Exhibit 4.1
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CITI TRENDS, INC.
Citi Trends, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, as amended (the "GCL"), DOES HEREBY CERTIFY as follows:
1. The name of the Corporation is Citi Trends, Inc. The Corporation was
originally incorporated under the name "Allied Fashion, Inc." and filed its
original Certificate of Incorporation with the Secretary of State of the State
of Delaware on March 3, 1999. The Corporation filed a restatement of its
Certificate of Incorporation with the Secretary of State of the State of
Delaware on April 12, 1999 and a Certificate of Amendment on June 26, 2001
changing its name from "Allied Fashion, Inc." to "Citi Trends, Inc."
2. In the manner prescribed by Sections 242 and 245 of the GCL,
resolutions were duly adopted by the Board of Directors and the stockholders of
the Corporation, respectively, duly adopting this Second Amended and Restated
Certificate of Incorporation and amending and restating the Amended and Restated
Certificate of Incorporation of the Corporation as herein provided.
3. The text of the Second Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation") shall read in its entirety as
follows:
FIRST: The name of the corporation is Citi Trends, Inc. (the
"Corporation").
SECOND: The address of the Corporation's registered office in the State
of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, in the
City of Wilmington, County of New Castle, Delaware 19801. The name of its
registered agent at such address is The Corporation Trust Company.
THIRD: The nature or purpose of the business to be conducted or
promoted by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware, as amended (the "GCL").
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 20,005,000 shares, consisting of:
(i) 20,000,000 shares of common stock, par value $0.01 per share (the
"Common Stock"); and
(ii) 5,000 shares of preferred stock, par value $0.01 per share (the
"Preferred Stock").
A statement of the powers, designations, preferences, and relative
participating, optional or other special rights and the qualifications,
limitations and restrictions of the Common Stock and the Preferred Stock is as
follows.
1. Common Stock.
(a) Dividends. Dividends may be declared and paid on the
Common Stock from funds lawfully available therefor as, if and when,
determined by the Board of Directors and subject to any preferential
dividend rights of any then outstanding shares of Preferred Stock.
(b) Liquidation Rights. In the event of a voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation,
the holders of shares of Common Stock shall be entitled, after payment
or provision for payment of the debts and other liabilities of the
Corporation, to share in the distribution of any remaining assets
available for distribution to its stockholders ratably, subject to any
preferential rights of any then outstanding Preferred Stock.
(c) Voting Rights. The holders of Common Stock shall be
entitled to one vote per share in voting or consenting to the election
of directors and for all other matters presented to the stockholders of
the Corporation for their action or consideration. Cumulative voting
for the election of directors is not permissible. Except as otherwise
required by law, the holders of the Common Stock shall vote together as
a single class on all matters submitted to the stockholders of the
Corporation.
2. Preferred Stock. The Board of Directors is authorized, subject to
limitations prescribed by law, to provide for the issuance of the Preferred
Stock in one or more series, and by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof, as shall be stated in the
resolutions providing for the issuance of such series adopted by the Board of
Directors.
The authority of the Board of Directors with respect to each series of
Preferred Stock shall include, but not be limited to, determination of the
following:
(a) the number of shares constituting that series and the
distinctive designation of that series;
(b) the rate of dividend, and whether (and if so, on what
terms and conditions) dividends shall be cumulative (and if so, the
terms and conditions of such dividend policy and whether unpaid
dividends shall compound or accrue interest) or shall be payable in
preference or in any other relation to the dividends payable on any
other class or classes of stock or any other series of the Preferred
Stock;
(c) whether that series shall have voting rights in addition
to the voting rights provided by law and, if so, the terms and extent
of such voting rights;
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(d) whether the shares must or may be redeemed and, if so, the
terms and conditions of such redemption (including, without limitation,
the dates upon or after which they must or may be redeemed and the
price or prices at which they must or may be redeemed, which price or
prices may vary under different circumstances or at different
redemption dates);
(e) whether the shares shall be issued with the privilege of
conversion or exchange and, if so, the terms and conditions of such
conversion or exchange (including without limitation the price or
prices or the rate or rates of conversion or exchange or any terms for
adjustment thereof);
(f) the amounts, if any, payable upon the shares in the event
of voluntary liquidation, dissolution or winding up of the Corporation
in preference of shares of any other class or series and whether the
shares shall be entitled to participate generally in distributions on
the Common Stock under such circumstances;
(g) the amounts, if any, payable upon the shares in the event
of involuntary liquidation, dissolution or winding up of the
Corporation in preference of shares of any other class or series and
whether the shares shall be entitled to participate generally in
distributions in the Common Stock under such circumstances;
(h) sinking fund provisions, if any, for the redemption or
purchase of the shares (the term "sinking fund" being understood to
include any similar fund, however designated) and, if so, the terms and
amount of such sinking fund; and
(i) any other relative rights, preferences, limitations and
powers of that series.
3. No Preemptive Rights. Except as expressly set forth in this
Certificate of Incorporation, any certificate of designation, any resolution or
resolutions providing for the issuance of a series of stock adopted by the Board
of Directors, or any agreement between the Corporation and its stockholders, the
holders of Common Stock or any series of Preferred Stock shall have no
preemptive right to subscribe to an additional issue of any shares of any class
of capital stock of the Corporation or any security convertible into such stock
whether now or hereafter authorized.
FIFTH:
1. Limits on Director Liability. Directors of the Corporation shall
have no personal liability to the Corporation or its stockholders for monetary
damages for breach of a fiduciary duty as a director; provided that nothing
contained in this Article FIFTH shall eliminate or limit the liability of a
director (i) for any breach of a 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) under
Section 174 of the GCL or (iv) for any transaction from which a director derived
an improper personal benefit. If the GCL is amended to authorize corporate
action further eliminating or limiting the personal liability of directors, then
by virtue of this Article FIFTH the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the GCL, as so
amended.
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2. Indemnification.
(a) The Corporation shall indemnify and hold harmless, in
accordance with the By-Laws of the Corporation and to the fullest
extent permitted from time to time by the GCL or any other applicable
laws as presently or hereafter in effect, any person who was or is made
a party or is threatened to be made a party to or is otherwise involved
in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, including,
without limitation, an action by or in the right of the Corporation, by
reason of the fact that he or she or a person of whom he or she is the
legal representative is or was a director or an officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer or trustee of another corporation, partnership, joint
venture, trust or other enterprise, including service with respect to
an employee benefit plan, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or
trustee or in any other capacity while serving as a director, officer
or trustee, against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith; provided, however, the
Corporation shall be required to indemnify such person in connection
with an action, suit or proceeding (or part thereof) initiated by such
person only if such action, suit or proceeding (or part thereof) was
authorized by the Board of Directors. Furthermore, the Corporation may
only indemnify such person if he or she acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the
best interests of the Corporation, and, with respect to any criminal
action or proceeding had no reasonable cause to believe that his or her
conduct was unlawful; except that in the case of an action or suit by
or in the name of the Corporation to procure a judgment in its favor
(a) such indemnification shall be limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in the
defense or settlement of such action or suit; and (b) no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Delaware Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the
Delaware Court of Chancery or such other court shall deem proper. Such
indemnification is not exclusive of any other right to indemnification
provided by law or otherwise. The right to indemnification conferred by
this Section 2 of this Article FIFTH shall be deemed to be a contract
between the Corporation and each person referred to herein.
(b) If a claim under subdivision (a) of this Section 2 of this
Article FIFTH is not paid in full by the Corporation, the claimant may
at any time thereafter bring suit against the Corporation to recover
the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where any
undertaking required by subdivision (c) of this Section 2 of this
Article FIFTH has been tendered to the Corporation) that the claimant
has not met the standards of conduct which make it permissible under
the GCL and subdivision (a) of this Section 2 of this Article
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FIFTH for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the
Corporation.
(c) Indemnification shall include payment by the Corporation
of expenses in defending an action or proceeding in advance of the
final disposition of such action or proceeding upon receipt of an
undertaking by or on behalf of the person indemnified to repay such
payment if it is ultimately determined that such person is not entitled
to indemnification under this Article FIFTH, which undertaking may be
accepted without reference to the financial ability of such person to
make such repayment.
3. Insurance. The Corporation shall have the power (but not the
obligation) to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent 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 against any expense, liability or loss incurred by such person in any
such capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
this Article FIFTH or the GCL.
4. Other Rights. The rights and authority conferred in this Article
FIFTH shall not be deemed exclusive of any other right which any person may
otherwise have or hereafter acquire under any statute, provision of this
Certificate of Incorporation, By-Laws of the Corporation, agreement, contract,
vote of stockholders or disinterested directors or otherwise.
5. Additional Indemnification. The Corporation may, by action of its
Board of Directors, provide additional indemnification to such of the directors,
officers, employees and agents of the Corporation to such extent and to such
effect as the Board of Directors shall determine to be appropriate and
authorized by the GCL. 6. Effect of Amendments. Neither the amendment, change,
alteration or repeal of this Article FIFTH, nor the adoption of any provision of
this Certificate of Incorporation or the By-Laws of the Corporation, nor, to the
fullest extent permitted by the GCL, any modification of law, shall eliminate or
reduce the effect of this Article FIFTH or the rights or any protection afforded
under this Article FIFTH in respect of any acts or omissions occurring prior to
such amendment, repeal, adoption or modification.
SIXTH: At all meetings of stockholders, each stockholder shall be
entitled to vote, in person or by proxy, the shares of voting stock owned by
such stockholders of record on the record date for the meeting. When a quorum is
present or represented at any meeting, the vote of the holders of a majority in
interest of the stockholders present in person or by proxy at such meeting and
entitled to vote thereon shall decide any question, matter or proposal brought
before such meeting unless the question is one upon which, by express provision
of law, this Certificate of Incorporation or the By-Laws of the Corporation
applicable thereto, a different vote is required, in which case such express
provision shall govern and control the decision of such question.
SEVENTH:
1. Number of Directors. The number of directors of the Corporation
shall be fixed from time to time by the vote of a majority of the entire Board
of Directors, but such number shall
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in no case be less than five (5) nor more than nine (9). Any such determination
made by the Board of Directors shall continue in effect unless and until changed
by the Board of Directors, but no such changes shall affect the term of any
directors then in office.
2. Classification of the Board of Directors. The Board of Directors
shall be divided into three classes, designated Classes I, II and III, which
shall be as nearly equal in number of directors per Class as possible.
3. Term of Office; Vacancies.
(i) Directors of Class I shall be elected to hold office for an
initial term expiring at the first annual meeting of
stockholders held after the date and time at which this
Certificate of Incorporation of the Corporation shall become
effective in accordance with Section 103(d) of the GCL (the
"Effective Time").
(ii) Directors of Class II shall be elected to hold office for an
initial term expiring at the second annual meeting of
stockholders held after the Effective Time.
(iii) Directors of Class III shall be elected to hold office for an
initial term expiring at the third annual meeting of
stockholders held after the Effective Time.
(iv) At each annual meeting of stockholders, the respective
successors of the directors whose terms are expiring shall be
elected for terms expiring at the annual meeting of
stockholders held in the third succeeding year.
(v) Vacancies in the Board of Directors and newly-created
directorships resulting from any increase in the authorized
number of directors may be filled as provided in the By-Laws
of the Corporation.
4. Removal. Subject to the By-Laws of the Corporation, a director may
only be removed for cause upon the affirmative vote of the holders of a majority
of the votes which could be cast by the holders of all outstanding shares of
capital stock entitled to vote for the election of directors, voting together as
a class, given at a duly called annual or special meeting of stockholders.
5. Nominations. Advance notice of nominations by stockholders for the
election of directors, and of stockholder proposals regarding action to be taken
at any meeting of stockholders, shall be given in the manner and to the extent
provided in the By-Laws of the Corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
(1) The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors.
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(2) The Board of Directors shall be authorized to adopt, amend and
repeal the By-Laws of the Corporation, without a stockholder
vote, in any manner not inconsistent with the laws of the
State of Delaware, this Certificate of Incorporation and the
By-Laws of the Corporation as from time to time in effect,
subject to the power of the stockholders entitled to vote to
adopt, amend, alter, change, add to or repeal By-Laws made by
the Board of Directors as provided below in Section 3 of this
ARTICLE EIGHTH.
(3) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the amendment, alteration or
repeal of the provisions of ARTICLES SEVENTH and NINTH and
this ARTICLE EIGHTH shall require the affirmative vote of the
holders of two-thirds (2/3) or more of the combined voting
power of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors, voting together as a class.
(4) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are
hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the
GCL, this Certificate of Incorporation, and any By-Laws
adopted by the stockholders; provided, however, that no
By-Laws hereafter adopted by the stockholders shall invalidate
any prior act of the directors which would have been valid if
such By-Laws had not been adopted.
NINTH:
1. Stockholder Meetings; Keeping of Books and Records. Any action
required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of such holders and may not
be effected by any consent in writing by such holders. Meetings of stockholders
may be held within or outside the State of Delaware as the By-Laws of the
Corporation may provide. The books of the Corporation may be kept (subject to
any provision contained in the GCL) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors or in
the By-Laws of the Corporation.
2. Special Stockholders Meetings. Except as otherwise required by law,
special meetings of stockholders of the Corporation may be called only by:
(i) the Chairman of the Board of Directors of the Corporation;
(ii) the Board of Directors pursuant to a resolution approved by
the Board of Directors; or
(iii) the Board of Directors upon a request by holders of at least
50% in voting power of all outstanding shares entitled to vote
at such meeting.
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3. No Written Ballot. Elections of directors need not be by written
ballot unless the By-Laws of the Corporation shall so provide.
4. Quorum at Stockholder Meetings. The holders of one-third in voting
power of the capital stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business, except that the
holders of a majority in voting power of the capital stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall be required to constitute a quorum for:
(i) a vote for any director in a contested election;
(ii) the removal of a director; or
(iii) the filling of a vacancy on the Board of Directors by the
stockholders of the Corporation.
TENTH: The Corporation reserves the right to repeal, alter, change or
amend any provision contained in this Certificate of Incorporation in the manner
now or hereafter prescribed by statute and all rights conferred upon
stockholders herein are granted subject to this reservation. No repeal,
alteration or amendment of this Certificate of Incorporation shall be made
unless the same is first approved by the Board of Directors of the Corporation
pursuant to a resolution adopted by the directors then in office in accordance
with the By-Laws of the Corporation and applicable law and thereafter approved
by the stockholders.
ELEVENTH: The Corporation is subject to Section 203 of the GCL.
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IN WITNESS WHEREOF, the undersigned has executed this Second Amended
and Restated Certificate of Incorporation this 11th day of May, 2005, and hereby
acknowledges that this Second Amended and Restated Certificate of Incorporation
is the act and deed of the Corporation and that the facts stated herein are
true.
CITI TRENDS, INC.
By /s/ R. Edward Anderson
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Name: R. Edward Anderson
Title: Chief Executive Officer
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