EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THE CHILDREN'S PLACE RETAIL STORES, INC.
THE CHILDREN'S PLACE RETAIL STORES, INC., a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), DOES
HEREBY CERTIFY as follows:
The Corporation was originally incorporated under the name "THE
CHILDREN'S PLACE RETAIL STORES II, INC." and the date of filing of its original
Certificate of Incorporation with the Secretary of State of the State of
Delaware was June 3, 1988. The Certificate of Incorporation was subsequently
amended by a certificate of merger on July 29, 1988 and pursuant to such
amendment the Corporation was renamed The Children's Place Retail Stores, Inc.
The Certificate of Incorporation was subsequently amended and restated on June
28, 1996. The Certificate of Incorporation was subsequently amended and restated
on December 31, 1996.
The Board of Directors of the Corporation, by unanimous written
consent dated as of September 17, 1997, adopted resolutions setting forth the
Amended and Restated Certificate of Incorporation herein contained (the
"Certificate of Incorporation"), declaring its advisability and calling a
meeting of stockholders of the Corporation entitled to vote in respect thereof
for the consideration of such Certificate of Incorporation, in accordance with
applicable provisions of Sections 242 and 245 of the General Corporation Law of
the State of Delaware. The Certificate of Incorporation was duly adopted on
September 17, 1997 by unanimous written consent of the holders of the
outstanding stock entitled to vote thereon, in accordance with the applicable
provisions of Sections 242 and 245 of the General Corporation Law of the State
of Delaware.
The text of the Certificate of Incorporation of the Corporation shall
read in its entirety as follows:
ARTICLE ONE
The name of the corporation is THE CHILDREN'S PLACE RETAIL STORES, INC.
(the "Corporation").
ARTICLE TWO
The address of the Corporation's registered office in the State of
Delaware is 15 East North Street, in the City of Dover, County of Kent. The name
of its registered agent at such address is United Corporate Services, Inc.
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ARTICLE THREE
The nature of the business and of the purposes to be conducted and
promoted by the Corporation are to conduct any lawful business, to promote any
lawful purpose and to engage in any lawful act or activity for which a
corporation may be organized under the General Corporation Law of the State of
Delaware.
ARTICLE FOUR
The Corporation shall have authority, to be exercised by the Board of
Directors, to issue (i) 100,000,000 shares of common stock of the par value of
$0.10 per share (the "Common Stock") and (ii) 1,000,000 shares of preferred
stock of the par value of $1.00 per share (the "Preferred Stock"). The Preferred
Stock may be issued (A) in one or more series and with such designations,
powers, preferences, rights, and such qualifications, limitations or
restrictions thereof, as the Board of Directors shall fix by resolution or
resolutions which are permitted by Section 151 of the General Corporation Law of
the State of Delaware for any such series of Preferred Stock, and (B) in such
number of shares in each such series as the Board of Directors shall, by
resolution, fix, provided that the aggregate number of all shares of Preferred
Stock issued shall not exceed the number of shares of Preferred Stock authorized
hereby.
Each holder of Common Stock shall at every meeting of stockholders of
the Corporation be entitled to one vote in person or by proxy on each matter
submitted to a vote of stockholders for each share of Common Stock held by such
holder as of the record date for such meeting. Subject to the rights, if any, of
the holders of the Preferred Stock, the holders of the Common Stock shall be
entitled to the entire voting power, all dividends declared and paid by the
Corporation and all assets of the Corporation available for distribution to
stockholders in the event of any liquidation, dissolution or winding up of the
Corporation.
ARTICLE FIVE
The number of directors which shall constitute the whole Board of
Directors of the Corporation shall be not less than three nor more than 12 and
the exact number shall be fixed from time to time by the Board of Directors
pursuant to a resolution adopted by a majority of the directors then in office;
provided, however, that such maximum number of directors may be increased from
time to time to reflect the rights, if any, of holders of Preferred Stock to
elect directors in accordance with the terms of the resolution or resolutions
adopted by the Board of Directors providing for the issue of such shares of
Preferred Stock. The number of directors may be increased or decreased only by
action of the Board of Directors. The directors, other than those who may be
elected by the holders of any series of Preferred Stock, will be classified with
respect to the time for which they severally hold office into three classes, as
nearly equal in number as possible, designated Class I, Class II and Class III.
The directors first appointed to Class I will hold office for a term expiring at
the annual meeting of stockholders of the Corporation to be held in 1998; the
directors first appointed to Class II will hold office for a term expiring at
the annual meeting of stockholders of the Corporation to be held in 1999; and
the directors first appointed to Class III will hold office for a term expiring
at the annual meeting of stockholders of the Corporation to be held in 2000,
with the members of each class to hold office until their successors are elected
and qualified. At each succeeding annual meeting of the stockholders of the
Corporation, the successors of the class of directors whose terms expire at that
meeting will be elected by plurality vote of all votes cast at such meeting to
hold office for a term expiring at the
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annual meeting of stockholders held in the third year following the year of
their election and to hold office until their successors are elected and
qualified. Election of directors of the Corporation need not be by written
ballot unless requested by the Chairman of the Board of Directors or by the
holders of a majority of the voting power of the outstanding shares of stock
entitled to vote in the election of directors and present in person or
represented by proxy at a meeting of the stockholders at which directors are to
be elected.
ARTICLE SIX
Subject to the rights, if any, of the holders of any Preferred Stock,
the power to fill vacancies on the Board of Directors (whether by reason of
resignation, removal, death, an increase in the number of directors or
otherwise) shall be vested solely in the Board of Directors, and vacancies may
be filled by the affirmative vote of a majority of the directors then in office,
even if less than a quorum, or by the sole remaining director, unless all
directorships are vacant, in which case the stockholders shall fill the then
existing vacancies. Any director chosen by the Board of Directors to fill a
vacancy (including a vacancy resulting from an increase in the number of
directors) shall hold office for the remainder of the full term of the class of
directors in which the vacancy occurred (or in which the new directorship was
created) and until that director's successor shall be elected and shall have
qualified. No decrease in the number of directors constituting the Board of
Directors may shorten the term of any incumbent director.
ARTICLE SEVEN
Special meetings of the stockholders of the Corporation for any purpose
or purposes may be called at any time by the Chairman of the Board of Directors
or by the Secretary of the Corporation within ten calendar days after receipt of
a written request from a majority of the total number of directors which the
Corporation would have if there were no vacancies. Such special meetings may not
be called by any other person or persons.
ARTICLE EIGHT
Any action required by the General Corporation Law of the State of
Delaware to be taken at an annual or special meeting of stockholders of the
Corporation, and any action which otherwise may be taken at any annual or
special meeting of stockholders of the Corporation, shall be taken only at a
duly called meeting of the stockholders of the Corporation and, notwithstanding
Section 228 of the General Corporation Law of the State of Delaware, no such
action shall be taken by written consent or consents without a meeting of the
stockholders of the Corporation.
ARTICLE NINE
Except as otherwise provided by law, at any annual or special meeting
of the stockholders of the Corporation, only such business shall be conducted or
considered as shall have been properly brought before the meeting. Except as
otherwise provided herein, in order to have been properly brought before the
meeting, such business must have been either (A) specified in the written notice
of the meeting, or any supplement thereto, given to the stockholders of record
on the record date for such meeting by or at the direction of the Board of
Directors; (B) brought before the meeting at the direction of the Chairman of
the Board, the President or the Board of Directors; or (C) specified in a
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written notice given by or on behalf of a stockholder of record on the record
date for such meeting entitled to vote thereat or a duly authorized proxy for
such stockholder, in accordance with all requirements set forth in this Article
Nine. A notice referred to in clause (C) of the preceding sentence must be
delivered personally to, or mailed to and received at, the principal executive
office of the Corporation, addressed to the attention of the Secretary, not less
than 45 days nor more than 60 days prior to the meeting; provided, however, that
in the event that less than 55 days' notice or prior public disclosure of the
date of the meeting was given or made to stockholders, notice by the stockholder
to be timely must be so received not later than the close of business on the
tenth day following the day on which such notice of the date of the meeting was
mailed or such public disclosure was made, whichever first occurred. Such notice
referred to in clause (C) of the second sentence of this Article Nine shall set
forth: (i) a full description of each such item of business proposed to be
brought before the meeting and the reasons for conducting such business at such
meeting; (ii) the name and address of the person proposing to bring such
business before the meeting; (iii) the class and number of shares held of
record, held beneficially and represented by proxy by such person as of the
record date for the meeting (if such date has then been made publicly available)
and as of the date of such notice; (iv) if any item of such business involves a
nomination for director, all information regarding each such nominee that would
be required to be set forth in a definitive proxy statement filed with the
Securities and Exchange Commission (the "Commission") pursuant to Section 14 of
the Securities Exchange Act of 1934, as amended, or any successor thereto (the
"Exchange Act"), and the written consent of each such nominee to serve if
elected; (v) any material interest of the stockholder in such item of business;
and (vi) all other information that would be required to be filed with the
Commission if, with respect to the business proposed to be brought before the
meeting, the person proposing such business was a participant in a solicitation
subject to Section 14 of the Exchange Act. No business shall be brought before
any meeting of stockholders of the Corporation otherwise than as provided in
this Article Nine. The Board of Directors may require a proposed nominee for
director to furnish such other information as may be required to be set forth in
a stockholder's notice of nomination which pertains to the nominee or which may
be reasonably required to determine the eligibility of such proposed nominee to
serve as a director of the Corporation. The chairman of the meeting may, if the
facts warrant, determine that a nomination or stockholder proposal was not made
in accordance with the foregoing procedure, and if the chairman should so
determine, the chairman shall so declare to the meeting and the defective
nomination or proposal shall be disregarded.
ARTICLE TEN
The Bylaws of the Corporation, as amended and restated on the date
hereof, are hereby adopted by the Board of Directors. In furtherance and not in
limitation of the powers conferred by statute, the Board of Directors is
expressly authorized to make, repeal, alter, amend and rescind the Bylaws of the
Corporation, by the affirmative vote of a majority of the total number of
directors which the Corporation would have if there were no vacancies.
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, Sections 6(b), 6(j) and 6(l) of Article I of the Bylaws,
Sections 2(b), 2(c) and 2(d) of Article II of the Bylaws and Article VI of the
Bylaws may not be amended or repealed by the stockholders, and no provision
inconsistent therewith may be adopted by the stockholders, without the
affirmative vote of the holders of at least 75% of the voting power of the
outstanding shares of stock entitled to vote in the election of directors,
voting as a single class.
ARTICLE ELEVEN
To the fullest extent that the General Corporation Law of the State of
Delaware, as it exists
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on the date hereof or as it may hereafter be amended, permits the limitation or
elimination of the liability of directors, no director of the Corporation shall
be personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. Notwithstanding the foregoing, a
director shall be liable to the extent provided by applicable law (1) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(2) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) under Section 174 of the General
Corporation Law of the State of Delaware or any successor provision thereto, or
(4) for any transaction from which the director derived any improper personal
benefit. The provisions of this Article Eleven are not intended to, and shall
not, limit, supersede or modify any other defense available to a director under
applicable law. Neither the amendment or repeal of this Article Eleven, nor the
adoption of any provision of this Certificate of Incorporation inconsistent with
this Article Eleven, shall adversely affect any right or protection of a
director of the Corporation existing at the time of such amendment, repeal or
adoption.
ARTICLE TWELVE
The Corporation shall, to the fullest extent permitted by Section 145
of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, or by any successor provision thereto ("Section 145"),
indemnify any and all persons whom it shall have power to indemnify under
Section 145 from and against any and all of the expenses, liabilities or other
matters referred to in or covered by Section 145. The Corporation shall advance
expenses to the fullest extent permitted by Section 145. Such right to
indemnification and advancement of expenses 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 person. The
indemnification and advancement of expenses provided for herein shall not be
deemed exclusive of any other rights which any person may have or hereafter
acquire under any statute, Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise. Without limiting the generality or the
effect of the foregoing, the Corporation may enter into one or more agreements
with any person which provide for indemnification greater than or different from
that provided in this Article Twelve or Section 145. Neither the amendment or
repeal of this Article Twelve, nor the adoption of any provision of this
Certificate of Incorporation inconsistent with this Article Twelve, shall
adversely affect any right or protection of any person existing at the time of
such amendment, repeal or adoption.
The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions hereof or under Section 145 of the General
Corporation Law or any other applicable law.
ARTICLE THIRTEEN
Subject to the rights, if any, of the holders of any Preferred Stock to
elect additional directors or to remove directors so elected, a duly elected
director of the Corporation may be removed from such position by the
stockholders only for cause and only in the manner specified in this Article
Thirteen. Any such removal may be effected only by the affirmative vote of the
holders of a majority of the voting power of the outstanding shares of stock
entitled to vote in the election of directors, voting as a single class. Except
as may be provided by applicable law, cause for
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removal will be deemed to exist only if the director whose removal is proposed
has been convicted of a felony or adjudicated by a court of competent
jurisdiction to be liable to the Corporation or its stockholders for misconduct
as a result of (a) a breach of such director's duty of loyalty to the
Corporation, (b) any act or omission by such director not in good faith or which
involves a knowing violation of law or (c) any transaction from which such
director derived an improper personal benefit, and such conviction or
adjudication is no longer subject to direct appeal.
ARTICLE FOURTEEN
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
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 this Corporation or any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of 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 this Corporation under the provisions of 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 this 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 this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
ARTICLE FIFTEEN
Any amendment, alteration, change or repeal of any provision contained
in Article Five, Six, Seven, Eight, Nine, Ten or Thirteen or this Article
Fifteen of this Certificate of Incorporation, or the adoption of any provision
inconsistent therewith, may be effected only by the affirmative vote of the
holders of 75% of the voting power of the outstanding shares of stock entitled
to vote in the election of directors, voting as a single class, and all rights
conferred on stockholders herein are granted subject to any provision of the
General Corporation Laws of the State of Delaware, as amended.
This Certificate of Incorporation was duly adopted in accordance with
the provisions of Section 242 and Section 245 of the General Corporation Law of
the State of Delaware.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Ezra Dabah, its Chairman and Chief Executive Officer, and attested by
Steven Balasiano, its Secretary, this 18th day of September, 1997.
THE CHILDREN'S PLACE RETAIL STORES, INC.
By: /s/ Ezra Dabah
-------------------------------
Ezra Dabah
Chairman and Chief Executive Officer
Attest:
/s/ Steven Balasiano
- ---------------------------------
Steven Balasiano
Secretary
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