<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 21, 1994
-------------------------------------------------------------------------
REGISTRATION NO. ________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
J. C. PENNEY COMPANY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-5583779
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
6501 Legacy Drive
Plano, Texas 75024-3698
(Address of principal executive offices, including zip code)
J. C. PENNEY COMPANY, INC. SAVINGS, PROFIT-SHARING AND
STOCK OWNERSHIP PLAN
(Full title of the plan)
CHARLES R. LOTTER, ESQ.
Executive Vice President, Secretary and General Counsel
J. C. PENNEY COMPANY, INC.
6501 Legacy Drive
Plano, Texas 75024-1109
(214) 431-1201
(Name, address, and telephone number, including area code, of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Proposed
maximum
Amount offering price Proposed maximum Amount of
Title of securities to be per share aggregate offering registration
to be registered registered price fee
<S> <C> <C> <C> <C>
===========================================================================================================================
Common Stock of 50c par value
("Penney Stock") of J. C. Penney
Company, Inc. ("Company")
including the associated rights to
purchase shares of the Company's 8,000,000 $41.3125** $330,500,000** $113,966**
Series A Junior Participating shares*
Preferred Stock, without par value
("Rights")
===========================================================================================================================
</TABLE>
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
* The J. C. Penney Company, Inc. Savings, Profit-Sharing and Stock
Ownership Plan ("Plan") provides that the number of shares available
under the Plan will be equitably adjusted in the event of a stock
dividend, stock split, recapitalization or similar event. Accordingly,
this Registration Statement covers, in addition to the number of
shares of Penney Stock stated above, an indeterminate number of shares
which by reason of such event may become available under the Plan.
** Estimated solely for the purpose of determining the amount of the
registration fee in accordance with Rule 457(h) and based on the
average of the high and low sales prices of Penney Stock as reported
in the New York Stock Exchange Composite Transactions for December 20,
1994.
<PAGE>
Pursuant to General Instruction E to Form S-8 and except as otherwise indicated
herein, the contents of the Company's Registration Statement on Form S-8
(Commission File No. 33-59666) relating to 2,000,000 shares of Penney Stock and
the Rights associated therewith (as adjusted pursuant to a subsequent stock
split) are hereby incorporated by reference herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. - EXHIBITS
See Exhibit Index at page 2.
In lieu of an opinion of counsel concerning compliance with the requirements of
the Employee Retirement Income Security Act of 1974, as amended, and an Internal
Revenue Service determination letter that the Plan is qualified under Section
401 of the Internal Revenue Code, the registrant has submitted the Plan and any
amendments thereto to the Internal Revenue Service in a timely manner and hereby
undertakes to make all changes required by the Internal Revenue Service in order
to qualify the Plan.
1
<PAGE>
EXHIBIT INDEX
-------------
These Exhibits are numbered in accordance with the Exhibit Table of Item 601 of
Regulation S-K.
Exhibit No. Description
- ----------- -----------
(3) (ii) By-Laws of J. C. Penney Company, Inc., as amended on November
9, 1994.
(10) J. C. Penney Company, Inc. 1995 Deferred Compensation Plan.
(23) (i) Consent of KPMG Peat Marwick LLP.
(24) Power of Attorney.
2
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Plano, State of
Texas, on the 21st day of December, 1994.
J. C. PENNEY COMPANY, INC.
/s/ CHARLES R. LOTTER
By __________________________
Charles R. Lotter, Esq.
Executive Vice President,
Secretary and General
Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
W. R. HOWELL * Chairman of the Board December 21, 1994
- ------------------- and Chief Executive Officer
W. R. HOWELL (principal executive
officer); Director
R. E. NORTHAM * Executive Vice President and December 21, 1994
- ------------------- Chief Financial Officer
R. E. NORTHAM (principal financial
officer)
D. A. MCKAY * Vice President and December 21, 1994
- ------------------- Controller (principal
D. A. MCKAY accounting officer)
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
M. A. BURNS * Director December 21, 1994
- -------------------
M. A. BURNS
C. H. CHANDLER * Director December 21, 1994
- -------------------
C. H. CHANDLER
V. E. JORDAN, JR. * Director December 21, 1994
- -------------------
V. E. JORDAN, JR.
GEORGE NIGH * Director December 21, 1994
- -------------------
GEORGE NIGH
Director December 21, 1994
- -------------------
J. C. PFEIFFER
Director December 21, 1994
- -------------------
C. S. SANFORD, JR.
J. D. WILLIAMS * Director December 21, 1994
- -------------------
J. D. WILLIAMS
</TABLE>
/s/ C. R. LOTTER
* By: ___________________
C. R. Lotter, Esq.
Attorney-in-fact
The Plan. Pursuant to the requirements of the Securities Act of 1933,
--------
the trustees (or other persons who administer the employee benefit plan)
have duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Plano, State of
Texas, on the 21st day of December, 1994.
J. C. PENNEY COMPANY, INC.
SAVINGS, PROFIT-SHARING AND STOCK OWNERSHIP PLAN
/s/ J. F. HUNDLEY
By ___________________________________
J. F. HUNDLEY
Member of Benefits Administration
Committee
4
<PAGE>
EXHIBIT 3(ii)
================================================================================
J. C. PENNEY COMPANY, INC.
(A Delaware Corporation)
-------------------------------
BY-LAWS
As amended to November 9, 1994
-------------------------------
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Article Title Pages
- --------- ----- -----
<S> <C> <C>
I Offices 1
II Meetings of Stockholders 2-11
III Board of Directors 11-19
IV Committees 19-23
V Officers 23-28
VI Contracts, Loans, Checks,
Drafts, Bank Accounts, Etc. 29-30
VII Books and Records 31-32
VIII Shares of Stock and Their
Transfer 32-33
IX Dividends and Reserves 33
X Indemnification of Directors,
Officers, Employees, and Agents 34
XI Ratification 35-36
XII Seal 36
XIII Fiscal Year 36
XIV Waiver of Notice 36-37
XV Emergency By-laws 37-40
XVI Amendments 40
</TABLE>
<PAGE>
J. C. PENNEY COMPANY, INC.
(A Delaware Corporation)
BY-LAWS
--------------------------
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of J. C. Penney
-----------------
Company, Inc. (hereinafter called the Company) in the State of Delaware shall be
at 1209 Orange Street, City of Wilmington, County of New Castle. The name of
the registered agent in charge thereof is The Corporation Trust Company.
SECTION 2. Other Offices. The Company may also have an office or
-------------
offices at such other place or places either within or without the State of
Delaware as from time to time the Board of Directors may determine or the
business of the Company may require.
<PAGE>
2
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Annual Meetings. The annual meeting of stockholders for the
---------------
election of directors and for the transaction of such other business as may come
before the meeting shall be held at such place and time as shall be fixed by the
Board of Directors and specified in the notice of the meeting, on the third
Tuesday in May in each year, or on such other day as shall be fixed by the Board
of Directors and specified in the notice of the meeting. If the election of
directors shall not be held on the day designated herein or the day fixed by the
Board, as the case may be, for any annual meeting, or on the day of any
adjourned session thereof, the Board of Directors shall cause the election to be
held at a special meeting as soon thereafter as convenient. At such special
meeting, the stockholders may elect the directors and transact other business
with the same force and effect as at an annual meeting duly called and held.
SECTION 2. Special Meetings. Any action required or permitted to be
----------------
taken by the holders of the Common Stock of the Company must be effected at a
duly called annual or special meeting of such holders and may not be effected by
any consent in writing by such holders. A special meeting of stockholders for
any purpose or purposes, unless otherwise prescribed by the laws of the State of
Delaware or by the certificate of incorporation, may be called at
<PAGE>
3
any time only by the Board of Directors pursuant to a resolution approved by a
majority of the Board of Directors. Special meetings of stockholders may be
held at such place, on such date, and at such time as shall be designated by
resolution of the Board of Directors.
SECTION 3. Notice of Meetings. Except as otherwise required by the laws
------------------
of the State of Delaware or the certificate of incorporation, notice of each
annual or special meeting of stockholders shall be given not less than 10 nor
more than 60 days before the day on which the meeting is to be held to each
stockholder of record entitled to vote at the meeting by delivering a written
notice thereof to him or her personally, or by depositing a copy of the notice
in the United States mail, postage prepaid, directed to him or her at his or her
address as it appears on the records of the Company, or by transmitting the
notice thereof to him or her at such address by telegram, cable, radiogram,
telephone facsimile, or other appropriate written communication. Except when
expressly required by the laws of the State of Delaware, no publication of any
notice of a meeting of stockholders shall be required. Every such notice shall
state the place, date, and time of the meeting, and in the case of a special
meeting, the purpose or purposes thereof. Notice of any adjourned session of a
meeting of stockholders shall not be required to be given if the place, date,
and time thereof are announced at the meeting at which the
<PAGE>
4
adjournment is taken. If, however, the adjournment is for more than 30 days, or
if after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
SECTION 4. List of Stockholders. It shall be the duty of the officer
--------------------
who shall have charge of the stock ledger of the Company to prepare and make, at
least 10 days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least 10 days prior to the meeting, either at
a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected, for any purpose germane to the meeting, by any stockholder who is
present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine such list or to vote in person or by proxy at
the meeting.
<PAGE>
5
SECTION 5. Quorum. At each meeting of stockholders, the holders of a
------
majority of the issued and outstanding shares of stock of the Company entitled
to vote at the meeting, present in person or represented by proxy, shall
constitute a quorum for the transaction of business. In the absence of a quorum
at any meeting, or any adjourned session thereof, the stockholders of the
Company present in person or represented by proxy and entitled to vote, by
majority vote, or in the absence of all the stockholders, any officer entitled
to preside or act as secretary at the meeting, may adjourn the meeting from time
to time until a quorum shall be present. At any such adjourned meeting at which
a quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally called.
SECTION 6. Organization and Conduct of Meeting. At each meeting of
-----------------------------------
stockholders, the Chairman of the Board or in his or her absence a Vice Chairman
of the Board or in his or her absence a chairman chosen by the vote of a
majority in interest of the stockholders present in person or represented by
proxy and entitled to vote thereat, shall act as chairman. The Secretary or in
his or her absence an Assistant Secretary or in the absence of the Secretary and
all Assistant Secretaries a person whom the chairman of the meeting shall
appoint shall act as secretary of the meeting and keep a record of the
proceedings thereof. The date and time of the opening and the closing of the
polls for each matter upon which the
<PAGE>
6
stockholders will vote at a meeting shall be announced at the meeting by the
person presiding over the meeting. The Board of Directors may adopt by
resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem necessary, appropriate, or convenient. Except to
the extent inconsistent with such rules and regulations as adopted by the Board
of Directors, the chairman of any meeting of stockholders shall have the right
and authority to prescribe such rules, regulations, and procedures and to do all
such acts as, in the judgment of such chairman, are necessary, appropriate, or
convenient for the proper conduct of the meeting. Such rules, regulations, or
procedures, whether adopted by the Board of Directors or prescribed by the
chairman of the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting, (ii) rules and
procedures for maintaining order at the meeting and the safety of those present,
(iii) limitations on attendance at or participation in the meeting to
stockholders of record of the Company, their duly authorized and constituted
proxies, or such other persons as the chairman of the meeting shall determine,
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof, and (v) limitations on the time allotted to questions or
comments by participants. Unless, and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of
<PAGE>
7
stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
SECTION 7. Notification of Stockholder Business. At a meeting of the
------------------------------------
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before a meeting, business
must be (i) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors, (ii) otherwise properly
brought before the meeting by or at the direction of the Board of Directors, or
(iii) in the case of an annual meeting of stockholders, otherwise properly
requested to be brought before the meeting by a stockholder of record entitled
to vote at the meeting and otherwise a proper subject to be brought before such
meeting. For business to be properly requested to be brought before an annual
meeting of stockholders, any stockholder who desires to bring any matter (other
than the election of directors, which is provided for in Section 15 of Article
III of these By-laws) before such meeting and who is entitled to vote on such
matter must give timely written notice of such stockholder's desire to bring
such matter before the meeting, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the Company not later than 90 days in
advance of such meeting. A stockholder's notice to the Secretary in this regard
shall set forth: (1) the name and address of the stockholder proposing such
business, (2) a
<PAGE>
8
representation that such stockholder is a record owner of stock of the Company
entitled to vote at the meeting and intends to appear in person at the meeting
to present the described business, (3) a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting, and (4) any material interest of the stockholder in
such business. Notwithstanding anything in these By-laws to the contrary, no
business may be conducted at a meeting except in accordance with the procedures
set forth in this Article II of these By-laws. The chairman of a meeting may,
if the facts warrant, or if not in accordance with applicable law, determine and
declare to the meeting that business proposed to be brought before a meeting was
not a proper subject therefor or was not properly brought before the meeting in
accordance with the provisions of this Section 7, and if he should so determine,
he may so declare to the meeting, and any such business not a proper subject
matter or not properly brought before the meeting shall not be transacted.
SECTION 8. Voting; Proxies; Ballots. Except as otherwise provided in the
------------------------
laws of the State of Delaware or the certificate of incorporation, at every
meeting of stockholders, each stockholder of the Company shall be entitled to
one vote at the meeting in person or by proxy for each share of stock having
voting rights registered in his or her name on the books of the Company on the
date fixed pursuant to Section 3 of Article VII of these By-laws as
<PAGE>
9
the record date for the determination of stockholders entitled to vote at the
meeting. Shares of its own stock belonging to the Company shall not be voted
directly or indirectly (except for shares of stock held by the Company in a
fiduciary capacity). The vote of any stockholder entitled thereto may be cast
in person or by his or her proxy appointed by an instrument in writing, or by a
telegram, cablegram, or other means of electronic transmission, to the full
extent permitted by the laws of the State of Delaware; provided, however, that
no proxy shall be voted after three years from its date, unless the proxy
provides for a longer period. At all meetings of stockholders, each question
(except where other provision is made in the laws of the State of Delaware, in
the certificate of incorporation, or in these By-laws) shall be decided by the
vote of the holders of shares of stock having a majority of the votes which
could be cast by the holders of all shares of stock outstanding and entitled to
vote thereon. All elections of directors and all votes on matters set forth in
the notice of meeting shall be by written ballot stating the number of shares
voted, but except as otherwise provided in the laws of the State of Delaware,
the vote on any other matter need not be by ballot unless directed by the
chairman of the meeting. On a vote by ballot, each ballot shall be signed by
the stockholder voting, or by his or her proxy, if there be such proxy, and
shall state the number of shares voted.
<PAGE>
10
SECTION 9. Inspectors of Election. The Company shall, in advance of any
----------------------
meeting of stockholders, appoint one or more inspectors of election, who may be
employees of the Company, to act at the meeting or any adjournment thereof and
to make a written report thereof. The Company may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. In the event
that no inspector so appointed or designated is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath to execute
faithfully the duties of inspector with strict impartiality and according to the
best of his or her ability.
The inspector or inspectors so appointed or designated shall (i) ascertain the
number of shares of stock of the Company outstanding and the voting power of
each such share, (ii) determine the shares of stock of the Company represented
at the meeting and the validity of proxies and ballots, (iii) count all votes
and ballots, (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares of stock of the Company
represented at the meeting and such inspectors' count of all votes and ballots.
Such certification and
<PAGE>
11
report shall specify such other information as may be required by law. In
determining the validity and counting of proxies and ballots cast at any meeting
of stockholders of the Company, the inspectors may consider such information as
is permitted by applicable law. No person who is a candidate for an office at
an election may serve as an inspector at such election.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The business, property, and affairs of the
--------------
Company shall be managed by or under the direction of the Board of Directors.
In addition to the powers and authorities expressly conferred upon the Board of
Directors by the certificate of incorporation and these By-laws, the Board of
Directors may exercise all such powers of the Company and do all such lawful
acts and things as are not by the laws of the State of Delaware, the certificate
of incorporation, or these By-laws directed or required to be exercised or done
by the stockholders.
SECTION 2. Eligibility. No person may serve as a director unless he or
-----------
she is a stockholder of the Company. A person shall not be eligible for re-
election as a director after attaining age 70.
SECTION 3. Number and Classification of Directors. Except as otherwise
--------------------------------------
provided for or fixed by or pursuant to the provisions of
<PAGE>
12
Article Fourth of the certificate of incorporation relating to the rights of the
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation to elect additional directors under
specified circumstances, the number of directors of the Company which shall
constitute the whole Board of Directors shall be such number, not less than
three, as from time to time shall be fixed by the Board of Directors. The
directors, other than those who may be elected pursuant to the aforesaid
provisions of said Article Fourth, shall be classified by the Board of
Directors, with respect to the duration of the term for which they severally
hold office, into three classes as nearly equal in number as possible. Such
classes shall originally consist of a first class of four directors who shall be
elected at the annual meeting of stockholders held in 1985 for a term expiring
at the annual meeting of stockholders to be held in 1986, and election and
qualification of their respective successors; a second class of five directors
who shall be elected at the annual meeting of stockholders held in 1985 for a
term expiring at the annual meeting of stockholders to be held in 1987, and
election and qualification of their respective successors; and a third class of
five directors who shall be elected at the annual meeting of stockholders held
in 1985 for a term expiring at the annual meeting of stockholders to be held in
1988, and election and qualification of their respective successors. At each
annual
<PAGE>
13
meeting of stockholders beginning in 1986, the successors of the class of
directors whose term expires at that meeting shall be elected for a term
expiring at the annual meeting of stockholders held in the third year following
the year of election of such directors and election and qualification of their
respective successors. The Board of Directors shall increase or decrease the
number of directors in one or more classes as may be appropriate whenever it
increases or decreases the number of directors pursuant to this Section 3, in
order to ensure that the three classes shall be as nearly equal in number as
possible. Each director of the Company shall hold office as provided above and
until his or her successor shall have been duly elected and qualified.
SECTION 4. Quorum and Manner of Acting. A majority of the directors at
---------------------------
the time in office shall constitute a quorum for the transaction of business at
any meeting, which in no case shall be less than one third of the total number
of directors. Except as otherwise provided in the laws of the State of
Delaware, the certificate of incorporation, or these By-laws, the affirmative
vote of a majority of the directors present at any meeting at which a quorum is
present shall be required for the taking of any action by the Board of
Directors. In the absence of a quorum at any meeting of the Board, the meeting
need not be held, or a majority of the directors present thereat or if no
director be present, the Secretary, may adjourn the meeting from time to time
until a quorum
<PAGE>
14
shall be present. Notice of any adjourned meeting need not be given. At any
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally called.
Members of the Board of Directors may participate in a meeting of the Board by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in the meeting by such means shall constitute presence in person
at the meeting.
SECTION 5. Offices; Places of Meetings. The Board of Directors may hold
---------------------------
meetings and have an office or offices at such place or places within or without
the State of Delaware as the Board may from time to time determine, and in the
case of meetings, as shall be specified or fixed in the respective notices or
waivers of notice thereof, except where other provision is made in the laws of
the State of Delaware, the certificate of incorporation, or these By-laws.
SECTION 6. Annual Meeting. The Board of Directors shall meet for the
--------------
purpose of organization, the election of officers, and the transaction of other
business, at the time of each annual election of directors. Such meeting may be
held prior to the stockholders' meeting, if deemed necessary and appropriate,
and if so held, would be held subject to the election of directors at the
upcoming stockholders' meeting; provided, however, that no individual not
<PAGE>
15
then a director may act as a director prior to his or her election at the
upcoming stockholders' meeting. Such meeting shall be called and held at the
place and time specified in the notice or waiver and held at the place and time
specified in the notice or waiver of notice thereof as in the case of a special
meeting of the Board of Directors.
SECTION 7. Regular Meetings. Regular meetings of the Board of Directors
----------------
shall be held as the Board of Directors shall determine, at such times and
places as shall from time to time be determined by the Board, except that in
May, the regular meeting shall be held immediately following the adjournment of
the annual meeting of the Board. Notice of regular meetings need not be given.
SECTION 8. Special Meetings; Notice. Special meetings of the Board of
------------------------
Directors shall be held whenever called by the Chairman of the Board or a Vice
Chairman of the Board or by any two of the directors. Notice of each such
meeting shall be mailed to each director, addressed to such director at his or
her residence or usual place of business, at least two days before the day on
which the meeting is to be held, or shall be sent to such director at his or her
residence or such place of business by telegram, cable, radiogram, telephone
facsimile, or other appropriate written communication, or delivered personally
or by telephone, not later than the day before the day on which the meeting is
to be held. Each such notice shall state the time and place of the meeting but
<PAGE>
16
need not state the purposes thereof except as otherwise herein expressly
provided.
SECTION 9. Organization. At each meeting of the Board of Directors, the
------------
Chairman of the Board or in his or her absence, a Vice Chairman of the Board or
in his or her absence, a director chosen by a majority of the directors present,
shall act as chairman. The Secretary or in his or her absence, an Assistant
Secretary or in the absence of the Secretary and all Assistant Secretaries, a
person whom the chairman of the meeting shall appoint, shall act as secretary of
the meeting and keep a record of the proceedings thereof.
SECTION 10. Order of Business. At all meetings of the Board of
-----------------
Directors, business shall be transacted in the order determined by the Board.
SECTION 11. Resignation. Any director may resign at any time by giving
-----------
written notice of his or her resignation to the Board of Directors or to the
Chairman of the Board, a Vice Chairman of the Board, or the Secretary. Such
resignation shall take effect at the date of receipt of the notice or at any
later time specified therein; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 12. Removal of Directors. Any director may be removed, either
--------------------
with or without cause, at any time, by the affirmative vote of at least 80% of
the combined voting power of the
<PAGE>
17
then-outstanding shares of all classes and series of stock of the Company
entitled to vote generally in the election of directors, voting together as a
single class, at a special meeting of stockholders duly called and held for the
purpose or at an annual meeting of stockholders.
SECTION 13. Vacancies. Any vacancy in the Board of Directors caused by
---------
death, resignation, removal, disqualification, increase in the number of
directors, or any other cause, shall be filled by a majority vote of the
remaining directors, even though less than a quorum, or by the stockholders at a
special meeting duly called and held for the purpose or at an annual meeting,
and each director so elected shall hold office for the remainder of the full
term of the class in which the new directorship was created or the vacancy
occurred.
SECTION 14. Remuneration. Directors and members of any committee may
------------
receive such fixed sum per meeting attended, or such annual sum or sums, and
such reimbursement for expenses of attendance at meetings, as may be determined
from time to time by resolution of the Board of Directors. Nothing herein
contained shall be construed to preclude any director from serving the Company
in any other capacity and receiving proper compensation therefor.
SECTION 15. Notification of Nominations. Nominations for the election
---------------------------
of directors may be made by the Board of Directors or by
<PAGE>
18
any stockholder entitled to vote for the election of directors. Any stockholder
entitled to vote for the election of directors at a meeting may nominate persons
for election as directors only if written notice of such stockholder's intent to
make such nomination is given, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the Company, not later than (i) with
respect to an election to be held at an annual meeting of stockholders, 90 days
in advance of such meeting, and (ii) with respect to an election to be held at a
special meeting of stockholders for the election of directors, the close of
business on the seventh day following the date on which notice of such meeting
is first given to stockholders. Each such notice shall set forth: (a) the name
and address of the stockholder who intends to make the nomination and of the
person or persons to be nominated, (b) a representation that such stockholder is
a holder of record of stock of the Company entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice, (c) a description of all arrangements or
understandings between such stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such stockholder, (d) such other information
regarding each nominee proposed by such stockholder as would have been required
to be included in a proxy statement filed pursuant to the proxy rules
<PAGE>
19
of the Securities and Exchange Commission had each nominee been nominated, or
intended to be nominated by the Board of Directors, and (e) the consent of each
nominee to serve as a director of the Company if so elected. The chairman of
the meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedures.
SECTION 16. Action of the Board of Directors by Consent. 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 of such committee, as the case may be, consent thereto in writing and the
writing or writings are filed with the minutes of proceedings of the Board or
such committee.
ARTICLE IV
COMMITTEES
SECTION 1. Executive Committee. The Board of Directors may, by
-------------------
resolution passed by a majority of the whole Board, designate directors of the
Company, in such number as the Board shall see fit, but not less than two, as an
Executive Committee which shall have and may exercise, during intervals between
meetings of the Board, the powers and authority of the Board of Directors in the
management of the business and affairs of the Company, and may authorize the
seal of the Company to be affixed to all papers which
<PAGE>
20
may require it; but the Executive Committee shall not have the power or
authority in reference to filling vacancies in its membership, amending the
certificate of incorporation (except that the Executive Committee (or any
committee designated pursuant to Section 6 of this Article IV) may, to the full
extent permitted by the laws of the State of Delaware, make determinations with
respect to the issuance of stock of the Company), adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease, or
exchange of all or substantially all the Company's property and assets,
recommending to the stockholders a dissolution of the Company or a revocation of
a dissolution, amending these By-laws, or declaring a dividend. The Executive
Committee (or any committee designated pursuant to Section 6 of this Article IV)
shall have the power or authority to authorize the issuance of stock of the
Company. The Board of Directors shall designate one of the members of the
Executive Committee to be the Chairman of the Committee. Each member of the
Executive Committee shall continue to act as such only so long as he or she
shall be a director of the Company and only during the pleasure of a majority of
the whole Board of Directors.
SECTION 2. Meetings. Regular meetings of the Executive Committee, of
--------
which no notice shall be necessary, shall be held on such days and at such
places, within or without the State of Delaware, as shall be fixed by resolution
adopted by a majority of,
<PAGE>
21
and communicated to all, the members of the Executive Committee. Special
meetings of the Committee may be called at the request of any member. Notice of
each special meeting of the Committee shall be mailed to each member thereof,
addressed to such member at his or her residence or usual place of business, at
least two days before the day on which the meeting is to be held, or shall be
sent to such member at his or her residence or such place of business by
telegram, cable, radiogram, telephone facsimile, or other appropriate written
communication, or delivered personally or by telephone, not later than the day
before the day on which the meeting is to be held. Each such notice shall state
the time and place of the meeting but need not state the purposes thereof except
as otherwise herein expressly provided. Subject to the provisions of this
Article IV, the Executive Committee, by resolution of a majority of all its
members, shall fix its own rules of procedure. The Executive Committee shall
keep a record of its proceedings and report them to the Board of Directors at
the next regular meeting thereof after such proceedings shall have been taken.
SECTION 3. Quorum and Manner of Acting. Not less than a majority of the
---------------------------
members of the Executive Committee then in office shall constitute a quorum for
the transaction of business, and the act of a majority of those present at a
meeting thereof at which a quorum is present shall be the act of the Executive
Committee. The directors comprising the Committee shall act only as a committee,
<PAGE>
22
and such directors, individually, shall have no power as such. Members of the
Executive Committee, or any committee designated by the Board of Directors, may
participate in a meeting of such committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in the meeting by such means
shall constitute presence in person at the meeting.
SECTION 4. Vacancies. The Board of Directors, by vote of a majority of the
---------
whole Board, shall have power to fill any vacancy in the Executive Committee due
to death, resignation, removal, disqualification, or any other cause.
SECTION 5. Resignation. Any director may resign from the Executive Committee
-----------
at any time by giving written notice of his or her resignation to the Board of
Directors or to the Chairman of the Board, the Chairman of the Executive
Committee, a Vice Chairman of the Board, or the Secretary. Such resignation
shall take effect at the date of receipt of the notice or at any later time
specified therein; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 6. Other Committees. The Board of Directors may, by resolution or
----------------
resolutions passed by a majority of the whole Board, designate one or more other
committees, each such committee to consist of one or more directors of the
Company, which shall have
<PAGE>
23
and may exercise such powers and authority (subject to the limitations specified
in Section 1 of this Article IV) as the Board of Directors may determine and
specify in such resolution or resolutions, such committee or committees to have
such name or names as may be determined from time to time by the Board of
Directors. A majority of all the members of any such committee may fix its
rules of procedure, determine its actions, and fix the time and place (whether
within or without the State of Delaware) of its meetings and specify what notice
thereof, if any, shall be given, unless the Board of Directors shall otherwise
by resolution provide. The Board of Directors shall have the power, either with
or without cause, at any time, to change the members of any such committee, to
fill vacancies, and to discharge any such committee.
ARTICLE V
OFFICERS
SECTION 1. Principal Officers. The principal officers of the Company shall be
------------------
a Chairman of the Board and one or more Vice Chairmen of the Board, each of whom
shall be members of the Board of Directors, one or more Presidents of divisions,
regions, or other units, functions, or activities, one or more Vice Presidents
(the number thereof to be determined by the Board of Directors), a Treasurer, a
Secretary, and a Controller. In addition, there may be such subordinate
officers, agents, and employees as may be
<PAGE>
24
appointed in accordance with the provisions of Section 3 of this Article V. Any
two or more offices may be held by the same person.
SECTION 2. Election and Term of Office. The officers of the Company, except
---------------------------
such officers as may be appointed in accordance with the provisions of Section 3
of this Article V, shall be elected annually by the Board of Directors. Each
officer, except such officers as may be appointed in accordance with the
provisions of Section 3 of this Article V, shall hold office until his or her
successor shall have been duly elected and qualified, or until his or her
earlier death, resignation, removal, or disqualification.
SECTION 3. Subordinate Officers. In addition to the principal officers
--------------------
enumerated in Section 1 of this Article V, the Company may have such other
officers, agents, and employees as the Board of Directors may deem necessary,
including one or more Assistant Treasurers, one or more Assistant Secretaries,
and one or more Assistant Controllers, each of whom shall hold office for such
period, have such authority, and perform such duties as the Board of Directors,
the Chairman of the Board, or a Vice Chairman of the Board may from time to time
determine. The Board of Directors may delegate to any principal officer the
power to appoint or remove any such subordinate officers, agents, or employees.
SECTION 4. Removal. Any officer may be removed, either with or without cause,
-------
by the vote of a majority of the whole Board of Directors at a special meeting
called for the purpose or except in
<PAGE>
25
case of any officer elected by the Board of Directors, by any officer upon whom
the power of removal may be conferred by the Board of Directors.
SECTION 5. Resignation. Any officer may resign at any time by giving written
-----------
notice of his or her resignation to the Board of Directors or to the Chairman of
the Board, a Vice Chairman of the Board, or the Secretary. Such resignation
shall take effect at the date of receipt of the notice or at any later time
specified therein; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 6. Vacancies. A vacancy in any office because of death, resignation,
---------
removal, disqualification, or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in these By-laws for regular
election or appointment to such office.
SECTION 7. Chairman of the Board. The Chairman of the Board may be the chief
---------------------
executive officer of the Company. The Chairman of the Board shall preside at all
meetings of the Board of Directors and of the stockholders at which he or she is
present. The Chairman of the Board shall have the general supervision of the
affairs of the Company, and perform all such duties as are incident to the
office or as are properly required of him or her by the Board of Directors. The
Chairman of the Board shall have authority to enter into any contract or execute
and deliver any instrument in
<PAGE>
26
the name and on behalf of the Company, when authorized by the Board of
Directors, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or these By-laws to some other
officer, agent, or employee of the Company.
SECTION 8. Vice Chairmen of the Board. The Board of Directors may establish
--------------------------
the office of Vice Chairman of the Board. In the absence or disability of the
Chairman of the Board, a Vice Chairman of the Board shall perform the duties and
exercise the powers of the Chairman of the Board. A Vice Chairman of the Board
shall have authority to enter into any contract or execute and deliver any
instrument in the name and on behalf of the Company, when authorized by the
Board of Directors, except in cases where the signing and execution thereof
shall be expressly delegated by the Board of Directors or these By-laws to some
other officer, agent, or employee of the Company. In addition, a Vice Chairman
of the Board shall have such further powers and perform such further duties as
may, from time to time, be assigned to him or her by the Board of Directors or
the Chairman of the Board or as may be prescribed by these By-laws.
SECTION 9. Presidents. The Board of Directors may establish the office of
-----------
President of a division, region, or other unit, function, or activity of the
Company. A President shall have such powers and perform such duties as may, from
time to time, be
<PAGE>
27
assigned to him or her by the Board of Directors, the Chairman of the Board, or
a Vice Chairman of the Board.
SECTION 10. Vice Presidents. The Board of Directors may establish several
---------------
classifications of Vice Presidents, such as Executive Vice Presidents, Senior
Vice Presidents, Regional Vice Presidents, and Divisional Vice Presidents. Each
Vice President shall have such powers and perform such duties as shall, from
time to time, be assigned to him or her by the Board of Directors, the Chairman
of the Board, or a Vice Chairman of the Board.
SECTION 11. The Treasurer. The Treasurer shall have charge and custody of, and
-------------
be responsible for, all funds and securities of the Company, and shall deposit
or cause to be deposited all such funds in the name of the Company in such
banks, trust companies, and other depositories as shall be selected in
accordance with the provisions of these By-laws; shall render to the Board of
Directors, whenever the Board may require him or her so to do, a report of all
his or her transactions as Treasurer; and in general, shall perform all duties
as may, from time to time, be assigned to him or her by the Board of Directors,
the Chairman of the Board, or a Vice Chairman of the Board.
SECTION 12. The Secretary. The Secretary shall record or cause to be recorded
-------------
in books kept for the purpose the proceedings of the meetings of the
stockholders, the Board of Directors, and all committees, if any; shall see that
all notices are duly given in
<PAGE>
28
accordance with the provisions of these By-laws and as required by law; shall be
custodian of the seal of the Company; and in general, shall perform all duties
incident to the office of Secretary and such other duties as may, from time to
time, be assigned to him or her by the Board of Directors, the Chairman of the
Board, or a Vice Chairman of the Board.
SECTION 13. The Controller. The Controller shall have charge of the books and
--------------
records of account of the Company; shall keep or cause to be kept, and shall be
responsible for the keeping of, correct and adequate records of the assets,
liabilities, business, and transactions of the Company; shall at all reasonable
times exhibit his or her books and records of account to any director of the
Company upon application at the office of the Company where such books and
records are kept; shall be responsible for the preparation and filing of all
reports and returns relating to or based upon the books and records of the
Company kept by him or her or under his or her direction; and in general, shall
perform all duties incident to the office of Controller and such other duties as
may, from time to time, be assigned to him or her by the Board of Directors, the
Chairman of the Board, or a Vice Chairman of the Board.
<PAGE>
29
ARTICLE VI
CONTRACTS, LOANS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Execution of Contracts. The Board of Directors, except as otherwise
----------------------
provided in these By-laws, may authorize any officer or officers or other person
or persons to enter into any contract or execute and deliver any instrument in
the name and on behalf of the Company, and such authority may be general or
confined to specific instances, and unless so authorized by the Board of
Directors or by the provisions of these By-laws, no officer or other person
shall have any power or authority to bind the Company by any contract or
engagement or to pledge its credit or to render it liable pecuniarily for any
purpose or to any amount.
SECTION 2. Loans. No loan shall be contracted on behalf of the Company, and no
-----
negotiable papers shall be issued in its name, except by such officer or
officers or other person or persons as may be designated by the Board of
Directors from time to time. If and to the extent authorized by the Board of
Directors, the power to contract loans or issue negotiable papers may be
delegated by any such officer or officers or other person or persons.
SECTION 3. Checks, Drafts, etc. All checks, drafts, bills of exchange, and
--------------------
other orders for the payment of money, letters of credit, acceptances,
obligations, notes, and other evidences of indebtedness, bills of lading,
warehouse receipts, and insurance
<PAGE>
30
certificates of the Company shall be signed or endorsed by such officer or
officers or other person or persons as may be designated by the Board of
Directors from time to time. If and to the extent authorized by the Board of
Directors, the power to sign or endorse any such instrument may be delegated by
any such officer or officers or other person or persons.
SECTION 4. Bank Accounts. The Board of Directors may from time to time
-------------
authorize the opening and maintenance of general and special bank and custodial
accounts with such banks, trust companies, and other depositories as it may
select. Rules, regulations, and agreements applicable to such accounts may be
made, and changed from time to time, by the Board of Directors, including, but
without limitation, rules, regulations, and agreements with respect to the use
of facsimile and printed signatures. Any of such powers of the Board of
Directors with respect to bank and custodial accounts may be delegated by the
Board of Directors to any officer or officers or other person or persons as may
be designated by the Board of Directors, and if and to the extent authorized by
the Board of Directors, any such power may be further delegated by any such
officer or officers or other person or persons.
<PAGE>
31
ARTICLE VII
BOOKS AND RECORDS
SECTION 1. Location. The books and records of the Company may be kept at such
--------
place or places within or without the State of Delaware as the Board of
Directors or the respective officers in charge thereof may from time to time
determine. The stock record books shall be kept by such officer or agent as
shall be designated by the Board of Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and all other
-------------------------
corporate notices may be delivered personally or mailed to each stockholder at
his or her address as it appears on the records of the Company.
SECTION 3. Fixing Date for Determination of Stockholders of Record. In order
-------------------------------------------------------
that the Company may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any other change,
conversion, or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than 60 nor less than 10 days before the date of such meeting, nor more
than 60 days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to
<PAGE>
32
any adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
ARTICLE VIII
SHARES OF STOCK AND THEIR TRANSFER
SECTION 1. Certificates of Stock. Every holder of stock of the Company shall
---------------------
be entitled to have a certificate in such form as the Board of Directors shall
prescribe certifying the number of shares owned by him or her in the Company.
Each such certificate shall be signed by, or in the name of the Company by, the
Chairman of the Board, a Vice Chairman of the Board, a President, or a Vice
President and the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company. Any or all of the signatures on the
certificate may be facsimile. In case any officer, transfer agent, or registrar
who has signed, or whose facsimile signature has been placed upon, a certificate
shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, the certificate may, nevertheless, be issued by the
Company with the same effect as if such person were such officer, transfer
agent, or registrar at the date of issue.
SECTION 2. Record, etc. A record shall be kept of the name of the person,
------------
firm, or corporation owning the stock represented by each certificate of stock
of the Company issued, the number of shares represented by each such
certificate, and the date thereof,
<PAGE>
33
and in the case of cancellation, the date of cancellation. The person in whose
name shares of stock stand on the books of the Company shall be deemed the owner
of record thereof for all purposes as regards the Company.
SECTION 3. Transfer of Stock. Transfers of shares of the stock of the Company
-----------------
shall be made only on the books of the Company by the owner of record thereof,
or by his or her attorney thereunto authorized by power of attorney duly
executed and filed with such officer or agent as shall be designated by the
Board of Directors or with the transfer agent of the Company, and on the
surrender of the certificate or certificates for such shares properly endorsed
and the payment of all taxes thereon.
ARTICLE IX
DIVIDENDS AND RESERVES
The Board of Directors may, from time to time, determine whether any, and if
any, what part, of the net profits of the Company or of its surplus, available
therefor pursuant to law and to the certificate of incorporation, shall be
declared as dividends on the stock of the Company. The Board of Directors may,
in its discretion, set apart out of any of such net profits or surplus a reserve
or reserves for any proper purpose and may abolish any such reserve.
<PAGE>
34
ARTICLE X
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS
The Company may indemnify, in accordance with and to the full extent permitted
by the laws of the State of Delaware as in effect at the time of the adoption of
this Article X or as such laws may be amended from time to time, and shall so
indemnify to the full extent required by such laws, any person (and the heirs
and legal representatives of such person) made or threatened to be made a party
to any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, by reason of the fact that
such person is or was a director, officer, employee, or agent of the Company or
any constituent corporation absorbed in a consolidation or merger, or serves or
served as such with another corporation, partnership, joint venture, trust, or
other enterprise at the request of the Company or any such constituent
corporation. Notwithstanding any other provision of this Article X or the laws
of the State of Delaware to the contrary, no such person shall be entitled to
indemnification or the advancement of expenses pursuant to this Article X with
respect to any action, suit, or proceeding, or part thereof, brought or made by
such person against the Company, unless such indemnification or advancement of
expenses (i) is due to such person pursuant to the specific provisions of any
agreement in writing between such person and the Company approved by the
<PAGE>
35
Company's Board of Directors or (ii) has been approved in writing in advance of
the commencement of such action, suit, or proceeding, or part thereof, by or at
the direction of the Company's Board of Directors. Any indemnification or
advancement of expenses pursuant to this Article X shall only be made in the
specific case by a separate determination made (i) by a majority vote of the
directors who are not parties to such action, suit, or proceeding, even though
less than a quorum, or (ii) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (iii) by the
Company's stockholders, as to entitlement to advancement of expenses and/or
indemnification, as the case may be.
ARTICLE XI
RATIFICATION
Any transaction, questioned in any stockholders' derivative suit on the ground
of lack of authority, defective or irregular execution, adverse interest of
director, officer, or stockholder, non-disclosure, miscomputation, or the
application of improper principles or practices of accounting, may be ratified,
before or after judgment, by the Board of Directors or by the stockholders in
case less than a quorum of directors are qualified, and if so ratified, shall
have the same force and effect as if the questioned transaction had been
originally duly authorized. Such ratification
<PAGE>
36
shall be binding upon the Company and its stockholders and shall constitute a
bar to any claim or execution of any judgment in respect of such questioned
transaction.
ARTICLE XII
SEAL
The Board of Directors shall provide a corporate seal, which shall be in the
form of a circle and shall bear the name of the Company and the words and
figures "Corporate Seal 1924 Delaware".
ARTICLE XIII
FISCAL YEAR
The fiscal year of the Company shall end at the close of business on the last
Saturday in January and shall, in each case, begin at the opening of business on
the day next succeeding the last day of the preceding fiscal year.
ARTICLE XIV
WAIVER OF NOTICE
Whenever notice is required to be given under any provision of these By-laws,
the certificate of incorporation, or the laws of the State of Delaware, a
written waiver thereof, whether in the form of a writing signed by, or a
telegram, cable, radiogram, telephone facsimile, or other appropriate written
communication from, the
<PAGE>
37
person entitled to notice and whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of the meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the stockholders or directors or a committee of directors need be
specified in any written waiver of notice.
ARTICLE XV
EMERGENCY BY-LAWS
SECTION 1. General. Notwithstanding any other provisions of the certificate of
-------
incorporation and these By-laws, the emergency by-laws (hereinafter called
Emergency By-laws) provided in this Article XV shall be operative during any
emergency resulting from an attack on the United States or on any locality in
which the Company conducts its business or customarily holds meetings of its
Board of Directors or its stockholders, or during any nuclear or atomic
disaster, or during the existence of any catastrophe, or other similar emergency
condition (any such condition being hereinafter called an Emergency), as a
result of which a quorum of the Board of Directors or the Executive Committee
cannot readily be
<PAGE>
38
convened for action. To the extent not inconsistent with these Emergency By-
laws, the By-laws of the Company shall remain in effect during any Emergency.
Upon termination of the Emergency, these Emergency By-laws shall cease to be
operative unless and until another Emergency shall occur.
SECTION 2. Meetings and Notice of Meetings. During any Emergency any meeting
-------------------------------
of the Board of Directors or of the Executive Committee may be called by any
director or officer of the Company. Notice of the meeting shall be given by the
person calling the meeting, shall state the time and place of the meeting, and
shall be required to be given only to such of the directors or members of the
Executive Committee, as the case may be, and the persons referred to in Section
3 of this Article XV as it may be feasible to reach at the time and by any means
as may then be feasible at the time.
SECTION 3. Quorum, Emergency Directors, and Manner of Acting. The directors
-------------------------------------------------
and members of the Executive Committee, as the case may be, in attendance at a
meeting pursuant to Section 2 of this Article XV, which in no case shall be less
than two, shall constitute a quorum of the Board of Directors or the Executive
Committee, as the case may be, and they may take any action at the meeting, by
majority vote, as they shall, in their sole discretion, deem to be in the best
interests of the Company. Notwithstanding the foregoing, if the number of
directors or members of the
<PAGE>
39
Executive Committee, as the case may be, available to constitute a quorum at any
such meeting, shall be less than two, additional directors, or additional
members of the Executive Committee, as the case may be, in whatever number shall
be necessary to constitute a Board or Executive Committee, as the case may be,
of at least two members, shall be deemed selected automatically from the
officers or other persons designated on a list approved by the Board of
Directors before the Emergency, all in such order of priority and subject to
such conditions and for such period or periods as may be provided in the
resolution approving the list. The Board of Directors or Executive Committee,
as the case may be, as so constituted shall continue until the termination of
the Emergency. The Board of Directors, either before or during any Emergency,
may provide, and from time to time modify, lines of succession in the event that
during such Emergency any or all officers of the Company shall for any reason be
rendered incapable of discharging their duties. Any additional director or
additional member of the Executive Committee, as the case may be, may be
removed, either with or without cause, by a majority vote of the remaining
directors or members of the Executive Committee, as the case may be, then in
office.
SECTION 4. Offices; Places of Meeting. The Board of Directors, either before
--------------------------
or during any Emergency, may, effective during the Emergency, change the head
office of the Company or designate
<PAGE>
40
several alternative head offices or regional offices of the Company or authorize
the officers to do so.
SECTION 5. Liability during an Emergency. No officer, director, or employee
-----------------------------
shall be personally liable for acting in accordance with these Emergency By-
laws, except for wilful misconduct.
ARTICLE XVI
AMENDMENTS
Subject to the provisions of the certificate of incorporation, all By-laws of
the Company shall be subject to alteration, amendment, or repeal, in whole or in
part, and new by-laws not inconsistent with the laws of the State of Delaware or
any provision of the certificate of incorporation may be made, either by the
affirmative vote of a majority of the whole Board of Directors at any regular or
special meeting of the Board, or by the affirmative vote of the holders of
record of a majority of the issued and outstanding stock of the Company entitled
to vote in respect thereof, given at an annual meeting or at any special meeting
at which a quorum shall be present, provided that in each case notice of the
proposed alteration, amendment, or repeal or the proposed new by-laws be
included in the notice of the meeting of the Board or the stockholders, or the
form of consent thereof, as the case may be.
<PAGE>
41
INDEX
-----
<TABLE>
<CAPTION>
Article Pages
------- -----
<S> <C> <C>
Amendments . . . . . . . . . . . . . . . . . XVI 40
Board of Directors . . . . . . . . . . . . . III 11-19
Books and Records . . . . . . . . . . . . . . VII 31-32
Committees . . . . . . . . . . . . . . . . . IV 19-23
Contracts, Loans, Checks, Drafts,
Bank Accounts, etc . . . . . . . . . . . . VI 29-30
Dividends and Reserves . . . . . . . . . . . IX 33
Emergency By-laws . . . . . . . . . . . . . . XV 37-40
Fiscal Year . . . . . . . . . . . . . . . . .XIII 36
Indemnification of Directors,
Officers, Employees, and Agents . . . . . . X 34-35
Meetings of Stockholders . . . . . . . . . . II 2-11
Officers . . . . . . . . . . . . . . . . . . V 23-28
Offices . . . . . . . . . . . . . . . . . . . I 1
Ratification . . . . . . . . . . . . . . . . XI 35-36
Seal . . . . . . . . . . . . . . . . . . . . XII 36
Shares of Stock and Their Transfer . . . . .VIII 32-33
Waiver of Notice . . . . . . . . . . . . . . XIV 36-37
</TABLE>
<PAGE>
Exhibit 10
J. C. PENNEY COMPANY, INC.
1995 DEFERRED COMPENSATION PLAN
This document includes all provisions as approved by the Board of Directors on
November 9, 1994
<PAGE>
J. C. PENNEY COMPANY, INC.
1995 DEFERRED COMPENSATION PLAN
1. Purpose of the Plan
-------------------
The purpose of the J. C. Penney Company, Inc. 1995 Deferred Compensation
Plan is to provide a procedure for those participants in the J. C. Penney
Company, Inc. Savings, Profit-Sharing and Stock Ownership Plan earning more
than the compensation limit thereunder imposed by Section 401(a)(17) of the
Internal Revenue Code (as hereinafter defined) to defer all or a portion of
the amount by which base salary, management incentive compensation program
payments, and/or performance unit or award plan payments exceed such
compensation limit as a means of saving for retirement or other needs.
2. Definitions
-----------
As used herein, the following words and phrases have the following
respective meanings, unless the context clearly indicates otherwise:
Account shall have the meaning specified in Section 6 hereof.
-------
Administrator means the Personnel and Compensation Committee,
-------------
except to the extent that all or some of the responsibility for
administration of the Plan has been delegated to the Personnel
Committee, in which event, and to such extent, the Personnel Committee
shall be considered the Administrator.
Base Salary for a Plan Year means the aggregate amount due and
-----------
payable to an Eligible Associate in that Plan Year which is designated
by the Employer as the Eligible Associate's monthly pay as reflected
on the Employer's personnel records, including any such amounts
otherwise due and payable with respect to which the Election to Defer
hereunder applies.
Beneficiary means the person or persons designated by the
-----------
Participant on the Beneficiary Designation Form (utilized by the
Company for this purpose) to receive death benefits payable under
Section 8 hereof.
Change of Control shall have the meaning specified in Section 8
-----------------
hereof.
COMP for a Plan Year means the aggregate amount due and payable
----
to an Eligible Associate in that Plan Year under a management
incentive compensation program sponsored by an Employer, including any
-1-
<PAGE>
such amounts otherwise due and payable with respect to which the
Election to Defer hereunder applies.
Company means J. C. Penney Company, Inc., a Delaware corporation,
-------
or its successor or successors.
Director of Personnel shall have the meaning specified in Section
---------------------
8 hereof.
Earnings for a Plan Year means an Eligible Associate's
--------
Compensation, as that term is defined in Article I of the LESOP,
without regard to the Earnings Dollar Limit. For purposes of
identifying Eligible Associates hereunder, an associate's Earnings for
a Plan Year may be estimated on a reasonable and consistent basis, as
determined by the Director of Personnel.
Earnings Dollar Limit for a Plan Year means the limitation on
---------------------
compensation taken into account for purposes of the LESOP under
Section 401(a)(17) of the Internal Revenue Code, as indexed for cost-
of-living adjustments pursuant to Section 401(a)(17) of the Internal
Revenue Code.
Election to Defer means the election made by an Eligible
-----------------
Associate, in accordance with the provisions of Section 5 hereof, to
defer all or a portion of such Eligible Associate's Base Salary, COMP,
and/or PUP for a Plan Year.
Eligible Associate means any associate of an Employer (i) whose
------------------
Earnings in the preceding Plan Year (or in the calendar year ended
December 31, 1994, in the case of the first Plan Year) equalled or
exceeded the applicable Earnings Dollar Limit and (ii) who made Tax
Deferred Deposits and/or Taxed Deposits to the LESOP, as those terms
are defined therein, in such preceding Plan Year (or such calendar
year ended December 31, 1994, as the case may be) which, in
combination, equalled or exceeded six percent (6%) of Earnings up to
the Earnings Dollar Limit.
Employer means (i) the Company and (ii) any subsidiary or other
--------
affiliate of the Company which has adopted the Plan pursuant to a
written resolution of the Board of Directors of such subsidiary or
affiliate evidencing such adoption with the approval of the Personnel
and Compensation Committee.
ERISA means the Employee Retirement Income Security Act of 1974,
-----
as amended from time to time.
Exchange Act shall have the meaning specified in Section 3
------------
hereof.
-2-
<PAGE>
Internal Revenue Code means the Internal Revenue Code of 1986, as
---------------------
amended from time to time.
LESOP means the J. C. Penney Company, Inc. Savings, Profit-
-----
Sharing and Stock Ownership Plan, as amended from time to time.
Participant means an Eligible Associate who is participating in
-----------
the Plan as provided in Section 5 hereof.
Payment Commencement Date means the first business day of the
-------------------------
Plan Year following the Participant's retirement or other Separation
from Service.
Personnel and Compensation Committee means the Personnel and
------------------------------------
Compensation Committee of the Board of Directors of the Company which
shall administer the Plan pursuant to Section 3 hereof.
Personnel Committee means the Personnel Committee of the
-------------------
Management Committee of the Company which may be designated by the
Personnel and Compensation Committee to administer the Plan, or a
portion thereof, pursuant to Section 3 hereof.
Plan means the J. C. Penney Company, Inc. 1995 Deferred
----
Compensation Plan, as set forth herein and as amended from time to
time.
Plan Year means the twelve-month period beginning on January 1
---------
and ending on December 31 of each calendar year.
PUP for a Plan Year means the aggregate amount due and payable to
---
an Eligible Associate in that Plan Year under a performance unit or
award plan sponsored by an Employer, including such amounts otherwise
due and payable with respect to which the Election to Defer hereunder
applies.
Separation from Service means termination of employment by reason
-----------------------
of disability, discharge, retirement, resignation, or death.
3. Administration
--------------
The Plan shall be administered by and under the direction of the Personnel
and Compensation Committee. Except as otherwise provided below, the
Personnel and Compensation Committee shall be considered the Administrator
for purposes of ERISA.
The Personnel and Compensation Committee may delegate all or some of the
responsibility for the administration of the Plan to the Personnel
Committee in
-3-
<PAGE>
which case the Personnel Committee shall assume such delegated power and
authority and shall act as the Administrator in administering the Plan to
that extent; provided, however, that in no event shall the Personnel
Committee have any power or authority with respect to matters involving a
Participant who is a member of the Management Committee of the Company or a
Participant who is subject to Section 16(b) of the Securities Exchange Act
of 1934, as amended from time to time (the "Exchange Act").
The Administrator has the authority and discretion to construe and
interpret the Plan. As part of this authority, the Administrator has the
discretion to resolve inconsistencies or ambiguities in the language of the
Plan, to supply omissions from or correct deficiencies in the language of
the Plan, and to adopt rules for the administration of the Plan which are
not inconsistent with the terms of the Plan. The Administrator also has
the authority and discretion to resolve all questions of fact relating to
any claim for benefits as to any matter for which the Administrator has
responsibility.
Each person considered to be a fiduciary with respect to the Plan shall
have only those powers and responsibilities as are specifically given that
person under this Plan. It is intended that each such person shall be
responsible for the proper exercise of his or her own powers and
responsibilities, and shall not be responsible for any act or failure to
act of any other person considered to be a fiduciary or any act or failure
to act of any person considered to be a non-fiduciary.
4. Eligibility
-----------
Any associate who is an Eligible Associate for a Plan Year shall be
eligible to participate in the Plan for that Plan Year. An Eligible
Associate for the Plan Year may become a Participant in the Plan by making
an Election to Defer as provided in Section 5 hereof.
5. Election to Defer
-----------------
An Eligible Associate for a Plan Year may elect to defer a percentage of
that portion of Base Salary, COMP, and PUP for such Plan Year which, in
combination, exceeds the Earnings Dollar Limit for that Plan Year. Such
Election to Defer shall not begin until the Eligible Associate's Base
Salary, COMP, PUP, or any combination thereof, exceeds the Earnings Dollar
Limit for that Plan Year. Such Election to Defer shall be made by
completing and delivering to the Administrator a form approved by the
Administrator for such purpose and containing such terms and conditions as
deemed appropriate by the Administrator. The Election to Defer for a Plan
Year must be delivered to the Administrator at such time as determined by
the Administrator but, in any event, must be received by the Administrator
no later than December 31 of the preceding Plan Year (or, in the case of
the first Plan Year, by December 31, 1994).
-4-
<PAGE>
The Election to Defer shall be stated as a percentage, in 1% increments, of
Base Salary, COMP, PUP, or any combination thereof; provided, however, that
to the extent that any of Base Salary, COMP, or PUP has been selected by
the Participant for deferral, the deferral percentage shall be the same for
each such selected form of compensation. A separate Election to Defer
shall be made for each Plan Year.
A Participant may not amend or change his or her Election to Defer during a
Plan Year. A Participant may terminate his or her Election to Defer at any
time during the Plan Year; provided, however, that the Participant shall
not be permitted to make another Election to Defer for that Plan Year.
An Election to Defer shall terminate (i) if the Participant Separates from
Service with an Employer, if the Plan is terminated, or upon a Change of
Control, in any case, before the date that payment of Base Salary, COMP, or
PUP would have been made if not deferred, or (ii) if the amount of Base
Salary, COMP, or PUP available for deferral, after applicable withholding
taxes, is less than the minimum deferral amount (1%) required hereunder.
6. Accounts
--------
There shall be established on the Company's books and records an account
("Account") for each Participant hereunder. All amounts deferred pursuant
to Section 5 hereof, together with interest accrued under Section 7 hereof,
shall be credited to the Participant's Account; provided, however, that
such amounts shall at all times be held in the Company's general funds as
part of the Company's general assets. The Company shall furnish annually
to each Participant (or, in the case of a deceased Participant, to such
Participant's Beneficiary) a statement of the amounts credited to the
Participant's Account.
7. Adjustments to Accounts
-----------------------
Deferrals
---------
All amounts deferred under the Plan pursuant to an Election to Defer shall
be credited to the Participant's Account during a particular Plan Year at
such time as those amounts would have been paid to the Participant but for
the Election to Defer hereunder; provided, however, that no amounts shall
be credited to the Participant's Account until such time during such Plan
Year as the combination of the Participant's Base Salary, COMP, and PUP
exceeds the Earnings Dollar Limit.
Interest
--------
Each Participant's Account shall be credited with interest on a monthly
basis as of the last day of each month during the Plan Year based on the
balance in each such Account on the last day of the immediately preceding
month and using an
-5-
<PAGE>
interest rate equal to the average monthly Moody's Single A Corporate Bond
Yield in effect as of that date, except as otherwise provided in Section 10
hereof. Interest at the applicable rate, as stated above, shall continue
to accrue and be credited to a Participant's Account in accordance with the
above provisions until the Account is fully distributed. The Personnel and
Compensation Committee may amend or change the annual effective interest
rate at any time and from time to time.
8. Distribution of Plan Benefits
-----------------------------
General
-------
Any benefits payable under the Plan shall be based on the balance of the
Participant's Account. Except as otherwise provided below, Plan benefits
shall be payable upon a Participant's retirement, death, or other
Separation from Service with an Employer.
Normal Benefits: Distribution Upon Retirement or Other Separation from
-----------------------------------------------------------------------
Service
-------
Except as otherwise provided in the Plan, a Participant's benefits shall be
paid in 15 substantially equal annual installments commencing on the
Payment Commencement Date. A Participant may request not later than 30
days before the Payment Commencement Date, and upon receipt of approval by
the Director of Personnel of the Company or his or her successor by title
or office ("Director of Personnel"), except as noted below, shall obtain, a
one-time reduction in the number of annual installments (including a
reduction to a lump sum payment) payable hereunder. With respect to a
Participant who is a member of the Management Committee of the Company or a
Participant who is subject to Section 16(b) of the Exchange Act, approval
of a reduction in the number of annual installments shall be made by the
Personnel and Compensation Committee.
Distribution Upon Death
-----------------------
If a Participant dies, whether or not he or she has begun to receive
benefits, the Participant's Beneficiary shall receive the balance in the
Participant's Account payable in a number of substantially equal annual
installments equal to the lesser of 15 or the number of installments
remaining with respect to such balance.
Payment of the first installment to a Beneficiary shall be made on the
first business day of the Plan Year following the Participant's death or as
soon thereafter as practicable, but in no event earlier than 30 days
following receipt by the Administrator of a death certificate or other
satisfactory proof of the Participant's death. The Beneficiary may request
not later than 30 days before the date of such first installment, and upon
receipt of approval by the Director of Personnel shall obtain, a one-time
reduction in the number of annual installments (including a reduction to a
lump sum payment) payable hereunder.
-6-
<PAGE>
In the absence of a beneficiary designation, or if the Participant should
be predeceased by his or her Beneficiary, benefits shall be paid to the
Participant's estate.
Hardship Distribution
---------------------
Upon the request of a Participant (or, in the case of a deceased
Participant, such Participant's Beneficiary) and with the approval of the
Director of Personnel, except as provided below, the Company shall pay to
such Participant (or Beneficiary, as the case may be) all or any portion of
the balance in the Participant's Account. Approval may be given only if,
taking into account all of the facts and circumstances, continued deferral
or adherence to the Plan's payment schedule would result in financial
hardship to such Participant (or Beneficiary, as the case may be) arising
from an unforeseen event or emergency beyond the control of the Participant
(or Beneficiary, as the case may be). With respect to a Participant who is
a member of the Management Committee of the Company or a Participant who is
subject to Section 16(b) of the Exchange Act, approval of the hardship
distribution shall be made by the Personnel and Compensation Committee.
Such distribution shall be limited to the amount necessary to satisfy the
financial hardship (including any applicable federal, state, or local taxes
attributable to such distribution), shall be made in the form of a lump sum
payment, and shall reduce the balance of the Participant's Account. The
Participant (or Beneficiary, as the case may be) shall resume the regular
payment schedule following distribution of the hardship payment. The
determination of the existence of a financial hardship and the approval of
the request for a distribution based on such hardship shall be made by the
Director of Personnel or the Personnel and Compensation Committee, as the
case may be, whose decision with respect thereto shall be final and binding
on all parties.
Change of Control
-----------------
At the time of commencement of participation in the Plan, a Participant may
make an irrevocable election to have his or her Plan benefits paid in a
lump sum immediately upon a Change of Control (as hereinafter defined). If
the Participant makes such election at such time, then his or her full Plan
benefits shall be paid in a lump sum upon a Change of Control. If the
Participant does not make such election at such time, then, upon a Change
of Control, assets of the Company in an amount sufficient to pay benefits
then due under the Plan shall immediately be transferred to a rabbi trust
to be established by the Company for the purpose of paying benefits
hereunder, and the Participant's Account shall thereafter be paid from such
rabbi trust in accordance with the terms of the Plan; provided that at the
time of such Change of Control, the Participant may make an irrevocable
election to have his or her Plan benefits paid in a lump sum immediately,
in which event the Participant's benefits shall be subject to a 5-percent
reduction as a penalty for
-7-
<PAGE>
early withdrawal, and the Participant shall receive a lump sum payment of
only 95 percent of his or her benefits otherwise payable under the Plan.
For purposes of this Section 8, a "Change of Control" shall be deemed to
have occurred if (i) at any time during any 24-month period, at least a
majority of the Board of Directors of the Company does not consist of
Continuing Directors (meaning directors of the Company at the beginning of
such 24-month period and directors who subsequently became such, and whose
election, or nomination for election, by the Company's stockholders, was
approved by a majority of the then Continuing Directors); or (ii) at any
time during any 12-month period, the Company's directors in office at the
beginning of such period cease to constitute at least a majority of the
Board of Directors (disregarding any vacancy occurring during such period
by reason of death or disability, but deeming any individual whose
election, or nomination for election, by the Company's stockholders, to
fill such vacancy was approved by a majority of the directors in office
immediately prior to such vacancy, to have been in office at the beginning
of such 12-month period); or (iii) any person or "group" (as determined for
purposes of Rule 13D-G under the Exchange Act or any successor regulation),
except any majority-owned subsidiary or any Company employee benefit plan
or any trust or investment manager thereunder, shall have acquired
"beneficial ownership" (as determined for purposes of Rule 13D-G under the
Exchange Act or any successor regulation) of shares of Company common stock
having 20% or more of the voting power of all outstanding shares of Company
capital stock, unless such acquisition is approved in advance by a majority
of the Board of Directors in office immediately preceding such acquisition;
or (iv) a merger or consolidation occurs to which the Company is a party,
whether or not the Company is the surviving corporation, in which
outstanding shares of Company common stock are converted into shares of
stock or securities of another company, partnership, or other entity (other
than a conversion into shares of voting common stock of the successor
corporation or a holding company or entity thereof) or other securities (of
either the Company or another company) or cash or other property (excluding
payments made solely for fractional shares); or (v) the sale of all, or
substantially all, of the Company's assets occurs.
9. Claims Procedure
----------------
If a Participant does not receive the benefits which the Participant
believes he or she is entitled to receive under the Plan, the Participant
may file a claim for benefits with the Director of Personnel. All claims
will be made in writing and will be signed by the claimant. If the
claimant does not furnish sufficient information to determine the validity
of the claim, the Director of Personnel will indicate to the claimant any
additional information which is required.
-8-
<PAGE>
Each claim will be approved or disapproved by the Director of Personnel
within 90 days following receipt of the information necessary to process
the claim. In the event the Director of Personnel denies a claim for
benefits in whole or in part, the Director of Personnel will notify the
claimant in writing of the denial of the claim. Such notice by the
Director of Personnel will also set forth, in a manner calculated to be
understood by the claimant, the specific reasons for such denial, the
specific Plan provisions on which the denial is based, a description of any
additional material or information necessary to perfect the claim with an
explanation of why such material or information is necessary, and an
explanation of the Plan's claim review procedure as set forth below. If no
action is taken by the Director of Personnel on a claim within 90 days, the
claim will be deemed to be denied for purposes of the review procedure
below.
A claimant may appeal a denial of his or her claim by requesting a review
of the decision by the Administrator. An appeal must be submitted in
writing within six months after the denial and must (i) request a review of
the claim for benefits under the Plan, (ii) set forth all of the grounds
upon which the claimant's request for review is based and any facts in
support thereof, and (iii) set forth any issues or comments which the
claimant deems pertinent to the appeal. The Administrator will make a full
and fair review of each appeal and any written materials submitted in
connection with the appeal. The Administrator will act upon each appeal
within 60 days after receipt thereof, unless special circumstances require
an extension of time for processing, in which case a decision will be
rendered as soon as possible but not later than 120 days after the appeal
is received. The claimant will be given the opportunity to review
pertinent documents or materials upon submission of a written request to
the Administrator, provided the Administrator finds the requested documents
or materials pertinent to the appeal. On the basis of its review, the
Administrator will make an independent determination of the claimant's
eligibility for benefits under the Plan. The decision of the Administrator
on any claim for benefits will be final and conclusive upon all parties
thereto. In the event the Administrator denies an appeal in whole or in
part, the Administrator will give written notice of the decision to the
claimant, which notice will set forth, in a manner calculated to be
understood by the claimant, the specific reasons for such denial and
specific reference to the pertinent Plan provisions on which the decision
was based.
10. Taxes and Expenses
------------------
Any taxes imposed on Plan benefits shall be the sole responsibility of the
Participant or Beneficiary. The Company shall deduct from Plan benefits
any federal taxes (including, without limitation, Social Security and
Medicare taxes), state taxes, local taxes, or other taxes required to be
withheld. The Company shall, unless the Administrator elects otherwise,
withhold such taxes at the applicable flat rate percentage. The Company
shall also deduct from any payment of Base Salary, COMP, or PUP on the date
such payment would have been made if not deferred under this Plan, any
federal taxes (including, without limitation,
-9-
<PAGE>
Social Security and Medicare taxes), state taxes, local taxes, or other
taxes required to be withheld on such date.
All or any portion of Plan administration expenses incurred by the Company
or the Administrator shall be paid by the Company or, at the discretion of
the Administrator, charged against the Accounts of Participants in such
manner as the Administrator shall determine; provided, however, that such
expenses shall only reduce interest, but not deferrals, to be credited to
Participant Accounts under Section 7 hereof.
11. Non-Assignability
-----------------
Unless otherwise required by law, and prior to distribution to a
Participant or Beneficiary, Plan benefits shall not be subject to
assignment, transfer, sale, pledge, encumbrance, alienation, or charge by
such Participant or Beneficiary, and any attempt to do so shall be void.
Plan benefits shall not be liable for or subject to garnishment,
attachment, execution, or levy, or liable for or subject to the debts,
contracts, or liabilities of the Participant or Beneficiary; provided,
however, that the Company may offset from the payment of any Plan benefits
to a Participant or Beneficiary amounts owed by the Participant to an
Employer.
12. Nature of the Plan
------------------
The Plan is intended to be a "pension plan," as defined in ERISA, and is
maintained by the Company on an unfunded basis primarily for the purpose of
providing deferred compensation to a select group of management or highly
compensated employees. As such, the Plan is intended to be construed so as
not to provide income to any Participant or Beneficiary for purposes of the
Internal Revenue Code prior to actual receipt of benefit payments under the
Plan.
13. No Funding
----------
Plan benefits shall be payable solely from the general assets of the
Company. The Company shall not be required to, but may at its discretion,
segregate or physically set aside any funds or assets attributable to Plan
benefits. The Company shall retain title to and beneficial ownership of
all assets of the Company, including any assets which may be used to pay
Plan benefits. No Participant or Beneficiary shall be deemed to have,
pursuant to the Plan, any legal or equitable interest in any specific
assets of the Company. To the extent that any Participant or Beneficiary
acquires any right to receive Plan benefits, such right shall arise merely
as a result of a contractual obligation and shall be no greater than, nor
have any preference or priority over, the rights of any general unsecured
creditor of the Company.
-10-
<PAGE>
14. Effect on Other Benefits
------------------------
Participation in the Plan shall not reduce any welfare or retirement
benefits offered by the Company, except that neither the amounts deferred
nor any Plan benefits shall be considered "Compensation" for purposes of
the LESOP or the J. C. Penney Company, Inc. Pension Plan, as the same may
be amended from time to time.
15. No Guarantee of Employment
--------------------------
Neither participation in the Plan nor any action taken under the Plan shall
confer upon a Participant any right to continue in the employ of an
Employer or affect the right of such Employer to terminate the
Participant's employment at any time.
16. Disclaimer of Liability
-----------------------
The Company shall be solely responsible for the payment of Plan benefits
hereunder. The members of the Personnel and Compensation Committee and the
Personnel Committee, and the officers, directors, employees, or agents of
the Company or any other Employer, shall not be liable for such benefits.
Unless otherwise required by law, no such person shall be liable for any
action or failure to act, except where such act or omission constitutes
gross negligence or willful or intentional misconduct.
17. Termination and Amendment
-------------------------
The Board of Directors of the Company may terminate or discontinue the Plan
at any time. If the Plan is terminated, it shall be on such terms and
conditions as the Board of Directors of the Company shall deem appropriate.
This Plan is expressly conditioned on the continued deferral of income tax
on amounts deferred by a Participant under the Plan until such amounts are
actually distributed to the Participant. If, as a result of a change in
the tax laws or applicable income tax regulations, amounts deferred by
Participants under the Plan become subject to income tax prior to the
actual distribution of such amounts, the Plan and each Election to Defer
hereunder shall automatically terminate as of the effective date of such
change in the law.
The Personnel and Compensation Committee may amend the Plan at any time and
from time to time, without prior notice to any Participant or Beneficiary.
Once payment of benefits hereunder to a Participant or Beneficiary has
commenced, no termination or amendment of the Plan may affect materially or
adversely the right of such Participant or Beneficiary to such benefits
without such person's written consent.
-11-
<PAGE>
18. Successors
----------
The Plan and any Election to Defer shall be binding on (i) the Company and
its successors and assigns, (ii) any Employer and its successors and
assigns, (iii) each Participant, (iv) each Beneficiary, and (v) the heirs,
distributees, and legal representatives of each Participant and
Beneficiary.
19. Severability
------------
If any provision of the Plan shall be held invalid or unenforceable, such
invalidity or unenforceability shall apply only to that provision, and
shall not affect or render invalid or unenforceable any other provision of
the Plan. In such event, the Plan shall be administered and construed as
if such invalid or unenforceable provision were not contained herein. If
the application of any Plan provision to any Participant or Beneficiary
shall be held invalid or unenforceable, the application of such provision
to any other Participant or Beneficiary shall not in any manner be affected
thereby.
20. Governing Law
-------------
Except to the extent that the Plan may be subject to the provisions of
ERISA, the Plan shall be construed and enforced according to the laws of
the State of Texas without giving effect to the conflict of laws principles
thereof. In the event limitations imposed by ERISA on legal actions do not
apply, the laws of the State of Texas shall apply, and a cause of action
under the Plan must be brought no later than four years after the date the
action accrues.
21. Effective Date
--------------
The effective date of the Plan shall be January 1, 1995; provided, however,
that, prior to that date, an Eligible Associate may make an Election to
Defer to be effective for the Plan Year beginning January 1, 1995 pursuant
to the terms hereof.
22. Miscellaneous
-------------
As used herein, the masculine shall include the feminine, the singular
shall include the plural, and vice versa, unless the context clearly
indicates otherwise. Titles and headings herein are for convenience only
and shall not be considered in construing the Plan. The words "hereof,"
"herein," "hereunder" and other similar compounds of the word "here" shall
mean and refer to the entire Plan and not to any particular provision or
Section.
-12-
<PAGE>
Exhibit 23 (i)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
To the Stockholders and
Board of Directors of
J. C. Penney Company, Inc.
We consent to the use of our reports incorporated herein by reference.
Our reports dated February 24, 1994 covering the consolidated financial
statements and schedules of J. C. Penney Company, Inc. and Subsidiaries as of
January 29, 1994, January 30, 1993, and January 25, 1992, and for the years then
ended refer to the adoption of the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 106, Employers' Accounting for
-------------------------
Postretirement Benefits Other Than Pensions, in 1991, and to the adoption of the
- -------------------------------------------
Financial Accounting Standards Board's Statement of Financial Accounting
Standards No. 109, Accounting for Income Taxes, in 1993.
---------------------------
KPMG Peat Marwick LLP
Dallas, Texas
December 16, 1994
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS THAT each of the undersigned directors and
officers of J. C. PENNEY COMPANY, INC., a Delaware corporation ("Company"),
which Company is about to file with the Securities and Exchange Commission,
Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, Registration Statements on Form S-8 for the registration of (i)
participation interests in each of (x) the J. C. Penney Company, Inc. Savings,
Profit-Sharing and Stock Ownership Plan and (y) the J. C. Penney Company, Inc.
Savings and Profit-Sharing Retirement Plan (together, the "Plans") and (ii)
shares of Common Stock of 50c par value of the Company including the associated
rights to purchase shares of Series A Junior Participating Preferred Stock,
without par value, of the Company, hereby constitutes and appoints C.R. Lotter
and R.E. Northam, and each of them, his or her true and lawful attorneys-in-fact
and agents, with full power to each of them to act without the others, for him
or her in his or her name, place, and stead, in any and all capacities, to sign
said Registration Statements, which are about to be filed, and any and all
subsequent amendments to said Registration Statements (including, without
limitation, any and all post-effective amendments thereto) and to file said
Registration Statements and any and all subsequent amendments to said
Registration Statements (including, without limitation, any and all post-
effective amendments thereto) so signed, with all exhibits thereto, and any and
all documents in
1
<PAGE>
connection therewith, and to appear before the Securities and Exchange
Commission in connection with any matter relating to said Registration
Statements and any and all subsequent amendments to said Registration Statements
(including, without limitation, any and all post-effective amendments thereto),
hereby granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform any and all acts and things requisite and
necessary to be done in and about the premises as fully and to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this Power of Attorney as
of the 9th day of November, 1994.
--- --------
/s/ W.R. HOWELL
---------------------------------
W.R. Howell
Chairman of the Board and
Chief Executive Officer
(principal executive officer);
Director
/s/ R.E. NORTHAM
---------------------------------
R.E Northam
Executive Vice President and
Chief Financial Officer
(principal financial officer)
/s/ D.A. McKAY
---------------------------------
Vice President and Controller
(principal accounting officer)
2
<PAGE>
/s/ M.A. BURNS
---------------------------------
M.A. Burns
Director
/s/ C.H. CHANDLER
---------------------------------
C.H. Chandler
Director
/s/ V.E. Jordan, Jr.
---------------------------------
V.E. Jordan, Jr.
Director
/s/ George Nigh
---------------------------------
George Nigh
Director
---------------------------------
J.C. Pfeiffer
Director
---------------------------------
C.S. Sanford, Jr.
Director
/s/ J.D. WILLIAMS
---------------------------------
J.D. Williams
Director
3
