor, administrator, trustee, assignee or other
legal representative of such deceased stockholder sell, assign, transfer or
otherwise dispose of any such share or shares of the stock of this corporation
to any person, firm, corporation or association, nor to any next of kin or
legatee or legatees of a deceased stockholder, without first offering the said
share or shares of stock for sale to all other holders of Class A voting common
stock at a price representing the true book value thereof at the time of said
offer and said shareholders shall have the right to purchase the same by the
payment of such purchase price at any time within thirty (30) days after receipt
of written notice of said offer. In the event that said shareholders do not
accept the offer to sell such share or shares within thirty (30) days after
receipt of the written notice of said offer, the share or shares shall next be
offered for sale to the corporation at a price representing the true book value
thereof at the time of said offer and the corporation shall have the right to
purchase the same by payment of such purchase price at any time within thirty
(30) days after the receipt of written notice of said offer.
4
No holder of shares of Clans B non-voting common stock shall sell, assign
or otherwise dispose of any such share or shares of stock of this corporation of
either class to any person, firm, corporation or association, nor shall the
executor, administrator, trustee, assignee or other legal representative of such
deceased stockholder sell, assign, transfer or otherwise dispose of any share or
shares of the stock of this corporation to any person, firm, corporation or
association, nor to any next of kin or legatee or legatees of a deceased
stockholder, without first offering the said share or shares of stock for sale
to the corporation at a price representing the true book value thereof at the
time of said offer and the corporation shall have, the right to purchase the
same by the payment of such purchase price at any time within thirty (30) days
after receipt of written notice of said offer. In the event that the corporation
does not accept the offer to sell such share or shares within thirty (30) days
after receipt of the written notice of said offer, the share or shares shall
next be offered for sale to the other stockholder or stockholders of said
corporation at a price representing the true book value thereof at the time of
said offer and such other stockholder or stockholders shall have the right to
purchase the same by payment of such purchase price at any time within thirty
(30) days after the receipt of written notice of said offer.
Compliance with the foregoing terms and conditions in regard to the sale,
assignment, transfer or other disposition of the shares of stock of this
corporation shall be a condition precedent to the transfer of such shares of
stock on the books of this corporation.
The holders of Class A shares and Class B shares shall, upon the issue or
sale of Class A shares or Class B shares of stock, respectively, (whether now or
hereafter authorized) or any securities convertible into such stock, have the
right, during such period of time and on such conditions as the Board of
Directors shall prescribe, to subscribe to and purchase such shares, or
securities in proportion to their respective holdings of Class A shares or Class
B shares, respectively, at such price or prices as the Board of Directors may
from time to time fix and as may be permitted by law.
5
FIFTH: The name and .ailing address of each incorporator is as follows:
N.A. Ferrucci 100 West Tenth Street
Wilmington, Delaware 19801
R.F. Andrews 100 West Tenth Street
Wilmington, Delaware 19801
W.J. Reif 100 West Tenth Street
Wilmington, Delaware 19801
SIXTH: The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
Name Mailing Address
------------------------ ---------------
Gerald F. Mills 108 Oak Hill Drive
Sharon, Massachusetts 02067
Marlene Mills 108 Oak Hill Drive
Sharon, Massachusetts 02067
Fred Kushmer 241 Main Street
Hackensack, New Jersey 07602
SEVENTH: The business and affairs of the corporation shall be managed by
the Board of Directors subject to any written agreements restricting the
discretion of the directors pursuant to Subchapter XIV, Section 341 et seq. of
the General Corporation Law of the State of Delaware entered into among a
majority of the shareholders.
EIGHTH: Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws. say provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the corporation. Elections of directors
need not be by written ballot unless the By-Laws of the corporation shall so
provide.
6
NINTH: The corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the matter now
or hereafter prescribed by statutes, and all rights conferred upon stockholders
herein are granted subject to this reservation.
We, the undersigned, being each of the incorporator, herein before named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this Certificate, hereby declaring a
certifying that this is our act and deed and the facts herein stated are true,
and accordingly has hereunto set our hands this 26th day of December, 1978.
/s/ M.A. Ferrucci
M.A. Ferrucci
/s/ R.F. Andrews
R.F. Andrews
/s/ W.J. Reif
W.J. Reif
7
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
MILLFELD TRADING CO. INC.
Under Section 242 of the Delaware General Corporation Law
MILLFELD TRADING CO. INC., a corporation organized and existing under and
by virtue of the General corporation Law of the state of Delaware (the
"Corporation") DOES HEREBY CERTIFY:
1. The name of the Corporation is Millfeld Trading Co. Inc.
2. The corporation's Certificate of Incorporation was filed by the
Department of State on December 26, 1978.
3. The purpose of this Amendment is among other things, (1) to increase the
authorized capital stock of the corporation to 10,000,000 shares of common stock
and 5,000,000 shares of preferred stock; (ii) to reduce the par value of the
common stock to $.00l per share; (iii) to eliminate the liability of directors
to the Corporation and its stockholders to the fullest extent permitted by the
General corporation Law of Delaware: and (iv) to indemnify any and all persons
whom the Corporation shall have power to indemnify to the fullest extent
permitted by the General Corporation Law of Delaware.
4. On August 1, 1989, the Board of Directors of the Corporation adopted the
following resolutions by written consent, proposing and declaring advisable the
following amendments to the Certificate of Incorporation of the Corporation:
1
RESOLVED, that Article Third of the Certificate of
Incorporation be deleted in its entirety and the following
substituted therefor:
THIRD: The nature of the business, and the objects and
purposes proposed to be transacted, promoted and carried on,
are to do any and all things therein mentioned, as fully and
to the same extent as natural persons might or could do, and
in any part of the world, viz:
To do any lawful act or thing for which corporations may be
organized under the General Corporation law of the State of
Delaware.
RESOLVED, that Article Fourth of the Certificate of
Incorporation be deleted in its entirety and the following
substituted therefor:
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is Fifteen Million
(15,000,000) consisting of:
(a) Ten Million (10,000,000) shares of common stock, $.001
par value (`Common Stock"); and
(b) Five Million (5,000,000) shares of Preferred Stock, $.01
par value (`Preferred Stock') having the following voting
powers, restrictions, preferences and qualifications:
A. Preferred Stock
Shares of Preferred Stock may be issued from time to time in
one or more series, as may from time to time be determined by
the Board of Directors, each of said series to be distinctly
designated. All shares of any one series of Preferred Stock
shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other
special rights of each such series and the qualifications,
limitations or restrictions thereof, it any, may differ from
those of any and all other series at any time outstanding; and
the Board of Directors of the Corporation is hereby expressly
granted authority to fix by resolution or resolutions adopted
prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights,
and the qualifications, limitation, and restrictions of such
series, including but without limiting the generality of the
foregoing, the following:
(a) The distinctive designation of, and the number of shares
of Preferred Stock which shall constitute each series, which
number may be increased (except where otherwise provided by
the Board of Directors) or decreased (but not below the number
of shares thereof then outstanding) from time to time by like
action of the Board of Directors;
(b) The rate and times at which, and the terms and conditions
on which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if
any, of such dividends to the dividends payable on any other
class or classes or series of stock and whether such dividends
shall be cumulative or non-cumulative.
(c) the right, if any, of the holders of Preferred Stock of
such series to convert the same into, or exchange the same
for, shares of any other class or classes or of any series of
the same or any other class or classes of stock of the
Corporation and the terms and conditions of such conversion or
exchange.
2
(d) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(e) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding- up of the Corporation;
(f) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(g) The voting powers, if any, of the holders of such series
of Preferred Stock which may, without limiting the generality
of the foregoing, include the right, voting as a series by
itself or together with other series of Preferred Stock or all
series of Preferred Stock as a class, to elect one or more
directors of the Corporation if there shall have been a
default in the payment of dividends on any one or mote series
of Preferred Stock or under such other circumstances as the
Board of Directors may determine.
B. Common Stock
1. After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of paragraph A of this Article Fourth), it any,
shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to
the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of
paragraph A of this Article Fourth), and subject further to
any other condition which may be fixed in accordance with the
provisions of Paragraph A of this Article Fourth, then and not
otherwise the holders of Common Stock shall be entitled to
receive such dividends as may be declared from time to time by
the Board of Directors.
2. After distribution in full of the preferential amount, if
any (fixed in accordance with the provisions of Paragraph A of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common
Stock shall be entitled to receive all the remaining assets of
the Corporation, tangible and intangible, of whatever kind
available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by
them respectively
3. Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to paragraph A of this
Article Fourth, each holder of Common Stock shall have one
vote in respect of each share of Common Stock held by him on
all matters voted upon by stockholders.
3
C. Other Provisions
1. The relative powers, preferences and rights of each series
of Preferred Stock in relation to the powers, preferences and
rights of each other series of Preferred Stock shall, in each
case, be as fixed from time to time by the Board of Directors
in the resolution of resolutions adopted pursuant to authority
granted in paragraph A of this Article Fourth and the consent,
by class or series vote or otherwise, of the holders of such
of the series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the
Board of Directors of any other series of Preferred Stock
whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as
senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in the
resolution or resolutions adopted pursuant to paragraph A of
this Article Fourth as to any series of Preferred Stock that
the consent Of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding
shares of such series voting thereon shall be required for the
issuance of any or all other series of Preferred Stock.
2. Subject to the provisions of subparagraph 1 of this
paragraph C, shares of any series of Preferred Stock may be
issued from time to time as the Board of Directors of the
Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
3. Shares of Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and
on such terms and for such consideration as shall be fixed by
the Board of Directors.
4. The authorized amount of shares of Common Stock may,
without a vote, be increased or decreased from time to time by
the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
RESOLVED, that Article Fifth of the Certificate of
Incorporation be deleted in its entirety and the following
substituted therefor:
"FIFTH: The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of
Directors. The number of directors which shall constitute the
whole Board of Directors shall be fixed by, or in the manner
provided in, the Bylaws. The phrase `whole Board" and the
phrase "total number of directors" shall be deemed to have the
same meaning, to wit, the total number of directors which the
Corporation would have if there were no vacancies, No election
of directors need be by written ballot.
4
After the original or other Bylaws of the Corporation have
been adopted, amended, or repealed, as the case may be, in
accordance with the provisions of Section 109 of the General
Corporation Law of the State of Delaware, and, after the
Corporation has received any payment for any of its stock, the
power to adopt, amend, or repeal the By-Laws of the
Corporation may be exercised by the Board of Directors of the
Corporation; provided, however, that any provision for the
classification of directors of the Corporation for staggered
terms pursuant to the provisions of subsection (d) of Section
141 of the General Corporation Law of the State of Delaware
shall be set forth in an initial By-Law or in a By-Law adopted
by the stockholders entitled to vote of the Corporation unless
provisions for such classification shall be set forth in this
Certificate of Incorporation.
Whenever the Corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the
holder thereof to notice of, and the right to vote at any
meeting of stockholders. Whenever the Corporation shall be
authorized to issue more than one class of stock, no
outstanding share of any class of stock which is denied voting
power under the provisions of the Certificate of Incorporation
shall entitle the holder thereof to the right to vote at any
meeting of stockholders except as the provisions of paragraph
(2) of subsection (b) of Section 242 of the General
Corporation Law of the State of Delaware shall otherwise
require; provided, that no share of any such class which is
otherwise denied voting power shall entitle the holder thereof
to vote upon the increase or decrees, in the number of
authorized shares of said class.
The directors shall have power to make and to alter or amend
the Bylaws; to fix the amount to be reserved as working
capital, and to authorize and cause to be executed, mortgages
and liens without limit as to the amount, upon the property
and franchises of the Corporation.
With the consent in writing, and pursuant to a vote of the
holders of a majority of the capital stock issued and
outstanding, the Directors shall have authority to dispose, in
any manner, of the whole property of the Corporation,
The By-Laws shall determine whether and to what extent the
accounts and books of this Corporation, or any of them, shall
be open to the inspection of the stockholders; and no
stockholder shall have any right of inspecting any account, or
book, or document of the Corporation, except as conferred by
Law or the By-Laws or by resolution of the stockholders.
The stockholder, and directors shall have power to hold their
meetings and keep the books, documents and papers of the
Corporation outside the State of Delaware, at such places as
may be from time to time designated by the By-Laws or by
resolution of the stockholders or directors, except as
otherwise required by the laws of Delaware.
It is the intention that the objects, purposes and powers
specified in Article Fifth hereof shall, except where
otherwise specified in Article Fifth, be in nowise limited or
restricted by reference to or inference from the terms of any
other article, clause or paragraph in this Certificate of
Incorporation, but that the objects, purposes and powers
specified in Article Fifth and in each of the articles,
clauses or paragraphs of this charter shall be regarded as
independent objects, purposes and powers.
5
RESOLVED, that Article Sixth of the Certificate of
Incorporation be deleted in its entirety and the following
substituted therefor:
SIXTH: The Corporation is to have perpetual existence.
-----
RESOLVED, that Article Seventh of the Certificate of
Incorporation be deleted in its entirety and the following
substituted therefor:
SEVENTH: 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 Section 291 of Title 8 of the Delaware
Code or on the application of trustees in dissolution or of
any receiver or receivers appointed for the Corporation under
Section 279 of Title 8 of the Delaware Code 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
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"
RESOLVED, that Article Eighth of the Certificate of
Incorporation be deleted in its entirety and the following
substituted therefor:
"EIGHTH: The personal liability of the directors of the
Corporation is hereby eliminated to the fullest extent
permitted by paragraph (7) of subsection (b) of section 102 of
the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented.
RESOLVED, that Article Ninth of the Certificate of
Incorporation be deleted in its entirety and the following
substituted therefor:
"NINTH: The Corporation shall, to the fullest extent permitted
by Section 145 of the General Corporation Law of the State of
Delaware, as the same say be amended and supplemented,
indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of
the expenses, liabilities, or other matters referred to in or
covered by said section, and the indemnification provided for
6
herein shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any By-law,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of
the heirs, executors, and administrators of such a person."
RESOLVED, that a new Article Tenth be added to the Certificate
of Incorporation as set forth below:
"TENTH: No director of the Corporation shall be 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) for the payment of unlawful
dividends or unlawful stock repurchases or redemptions under
Section 174 of the Delaware General Corporation Law: or (iv)
for any transaction from which the director derived an
improper personal benefit"
RESOLVED, that a new Article Eleventh be added to the
Certificate of Incorporation as set forth below:
"ELEVENTH: From time to time any of the provisions of the
Certificate of Incorporation may be amended, altered or
repealed, and other provisions authorized by the law of the
State of Delaware at the time in force may be added or
inserted in the manner and at the time prescribed by said
laws, and all rights at any time conferred upon the
stockholders of the Corporation by the Certificate of
Incorporation are granted subject to the provisions of this
Article ELEVENTH"
5. On August 1, 1989, these Amendments to the Certificate of Incorporation
were approved by written consent of the sole stockholder of the Corporation, 6.
The aforesaid Amendments to the Corporation's Certificate of Incorporation were
duly adopted in accordance with the applicable provisions of Sections 242 of the
General Corporation Law of the State of Delaware.
7
IN WITNESS WHEREOF, MILLFELD TRADING CO. INC, has caused the certificate to
be signed by Barry Feldstein, its President, and attested by Glen Feldstein, its
Secretary this 1st day of September, 1989. MILLFELD TRADING CO. INC.
By: /s/ Barry Feldstein
----------------------------------------
Name: Barry Feldstein
Title: President
Attest;
By: /s/ Glen Feldstein
----------------------------
Name: Glen Feldstein
Title: Secretary
8
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 1st day of September, 1989, before me personally came
BARRY FELDSTEIN, to me known, who being by me duly sworn, did depose and say
that he resides at 32 Elm Street Woodbury, New York l1797; that he is the
President of MILLFELD TRADING CO. INC., the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of the said corporation.
/s/ Rachel Petrou
-------------------------------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 1st day of September, 1989, before me personally came
GLEN FELDSTEIN, to me known, who being by me duly sworn, did depose and say that
he resides at _______________________; that he is the Secretary of MILLFELD
TRADING CO. INC., the corporation described in and which executed the foregoing
instrument; and that he signed his name thereto by order of the Board of
Directors of the said corporation.
/s/ Rachel Petrou
-------------------------------------------------------------
Notary Public
9
CERTIFICATE OF OWNERSHIP
OF
BRIGHT STAR, INC..
(a Delaware corporation)
AND
MILLFELD TRADING CO., INC.
(a Delaware corporation)
UNDER SECTION 253 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
The undersigned corporations organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DO HEREBY CERTIFY:
TENTH: That the name and state of incorporation of each of the constituent
corporations of the merger are as follows:
NAME STATE OF INCORPORATION
Bright Star, Inc. Delaware
Millfeld Trading Co., Inc. Delaware
- --------------------------------------------------------------------------------
ELEVENTH: That 100% of the outstanding stock of Bright Star, Inc. is owned
by Millfeld Trading Co., Inc.
TWELFTH: That the name of the surviving corporation of the merger shall be
changed to Candies, Inc.
THIRTEENTH: That the Board of Directors of Millfeld Trading Co., Inc.
adopted the following resolution byunanimous joint written consent on the 20th
day of February, 1992:
RESOLVED, that the Company's wholly-owned subsidiary, Bright
Star, Inc., be merged with and into the Company, and that upon
the filing of the appropriate certificate of Merger with the
Secretary of State of the State of Delaware, the Company's
name shall be changed to Candies, Inc.
1
IN WITNESS WHEREOF, the undersigned have executed this
Certificate this 20th day of February, 1992.
ATTEST: MILLFELD TRADING CO., INC.
By: /s/ Felix F. Ruchel By: /s/ Michael Callahan
--------------------------------- -----------------------------------
Title: Asst. Sect'y Title: Vice President
ATTEST: BRIGHT STAR, INC.
By: /s/ Felix F. Ruchel By: /s/ Michael Callahan
--------------------------------- -----------------------------------
Title: Asst. Sect'y Title: Vice President
2
CERTIFICATE OF OWNERSHIP
OF
MILLFELD SUB, INC..
(a Delaware corporation)
AND
CANDIES, INC.
(a Delaware corporation)
UNDER SECTION 253 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
The undersigned corporations organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DO HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger are as follows:
NAME STATE OF INCORPORATION
Millfeld Sub, Inc. Delaware
Candies, Inc. Delaware
- --------------------------------------------------------------------------------
SECOND: That 100% of the outstanding stock of Millfeld Sub, Inc. is owned
by Candies, Inc.
THIRD: That the name of the surviving corporation of the merger shall be
changed to Millfeld Trading Co., Inc.
1
FOURTH: That the Board of Directors of Candies, Inc. adopted the following
resolution by unanimous
joint written consent on the 25th day of February, 1992:
RESOLVED, that the Company's wholly-owned subsidiary, Millfeld
Sub, Inc., be merged with and into the Company, and that upon
the filing of the appropriate certificate of Merger with the
Secretary of State of the State of Delaware, the Company's
name shall be changed to Millfeld Trading Co., Inc.
IN WITNESS WHEREOF, the undersigned have executed this
Certificate this 25th day of February, 1992.
ATTEST: CANDIES, INC.
By: /s/ Felix F. Ruchel By: /s/ Michael Callahan
------------------------------------ ---------------------------------
Title: Asst. Sect'y Title: Vice President
ATTEST: MILLFELD SUB, INC.
By: /s/ Felix F. Ruchel By: /s/ Michael Callahan
------------------------------------ ---------------------------------
Title: Asst. Sect'y Title: Vice President
2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OP INCORPORATION
OF
MILLFELD TRADING CO., INC.
The undersigned, being, respectively, President and Secretary of Millfeld
Trading Co., Inc., a Delaware corporation (the "Corporation"), do hereby certify
as follows:
FIRST: That the Board of Directors of the Corporation adopted a resolution
proposing and declaring advisable that the Corporation change its name to
Candie's, Inc. by adoption of the following amendment to the Certificate of
Incorporation of said corporation:
"FIRST, the name of the corporation shall be Candle's, Inc."
SECOND: That the Board of Directors of the Corporation adopted a resolution
proposing and declaring advisable a reverse split of the Corporation's Common
Stock, $.01 par value per share, on a one-for-4.5 basis by adoption of the
following amendment to the Certificate of Incorporation of said corporation:
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is FIFTEEN MILLION
(15,000,000) shares, of which 10,000,000 shall be shares of
common stock of the par value of $.001 each, and 5,000,000
shares be preferred stock, $.0l per value per share.
A. The designations and the powers, preferences and rights,
and the qualifications, limitations or restrictions thereof of
the Preferred Stock, and of the Common Stock are as follows:
A. Preferred Stock.
The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article 4, to
provide for the issuance of the Preferred Stock in series and
by filing a Certificate pursuant to the Delaware General
Corporation Law to establish the number of shares to be
included in each such series. The Preferred Stock may be
issued either as a class without series, or as so determined
from time to time by the Board of Directors, either in whole
or in part in one or more series, each series to be
appropriately designated by a distinguishing number, letter or
title prior to the issue of any shares thereof. Whenever the
term "Preferred Stock" is used in this Article 4, it shall be
1
deemed to mean and include Preferred Stock issued as a class
without series, or one or more series thereof, or both, unless
the context shall otherwise require. There is hereby expressly
granted to the Board of Directors of the Corporation
authority, subject to the limitations provided by law, to fix
the voting power, the designations, and the relative
preferences, powers, participating, optional or other special
rights, and the qualifications, limitations or restrictions
thereof, of the shares of each series of said Preferred Stock
and the variations in the relative powers, rights, preferences
and limitations as between series, and to increase the number
of shares constituting each series, and to decrease such
number of shares (but not to less than the number of
outstanding shares of the series), in the resolution or
resolutions adopted by the Board of Directors providing for
the issue of said Preferred Stock.
The authority of the Board of Directors of the Corporation
with respect to each series shall include, but shall not be
limited to, the authority to determine the following:
1. The designation of the series;
2. The number of shares initially constituting such series;
3. The increase, and the decrease to a number not less than
the number of the outstanding shares of such series, of the
number of shares constituting such series theretofore fixed:
4. The rate or rates and the times and conditions under which
dividends on the shares of such series shall be paid, and, (i)
if such dividends are payable in preference to, or in relation
to, the dividends payable on any other class or classes of
stock, the terms and conditions of such payment, and (ii) if
such dividends shall be cumulative, the date or dates from and
after which they shall accumulate;
5. Whether or not the shares of such series shall be
redeemable, and, if such shares shall be redeemable, the terms
and conditions of such redemption, including, but not limited
to, the date or dates upon or after which such shares shall be
redeemable and the amount per share which shall be payable
upon such redemption, which amount may vary under conditions
and at different redemption dates;
6. The amount payable on the shares of such series in the
event of the dissolution of, or upon any distribution of the
assets of, the Corporation,
7. Whether or not the shares of such series may be convertible
into, or exchangeable for, shares of any other class or series
and the price or prices and the rates of exchange and the
terms of any adjustments to be made in connection with such
conversion or exchange;
2
8. Whether or not the shares of such series shall have voting
rights in addition to the voting rights provided by law, and,
if such shares shall have such voting rights, the terms and
conditions thereof, including but not limited to, the right of
the holders of such shares to vote as a separate class either
alone or with the holders of shares of one or more other
series of Preferred Stock and the right to have more or less
than one vote per share;
9. Whether or not a purchase fund shall be provided for the
shares of such series, and, if such a purchase fund shall be
provided, the terms and conditions thereof;
10. Whether or not a sinking fund shall be provided for the
redemption of the shares of such series and if such a sinking
fund shall be provided, the terms and conditions thereof; and
11. Any other powers, preferences and relative, participating,
optional, or other special rights, and qualifications,
limitations or restrictions thereof, as shall not be
inconsistent with the provisions of this Article 4 or the
limitations provided by law,
B. Common Stock.
1. Subject to the rights of the Preferred Stockholders, the
holders of the Common Stock shall be entitled to receive such
dividends as may be declared thereon by the Board of Directors
of the Corporation in its discretion, from time to time, out
of any funds or assets of the Corporation lawfully available
for the payment of such dividends.
2. In the event of any liquidation, dissolution or winding up
of the Corporation, or any reduction of its capital, resulting
in a distribution of its assets to its Stockholders whether
voluntary or involuntary, then, after there shall have been
paid or set apart for the holders of the Preferred Stock the
full preferential amounts to which they are entitled, the
holders of the Common Stock shall be entitled to receive as a
class, pro rata, the remaining assets of the Corporation
available for distribution to its stockholders.
3. For any and all purposes of this Certificate of
Incorporation, neither the merger or consolidation of the
Corporation into or with any other corporation, nor the merger
or consolidation of any other corporation into or with the
Corporation, nor a sale, transfer or lease of all or
substantially all of the assets of the Corporation, or any
other transaction or series of transactions having the effect
of a reorganization shall be deemed to be a liquidation,
dissolution or winding-up of the Corporation.
4. Except as otherwise expressly provided by law or in a
resolution of the Board of Directors providing voting rights
to the holders of the Preferred Stock, the holders of the
Common Stock shall possess exclusive voting power for the
election of directors and for all other purposes and each
holder thereof shall be entitled to one vote for each share
thereof."
3
THIRD: The foregoing amendments have been duly adopted by the Stockholders of
the Corporation in accordance with Section 242 or the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed by Michael Callahan, its President and attest~ by
Dominick Gallo, its Secretary, this 23rd day of February, 1993.
/s/ Michael Callahan
----------------------
Michael Callahan
President
ATTEST
/s/ Dominick Gallo
Dominick Gallo,
Secretary
4
CANDIE'S, INC.
CERTIFICATE OF DESIGNATION
OF SERIES A CUMULATIVE CONVERTIBLE
PREFERRED STOCK SETTING FORTH THE POWERS,
PREFERENCES, RIGHTS, QUALIFICATIONS.
LIMITATIONS AND RESTRICTIONS OF
SUCH SERIES OF PREFERRED STOCK
Pursuant to Section 151 of the General Corporation Law of the
State of Delaware, Candie's, Inc. (the "Corporation'), a corporation organized
and existing under the General Corporation Law of the State of Delaware, in
accordance with the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority given to the Board of Directors
of the corporation by paragraph A of Article Fourth of the Certificate of
Incorporation of the Corporation (the "Certificate of Incorporation"), and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, the Board of Directors of the Corporation on September
13, 1994, adopted the following resolution creating a series of Preferred Stock
designated as Series A Cumulative Convertible Preferred Stock:
RESOLVED that, pursuant to the authority vested in the Board
of Directors of the Corporation in accordance with the General Corporation Law
of the State of Delaware and the provisions of the Certificate of Incorporation,
a series of the class of authorized Preferred Stock, par value $.01 per share,
of the corporation is hereby created and that the designation and number of
shares thereof and the voting powers, preferences and relative, participating.
optional and other special rights of the shares of such series, and the
qualifications, limitations and restrictions thereof, are as follows:
Section 1. Designation and Number. (a) The shares of such series shall be
designated "Series A Cumulative Convertible Preferred Stock" (the "Series A
Preferred Stock"). The number of shares initially constituting the Series A
preferred Stock shall be 14,400, which number may be decreased (but not
increased) by the Board of Directors without a vote of stockholders, provided,
however, that such number may not be decreased below the number of then
outstanding shares of Series A Preferred Stock.
(b) The Series A Preferred Stock shall, with respect to dividend rights and
rights on liquidation, dissolution or winding up, rank prior to the Common
Stock, par value $.001 per share, of the Corporation (the "Common Stock") and
any other issue of Preferred Stock.
Section 2. Dividends and Distributions. (a) The holders of Shares of Series A
Preferred Stock, in preference to the holders of shares of Common Stock and of
any shares of other capital stock of the Corporation ranking junior to the
Series A Preferred Stock as to payment of dividends, shall be entitled to
receive, when, as and if declared by the Board of Directors, out of the assets
of the Corporation legally available therefor, cumulative cash dividends at a
rate of $8.00 per annum per share, subject to appropriate adjustment in the
event of any stock split, reverse stock split or other recapitalization.
Dividends shall accrue and be payable semiannually, in arrears, on the last
business day of April and October in each year (each such date being referred to
herein as a `Dividend Payment Date'), commencing April 1, 1995.
1
(b) Dividends payable pursuant to paragraph (a) of this Section 2 shall begin to
accrue and be cumulative from the Issue Date, whether or not earned or declared.
The amount of dividends so payable shall be determined on the basis of twelve
30-day months and a 360-day year. 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 declared hereon, which record date shall be no
more than sixty days prior to the date fixed for the payment thereof.
(c) The holders of shares of Series A Preferred Stock shall not be entitled to
receive any dividends or other distributions except as provided herein.
Section 3. Voting Rights. In addition to any voting rights provided by law, the
holders of shares of Series A Preferred Stock shall have the following voting
rights:
(a) Until the date commencing six months from the initial issuance of shares of
Series A Preferred Stock, the holders of shares of Series A Preferred Stock
shall be entitled to vote on or to consent to corporate action with the holders
of the Common Stock, having the number of votes equal to the number of shares of
Common Stock issuable upon conversion of the Series A Preferred Stock on the
date set forth in Section 3(c) hereof, with respect to any matter submitted to
stockholders for a vote at such meeting or adjournment thereof or written
consent in lieu thereof (or as otherwise required by applicable law).
(b) The affirmative vote of the holders of at least 66 2/3% of the outstanding
shares of Series A Preferred Stock, voting together as a class, in person or by
proxy, at a special or annual meeting of stockholders called for the purpose,
shall be necessary to (i) authorize, increase the authorized number of shares
of, or issue (including on conversion or exchange of any convertible or
exchangeable securities or by reclassification), any shares of any class or
classes of the Corporation's capital stock ranking pari passu with or prior to
(either as to dividends or upon voluntary or involuntary liquidation.
dissolution or winding up) the Series A Preferred Stock, (ii) increase the
authorized number of shares of, or issue (including on conversion or exchange of
any convertible or exchangeable securities or by reclassification) any shares of
Series A Preferred Stock; or (iii) authorize, adopt or approve an amendment to
the Certificate of Incorporation of the Corporation which would increase or
decrease the par value of the shares of Series A Preferred Stock, or alter or
change the powers, preferences or special rights of the shares of Series A
Preferred Stock so as to affect such shares of Series A Preferred Stock
adversely.
(c) For the taking of any action as provided in this Section 3 by the holders of
shares of Series A Preferred Stock each such holder shall have one vote for each
share of Series A Preferred Stock, or such number of votes as the number of
shares of Common Stock into which such shares of Series A Preferred Stock are
convertible, as the case may be, in each case standing in his name on the
transfer books of the Corporation as of any record date fixed for such purpose
or, if no such date be fixed, at the close of business on the Business Day (as
defined in Section 9) next preceding the day on which notice is given, or if
notice is waived, at the close of business on the Business Day next preceding
the day on which the meeting is held.
2
Section 4. Certain Restrictions. (a) Whenever semiannual dividends payable on
shares of Series A Preferred Stock as provided in Section 2 are not paid in
full, thereafter and until all unpaid dividends payable on the outstanding
shares of Series A Preferred Stock, whether or not declared, shall have been
paid in full, the Corporation shall not; (A) declare or pay dividends, or make
any other distributions, on any shares of Junior Stock (as defined in Section
9), other than dividends or distributions payable in Junior, Stock, or (B)
declare or pay dividends, or make any other distributions, on any shares of
Parity Stock, except (1) dividends or distributions payable in Junior Stock and
(2) dividends or distributions paid ratably on the Series A Preferred Stock and
all Parity Stock on which dividends are payable or in arrears, in proportion to
the total amounts to which the holders of all shares of the Series A Preferred
Stock and such Parity Stock are then entitled.
(b) Whenever semiannual dividends payable on shares of Series A Preferred Stock
as provided in Section 2 are not paid in full, thereafter and until all unpaid
dividends payable, whether or not declared, on the outstanding shares of Series
A Preferred Stock shall have been paid in full, the Corporation shall not:
redeem, purchase or otherwise acquire for consideration any shares of Junior
Stock or Parity Stock; provided, however, that (1) the Corporation may at any
time redeem, purchase or otherwise acquire shares of Junior Stock or Parity
Stock in exchange for any shares of Junior Stock, (2) the Corporation may accept
shares of any Parity Stock or Junior Stock for conversion and (3) the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
Parity Stock pursuant to any mandatory redemption, put, sinking fund or other
similar obligation, pro rata with the Series A Preferred Stock in proportion to
the total amount then required to be applied by it to redeem, repurchase or
otherwise acquire shares of Series A Preferred Stock and shares of such Parity
Stock.
(c) The Corporation shall not permit any Subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of capital stock of
the Corporation unless the Corporation could, pursuant to Section 4(b), purchase
such shares at such time and in such manner.
Section 5. Required Shares. Any shares of Series A Preferred Stock converted,
redeemed, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares of Series A Preferred Stock shall upon their cancellation, and
upon the filing of an appropriate certificate with the Secretary of State of the
State of Delaware, become authorized but unissued shares of preferred Stock,
$.01 par value, of the Corporation and may be reissued as part of another series
of Preferred Stack, par value $.01 per share, at the Corporation, subject to the
conditions or restrictions on issuance set forth herein.
3
Section 6. Liquidation, Dissolution or Winding Up. (a) If the Corporation shall
commence a voluntary case under the Federal bankruptcy laws or any other
applicable Federal or state bankruptcy, insolvency or similar law, or consent to
the entry of an order for relief in an involuntary case under such law or to the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Corporation or of any
substantial part of its property, or make an assignment for the benefit of its
creditors, or admit in writing its inability to pay its debts generally as they
become due, or if a decree or order for relief in respect of the Corporation
shall be entered by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws or any other applicable
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Corporation or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and any such decree or
order shall be unstayed and in effect for a period of 150 consecutive days and
on account of any such event the Corporation shall liquidate, dissolve or wind
up, or if the Corporation shall otherwise liquidate, dissolve or wind up, no
distribution shall be made (i) to the holders of shares of Junior Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received the Liquidation Preference with respect to each share (as adjusted for
any stock dividends, combinations or splits with respect to such shares) plus
all declared or accumulated but unpaid dividends on such shares or (ii) to the
holders of shares of Parity Stock unless the holders of shares of Series A
Preferred Stock shall have received distributions made ratably to the holders of
the Series A Preferred Stock and the Parity Stock in proportion to the total
amounts to which the holders of all such shares of Series A Preferred Stock and
Parity Stock would be entitled upon such liquidation, dissolution or winding up.
(b) Neither the consolidation, merger or other business combination of the
Corporation with or into any other Person or Persons nor the sale of all or
substantially all the assets of the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for purposes of this
Section 6.
Section 7. Conversion. (a) Upon the effectiveness of an amendment to the
Certificate of Incorporation of the Corporation raising the number of authorized
shares of Common Stock of the Corporation to a number not less than 30,000,000,
each share of Series A Preferred Stock shall automatically be converted into
such number of fully paid and nonassessable shares of Common Stock as is
determined by applying the Conversion Ratio. The Conversion Ratio shall
initially be 86.9565 shares of Common Stock for each share of Series A Preferred
Stock, subject to adjustment from time to time pursuant to Section 7(e).
(b) Upon the occurrence of an automatic conversion pursuant to Section 7(a)
hereof, and as soon as practicable thereafter, each holder of Series A Preferred
Stock shall surrender the certificate or certificates therefor, duly endorsed,
at the office of the Corporation or any transfer agent for Series A Preferred
Stock and the Corporation shall issue and deliver at such office to the holders
of Series A Preferred Stock, or to the nominee or nominees of such holders, a
certificate or certificates for the number of shares of Common Stock to which
such holders shall be entitled as aforesaid. Regardless of the time at which
such certificates are issued, the conversion shall be deemed to have been made
immediately upon the occurrence of the event described in Section 7(a) and the
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of such date.
4
(c) The Conversion Ratio shall be subject to adjustment from time to time in
certain instances as hereinafter provided upon conversion the holder of shares
of Series A Preferred Stock shall be entitled to receive, in cash, any accrued
and unpaid dividends on the shares of Series A Preferred Stock surrendered for
conversion to the date of such conversion.
(d) In connection with the conversion of any shares of Series A Preferred Stock,
no fractions of shares of Common Stock shall be issued, but in lieu thereof the
Corporation shall pay a cash adjustment in respect of such fractional interest
in an amount equal to such fractional interest multiplied by the Current Market
Price per share of Common Stock on the Trading Day on which such shares of
Series A Preferred Stock are deemed to have been converted. If more than one
share of Series A Preferred Stock shall be surrendered for conversion by the
same holder at the same time, the number of full shares of Common Stock issuable
on conversion thereof shall be computed on the basis of the total number of
shares of Series A Preferred Stock so surrendered.
(e) The Conversion Ratio will be subject to adjustment from time to time as
follows:
(i) In case the Corporation shall at any time or from time to time after the
Issue Date (A) pay a dividend, or make a distribution, on the outstanding shares
of Common Stock in shares of Common Stock or declare, order, pay or make a
dividend or other distribution of stock or other securities or property or
rights or warrants to subscribe for securities of the Corporation or any of its
Subsidiaries by way of dividend or spinoff, (B) subdivide the outstanding shares
of Common Stock, (C) combine the outstanding shares of Common Stock into a
smaller number of shares or (D) issue by reclassification of the shares of
Common Stock any shares of capital stock of the Corporation, then, and in each
such case, provision shall be made so that the holders of the Series A Preferred
Stock shall thereafter be entitled to receive, upon conversion of the Series A
Preferred Stock, the number of shares of stock or other securities or property
of the Corporation or otherwise, to which the holders of Series A Preferred
Stock would have received if they had converted their shares of Series A
Preferred Stock immediately prior to the happening of such event or the record
date therefor, whichever is earlier. In any such case, appropriate adjustment
shall be made in the application of the provisions of this Section 7(e) with
respect to the rights of the holders of the Series A Preferred Stock after such
event to the end that the provisions of this Section 7(e) (including adjustment
of the Conversion Ratio then in effect and the number of shares purchasable upon
conversion of the Series A Preferred Stock) shall be applicable after that event
as nearly equivalent as may be practicable. An adjustment made pursuant to this
clause shall become effective (x) in the case of any such dividend or
distribution, immediately after the close of business on the record date for the
determination of holders of shares of Common Stock entitled to receive such
dividend or distribution, or (y) in the case of such subdivision,
reclassification or combination, at the close of business on the day upon which
such corporate action becomes effective. No adjustment shall be made pursuant to
this clause (i) in connection with any transaction to which Section 7(f)
applies.
(ii) For purposes of this Section 7(e), the number of shares of Common Stock at
any time outstanding shall not include any share of Common stock then owned or
held by or for the account of the Corporation.
(iii) The term "dividend," as used in this Section 7(e) shall mean a dividend or
other distribution upon stock of the Corporation.
5
(iv) Anything in this Section 7(e) to the contrary notwithstanding, the
Corporation shall not be required to give affect to any adjustment in the
Conversion Ratio unless and until the net effect of one or more adjustments
(each of which shall be carried forward), determined as above provided shall
have resulted in a change of the Conversion Ratio by at least one-tenth of one
share of Common Stock, and when the cumulative net effect of more than one
adjustment so determined shall be to change the Conversion Ratio by at least
one-tenth of one share of Common Stock, such change in Conversion Ratio shall
thereupon be given effect.
(v) The certificate of any firm of independent public accountants of recognized
standing selected by the Board of Directors of the Corporation (which may be the
independent public accountants regularly employed by the Corporation) shall be
presumptively correct for any computation made under this Section 7(e).
(vi) If the Corporation shall take a record of the holders of its Common Stock
for the purpose of entitling them to receive a dividend or other distribution,
and shall thereafter and before the distribution to stockholders thereof legally
abandon its plan to pay or deliver such dividend or distribution, then
thereafter no adjustment in the number of shares of Common Stock issuable upon
exercise of the right of conversion granted by this Section 7 or in the
Conversion Ratio than in effect shall be required by reason of the taking of
such record.
(f) In case of any consolidation or merger of the Corporation with or into
another corporation, or in case of any sale or conveyance to another corporation
of all or substantially all of the assets or property of the Corporation (each
of the foregoing being referred to as a "Transaction"), at the option of the
holder of any shares of Series A Preferred Stock, each share of Series A
preferred Stock then outstanding shall thereafter be convertible into, in lieu
of the Common stock issuable upon such conversion prior to consummation of such
transaction, the kind and amount of shares of stock and other securities and
property receivable (including cash) upon the consummation of such Transaction
by a holder of that number of shares of Common Stock into which one share of
Series A Preferred Stock was convertible immediately prior to such Transaction
(including, on a pro rata basis, the cash, securities or property received by
holders of Common Stock in any tender or exchange offer that is a step in such
Transaction). In case securities or property other than Common Stock shall be
issuable or deliverable upon conversion as aforesaid, then all references in
this Section 7 shall be deemed to apply, so far as appropriate and nearly as ray
be, to such other securities or property.
Section 8. Reports as to Adjustments. Upon any adjustment of the Conversion
Ratio then in effect and any increase or decrease in the number of shares of
Common stock issuable upon the operation of the conversion set forth in Section
7, then, and in each such case, the Corporation shall promptly deliver to each
holder of Series A Preferred Stock and to the Transfer Agent of the Common
Stock, a certificate signed by the president or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Corporation setting forth in reasonable detail the event requiring the
adjustment and the method by which such adjustment was calculated and specifying
the conversion ratio then in effect following such adjustment and the increased
or decreased number of shares issuable upon the conversion granted by Section 7.
6
Section 9. Definitions. For the purposes of this Certificate of
Designation of Series A Cumulative Convertible Preferred Stock, the
following terms shall have the meanings indicated;
"Business Day" shall mean any day other than a Saturday,
Sunday, or a day on which banking institutions in the state of New York are
authorized or obligated by law or executive order to close.
"Current Market Price" shall mean the fair market value per
share of Common Stock as determined in good faith by the Board of Directors of
the Corporation, which may be based on an opinion of an independent investment
banking firm with an established national reputation as a valuer of securities.
"Issue Date" shall mean the first date on which shares of
Series A Preferred Stock are issued.
"Junior Stock" shall mean any capital stock of the Corporation
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock.
"Liquidation Preference" with respect to a share of Series
A Preferred Stock shall mean $100 per share.
"Parity Stock" shall mean any capital stock of the Corporation
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock.
"Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of such entity.
"Subsidiary" of any Person means any corporation or other
entity of which a majority of the voting power of the voting equity securities
or equity interest is owned, directly or indirectly, by such Person.
"Trading Day' means a Business Day or, if the Common Stock is
listed or admitted to trading on any national securities exchange, a day on
which such exchange is open for the transaction of business.
7
IN WITNESS WHEREOF, CANDIES, INC. has caused this Certificate
to be duly executed under its corporate name on this 14th day of September 1994.
CANDIES, INC.
By: /s/ Neil Cole
------------------------
Name: Neil Cole
Title: President
8
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CANDIE'S, INC.
- --------------------------------------------------------------------------------
Adopted in accordance with the provisions
- --------------------------------------------------------------------------------
of section 242 of the General Corporation
Law of the State of Delaware
THE UNDERSIGNED, President of Candies's, Inc., a corporation
existing under the lawn of the State of Delaware (the "Corporation"), does
hereby certify as follows: FIRST: That the Certificate of Incorporation of the
corporation has been amended an follows by striking out the first sentence of
Article FOURTH as it now exists and inserting in lieu and instead thereof a new
first sentence of Article FOURTH, reading as follows:
"The total number of shares of stock which the Corporation
shall have authority to issue is thirty-five million
(35,000,000) shares, of which thirty million (30,000,000)
shall be common stock, of the par value of $.001 per share,
and five million (5,000,000) shall be preferred stock, of the
par value of $.01 per share."
SECOND: That such amendment has been duly adopted in accordance with the
provisions of the General Corporation Law of the State of Delaware by the
affirmative vote of the holders of a majority of the stock entitled to vote at a
meeting of stockholders.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this 29th day
of November, 1994.
/s/ Neil Cole
Name: Neil Cole
Title: President
CERTIFICATE OF MERGER
OF
NEW RETAIL CONCEPTS, INC.
(a Delaware corporation)
INTO
CANDIE'S, INC.
(a Delaware corporation)
New Retail Concepts, Inc., a corporation formed under the laws of the State
of Delaware, desiring to merge with and into Candie's, Inc. pursuant to the
provisions of Section 251(c) of the Delaware General Corporation law, DOES
HEREBY CERTIFY as follows:
FIRST: That the names and states of incorporation of each Constituent
Corporations are:
NAME STATE OF INCORPORATION
Candie's, Inc. Delaware
New Retail Concepts, Inc. Delaware
- --------------------------------------------------------------------------------
SECOND: That the Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the Constituent Corporations in
accordance with Section 251(c) of the Delaware General Corporation Law.
THIRD: That the name of the surviving corporation is Candie's, Inc.
FOURTH: The Certificate of Incorporation of Candies shall be the
Certificate of Incorporation of the surviving corporation.
FIFTH: That an executed Agreement and Plan of Merger is on file at the
principal place of business of Candie's, Inc. 2973 Westchester Avenue, Purchase,
New York 10577 and that a copy of the Agreement and Plan of Merger will be
furnished by the Surviving Corporation, on request and without cost, to any
stockholder of any Constituent Corporation.
IN WITNESS WHEREOF, Candie's, Inc. has caused this Certificate of Merger to
be executed by its president thereunto duly authorized this 17th day of August,
1998.
ATTEST: CANDIE'S, INC.
(a Delaware cc ration)
/s/ Gary Klein By: /s/ Neil Cole
- ------------------------------- -----------------------------------------
Secretary Neil Cole, President
Gary Klein
CERTIFICATE OF ELIMINATION
OF
CANDIE'S, INC.
CANDIE'S, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
That the following resolutions were adopted by the Board of Directors of
CANDIE'S, INC. on January 25, 2000:
"RESOLVED, that this Corporation will not in the future issue
any shares of its Series A Cumulative Convertible Preferred
Stock, par value $.01 per share, no shares of which are
currently outstanding, pursuant to the Certificate of
Designation for the Series A Convertible Preferred Stock that
was filed on September 13, 1994 with the office of the
Secretary of State of the State of Delaware; and further
RESOLVED, that the Chief Executive Officer of this Corporation
be, and hereby is, authorized and directed to file a
certificate setting forth these resolutions pursuant to
Section 151(g) of the General Corporation Law of the State of
Delaware so that, pursuant to such Section 151(g), the
Certificate of Designation shall be eliminated from this
Corporation's Certificate of Incorporation and the shares
previously designated by the Certificate of Designation shall
revert to the status of authorized and unissued shares of
Preferred Stock of this Corporation for which powers,
designations, preferences and relative, participating,
optional or other rights, if any, or the qualifications,
limitations or restrictions thereof, if any, shall not have
been set forth in the Certificate of Incorporation of this
Corporation or any amendment thereto; and further
RESOLVED, that the Chief Executive Officer of this Corporation
be, and hereby is, authorized, for and on behalf of this
Corporation, to execute and deliver any and all agreements,
instruments and documents, and to do any and all other acts
and things as they or any of them may deem necessary or
appropriate to carry out fully the intent and purpose of the
foregoing resolutions."
Dated: February 2, 2000.
CANDIE'S, INC.
By: /s/ Deborah Sorell Stehr
Deborah Sorell Stehr,
Senior Vice President
CANDIE'S, INC.
CERTIFICATE OF DESIGNATION
OF THE VOTING POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS, AND OF THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS, OF SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK
($.01 Par Value Per Share)
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
---------------------
The undersigned hereby certifies that the following resolution
was duly adopted by the Board of Directors of Candie's, Inc. (the
"Corporation"), a corporation organized and existing by virtue of the General
Corporation Law of the State of Delaware (the "DGCL"), on January 25, 2000:
RESOLVED, that pursuant to authority conferred upon the Board
of Directors of the Corporation by its Certificate of Incorporation, a Series A
Junior Participating Preferred Stock of the Corporation is hereby created, and
the designation and amount thereof and the voting powers, preferences and
relative, participating, optional or other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof, are as
follows:
Section 1. Designation and Number of Shares. The shares of such series shall be
designated as "Series A Junior Participating Cumulative Preferred Stock"
("Series A Preferred Stock"). The number of shares initially constituting the
Series A Stock shall be 18,000; provided, however, that, if more than a total of
18,000 shares of Series A Preferred Stock shall be at any time issuable upon the
exercise of Rights (the "Rights") issued pursuant to the Rights Agreement, dated
as of January 26, 2000, between the Corporation and Continental Stock Transfer
and Trust Company, as Rights Agent, as amended from time to time (the "Rights
Agreement"), the Board of Directors, pursuant to Section 151(g) of the DGCL,
shall direct by resolution or resolutions that a certificate be properly
executed, acknowledged, filed and recorded, in accordance with the provisions of
Section 103 thereof, providing for the total number of shares of Series A
Preferred Stock authorized to be issued to be increased (to the extent that the
Certificate of Incorporation then permits) to the largest number of whole shares
(rounded up to the nearest whole number) then issuable upon exercise of such
Rights.
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 Common Stock and of any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and
December in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
1
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 (i) $1.00 or (ii) 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
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of 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 Common Stock) into a greater or lesser
number of shares of 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 (ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the Series A
Preferred Stock as provided in paragraph (a) of this Section 2 immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares of
Series A Preferred Stock from the Quarterly 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 Quarterly 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 Quarterly 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 Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly 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.
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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, each share of
Series A Preferred Stock shall entitle the holder thereof to 1,000 votes on all
matters submitted to a vote of the stockholders of the Corporation. In the event
the Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of 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 Common Stock) into a
greater or lesser number of shares of 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
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(b) Except as otherwise provided in this Certificate of Incorporation, in any
Preferred Stock Designation or in any certificate of designations creating any
similar stock, or by law, the holders of shares of Series A Preferred Stock and
the holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(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 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
declared, on shares of Series A Preferred Stock outstanding shall have been paid
in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) 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 (either as to dividends or upon liquidation,
dissolution or winding up) 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 Corporation may
at any time redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to the
Series A Preferred Stock; or
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(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 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 Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation 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 Corporation in any manner whatsoever shall be
retired promptly after the acquisition thereof. All such shares shall upon their
retirement become authorized but unissued shares of Series A Preferred Stock and
may be reissued as part of a new series of Series A Preferred Stock subject to
the conditions and restrictions on issuance set forth herein or in any
Certificate of Designations creating a series of Preferred Stock or any similar
stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (1)
to the holders of shares of stock ranking junior (either as to dividends or 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 an amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment, plus an amount
equal to the greater of $1.00 per share or an aggregate amount per share equal
to 1,000 times the aggregate amount to be distributed per share to holders of
shares of Common Stock, or (2) to the holders of 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 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; provided, however, that in the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of 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 Common Stock) into a
greater or lesser number of shares of 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 shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
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Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the shares
of Common Stock are 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 exchanged 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 Common Stock is changed or exchanged. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of 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 Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the 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 Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of 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.
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 Corporation, whether voluntary or involuntary,
junior to all other series of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the Corporation shall
not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
Dated: February 2, 2000
CANDIE'S, INC.
By: /s/ Deborah Sorell Stehr
Deborah Sorell Stehr,
Senior Vice President
5
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CANDIE'S, INC.
---------------------------------------------------------------------
Adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware
----------------------------------------------------------------------
THE UNDERSIGNED, President of Candie's, Inc., a corporation
existing under the laws of the State of Delaware (the "Corporation"), does
hereby certify as follows: FIRST: That the Certificate of Incorporation of the
Corporation has been amended as follows by striking out the first sentence of
Article FOURTH as it now exists and inserting in lieu and instead thereof a new
first sentence of Article FOURTH, reading as follows:
"The total number of shares of stock which the
Corporation shall have authority to issue is eighty million
(80,000,000) shares, of which seventy-five million
(75,000,000) shares shall be common stock, of the par value of
$.001 per share, and five million (5,000,000) shares shall be
preferred stock, of the par value of $.01 per share."
SECOND: That such amendment has been duly adopted in accordance with the
provisions of the General Corporation Law of the State of Delaware by the
affirmative vote of the holders of a majority of the stock entitled to vote at a
meeting of stockholders.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate this 24th day of June, 2002.
/s/ Neil Cole
-------------
Name: Neil Cole
Title: President
CERTIFICATE OF OWNERSHIP AND MERGER
OF
ICONIX BRAND GROUP, INC.
INTO
CANDIE'S, INC.
--------------------------------------------------------
Adopted in accordance with the provisions of
Section 253 of the Delaware General Corporation Law
--------------------------------------------------------
CANDIE'S, INC., a Delaware corporation, desiring to merge with ICONIX BRAND
GROUP, INC., a Delaware corporation, pursuant to the provisions of Section 253
of the Delaware General Corporation Law, hereby certifies as follows:
1. Candie's, Inc. is a corporation formed under the laws of
the State of Delaware (the "Corporation").
2. The Corporation is the owner of all of the outstanding
shares of each class of stock of Iconix Brand Group, Inc., a corporation formed
under the laws of the State of Delaware.
3. On June 28, 2005, the Board of Directors of the Corporation
adopted the following resolutions to merge Iconix Brand Group, Inc. into the
Corporation:
"WHEREAS, the Corporation owns 100% of the issued and
outstanding common stock of the Iconix Brand Group, Inc.
("Subsidiary"); and
WHEREAS, it is in the best interests of the
Corporation to merge the Subsidiary with and into the
Corporation in order that all the estate, property, rights,
privileges and franchises of the Subsidiary shall vest in and
be possessed by the Corporation;
NOW, THEREFORE, be it:
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RESOLVED, that the Board of Directors of the
Corporation hereby approves and adopts the following plan to
merge the Subsidiary into the Corporation:
1. The name of the corporation proposing to merge is
Iconix Brand Group, Inc. (the "Subsidiary") and the name of
the surviving corporation is Candie's, Inc. (the
"Corporation")
2. The Subsidiary shall merge into the Corporation
and upon the effective date of such merger the Subsidiary
shall cease to exist and shall no longer exercise its powers,
privileges and franchises subject to the laws of the State of
Delaware. The Corporation shall succeed to the property and
assets of and exercise all the powers, privileges and
franchises of the Subsidiary and shall assume and be liable
for all of the debts and liabilities, if any, of the
Subsidiary.
3. The shares of the Subsidiary shall not be
converted as a result of the merger, but shall be cancelled,
and the authorized capital stock of the Corporation shall be
and remain the same as before the merger.
4. The Certificate of Incorporation of the
Corporation shall be amended to change the name of the
Corporation to Iconix Brand Group, Inc. upon the effective
date of the merger.
and further
RESOLVED, that the President of the Corporation, or
such other officer of he Corporation designated by the
President, is hereby authorized to execute, in the name of the
Corporation, a Certificate of Merger, and to file such
Certificate in the Office of the Secretary of State of the
State of Delaware, and to do all the other acts and things
that may be necessary to carry out and effectuate the purpose
of these resolutions."
4. The effective time and date of the merger shall be 9 A.M.,
July 1, 2005. IN WITNESS WHEREOF, CANDIE'S, INC. has caused
this Certificate to be executed by its duly
authorized officer thereunto duly authorized this 28th day of June, 2005.
CANDIE'S, INC.
(a Delaware corporation)
By: /s/ Neil Cole
----------------------------------------
Name: Neil Cole
Title: President
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