STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
DELIVERED 03:18 PM 07/13/2006
CERTIFICATE OF AMENDMENT FILED 02:59 PM 07/13/2006
SRV 060665814 - 0939772 FILE
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF
JOS. A. BANK CLOTHIERS, INC.
(Pursuant to Section 242 of the
General Corporation Law of the State of Delaware)
Jos. A. Bank Clothiers, Inc. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "DGCL"),
DOES HEREBY CERTIFY:
FIRST: That the name of the Corporation is Jos. A. Bank Clothiers, Inc.
The original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of Delaware on June 22, 1982. The Restated Certificate of
Incorporation was filed with the Secretary of State of Delaware on February 28,
1994 (the "Restated Certificate of Incorporation").
SECOND: The first paragraph of the Article IV of the Restated
Certificate of Incorporation is hereby amended in its entirety to read as
follows:
"The total number of shares of capital stock which the Corporation
shall have authority to issue is 45,500,000 shares, of which 45,000,000 shares
shall be classified as Common Stock, $.01 par value per share (the "Common
Stock"), and 500,000 shares shall be classified as Preferred Stock, $1.00 par
value per share ("Preferred Stock").
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the DGCL.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed this 12th day of July, 2006.
JOS. A. BANK CLOTHIERS, INC.
By: /s/ CHARLES D. FRAZER
--------------------------------------
Charles D. Frazer
Senior Vice President-General Counsel
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 03:16 PM 02/28/1994
944030148 - 939772
RESTATED
CERTIFICATE OF INCORPORATION
OF
JOS. A. BANK CLOTHIERS, INC.
-------------------
Under Section 245 of the
General Corporation Law
-------------------
The undersigned DOES HEREBY CERTIFY as follows:
FIRST: The name of the corporation is Jos. A. Bank Clothiers, Inc. (the
"Corporation").
SECOND: The date of filing of the Corporation's original Certificate of
Incorporation with the Secretary of State of the State of Delaware was June 22,
1982.
THIRD: The Certificate of Incorporation, as heretofore amended, of the
Corporation (the "Certificate of Incorporation") is amended hereby as follows:
(a) Article IV is amended to (i) increase the number of shares of
capital stock which the Corporation shall have authority to issue
and (ii) eliminate the designations of the Series A, B, C, D, and E
Preferred Stock of the Corporation (the "Series Preferred Stock")
and all powers, preferences, privileges, voting, dividend and other
special or relative rights and qualifications of the Series
Preferred Stock;
(b) Article V is amended to establish the number of directors of the
Corporation, with the number of directors to be fixed from time to
time by resolution of the Board of Directors of the Corporation
(the "Board") and (ii) reorganize the Board into three classes with
staggered terms;
(c) Article VI is deleted in its entirety;
(d) A new Article VI is inserted to eliminate the ability of
stockholders to take action by written consent; and
(e) A new Article IX is inserted to provide the Board with the power to
adopt, amend or repeal all or any of the by-laws.
FOURTH: This Restated Certificate of Incorporation was adopted by the
Board and authorized by the unanimous written consent of the stockholders
pursuant to Section 242 of the General Corporation Law of the State of Delaware.
FIFTH: The Certificate of Incorporation as amended heretofore is hereby
restated and further amended to read as herein set forth in full:
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RESTATED
CERTIFICATE OF INCORPORATION
OF
JOS. A. BANK CLOTHIERS, INC.
-------------------------
ARTICLE I
The name of the corporation is Jos. A. Bank Clothiers, Inc. (the
"Corporation").
ARTICLE II
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law (the "GCL").
ARTICLE III
The address of the Corporation's registered office in the State of
Delaware is 15 East North Street, Dover, Delaware 19901. The Corporation's
registered agent at such address is United Corporate Services, Inc.
ARTICLE IV
The total number of shares of capital stock which the Corporation shall
have authority to issue is 20,500,000 shares, of which 20,000,000 shares shall
be classified as Common Stock, $.01 par value per share (the "Common Stock"),
and 500,000 shares shall be classified as Preferred Stock, $1.00 par value per
share ("Preferred Stock").
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of the Corporation.
A. COMMON STOCK.
1. GENERAL. The voting, dividend and liquidation rights of the holders
of the Common Stock are subject to and qualified by the rights of the holders of
the Preferred Stock of any series as may be designated by the Board of Directors
of the
Corporation (the "Board") upon any issuance of the Preferred Stock of any
series.
2. VOTING. The holders of the Common Stock are entitled to one vote for
each share held at all meetings of stockholders. There shall be no cumulative
voting.
3. DIVIDENDS. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as and when determined by the Board and
subject to any preferential dividend rights of any then outstanding Preferred
Stock.
4. LIQUIDATION. Upon the dissolution or liquidation of the Corporation,
whether voluntary or involuntary, holders of Common Stock will be entitled to
receive all assets of the Corporation available for distribution to its
stockholders, subject to any preferential or participating rights of any then
outstanding Preferred Stock.
B. PREFERRED STOCK.
The Preferred Stock may be issued in one or more series. The number,
designation and all of the powers, preferences and rights and the
qualifications, limitations or restrictions of the shares of any series of
Preferred Stock may be fixed by the Board as provided in Section 151 of the GCL.
Different series of Preferred stock shall not be construed to constitute
different classes of shares for the purposes of voting by classes unless
expressly so provided.
ARTICLE V
The number of directors constituting the entire Board shall be not less
than three nor more than twelve (12) as determined from time to time by
resolutions of the Board. The Board shall consist of three classes, designated
as Class I, Class II, and Class III, respectively, with the size of each class
determined from time to time by resolution of the Board; each of which classes
shall, however, consist of a number of directors as equal as possible, with no
class having more than one director more than any other class. Except for the
initial directors in each class who shall have terms of office of one, two and
three years, respectively, each class of directors shall thereafter have a term
of office of three years and until their respective successors shall have been
elected and qualified, or until a director's earlier resignation or removal. Any
director may resign at any time upon notice to the Corporation.
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ARTICLE VI
All action required or permitted to be taken by the Corporation's
stockholders, at any time that the Corporation is subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended, must be
effected at a duly called Annual or Special Meeting (and may not be effected by
written consent in lieu thereof).
ARTICLE VII
Any person made, or threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he, his testator or
intestate is or was a director, officer, employee or agent of the Corporation,
or is or was acting at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including, without limitation, as a fiduciary of, or otherwise
rendering services to, any employee benefit plan of or relating to the
Corporation, shall be indemnified by the Corporation to the fullest extent
provided by the GCL, as amended from time to time.
The right to indemnification conferred in the foregoing paragraph shall
include the right to be paid by the Corporation the expenses incurred in
defending any proceeding for which such right to indemnification is applicable
in advance of its final disposition (hereinafter an "advancement of expenses");
PROVIDED, HOWEVER, that, if the GCL requires, an advancement of expenses
incurred by an indemnitee in his capacity as a director or officer (and not in
any other capacity) in which service was or is rendered by such indemnitee
(including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking, by or on behalf of
such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal for such expenses under this Article VII or otherwise.
ARTICLE VIII
A director of the Corporation shall not he personally liable to the
Corporation or its stockholders for monetary damages for a 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) under Section 174 of the GCL or (iv) for any transaction
from which the director derived an improper personal benefit. If the GCL is
amended at any time or
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from time to time to authorize corporate action which permits the elimination or
limitation of the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the GCL, as so amended. Any repeal or modification of this Article
VIII by the stockholders of the Corporation shall not adversely affect any right
or protection of a director of the Corporation existing at the time of such
repeal or modification.
ARTICLE IX
The Board shall have the power to adopt, amend or repeal all or any of
the by-laws.
ARTICLE X
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by law, and all rights and powers conferred
upon stockholders, directors and officers are subject to this reservation.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation of the
Corporation has been signed, and the statements made herein affirmed as true
under the penalties of perjury, this 28th day of February, 1994.
JOS A. BANK CLOTHIERS, INC.
ATTEST:
By: /s/ Timothy F. Finley
---------------------
/s/ Jacob T. Reinhart Timothy F. Finley,
- ------------------------- Chief Executive Officer
Secretary