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EXHIBIT 3.1
(STATE OF TEXAS LOGO)
THE STATE OF TEXAS
SECRETARY OF STATE
CERTIFICATE OF RESTATE ARTICLES
OF INCORPORATION
OF
Home Interiors & Gifts, Inc.
File: 143490-00
The undersigned, as Secretary of State of Texas, hereby certifies that the
attached Restated Articles of Incorporation for the above named corporation
have been received in this office and are found to conform to law.
ACCORDINGLY the undersigned, as Secretary of State, and by virtue of the
authority vested in the Secretary by law, hereby issues this Certificate of
Restated Articles of Incorporation.
Dated: June 4,1998
Effective: June 4,1998
(STATE OF TEXAS LOGO)
/s/ ALBERTO R. GONZALES
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Alberto R. Gonzales LCS
Secretary of State
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RESTATED ARTICLES OF INCORPORATION WITH AMENDMENT
OF
HOME INTERIORS & GIFTS, INC.
ARTICLE ONE
HOME INTERIORS & GIFTS, INC., a Texas corporation (the "Corporation"),
pursuant to the provisions of Article 4.07 of the Texas Business Corporation
Act, hereby adopts restated articles of incorporation which accurately copy the
articles of incorporation and all amendments thereto that are in effect to date
and as further amended by such restated articles of incorporation as
hereinafter set forth and which contain no other change in any provision
thereof.
ARTICLE TWO
Each article of the articles of incorporation is hereby amended by the
restated articles of incorporation as set forth in Article Five.
ARTICLE THREE
Each such amendment made by the restated articles of incorporation has
been effected in conformity with the provisions of the Texas Business
Corporation Act and such restated articles of incorporation and each such
amendment made by the restated articles of incorporation were duly adopted by
the shareholders of the Corporation on the 16th day of May, 1998.
ARTICLE FOUR
The number of shares outstanding on the date of the shareholders'
meeting was 50,956,800; the number of shares entitled to vote at such meeting
on the restated articles of incorporation as so amended was 50,956,800; the
number of shares voted for such articles as so amended was 50,029,461; and the
number of shares voted against such articles as so amended was 190,070.
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ARTICLE FIVE
The articles of incorporation and all amendments and supplements
thereto are hereby superseded by the following restated articles of
incorporation which accurately copy the entire text thereof and as amended as
above set forth:
ARTICLE ONE
The name of the Corporation is HOME INTERIORS & GIFTS, INC.
ARTICLE TWO
The period of duration of the Corporation is perpetual.
ARTICLE THREE
The purpose for which the Corporation is organized is to
engage in the transaction of any and all lawful businesses for which
corporations may be incorporated under the Texas Business Corporation
Act.
ARTICLE FOUR
The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is Eighty-Five
Million (85,000,000), of which (a) Seventy-Five Million (75,000,000)
shares shall be designated as Common Stock, par value $0.10 per
share, and (b) Ten Million (10,000,000) shares shall be designated as
Preferred Stock, par value $.01 per share.
The following is a statement of the designations, preferences,
limitations, and relative rights, including voting rights, in respect
of the classes of stock of the Corporation and of the authority with
respect thereto expressly vested in the Board of Directors of the
Corporation:
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COMMON STOCK
(1) Each share of Common Stock of the Corporation shall have
identical rights and privileges in every respect. The holders of shares of
Common Stock shall be entitled to vote upon all matters submitted to a vote of
the shareholders of the Corporation and shall be entitled to one vote for each
share of Common Stock held.
(2) Subject to the prior rights and preferences, if any,
applicable to shares of the Preferred Stock or any series thereof, the holders
of shares of the Common Stock shall be entitled to receive such dividends
(payable in cash, stock, or otherwise) as may be declared thereon by the Board
of Directors at any time and from time to time out of any funds of the
Corporation legally available therefor.
(3) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, after distribution in full of
the preferential amounts, if any, to be distributed to the holders of shares of
the Preferred Stock or any series thereof, the holders of shares of the Common
Stock shall be entitled to receive all of the remaining assets of the
Corporation available for distribution to its shareholders, ratably in
proportion to the number of shares of the Common Stock held by them. A
liquidation, dissolution, or winding-up of the Corporation, as such terms are
used in this Paragraph (3), shall not be deemed to be occasioned by or to
include any merger of the Corporation with or into one or more corporations or
other entities, any acquisition or exchange of the outstanding shares of one or
more classes or series of capital stock of the Corporation, or any sale, lease,
exchange, or other disposition of all or a part of the assets of the
Corporation.
PREFERRED STOCK
(4) Shares of the Preferred Stock may be issued from time to time
in one or more series, the shares of each series to have such designations,
preferences, limitations, and relative
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rights, including voting rights, as shall be stated and expressed herein or in
a resolution or resolutions providing for the issue of such series adopted by
the Board of Directors of the Corporation. Before the issuance of any shares
of a class or series established or increased or decreased by resolution, the
Corporation shall file a statement with the Secretary of State in compliance
with Art. 2.13(D). Each such series of Preferred Stock shall be designated so
as to distinguish the shares thereof from the shares of all other series and
classes. The Board of Directors of the Corporation is hereby expressly
authorized, subject to the limitations provided by law, to establish and
designate series of the Preferred Stock, to fix the number of shares
constituting each series, and to fix the designations and the preferences,
limitations, and relative rights, including voting rights, of the shares of
each series and the variations of the relative rights and preferences as
between series, and to increase and to decrease the number of shares
constituting each series, provided that the Board of Directors may not decrease
the number of shares within a series to less than the number of shares within
such series that are then issued. The relative powers, rights, preferences,
and limitations may vary between and among series of Preferred Stock in any and
all respects so long as all shares of the same series are identical in all
respects, except that shares of any such series issued at different times may
have different dates from which dividends thereon cumulate. The authority of
the Board of Directors of the Corporation with respect to each series shall
include, but shall not be limited to, the authority to determine the following:
(a) The designation of such series;
(b) The number of shares initially constituting such
series;
(c) The rate or rates and the times at which dividends on
the shares of such series shall be paid, the periods in respect of
which dividends are payable, the conditions upon such dividends, the
relationship and preferences, if any, of such dividends to dividends
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payable on any other class or series of shares, whether or not such
dividends shall be cumulative, partially cumulative, or noncumulative,
if such dividends shall be cumulative or partially cumulative, the
date or dates from and after which, and the amounts in which, they
shall accumulate, whether such dividends shall be share dividends,
cash or other dividends, or any combination thereof, and if such
dividends shall include share dividends, whether such share dividends
shall be payable in shares of the same or any other class or series of
shares of the Corporation (whether now or hereafter authorized), or
any combination thereof and the other terms and conditions, if any,
applicable to dividends on shares of such series;
(d) Whether or not the shares of such series shall be
redeemable or subject to repurchase at the option of the Corporation
or the holder thereof or upon the happening of a specified event, if
such shares shall be redeemable, the terms and conditions of such
redemption, including but not limited to the date or dates upon or
after which such shares shall be redeemable, the amount per share
which shall be payable upon such redemption, which amount may vary
under different conditions and at different redemption dates, and
whether such amount shall be payable in cash, property, or rights,
including securities of the Corporation or another corporation;
(e) The rights of the holders of shares of such series in
the event of the voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation (which may vary depending upon the
circumstances or nature of such liquidation, dissolution, or winding
up) and the relationship or preference, if any, of such rights to
rights of holders of stock of any other class or series. A
liquidation, dissolution, or winding up of the Corporation, as such
terms are used in this subparagraph (e), shall not be deemed to be
occasioned by or to
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include any merger of the Corporation with or into one or more
corporations or other entities, any acquisition or exchange of the
outstanding shares of one or more classes or series of the
Corporation, or any sale, lease, exchange, or other disposition of all
or a part of the assets of the Corporation;
(f) Whether or not the shares of such series shall have
voting powers and, if such shares shall have such voting powers, the
terms and conditions thereof, including, but not limited to, the right
of the holders of such shares to vote as a separate class either alone
or with the holders of shares of one or more other classes or series
of stock and the right to have more (or less) than one vote per share;
provided, however, that the right to cumulate votes for the election
of directors is expressly denied and prohibited;
(g) Whether or not a sinking fund shall be provided for
the redemption of the shares of such series and, if such a sinking
fund shall be provided, the terms and conditions thereof;
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(h) Whether or not a purchase fund shall be provided for
the shares of such series and, if such a purchase fund shall be
provided, the terms and conditions thereof;
(i) Whether or not the shares of such series, at the
option of either the Corporation or the holder or upon the happening
of a specified event, shall be convertible into stock of any other
class or series and, if such shares shall be so convertible, the terms
and conditions of conversion, including, but not limited to, any
provision for the adjustment of the conversion rate or the conversion
price;
(j) Whether or not the shares of such series, at the
option of either the Corporation or the holder or
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upon the happening of a specified event, shall be exchangeable for
securities, indebtedness, or property of the Corporation and, if such
shares shall be so exchangeable, the terms and conditions of exchange,
including, but not limited to, any provision for the adjustment of the
exchange rate or the exchange price; and
(k) Any other preferences, limitations, and relative
rights as shall not be inconsistent with the provisions of this
Article Four or the limitations provided by law.
ARTICLE FIVE
No holder of any shares of capital stock of the Corporation, whether
now or hereafter authorized, shall, as such holder, have any preemptive or
preferential right to receive, purchase, or subscribe to (a) any unissued or
treasury shares of any class of capital stock (whether now or hereafter
authorized) of the Corporation, (b) any obligations, evidences of indebtedness,
or other securities of the Corporation convertible into or exchangeable for, or
carrying or accompanied by any rights to receive, purchase, or subscribe to,
any such unissued or treasury shares, (c) any right of subscription to or to
receive, or any warrant or option for the purchase of, any of the foregoing
securities, or (d) any other securities that may be issued or sold by the
Corporation.
ARTICLE SIX
The Corporation will not commence business until it has received for
the issuance of its shares consideration of the value of $1,000.00.
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ARTICLE SEVEN
Cumulative voting for the election of directors is expressly denied
and prohibited.
ARTICLE EIGHT
No contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other domestic or
foreign corporation or other entity in which one or more of its directors or
officers are directors or officers or have a financial interest, shall be void
or voidable solely for this reason, solely because the director or officer is
present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose, if any one of the
following is satisfied:
(a) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or
(b) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known to
the shareholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
shareholders; or
(c) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved, or ratified by
the Board of
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Directors, a committee thereof, or the shareholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
This provision shall not be construed to invalidate a contract or
transaction which would be valid in the absence of this provision or to subject
any director or officer to any liability that he would not be subject to in the
absence of this provision.
ARTICLE NINE
The Corporation shall indemnify any person who was, is, or is
threatened to be made a named defendant or respondent in a proceeding (as
hereinafter defined) by reason of the fact that he or she (i) is or was a
director or officer of the Corporation or (ii) while a director or officer of
the Corporation, is or was serving at the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic corporation, employee
benefit plan, other enterprise, or other entity, to the fullest extent
permitted under Article 2.02-1 of the Texas Business Corporation Act, as the
same exists or may hereafter be amended. Such right to indemnification shall
include the right to be paid by the Corporation reasonable expenses incurred in
connection with the proceeding in advance of its final disposition to the
maximum extent permitted under Article 2.02-1 of the Texas Business Corporation
Act, as the same exists or may hereafter be amended.
As used herein, the term "proceeding" means any threatened, pending,
or completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, any appeal in such an action,
suit, or proceeding,
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and any inquiry or investigation that could lead to such an action, suit, or
proceeding.
ARTICLE TEN
Any action of the Corporation which, under the provisions of the Texas
Business Corporation Act or any other applicable law, is required to be
authorized or approved by the holders of any specified fraction which is in
excess of one-half or any specified percentage which is in excess of fifty
percent of the outstanding shares (or of any class or series thereof) of the
Corporation shall, notwithstanding any law, be deemed effectively and properly
authorized or approved if authorized or approved by the vote of the holders of
more than fifty percent of the outstanding shares entitled to vote thereon (or,
if the holders of any class or series of the Corporation's shares shall be
entitled by the Texas Business Corporation Act or any other applicable law to
vote thereon separately as a class, by the vote of the holders of more than
fifty percent of the outstanding shares of each such class or series). Without
limiting the generality of the foregoing, the foregoing provisions of this
Article Ten shall be applicable to any required shareholder authorization or
approval of: (a) any amendment to these Amended and Restated Articles of
Incorporation; (b) any plan of merger, share exchange, or reorganization
involving the Corporation; (c) any sale, lease, exchange, or other disposition
of all, or substantially all, the property and assets of the Corporation; and
(d) any voluntary dissolution of the Corporation.
Directors of the Corporation shall be elected by a plurality of the
votes cast by the holders of shares entitled to vote in the election of
directors of the Corporation at a meeting of shareholders at which a quorum is
present.
Except as otherwise provided in this Article Ten or as otherwise
required by the Texas Business Corporation Act or other applicable law, with
respect to any matter, the affirmative
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vote of the holders of a majority of the Corporation's shares entitled to vote
on that matter and represented in person or by proxy at a meeting of
shareholders at which a quorum is present shall be the act of the shareholders.
Nothing contained in this Article Ten is intended to require
shareholder authorization or approval of any action of the Corporation
whatsoever unless such approval is specifically required by the other
provisions of these Amended and Restated Articles of Incorporation, the Amended
and Restated Bylaws of the Corporation, or by the Texas Business Corporation
Act or other applicable law.
ARTICLE ELEVEN
The street address of the registered office of the Corporation in the
State of Texas is 4550 Spring Valley Road, Dallas, Texas 75244 (P.O. Box
34750), and the name of its registered agent at such address is Donald J.
Carter, Jr.
ARTICLE TWELVE
The number of directors constituting the Board of Directors shall be
that number of directors set forth in the Amended and Restated Bylaws of the
Corporation and the name and address of each person who is to serve as a
director until the next annual meeting of shareholders and until such
director's successor is elected and qualified or, if earlier, until such
director's death, resignation, or removal as director, is as follows:
Donald J. Carter, Jr. 4550 Spring Valley Road
Dallas, Texas 75244
Daniel S. Dross 200 Crescent Court
Suite 1600
Dallas, Texas 75201
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Jack D. Furst 200 Crescent Court
Suite 1600
Dallas, Texas 75201
Barbara J. Hammond 4550 Spring Valley Road
Dallas, Texas 75244
Thomas O. Hicks 200 Crescent Court
Suite 1600
Dallas, Texas 75201
Lawrence D. Stuart, Jr. 200 Crescent Court
Suite 1600
Dallas, Texas 75201
Christina L. Carter Urschel 4550 Spring Valley Road
Dallas, Texas 75244
ARTICLE THIRTEEN
To the fullest extent permitted by applicable law, as the same exists
or hereafter may be amended or interpreted, a director of the Corporation shall
not be liable to the Corporation or its shareholders for monetary damages for
an act or omission in the director's capacity as a director, except that this
Article Thirteen does not eliminate or limit the liability of a director of the
Corporation to the extent the director is found liable for:
(i) a breach of the director's duty of loyalty to the Corporation
or its shareholders;
(ii) an act or omission not in good faith that constitutes a breach
of duty of the director to the Corporation or an act or
omission that involves intentional misconduct or a knowing
violation of the law;
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(iii) a transaction from which the director received an improper
benefit, whether or not the benefit resulted from an action
taken within the scope of the director's office; or
(iv) an act or omission for which the liability of a director is
expressly provided by an applicable statute.
Any repeal or amendment of this Article Thirteen, or adoption of any
other provision of these Amended and Restated Articles of Incorporation
inconsistent with this Article Thirteen, shall be prospective only and shall
not adversely affect any limitation on the liability of a director of the
Corporation arising from an act or omission occurring prior to the time of such
repeal, amendment or adoption of an inconsistent provision. In addition to the
circumstances in which a director of the Corporation is not liable as set forth
in the foregoing provisions of this Article Thirteen, a director shall not be
liable to the Corporation or its shareholders to such further extent as
permitted by any law hereafter enacted, including without limitation any
subsequent amendment to the Texas Miscellaneous Corporation Laws Act or the
Texas Business Corporation Act.
ARTICLE FOURTEEN
Any action which may be taken, or which is required by law or these
Amended and Restated Articles of Incorporation or the Amended and Restated
Bylaws of the Corporation to be taken, at any annual or special meeting of
shareholders may be taken without a meeting, without prior notice, and without
a vote, if a consent or consents in writing, setting forth the action so taken,
shall have been signed by the holder or holders of shares having not less than
the minimum number of votes that would be necessary to take such action at a
meeting at which the holders of all shares entitled to vote on the action were
present and voted.
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Dated this 4th day of June, 1998.
HOME INTERIORS & GIFTS, INC.
By: /s/ CAMILLE R. COMEAU
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Camille R. Comeau,
Secretary