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Exhibit 99.T3(A)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
LOEHMANN'S HOLDINGS INC.
Loehmann's Holdings Inc., a corporation organized under the
laws of Delaware, hereby amends, restates and duly adopts in accordance with
Section 245 of the General Corporation Law of the State of Delaware (the
"General Corporation Law"), its Certificate of Incorporation currently in effect
as follows:
1. NAME. The name of the corporation is Loehmann's Holdings
Inc. (the "Corporation").
2. ADDRESS; REGISTERED OFFICE AND AGENT. The address of the
Corporation's registered office is 615 South DuPont Highway, City of Dover,
County of Kent, State of Delaware; and its registered agent at such address is
National Corporate Research, Ltd.
3. PURPOSES. 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.
4. NUMBER OF SHARES. The total number of shares of stock that
the Corporation shall have authority to issue is: five million five hundred
thousand
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(5,500,000), all of which shall be shares of Common Stock of par value of
one-cent ($.01) each.
To the extent required by section 1123(a)(6) of the U.S.
Bankruptcy Code (11 U.S.C. ss. 1123(a)(6)), no nonvoting equity securities of
the Corporation shall be issued. This provision shall have no further force and
effect beyond that required by section 1123(a)(6) and is applicable only for so
long as such section is in effect and applicable to the Corporation.
5. ELECTION OF DIRECTORS. Members of the Board of Directors of
the Corporation (the "Board") may be elected either by written ballot or by
voice vote.
6. STOCKHOLDER ACTION; SPECIAL MEETINGS OF STOCKHOLDERS. Any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of such holders in
the manner provided by the By-laws of the Corporation and may not be effected by
any consent in writing of such holders. At any annual meeting or special meeting
of stockholders of the Corporation, only such business shall be conducted as
shall have been brought before such meeting in the manner provided by the
By-laws of the Corporation. Special meetings of stockholders for any purpose may
be called at any time only by the Board of Directors, the Chairman or the CEO.
Special meetings shall be held at such place or places within or without the
State of Delaware as shall from time to time be designated by the Board of
Directors and stated in the notice of such meeting.
7. LIMITATION OF LIABILITY. No director of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of
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fiduciary duty as a director, provided that this provision shall not eliminate
or limit the liability of a director (a) for any breach of the director's duty
of loyalty to the Corporation or its stockholders, (b) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (c) under section 174 of the General Corporation Law or (d) for any
transaction from which the director derived any improper personal benefits.
Any repeal or modification of the foregoing provision shall
not adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
8. INDEMNIFICATION.
8.1 To the extent not prohibited by law, the
Corporation shall indemnify any person who is or was made, or threatened to be
made, a party to any threatened, pending or completed action, suit or proceeding
(a "Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Corporation
to procure a judgment in its favor, by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director or
officer of the Corporation, or, at the request of the Corporation, is or was
serving as a director or officer of any other corporation or in a capacity with
comparable authority or responsibilities for any partnership, joint venture,
trust, employee benefit plan or other enterprise (an "Other Entity"), against
judgments, fines, penalties, excise taxes, amounts paid in settlement and costs,
charges and expenses (including attorneys' fees, disbursements and other
charges). Persons who are not directors or officers of the
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Corporation (or otherwise entitled to indemnification pursuant to the preceding
sentence) may be similarly indemnified in respect of service to the Corporation
or to an Other Entity at the request of the Corporation to the extent the Board
at any time specifies that such persons are entitled to the benefits of this
Section 8.
8.2 The Corporation shall, from time to time,
reimburse or advance to any director or officer or other person entitled to
indemnification hereunder the funds necessary for payment of expenses, including
attorneys' fees and disbursements, incurred in connection with any Proceeding,
in advance of the final disposition of such Proceeding; PROVIDED, HOWEVER, that,
if required by the General Corporation Law, such expenses incurred by or on
behalf of any director or officer or other person may be paid in advance of the
final disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such director, officer or other person is not
entitled to be indemnified for such expenses.
8.3 The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Section 8 shall not be deemed exclusive of any other rights to which a
person seeking indemnification or reimbursement or advancement of expenses may
have or hereafter be entitled under any statute, this Certificate of
Incorporation, the By-laws of the Corporation (the "By-laws"), any agreement,
any vote of stockholders or disinterested directors or otherwise, both as to
action in his or her official capacity and as to action in another capacity
while holding such office.
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8.4 The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Section 8 shall continue as to a person who has ceased to be a director or
officer (or other person indemnified hereunder) and shall inure to the benefit
of the executors, administrators, legatees and distributees of such person.
8.5 The Corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of an Other
Entity, against any liability asserted against such person and incurred by such
person in any such capacity, or arising out of such person's status as such,
whether or not the Corporation would have the power to indemnify such person
against such liability under the provisions of this Section 8, the By-laws or
under section 145 of the General Corporation Law or any other provision of law.
8.6 The provisions of this Section 8 shall be a
contract between the Corporation, on the one hand, and each director and officer
who serves in such capacity at any time while this Section 8 is in effect and
any other person entitled to indemnification hereunder, on the other hand,
pursuant to which the Corporation and each such director, officer, or other
person intend to be, and shall be, legally bound. No repeal or modification of
this Section 8 shall affect any rights or obligations with respect to any state
of facts then or theretofore existing or thereafter arising or any proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
8.7 The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Section 8 shall be
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enforceable by any person entitled to such indemnification or reimbursement or
advancement of expenses in any court of competent jurisdiction. The burden of
proving that such indemnification or reimbursement or advancement of expenses is
not appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board, its independent legal counsel and its
stockholders) to have made a determina tion prior to the commencement of such
action that such indemnification or reimbursement or advancement of expenses is
proper in the circumstances nor an actual determination by the Corporation
(including its Board, its independent legal counsel and its stockholders) that
such person is not entitled to such indemnification or reimbursement or
advancement of expenses shall constitute a defense to the action or create a
presumption that such person is not so entitled. Such a person shall also be
indemnified for any expenses incurred in connection with successfully
establishing his or her right to such indemnification or reimbursement or
advancement of expenses, in whole or in part, in any such proceeding.
8.8 Any director or officer of the Corporation
serving in any capacity of (a) another corporation of which a majority of the
shares entitled to vote in the election of its directors is held, directly or
indirectly, by the Corporation or (b) any employee benefit plan of the
Corporation or any corporation referred to in clause (a) shall be deemed to be
doing so at the request of the Corporation.
8.9 Any person entitled to be indemnified or to
reimbursement or advancement of expenses as a matter of right pursuant to this
Section 8 may elect to have the right to indemnification or reimbursement or
advancement of expenses interpreted on the basis of the applicable law in effect
at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of
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the applicable law in effect at the time such indemnification or reimbursement
or advancement of expenses is sought. Such election shall be made, by a notice
in writing to the Corporation, at the time indemnification or reimbursement or
advancement of expenses is sought; PROVIDED, HOWEVER, that if no such notice is
given, the right to indemnification or reimbursement or advancement of expenses
shall be determined by the law in effect at the time indemnification or
reimbursement or advancement of expenses is sought.
9. ADOPTION, AMENDMENT AND/OR REPEAL OF BY-LAWS. The Board may
from time to time adopt, amend or repeal the By-laws of the Corporation;
PROVIDED, HOWEVER, that any By-laws adopted or amended by the Board may be
amended or repealed, and any By-laws may be adopted, by the stockholders of the
Corporation by vote of a majority of the holders of shares of stock of the
Corporation entitled to vote in the election of directors of the Corporation.
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IN WITNESS WHEREOF, this certificate has been signed on
September __, 2000.
/s/ Robert N. Friedman
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Robert N. Friedman
Chairman and CEO
Attest:
Robert Glass
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Robert Glass
President and Secretary
