EXHIBIT 3.1
(SEAL LOGO) EXPEDITE THIS FORM: (SELECT ONE)
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MAIL FORM TO ONE OF THE FOLLOWING:
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PO Box 1390
[X] Yes Columbus, OH 43216
*** REQUIRES AN ADDITIONAL FEE
OF $100 ***
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PO Box 1028
[ ] No Columbus, OH 43216
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PRESCRIBED BY J. KENNETH BLACKWELL
Ohio Secretary of State
Central Ohio: (614) 466-3910
Toll Free: 1-877-SOS-FILE (1-877-767-3453)
www.state.oh.us/sos
e-mail: busserv@sos.state.oh.us
CERTIFICATE OF AMENDMENT BY
SHAREHOLDERS OR MEMBERS
(Domestic)
Filing Fee $50.00
(CHECK ONLY ONE (1) BOX)
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(1) Domestic for Profit PLEASE READ INSTRUCTIONS (2) Domestic Non-Profit
[X] Amended [ ] Amendment [ ] Amended [ ] Amendment
(122-AMAP) (125-AMDS) (126-AMAN) (128-AMD)
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COMPLETE THE GENERAL INFORMATION IN THIS SECTION FOR THE BOX CHECKED ABOVE.
Name of Corporation DSW Inc.
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Charter Number 379756
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Name of Officer Julia A. Davis
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Title Secretary
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[X] Please check if additional provisions attached.
The above named Ohio corporation, does hereby certify that:
[ ] A meeting of the [ ] shareholders [ ] directors (NON-PROFIT AMENDED
ARTICLES ONLY)
[ ] members was duly called and held on __________________________
(Date)
at which meeting a quorum was present in person or by proxy, based upon the
quorum present, an affirmative vote was cast which entitled them to exercise
_________% as the voting power of the corporation.
[X] In a writing signed by all of the [X] shareholders [ ] directors
(NON-PROFIT AMENDED
ARTICLES ONLY)
[ ] members who would be entitled to the notice of a meeting or such other
proportion not less than a majority as the articles of regulations or bylaws
permit.
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CLAUSE APPLIES IF AMENDED BOX IS CHECKED.
Resolved, that the following amended articles of incorporations be and the same
are hereby adopted to supercede and take the place of the existing articles of
incorporation and all amendments thereto.
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Page 1 of 2
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ALL OF THE FOLLOWING INFORMATION MUST BE COMPLETED IF AN AMENDED BOX IS CHECKED.
IF AN AMENDMENT BOX IS CHECKED, COMPLETE THE AREAS THAT APPLY.
FIRST: The name of the corporation is: DSW Inc.
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SECOND: The place in the State of Ohio where its principal office is located is
in the City of:
Columbus Franklin
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(city, village or township) (county)
THIRD: The purposes of the corporation are as follows:
The purposes for which the Corporation is formed is to engage in any lawful act
or activity for which corporations may be formed under Chapter 1701 of the Ohio
Revised Code.
FOURTH: The number of shares which the corporation is authorized to have
outstanding is: 370,000,000(see attached)
(DOES NOT APPLY TO BOX (2))
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REQUIRED /s/ Julia A. Davis
Must be authenticated ----------------------------- _________,2005
(SIGNED) by an Authorized Representative Date
authorized representative
(SEE INSTRUCTIONS) Julia A. Davis
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(Print Name)
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______________________________ _______________
Authorized Representative Date
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(Print Name)
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Page 2 of 2
ADDITIONAL PROVISIONS TO THE
AMENDED ARTICLES OF INCORPORATION
OF
DSW INC.
FOURTH (Cont'd): The number of shares which the corporation is
authorized to have outstanding is the authorized number of shares of the
corporation. One Hundred Seventy Million (170,000,000) of the authorized number
of shares of the corporation shall be Class A Common Shares, without par value
(the "Class A Common Shares"), One Hundred Million (100,000,000) shall be Class
B Common Shares, without par value (the "Class B Common Shares"; and together
with the Class A Common Shares, the "Common Shares"), and One Hundred Million
(100,000,000) shall be preferred shares, without par value (the "Preferred
Shares").
Effective upon the filing of a Certificate of Amendment with the
Office of the Secretary of State of Ohio certifying adoption of these Amended
Articles of Incorporation by the sole shareholder, the issued and outstanding
common shares of the corporation shall be changed into 27,702,667 Class B
Common Shares.
The designations, preferences, privileges and voting powers of shares
of each class and the restrictions or qualifications thereof are as follows:
Section 1. Common Shares. Except as specifically otherwise provided
herein, the Class A and Class B Common Shares shall be identical and shall
entitle the holders thereof to the same rights and privileges.
(a) Voting Rights. The voting rights of the Common Shares shall be as
follows:
i. each outstanding Class A Common Share shall entitle the holder
thereof to one (1) vote on each matter properly submitted to the
shareholders, or to the holders of the Class A Common Shares, for
their vote, consent, waiver, release or other action;
ii. each outstanding Class B Common Share shall entitle the holder
thereof to eight (8) votes on each matter properly submitted to
the shareholders, or to the holders of the Class B Common Shares,
for their vote, consent, waiver, release or other action; and
iii. the holders of Class A Common Shares and Class B Common Shares
shall vote as a single class upon all matters submitted to the
shareholders of the corporation except as otherwise provided by
law.
(b) Dividend and Other Rights of Common Shares. Holders of Class A
Common Shares and Class B Common Shares will share in any dividend declared by
the Board of Directors, subject to any preferential rights of any outstanding
Preferred Shares. The corporation shall not subdivide or combine any of the
Common Shares, or pay any dividend or other distribution on any of the Common
Shares, or accord any other payment, benefit or preference to any of the Common
Shares, except by extending such subdivision, combination, distribution,
payment, benefit or preference equally to all Common Shares. If dividends are
declared that are payable in Common Shares, such dividends shall be payable in
Class A Common Shares to holders of Class A Common Shares and in Class B Common
Share to holders of Class B Common Shares.
Section 2. Preferred Shares
(a) The directors of the corporation are authorized to adopt
amendments to the Articles of Incorporation in respect of any unissued Preferred
Shares and thereby to fix or change, to the full extent now or hereafter
permitted by Ohio law, the express terms of the Preferred Shares, or of any one
or more series of the Preferred Shares, including without limitation, the
division of such shares into series and the designation and authorized number of
shares of each series; dividend or distribution rights; redemption rights and
price; liquidation rights, preferences and price; sinking fund requirements;
voting rights; conversion rights; and restrictions on the issuance of shares of
the same series or of any other class or series.
(b) All shares of each series of the Preferred Shares shall be
identical with each other in all respects.
FIFTH: No shareholder of the corporation shall have, as a matter of
right, the pre-emptive right to purchase, subscribe for or otherwise acquire any
shares of any class, now or hereafter authorized, or to purchase, subscribe or
otherwise acquire for securities or other obligations convertible into or
exchangeable for any such shares or which by warrants or otherwise entitle the
holders thereof to purchase, subscribe for or otherwise acquire any such shares.
SIXTH:
Section 1. Authority of the Corporation to Deal in its Securities. The
directors of the corporation shall have the power to cause the corporation from
time to time and at any time to purchase, hold, sell, transfer or otherwise deal
with (i) any shares issued by it, (ii) any security or other obligation of the
corporation that confers upon the holder thereof the right to convert the same
into shares authorized by the articles of the corporation, and (iii) any
security or other obligation that confers upon the holder thereof the right to
purchase shares authorized by the articles of the corporation. The corporation
shall have the right to repurchase, if and when any shareholder desires to sell,
or on the happening of any event is required to sell, any shares issued by the
corporation.
Section 2. Limitation on Authority to Issue Class B Common Shares. The
authority granted in this Article SIXTH shall not limit the plenary authority
of the directors to purchase, hold, sell, transfer or otherwise deal with any
shares or other securities issued by the corporation or authorized by its
Articles. Notwithstanding the foregoing, to the extent that any of the Class B
Common Shares are hereafter surrendered in exchange for Class A Common
Shares, the Class B Common Shares so surrendered shall be retired. Except in
connection with a subdivision of, or dividend or other distribution on, the
Class B Common Shares, the directors of the corporation shall not have the
power to cause the corporation to reissue, sell, transfer or otherwise deal
with such Class B Common Shares.
SEVENTH:
Section 1. Definitions. For purposes of this Article SEVENTH:
(a) The "corporation" shall include all subsidiary corporations and
all partnerships, joint ventures, associations and other entities in which the
corporation owns (directly or indirectly) fifty percent or more of the
outstanding voting shares, voting power, partnership interests or similar
ownership interests.
(b) "RVI" means Retail Ventures, Inc., an Ohio corporation and, at the
time this Certificate of Amendment is filed with the Secretary of State of Ohio,
the sole shareholder of the corporation, and all successors to RVI by merger,
consolidation or otherwise, and all subsidiary corporations and all
partnerships, joint ventures, associations and other entities in which RVI owns
(directly or indirectly) fifty percent or more of the outstanding voting shares,
voting power, partnership interests or similar ownership interests, but shall
not include the corporation and its subsidiaries.
(c) "SSC" means Schottenstein Stores Corporation, a Delaware
corporation and, at the time this Certificate of Amendment is filed with the
Secretary of State of Ohio, the controlling shareholder of RVI, and all
successors to SSC by merger, consolidation or otherwise, and all subsidiary
corporations and all partnerships, joint ventures, associations and other
entities in which SSC owns (directly or indirectly) fifty percent or more of the
outstanding voting shares, voting power, partnership interests or similar
ownership interests, but shall not include the RVI and its subsidiaries or
corporation and its subsidiaries.
(c) "Family Trust" means one or more trusts established for the
benefit of any of Jay L. Schottenstein, Susan S. Diamond, Ann S. Deshe, Lori
Schottenstein, Geraldine Schottenstein, any of their respective spouses,
children or lineal descendants, or any person controlled by any such trust or
trusts.
(d) "Related Entities" means SSC and its subsidiaries and RVI and its
subsidiaries.
(e) "Related Persons" means directors of the corporation and directors
of one or more of the Related Entities and corporations, partnerships,
associations or other organizations in which one or more of such directors has a
financial interest.
Section 2. Corporate Opportunity
(a) In anticipation that RVI will remain a substantial shareholder of
the corporation, SSC will remain a substantial shareholder of RVI and the
Related Entities may engage in the same or similar activities or lines of
business and have interests in the same areas of corporate opportunities, and in
recognition of the benefits to be derived by the corporation through its
continued contractual, corporate and business relations with RVI and SSC
(including services of officers and directors of RVI and SSC as officers and
directors of the corporation), the provisions of this Section 2 are set forth to
regulate and define the conduct of certain affairs of the corporation as they
may involve the Related Entities and their respective officers and directors,
and the powers, rights, duties and liabilities of the corporation and its
officers, directors and shareholders in connection therewith.
(b) The Related Entities shall have the right to, and shall have no
duty not to, (i) engage in the same or similar activities or lines of business
as the corporation, (ii) do business with any supplier or customer of the
corporation, and (iii) unless restricted by contract, employ or otherwise engage
any officer or employee of the corporation, and the Related Entities nor any of
their respective officers or directors (except as provided in Paragraph (c) of
this Section 2) shall
be liable to the corporation or its shareholders for breach of any fiduciary
duty by reason of any such activities of the Related Entities or of such
person's participation therein. In the event that a Related Entity acquires
knowledge of a potential transaction or matter which may be a corporate
opportunity for both the corporation and such Related Entity, the Related Entity
shall have no duty to communicate or offer such corporate opportunity to the
corporation and shall not be liable to the corporation or its shareholders for
breach of any fiduciary duty as a shareholder of the corporation by reason of
the fact that it pursues or acquires such corporate opportunity for itself,
directs such corporate opportunity to another person or entity, or does not
communicate information regarding such corporate opportunity to the corporation.
(c) In the event that a director or officer of the corporation who is
also a director or officer of a Related Entity acquires knowledge of a potential
transaction or matter which may be corporate opportunity for both the
corporation and such Related Entity, such director or officer of the corporation
shall not be liable to the corporation or its shareholders by reason of the fact
that the Related Entity pursues or acquires such corporate opportunity for
itself or directs such corporate opportunity to another person or does not
communicate information regarding such corporate opportunity to the corporation,
if such director or officer acts in a manner consistent with the following
policy:
i. a corporate opportunity offered to any person who is an officer
of the corporation, and who is also a director but not an officer
of a Related Entity, shall belong to the corporation, unless such
opportunity is expressly offered to such person in writing solely
in his capacity as a director of the a Related Entity, in which
case such opportunity shall belong to such Related Entity;
ii. a corporate opportunity offered to any person who is a director
but not an officer of the corporation, and who is also a director
or officer of a Related Entity, shall belong to the corporation
only if such opportunity is expressly offered to such person in
writing solely in his or her capacity as a director of the
corporation, and otherwise shall belong to the Related Entity;
and;
iii. a corporate opportunity offered to any person who is an officer,
whether or not such person is also a director, of both the
corporation and a Related Entity shall belong to the corporation
only if such opportunity is expressly offered to such person in
writing solely in his or her capacity as an officer or director
of the corporation, and otherwise shall belong to the Related
Entity.
(d) For the purposes of this Section 2, a "corporate opportunity"
shall include, but not be limited to, any business opportunity which the
corporation is financially able to undertake, is, from its nature, in the line
of the corporation's business and is of practical advantage to it, and is one in
which the corporation has an interest or a reasonable expectancy, where the
circumstances are such that the self-interest of the Related Entity or the
officer or directors, as the case may be, would be brought into conflict with
that of the corporation if the Related Entity should embrace the opportunity.
(e) If any contract, agreement, arrangement or transaction between the
corporation and a Related Entity involves a corporate opportunity and is
approved in accordance with the procedures set forth in Section 3 of this
Article SEVENTH, the Related Entity and its officers and directors shall be
deemed to have fulfilled their fiduciary duties to the corporation and its
shareholders with respect thereto under this Section 2. Any such contract,
agreement, arrangement or transaction involving a corporate opportunity not so
approved shall not by reason
thereof result in any breach of any fiduciary duty, but shall be governed by the
other provisions of this Section 2, these Articles and the code of regulations
of the corporation (the "Regulations") and Chapter 1701 of the Ohio Revised
Code.
Section 3. Contract, Action or Transaction Not Voidable
(a) In anticipation that (i) the corporation will have continued
contractual, corporate and business relations with the Related Entities, and in
anticipation that the corporation may enter into contracts or otherwise transact
business with the Related Entities and that the corporation may derive benefits
therefrom and (ii) the corporation may from time to time enter into contractual,
corporate or business relations with one or more of the Related Persons have a
financial interest, the provisions of this Section 3 are set forth to regulate
and define certain contractual relations and other business relations of the
corporation as they may involve Related Entities and Related Persons, and the
powers, rights, duties and liabilities of the corporation and its officers,
directors and shareholders in connection therewith. The provisions of this
Section 3 are in addition to, and not in limitation of, the provisions of
Chapter 1701 of the Ohio Revised Code and the other provisions of these Articles
of Incorporation. Any contract or business relation which does not comply with
the procedures set forth in this Section 3 shall not by reason thereof be deemed
void or voidable or result in any breach of any fiduciary duty, but shall be
governed by the provisions of these Articles, the Regulations and Chapter 1701
of the Ohio Revised Code.
(b) No contract, action or transaction (or any amendment, modification
or termination thereof) between the corporation and one or more of the Related
Entities or between the corporation and one or more of the Related Persons shall
be void or voidable solely for the reason that any Related Entity or any Related
Person are parties thereto, or solely because any Related Person 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 such Related
Person's votes are counted for such purpose, and the Related Entity or Related
Person shall not be liable to the corporation or its shareholders by reason of
entering into, performance or consummation of any such contraction, action, or
transaction if:
i. The material fact as to his or their relationship or interest and
as to the contract, action or transaction are disclosed or are
known to the Board of Directors or the committee thereof and the
Board of Directors or committee thereof, in good faith reasonably
justified by such facts, authorizes the contract, action, or
transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors
constitute less than a quorum of the directors or committee;
ii. The material facts as to his or their relationship or interest
and as to the contract, action or transaction are disclosed or
are known to the shareholders entitled to vote thereon and the
contract, action or transaction is specifically approved at a
meeting of the shareholders held for such purpose by the
affirmative vote of the holders of shares entitling them to
exercise a majority of the voting power of the corporation held
by persons not interested in the contract, action or transaction;
or
iii. The contract, action or transaction is fair as to the corporation
as of the time it is authorized or approved by the Board of
Directors, a committee of the Board of Directors, or the
shareholders; provided, however, that nothing
contained in this Section 2 shall limit or otherwise affect the
liability of directors under Section 1701.95 of the Ohio Revised
Code.
(c) Directors of the corporation who are also directors or officers of
any Related Entity or Related Person 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, agreement, arrangement or transaction.
Section 4. The directors, by the affirmative vote of a majority of
those in office, and irrespective of any financial or personal interest in any
of them, shall have the authority to establish reasonable compensation, which
may include pension, disability, and death benefits, for services to the
corporation by directors and officers, or to delegate such authority to one or
more officers or directors.
Section 5. Any person or entity purchasing or otherwise acquiring any
interest in shares of the corporation shall be deemed to have notice of and to
have consented to the provisions of this Article SEVENTH.
Section 6. This Article SEVENTH shall remain in effect so long as RVI,
SSC and the Family Trusts (or any of them) shall hold (as a group) shares of the
corporation entitled to ten percent (10%) or more of the combined voting power
of all shares of the corporation regularly entitled to vote for the election of
directors
Section 7. Neither the alteration, amendment or repeal of this Article
SEVENTH, nor the adoption of any provision inconsistent with this Article
SEVENTH, shall eliminate or reduce the effect of this Article SEVENTH in respect
of any matter occurring, or any cause of action, suit or claim that, but for
this Article SEVENTH would accrue or arise, prior to such alteration, amendment,
repeal or adoption.
EIGHTH: None of the provisions of Section 1701.831 of the Ohio Revised
Code relating to control share acquisitions, shall be applicable to this
corporation.
NINTH: None of the provisions of Chapter 1704 of the Ohio Revised Code
relating to transactions affecting control shall be applicable to this
corporation.
TENTH: Notwithstanding any provision of the Ohio Revised Code
requiring for any purpose the vote, consent, waiver or release of the holders of
shares of the corporation entitling them to exercise two-thirds, or any other
proportion (but less than all), of the voting power of the corporation or of any
class or classes of shares thereof, for such purpose the vote, consent, waiver
or release of the holders of shares entitling them to exercise not less than a
majority of the voting power of the corporation, or of such class or classes
shall be required.
ELEVENTH: Notwithstanding any provision of the Ohio Revised Code now
or hereafter in effect, no shareholder shall have the right to vote cumulatively
in the election of directors.