Certificate of Incorporation - Coldwater Creek Inc.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
COLDWATER CREEK INC.
(Pursuant to Sections 242, 245 and 228 of
the Delaware General Corporation Law)
Coldwater Creek Inc., (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"General Corporation Law")
FIRST. The name of the corporation is Coldwater Creek Inc. (the
"Corporation"). The Corporation was originally incorporated in Delaware on
March 1, 1996.
SECOND. The address of its registered office in the State of Delaware is
1013 Centre Road, in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Prentice-Hall Corporation System,
Inc.
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 Corporation is authorized to issue 16,000,000 shares of
capital stock, $0.01 par value. The shares shall be divided into two classes,
designated as follows:
Designation of Class Number of Shares Par Value
--------------------- ----------------- -----------
Common Stock 15,000,000 $0.01
Preferred Stock 1,000,000 $0.01
-----------------------
TOTAL: 16,000,000
(b) The Preferred Stock may be issued from time to time in one
or more series. The Board of Directors is expressly authorized, in the
resolution or resolutions providing for the issuance of any wholly unissued
series of Preferred Stock, to fix, state and express the powers, rights,
designations, preferences, qualifications, limitations and restrictions thereof,
including without limitation: the rate of dividends upon which and the times at
which dividends on shares of such series shall be payable and the preference, if
any,
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which such dividends shall have relative to dividends on shares of any other
class or classes or any other series of stock of the Corporation; whether
such dividends shall be cumulative or noncumulative, and if cumulative, the
date or dates from which dividends on shares of such series shall be
cumulative; the voting rights, if any, to be provided for shares of such
series; the rights, if any, which the holders of shares of such series shall
have in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation; the rights, if any, which the
holders of shares of such series shall have to convert such shares into or
exchange such shares for shares of stock of the Corporation, and the terms
and conditions, including price and rate of exchange of such conversion or
exchange; and the redemption rights (including sinking fund provisions), if
any, for shares of such series; and such other powers, rights, designations,
preferences, qualifications, limitations and restrictions as the Board of
Directors may desire to so fix. The Board of Directors is also expressly
authorized to fix the number of shares constituting such series and to
increase or decrease the number of shares of any series prior to the issuance
of shares of that series and to increase or decrease the number of shares of
any series subsequent to the issuance of shares of that series, but not to
decrease such number below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so
decreased, the shares constituting such decrease shall resume the status
which they had prior to the adoption of the resolution originally fixing the
number of shares of such series.
FIFTH. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is authorized to make, alter or repeal any or
all of the Bylaws of the Corporation; provided, however, that any Bylaw
amendment adopted by the Board of Directors increasing or reducing the
authorized number of Directors shall require the affirmative vote of
two-thirds of the total number of Directors which the Corporation would have
if there were no vacancies. In addition, new Bylaws may be adopted or the
Bylaws may be amended or repealed by the affirmative vote of at least 66-2/3%
of the combined voting power of all shares of the Corporation entitled to
vote generally in the election of directors, voting together as a single
class. Notwithstanding anything contained in this Amended and Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 66-2/3% of the combined voting power of all shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to alter, change, amend, repeal
or adopt any provision inconsistent with, this Article FIFTH.
SIXTH. (a) Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in
writing of such stockholders.
(b) Special meetings of stockholders of the Corporation may be
called only by the Chairman of the Board of Directors or Vice Chairman of the
Board of Directors, or by the Chairman, the Vice Chairman or the Secretary at
the written request of a majority of the total number of Directors which the
Corporation would have if there were no vacancies upon not fewer than 10 nor
more than 60 days' written notice. The
2.
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request shall be sent to the Chairman, Vice Chairman and the Secretary and
shall state the purposes of the proposed meeting. Special meetings of
holders of the outstanding Preferred Stock may be called in the manner and
for the purposes provided in the resolutions of the Board of Directors
providing for the issue of such stock. Business transacted at special
meetings shall be confined to the purpose or purposes stated in the notice of
meeting.
(c) Notwithstanding anything contained in this Amended and
Restated Certificate of Incorporation to the contrary, the affirmative vote
of the holders of at least 66-2/3% of the combined voting power of all shares
of the Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to alter, change, amend,
repeal or adopt any provision inconsistent with, this Article SIXTH.
SEVENTH. (a) The number of Directors which shall constitute the whole
Board of Directors of this corporation shall be as specified in the Bylaws of
this corporation, subject to this Article SEVENTH.
(b) The Directors shall be classified with respect to the time
for which they severally hold office into three classes designated Class I,
Class II and Class III, as nearly equal in number as possible, as shall be
provided in the manner specified in the Bylaws of the Corporation. Each
Director shall serve for a term ending on the date of the third annual meeting
of stockholders following the annual meeting at which the Director was elected;
provided, however, that each initial Director in Class I shall hold office until
the annual meeting of stockholders in 1999, each initial Director in Class II
shall hold office until the annual meeting of stockholders in 1998, and each
initial Director in Class III shall hold office until the annual meeting of
stockholders in 1997. Notwithstanding the foregoing provisions of this Article,
each Director shall serve until his successor is duly elected and qualified or
until his death, resignation or removal.
(c) In the event of any increase or decrease in the authorized
number of Directors, (i) each Director then serving 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 early resignation, removal from office or death, and
(ii) the newly created or eliminated directorship resulting from such increase
or decrease shall be apportioned by the Board of Directors among the three
classes of Directors so as to maintain such classes as nearly equally as
possible.
(d) Any Director or the entire Board of Directors may be removed
by the affirmative vote of the holders of a majority of the combined voting
power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
(e) Notwithstanding anything contained in this Amended and
Restated Certificate of Incorporation to the contrary, the affirmative vote
of the holders of at least 66-2/3% of the combined voting power of all shares
of the Corporation entitled to
3.
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vote generally in the election of directors, voting together as a single
class, shall be required to alter, change, amend, repeal or adopt any
provision inconsistent with, this Article SEVENTH.
EIGHTH. (a) 1. In addition to any affirmative vote required by law,
any Business Combination (as hereinafter defined) shall require the affirmative
vote of at least 66-2/3% of the combined voting power of all shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class (for purposes of this Article EIGHTH, the "Voting
Shares"). Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that some lesser percentage may be specified by
law or in any agreement with any national securities exchange or otherwise.
2. The term "Business Combination" as used in this
Article EIGHTH shall mean any transaction which is referred to in any one or
more of the following clauses (A) through (E):
(A) any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with or into (i) any Interested
Stockholder (as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) or Associate (as
hereinafter defined) of an Interested Stockholder; or
(B) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of related
transactions) to or with, or proposed by or on behalf of, any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder, of any
assets of the Corporation or any Subsidiary constituting not less than 5% of the
total assets of the Corporation, as reported in the consolidated balance sheet
of the Corporation as of the end of the most recent quarter with respect to
which such balance sheet has been prepared; or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to, or proposed by or on behalf
of, any Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder in exchange for cash, securities or other property (or a combination
thereof) constituting not less than 5% of the total assets of the Corporation,
as reported in the consolidated balance sheet of the Corporation as of the end
of the most recent quarter with respect to which such balance sheet has been
prepared; or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or any spin-off or split-up of
any kind of the Corporation or any Subsidiary, proposed by or on behalf of an
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder; or
4.
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(E) any reclassification of securities (including
any reverse stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its Subsidiaries or
any similar transaction (whether or not with or into or otherwise involving
an Interested Stockholder) which has the effect, directly or indirectly, of
increasing the percentage of the outstanding shares of (i) any class of
equity securities of the Corporation or any Subsidiary or (ii) any class of
securities of the Corporation or any Subsidiary convertible into equity
securities of the Corporation or any Subsidiary, represented by securities of
such class which are directly or indirectly owned by any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder.
(b) The provisions of section (a) of this Article EIGHTH
shall not be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as is required
by law and any other provision of this Amended and Restated Certificate of
Incorporation, if such Business Combination has been approved by two-thirds
of the whole Board of Directors.
(c) For the purposes of this Article EIGHTH:
1. A "person" shall mean any individual, firm,
corporation or other entity.
2. "Interested Stockholder" shall mean, in respect of
any Business Combination, any person (other than the Corporation or any
Subsidiary) who or which, as of the record date for the determination of
stockholders entitled to notice of and to vote on such Business Combination, or
immediately prior to the consummation of any such transaction
(A) is or was, at any time within two years prior
thereto, the beneficial owner, directly or indirectly, of 10% or more of the
then outstanding Voting Shares, or
(B) is an Affiliate or Associate of the Corporation
and at any time within two years prior thereto was the beneficial owner,
directly or indirectly, of 10% or more of the then outstanding Voting Shares, or
(C) is an assignee of or has otherwise succeeded to
any shares of capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder, if such
assignment or succession shall have occurred in the course of a transaction, or
series of transactions, not involving a public offering within the meaning of
the Securities Act of 1933, as amended.
3. A "person" shall be the "beneficial owner" of any
Voting Shares
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(A) which such person or any of its Affiliates and
Associates (as hereinafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to
any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or
indirectly, by any other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or understanding for
the purposes of acquiring, holding, voting or disposing of any shares of capital
stock of the Corporation.
4. The outstanding Voting Shares shall include shares
deemed owned through application of paragraph 3 above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options, or otherwise.
5. "Affiliate" and "Associate" shall have the
respective meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on the
date of adoption of this Amended and Restated Certificate of Incorporation
(the "Exchange Act").
6. "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Exchange Act) is owned, directly or
indirectly, by the Corporation; PROVIDED, HOWEVER, that for the purposes of the
definition of Interested Stockholder set forth in paragraph 2 of this
section (c) the term "Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned, directly or indirectly, by
the Corporation.
(d) A majority of the directors shall have the power and duty to
determine for the purposes of this Article EIGHTH on the basis of information
known to them, (1) whether a person is an Interested Stockholder, (2) the number
of Voting Shares beneficially owned by any person, (3) whether a person is an
Affiliate or Associate of another, (4) whether a person has an agreement,
arrangement or understanding with another as to the matters referred to in
paragraph 3 of section (c), or (5) whether the assets subject to any Business
Combination or the consideration received for the issuance or transfer of
securities by the Corporation or any Subsidiary constitutes not less than 5% of
the total assets of the Corporation.
(e) Nothing contained in this Article EIGHTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation imposed by
law.
6.
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(f) Notwithstanding anything contained in this Amended and
Restated Certificate of Incorporation to the contrary, the affirmative vote
of the holders of at least 66-2/3% of the combined voting power of all shares
of the Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to alter, change, amend,
repeal or adopt any provision inconsistent with, this Article EIGHTH.
NINTH. This 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 statute, and all
rights conferred on stockholders herein are granted subject to this
reservation.
TENTH. 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 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 General
Corporation Law of Delaware, or (iv) for any transaction from which the
Director derived any improper personal benefit. If the General Corporation
Law of Delaware is hereafter amended to authorize, with the approval of a
corporation's stockholders, further reductions in the liability of a
corporation's directors for breach of fiduciary duty, then a Director of the
Corporation shall not be liable for any such breach to the fullest extent
permitted by the General Corporation Law of Delaware as so amended. Any
repeal or modification of the foregoing provisions of this Article ELEVENTH
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.
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been signed by the President of the Corporation this 22nd
day of November, 1996.
COLDWATER CREEK INC.
By: /s/ Dennis C. Pence
--------------------------------
Dennis C. Pence
President
7.