Exhibit 4.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CHICO'S FAS, INC.
ARTICLE I
Name
The name of this Corporation shall be:
CHICO'S FAS, INC.
ARTICLE II
Term of Existence
This Corporation is to exist perpetually.
ARTICLE III
General Purpose
The general purpose for which this Corporation is organized is the
transaction of any and all lawful business for which corporations may be
incorporated under the Business Corporation Act of the State of Florida, and any
amendments thereto, and in connection therewith, this Corporation shall have and
may exercise any and all powers conferred from time to time by law upon
corporations formed under such Act.
ARTICLE IV
Capital Stock
1. Authorized Capitalization.
(a) The total number of shares of capital stock authorized to
be issued by this Corporation shall be:
2,500,000 shares of preferred stock, par value $0.01 per share
(the "Preferred Stock").
25,000,000 shares of common stock, par value $0.01 per share
(the "Common Stock"); and
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(b) The designation, relative rights, preferences and
liabilities of each class of stock, itemized by class, shall be as follows:
(i) Preferred. Shares of the Preferred Stock may be
issued from time to time in one or more series. The board of directors
of this Corporation (hereafter the "Board of Directors" or "Board") by
resolution shall establish each series of Preferred Stock and fix and
determine the number of shares and the designations, preferences,
limitations and relative rights of each such series, provided that all
shares of the Preferred Stock shall be identical except as to the
following relative rights and preferences, as to which there may be
variations fixed and determined by the Board of Directors between
different series:
(A) The rate or manner of payment of
dividends.
(B) Whether shares may be redeemed and, if
so, the redemption price and the terms and conditions of
redemption.
(C) The amount payable upon shares in the
event of voluntary and involuntary liquidation.
(D) Sinking fund provisions, if any, for the
redemption or purchase of shares.
(E) The terms and conditions, if any, on
which the shares may be converted.
(F) Voting rights, if any.
(G) Any other rights or preferences now or
hereafter permitted by the laws of the State of Florida as
variations between different series of preferred stock.
(ii) Common. Each share of Common Stock shall be
entitled to one vote on all matters submitted to a vote of
stockholders, except matters required to be voted on exclusively by
holders of Preferred Stock or of any series of Preferred Stock. The
holders of Common Stock shall be entitled to such dividends as may be
declared by the Board of Directors from time to time, provided that
required dividends, if any, on the Preferred Stock have been paid or
provided for. In the event of the liquidation, dissolution, or winding
up, whether voluntary or involuntary, of this Corporation, the assets
and funds of this Corporation available for distribution to
stockholders, and remaining after the payment to holders of Preferred
Stock of the amounts to which they are entitled, shall be divided and
paid to the holders of the Common Stock according to their respective
shares.
2. No Preemptive Rights.
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(a) Preferred Stock. Unless otherwise specifically provided in
the terms of the Preferred Stock, the holders of any class of Preferred Stock of
this Corporation shall
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have no preemptive right to subscribe for and purchase their proportionate share
of any additional Preferred Stock (of the same class or otherwise) or Common
Stock issued by this Corporation, from and after the issuance of the shares
originally subscribed for by the stockholders of this Corporation, whether such
additional shares be issued for cash, property, services or any other
consideration and whether or not such shares be presently authorized or be
authorized by subsequent amendment to these Articles of Incorporation.
(b) Common Stock. The holders of Common Stock of this
Corporation shall have no preemptive right to subscribe for and purchase their
proportionate share of any additional Preferred Stock or Common Stock issued by
this Corporation, from and after the issuance of the shares originally
subscribed for by the stockholders of this Corporation, whether such additional
shares be issued for cash, property, services or any other consideration and
whether or not such shares be presently authorized or be authorized by
subsequent amendment to these Articles of Incorporation.
3. Payment for Stock. The consideration for the issuance of shares of
capital stock may be paid, in whole or in part, in cash, in promissory notes, in
other property (tangible or intangible), in labor or services actually performed
for this Corporation, in promises to perform services in the future evidenced by
a written contract, or in other benefits to this Corporation at a fair valuation
to be fixed by the Board of Directors. When issued, all shares of stock shall be
fully paid and nonassessable.
4. Treasury Stock. The Board of Directors of this Corporation shall
have the authority to acquire by purchase and hold from time to time any shares
of its issued and outstanding capital stock for such consideration and upon such
terms and conditions as the Board of Directors in its discretion shall deem
proper and reasonable in the interest of this Corporation.
ARTICLE V
Registered Office and Registered Agent
The registered office of this Corporation shall be located at 15550
McGregor Boulevard, Ft. Myers, Florida 33908 and the registered agent of this
Corporation at such office shall be Jeffrey J. Zwick. This Corporation shall
have the right to change such registered office and such registered agent from
time to time, as provided by law.
ARTICLE VI
Directors
1. Number. The Board of Directors of this Corporation shall consist of
not less than three (3) nor more than nine (9) members, the exact numbers of
directors to be fixed from time to time as provided in the bylaws of this
Corporation.
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2. Classification. Commencing with the 1993 annual meeting of
stockholders, the Board of Directors shall be divided into three classes, Class
I, Class II and Class III, as nearly equal in number as possible. At the 1993
annual meeting of stockholders, directors of the first class (Class I) shall be
elected to hold office for a term expiring at the 1994 annual meeting of
stockholders; directors of the second class (Class II) shall be elected to hold
office for a term expiring at the 1995 annual meeting of stockholders; and
directors of the third class (Class III) shall be elected to hold office for a
term expiring at the 1996 annual meeting of stockholders. At each annual meeting
of stockholders after 1993, the successors to the class of directors whose terms
then shall expire shall be identified as being the same class as the directors
they succeed and elected to hold office for a term expiring at the third
succeeding annual meeting of stockholders.
If the number of directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional directors of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. A director shall hold office until the annual
meeting for the year in which his or her term expires and until his or her
successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by this Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of these Articles of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to Article IV hereof, and such
directors so elected shall not be divided into classes pursuant to this Article
VI unless expressly provided by such terms.
3. Powers. The business and affairs of this Corporation shall be
managed by the Board of Directors, which may exercise all such powers of this
Corporation and do all such lawful acts and things as are not by law directed or
required to be exercised or done by the stockholders.
4. Quorum. A quorum for the transaction of business at all meetings of
the Board of Directors shall be a majority of the number of directors determined
from time to time to comprise the Board of Directors, and the act of a majority
of the directors present at a meeting at which a quorum is present shall be the
act of the directors.
5. Removal. Subject to the rights, if any, of the holders of shares of
Preferred Stock then outstanding, any or all of the directors of this
Corporation may be removed from office for cause by the stockholders of this
Corporation at any annual or special meeting of stockholders by the affirmative
vote of at least 66-2/3% of the outstanding shares of Common Stock of this
Corporation. Notice of any such annual or special meeting of stockholders shall
state that the removal of a director or directors for cause
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is among the purposes of the meeting. Directors may not be removed by the
stockholders without cause.
6. Vacancies. Newly created directorships resulting from any increase
in the number of directors or any vacancy on the Board of Directors resulting
from death, resignation, disqualification, removal 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, or by a sole remaining director,
or by the stockholders. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until such director's successor shall have been elected and qualified. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
7. Nominations and Elections. Subject to the rights, if any, of the
holders of shares of Preferred Stock then outstanding, only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors at meetings of stockholders.
Nominations of persons for election to the Board of Directors of this
Corporation may be made at a meeting of stockholders by or at the direction of:
(a) the Board of Directors; (b) by any nominating committee or person appointed
by the Board; (c) or by any stockholder of this Corporation entitled to vote for
the election of directors at the meeting who complies with the notice procedures
set forth in this Article VI, Section 7.
Nominations by stockholders shall be made pursuant to timely notice in
writing to the Secretary of this Corporation. To be timely, a stockholder's
notice must be delivered to, or mailed and received at, the principal executive
offices of this Corporation not less than 60 days prior to the date of the
meeting at which the director(s) are to be elected, regardless of any
postponements, deferrals or adjournments of that meeting to a later date;
provided, however, that if less than 70 days' notice or prior public disclosure
of the date of the scheduled meeting is given or made, notice by the
stockholder, to be timely, must be so delivered or received not later than the
close of business on the tenth day following the earlier of the day on which
notice was given or such public disclosure was made.
A stockholder's notice to the Secretary shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of capital stock of this Corporation which are
beneficially owned by the person and (iv) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to Schedule 14A under the Securities Exchange Act
of 1934, as amended; and (b) as to the stockholder giving the notice (i) the
name and address, as they appear on this Corporation's books, of the stockholder
and (ii) the class and number of shares of this Corporation's stock which are
beneficially owned by the stockholder on the date of such stockholder notice.
This Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by this Corporation to
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determine the eligibility of such proposed nominee to serve as a director of
this Corporation.
The presiding officer of the meeting shall determine and declare at the
meeting whether the nomination was made in accordance with the terms of this
Article VI, Section 7. If the presiding officer determines that a nomination was
not made in accordance with the terms of this Article VI, Section 7, he or she
shall so declare at the meeting and any such defective nomination shall be
disregarded.
ARTICLE VII
Address
The address of the principal office and mailing address of this
Corporation shall be:
15550 McGregor Boulevard
Ft. Myers, Florida 33908
ARTICLE VIII
Stockholder Meetings
1. Annual Meetings. At an annual meeting of stockholders, only such
business shall be conducted, and only such proposals shall be acted upon, as
shall have been brought before the annual meeting (a) by, or at the direction
of, the Board of Directors, or (b) by any stockholder of this Corporation who
complies with the notice procedures set forth in this Article VIII, Section 1
and the requirements of Rule 14a-8 under the Securities Exchange Act of 1934.
For a proposal to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of this Corporation. To be timely, a stockholder's notice must be
delivered to, or mailed and received at, the principal executive offices of this
Corporation not less than 60 days prior to the scheduled annual meeting,
regardless of any postponements, deferrals or adjournments of that meeting to a
later date; provided, however, that if less than 70 days' notice or prior public
disclosure of the date of the scheduled annual meeting is given or made, notice
by the stockholder, to be timely, must be so delivered or received not later
than the close of business on the tenth day following the earlier of the day on
which such notice of the date of the scheduled annual meeting was given or the
day on which such public disclosure was made.
A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (a) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (b) the name and
address, as they appear on this
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Corporation's books, of the stockholder proposing such business and any other
stockholders known by such stockholder to be supporting such proposal, (c) the
class and number of shares of this Corporation's stock which are beneficially
owned by the stockholder on the date of such stockholder notice and by any other
stockholders known by such stockholder to be supporting such proposal on the
date of such stockholder notice, and (d) any financial interest of the
stockholder in such proposal.
The presiding officer of the annual meeting shall determine and declare
at the annual meeting whether the stockholder proposal was made in accordance
with the terms of this Article VIII, Section 1. If the presiding officer
determines that a stockholder proposal was not made in accordance with the terms
of this Article VIII, Section 1, he or she shall so declare at the annual
meeting and any such proposal shall not be acted upon at the annual meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but, in connection with such reports, no
new business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
2. Special Meetings. Special meetings of the stockholders of this
Corporation for any purpose or purposes may be called at any time by (a) the
Board of Directors; (b) the Chairman of the Board of Directors (if one is so
appointed); (c) the President of this Corporation; or (d) by holders of not less
than 25% of all the votes entitled to be cast on any issue proposed to be
considered at the proposed special meeting, if such stockholders sign, date and
deliver to this Corporation's secretary one or more written demands for the
meeting describing the purpose or purposes for which it is to be held. Special
meetings of the stockholders of this Corporation may not be called by any other
person or persons.
At any special meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been set
forth in the notice of such special meeting.
3. Written Consents. Effective beginning as of June 1, 1993, any action
required or permitted to be taken at any annual or special meeting of
stockholders of this Corporation may be taken only upon the vote of such
stockholders at an annual or special meeting duly called in accordance with the
terms of this Article VIII, Section 1 and 2, and may not be taken by written
consent of such stockholders.
ARTICLE IX
Amendments
This Corporation reserves the right to amend, alter, change or repeal
any provisions contained in these Articles of Incorporation in the manner now or
hereafter prescribed by statute, and all rights conferred upon the stockholders
herein are subject to this reservation. Notwithstanding anything contained in
these Articles of Incorpora-
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tion to the contrary, the affirmative vote of at least 66-2/3% of the
outstanding shares of Common Stock of this Corporation shall be required to
amend or repeal Articles VI or VIII of these Articles of Incorporation or to
adopt any provision inconsistent therewith.
ARTICLE X
Bylaws
1. Adoption, Amendment, Etc. The power to adopt the bylaws of this
Corporation, to alter, amend or repeal the bylaws, or to adopt new bylaws, shall
be vested in the Board of Directors of this Corporation; provided, however, that
any bylaw or amendment thereto as adopted by the Board of Directors may be
altered, amended, or repealed by vote of the stockholders entitled to vote
thereon, or a new bylaw in lieu thereof may be adopted by the stockholders, and
the stockholders may prescribe in any bylaw made by them that such bylaw shall
not be altered, amended or repealed by the Board of Directors.
2. Scope. The bylaws of this Corporation shall be for the government of
this Corporation and may contain any provisions or requirements for the
management or conduct of the affairs and business of this Corporation, provided
the same are not inconsistent with the provisions of these Articles of
Incorporation, or contrary to the laws of the State of Florida or of the United
States.
IN WITNESS WHEREOF, CHICO'S FAS, INC. has caused these Amended and
Restated Articles of Incorporation to be executed and acknowledged by its
President and Secretary this 23rd day of March, 1993.
ATTEST: CHICO'S FAS, INC.
(CORPORATE SEAL)
/s/ Helene B. Gralnick By: /s/ Jeffrey J. Zwick
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Helene B. Gralnick, Secretary Jeffrey J. Zwick, President / Registered
Agent
I hereby am familiar with and accept the duties and responsibilities as
registered agent for Chico's FAS, Inc.
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CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CHICO'S FAS, INC.
Chico's FAS, Inc. (the "Corporation"), a corporation organized and
existing under the laws of the State of Florida, in order to amend its Articles
of Incorporation, in accordance with the requirements of Chapter 607, Florida
Statutes, does hereby, by and through the undersigned, its President and
Secretary, submit this Certificate of Amendment of Amended and Restated Articles
of Incorporation and in connection therewith does hereby state as follows:
1. The name of the Corporation is Chico's FAS, Inc.
2. This Certificate of Amendment has been adopted and approved
in connection with a share division pursuant to Section 607.10025,
Florida Statutes. The resolution approving the division of shares was
adopted and approved by the Board of Directors of the Corporation on
December 14, 1999, without shareholder action. Shareholder action was
not required on the authority of and pursuant to Section 607.10025(2),
Florida Statutes.
3. The amendment to the Amended and Restated Articles of
Incorporation being effectuated hereby does not adversely affect the
rights or preferences of the holders of outstanding shares of any class
or series and does not result in the percentage of authorized shares
that remain unissued after the division exceeding the percentage of
authorized shares that were unissued before the division.
4. All shares of the Corporation's Common Stock outstanding on
December 27, 1999 are subject to the division, each share to be divided
into two shares. The par value of the shares shall remain unchanged.
5. The Amendment to the Corporation's Amended and Restated
Articles of Incorporation as adopted by the Board of Directors of the
Corporation and as effected hereby (the "Amendment") is to delete in
its entirety Section 1(a) of Article IV of the Amended and Restated
Articles of Incorporation of the Corporation, and in its place
substitute the following:
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(a) The total number of shares of capital stock
authorized to be issued by this Corporation shall be:
2,500,000 shares of preferred stock, par value $.01
per share (the "Preferred Stock").
50,000,000 shares of common stock, par value $.01 per
share (the "Common Stock").
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6. The Amendment effected hereby shall be effective
immediately upon filing by the Secretary of State of the State of
Florida.
IN WITNESS WHEREOF, the foregoing instrument has been duly executed and
delivered by the Corporation by its undersigned officer and director this 27th
day of December, 1999.
CHICO'S FAS, INC.
By: /s/ Marvin J. Gralnick
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Marvin J. Gralnick, President and member of the
Board of Directors of the Company
