Exhibit 3.3
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 Candie's 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. 2975 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 18th day of August,
1998.
ATTEST: CANDIE'S, INC.
(a Delaware corporation)
By:/s/ Neil Cole
------------------------
Neil Cole, President
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
$.01 per share, no shares of which are currently outstanding, pursuant to
the Certificate of Designation for the Series A Convertible Preferred Stock
that was filed on September 13, 1994 with the office of the Secretary of
State of the State of Delaware; and further
RESOLVED, that the Chief Executive Officer of this Corporation be, and
hereby is, authorized and directed to file a certificate setting forth
these resolutions pursuant to Section 151(g) of the General Corporation Law
of the State of Delaware so that, pursuant to such Section 151(g), the
Certificate of Designation shall be eliminated from this Corporation's
Certificate of Incorporation and the shares previously designated by the
Certificate of Designation shall revert to the status of authorized and
unissued shares of Preferred Stock of this Corporation for which powers,
designations, preferences and relative, participating, optional or other
rights, if any, or the qualifications, limitations or restrictions thereof,
if any, shall not have been set forth in the Certificate of Incorporation
of this Corporation or any amendment thereto; and further
RESOLVED, that the Chief Executive Officer of this Corporation be, and
hereby is, authorized, for and on behalf of this Corporation, to execute
and deliver any and all agreements, instruments and documents, and to do
any and all other acts and things as they or any of them may deem necessary
or appropriate to carry out fully the intent and purpose of the foregoing
resolutions."
Dated: February 2, 2000.
CANDIE'S, INC.
By: /s/ Deborah Sorell Stehr
------------------------
Deborah Sorell Stehr,
Senior Vice President
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CANDIE'S, INC.
CERTIFICATE OF DESIGNATION
OF THE VOTING POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS, AND OF THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS, OF SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK
($.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
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
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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.
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
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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;
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(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
(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.
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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.
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
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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
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