Exhibit 3.1(a)
RESTATED ARTICLES OF INCORPORATION
OF
BAKERS FOOTWEAR GROUP, INC.
ARTICLE ONE
NAME
The name of the corporation (the "Corporation") is Bakers Footwear
Group, Inc.
ARTICLE TWO
REGISTERED OFFICE
The address of the Corporation's registered office in the State of
Missouri is 2815 Scott Avenue, St. Louis, Missouri 63103, and the name of the
registered agent at such address is Peter A. Edison.
ARTICLE THREE
AUTHORIZED SHARES
A. Classes and Number of Shares.
The aggregate number, class and par value of shares of capital stock
which the Corporation shall have authority to issue is Forty-Five Million
(45,000,000) shares of stock, consisting of:
(i) Five Million (5,000,000) shares of Class A Common Stock having a
par value of one-tenth of a cent ($0.001) per share ("Class A Common Stock");
(ii) Five Hundred Thousand (500,000) shares of Class B Common Stock
having a par value of one-tenth of a cent ($0.001) per share ("Class B Common
Stock");
(iii) Two Million Five Hundred Fifty Thousand (2,550,000) shares of
Class C Common Stock having a par value of one-tenth of a cent ($0.001) per
share ("Class C Common Stock");
(iv) Thirty One Million Nine Hundred Fifty Thousand (31,950,000) shares
of common stock, having a par value of one one-hundredth of a cent ($0.0001) per
share ("Common Stock"); and
(v) Five Million (5,000,000) shares of preferred stock, having a par
value of one one-hundredth of a cent ($0.0001) per share ("Preferred Stock").
Pursuant to Section 351.200.4 of the General and Business Corporation
Law of Missouri, as amended from time to time (or any applicable successor
statute) (the "GBCL"), following the
Conversion (as defined below) of the Class A Common Stock, Class B Common Stock
and Class C Common Stock, the reissuance of any of such classes of common stock
is expressly prohibited.
All preemptive rights of shareholders are hereby denied, so that no
stock or other security of the Corporation shall carry with it and no holder or
owner of any share or shares of stock or other security or securities of the
Corporation shall have any preferential or preemptive right to acquire
additional shares of stock or of any other security of the Corporation. All
cumulative voting rights are hereby denied, so that no stock or other security
of the Corporation shall carry with it and no holder or owner of any share or
shares of such stock or security shall have any right to cumulative voting in
the election of directors or for any other purpose. The foregoing provisions
within this paragraph are not intended to modify or prohibit any provisions of
any voting trust or agreement between or among holders or owners of shares of
stock or other securities of the Corporation.
In addition to those general qualifications, limitations and
restrictions applicable to each and every class and series of capital stock of
the Corporation as a matter of law or as stated in the immediately preceding
paragraph, the voting powers, designations, preferences, and relative,
participating, optional or other special rights and qualifications, limitations,
or restrictions thereof, or terms and conditions of redemption, if any, in
respect of the shares of each class are described in Sections B and C of this
Article Three.
B. Terms of Common Stock.
1. Voting Rights. Except as otherwise provided by the GBCL, each holder
of shares of Class A Common Stock or Common Stock shall be entitled to one vote
per share of Class A Common Stock or Common Stock held by such holder on all
matters to be voted on by the shareholders.
2. Dividend Rights. Subject to the express terms of any outstanding
series of Preferred Stock, dividends may be declared and paid upon the Class A
Common Stock, the Class B Common Stock, the Class C Common Stock or the Common
Stock out of funds of the Corporation legally available therefor, in such
amounts and at such times as the Board of Directors may determine. Funds
otherwise legally available for the payment of dividends on the Class A Common
Stock, the Class B Common Stock, the Class C Common Stock or the Common Stock
shall not be restricted or reduced by reason of there being any excess of the
aggregate preferential amount of any series of Preferred Stock outstanding over
the aggregate par value thereof.
C. Terms of Preferred Stock.
1. Subject to the requirements of the GBCL, and to the provisions of
these Articles of Incorporation, the Board of Directors is expressly authorized,
prior to the issuance of any shares of any series of Preferred Stock, to cause
any number of the authorized and undesignated shares of Preferred Stock to be
issued at any time and from time to time by adopting a resolution or resolutions
providing for the issuance of shares of any particular series of Preferred
Stock, to
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set or change the number of shares to be included in any series of Preferred
Stock and to set or change (in any one or more respects) the voting powers, full
or limited, or no voting powers, and the designations, preferences, and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, or terms and conditions of redemption
relating to the shares of each such series and, if and to the extent from time
to time required by law, by filing certification thereto with the Secretary of
State of Missouri. The authority of the Board of Directors with respect to each
series of Preferred Stock shall include, but not be limited to, setting or
changing the following:
(a) the distinctive serial designation of such series and the
number of shares constituting such series (provided that the aggregate number of
shares constituting all series of Preferred Stock shall not exceed the aggregate
number of authorized shares set out in clause (v) of Section A of this Article
Three);
(b) the rate or amount per annum, if any, at which the holders
of the shares of such series of Preferred Stock shall be entitled to receive
dividends, the date on which any such dividends shall be payable, whether and
the extent to which such dividends shall be cumulative or non-cumulative, the
relative rights of priority, if any, of payment of any dividends, and the time
at which, and the terms and conditions on which, any such dividends shall be
paid;
(c) whether the shares of such series shall be redeemable or
purchasable and, if so, the terms and conditions of such redemption or purchase,
including the date or dates upon and after which such shares shall be redeemable
or purchasable, and the amount per share payable in case of redemption or
purchase, with any adjustments, which amount may vary under different conditions
and at different redemption or purchase dates and may be in cash, property or
rights, including securities of the Corporation or of another business entity;
(d) the obligation, if any, of the Corporation to retire
shares of such series pursuant to a sinking fund and the terms and conditions of
any such sinking fund;
(e) whether shares of such series of Preferred Stock shall be
convertible into, or exchangeable for, shares of stock of any other series,
class or classes, now or hereafter authorized, and, if so, the terms and
conditions of such conversion or exchange, including the price or prices or the
rate or rates of conversion or exchange and the terms of adjustment, if any;
(f) whether the shares of such series of Preferred Stock shall
have voting rights, in addition to the voting rights provided by law, and, if
so, the terms of such voting rights;
(g) the rights of the holders of shares of such series of
Preferred Stock in the event of voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, and the relative rights of
priority, if any, of such holders with respect thereto; and
(h) any other relative rights, powers, preferences,
qualifications, limitations or restrictions thereof relating to such series of
Preferred Stock.
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ARTICLE FOUR
CONVERSION
A. Each issued share of Class A Common Stock, Class B Common Stock and
Class C Common Stock, whether or not outstanding at the Conversion Time (as
defined below), shall automatically convert (the "Conversion"), without the
requirement of any further action, into one share of Common Stock upon the
consummation of a public offering of the capital stock of the Corporation (the
"Conversion Time") pursuant to an effective registration statement under the
Securities Act of 1933, as amended, and thereafter, no shares of any of the
Class A Common Stock, Class B Common Stock or Class C Common Stock shall be
issuable.
B. Following the Conversion Time, each certificate evidencing shares of
Class A Common Stock, Class B Common Stock or Class C Common Stock immediately
prior to the Conversion Time shall be deemed to be a certificate evidencing an
identical number of shares of Common Stock as the number of shares that was
evidenced by such certificate immediately prior to the Conversion Time; provided
that no fractional shares will be issued in connection with this conversion.
Rather, holders of Class A Common Stock, Class B Common Stock or Class C Common
Stock entitled to receive a fraction of a share of Common Stock (after taking
into account all certificates held by such shareholder) will receive in lieu
thereof cash (without interest) in an amount equal to such fractional part of a
share of Common Stock multiplied by the initial price to the public of the
Common Stock. Following the Conversion Time, no holder will be entitled to
dividends, voting rights, or any other rights as a shareholder in respect of any
fractional share.
ARTICLE FIVE
BUSINESS COMBINATIONS
The Corporation hereby subjects itself to and accepts the provisions of
Section 351.459 of the GBCL, provided that such section shall not apply to any
person who was an "interested shareholder" as of April 1, 2002, or any
affiliates or associates of such person at such time.
ARTICLE SIX
INCORPORATOR
The name and place of residence of each incorporator is as follows:
Charles H. Weiss, St. Louis, Missouri 25 shares
Max W. Kramer, St. Louis, Missouri 25 shares
Henry H. Stern, St. Louis, Missouri 25 shares
Clyde W. Wagner, St. Louis, Missouri 25 shares
---
100 shares
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ARTICLE SEVEN
DIRECTORS
A. Number and Classification.
The current number of directors to constitute the Board of Directors of
the Corporation is three (3). Hereafter, the number of directors shall be fixed
by or in the manner provided in the Bylaws of the Corporation. Any changes in
the number of directors shall be reported to the Missouri Secretary of State
within thirty (30) calendar days of such change. Directors shall be elected to
hold office until the next succeeding annual meeting of the shareholders and the
election or appointment of the director's successor or the director's earlier
resignation or removal. Notwithstanding the foregoing, whenever the holders of
any one or more classes or series of stock of the Corporation, other than shares
of Common Stock, shall have the right, voting separately by class or series, to
elect directors, then the election, term of office, filling of vacancies and
other features of such directorship shall be governed by the terms of the
Articles of Incorporation of the Corporation or any certificate of designation
thereunder applicable thereto. As used in these Articles of Incorporation, the
term "entire Board of Directors" or the "entire Board" means the total number
fixed by, or in accordance with, these Articles of Incorporation and the Bylaws
of the Corporation.
B. Removal of Directors.
Subject to, and in addition to, the rights, if any, of the holders of
any class of capital stock of the Corporation (other than the Common Stock) then
outstanding or any limitation imposed by law, (1) any director, or the entire
Board of Directors, may be removed from office at any time prior to the
expiration of his, her or their term of office only for cause and by the
affirmative vote of the holders of record of outstanding shares representing not
less than two-thirds of all of the then outstanding shares of capital stock of
the Corporation then entitled to vote generally in the election of directors,
voting together as a single class at a special meeting of shareholders called
expressly for that purpose (such vote being in addition to any required class or
other vote); and (2) any director may be removed from office for cause by the
affirmative vote of a majority of the entire Board of Directors at any time
prior to the expiration of his or her term of office, as provided by law, in the
event that the director fails to meet any qualifications stated in the Bylaws
for election as a director or in the event that the director is in breach of any
agreement between the director and the Corporation relating to the director's
service as a director or employee of the Corporation. Notice of any proposed
removal pursuant to clause 2 of this Section B shall be given to all directors
of the Corporation prior to action thereto.
C. Vacancies.
Subject to the rights, if any, of the holders of any class of capital
stock of the Corporation (other than the Common Stock) then outstanding, any
vacancies in the Board of Directors which occur for any reason, including
vacancies which occur by reason of an increase in the number of directors or the
removal or resignation of a director, shall be filled only by the Board of
Directors, acting by the affirmative vote of a majority of the remaining
directors then in office
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(although less than a quorum). Any replacement director so elected shall hold
office only until the next election of directors by the shareholders of the
Corporation, unless removed prior to the expiration of his or her term, pursuant
to Section B of this Article Seven.
ARTICLE EIGHT
DURATION
The duration of the Corporation is perpetual.
ARTICLE NINE
PURPOSES
The Corporation is formed for the purpose of engaging in any lawful act
or activity for which a corporation now or hereafter may be organized under the
laws of the State of Missouri.
ARTICLE TEN
BYLAWS
Only a majority of the entire Board of Directors may make, amend,
alter, change or repeal any provision or provisions of the Bylaws of the
Corporation; provided, however, that in no event shall the Bylaws be
inconsistent with law or, in substance to a material degree, with any of the
terms, conditions or provisions of these Articles of Incorporation.
ARTICLE ELEVEN
LIMITATION ON LIABILITY
The liability of the directors of the Corporation to the Corporation or
any of its shareholders for monetary damages for breach of fiduciary duty as a
director shall be eliminated to the fullest extent permitted under the GBCL. Any
repeal or modification of this Article Eleven by the shareholders 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 occurring prior to such repeal or modification.
ARTICLE TWELVE
AMENDMENT OF THE ARTICLES OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in these Articles of Incorporation in the manner now or
hereafter prescribed by law, and all rights and powers conferred herein on the
shareholders, directors, officers, employees or agents of the Corporation are
subject to this reserved power; provided, that (in addition to any required
class or other vote) the affirmative vote of the holders of record of
outstanding shares
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representing not less than two-thirds of all of the outstanding shares of
capital stock of the Corporation then entitled to vote generally in the election
of directors, voting together as a single class, shall be required to amend,
alter, change or repeal, or adopt any provision or provisions inconsistent with,
Articles Five, Seven, Ten, Eleven or this Article Twelve of these Articles of
Incorporation, notwithstanding the fact that a lesser percentage may be
specified by the laws of Missouri.
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