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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MICHAELS STORES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 75-1943604
(State of Incorporation or (I.R.S. Employer
Organization) Identification No.)
8000 BENT BRANCH DRIVE
P. O. BOX 619566
IRVING, TEXAS 75063
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of registration of a class of
securities pursuant to securities pursuant to
Section 12(b) of the Exchange Section 12(g) of the Exchange
Act and is effective pursuant Act and is effective pursuant
to General Instruction A.(c), to General Instruction A.(d),
please check the following please check the following
box. / / box. /X/
Securities Act registration statement file number to which this form
relates: 0-11822
------------------------
(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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NONE NONE
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, PAR VALUE $.10 PER SHARE
(Title of Class)
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Items 1 and 2 of Form 8-A filed with the Securities and Exchange
Commission by Michaels Stores, Inc. on April 10, 1984 are hereby amended and
restated in their entirety to read as follows:
ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
Michaels is authorized to issue 2,000,000 shares of preferred stock,
par value $.10 per share, and 150,000,000 shares of common stock, par value
$.10 per share. None of the preferred stock is outstanding. As of February 29,
2000, there were 31,635,279 outstanding shares of common stock held of record
by 675 stockholders and outstanding options to purchase 7,381,114 shares of
common stock. The outstanding shares of common stock are fully paid and
nonassessable.
COMMON STOCK
Holders of common stock are entitled to one vote per share on all
matters submitted to a vote of stockholders and do not have cumulative voting
rights. Accordingly, holders of a majority of the shares of common stock
entitled to vote in any election of directors can elect all of the directors
standing for election. Holders of common stock are entitled to receive
proportionately any dividends that may be declared by the board of directors,
subject to any preferential dividend rights of outstanding preferred stock.
However, the terms of agreements governing our outstanding indebtedness
restrict us from making dividend payments unless specified financial
requirements are met. Upon any liquidation, dissolution or winding up of
Michaels, holders of common stock are entitled to receive proportionately any
of our assets remaining after the payment of liabilities and subject to the
prior rights of any outstanding preferred stock. Holders of common stock do
not have any preemptive rights to subscribe for or to purchase any stock,
obligations, warrants or any other of our securities.
PREFERRED STOCK
The board of directors has the authority, without action by the
stockholders, but within the limitations and restrictions in our certificate
of incorporation, to issue preferred stock from time to time in one or more
series. The board of directors may also fix for each series the number of
shares, designation, rights, preferences, priorities and restrictions for each
series of preferred stock, including dividend rights, voting rights,
redemption rights and any liquidation preferences. The issuance of preferred
stock could adversely affect the voting and other rights of the holders of
common stock.
PROVISIONS OF OUR CERTIFICATE OF INCORPORATION, OUR BYLAWS AND DELAWARE LAW
Some provisions of our certificate of incorporation and bylaws and
Delaware law may have an anti-takeover effect and delay, defer or prevent a
tender offer or takeover attempt that a stockholder may consider in its best
interest, including those attempts that might result in a premium over the
market price for the shares held by stockholders.
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CLASSIFIED BOARD OF DIRECTORS, REMOVAL OF DIRECTORS AND FILLING
VACANCIES IN DIRECTORSHIPS
Our certificate of incorporation provides that our board of directors
is divided into three classes of directors serving staggered three-year terms.
Generally, any director may be removed either for or without cause by a vote
of the holders of a majority of our voting securities entitled to vote. In
addition, our certificate of incorporation provides that if any person
controls 5% or more of our common stock, then any director may be removed
either for or without cause, at any special meeting of the stockholders by the
affirmative vote of the holders of at least two-thirds of our voting
securities entitled to vote. Under our certificate of incorporation, any
vacancy on our board of directors, including a vacancy resulting from an
enlargement of our board of directors, may be filled by the vote of a majority
of our directors then in office. The classification of our board of directors
and the limitations on the removal of directors and filling of vacancies may
deter a third party from seeking to remove incumbent directors and
simultaneously gaining control of the board of directors by filling the
vacancies created by such removal with its own nominees.
NO CUMULATIVE VOTING
Our certificate of incorporation expressly denies stockholders the
right to cumulate votes in the election of directors. As a result, the holders
of a majority of the shares voted can elect all directors standing for
election.
STOCKHOLDER ACTION AND SPECIAL MEETING OF STOCKHOLDERS
Our bylaws provide that special meetings of the stockholders may only
be called by our President, our board of directors, or by our President or
Secretary after receipt of a written request of holders of our voting
securities entitled to cast one-third of the votes at the meeting. The
business permitted to be conducted at any such meeting will be limited to that
business specified in the notice of the meeting unless all stockholders
entitled to vote are present and consent.
ADVANCE NOTICE REQUIREMENTS FOR DIRECTOR NOMINATIONS
Our certificate of incorporation provides that stockholders seeking
to nominate candidates for election as directors at an annual meeting of
stockholders must provide timely notice in writing. To be timely, a
stockholder's notice must be delivered or mailed to the Secretary of Michaels
not less than 14 days nor more than 50 days prior to any meeting called for
the election of directors, except that if less than 21 days' notice of the
meeting was given to stockholders, notice by the stockholder in order to be
timely must be delivered or mailed to the Secretary of Michaels not later than
the close of the seventh day following the day on which notice of the meeting
was mailed to stockholders. Our certificate of incorporation also specifies
requirements as to the form and content of a stockholder's notice. These
provisions may preclude stockholders from making nominations for directors at
an annual meeting of stockholders.
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AUTHORIZED BUT UNISSUED SHARES
Authorized but unissued shares of common stock and preferred stock
under our certificate of incorporation will be available for future issuance
without stockholder approval. These additional shares may be used for a
variety of corporate purposes, including future public offerings to raise
additional capital, corporate acquisitions and employee benefit plans. The
existence of authorized but unissued shares of common stock and preferred
stock could render more difficult or discourage an attempt to obtain control
of us by means of a proxy contest, tender offer, merger or otherwise.
SUPERMAJORITY VOTE REQUIREMENTS
Delaware law provides generally that the affirmative vote of a
majority of the shares entitled to vote on any matter is required to amend a
corporation's certificate of incorporation or bylaws, unless a corporation's
certificate of incorporation or bylaws, as the case may be, requires a greater
percentage. If any person controls 5% or more of our common stock, our
certificate of incorporation requires the favorable vote of the holders of at
least two-thirds of our common stock entitled to vote on the matter to remove
any director or to approve specified transactions, including a merger or a
sale of substantially all of our assets, with the person controlling 5% or
more of our common stock. Additionally, our certificate of incorporation
requires the affirmative vote of the holders of at least two-thirds of our
common stock entitled to vote on the matter to approve any transaction
designed to decrease the number of holders of our common stock remaining after
any person has acquired beneficial ownership of 5% or more of our common
stock. However, the supermajority voting provisions relating to approval of
the transactions do not apply if our board of directors approved the
transaction before the person acquired control or became the beneficial owner
of 5% or more of our common stock. Finally, if any person has control or is
the beneficial owner of 5% or more of our common stock, the provisions in our
certificate of incorporation relating to the approval of the transactions
described above may be amended or repealed only by the favorable vote of the
holders of at least two-thirds of the common stock entitled to vote on the
matter.
DELAWARE SECTION 203
We are subject to the provisions of Section 203 of the Delaware
General Corporation Law. Section 203 prohibits a publicly held Delaware
corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the person became an interested
stockholder, unless the interested stockholder attained that status with the
approval of the board of directors or the business combination is approved in
a prescribed manner. A "business combination" includes some mergers, asset
sales and other transactions resulting in a financial benefit to the
interested stockholder. Subject to some exceptions, an "interested
stockholder" is a person who, together with affiliates and associates, owns,
or within the prior three years did own, 15% or more of the corporation's
voting stock.
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MARKET INFORMATION
Shares of our common stock are traded on the Nasdaq National Market
under the symbol "MIKE."
TRANSFER AGENT
Our registrar and transfer agent for our common stock is Harris Trust
and Savings Bank.
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ITEM 2. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
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<C> <S>
1 Amended and Restated Bylaws of the Registrant
(previously filed as Exhibit 3.1 to Form 10-K for
the year ended January 30, 1994, filed by the
Registrant on April 28, 1994, SEC File No. 0-11822).
2 Restated Certificate of Incorporation of the
Registrant (filed herewith).
3 Certificate of Amendment to the Restated Certificate
of Incorporation of the Registrant (filed herewith).
4 Form of Common Stock Certificate (previously filed
as Exhibit 4.1 to Form 10-K for the year ended
January 30, 1994, filed by the Registrant on April
28, 1994, SEC File No. 0-11822).
</TABLE>
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
MICHAELS STORES, INC.
Date: March 23, 2000 By: /s/ Bryan M. DeCordova
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Bryan M. DeCordova
Executive Vice President -
Chief Financial Officer
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INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER EXHIBIT
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<C> <S>
1 Amended and Restated Bylaws of the Registrant
(previously filed as Exhibit 3.1 to Form 10-K for
the year ended January 30, 1994, filed by the
Registrant on April 28, 1994, SEC File No. 0-11822).
2 Restated Certificate of Incorporation of the
Registrant (filed herewith).
3 Certificate of Amendment to the Restated Certificate
of Incorporation of the Registrant (filed herewith).
4 Form of Common Stock Certificate (previously filed
as Exhibit 4.1 to Form 10-K for the year ended
January 30, 1994, filed by the Registrant on April
28, 1994, SEC File No. 0-11822).
</TABLE>
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EXHIBIT 2
RESTATED CERTIFICATE OF INCORPORATION
OF
MICHAELS STORES, INC.
Under Sections 242 and 245
of the
Delaware General Corporation Law
Michaels Stores, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
First: The name of the Corporation is Michaels Stores, Inc.
Second: The Corporation was originally incorporated under the name
Michaels Arts & Crafts, Inc. and the original Certificate of Incorporation of
the Corporation was filed with the Secretary of State, Dover, Delaware, on the
18th day of November, 1983.
Third: Pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, this Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Certificate
of Incorporation of the Corporation. The amendment to the Certificate of
Incorporation effected by this certificate is as follows:
To amend Article Four to increase the number of shares of common stock
issuable to Fifty Million Shares.
Fourth: The amendment and the restatement of the Certificate of
Incorporation have been approved by the Corporation's Board of Directors and
have been duly adopted in accordance with the provisions of the General
Corporation Law of the State of Delaware by an affirmative vote of the holders
of a majority of all outstanding shares entitled to vote at a meeting of
stockholders.
Fifth: The text of the Restated Certificate of Incorporation of
Michaels Stores, Inc., as amended, is hereby restated and further amended to
read in its entirety as follows:
RESTATED CERTIFICATE OF INCORPORATION
OF
MICHAELS STORES, INC.
ARTICLE ONE
The name of the Corporation is Michaels Stores, Inc.
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ARTICLE TWO
The location of the Corporation's registered office is Corporation
Trust Center, 1209 Orange Street in the City of Wilmington, County of New
Castle, Delaware 19801. The name of the registered agent at such address is
The Corporation Trust Company.
ARTICLE THREE
The purpose for which the Corporation is organized 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.
ARTICLE FOUR
The aggregate number of shares of all classes of stock which the
Corporation shall have the authority to issue is Fifty-Two Million
(52,000,000), consisting of Fifty Million (50,000,000) shares of common stock
(the "Common Stock") having a par value of $.10 per share, and Two Million
(2,000,000) shares of preferred stock (the "Preferred Stock"), having a par
value of $.10 per share.
The Preferred Stock may be issued in one or more series as may be
determined from time to time by the Board of Directors. Subject to the
provisions of this Article Four, the Board of Directors is expressly
authorized to fix the relative preferences, priorities and restrictions of the
Preferred Stock or any series thereof by resolution and by filing a
Certificate thereof as provided in the General Corporation Law of the State of
Delaware or succeeding legislation. Without limiting the generality of the
foregoing, the Board of Directors is expressly authorized, in its absolute
discretion, to confer upon the holders of any series of the Preferred Stock
the right, voting separately as a class, to approve or disapprove any of the
actions referred to in Article Eight of this Certificate of Incorporation by
the same percentage of such series of Preferred Stock as said Article requires
for action in the case of the holders of the Common Stock, in which event the
provisions of said Article shall apply, with such changes as the context may
require, separately to such series of Preferred Stock.
Subject to the provisions of law and the preferences of the Preferred
Stock, dividends may be paid on the Common Stock at such time and in such
amounts as the Board of Directors may deem advisable; and each holder of
Common Stock will have one vote for each share of Common Stock held by him on
all matters voted upon by the stockholders.
No approval by class or series vote or otherwise of the holders of
the Preferred Stock or any series thereof will be required for the issue by
the Board of Directors of any other series of Preferred Stock, whether or not
in any respect senior to or on a parity with any such outstanding series,
provided, however, that the Board of Directors may condition the issue of such
additional series of Preferred Stock on the approval, by such proportion as
the Board of Directors may specify, of any such outstanding series.
No holder of any of the shares of any class or series of stock, or of
options, warrants or other rights to purchase shares of any class or series of
stock or other securities of the Corporation, will
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have any preemptive or preferential right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized capital stock
of the Corporation of any class or series, nor notes, bonds, certificates of
indebtedness, debentures or other securities convertible into or exchangeable
for stock of the Corporation of any class or series, or carrying any right to
purchase stock of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock. Shares of
stock of any class or series, or any notes, bonds, debentures and other
securities convertible into or carrying warrants, rights or options to
purchase shares of stock of any class or series may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or otherwise, and upon such
terms as may be deemed by the Board of Directors in the exercise of its sole
discretion.
Shares of Common Stock and, subject to the provisions of this
Article, shares of any series of Preferred Stock, may be issued from time to
time as the Board of Directors determines and on such terms and for such
consideration as may be fixed by the Board of Directors.
The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock of
the Corporation entitled to vote thereon.
ARTICLE FIVE
The stockholders of the Corporation shall not have cumulative voting
rights for the election of directors or for any other purpose.
ARTICLE SIX
The Board of Directors of the Corporation may make, alter or repeal
the Bylaws of the Corporation from time to time.
ARTICLE SEVEN
The property, business and affairs of the Corporation will be managed
and controlled by the Board of Directors.
The number of directors (exclusive of any directors elected by class
vote of any series of Preferred Stock pursuant to the terms thereof) will be
fixed from time to time by a vote of a majority of the entire Board of
Directors. The phrase "entire Board of Directors", when used in this
Certificate of Incorporation refers to the total number of directors,
determined as if there were no vacancies.
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The directors shall be divided into three classes, each consisting of
one-third of such directors as nearly as may be. At each annual meeting of
stockholders, successors to the class of directors whose term expires that
year shall be elected for a three-year term. If the number of such directors
is changed, any increase or decrease in such directors shall be apportioned
among the classes so as to maintain the classes as nearly equal in number as
possible, and any additional director to any class shall hold office for a
term which shall coincide with the terms of such class.
Any vacancies in the Board of Directors for any reason, and any newly
created directorships resulting from any increase in the number of directors,
will be filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and any directors so
chosen will hold office until the next election of the class for which such
directors will have been chosen and until their successors are duly elected
and qualified. No decrease in the number of directors will shorten the term of
any incumbent director. Notwithstanding the foregoing, and except as otherwise
required by law, whenever the holders of any one or more series of Preferred
Stock have the right, voting separately as a class, to elect one or more
directors of the Corporation, the terms of the director or directors elected
by such holders will be as provided in the terms of such series. Subject to
the foregoing, at each annual meeting of stockholders, the successors to the
class of directors whose term then expires will be elected to hold office for
a term expiring at the third succeeding annual meeting.
Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Nominations by stockholders must be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days prior
to any meeting of the stockholders called for the election of directors;
provided, however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice may be delivered or mailed, as
prescribed, to the Secretary of the Corporation not later than the close of
the seventh day following the day on which notice of the meeting was mailed to
stockholders.
Each notice required by the foregoing paragraph will set forth (i)
the name, age, business address and, if known, residence address of each such
nominee proposed in such notice, (ii) the principal occupation or employment
of each such nominee, and (iii) the number of shares of stock of the
Corporation as to which voting power is held or shared by each such nominee,
the stockholder(s) giving such notice, and any person, firm, or entity acting
in concert with any of them for the purpose of electing such nominee.
The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and, if he should so determine, he will so declare to the
meeting and the defective nomination will be disregarded.
Except as expressly required by any provision of the General
Corporation Law of the State of Delaware, by a provision of any series of
Preferred Stock fixed by the Board of Directors or by
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a provision of the Certificate of Incorporation of the Corporation adopted by
a vote of the holders of stock sufficient to amend this paragraph, no act or
determination of the Board of Directors will require an approval or other
authorization whatsoever by the stockholders or any class of them.
A majority of the entire Board of Directors or of any committee
thereof constitutes a quorum for the transaction of business by the Board of
Directors or such committee, as the case may be. The vote of a majority of the
directors or members of any committee thereof present at a meeting at which a
quorum is present is the act of the Board of Directors or such committee
unless a greater vote is expressly required by any provisions of the General
Corporation Law of the State of Delaware, by a provision of any series of
Preferred Stock fixed by the Board of Directors, or by a provision of the
Certificate of Incorporation of the Corporation adopted by a vote of the
holders of stock sufficient to amend this paragraph. The Board of Directors
and any committee thereof may hold meetings, and have an office or offices
within or without the State of Delaware, as the Board or such committee may
determine from time to time.
Any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto
in writing, and the writings are filed with the minutes of proceedings of the
Board or committee.
Any director may be removed either for or without cause, at any
special meeting of stockholders by the affirmative vote of not less than
two-thirds (2/3) of all of the votes which the holders of the issued and
outstanding Common Stock of the Corporation are entitled to vote at an
election of directors, unless at the time any such removal is submitted to a
vote of the stockholders of the Corporation entitled to vote there is no
Person (as defined in Article Eight) beneficially owning or controlling five
percent (5%) or more of the Common Stock of the Corporation in which event
such removal may be approved by the vote of not less than a majority of all
the votes which the holders of the issued and outstanding Common Stock of the
Corporation are entitled to vote at an election of directors.
ARTICLE EIGHT
In the event that the holders of the Common Stock of the Corporation
are entitled to vote on (i) a merger or consolidation with any Person (as
hereinafter defined) or on a proposal that the Corporation sell, lease or
exchange substantially all of its assets and property to or with any Person or
that any Person sell, lease or exchange substantially all of its assets and
property to or with the Corporation, and such Person beneficially owns or
controls, directly or indirectly, Common Stock representing five percent (5%)
or more of the voting power of the Corporation at the record date for
determining stockholders entitled to vote or (ii) any reclassification of
securities, recapitalization or other transaction (except redemptions
permitted by the terms of the security redeemed or repurchases of the
securities for cancellation or the Corporation's treasury) designed to
decrease the number of holders of the Corporation's Common Stock remaining
after any Person has acquired beneficial ownership of five percent (5%) or
more of the Common Stock of the Corporation, the favorable vote
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of not less than two-thirds (2/3) of all of the votes which the holders of the
issued and outstanding Common Stock of the Corporation are entitled to cast
thereon shall be required for the approval of any such action; provided that
the foregoing shall not apply to any such merger, consolidation or such sale,
lease or exchange of assets and property or such reclassification or
recapitalization which was approved by the Board of Directors of the
Corporation prior to the acquisition of beneficial ownership or control of
Common Stock representing at least five percent (5%) of the voting power of
the Corporation by any such Person.
For the purpose hereof, a "Person" shall mean any corporation,
partnership, association, trust (other than any trust holding stock of the
employees of the Corporation pursuant to any stock purchase, ownership or
employee benefit plan of the Corporation), business entity, estate or
individual or any Affiliate (as hereinafter defined) of any of the foregoing,
and the term "Person" shall include a "group" of persons (a "Group"), as that
term is defined for purposes of Section 13 of the Securities Exchange Act of
1934, as amended, and the Rules and Regulations promulgated by the Securities
and Exchange Commission thereunder, and any member of such a Group. An
"Affiliate" shall mean any corporation, partnership, association, trust,
business entity, estate or individual who, directly or indirectly, through one
or more intermediaries, controls, or is controlled by, or is under common
control with, a Person. "Control" shall mean the possession, directly or
indirectly, of power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise. "Beneficial ownership" shall be defined for purposes
of Section 13 of the Securities Exchange Act of 1934, as amended, and the
Rules and Regulations promulgated by the Securities and Exchange Commission
thereunder.
A majority of the Board of Directors of the Corporation shall have
the authority to determine for the purposes of this Article Eight on the basis
of information known to them (i) whether a Person beneficially owns more than
any specified percentage of the Common Stock, (ii) whether a Person is an
Affiliate of another and (iii) the existence and composition of a Group.
This Article Eight may not be amended, nor may it be repealed in
whole or in part, until authorized by a favorable vote of not less than
two-thirds (2/3) of all the votes entitled to be cast thereon by the holders
of the issued and outstanding Common Stock of the Corporation entitled to vote
unless at the time any such proposed amendment or repeal is submitted to a
vote of the stockholders of the Corporation entitled to vote there is no
Person beneficially owning or controlling five percent (5%) or more of the
Common Stock of the Corporation, in which event this Article Eight may be so
amended or repealed by the favorable vote of not less than such number of
votes as shall otherwise be required by law at such time to effect such
amendment or repeal.
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ARTICLE NINE
(a) Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
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 officer, of the Corporation or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized 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), against all expense, liability and loss (including
without limitation 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 and such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators: provided, that, except as provided in paragraph (b) hereof,
the Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation. The right to indemnification conferred in this Article
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance
of its final disposition; provided, that, if the General Corporation Law of
the State of Delaware requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not
in any other capacity in which service was or is rendered by such person while
a director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding shall be
made only upon delivery to the Corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Article Nine or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
(b) If a claim under paragraph (a) of this Article Nine is not paid
in full by the Corporation within thirty (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 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
the required undertaking, if any is required, has been tendered to the
Corporation) that the
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claimant has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall 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 he or she has met the applicable standard of conduct set forth in the
General Corporation Law 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, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
(c) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in
this Article shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability
or loss under the General Corporation Law of the State of Delaware.
ARTICLE TEN
To the fullest extent permitted by the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended, a director
of the Corporation shall not be liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director.
8
<PAGE>
In Witness Whereof, the Corporation has caused this Restated
Certificate of Incorporation to be signed and attested by its duly authorized
officers, this 24TH day of July, 1992.
MICHAELS STORES, INC.
By: /s/ Jack E. Bush
----------------------------------
Jack E. Bush, President
Attest:
/s/ Mark V. Beasley
- ----------------------------------
Mark V. Beasley
Secretary
State of Texas Section
Section
County of Dallas Section
Be it remembered that on this 24TH day of July, 1992, personally came
before me, LEILANI JACKSON, notary public in and for the State of Texas, JACK
E. BUSH and MARK V. BEASLEY, parties to the foregoing certificate, known to me
personally to be such, and duly acknowledged such certificate to be their act
and deed, and that the facts therein stated are true.
Given under my hand and seal of office the day and year aforesaid.
/s/ Leilani Jackson
----------------------------------
My commission expires:
9-14-94 Leilani Jackson
- ---------------------------------- ----------------------------------
Printed Name of Notary
9
<PAGE>
EXHIBIT 3
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
Michaels Stores, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: The Board of Directors of Michaels Stores, Inc., duly adopted
resolutions setting forth a proposed amendment to the Restated Certificate of
Incorporation of the corporation, declaring the amendment to be advisable and
directing the amendment to be considered at the 1998 Annual Meeting of the
Stockholders. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Board hereby adopts, approves and declares
advisable a proposal to amend the Certificate to increase the
authorized Common Stock of the Company from 50 million shares to 150
million shares which amendment (the "Amendment") would be in
substantially the form as follows:
"Paragraph One of Article Four of the Restated Certificate of
Incorporation of the Corporation is hereby amended and
restated in its entirety as follows:
The aggregate number of shares of all the classes of stock
which the Corporation shall have authority to issue is
152,000,000, consisting of 150,000,000 shares of Common Stock
(the "Common Stock") having a par value of $.10 per share, and
2,000,000 shares of Preferred Stock (the "Preferred Stock")
having a par value of $.10 per share."
SECOND: At the 1998 Annual Meeting of the Stockholders of the
corporation, duly called and held on September 22, 1998 upon notice in
accordance with Section 222 of the General Corporation Law of the State of
Delaware, the necessary number of shares as required by statute were voted in
favor of the amendment.
THIRD: The amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Michaels Stores, Inc. has caused this certificate
to be signed by Mark V. Beasley, its Secretary, on November 13, 1998.
By: /s/ Mark V. Beasley
----------------------------------
Mark V. Beasley, Secretary
