Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
CONN'S, INC.
ARTICLE ONE
The name of the corporation is Conn's, Inc. (the "Corporation").
ARTICLE TWO
The address of the Corporation's initial registered office is 1209 Orange
Street, Wilmington, New Castle County, Delaware 19801, and the registered agent
for service of process on the Company in the State of Delaware shall be The
Corporation Trust Company.
ARTICLE THREE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the Delaware General Corporation
Law.
ARTICLE FOUR
The aggregate number of shares of capital stock which the Corporation shall
have authority to issue is forty one million (41,000,0000) shares of stock, of
which forty million (40,000,000) shares are Common Stock, par value of $0.01 per
share ("Common Stock"), and one million (1,000,000) shares are Preferred Stock,
par value $0.01 per share ("Preferred Stock").
A. Common Stock.
1. Dividends. Dividends may be paid on the Common Stock out of any
assets of the Corporation available for such dividends subject to the rights of
all outstanding shares of capital stock ranking senior to the Common Stock in
respect of dividends.
2. Distribution of Assets. In the event of any liquidation,
dissolution or winding up of the Corporation, after there shall have been paid
to or set aside for the holders of capital stock ranking senior to the Common
Stock in respect of rights upon liquidation, dissolution or winding up the full
preferential amounts to which they are respectively entitled, the holders of the
Common Stock shall be entitled to receive, pro rata, all of the remaining assets
of the Corporation available for distribution to its shareholders.
3. Voting Rights. The holders of the Common Stock shall be entitled to
one vote per share for all purposes upon which such holders are entitled to
vote.
4. Preemptive Rights. No holders of Common Stock, now or hereafter
authorized, shall have any preferential or preemptive rights to subscribe for,
purchase or receive any shares of the Corporation of any class, now or hereafter
authorized, or any options or
warrants for such shares, or any rights to subscribe for, purchase or receive
any securities convertible to or exchangeable for such shares, which may at any
time be issued, sold or offered for sale by the Corporation.
B. Preferred Stock.
1. Designations. Shares of Preferred Stock may be issued from time to
time in one or more series, each of which is to have a distinctive serial
designation as determined in the resolution or resolutions of the Board of
Directors providing for the issuance of such Preferred Stock from time to time.
2. Rights and Preferences. Each series of Preferred Stock:
(a) may have such number of shares;
(b) may have such voting powers or may be without voting powers;
(c) may be subject to redemption at such time or times and at
such price;
(d) may be entitled to receive dividends (which may be
cumulative or noncumulative) at such rate or rates, or such
conditions, from such date or dates, and at such times, and
payable in preference to, or in such relation to, the
dividends payable on any other class or classes or series of
stock;
(e) may have such rights upon the dissolution of, or upon any
distribution of the assets of, the Corporation;
(f) may be made convertible into, or exchangeable for, shares of
any other class or classes, or of any other series of the
same class or of any other class or classes, of stock of the
Corporation at such times and upon such events, and at such
price or prices or at such rates of exchange, and with
adjustments;
(g) may be entitled to the benefit of a sinking fund or purchase
fund to be applied to the purchase or redemption of shares
of such series in such amount or amounts;
(h) may be entitled to the benefit of conditions and
restrictions upon the creation of indebtedness of the
Corporation or any subsidiary, upon the issuance of any
additional stock (including additional shares of such series
or of any other series) and upon the payment of dividends or
the making of other distributions on, and the purchase,
redemption or other acquisition by the Corporation of stock
of any class; and
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(i) may have such other powers, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof;
as in such instance is stated in the resolution or resolutions of the Board
of Directors providing for the issuance of such Preferred Stock. Except
where otherwise set forth in such resolution or resolutions the number of
shares comprising such series may be increased or decreased (but not below
the number of shares then outstanding) from time to time by like action of
the Board of Directors.
ARTICLE FIVE
Unless and except to the extent that the Bylaws of the Corporation shall so
require, the election of directors of the Corporation need not be by written
ballot. Cumulative voting of shares of any capital stock having voting rights is
prohibited.
ARTICLE SIX
The Board of Directors of the Corporation is expressly authorized to adopt,
amend or repeal any provision of this Certificate of Incorporation or the Bylaws
of the Corporation, subject to approval by the stockholders of the Corporation
where required by law. In addition to any requirements of law and any other
provision of this Certificate of Incorporation, the affirmative vote of the
holders of at least 75 percent of the combined voting power of the then
outstanding shares of all classes and series of capital stock entitled generally
to vote in the election of directors of the Corporation, voting together as a
single class, shall be required for stockholders to adopt, amend, alter, or
repeal Sections 2.3, 2.12, 2.14, 3.2, 3.4 and 3.5 of the Bylaws or to amend
Section 9.7 of the Bylaws or this Article SIX as it relates to the vote required
to adopt, amend, alter, or repeal the aforementioned sections of the Bylaws.
ARTICLE SEVEN
A. 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 (whether or not by or in the
right of the Corporation), by reason of the fact that such person is or was a
director, officer, incorporator, employee, or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer,
incorporator, employee, partner, trustee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise (including an employee
benefit plan), shall be entitled to be indemnified by the Corporation to the
full extent then permitted by law against expenses (including counsel fees and
disbursements), judgments, fines (including excise taxes assessed on a person
with respect to an employee benefit plan), and amounts paid in settlement
incurred by such person in connection with such action, suit, or proceeding.
Expenses (including attorneys' fees) incurred by a director or officer in
defending any civil, criminal, administrative or investigative 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 such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
Corporation as permitted by law. All advances of
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expenses shall be unsecured and interest free, and the person's undertaking to
repay shall be accepted by the Corporation without reference to the person's
financial ability to make repayment. Such rights of indemnification and payment
of expenses shall inure whether or not the claim asserted is based on matters
which antedate the adoption of this Article SEVEN. Such rights of
indemnification and payment of expenses shall continue as to a person who has
ceased to be a director, officer, incorporator, employee, partner, trustee, or
agent and shall inure to the benefit of the heirs and personal representatives
of such a person. The indemnification provided by this Article SEVEN shall not
be deemed exclusive of any other rights which may be provided now or in the
future under any provision currently in effect or hereafter adopted in the
Bylaws, by any agreement, by vote of stockholders, by resolution of
disinterested directors, by provision of law, or otherwise. If the General
Corporation Law of the State of Delaware is amended after the effective date of
this Certificate of Incorporation 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
amended.
B. If a claim for indemnification or payment of expenses, or both, under
the preceding paragraph (a) is not paid in full by the Corporation within 30
days after a written claim has been received 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
also will be entitled to be paid the expense of prosecuting such claim. It will
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 the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct that make it permissible under the laws of the State of Delaware for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense will be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because such claimant has met the applicable standard of conduct set forth in
the laws of the State of Delaware, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
will be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
ARTICLE EIGHT
No director of the Corporation shall be liable to the Corporation or any of
its stockholders for monetary damages for breach of fiduciary duty as a
director, provided, however that this Article EIGHT does not eliminate the
liability of the director (i) for any breach of the 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 Title 8 of the Delaware Code; or (iv) for any
transaction from which the director derived an improper personal benefit. For
purposes of the first sentence of this Article EIGHT, the term "damages" shall,
to the extent permitted by law, include, without limitation, any judgment, fine,
amount paid in settlement, penalty, punitive damages, excise or other tax
assessed with respect to an employee benefit plan, or expense of any nature
(including, without limitation, attorneys' fees
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and disbursements). Each person who serves as a director of the Corporation
while this Article EIGHT is in effect shall be deemed to be doing so in reliance
on the provisions of this Article EIGHT, and neither the amendment or repeal of
this Article EIGHT, nor the adoption of any provision of this Certificate of
Incorporation inconsistent with this Article EIGHT, shall apply to or have any
effect on the liability or alleged liability of any director or the Corporation
for, arising out of, based upon, or in connection with any acts or omissions of
such director occurring prior to such amendment, repeal, or adoption of an
inconsistent provision. The provisions of this Article EIGHT are cumulative and
shall be in addition to and independent of any and all other limitations on or
eliminations of the liabilities of directors of the Corporation, as such,
whether such limitations or eliminations arise under or are created by any law,
rule, regulation, Bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise.
ARTICLE NINE
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in summary way of this Corporation
or of any creditor or stockholder thereof or on the application of any receiver
or receivers appointed for this Corporation under the provisions of (S) 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this Corporation under the provisions
of (S) 279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
ARTICLE TEN
A. The number, qualifications, terms of office, manner of election, time
and place of meetings, compensation and powers and duties of the directors may
be prescribed from time to time by the Bylaws, and the Bylaws may also contain
any other provisions for the regulation and management of the affairs of the
Corporation not inconsistent with applicable law or this Certificate of
Incorporation.
B. Except as otherwise provided for or fixed pursuant to the provisions of
Article TWO of this Certificate of Incorporation relating to the rights of
holders of any series of Preferred Stock to elect additional directors, the
total number of directors which shall constitute the entire Board of Directors
of the Corporation shall be not less than one (1) nor more than seven (7), with
the then-authorized number of directors being fixed from time to time by the
Board of Directors. The directors (other than those directors elected by the
holders of any series of Preferred Stock provided for or fixed pursuant to the
provisions of Article TWO hereof) shall
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be divided into three classes, designated Class I, Class II and Class III. Such
classes shall be as nearly equal in number of directors as possible. Each
director shall serve for a term ending on the third annual meeting following the
annual meeting at which such director was elected; provided, however, that the
directors first elected to Class I shall serve for a term expiring at the annual
meeting next following the end of the calendar year 2003, the directors first
elected to Class II shall serve for a term expiring at the second annual meeting
next following the end of the calendar year 2003, and the directors first
elected to Class III shall serve for a term expiring at the third annual meeting
next following the end of the calendar year 2003. Each director shall hold
office until the annual meeting at which such director's term expires and, the
foregoing notwithstanding, shall serve until his successor shall have been duly
elected and qualified, unless he shall resign, become disqualified, disabled or
shall otherwise be removed.
C. At each annual election, the directors chosen to succeed those whose
terms then expire shall be of the same class as the directors they succeed,
unless, by reason of any intervening changes in the authorized number of
directors, the Board of Directors shall designate one or more directorships
whose term then expires as directorships of another class in order more nearly
to achieve equality of number of directors among the classes.
D. Notwithstanding the rule that the three classes shall be as nearly equal
in number of directors as possible, in the event of any change in the authorized
number of directors, each director then continuing to serve as such shall
nevertheless continue as a director of the class of which he is a member until
the expiration of his current term, or his prior death, resignation or removal.
If any newly created directorship may, consistent with the rule that the three
classes shall be as nearly equal in number of directors as possible, be
allocated to one or more classes, the Board of Directors shall allocate it to
that of the available classes whose terms of office are due to expire at the
earliest date following such allocation.
E. Subject to the rights of the holders of any one or more series of
Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled solely by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum of the Board of Directors. Any director so chosen shall hold
office until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No decrease
in the number of directors shall shorten the term of any incumbent director.
F. Except for such additional directors, if any, as are elected by the
holders of any series of Preferred Stock as provided for or fixed pursuant to
the provisions of Article TWO hereof, any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of at least 75% of the total voting power of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (the "Voting Stock"), voting together as
a single class.
G. During any period when the holders of any series of Preferred Stock have
the right to elect additional directors as provided for or fixed pursuant to the
provisions of Article TWO hereof, then upon commencement and for the duration of
the period during which such
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right continues: (i) the then otherwise total authorized number of directors of
the Corporation shall automatically be increased by such specified number of
directors, and the holders of such Preferred Stock shall be entitled to elect
the additional directors so provided for or fixed pursuant to said provisions,
and (ii) each such additional director shall serve until such director's
successor shall have been duly elected and qualified, or until such director's
right to hold such office terminates pursuant to said provisions, whichever
occurs earlier, subject to his earlier death, disqualification, resignation or
removal. Except as otherwise provided by the Board of Directors in the
resolution or resolutions establishing such series, whenever the holders of any
series of Preferred Stock having such right to elect additional directors are
divested of such right pursuant to the provisions of such stock, the terms of
office of all such additional directors elected by the holders of such stock, or
elected to fill any vacancies resulting from the death, resignation,
disqualification or removal of such additional directors, shall forthwith
terminate and the total and authorized number of directors of the Corporation
shall be reduced accordingly.
H. The number of directors constituting the initial Board of Directors is
six (6) and the names, addresses and class of the persons who are to serve as
directors until their successor or successors are elected and qualified or their
earlier death, resignation or removal:
Name Address Class
- ---- ------- -----
Thomas J. Frank, Sr. 3295 College Street III
Beaumont, Texas 77701
William C. Nylin, Jr. 3295 College Street II
Beaumont, Texas 77701
C.William Frank 3295 College Street II
Beaumont, Texas 77701
David R. Atnip 3295 College Street I
Beaumont, Texas 77701
S.L. Greenberg 3295 College Street I
Beaumont, Texas 77701
Douglas H. Martin 3295 College Street III
Beaumont, Texas 77701
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ARTICLE ELEVEN
The powers of the incorporator shall terminate upon the filing of this
Certificate of Incorporation. The name and mailing address of the incorporator
are as follows:
Name Address
---- -------
Conn Appliances, Inc. 3295 College Street
Beaumont, Texas 77701.
ARTICLE TWELVE
Except as otherwise provided for or fixed pursuant to the provisions of a
resolution or resolutions of the Board of Directors providing for the issuance
of a class or series of Preferred Stock, relating to the rights of holders of
any series of Preferred Stock, 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 stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders, unless the action to be effected by
written consent of the stockholders and the taking of such action by such
written consent have been expressly approved in advance by the Board of
Directors.
ARTICLE THIRTEEN
Special meetings of stockholders of the Corporation may be called only by
the Chairman, the President or by a majority of the Board of Directors. No
business other than the that stated in the notice shall be transacted at any
special meeting.
ARTICLE FOURTEEN
Notwithstanding anything to the contrary elsewhere contained in this
Certificate of Incorporation, the affirmative vote of the holders of at least
75% of the Voting Stock, voting together as a single class, shall be required to
alter, amend, or repeal or to adopt any provisions inconsistent with, the
following Articles of this Certificate of Incorporation: Article SIX, Article
EIGHT, Article TEN and Article TWELVE.
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EXECUTED as of the 15th day of January, 2003.
----
INCORPORATOR:
Conn Appliances, Inc.
By: /s/ C. William Frank
--------------------------------
C. William Frank
Executive Vice President and
Chief Financial Officer
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