SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE NEIMAN MARCUS GROUP, INC.
______________________________________________________________________________
(Exact name of registrant as specified in its charter)
Delaware No. 95-4119509
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(State of incorporation or organization) (IRS Employer Identification No.)
27 Boylston Street, Chestnut Hill, Massachusetts 02467
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
___________________ ______________________________
COMMON STOCK, CLASS B New York Stock Exchange
$0.01 PAR VALUE
Securities to be registered pursuant to Section 12(g) of the Act:
None
______________________________________________________________________________
(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered
The stockholders, having approved all matters submitted to the vote of
the stockholders at a Special Meeting of Stockholders held on September 15,
1999 (the "Special Meeting"), The Neiman Marcus Group, Inc. (the "Company")
has authorized (i) an aggregate of 250,000,000 shares of common stock,
consisting of 100,000,000 shares of Class A Common Stock ("Class A Common
Stock"), 100,000,000 shares of Class B Common Stock ("Class B Common Stock")
and 50,000,000 shares of Class C Common Stock ("Class C Common Stock" and
collectively the "Common Stock"), and (ii) an aggregate of 50,000,000 shares
of preferred stock ("Preferred Stock"). The par value of each share of Common
Stock shall be $0.01 and the par value of each share of Preferred Stock shall
be $0.01.
The relative rights, powers, preferences, qualifications, limitations
and restrictions of the Company's capital stock are as follows:
Common Stock
The Class A Common Stock, Class B Common Stock and Class C Common Stock
are identical in all respects except as otherwise expressly described below.
(a) Cash Dividends. Subject to the rights and preferences of the
Preferred Stock as set forth in any resolution or resolutions that may be
adopted by the Board of Directors providing for the issuance of Preferred
Stock, the holders of Common Stock are entitled to receive dividends out of
assets legally available therefor, at such time and in such amounts as the
Board of Directors may determine from time to time. Whenever cash dividends
are paid on the common stock, the same amount shall be paid for each share of
Class A Common Stock, each share of Class B Common Stock and each share of
Class C Common Stock outstanding.
(b) Stock Dividends. If any dividend on the outstanding shares of
Common Stock is paid in Common Stock, then the same ratio of shares shall be
paid with respect to each outstanding share of Class A Common Stock, Class B
Common Stock and Class C Common Stock. In such event the dividend paid to
holders of Class A Common Stock shall be paid only in Class A Common Stock,
the dividend paid to holders of Class B Common Stock shall be paid only in
Class B Common Stock and the dividend paid to holders of Class C Common Stock
shall be paid only in Class C Common Stock.
(c) Property Dividends. If any dividend on the outstanding shares of
Common Stock is paid in rights to purchase shares of Series A Junior
Participating Preferred Stock, Series B Junior Participating Preferred Stock
or Series C Junior Participating Preferred Stock, all having a par value of
$0.01 per share, then the same ratio of shares or other property shall be
paid with respect to each outstanding share of Class A Common Stock, Class B
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Common Stock and Class C Common Stock. In such event, the dividend paid to
holders of Class A Common Stock shall be paid only in rights to purchase
Series A Junior Participating Preferred Stock, the dividend paid to holders
of Class B Common Stock shall be paid only in rights to purchase Series B
Junior Participating Preferred Stock and the dividend paid to holders of
Class C Common Stock shall be paid only in rights to purchase Series C Junior
Participating Preferred Stock.
(d) Stocks Splits, Subdivisions and Combinations. The Company will not
subdivide, reclassify or combine stock of any class of Common Stock without
at the same time making a proportionate subdivision, reclassification or
combination of the other classes.
(e) Voting. The holders of Class A Common Stock, Class B Common Stock
and Class C Common Stock shall vote together as a single class in all matters
requiring the vote of holders of Common Stock of the Company with each share
of Class A Common Stock and Class B Common Stock having one vote and each
share of Class C Common Stock having one-tenth (1/10th) vote, except that (i)
the holders of each class shall be entitled to vote as a separate class when
required by law to do so under mandatory statutory provisions that may not be
excluded or overridden by a provision of the Restated Certificate of
Incorporation of the Company and (ii) the holders of Common Stock shall vote
in respect of directors as specified below.
With respect to the election of directors, the holders of Class A Common
Stock shall vote with the holders of Class C Common Stock. The holders of
Class A Common Stock and Class C Common Stock will be entitled to elect a
number of directors that equals 18% of the authorized number of members of
the Board of Directors (or, if such 18% is not a whole number, then the
nearest lower whole number of directors) (the "Class A Directors"). In the
election of Class A Directors, each share of Class A Common Stock shall have
one vote and each share of Class C Common Stock shall have one-tenth (1/10th)
of one vote. The remaining members of the Board of Directors shall be
elected by holders of Class B Common Stock (the "Class B Directors"). In the
election of Class B Directors, each share of Class B Common Stock shall have
one vote. The term "Special Voting Rights" means the different voting rights
of the holders of Class A Common Stock and Class C Common Stock, on the one
hand, and holders of Class B Common Stock, on the other hand, with respect to
the election of the applicable percentage of the authorized number of members
of the Board of Directors as described above.
The initial Class A Director shall be designated by a majority of the
directors of the Company and the holders of Class A Common Stock and Class C
Common Stock, voting together, shall be entitled to vote for the election or
replacement of such Class A Director at the next election of directors of the
Class in which such director serves are elected.
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Any vacancy in a Class A directorship created by the death, resignation,
retirement, disqualification, removal from office or other cause may be
filled by the vote of the majority of the remaining Class A Directors, and
any vacancy in a Class B directorship created by the death, resignation,
retirement, disqualification, removal from office or other cause may be
filled by the vote of majority of the remaining Class B Directors. If there
are no remaining directors in a particular Class, the vacancy shall be filled
by the stockholders entitled to vote for such Class. If the Special Voting
Rights have been eliminated, the vacancy shall be filled by the vote of the
majority of directors, regardless of any quorum requirements. A director
elected to fill a vacancy not resulting from an increase in the number of
directors will have the same remaining term as that of the predecessor
director.
Unless the Special Voting Rights have been eliminated, all newly-created
directorships resulting from an increase in the authorized number of
directors shall be allocated between Class A Directors and Class B Directors,
such that at all times the number of Class A Directors shall be 18% of the
authorized number of directors (or, if such 18% is not a whole number, then
the nearest lower whole number of directors) and the remaining directors
shall be Class B Directors. No decrease in the authorized number of directors
shall shorten the term of any incumbent director. Any newly-created Class A
directorships must be filled by the vote of the majority of existing Class A
Directors and any newly-created Class B directorship must be filled by the
vote of the majority of existing Class B Directors. If there are no
directors in a particular Class, the vacancy shall be filled by the
stockholders entitled to vote for such Class. If the Special Voting Rights
have been eliminated, the vacancy shall be filled by the vote of the majority
of directors, regardless of any quorum requirements.
(f) Merger or Consolidation. Upon any merger or consolidation of the
Company, the holders of Class A Common Stock, Class B Common Stock and Class
C Common Stock shall be entitled to receive, with respect to each of their
shares, the identical kind and amount of consideration receivable upon such
consolidation or merger, except that the holders of Class A Common Stock,
Class B Common Stock and Class C Common Stock may each receive different
kinds of shares of stock provided that such shares differ only with respect
to the rights of holders of such shares as the Class A Common Stock, Class B
Common Stock and Class C Common Stock themselves differ.
(g) Liquidation. The holders of Class A Common Stock, Class B Common
Stock and Class C Common Stock will participate equally per share in any
distribution to stockholders resulting from a liquidation, dissolution or
winding up of the Company.
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Preferred Stock
The Board of Directors has the authority to provide by resolution for
the issuance of shares of Preferred Stock from time to time in one or more
series not exceeding the aggregate number of shares of Preferred Stock
authorized by the Company's Restated Certificate of Incorporation; to
determine, with respect to each series, the voting powers, designations,
preferences and relative, participating, optional, or other special rights
and the qualifications, limitations or restrictions relating thereto;
including without limiting the generality of the foregoing, the voting rights
relating to shares of Preferred Stock of any series, the rate of dividend to
which holders of Preferred Stock of any series may be entitled, the rights
of holders of Preferred Stock of any series in the event of liquidation,
dissolution or winding up of the affairs of the Company, the rights, if any,
of holders of Preferred Stock of any series to convert or exchange such
shares of Preferred Stock of such series for shares of any other class or
series of capital stock or for any other securities, property or assets of
the Company or any subsidiary, whether or not the shares of that series shall
be redeemable and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be redeemable and
the amount per share payable in case of redemption, which amount may vary
under different conditions and at different redemption dates, and whether any
shares of that series shall be redeemed pursuant to a retirement or sinking
fund or otherwise and the terms and conditions of such obligation. The Board
of Directors has the authority to increase or decrease the number of shares
of any series of Preferred Stock subsequent to the issuance of shares of such
series (but not below the number of shares of any series then outstanding).
Classified Board
The directors are divided into three classes, Class I, Class II and
Class III. The directors of each class are elected at each subsequent annual
meeting of stockholders and hold office for three-year terms. Directors
elected by any class or series of stock, including Class A Directors and
Class B Directors, shall be divided as evenly as possible among Class I,
Class II and Class III.
Item 2. Exhibits
A. Amended and Restated Certificate of Incorporation (as amended at
the Special Meeting).
B. By-laws of the Company (as amended at the Special Meeting).
C. Form of stock certificate for Class B Common Stock.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: September , 1999 The Neiman Marcus Group, Inc.
By: /s/ Eric P. Geller
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Name: Eric P. Geller
Title: Secretary
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EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
of
THE NEIMAN MARCUS GROUP, INC.
First: The name of the Corporation is The Neiman Marcus Group,
Inc. (hereinafter the "Corporation").
Second: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at that address is
The Corporation Trust Company.
Third: The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware (the "GCL").
Fourth:
1. Authorized Stock. The total number of shares which the
Corporation is authorized to issue is three hundred million (300,000,000)
shares. Two hundred fifty million (250,000,000) shares shall be designated
common stock (the "Common Stock"), of which one hundred million (100,000,000)
shares shall be designated Class A Common Stock (the "Class A Common Stock"),
one hundred million (100,000,000) shares shall be designated Class B Common
Stock (the "Class B Common Stock") and fifty million (50,000,000) shares
shall be designated Class C Common Stock (the "Class C Common Stock"). Fifty
million (50,000,000) shares shall be designated preferred stock (the
"Preferred Stock"), all of which are presently undesignated as to series.
Each share of Preferred Stock shall have a par value of $0.01 and each share
of Common Stock shall have a par value of $0.01.
2. Common Stock. The Class A Common Stock, the Class B Common
Stock and the Class C Common Stock shall be identical in all respects, except
as otherwise expressly provided herein. The relative powers, preferences,
rights, qualifications, limitations and restrictions of the shares of Class A
Common Stock, Class B Common Stock and Class C Common Stock shall be as
follows:
(a) Cash Dividends. Subject to the rights and preferences of the
Preferred Stock as set forth in any resolution or resolutions of the Board of
Directors providing for the issuance of such stock pursuant to this Article
Fourth, and except as otherwise provided for herein, the holders of Class A
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Common Stock, Class B Common Stock and Class C Common Stock are entitled to
receive dividends out of assets legally available therefor at such times and
in such per share amounts as the Board of Directors may from time to time
determine; provided that whenever a cash dividend is paid, the same amount
shall be paid in respect of each outstanding share of Class A Common Stock,
Class B Common Stock and Class C Common Stock.
(b) Stock Dividends. If at any time a dividend is to be paid in
shares of Class A Common Stock, shares of Class B Common Stock or shares of
Class C Common Stock (a "stock dividend"), such stock dividend may be
declared and paid only as follows: only Class A Common Stock may be paid to
holders of Class A Common Stock, only Class B Common Stock may be paid to
holders of Class B Common Stock and only Class C Common Stock may be paid to
holders of Class C Common Stock. Whenever a stock dividend is paid, the same
rate or ratio of shares shall be paid in respect of each outstanding share of
Class A Common Stock, Class B Common Stock and Class C Common Stock.
(c) Property Dividends. If at any time a dividend is to be paid
in rights to purchase shares of Series A Preferred Stock, shares of Series B
Preferred Stock or shares of Series C Preferred Stock (a "rights dividend")
(including in each case with adjustments that will, under certain
circumstances, constitute rights to purchase Class A Common Stock, Class B
Common Stock and Class C Common Stock, respectively), such rights dividend
may be declared and paid only as follows: only rights to purchase Series A
Preferred Stock may be paid to holders of Class A Common Stock, only rights
to purchase Series B Preferred Stock may be paid to holders of Class B Common
Stock and only rights to purchase Series C Preferred Stock may be paid to
holders of Class C Common Stock. Whenever any other property dividend is
paid, the same rate or ratio of shares or other property shall be paid in
respect of each outstanding share of Class A Common Stock, Class B Common
Stock and Class C Common Stock. The references in this paragraph to any
series of preferred stock contemplate the issuance of such preferred stock
pursuant to a stockholders rights plan adopted by the Corporation.
(d) Stock Subdivisions and Combinations. The Corporation shall
not subdivide, reclassify or combine stock of any class of Common Stock
without at the same time making a proportionate subdivision, reclassification
or combination of shares of the other classes.
(e) Voting. Voting power shall be divided between the classes of
stock as follows:
(i) Subject to Sections (2)(e)(ii) and (2)(e)(iv) of this
Article Fourth, with respect to the election of directors, holders of Class A
Common Stock and holders of Class C Common Stock, voting together as a class,
shall be entitled to elect that number of directors which constitutes 18% of
the authorized number of members of the Board of Directors (or, if such 18%
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is not a whole number, then the nearest lower whole number) (the "Class A
Directors"). Each share of Class A Common Stock shall have one vote in the
election of the Class A Directors and each share of Class C Common Stock
shall have one-tenth (1/10th) of one vote in the election of the Class A
Directors. Subject to Section (2)(e)(ii) of this Article Fourth, holders of
Class B Common Stock shall be entitled to elect the remaining directors (the
"Class B Directors"). The initial Class A Director shall be designated by a
majority of the directors of the Corporation as of the effectiveness of this
Amendment, and the holders of Class A Common Stock and Class C Common Stock,
voting together as a class, shall be entitled to vote for the election or
replacement of such Class A Director in satisfaction of their "Special Voting
Rights" as defined in clause (ii) below, at the next election of directors of
the Class (e.g. Class I, Class II or Class III) in which such director serves
are elected. Each share of Class B Common Stock shall have one vote in the
election of Class B Directors. For purposes of this Section (2)(e)(i),
references to the authorized number of members of the Board of Directors
shall not include any directors which the holders of any shares of any series
of Preferred Stock have the right to elect.
(ii) For purposes of this Section (2)(e)(ii), "Special Voting
Rights" means the different voting rights of the holders of Class A Common
Stock and Class C Common Stock, on the one hand, and holders of Class B
Common Stock, on the other hand, with respect to the election of the
applicable percentage of the authorized number of members of the Board of
Directors as described in Section (2)(e)(i). If approved by the Board of
Directors, at any annual or special meeting of stockholders of the
Corporation held at any time after the fifth anniversary of the distribution
by Harcourt General, Inc. to its stockholders of all of the Class B Common
Stock owned by it (the "Fifth Year Anniversary"), a majority of the
outstanding shares of the Class A Common Stock and Class C Common Stock,
voting together as a class, and a majority of the outstanding shares of the
Class B Common Stock, voting separately as a class, may vote to eliminate the
Special Voting Rights, in which case Section (2)(e)(i) of this Article Fourth
shall have no further force or effect, and thereafter holders of Common Stock
shall have voting rights as are specified in Section (2)(e)(iv) of this
Article Fourth and shall be entitled to elect all members of the Board of
Directors. This Section (2)(e)(ii) shall not be amended prior to the Fifth
Year Anniversary without the affirmative vote of the holders of at least 66-
2/3% of the combined voting power of all of the Voting Stock, voting together
as a single class, together with any vote of the holders of any class of
stock required by law.
(iii) Unless the Special Voting Rights have been eliminated
in accordance with Section (2)(e)(ii) of Article Fourth, all newly-created
directorships resulting from an increase in the authorized number of directors
shall be allocated between Class A Directors and Class B Directors such that
at all times the number of Class A directorships shall be 18% of the
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authorized number of members of the Board of Directors (or, if such 18% is not
a whole number, then the nearest lower whole number) and the remaining
directorships shall be Class B directorships.
(iv) Except as otherwise specified herein or required by law,
the holders of Class A Common Stock, Class B Common Stock and Class C Common
Stock shall in all matters not otherwise specified in this Section (2)(e) of
this Article Fourth vote together as one class (including, without
limitation, with respect to increases or decreases in the authorized number
of shares of any class of stock of the Corporation and without the vote of
any class voting separately as a class), with each share of Class A Common
Stock and Class B Common Stock having one vote and each share of Class C
Common Stock having one-tenth (1/10th) vote.
(v) Every reference in this Restated Certificate of
Incorporation or the Corporation's Amended and Restated By-laws to a majority
or other proportion of shares of stock shall refer to such majority or other
proportion of the votes of such shares of stock.
(f) Merger or Consolidation. The Corporation shall not enter into
any consolidation of the Corporation with one or more other corporations, a
merger of the Corporation with another corporation, a reorganization of the
Corporation or other similar combination of the Corporation with one or more
third parties, in which each holder of a share of Class A Common Stock, Class
B Common Stock and Class C Common Stock is not entitled to receive with
respect to such share the same kind and amount of shares of stock and other
securities and property (including cash) receivable upon such consolidation,
merger, reorganization or other combination as each other holder of a share
of Class A Common Stock, Class B Common Stock and Class C Common Stock;
provided that, in any such transaction, the holders of shares of Class A
Common Stock, Class B Common Stock and Class C Common Stock may each receive
different kinds of shares of stock that differ to the extent and only to the
extent that the Board of Directors determines in good faith that such shares
differ with respect to the rights of holders of such shares as the Class A
Common Stock, Class B Common Stock and Class C Common Stock differ as
provided herein.
(g) Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, the holders of the Class A Common Stock, Class
B Common Stock and Class C Common Stock shall participate equally per share
in any distribution to stockholders, without distinction between classes.
The Board of Directors is hereby authorized from time to time to
provide by resolution for the issuance of shares of Preferred Stock in one or
more series not exceeding the aggregate number of shares of Preferred Stock
authorized by this Restated Certificate of Incorporation, as amended from
time to time; and to determine with respect to each such series the voting
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powers, if any (which voting powers if granted may be full or limited),
designations, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions relating
thereto; including without limiting the generality of the foregoing, the
voting rights relating to shares of Preferred Stock of any series (which may
be one or more votes per share or a fraction of a vote per share, which may
vary over time and which may be applicable generally or only upon the
happening and continuance of stated events or conditions), the rate of
dividend to which holders of Preferred Stock of any series may be entitled
(which may be cumulative or noncumulative), the rights of holders of
Preferred Stock of any series in the event of liquidation, dissolution or
winding up of the affairs of the Corporation, the rights, if any, of holders
of Preferred Stock of any series to convert or exchange such shares of
Preferred Stock of such series for shares of any other class or series of
capital stock or for any other securities, property or assets of the
Corporation or any subsidiary (including the determination of the price or
prices or the rate or rates applicable to such rights to convert or exchange
and the adjustment thereof, the time or times during which the right to
convert or exchange shall be applicable and the time or times during which a
particular price or rate shall be applicable), whether or not the shares of
that series shall be redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of redemption, which
amount may vary under different conditions and at different redemption dates,
and whether any shares of that series shall be redeemed pursuant to a
retirement or sinking fund or otherwise and the terms and conditions of such
obligation.
Before the Corporation shall issue any shares of Preferred Stock of
any series, a certificate setting forth a copy of the resolution or
resolutions of the Board of Directors, fixing the voting powers,
designations, preferences, the relative, participating, optional or other
rights, if any, and the qualifications, limitations and restrictions, if any,
relating to the shares of Preferred Stock of such series, and the number of
shares of Preferred Stock of such series authorized by the Board of Directors
to be issued shall be made under seal of the Corporation and signed by and
shall be filed and a copy thereof recorded in the manner prescribed by the
GCL. The Board of Directors is further authorized to increase or decrease
(but not below the number of such shares of such series then outstanding) the
number of shares of any series subsequent to the issuance of shares of that
series.
Fifth: The directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or repeal the By-Laws of
the Corporation.
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Sixth: Whenever a compromise or arrangement is proposed between
the Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a
summary way of the Corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for the Corporation
under the provisions of Section 291 of the GCL or on the application of
trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of the GCL, order a meeting
of the creditors or class of creditors, and/or of the stockholders or class
of stockholders of the Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
Seventh: Except as otherwise fixed pursuant to the provisions of
Article Fourth of this Restated Certificate of Incorporation relating to the
rights of the holders of any one or more classes or series of Preferred Stock
issued by the Corporation to call an annual or special meeting of
stockholders, special meetings of the stockholders of the Corporation may not
be called by the stockholders of the Corporation.
Eighth: Notwithstanding the GCL, any action required to be taken
or which may be taken by the holders of the Common Stock must be effected at
a duly called annual or special meeting of such holders and may not be taken
by any consent in writing by such holders.
Ninth: The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as
nearly as may be possible, of one third of the total number of directors
constituting the entire Board of Directors. Initially, Class I directors
shall be elected for a one-year term, Class II directors for a two-year term
and Class III directors for a three-year term. At the annual meeting of
stockholders beginning in 1988, successors to the class of directors whose
term expires at that annual meeting shall be elected for a three-year term.
If the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of
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that class, but in no case will a decrease in the number of directors shorten
the term of any incumbent director. A director shall hold office until the
annual meeting for the year in which his term expires and until his successor
shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. Any
vacancy in the office of a director created by the death, resignation,
retirement, disqualification, removal from office of a director or other
cause, elected by (or appointed on behalf of) the holders of the Class B
Common Stock, on the one hand, or the holders of the Class A Common Stock and
any other class of stock entitled to vote for the class of directors elected
by the holders of the Class A Common Stock, on the other hand, as the case
may be, shall be filled by the vote of the majority of the directors (or the
sole remaining director) elected by (or appointed on behalf of) such holders
of Class B Common Stock, on the one hand, or Class A Common Stock and any
other class of stock entitled to vote for the class of directors elected by
the holders of the Class A Common Stock, on the other hand (or on behalf of
whom that director was appointed), as the case may be, unless there are no
such directors in such Class, in which case such vacancy shall be filled by
the stockholders of such Class, or the Special Voting Rights have been
eliminated in accordance with Section (2)(e)(ii) of Article Fourth, in which
case such vacancy shall be filled by the vote of the majority of the
directors (or the sole remaining director), regardless of any quorum
requirements set out in the By-laws. Any director elected to fill a vacancy
not resulting from an increase in the number of directors shall have the same
remaining term as that of his predecessor.
Unless the Special Voting Rights have been eliminated in accordance
with Section (2)(e)(ii) of Article Fourth, all newly-created directorships
resulting from an increase in the authorized number of directors shall be
allocated pursuant to Section (2)(e)(iii) of Article Fourth. Once such
newly-created directorships have been allocated as Class A Directors or Class
B Directors, such newly-created directorships shall be filled by the vote of
the majority of the directors in such Class (or the sole remaining director
in such Class), as the case shall be, unless there are no such directors in
such Class, in which case such vacancy shall be filled by the stockholders of
such Class, or the Special Voting Rights have been eliminated in accordance
with Section (2)(e)(ii) of Article Fourth, in which case such vacancy shall
be filled by the vote of the majority of the directors (or the sole remaining
director), regardless of any quorum requirements set out in the By-laws.
In the event that there are no remaining directors, any vacancy in
the office of a director shall be filled by the vote of the majority of
stockholders who elected such director (or on whose behalf such director was
appointed.
Notwithstanding the foregoing, whenever pursuant to the provisions
of Article Fourth of this Restated Certificate of Incorporation, the holders
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of any one or more classes or series of Preferred Stock issued by the
Corporation shall have the right, voting separately by class or series, to
elect directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of this Restated Certificate of
Incorporation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Article Ninth unless expressly provided
by such terms.
Tenth: No director shall be personally liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary duty
as a director except for liability (i) for any breach of the director's duty
of loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the GCL or (iv) for any
transaction from which the director derived an improper personal benefit.
Any repeal or modification of this Article Tenth by the stockholders of the
Corporation shall not adversely affect any right or protection of a director
of the Corporation existing at the time of such repeal or modification with
respect to acts or omissions for or with respect to any acts or omissions of
such director occurring prior to such repeal or modification.
Eleventh: Subject to Article Fifth and notwithstanding anything
else contained in this Restated Certificate of Incorporation to the contrary,
the affirmative vote of the holders of at least 66 2/3% of the combined
voting power of all of the Voting Stock, voting together as a single class,
shall be required to alter, amend, rescind or repeal (A) Article Seventh,
Article Eighth, Article Ninth or this Article Eleventh or to adopt any
provision inconsistent therewith or (B) Section 3 of Article II, Sections 1,
2 and 10 of Article III, Article VIII or Article IX of the By-Laws of the
Corporation or to adopt any provision inconsistent therewith.
"Voting Stock" shall mean the securities of the Corporation which
are entitled to vote generally for the election of directors of the
Corporation.
Twelfth: Except as otherwise fixed pursuant to Article Fourth of
this Restated Certificate of Incorporation relating to the rights of the
holders of any one or more classes or series of Preferred Stock issued by the
Corporation acting separately by class or series, to elect, under specified
circumstances, directors at an annual or special meeting of stockholders, the
Board of Directors shall consist of not less than six nor more than nine
persons, the exact number to be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority of the
Board of Directors. The affirmative vote of the holders of at least 66-2/3%
of the combined voting power of all of the Voting Stock, voting together as a
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single class, shall be required to alter, amend, rescind or repeal this
Article or to adopt any provision inconsistent therewith.
Thirteenth: Notwithstanding anything else contained in this
Restated Certificate of Incorporation to the contrary, the affirmative vote
of the holders of at least 66-2/3% of the combined voting power of the Voting
Stock, voting together as a single class, shall be required for the
Corporation to effect or consummate:
(1) any merger or consolidation of the Corporation with or into
any other corporation;
(2) any sale, lease, exchange or other disposition of all or
substantially all of the assets of the Corporation to or with any other
person; or
(3) any issuance by the Corporation of any voting securities of
the Corporation which issuance would require approval by the
stockholders of the Corporation pursuant to the GCL or the rules of any
exchange on which the voting securities of the Corporation are listed,
other than an issuance by the Corporation of voting securities as
required by any stockholder rights plan adopted by the Corporation,
unless such issuance has been approved by a resolution adopted by not
less than two-thirds of all the directors then in office;
provided, however, that the foregoing requirement shall not apply, and
the provisions of the GCL relating to the percentage of stockholder
approval, if any, shall apply to any merger or other transaction
described in the preceding subparagraphs (1), (2) or (3) if the other
party to the merger or other transaction is a Subsidiary of the
corporation.
For purposes of this Article Thirteenth a "Subsidiary" is any
corporation more than 50% of the voting securities of which are owned
directly or indirectly by the Corporation; and a "person" is any
individual, partnership, corporation or entity.
The affirmative vote of the holders of at least 66-2/3% of the combined
voting power of all of the Voting Stock, voting together as a single
class, shall be required to alter, amend, rescind or repeal this Article
or to adopt any provision inconsistent therewith.
This Article Thirteenth shall be of no further force and effect from and
after the Fifth Year Anniversary.
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EXHIBIT B
BY-LAWS
OF
THE NEIMAN MARCUS GROUP, INC.
(hereinafter called the "Corporation")
(As amended through September 15, 1999)
Article I. PREAMBLE
These By-Laws shall be subject to all provisions of the General
Corporation Law of the State of Delaware ("GCL") and all of the provisions of
the Certificate of Incorporation.
Article II. MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meeting of Stockholders shall be
held on such date and at such time as shall be designated from to time by the
Board of Directors and stated in the notice of the meeting, at which meeting
the stockholders shall elect directors in the manner provided in the
Certificate of Incorporation and in these By-Laws, and transact such other
business as may properly be brought before the meeting. Written notice of the
Annual Meeting stating the place, date and hour of the meeting shall be given
to each stockholder entitled to vote at such meeting not less than ten nor
more than sixty days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by the
Certificate of Incorporation, Special Meetings of Stockholders, for any
purpose or purposes, may be called by the Chairman of the Board of Directors
and shall be called by such officer or the Secretary at the request in
writing of a majority of the Board of Directors. Such request shall state the
purpose or purposes of the proposed meeting. Written notice of a Special
Meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting.
Section 4. Quorum. Except as otherwise provided by the GCL or by the
Certificate of Incorporation or these By-Laws, the holders of a majority of
the capital stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might
have been transacted at the meeting as originally noticed. If the adjournment
is for more than thirty days, or if after the adjournment a new record date
<PAGE>
is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder entitled to vote at the meeting. Any stock of
the Corporation belonging to the Corporation at the time of any meeting or
any adjourned session thereof shall neither be entitled to vote nor counted
for quorum purposes provided, however, that this sentence shall not be
construed as limiting the right of the Corporation to vote its own stock held
by it in a fiduciary capacity.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, (a) any question brought before any meeting
of stockholders shall be decided by the vote of the holders of a majority of
the stock represented and entitled to vote thereat and (b) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote
for each share of the capital stock entitled to vote thereat held by such
stockholder. Such votes may be cast in person or by proxy but no proxy shall
be voted on or after three years from its date, unless such proxy provides
for a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
Section 6. Stock Ledger. The stock ledger of the Corporation shall be
the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list of the stockholders entitled to vote at every meeting
of stockholders or the books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
Section 7. Business Brought Before Meetings. At any Annual Meeting of
Stockholders, only such business shall be conducted as shall have been
brought before the meeting (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board of Directors or (c) by a
stockholder of the Corporation who is a stockholder of record at the time of
giving of the notice provided for in this Section 2, who shall be entitled to
vote at such meeting and who complies with the notice procedures set forth in
this Section 2. For business to be properly brought before an Annual Meeting
of Stockholders pursuant to clause (c) above, the stockholder must have given
written notice thereof to, either by personal delivery or by United States
mail, postage prepaid, and such notice must have been received by, the
Secretary of the Corporation, not later than ninety days prior to the
anniversary date of the immediately preceding Annual Meeting. Such notice
shall set forth: (a) the name and address, as they appear on the
Corporation's books, of the stockholder who is proposing such business, and
the name and address of the beneficial owner, if any, on whose behalf the
proposal is made; (b) the number and class of shares of stock of the
Corporation that are beneficially owned on the date of such notice by the
stockholder, or the beneficial owner on whose behalf the proposal is made;
(c) a representation that the stockholder is a holder of record of stock of
the Corporation entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to propose such business; (d) a description
of the business desired to be brought before the meeting and the reasons for
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conducting such business at the meeting, (e) any material interest of such
stockholder of record and the beneficial owner, if any, on whose behalf the
proposal is made, in such business and (f) a statement as to whether such
stockholder of record, and the beneficial owner, if any, intend to solicit
proxies in support of such proposal. The presiding officer of the meeting
shall determine and declare to the meeting whether or not such business was
properly brought before the meeting in accordance with the procedures
prescribed by these By-Laws, and at such officer's discretion, may declare
such business not properly brought before the meeting and shall not recognize
the bringing of such business.
At any Special Meeting of Stockholders, only such business shall be
conducted as shall have been brought before the meeting pursuant to the
Corporation's notice of Special Meeting.
Article III. DIRECTORS
Section 1. Number and Election of Directors. Except as otherwise fixed
pursuant to Article Fourth of the Certificate of Incorporation relating to
the rights of the holders of any one or more classes or series of Preferred
Stock issued by the Corporation acting separately by class or series, to
elect, under specified circumstances, directors at an annual or special
meeting of stockholders, the Board of Directors shall consist of not less
than six nor more than nine persons, the exact number to be fixed from time
to time exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the Board of Directors. Except as provided in the
Certificate of Incorporation or Section 2 of this Article, directors shall be
elected by a plurality of the votes cast at Annual Meetings of Stockholders
by the stockholders entitled to vote for the election of directors (or for
the election of directors of a given class, as applicable), and each director
so elected shall hold office until the annual meeting for the year in which
his term expires and until a director of the same class succeeding such
director is duly elected and qualified, or until his earlier resignation or
removal. Any director may resign at any time upon notice to the Corporation.
Directors need not be stockholders.
Section 2. Vacancies. Except as otherwise fixed pursuant to the
provisions of Article Fourth of the Certificate of Incorporation relating to
the rights of the holders of any one or more classes or series of Preferred
Stock issued by the Corporation, acting separately by class or series, to
elect, under specified circumstances, directors at an annual or special
meeting of stockholders, and except as otherwise provided pursuant to the
provisions of Article Ninth thereof, relating to the power of the Board of
Directors to fill newly created directorships and vacancies in the Board of
Directors, any vacancy in the office of a director created by the death,
resignation, retirement, disqualification, removal from office of a director
or other cause, elected by (or appointed on behalf of) the holders of the
Class B Common Stock, par value $.01 per share, of the Corporation (the
"Class B Common Stock") on the one hand, or the holders of the Class A Common
Stock, par value $.01 per share, of the Corporation (the "Class A Common
Stock"), and the Class C Common Stock, par value $.01 per share, of the
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Corporation (the "Class C Common Stock"), on the other hand, as the case may
be, shall be filled by the vote of the majority of the directors (or the sole
remaining director) elected by (or appointed on behalf of) such holders of
Class B Common Stock, on the one hand, or Class A Common Stock and Class C
Common Stock, on the other hand (or on behalf of whom that director was
appointed), as the case may be, unless there are no such directors in such
Class, in which case such vacancy shall be filled by the stockholders of such
Class, or the Special Voting Rights (as defined in Section 2(e)(ii) of
Article Fourth of the Certificate of Incorporation) have been eliminated in
accordance with Section (2)(e)(ii) of Article Fourth of the Certificate of
Incorporation, in which case such vacancy shall be filled by the vote of the
majority of the directors (or the sole remaining director), regardless of any
quorum requirements set out in these By-Laws. Any director elected to fill a
vacancy not resulting from an increase in the number of directors shall have
the same remaining term as that of his predecessor.
Unless the Special Voting Rights have been eliminated in accordance with
Section (2)(e)(ii) of Article Fourth of the Certificate of Incorporation, all
newly-created directorships resulting from an increase in the authorized
number of directors shall be allocated pursuant to Section (2)(e)(iii) of
Article Fourth of the Certificate of Incorporation. Once such newly-created
directorships have been allocated as Class A Directors or Class B Directors
(as such terms are defined in Section (2)(e)(ii) of Article Fourth of the
Certificate of Incorporation), such newly-created directorships shall be
filled by the vote of the majority of the directors in such Class (or the
sole remaining director in such Class), as the case shall be, unless there
are no such directors in such Class, in which case such vacancy shall be
filled by the stockholders of such Class, or the Special Voting Rights have
been eliminated in accordance with Section (2)(e)(ii) of Article Fourth of
the Certificate of Incorporation, in which case such vacancy shall be filled
by the vote of the majority of the directors (or the sole remaining
director), regardless of any quorum requirements set out in these By-Laws.
Any director elected in accordance with the preceding sentence shall hold
office until the annual meeting for the year in which his term expires and
until a director of the same Class succeeding such director shall have been
elected and qualified or until his earlier resignation or removal. No
decrease in the number of authorized directors constituting the entire Board
of Directors shall shorten the term of any incumbent director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by
these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without
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notice at such time and at such place as may from time to time be determined
by the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman or a majority of the Board of Directors. Notice
thereof stating the place, date and hour of the meeting shall be given to
each director either by mail not less than 48 hours before the date of the
meeting, by telephone or telegram on 24 hours' notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 5. Quorum. At all meetings of the Board of Directors, a
majority of the Board of Directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 6. Actions of Board. 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 the members of the Board of Directors
or 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 of
Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Members of the
Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 7 shall
constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed
by a majority of the entire Board of Directors, designate one or more
committees to exercise the power and authority provided herein with respect
to such committees, each committee to consist of one or more of the directors
of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of any such committee. In the absence
or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member. Any committee, to the extent allowed by law and provided in the
resolution establishing such committee, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required.
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Section 9. Compensation. The directors may be paid their expenses, if
any, of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a
stated salary as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 10. Nomination of Directors. Except as otherwise fixed pursuant
to Article Fourth of the Certificate of Incorporation relating to the rights
of the holders of any one or more classes or series of Preferred Stock issued
by the Corporation acting separately by class or series, to elect, under
specified circumstances, directors at an annual or special meeting of
stockholders, nominations for the election of directors may be made by the
Board of Directors or a committee appointed by the Board of Directors or by
any stockholder entitled to vote in the election of directors generally.
However, any stockholder entitled to vote in the election of directors
generally may nominate one or more persons for election as directors at a
meeting only if written notice of such stockholder's intent to make such
nomination or nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the Corporation not
later than (i) with respect to an election to be held at an annual meeting of
stockholders, ninety days prior to the anniversary date of the immediately
preceding annual meeting (or, in the case of the annual meeting to be held in
1988, on or before October 1, 1988); 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 tenth 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 the stockholder is a holder of record of stock of the Corporation
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 the
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 the stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission; and (e) the consent of each nominee to serve as a director of the
Corporation if so elected. The presiding officer of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
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Article IV. OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by
the Board of Directors and shall be one or more Presidents, a Secretary and a
Treasurer. The Board of Directors, in its discretion, may also choose one or
more Chief Executive Officers, Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held
by the same person. The officers of the Corporation need not be stockholders
of the Corporation nor need such officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its first meeting held
after each Annual Meeting of Stockholders shall elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time
by the Board of Directors; and all officers of the Corporation shall hold
office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
Section 3. Resignations and Removals. Any director or officer may
resign at any time by delivering his resignation in writing to the Chairman
of the Board of Directors, the President or the Secretary or to a meeting of
the Board of Directors. Such resignation shall take effect at the time stated
therein, or if no time be so stated then upon its delivery, and without in
either case the necessity of its being accepted unless the resignation shall
so state. The Board of Directors may at any time remove from office any
officer either with or without cause.
Section 4. Chairman of the Board of Directors. The Chairman of the
Board of Directors shall preside at all meetings of the stockholders and of
the Board of Directors.
Section 5. President. The President shall, subject to the control of
the Board of Directors, have general supervision of the business of the
Corporation. The President shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by the
Board of Directors.
Section 6. Vice-Presidents. Any Vice-President shall have such duties
and powers as shall be designated from time to time by the Board of Directors
or the President.
Section 7. Treasurer and Assistant Treasurer. The Treasurer shall be in
charge of the Corporation's funds and valuable papers. He shall have such
other duties and powers as may be designated from time to time by the Board
of Directors or the President.
Any Assistant Treasurers shall have such duties and powers as shall be
designated from time to time by the President or the Treasurer.
Section 8. Controller and Assistant Controllers. The Controller shall
be the chief accounting officer of the Corporation and shall be in charge of
its books of account and accounting records and of its accounting procedures.
He shall have such other duties and powers as may be designated from time to
time by the Board of Directors or the President.
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Any Assistant Controllers shall have such duties and powers as shall be
designated from time to time by the President or the Controller.
Section 9. Secretary and Assistant Secretaries. The Secretary shall
record all the proceedings of the meetings of the stockholders, of the Board
of Directors and of committees of the Board of Directors, in books kept for
that purpose. In his absence from any such meeting an Assistant Secretary or
if there be none or he is absent, a temporary Secretary chosen at the meeting
shall record the proceedings thereof.
Any Assistant Secretaries shall have such duties and powers as shall be
designated from time to time by the President or the Secretary.
Section 10. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other office of the Corporation the power to
choose such other officers and to prescribe their respective duties and
powers.
Section 11. Loans and Guaranties to Directors or Officers. Upon
resolution by vote of disinterested directors, the Corporation may make a
loan of money or property to, or guarantee the obligation of, any director or
officer of the Corporation or a subsidiary if the Board determines that such
transaction may reasonably be expected to benefit the Corporation.
Article V. STOCK
Section 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed in the name of the
Corporation as required by the GCL.
Section 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a
registrar other than the Corporation or its employee, any other signature on
the certificate may be a 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, it may be issued by the Corporation with
the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit (in form and substance satisfactory to the
Corporation) of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. In the case of the alleged loss or destruction
or the mutilation of a certificate of stock, a duplicate certificate may be
issued in place thereof, upon such terms in conformity with the law as the
Board of Directors may prescribe.
Section 4. Transfers. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these By-Laws. Transfers of stock shall
be made on the books of the Corporation only by the person named in the
certificate or by his attorney lawfully constituted in writing and upon the
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surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation 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 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 sixty days nor less than
ten days before the date of such meeting, nor more than sixty days prior to
any other action. If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held. The record date for
determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other persons, whether or not it shall
have express or other notice thereof, except as otherwise provided by law.
Section 7. Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed
in the name of and on behalf of the Corporation by the Chairman, the Vice-
Chairman of the Board of Directors, the President or any Vice-President and
any such officer may, in the name of and on behalf of the Corporation, take
all such action as any such officer may deem advisable to vote in person or
by proxy at any meeting of security holders of any corporation in which the
Corporation may own securities and at any such meeting shall possess and may
exercise any and all rights and powers incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have
exercised and possessed if present. The Board of Directors may, by
resolution, from time to time confer like powers upon any other person or
persons.
Article VI. NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any
stockholder, such notice may be given by mail, addressed to such stockholder,
at his address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
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the same shall be deposited in the United States mail. Written notice may
also be given personally or by telegram, telex or cable and such notice shall
be deemed to be given upon receipt.
Section 2. Waivers of Notice. Whenever any notice is required by law,
the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing,
signed, by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto. Neither
the business to be transacted at, nor the purpose of, any meeting or such
other event need be specified in any written waiver of notice.
Article VII. GENERAL PROVISIONS
Section 1. Dividends. Subject to the provisions of the Certificate of
Incorporation, dividends, if any, upon the capital stock of the Corporation
may be declared by the Board of Directors at any regular or special meeting,
and may be paid in cash, in property, or in shares of the capital stock.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 3. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the
words "Corporate Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Article VIII. INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other
Than Those by or in the Right of the Corporation. Subject to Section 3 of
this Article VIII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits of Proceedings by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by
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or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to
the Corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under
this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination
shall be made (i) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders. To the
extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith, without the
necessity of authorization in the specific case. Notwithstanding anything
contained in this Section 3 to the contrary, the Corporation shall not be
required to indemnify any person against any liability, cost or expense
(including attorneys' fees) incurred by such person in connection with any
action, suit or proceeding voluntarily initiated or prosecuted by such person
unless the initiation or prosecution of such action, suit, or proceeding by
such person was authorized by a majority of the entire Board of Directors,
provided, however, that a majority of the entire Board of Directors may,
after any such action, suit or proceeding has been initiated or prosecuted,
in its discretion, indemnify any such person against any such liability, cost
or expense.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of the Article VIII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interest of the Corporation, or, with respect to any criminal action or
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proceeding, to have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the
officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or other
enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care
by the Corporation or another enterprise. The term "another enterprise" as
used in this Section 4 shall mean any other corporation or any partnership,
joint venture, trust or other enterprise of which such person is or was
serving at the request of the Corporation as a director, officer, employee or
agent. The provisions of this Section 4 shall not be deemed to be exclusive
or to limit in any way the circumstance in which a person may be deemed to
have met the applicable standard of conduct set forth in Sections 1 or 2 or
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the
director or officer is proper in the circumstances because he has met the
applicable standards of conduct set forth in Sections 1 or 2 of this Article
VIII, as the case may be. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corporation promptly upon
the filing of such application.
Section 6. Expenses Payable in Advance. Expenses incurred in defending
or investigating a threatened or pending action, suit or proceeding may be
paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Article VIII.
Section 7. Non-exclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of
expenses may be entitled under any By-Law, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the Corporation
that indemnification of the persons specified in Sections 1 and 2 of this
Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the
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indemnification of or advancement of expenses to any person who is not
specified in Sections 1 or 2 of this Article VIII, including employees or
agents of the Corporation, but whom the Corporation has the power or
obligation to indemnify under the provisions of GCL, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power or
the obligation to indemnify him against such liability under the provisions
of this Article VIII.
Section 9. Meaning of "Corporation" for Purposes of Article VIII. For
purposes of this Article VIII, references to "the Corporation" shall include,
in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, and employees or agents,
so that any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of this Article VIII with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
Section 10. Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VIII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. Each person who is or
becomes a director, officer, employee or agent as aforesaid shall be deemed
to have served or to have continued to serve in such capacity in reliance
upon the indemnity provided for in this Article VIII.
Article IX. AMENDMENTS
These By-Laws may be amended, altered, rescinded or repealed at any
meeting of the Board of Directors or of the stockholders, provided, in the
case of a meeting of stockholders, notice of the proposed change was given in
the notice of the meeting; provided, however, that, notwithstanding any other
provisions of the Certificate of Incorporation, these By-Laws or any
provision of law which might otherwise permit a lesser vote or no vote, but
in addition to any affirmative vote of the holders of any Voting Stock (as
defined in the Certificate of Incorporation of the Corporation) required by
law, the Certificate of Incorporation, or these By-Laws, the affirmative vote
of the holders of at least 66-2/3 percent of the combined voting power of all
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the then-outstanding shares of the Voting Stock, voting together as a single
class, shall be required to amend, alter, rescind or repeal Section 3 of
Article II and Sections 1, 2 and 10 of Article III, Article VIII and this
Article IX of these By-Laws.
14
Exhibit C - Form of Stock Certificate
THE NEIMAN MARCUS GROUP, INC.
NMG CLASS B COMMON STOCK PAR VALUE $.01 PER SHARE
This certificate is INCORPORATED UNDER THE See reverse for
transferable in LAWS OF THE STATE OF key to abbreviations
Boston, MA or in DELAWARE
New York, N.Y. CUSIP 640204 30 1
THIS CERTIFIES THAT _________________________________________________________
is the owner of ____________________ fully paid and non-assessable shares of
the Class B Common Stock of The Neiman Marcus Group, Inc. (herein called the
"Corporation") transferable upon the books of the Corporation upon surrender
of this certificate duly endorsed or assigned. This certificate and the
shares represented hereby are subject to the laws of the State of Delaware,
and to the Certificate of Incorporation and the By-Laws of the Corporation,
as amended from time to time (copies of which are on file with the Transfer
Agent). This certificate is not valid until countersigned by a Transfer
Agent and registered by a Registrar.
In Witness Whereof, The Neiman Marcus Group, Inc. has caused its
facsimile corporate seal and the facsimile signatures of its duly authorized
officers to be hereunto affixed.
Dated: __________________
_______________________________________ Countersigned and registered:
Secretary BankBoston, N.A.
Transfer Agent and Registrar
_______________________________________ By: _____________________________
Chairman Authorized Signature
<PAGE>
[REVERSE]
THE NEIMAN MARCUS GROUP, INC.
The Corporation shall furnish without charge to each stockholder who so
requests a statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock of the
Corporation or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Such requests shall be made
to the Corporation's Secretary at the principal office of the Corporation.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -________ Custodian _____
TEN ENT - as tenants by the (Cust) (Minor)
entireties under Uniform Gifts to
JT TEN - as joint tenants with Minors Act _______________
right of survivorship (State)
and not as tenants in
common
UNIF TRF MIN ACT - ____ Custodian (until age__)
(Cust)
under Uniform Transfers to
Minors Act ________________
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _____________________________ hereby sell, assign
and transfer unto _____________________________ (please insert social
security or other identifying number of assignee),
________________________________________________________ (please print or
typewrite name and address, including zip code, of assignee),
___________________ Shares of the Class B Common Stock represented by the
within Certificate, and do hereby irrevocably constitute and appoint
____________________ Attorney to transfer the said stock on the books of the
within named Corporation with full power of substitution in the premises.
Dated _______________ ______________________________________________
______________________________________________
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Notice: The signature(s) to this assignment must
correspond with the name(s) as written upon
the face of the certificate in every
particular, without alteration or
enlargement or any change whatever.
Signature(s) Guaranteed: _________________________________________________
The signature(s) should be guaranteed by an
eligible guarantor institution (banks,
stockbrokers, savings and loan associations and
credit unions with membership in an approved
signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
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