Certificate of Incorporation - Zale Corp.
RESTATED CERTIFICATE OF INCORPORATION
OF
ZALE CORPORATION
(As Amended Through November 2, 2001)
FIRST: The name of the corporation is Zale Corporation (the
"Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 32 Lockerman Square, Suite L-100, City
of Dover, County of Kent, State of Delaware. The name of the registered agent of
the Corporation in the State of Delaware 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 the State of Delaware, as from time to time amended. The
Corporation will have perpetual existence.
FOURTH: (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 75,000,000 shares,
consisting of:
(i) 5,000,000 shares of Preferred Stock, par value $.01
per share of the Corporation (the "Preferred Stock"),
and
(ii) 70,000,000 shares of Common Stock, par value $.01 per
share of the Corporation (the "Common Stock").
(b) Except as otherwise provided by law, the shares of stock
of the Corporation, regardless of class, may be issued by the Corporation from
time to time in such amounts, for such consideration and for such corporate
purposes as the Board of Directors may from time to time determine; provided,
however, that shares of Preferred Stock (i) may be issued only (x) after the
first annual meeting of stockholders of the Corporation after the Effective Time
(as defined below) and (y) for purposes of a bona fide financing or acquisition
transaction (as determined in good faith by the Board of Directors whose
determination shall be conclusive) and (ii) shall in no event be issuable upon
or in connection with exercise of rights distributed to stockholders of the
Corporation generally.
(c) Shares of Preferred Stock may be issued, subject to
paragraph (b) of this Article, from time to time in one or more series of any
number of shares as may be determined from time to time by the Board of
Directors, provided that the aggregate number of shares issued and not canceled
of any and all such series shall not exceed the total number of shares of
Preferred Stock authorized by this Certificate of Incorporation. Each series of
Preferred Stock shall be distinctly designated. Except in respect of the
particulars fixed for series by the Board of
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Directors as Permitted hereby, all shares shall be alike in every particular,
except that shares of any one series issued at different times may differ as to
the dates from which dividends thereon shall be cumulative. The voting powers of
each such series and the preferences and relative, participating, optional and
other special rights of each such series and the qualifications, limitations and
restrictions thereof, if any, may differ from those of any and all other series
at any time outstanding; and the Board of Directors is hereby expressly granted
authority to fix, in the resolution or resolutions providing for the issue of a
particular series of Preferred Stock, the voting powers of each such series and
the designations, preferences and relative, participating, optional and other
special rights of each such series and the qualifications, limitations and
restrictions thereof to the full extent now or hereafter permitted by this
Certificate of Incorporation and the laws of the State of Delaware.
(d) Subject to the provisions of applicable law or of the
Bylaws with respect to the fixing of a record date for the determination of
stockholders entitled to vote, and except as otherwise provided by law or by the
resolution or resolutions providing for the issue of any series of Preferred
Stock, the holders of outstanding shares of Preferred Stock shall be entitled to
vote (together with the holders of shares of Common Stock) upon all matters
submitted to a vote of stockholders and will be entitled to one vote for each
share held; provided, however, that the resolution or resolutions providing for
the issue of any series of Preferred Stock shall in no event authorize the
holders of outstanding shares of Preferred Stock (i) to more than one vote for
each share held in respect of any matter submitted to a vote of stockholders or
(ii) to vote as a separate class for a class of directors (x) exceeding 25% of
the entire Board of Directors or (y) having either (1) greater voting powers
than those of any other directors or (2) the right to vote as a separate class
of directors apart from the entire Board of Directors (except to fill vacancies
in such class).
(e) The Board of Directors of the Corporation may increase the
number of shares of the Preferred Stock designated for any existing series by a
resolution adding to such series authorized and unissued shares of the Preferred
stock not designated for any other series. The Board of Directors of the
Corporation may decrease the number of shares of the Preferred Stock designated
for any existing series by a resolution subtracting from such series authorized
and unissued shares of the Preferred Stock designated for such existing series,
and the Shares so subtracted shall become authorized, unissued and undesignated
shares of the Preferred Stock.
FIFTH: The number of directors that shall constitute the whole
Board of Directors of the Corporation shall be (i) seven until the first annual
meeting of stockholders after the Effective Time and (ii) thereafter such number
not less than seven nor more than nine as shall be fixed by, or in the manner
provided in, the Bylaws. The names of the persons who are to serve as initial
directors from and after the Effective Time until the next annual meeting of
stockholders and until their successors are elected and qualified or until their
earlier resignation or removal are:
Dean G. Groussman Frank E. Grzelecki
Martin S. Ackerman Richard C. Marcus
J. Glen Adams Andrew H. Tisch
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Mark Dickstein
Election of directors need not be by written ballot.
SIXTH: (a) All the powers of the Corporation, insofar as the
same may be lawfully vested by this Certificate of Incorporation in the Board of
Directors, are hereby conferred upon the Board of Directors. In furtherance and
not in limitation of that power, the Board of Directors shall have the power to
make, adopt, alter, amend, and repeal from time to time the Bylaws of the
Corporation, subject to the right of the stockholders entitled to vote with
respect thereto to adopt, alter, amend and repeal Bylaws made by the Board of
Directors, or to make new Bylaws; provided, however, that the Board of Directors
shall not (i) adopt, alter, amend, or repeal the Bylaws of the Corporation
except upon the affirmative vote of at least two-thirds (2/3) of the members of
the Board of Directors at any annual or special meeting of the board, or by
unanimous written consent of the directors; and (ii) adopt any provision of the
Bylaws that is inconsistent with the provisions of this Certificate of
incorporation or the effect of such provisions.
(b) [INTENTIONALLY OMITTED]
SEVENTH: (a) A director of the Corporation shall not be
personally liable either to the Corporation or any stockholder for monetary
damages for breach of fiduciary duty as a director, except (i) f or any breach
of the director's duty of loyalty to the Corporation or its stockholders, or
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of the law, or (iii) for any matter in respect
of which such director shall be liable under Section 174 of Title 8 of the
General Corporation Law of the State of Delaware or any amendment thereto or
successor provision thereto, or (iv) for any transaction from which the director
shall have derived an improper personal benefit. Neither amendment nor repeal of
this paragraph (a) nor the adoption of any provision of the Certificate of
Incorporation inconsistent with this paragraph (a) shall eliminate or reduce the
effect of this paragraph (a) in respect of any matter occurring, or any cause of
action, suit or claim that, but for this paragraph (a) of this Article, would
accrue or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
(b) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to, or testifies in, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative in nature, by reason of (i) the fact that such
person is or was a director, officer, employee or agent of the Corporation at
any time after the Commencement Time (as defined below), or is or was serving at
any time after the Commencement Time at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, employee benefit plan, trust or other enterprise and (ii) any acts or
omissions by such person in such capacity that occurred after the Commencement
Time, against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding to the full extent permitted by law, so
long as such person acted or omitted to act in good faith and in a manner that
such person (x) reasonably believed to be in or
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not opposed to the best interests of the Corporation and (y) with respect to any
criminal action or proceeding, had reasonable cause to believe was lawful;
provided, however, that if a court of competent jurisdiction, after exhaustion
of all appeals therefrom, adjudges such person to be liable to the corporation
for any amount or if such person pays an amount in settlement to the
Corporation, the Corporation may indemnify such person for such amount only with
the approval of such court. The Corporation may adopt Bylaws or enter into
agreements with any such person for the purpose of providing for such
indemnification. "Commencement Time" means 8:00 a.m., C.S.T., on July 21, 1993.
EIGHTH: Any action required or permitted to be taken by the
stockholders of the Corporation (including any consent or approval of
stockholders of the Corporation required pursuant to paragraph (b) of Article
SIXTH or by the Charter of any Material Subsidiary) shall be effected at an
annual or special meeting of stockholders of the Corporation and may not be
effected by any consent in writing by such stockholders. Special meetings of
stockholders of the corporation may be called only by (a) the Board of Directors
pursuant to a resolution adopted by a majority of the members of the board or
(b) the Chairman of the Board of Directors or (c) the President or Secretary
upon the written request of the holders of at least 25% of the outstanding
shares of the Common Stock.
NINTH: Notwithstanding any other provisions of this
Certificate of incorporation or any provision of law which might otherwise
permit a lesser vote or no vote, the affirmative vote of the holders of at least
two-thirds (2/3) of the outstanding shares of Common Stock shall be required to
amend, alter, or repeal any provision of Articles FIFTH, EIGHTH or NINTH of this
Certificate of incorporation or adopt any provision inconsistent with such
Articles FIFTH, EIGHTH OR NINTH.
TENTH: The Corporation expressly elects not to be governed by
Section 203 of the General Corporation Law of the State of Delaware.
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