EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
THE NEIMAN MARCUS GROUP, INC.
(with amendments through January 21, 2002)
First: The name of the Corporation is The Neiman Marcus Group, Inc.
(hereinafter the "Corporation").
Second: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent at that address is The Corporation
Trust Company.
Third: The purpose of the Corporation is 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 (the "GCL").
Fourth:
1. Authorized Stock. The total number of shares which the
Corporation is authorized to issue is three hundred million
(300,000,000) shares. Two hundred fifty million (250,000,000) shares
shall be designated common stock (the "Common Stock"), of which one
hundred million (100,000,000) shares shall be designated Class A Common
Stock (the "Class A Common Stock"), one hundred million (100,000,000)
shares shall be designated Class B Common Stock (the "Class B Common
Stock") and fifty million (50,000,000) shares shall be designated Class
C Common Stock (the "Class C Common Stock"). Fifty million (50,000,000)
shares shall be designated preferred stock (the "Preferred Stock"), all
of which are presently undesignated as to series. Each share of
Preferred Stock shall have a par value of $0.01 and each share of
Common Stock shall have a par value of $0.01.
2. Common Stock. The Class A Common Stock, the Class B Common
Stock and the Class C Common Stock shall be identical in all respects,
except as otherwise expressly provided herein. The relative powers,
preferences, rights, qualifications, limitations and restrictions of
the shares of Class A Common Stock, Class B Common Stock and Class C
Common Stock shall be as follows:
(a) Cash Dividends. Subject to the rights and preferences of
the Preferred Stock as set forth in any resolution or
resolutions of the Board of Directors providing for the
issuance of such stock pursuant to this Article Fourth, and
except as otherwise provided for herein, the holders of Class
A Common Stock, Class B Common Stock and Class C Common
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Stock are entitled to receive dividends out of assets legally
available therefor at such times and in such per share amounts
as the Board of Directors may from time to time determine;
provided that whenever a cash dividend is paid, the same
amount shall be paid in respect of each outstanding share of
Class A Common Stock, Class B Common Stock and Class C Common
Stock.
(b) Stock Dividends. If at any time a dividend is to be paid
in shares of Class A Common Stock, shares of Class B Common
Stock or shares of Class C Common Stock (a "stock dividend"),
such stock dividend may be declared and paid only as follows:
only Class A Common Stock may be paid to holders of Class A
Common Stock, only Class B Common Stock may be paid to holders
of Class B Common Stock and only Class C Common Stock may be
paid to holders of Class C Common Stock. Whenever a stock
dividend is paid, the same rate or ratio of shares shall be
paid in respect of each outstanding share of Class A Common
Stock, Class B Common Stock and Class C Common Stock.
(c) Property Dividends. If at any time a dividend is to be
paid in rights to purchase shares of Series A Preferred Stock,
shares of Series B Preferred Stock or shares of Series C
Preferred Stock (a "rights dividend") (including in each case
with adjustments that will, under certain circumstances,
constitute rights to purchase Class A Common Stock, Class B
Common Stock and Class C Common Stock, respectively), such
rights dividend may be declared and paid only as follows: only
rights to purchase Series A Preferred Stock may be paid to
holders of Class A Common Stock, only rights to purchase
Series B Preferred Stock may be paid to holders of Class B
Common Stock and only rights to purchase Series C Preferred
Stock may be paid to holders of Class C Common Stock. Whenever
any other property dividend is paid, the same rate or ratio of
shares or other property shall be paid in respect of each
outstanding share of Class A Common Stock, Class B Common
Stock and Class C Common Stock. The references in this
paragraph to any series of preferred stock contemplate the
issuance of such preferred stock pursuant to a stockholders
rights plan adopted by the Corporation.
(d) Stock Subdivisions and Combinations. The Corporation shall
not subdivide, reclassify or combine stock of any class of
Common Stock without at the same time making a proportionate
subdivision, reclassification or combination of shares of the
other classes.
(e) Voting. Voting power shall be divided between the classes
of stock as follows:
(i) Subject to Sections (2)(e)(ii) and
(2)(e)(iv) of this Article Fourth, with respect to
the election of directors, holders of
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Class A Common Stock and holders of Class C Common
Stock, voting together as a class, shall be entitled
to elect that number of directors which constitutes
18% of the authorized number of members of the Board
of Directors (or, if such 18% is not a whole number,
then the nearest lower whole number) (the "Class A
Directors"). Each share of Class A Common Stock shall
have one vote in the election of the Class A
Directors and each share of Class C Common Stock
shall have one-tenth (1/10th) of one vote in the
election of the Class A Directors. Subject to Section
(2)(e)(ii) of this Article Fourth, holders of Class B
Common Stock shall be entitled to elect the remaining
directors (the "Class B Directors"). The initial
Class A Director shall be designated by a majority of
the directors of the Corporation as of the
effectiveness of this Amendment, and the holders of
Class A Common Stock and Class C Common Stock, voting
together as a class, shall be entitled to vote for
the election or replacement of such Class A Director
in satisfaction of their "Special Voting Rights" as
defined in clause (ii) below, at the next election of
directors of the Class (e.g. Class I, Class II or
Class III) in which such director serves are elected.
Each share of Class B Common Stock shall
have one vote in the election of Class B Directors.
For purposes of this Section (2)(e)(i), references to
the authorized number of members of the Board of
Directors shall not include any directors which the
holders of any shares of any series of Preferred
Stock have the right to elect.
(ii) For purposes of this Section
(2)(e)(ii), "Special Voting Rights" means the
different voting rights of the holders of Class A
Common Stock and Class C Common Stock, on the one
hand, and holders of Class B Common Stock, on the
other hand, with respect to the election of the
applicable percentage of the authorized number of
members of the Board of Directors as described in
Section (2)(e)(i). If approved by the Board of
Directors, at any annual or special meeting of
stockholders of the Corporation held at any time
after the fifth anniversary of the distribution by
Harcourt General, Inc. to its stockholders of all of
the Class B Common Stock owned by it (the "Fifth Year
Anniversary"), a majority of the outstanding shares
of the Class A Common Stock and Class C Common Stock,
voting together as a class, and a majority of the
outstanding shares of the Class B Common Stock,
voting separately as a class, may vote to eliminate
the Special Voting Rights, in which case Section
(2)(e)(i) of this Article Fourth shall have no
further force or effect, and thereafter holders of
Common Stock shall have voting rights as are
specified in Section (2)(e)(iv) of this Article
Fourth and shall be entitled to
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elect all members of the Board of Directors. This
Section (2)(e)(ii) shall not be amended prior to the
Fifth Year Anniversary without the affirmative vote
of the holders of at least 66-2/3% of the combined
voting power of all of the Voting Stock, voting
together as a single class, together with any vote of
the holders of any class of stock required by law.
(iii) Unless the Special Voting Rights have
been eliminated in accordance with Section (2)(e)(ii)
of Article Fourth, all newly-created directorships
resulting from an increase in the authorized number
of directors shall be allocated between Class A
Directors and Class B Directors such that at all
times the number of Class A directorships shall be
18% of the authorized number of members of the Board
of Directors (or, if such 18% is not a whole number,
then the nearest lower whole number) and the
remaining directorships shall be Class B
directorships.
(iv) Except as otherwise specified herein or
required by law, the holders of Class A Common Stock,
Class B Common Stock and Class C Common Stock shall
in all matters not otherwise specified in this
Section (2)(e) of this Article Fourth vote together
as one class (including, without limitation, with
respect to increases or decreases in the authorized
number of shares of any class of stock of the
Corporation and without the vote of any class voting
separately as a class), with each share of Class A
Common Stock and Class B Common Stock having one vote
and each share of Class C Common Stock having
one-tenth (1/10th) vote.
(v) Every reference in this Restated
Certificate of Incorporation or the Corporation's
Amended and Restated By-laws to a majority or other
proportion of shares of stock shall refer to such
majority or other proportion of the votes of such
shares of stock.
(f) Merger or Consolidation. The Corporation shall
not enter into any consolidation of the Corporation with one
or more other corporations, a merger of the Corporation with
another corporation, a reorganization of the Corporation or
other similar combination of the Corporation with one or more
third parties, in which each holder of a share of Class A
Common Stock, Class B Common Stock and Class C Common Stock is
not entitled to receive with respect to such share the same
kind and amount of shares of stock and other securities and
property (including cash) receivable upon such consolidation,
merger, reorganization or other combination as each other
holder of a share of Class A Common Stock, Class B Common
Stock and Class C Common Stock; provided that, in any such
transaction, the holders of shares of Class A Common Stock,
Class B
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Common Stock and Class C Common Stock may each receive
different kinds of shares of stock that differ to the extent
and only to the extent that the Board of Directors determines
in good faith that such shares differ with respect to the
rights of holders of such shares as the Class A Common Stock,
Class B Common Stock and Class C Common Stock differ as
provided herein.
(g) Liquidation. In the event of any liquidation,
dissolution or winding up of the Corporation, the holders of
the Class A Common Stock, Class B Common Stock and Class C
Common Stock shall participate equally per share in any
distribution to stockholders, without distinction between
classes.
The Board of Directors is hereby authorized from time to time to
provide by resolution for the issuance of shares of Preferred Stock in one or
more series not exceeding the aggregate number of shares of Preferred Stock
authorized by this Restated Certificate of Incorporation, as amended from time
to time; and to determine with respect to each such series the voting powers, if
any (which voting powers if granted may be full or limited), designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions relating thereto; including
without limiting the generality of the foregoing, the voting rights relating to
shares of Preferred Stock of any series (which may be one or more votes per
share or a fraction of a vote per share, which may vary over time and which may
be applicable generally or only upon the happening and continuance of stated
events or conditions), the rate of dividend to which holders of Preferred Stock
of any series may be entitled (which may be cumulative or noncumulative), the
rights of holders of Preferred Stock of any series in the event of liquidation,
dissolution or winding up of the affairs of the Corporation, the rights, if any,
of holders of Preferred Stock of any series to convert or exchange such shares
of Preferred Stock of such series for shares of any other class or series of
capital stock or for any other securities, property or assets of the Corporation
or any subsidiary (including the determination of the price or prices or the
rate or rates applicable to such rights to convert or exchange and the
adjustment thereof, the time or times during which the right to convert or
exchange shall be applicable and the time or times during which a particular
price or rate shall be applicable), whether or not the shares of that series
shall be redeemable, and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be redeemable, and
the amount per share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates, and whether any shares
of that series shall be redeemed pursuant to a retirement or sinking fund or
otherwise and the terms and conditions of such obligation.
Before the Corporation shall issue any shares of Preferred Stock of any
series, a certificate setting forth a copy of the resolution or resolutions of
the Board of Directors, fixing the voting powers, designations, preferences, the
relative, participating, optional or other rights, if any, and the
qualifications, limitations and restrictions, if any, relating to the shares of
Preferred Stock of such series, and the number of shares of Preferred Stock of
such series authorized by the Board of Directors to be issued shall be made
under seal
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of the Corporation and signed by and shall be filed and a copy thereof recorded
in the manner prescribed by the GCL. The Board of Directors is further
authorized to increase or decrease (but not below the number of such shares of
such series then outstanding) the number of shares of any series subsequent to
the issuance of shares of that series.
Fifth: The directors shall have concurrent power with the stockholders
to make, alter, amend, change, add to or repeal the Bylaws of the Corporation.
Sixth: 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 the
provisions of Section 291 of the GCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of the GCL, 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 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 the Corporation, as the case
may be, and also on the Corporation.
Seventh: Except as otherwise fixed pursuant to the provisions of
Article Fourth of this Restated Certificate of Incorporation relating to the
rights of the holders of any one or more classes or series of Preferred Stock
issued by the Corporation to call an annual or special meeting of stockholders,
special meetings of the stockholders of the Corporation may not be called by the
stockholders of the Corporation.
Eighth: Notwithstanding the GCL, any action required to be taken or
which may be taken by the holders of the Common Stock must be effected at a duly
called annual or special meeting of such holders and may not be taken by any
consent in writing by such holders.
Ninth: The directors shall be divided into three classes, designated
Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one third of the total number of directors constituting the entire
Board of Directors. Initially, Class I directors shall be elected for a one-year
term, Class II directors for a two-year term and Class III directors for a
three-year term. At the annual meeting of stockholders beginning in 1988,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes so as to
maintain the number of
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directors in each class as nearly equal as possible, and any additional director
of any class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. A director shall hold office until the annual
meeting for the year in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Any vacancy in the office
of a director created by the death, resignation, retirement, disqualification,
removal from office of a director or other cause, elected by (or appointed on
behalf of) the holders of the Class B Common Stock, on the one hand, or the
holders of the Class A Common Stock and any other class of stock entitled to
vote for the class of directors elected by the holders of the Class A Common
Stock, on the other hand, as the case may be, shall be filled by the vote of the
majority of the directors (or the sole remaining director) elected by (or
appointed on behalf of) such holders of Class B Common Stock, on the one hand,
or Class A Common Stock and any other class of stock entitled to vote for the
class of directors elected by the holders of the Class A Common Stock, on the
other hand (or on behalf of whom that director was appointed), as the case may
be, unless there are no such directors in such Class, in which case such vacancy
shall be filled by the stockholders of such Class, or the Special Voting Rights
have been eliminated in accordance with Section (2)(e)(ii) of Article Fourth, in
which case such vacancy shall be filled by the vote of the majority of the
directors (or the sole remaining director), regardless of any quorum
requirements set out in the By-laws. Any director elected to fill a vacancy not
resulting from an increase in the number of directors shall have the same
remaining term as that of his predecessor.
Unless the Special Voting Rights have been eliminated in
accordance with Section (2)(e)(ii) of Article Fourth, all newly-created
directorships resulting from an increase in the authorized number of directors
shall be allocated pursuant to Section (2)(e)(iii) of Article Fourth. Once such
newly-created directorships have been allocated as Class A Directors or Class B
Directors, such newly-created directorships shall be filled by the vote of the
majority of the directors in such Class (or the sole remaining director in such
Class), as the case shall be, unless there are no such directors in such Class,
in which case such vacancy shall be filled by the stockholders of such Class, or
the Special Voting Rights have been eliminated in accordance with Section
(2)(e)(ii) of Article Fourth, in which case such vacancy shall be filled by the
vote of the majority of the directors (or the sole remaining director),
regardless of any quorum requirements set out in the By-laws.
In the event that there are no remaining directors, any
vacancy in the office of a director shall be filled by the vote of the majority
of stockholders who elected such director (or on whose behalf such director was
appointed.
Notwithstanding the foregoing, whenever pursuant to the
provisions of Article Fourth of this Restated Certificate of Incorporation, the
holders of any one or more classes or series of Preferred Stock issued by the
Corporation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such
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directorships shall be governed by the terms of this Restated Certificate of
Incorporation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Article Ninth unless expressly provided by
such terms.
Tenth: No director shall be personally liable to the Corporation or any
of 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) pursuant to Section 174 of the GCL or (iv) for any transaction from
which the director derived an improper personal benefit. Any repeal or
modification of this Article Tenth 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 with respect to acts or
omissions for or with respect to any acts or omissions of such director
occurring prior to such repeal or modification.
Eleventh: Subject to Article Fifth and notwithstanding anything else
contained in this Restated Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 66 2/3% of the combined voting power
of all of the Voting Stock, voting together as a single class, shall be required
to alter, amend, rescind or repeal (A) Article Seventh, Article Eighth, Article
Ninth or this Article Eleventh or to adopt any provision inconsistent therewith
or (B) Section 3 of Article II, Sections 1, 2 and 10 of Article III, Article
VIII or Article IX of the Bylaws of the Corporation or to adopt any provision
inconsistent therewith.
"Voting Stock" shall mean the securities of the Corporation which are
entitled to vote generally for the election of directors of the Corporation.
Twelfth: Except as otherwise fixed pursuant to Article Fourth of this
Restated Certificate of Incorporation relating to the rights of the holders of
any one or more classes or series of Preferred Stock issued by the Corporation
acting separately by class or series, to elect, under specified circumstances,
directors at an annual or special meeting of stockholders, the Board of
Directors shall consist of not less than six nor more than twelve persons, the
exact number to be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the Board of Directors. The
affirmative vote of the holders of at least 66-2/3% of the combined voting power
of all of the Voting Stock, voting together as a single class, shall be required
to alter, amend, rescind or repeal this Article or to adopt any provision
inconsistent therewith.
Thirteenth: Notwithstanding anything else contained in this Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 66-2/3% of the combined voting power of the Voting Stock,
voting together as a single class, shall be required for the Corporation to
effect or consummate:
(1) any merger or consolidation of the Corporation
with or into any other corporation;
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(2) any sale, lease, exchange or other disposition of
all or substantially all of the assets of the Corporation to
or with any other person; or
(3) any issuance by the Corporation of any voting
securities of the Corporation which issuance would require
approval by the stockholders of the Corporation pursuant to
the GCL or the rules of any exchange on which the voting
securities of the Corporation are listed, other than an
issuance by the Corporation of voting securities as required
by any stockholder rights plan adopted by the Corporation,
unless such issuance has been approved by a resolution adopted
by not less than two-thirds of all the directors then in
office; provided, however, that the foregoing requirement
shall not apply, and the provisions of the GCL relating to the
percentage of stockholder approval, if any, shall apply to any
merger or other transaction described in the preceding
subparagraphs (1), (2) or (3) if the other party to the merger
or other transaction is a Subsidiary of the corporation.
For purposes of this Article Thirteenth a "Subsidiary" is any
corporation more than 50% of the voting securities of which are owned directly
or indirectly by the Corporation; and a "person" is any individual, partnership,
corporation or entity.
The affirmative vote of the holders of at least 66-2/3% of the
combined voting power of all of the Voting Stock, voting together as a single
class, shall be required to alter, amend, rescind or repeal this Article or to
adopt any provision inconsistent therewith.
This Article Thirteenth shall be of no further force and
effect from and after the Fifth Year Anniversary.
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