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Exhibit 3.1
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICAN EAGLE OUTFITTERS, INC., AS AMENDED
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The above corporation, American Eagle Outfitters, Inc. (the
"Corporation"), existing pursuant to the General Corporation Law of the State of
Delaware, does hereby certify:
FIRST. The name of the Corporation is: American Eagle Outfitters, Inc.
SECOND. The address of its registered office in the State of Delaware
is 1209 Orange Street, County of New Castle, Wilmington, Delaware 19801. The
name of its registered agent at such address is The Corporation Trust Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH. (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is One Hundred Thirty Million
(130,000,000) shares, consisting of 125,000,000 shares of common stock, $0.01
par value per share (the "Common Stock"), and 5,000,000 shares of Preferred
Stock, $.01 par value per share (the "Preferred Stock").
(b) Each holder of Common Stock shall be entitled to one vote for each
share of Common Stock held of record on all matters presented for vote of the
stockholders. Subject to the provisions of the General Corporation Law of the
State of Delaware, dividends may be paid on the Common Stock at such times and
in such amounts as the Board of Directors shall determine. Upon the dissolution,
liquidation, or winding up of the Corporation, after any preferential amounts to
be distributed to the holders of the Preferred Stock then outstanding have been
paid or declared set apart for payment, the holders of Common Stock shall be
entitled to receive all remaining assets of the Corporation available for
distribution to its stockholders ratably and proportioned to the number of
shares held by them.
(c) The Board of Directors is hereby authorized, by resolution or
resolutions, to establish, out of the unissued shares of Preferred Stock not
then allocated to any series of Preferred Stock, additional series of Preferred
Stock. Before any shares of any such additional series are issued, the Board of
Directors shall fix and determine, and is hereby expressly empowered to fix and
determine, by resolution or resolutions, the number of shares constituting such
series and the distinguishing characteristics and the relative rights,
preferences, privileges and immunities, if any, and any qualifications,
limitations or restrictions thereof, of the shares thereof, so far as not
inconsistent with the provisions of this Article FOURTH. Without limiting the
generality of the foregoing, the Board of Directors may fix and determine: (i)
the designation of such series and the number of shares which shall constitute
such series of such shares; (ii) the rate of dividend, if any, payable on the
shares of such series; (iii) whether the shares of such series shall be
cumulative, non-cumulative or partially cumulative as to dividends, and the
dates from which any cumulative dividends are to accumulate; (iv) whether the
shares of such series may be redeemed, and, if so, the price or prices at which
and the terms and conditions on which shares of such series may be redeemed; (v)
the amount payable upon shares of such series in the event of the voluntary or
involuntary dissolution, liquidation or winding up of the affairs of the
Corporation; (vi) the sinking fund provisions, if any, for the redemption of the
shares of such series; (vii) the voting rights, if any, of the shares of such
series; (viii) the terms and conditions, if any on which shares of such series
may be converted into shares of the Common Stock of the Corporation or any other
class or series; (ix) whether the shares of such series are to be preferred over
shares of Common Stock of the Corporation or any other class or series as to
dividends, or upon voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Corporation, or otherwise; and (x)
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any other characteristics, preferences, limitations, rights, privileges,
immunities or terms not inconsistent with the
provisions of this Article FOURTH.
Any shares of Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock, without designation as
to series, and may be reissued as part of any series of Preferred Stock created
by resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
FIFTH. In addition to all of the powers conferred by statute, the Board
of Directors is expressly authorized to make, alter or repeal the Bylaws of the
Corporation.
SIXTH. No contract or transaction between the Corporation and one or
more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization 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, or 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:
(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 votes 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 stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; 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 Directors, a
committee thereof, or the stockholders.
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.
SEVENTH. (a) The Corporation shall indemnify any person who was or is a
party, or is 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 is or was a director, officer or
employee of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) or any other applicable laws as presently or hereinafter in
effect against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
therewith. Without limiting the generality of the foregoing, the Corporation may
enter into one or more agreements with any person that provide for
indemnification greater or different than that provided in this Article Seventh.
(b) Expenses incurred by a director, officer or employee in defending a
civil or criminal action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director, officer or employee to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation.
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(c) The indemnification and advancement of expenses provided by this
Article shall not be deemed exclusive of any other rights to which a person
seeking indemnification and advancement of expenses may be entitled under any
statute, by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefits of the
heirs, executors and administrators of such a person.
(d) For the purposes of this Article Seventh, references to "the
Corporation" include, in addition to the resulting or surviving corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article Seventh
with respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had continued.
(e) Neither the Corporation nor its directors or officers nor any
person acting on its behalf shall be liable to any person for any determination
as to the existence or absence of conduct that would provide a basis for making
or refusing to make any payment under this Article Seventh, in reliance upon the
advice of counsel.
(f) A director of the Corporation shall not be personally liable to the
Corporation or 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 stockholder, (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 General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
any improper personal benefit. If the General Corporation Law of the State of
Delaware is hereafter amended to authorize corporate action further eliminating
or limiting 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 General Corporation Law of the State of Delaware, as so
amended.
Any repeal or modification of the foregoing paragraph 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.
(g) Neither the amendment nor repeal of this Article Seventh, nor the
adoption of any provision of this Amended and Restated Certificate of
Incorporation 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 would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
EIGHTH. The Corporation shall have perpetual existence.
NINTH. Amendments.
(a) The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by the laws of
Delaware, and all rights conferred herein upon stockholders, directors and
others are granted subject to this reservation and subject to paragraph (b)
below.
(b) The provisions set forth in this Article NINTH and in Articles
TENTH and ELEVENTH of this Amended and Restated Certificate of Incorporation may
not be altered, amended or repealed in any respect, and new provisions
inconsistent therewith may not be adopted unless such action is approved by the
affirmative vote of the holders of at least eighty (80%) of all of the
outstanding shares of capital stock of the Corporation entitled to vote on
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such matter at a meeting of stockholders called for that purpose, except that if
the Board of Directors, by an affirmative vote of at least three-fourths (75%)
of the entire Board of Directors, recommends approval of such amendment to this
Amended and Restated Certificate of Incorporation to the stockholders, such
approval may be effected by the affirmative vote of the holders of a majority of
the outstanding shares of capital stock of the Corporation present in person or
represented by proxy and entitled to vote on such matter at a meeting of
stockholders called for that purpose.
TENTH. Board of Directors.
(a) Number, Election and Terms of Directors. The business and affairs
of the Corporation shall be managed by or under the direction of a Board of
Directors. The number of the directors of the Corporation shall be fixed from
time to time by resolution adopted by the affirmative vote of a majority of the
entire Board of Directors of the Corporation, except that the minimum number of
directors shall be fixed at no less than three (3) and the maximum number of
directors shall be fixed at no more than fifteen (15). The directors shall be
divided into three classes, Class I, Class II, and Class III. Each such class
shall consist, as nearly as possible, of one-third of the total number of
directors and remaining directors shall be included within each such class or
classes as the Board of Directors shall designate. Class I directors shall hold
office initially for a term expiring at the 1999 annual meeting of stockholders;
Class II directors shall hold office initially for a term expiring at the 2000
annual meeting of stockholders; and Class III directors shall hold office
initially for a term expiring at the 2001 annual meeting of stockholders. At
each annual meeting of stockholders, successors to the class of directors whose
term expires at that annual meeting shall be elected to hold office 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 directors
in each class as nearly equal as possible. A director shall hold office, subject
to any removal, death, resignation, or retirement, until the annual meeting for
the year in which his term expires and until his successor shall be elected and
qualified. Election of directors need not be by written ballot unless the Bylaws
of the Corporation shall so provide.
(b) Stockholder Nomination of Director Candidates. Nominations for
election to the Board of Directors of the Corporation at a meeting of
stockholders may be made by the Board of Directors, on behalf of the Board of
Directors by any nominating committee appointed by the Board of Directors, or by
any stockholder of the Corporation entitled to vote for the election of
directors at the meeting. Nominations, other than those made by or on behalf of
the Board of Directors, shall be made by notice in writing delivered to or
mailed, postage prepaid, and received by the Secretary of the Corporation at
least 60 days but no more than 90 days prior to the anniversary date of the
immediately preceding Annual Meeting of Stockholders. The notice shall set
forth: (i) the name and address of the stockholder who intends to make the
nomination; (ii) the name, age, business address and, if known, residence
address of each nominee; (iii) the principal occupation or employment of each
nominee; (iv) the number of shares of stock of the Corporation which are
beneficially owned by each nominee and by the nominating stockholder; (v) any
other information concerning the nominee that must be disclosed of nominees in
proxy solicitation pursuant to Regulation 14A of the Securities Exchange Act of
1934 (or any subsequent provisions replacing such Regulation); and (vi) the
executed consent of each nominee to serve as a director of the Corporation, if
elected. The chairman of the meeting of stockholders may, if the facts warrant,
determine that a nomination was not made in accordance with the foregoing
procedures, and if the chairman should so determine, the chairman shall so
declare to the meeting and the defective nomination shall be disregarded.
(c) Newly Created Directorships and Vacancies. Newly created
directorships resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of a majority of the remaining directors then in office, even though less than a
quorum, or by a sole remaining director. A director, including any director
chosen to fill a newly created directorship or any vacancy, shall hold office
until the next annual meeting following his election or appointment to the Board
of Directors for the class of director to which he is appointed, as applicable,
and until such director's successor shall have been elected and qualified. In no
case will a decrease in the number of directors shorten the term of any
incumbent director.
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(d) Removal. Notwithstanding any other provision of this Amended and
Restated Certificate of Incorporation or the Bylaws of the Corporation (and
notwithstanding the fact that some lesser percentage may be specified by the
General Corporation Law of the State of Delaware, this Amended and Restated
Certificate of Incorporation or the Bylaws of the Corporation), any director or
the entire board of directors of the Corporation may be removed from office at
any time, but only for cause and only by the affirmative vote of the holders of
at least eighty percent (80%) of all of the outstanding shares of capital stock
of the Corporation entitled to vote on the election of directors at a meeting of
stockholders called for that purpose, except that if the Board of Directors, by
an affirmative vote of at least three-fourths (75%) of the entire Board of
Directors, recommends removal of a director to the stockholders, such removal
may be effected by the affirmative vote of the holders of a majority of the
outstanding shares of capital stock of the Corporation present in person or
represented by proxy and entitled to vote on the election of directors at a
meeting of stockholders called for that purpose.
(e) Directors Elected by Holders of Preferred Stock. Notwithstanding
the classification provisions set forth in paragraph (a) above, whenever the
holders of any one or more classes or series of Preferred Stock issued by this
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, terms of removal, and other features of such
directorships shall be governed by the terms of Article FOURTH and the
resolution or resolutions establishing such class or series adopted pursuant
thereto and such directors so elected shall not be divided into classes pursuant
to this Article TENTH unless expressly provided by such terms.
(f) Committees. Wherever the term "Board of Directors" is used in this
Amended and Restated Certificate of Incorporation, such term shall mean the
Board of Directors of the Corporation; provided, however, that, to the extent
any committee of directors of the Corporation is lawfully entitled to exercise
the powers of the Board of Directors, such committee may exercise any right or
authority of the Board of Directors under this Amended and Restated Certificate
of Incorporation.
ELEVENTH. Stockholder Action. Any action required or permitted to be
taken by any stockholders of the Corporation must be effected at a duly called
annual or special meeting of such stockholders and may not be effected by any
consent in writing by such stockholders, unless such consent is the unanimous
consent of all stockholders. Except as may be otherwise required by law, special
meetings of stockholders of the Corporation may be called only by the Board of
Directors pursuant to a resolution approved by a majority of the Board of
Directors.
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