RESTATED CERTIFICATE OF INCORPORATION

 

                                       OF

 

                              HARTMARX CORPORATION

 

  FIRST: The name of the corporation (hereinafter "Corporation") is:

 

                              HARTMARX CORPORATION

 

  SECOND: The address, including street, number, city, and county, of the

registered office of the Corporation in the State of Delaware is 306 South

State Street, City of Dover, County of Kent; and the name of the registered

agent of the Corporation in the State of Delaware at such address is United

States Corporation Company.

 

  THIRD: The purposes and powers of the Corporation shall be to conduct any

lawful business, to promote any lawful purpose, and to engage in any lawful act

or activity, anywhere in the world, for which corporations may be organized

under the General Corporation Law of the State of Delaware.

 

  These purposes and powers shall be in no wise limited or restricted by

reference to, or inference from, the terms of any provision of this or any

other Article of this Certificate of Incorporation.

 

  FOURTH: The total number of shares of all classes of stock which the

Corporation shall have authority to issue is 27,500,000. Of these, (i)

25,000,000 shares shall be shares of common stock of the par value of $2.50 per

share (hereinafter sometimes referred to as "Common Stock"); and (ii) 2,500,000

shares shall be shares of preferred stock of the par value of $1.00 per share

(hereinafter sometimes referred to as "Preferred Stock").

 

  The designations, powers, preferences and relative, participating, optional

and other special rights and the qualifications, limitations or restrictions

for each class of stock shall be and be determined as set forth below.

 

  Part 1. Common Stock

 

  1.1 Dividend Rights. Subject to provisions of law and the preferences of the

shares of Preferred Stock and of any other shares ranking prior to the Common

Stock as to dividends, the holders of the Common Stock shall be offered

dividends in such amounts as may be determined by the Board of Directors, which

dividends shall be payable, upon acceptance, on and after such dates as may be

determined by the Board of Directors, if accepted within three years after the

first date so determined for the payment of each such dividend.

 

  1.2 Voting Rights. Except as provided by law and in or pursuant to this

Article Fourth, the holders of the Common Stock shall have one vote for each

share on each matter submitted to a vote of the stockholders of the Corporation

Except as otherwise provided by law, by this Certificate of Incorporation, or

by resolutions of the Board of Directors providing for the issue of any series

of Preferred Stock, the holders of the Common Stock shall have sole voting

power.

 

  1.3 Liquidation Rights. In the event of any liquidation, dissolution or

winding up of the Corporation, whether voluntary or involuntary (herein

sometimes referred to as "liquidation"), after payment or provision for payment

of the debts and o~her liabilities of the Corporation and the preferential

amounts to

 

                                       1

<PAGE>

 

which the holders of any shares ranking prior to the Common Stock in the

distribution of assets shall be entitled upon liquidation, the holders of the

Common Stock shall be entitled to receive, pro rata, all of the remaining

assets of the Corporation available for distribution to its stockholders.

 

  Part 2. Preferred Stock

 

  2.1 Authority of the Board of Directors to Issue in Series. The Preferred

Stock may be issued from time to time in one or more series. Subject to the

provisions of this Certificate of Incorporation, authority is expressly granted

to the Board of Directors to authorize the issue of one or more series of

Preferred Stock and to fix by resolutions providing for the issue of each such

series the designations, relative rights, preferences and limitations of such

series, to the full extent now or hereafter permitted by law, including but not

limited to the following:

 

    (a) The number of shares of such series (which, except as otherwise

  provided by the resolutions of the Board of Directors providing for the

  issue of such series, may subsequently be increased, or decreased to a

  number not less than the number of shares thereof then outstanding, by

  resolutions of the Board of Directors) and the distinctive designation

  thereof;

 

    (b) The dividend rate of such series and any limitations, restrictions or

  conditions on the payment of such dividends;

 

    (c) The price or prices at which, and the terms and conditions on which,

  the shares of such series may be redeemed;

 

    (d) The amounts which the holders of the shares of such series are

  entitled to receive in the event of any liquidation, dissolution or winding

  up of the Corporation;

 

    (e) The terms of any purchase, retirement or sinking fund which may be

  provided for the shares of such series;

 

    (f) The terms and conditions, if any, upon which the shares of such

  series shall be convertible into or exchangeable for shares of any other

  series, class or classes, or other securities;

 

    (g) The voting powers, if any, of such series in addition to the voting

  powers provided by law and in this Article Fourth;

 

    (h) The relative rank of each such series in relation to each other

  series; and

 

    (i) Any other term, condition or provision with respect to any such

  series not inconsistent with the provisions of this Article Fourth.

 

  Part 3. General

 

  No holder of any of the shares of stock of the Corporation, whether now or

hereafter authorized and issued, shall be entitled, as of right, to purchase or

subscribe for (1) any unissued shares of any class, or (2) any additional

shares of any class to be issued by reason of any increase of the authorized

shares of the Corporation of any class, or (3) bonds, certificates of

indebtedness, debentures or other securities convertible into shares of the

Corporation, or carrying any right to purchase shares of any class, but any

such unissued shares or such additional authorized issue of any shares or of

other securities convertible into shares, or carrying any right to purchase

shares, may be issued and disposed of pursuant to resolution of the Board of

Directors to such persons, firms, corporations or associations and upon such

terms as may be deemed advisable by the Board of Directors in the exercise of

its discretion.

 

  FIFTH: Any action required to be, or which may be, taken at any annual or

special meeting of stockholders, may be taken by stockholder consent without a

meeting, in accordance with section 228(a) of the General Corporation Law of

the State of Delaware, except that unanimous written consent of all

 

                                       2

<PAGE>

 

stockholders, or action taken at a stockholders meeting, is required for every

election or removal of directors by stockholders and for every amendment to,

or for repeal of, Article Sixth of this Certificate of Incorporation, and

unanimous written consent of all stockholders or the favorable vote of two-

thirds of all outstanding shares of stock of the Corporation at a meeting of

stockholders is required for every amendment to, or for repeal of, this

Article Fifth of this Certificate of Incorporation.

 

  SIXTH:

 

  1.1 Combinations with an Excess Stockholder. In addition to any approval of

the Board of Directors or any stockholder vote or consent required by the laws

of the State of Delaware or any other provision of this Certificate of

Incorporation in effect at the time of the adoption or authorization of a

Combination, it shall be required for the adoption or authorization of a

Combination with an Excess Stockholder that the following three conditions

shall so fulfilled:

 

    (a) A majority of the Board of Directors shall consist of Disinterested

  Directors and a majority of the Disinterested Directors shall select two

  independent experts who shall be required to give their opinion that the

  terms of the Combination are fair to the holders of outstanding Common

  Stock which are not owned by such Excess Stockholder. Those experts shall

  include as one of the factors that they shall take into account the

  requirement, which is imposed by this Paragraph (a), that the stockholders

  receive their proportionate share of the economic benefits which reasonably

  can be foreseen from the Combination. The Corporation shall pay the

  reasonable fees and expenses associated with the retention of those

  experts.

 

    (b) The affirmative vote or consent of the holders of majority of the

  outstanding Common Stock which are not owned by such Excess Stockholder

  shall be required for the adoption or authorization of a Combination with

  such Excess Stockholder.

 

    (c) A proxy statement which complies with the requirements of the

  Securities Exchange Act of 1934, as amended, shall be mailed to the holders

  of Common Stock for the purpose of soliciting stockholder approval of such

  Combination. The proxy statement shall contain (as exhibits or otherwise)

  the entire opinions of the two independent experts required by Paragraph

  (a) of this Section 1.1.

  1.2 Definitions. For purposes of this Article Sixth:

 

  1.21 "Combination" means a merger or consolidation of the Corporation or any

subsidiary of the Corporation with or into any other corporation, or the sale

or lease of all or a substantial part of the assets of the Corporation or any

subsidiary of the Corporation to any other person, or any sale or lease to the

Corporation, or any subsidiary of the Corporation, in exchange for securities

of the Corporation of any assets having fair market value greater than $5

million controlled by any other person.

 

  1.22 An "Excess Stockholder" is any person who (or which), as of any date,

owns~ ten percent (10%) or more of the outstanding Voting Shares of the

Corporation.

 

  1.23 A "person" includes a natural person, corporation, partnership,

association, joint stock company, trust, unincorporated association or other

entity. When two or more persons act as a partnership, limited partnership,

syndicate, or other group for the purpose of acquiring, holding, or disposing

of common stock, such syndicate or group shall be deemed a person for purposes

of this Article Sixth.

 

  1.24 "Voting Shares" means the issued and outstanding shares of any class of

stock of the Corporation which is entitled to vote for the election of

directors.

 

  1.25 "Ownership" includes beneficial ownership. A beneficial owner of Voting

Shares includes any person who, directly or indirectly, through any contract,

arrangement, understanding, relationship or

 

                                       3

<PAGE>

 

otherwise, has or shares (i) voting power, which includes the power to vote, or

to direct the voting of, the Voting Shares, or (ii) investment power, which

includes the power to dispose of, or to direct the disposition of, the Voting

Shares.

 

  Notwithstanding the foregoing, beneficial ownership shall not include (i)

ownership by registered broker holding Voting Shares in its street name for

customers, or (ii) ownership by a employee plan maintained by the Corporation

in which Voting Shares are held In trust for the Corporation's employees,

provided that each employee is entitled to vote the shares in the trust which

are allocable to him.

 

  1.26 An "Affiliate" of a specified person is a person who directly, or

indirectly through one or more intermediaries, controls, or is controlled by,

or is under common control with, such specified person.

 

  1.27 An "associate" of specified person is (i) any person of which such

specified person is a officer or partner or is the owner of ten percent (10%)

or more of any class of equity securities, (ii) any trust or other estate in

which such specified person owns ten percent (10%) or more of the total

beneficial interest or as to which such specified person serves as trustee or

in similar fiduciary capacity, (iii) any relative or spouse of such specified

person, or any relative of such spouse, who has the same home as such specified

person, (iv) any person who is a director or officer of such specified person

or any corporation which controls or is controlled by such specified person, or

(v) any other member or partner in a partnership, limited partnership,

syndicate or other group, formal or informal, of which such specified person is

a member or partner and which is acting together for the purpose of acquiring,

holding or disposing of securities of the Corporation.

 

  1.28 A "subsidiary" of the Corporation is any company fifty percent (50%) or

more of the voting securities of which are owned by the Corporation.

 

  1.29 A "Disinterested Director" is a Director of the Corporation who (i) is

not and never has been an officer or director of an Excess Stockholder or any

affiliate or association of such Excess Stockholder and is not and has not been

for the past five years an employee of an Excess Stockholder or any affiliate

or associate of such Excess Stockholder; (ii) does not own the lesser of one

percent (1%) or 10,000 shares of any class of equity securities of an Excess

Stockholder or any affiliate or associate of such Excess Stockholder; (iii) is

not the settlor of any trust, and does not serve as the trustee, executor or in

a similar capacity for any trust or estate, which owns the lesser of one

percent (1%) or 10,000 shares of any class of equity securities of any Excess

Stockholder or any affiliate or associate of such Excess Stockholder; (iv) is

not the relative of any person or of the spouse of such person who could not be

a Disinterested Director because of any of the provisions of clauses (i), (ii),

or (iii) above who has the same home as such person; (v) is not the spouse,

brother, sister, son, daughter, father or mother of any person who could not be

a Disinterested Director because of any of the provisions of clauses (i), (ii),

or (iii) above; and (vi) is not otherwise by reason of past, present or

anticipated circumstances unable to act solely in the interest of the

Corporation with respect to the Combination, provided that no officer or

employee of the Corporation shall be disqualified from being a Disinterested

Director solely by reason of being an officer or employee of the Corporation.

 

  1.3 Enforcement. The Board of Directors is specifically authorized to seek

equitable relief, including an injunction, to enforce the provisions of this

Article Sixth.

 

  1.4 Exemption. The Board of Directors is specifically authorized to waive or

to suspend the enforcement of the provisions of this Article Sixth as to any

Person or any events, or to exempt any Person from its requirements before such

Person becomes an Excess Stockholder.

 

  1.5 Amendment. No amendment to this Certificate of Incorporation shall amend,

alter, change or repeal any of the provisions of this Article Sixth unless such

amendment, in addition to receiving any

 

                                       4

<PAGE>

 

stockholder vote or consent required by the laws of the State of Delaware in

effect at the time, shall receive the affirmative vote of the holders of a

majority of the Voting Shares entitled to vote in elections of directors, which

are not owned by any person who (or which) is an Excess Stockholder.

 

  SEVENTH: For the management of the business and for the conduct of the

affairs of the Corporation, and for further definition, limitation and

regulation of the powers of the Corporation and of its directors and of its

stockholders or any class thereof, as the case may be, it is further provided:

 

  1.1 The management of the business and the conduct of the affairs of the

Corporation shall be vested in its Board of Directors. The number of directors

which shall constitute the whole Board of Directors shall be fixed by, or in

the manner provided in, the By-Laws. The phrase "whole Board" and the phrase

"total number of directors" shall be deemed to have the same meaning, to wit,

the total number of directors which the Corporation would have if there were no

vacancies. No election of directors need be by written ballot.

 

  1.2 The original By-Laws of the Corporation shall be adopted by the

Incorporator unless this Certificate of Incorporation shall name the initial

Board of Directors herein. Thereafter, the power to make, alter, amend, change,

or add to or repeal the By-Laws, and to adopt any new By-Law, except a By-Law

classifying directors for election for staggered terms, shall be vested in the

Board of Directors, except with respect to any matter as to which the General

Corporation Law of the State of Delaware explicitly requires action by

stockholders and, as to any such matter, approval of both stockholders and the

Board of Directors shall be required.

 

  1.3 Whenever the Corporation shall be authorized to issue only one class of

stock, each outstanding share shall entitle the holder thereof to notice of,

and the right to vote at, any meeting of stockholders. Whenever the Corporation

shall be authorized to issue more than one class of stock, no outstanding share

of any class of stock which is denied voting power under the provisions of this

Certificate of Incorporation shall entitled the holder thereof to the right to

vote at any meeting of stockholders, except as the provisions of Paragraph (c)

(2) of Section 242 of the General Corporation Law of the State of Delaware

shall otherwise require; provided, that no share of any such class which is

otherwise denied voting power shall entitle the holder thereof to vote upon the

increase or decrease in the number of authorized shares of said class.

 

  EIGHTH: The Corporation shall, to the fullest extent permitted by Section 145

of the General Corporation Law of the State of Delaware, as the same may be

amended and supplemented, indemnify any and all persons whom it shall have

power to indemnify under said Section from and against any and all of the

expenses, liabilities or other matters referred to in or covered by said

Section, and the indemnification provided for herein shall not be deemed

exclusive of any other rights to which those indemnified may be entitled under

any By-Law, agreement, vote of stockholders of disinterested directors or

otherwise, both as to action in his official capacity and as to action in

another capacity while holding such office, and shall continue as to a person

who has ceased to be a director, officer, employee or agent and shall inure to

the benefit of the heirs, executors and administrators of such a person.

 

  NINTH: Whenever a compromise or arrangement is proposed between this

Corporation and its creditors or any class of them and/or between this

Corporation and its stockholders or any class of them, any court of equitable

jurisdiction within the State of Delaware may, on the application in a summary

way of this Corporation or of any creditor or stockholder thereof or on the

application of any receiver or receivers appointed for this Corporation under

the provisions of Section 291 of Title 8 of the Delaware Code or on the

application of trustees in dissolution or of any receiver or receivers

appointed for this Corporation under the provisions of Section 279 of Title 8

of the Delaware Code order a meeting of the creditors or class of creditors,

and/or of the stockholders or class of stockholders of this Corporation,

 

                                       5

<PAGE>

 

as the case may be, to be summoned in such manner as the said court directs. If

a majority in number representing three-fourths in value of the creditors or

class of creditors, and/or of the stockholders or class of stockholders of this

Corporation, as the case may be, agree to any compromise or arrangement and to

any reorganization of this Corporation as a consequence of such compromise or

arrangement, the said compromise or arrangement and the said reorganization

shall, if sanctioned by the court to which the said application has been made,

be binding on all the creditors or class of creditors, and/or on all the

stockholders or class of stockholders, of this Corporation, as the case may be,

and also on this Corporation.

 

  TENTH: The principal office of the Corporation shall be located at such

place, whether within or without the State of Delaware, as may be provided in

the By-Laws.

 

  ELEVENTH: The books of the Corporation may be kept outside the State of

Delaware at such place or places as may from time to time be designated by the

Board of Directors or in the By-Laws of the Corporation.

 

  TWELFTH: The Corporation is to have perpetual existence.

 

  THIRTEENTH: From time to time any of the provisions of this Certificate of

Incorporation may be amended, altered or repealed, and other provisions

authorized by the laws of the State of Delaware at the time in force may be

added or inserted in the manner and at the time prescribed by said laws, and

all rights at any time conferred upon the stockholders of the Corporation by

this Certificate of Incorporation are granted subject to the provisions of this

Article Thirteenth.

[End]

 

 

                            CERTIFICATE OF AMENDMENT
 
                                       OF
 
                     RESTATED CERTIFICATE OF INCORPORATION
 
                                   AS AMENDED
 
                                       OF
 
                              HARTMARX CORPORATION
 
                               ----------------
 
                   Adopted in accordance with the provisions
                   of Section 242 of the General Corporation
                          Law of the State of Delaware
 
                               ----------------
 
  We, John R. Meinert, Chairman, and Carey M. Stein, Secretary, of HARTMARX
CORPORATION, a corporation existing under the laws of the State of Delaware, do
hereby certify as follows:
 
  FIRST: That the name of the corporation is HARTMARX CORPORATION.
 
  SECOND: That the Certificate of Incorporation of the corporation was filed by
the Secretary of State of Delaware on February 10, 1983.
 
  THIRD: That the Restated Certificate of incorporation, as amended, of said
Corporation has been further amended by adding the following Article FOURTEENTH
thereto:
 
    "FOURTEENTH: No director of the Corporation shall be personally liable to
  the Corporation or its stockholders for monetary damages for any breach of
  fiduciary duty as a director, provided that this Article Fourteenth shall
  not eliminate or limit the liability of a director (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,
<PAGE>
 
  (iii) under Section 174 of Title 8 of the Delaware Code, or (iv) for any
  transaction from which the director derived an improper personal benefit.
  The amendment or repeal of this Article Fourteenth shall not increase the
  liability of any director for any act or omission occurring prior to such
  amendment or repeal. If the General Corporation Law of the State of
  Delaware is amended to further eliminate or limit the personal liability of
  directors, then the liability of a director of the Corporation shall be
  eliminated or limited to the fullest extent permitted by the General
  Corporation Law of the State of Delaware, as so amended from time to time."
 
  FOURTH: That such amendment has been duly adopted in accordance with the
provisions of the General Corporation Law of the State of Delaware by the
affirmative vote of the holders of a majority of all outstanding stock entitled
to vote at a meeting of stockholders.
 
  IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do
affirm the foregoing as true under penalties of perjury this 8th day of April,
1987.
 
 
                                          /s/ John R. Meinert
                                          -------------------------------------
                                          John R. Meinert, Chairman
 
Attest:
 
/s/ Carey M. Stein
- -------------------------------------
Carey M. Stein, Secretary

 

CERTIFICATE OF AMENDMENT

TO THE

 CERTIFICATE OF INCORPORATION OF

HARTMARX CORPORATION

 

_________________________________________

 

Pursuant to Sections 242 and 303 of the General

Corporation Law of the State of Delaware

_________________________________________

 

 

Hartmarx Corporation, a Delaware corporation (the “Corporation”), does hereby certify as follows:

 

FIRST: Article FIRST of the Corporation’s Certificate of Incorporation is hereby amended to read in its entirety as set forth below:

 

                        FIRST:   The name of the corporation is XMH Corp. 1 (the “Corporation”).


 

SECOND:  The foregoing amendment was duly adopted in accordance with Sections 242 and 303 of the Delaware General Corporation Law.

 

The making and filing of this Certificate of Amendment to the Certificate of Incorporation of the Corporation has been authorized pursuant to Sections 105, 1107 and 1108 of the Bankruptcy Code and Section 303 of the Delaware General Corporation Law by the Order (A) Approving the Sale of Debtors’ Assets Free and Clear of All Liens, Claims, Encumbrances and Interests (B) Authorizing the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases; (C) Assumption of Certain Liabilities; (D) Authorizing the Termination and Rejection of Certain Executory Contracts; and (E) Granting Certain Related Relief, dated June 25, 2009.

 

IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly executed in its corporate name this 7th day of August, 2009.

 

 

 

HARTMARX CORPORATION

 

 

 

 

 

 

 

By:

/s/ Taras R. Proczko

 

Name:

Taras R. Proczko

 

Title:

Executive Vice President