SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): September 14, 1999
United Retail Group, Inc.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 00019774 51-0303670
--------------- ------------ -------------------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
365 West Passaic Street, Rochelle Park, NJ 07662
------------------------------------------ ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (201) 845-0880
Not Applicable
-------------------------------------------------------------
(Former name or former address, if changed since last report)
Item 5. Other Events.
(a) Adoption of Rights Plan
The Board of Directors of United Retail Group, Inc. (the
"Company") has declared a dividend distribution of one Right for each
outstanding share of Company Common Stock to stockholders of record at the
close of business on September 27, 1999 (the "Record Date"). Each Right
entitles the registered holder to purchase from the Company a unit
consisting of one one-hundredth of a share (a "Unit") of Series A Junior
Participating Preferred Stock, $.001 par value (the "Series A Preferred
Stock"), at a Purchase Price of $65 per Unit, subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement
(the "Rights Agreement"), dated as of September 14, 1999, between the
Company and Continental Stock Transfer & Trust Company, as Rights Agent.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate Rights
Certificates will be distributed. Subject to certain exceptions specified
in the Rights Agreement, the Rights will separate from the Common Stock and
a Distribution Date will occur upon the earliest to occur of (i) the tenth
business day following the date (the "Stock Acquisition Date") of the first
public announcement by the Company that any person or group has become the
beneficial owner of 15% or more of the Common Stock then outstanding (other
than the Company, any subsidiary of the Company, any employee benefit plan
of the Company or any subsidiary, and certain other persons or groups,
including Raphael Benaroya and related parties (provided they beneficially
own less than 25% of the Common Stock)), (ii) the tenth business day
following the commencement of a tender or exchange offer if, upon its
consummation, the offeror would become the beneficial owner of 15% or more
of the Common Stock then outstanding, or (iii) a merger or other business
combination transaction involving the Company. Until the Distribution
Date, (i) the Rights will be evidenced by the Common Stock certificates and
will be transferred with and only with such Common Stock certificates, (ii)
new Common Stock certificates issued after the Record Date will contain a
notation incorporating the Rights Agreement by reference and (iii) the
surrender for transfer of any certificates for Common Stock outstanding
will also constitute the transfer of the Rights associated with the Common
Stock represented by such certificate. Pursuant to the Rights Agreement,
the Company reserves the right to require prior to the occurrence of a
Triggering Event (as defined below) that, upon any exercise of Rights, a
number of Rights be exercised so that only whole shares of Preferred Stock
will be issued.
The Rights are not exercisable until the Distribution Date and
will expire at 5:00 P.M. (Eastern standard time) on September 28, 2009,
unless earlier redeemed, exchanged, extended or terminated by the Company
as described below. At no time will the rights have any voting power.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common Stock as of
the close of business on the Distribution Date and, thereafter, the
separate Rights Certificates alone will represent the Rights. Except in
connection with the issuance of shares of Common Stock pursuant to the
exercise of stock options or under employees plans and as otherwise
determined by the Board of Directors, only shares of Common Stock issued
prior to the Distribution Date will be issued with Rights.
In the event that a Person becomes an Acquiring Person, except
pursuant to an offer for all outstanding shares of Common Stock which the
independent directors determine to be fair and not inadequate to and to
otherwise be in the best interests of the Company and its stockholders,
after receiving advice from one or more investment banking firms (a
"Qualifying Offer"), each holder of a Right will thereafter have the right
to receive, upon exercise, Common Stock (or, in certain circumstances,
cash, property or other securities of the Company) having a value equal to
two times the exercise price of the Right. Notwithstanding any of the
foregoing, following the occurrence of the event set forth in this
paragraph, all Rights that are, or (under certain circumstances specified
in the Rights Agreement) were, beneficially owned by any Acquiring Person
will be null and void. However, Rights are not exercisable following the
occurrence of the event set forth above until such time as the Rights are
no longer redeemable by the Company as set forth below.
For example, at an exercise price of $65 per Right, each Right
not owned by an Acquiring Person (or by certain related parties) following
an event set forth in the preceding paragraph would entitle its holder to
purchase $130 worth of Common Stock (or other consideration, as noted
above) for $65. Assuming that the Common Stock had a per share value of
$13 at such time, the holder of each valid Right would be entitled to
purchase 10 shares of Common Stock for $65.
In the event that (i) the Company is acquired in a merger (other
than a "clean-up" merger which follows a Qualifying Offer) or other
business combination transaction (x) in which the Company is not the
surviving entity, (y) in which the Company is the surviving entity and the
Common Stock is changed or exchanged or the Common Stock remains
outstanding but constitutes less than 50% of the shares outstanding
immediately following the merger, or (ii) 50% or more of the Company's
assets or earning power is transferred, each holder of a Right (except
Rights which have previously been voided as set forth above) shall
thereafter have the right to receive, upon exercise, common stock of the
acquiring company having a value equal to two times the exercise price of
the Right. The events set forth in this paragraph and in the second
preceding paragraph are referred to as the "Triggering Events."
At any time after a person becomes an Acquiring Person and prior
to the acquisition by such person or group of fifty percent (50%) or more
of the outstanding Common Stock, the Board may exchange the Rights (other
than Rights owned by such person or group which have become void), in whole
or in part, at an exchange ratio of one share of Common Stock, or one one-
hundredth of a share of Preferred Stock (or of a share of a class or series
of the Company's preferred stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
At any time until fifteen business days following the Stock
Acquisition Date, the Company may redeem the Rights in whole, but not in
part, at a price of $0.01 per Right (payable in cash, Common Stock or other
consideration deemed appropriate by the Board of Directors). Immediately
upon the action of the Board of Directors ordering redemption of the
Rights, the Rights will terminate and the only right of the holders of
Rights will be to receive the $0.01 redemption price.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends. While the
distribution of the Rights will not be taxable to stockholders or to the
Company, stockholders may, depending upon the circumstances, recognize
taxable income in the event that the Rights become exercisable for Common
Stock (or other consideration) of the Company or for common stock of the
acquiring company or in the event of the redemption of the Rights as set
forth above.
Any of the provisions of the Rights Agreement may be amended by
the Board of Directors of the Company prior to the Distribution Date.
After the Distribution Date, the provisions of the Rights Agreement may be
amended by the Board in order to cure any ambiguity, to make changes which
do not adversely affect the interests of holders of Rights, or to shorten
or lengthen any time period under the Rights Agreement. The foregoing
notwithstanding, no amendment may be made at such time as the Rights are
not redeemable.
The Rights Agreement specifying the terms of the Rights is
Exhibit 4 hereto and is incorporated herein by reference. The foregoing
description of the Rights is qualified in its entirety by reference to such
exhibit.
(b) Amendments to By-Laws
On September 14, 1999, the Board of Directors of the Company
further amended the Restated By-Laws of the Company to provide, among other
things, that notice by a stockholder of business or nominations for
directors to be brought before an annual meeting of stockholders must be
given to the Company at least 90 days prior to the anniversary date of the
prior year's annual meeting. A copy of the Restated By-Laws of the Company
as amended are filed herewith as Exhibit 3 (the "Amended By-laws").
Under the Amended Bylaws, a stockholder who wishes to propose
business for consideration or to nominate persons for election to the Board
of Directors at the Company's 2000 Annual Meeting of Stockholders must
deliver or mail to the Company and the Company must receive on or before
February 26, 2000 the information specified in the Amended Bylaws regarding
such proposal or nomination.
Additionally, under the Securities and Exchange Commission's Rule
14a-4, at the 2000 Annual Meeting of Stockholders, the Company may exercise
discretionary voting authority under proxies it solicits to vote on a
proposal made by a stockholder that the stockholder does not seek to
include in the Company's proxy statement pursuant to Rule 14a-8 unless the
Company is notified about the proposal on or before February 26, 2000, and
the stockholder satisfies the other requirements of Rule 14a-4(c).
The Restated By-laws were also amended to permit the creation of
an Executive Committee of the Board (which Committee has not yet been
established) which would generally be given all of the powers of the Board
permitted under Delaware law. The Board also made certain other amendments
to the Restated By-laws, including, among others, elimination of a
provision requiring the holding of the annual meeting within 13 months of
the prior year's meeting, mandating the appointment of an inspector of
elections, eliminating the provision regarding the required vote of
directors when there is a conflict of interest, and conforming certain
indemnification provisions to make them consistent with Delaware law.
(c) Stock Repurchase Program
On September 14, 1999, the Board of Directors of the Company
authorized the repurchase by the Company of up to 1,600,000 shares of its
outstanding Common Stock. Purchases will be made from time to time as
market and business conditions warrant, in open market, negotiated or
block transactions. At September 13, 1999, the Company had 13,142,488
shares of Common Stock outstanding.
On September 15, 1999, the Company issued a press release
disclosing the stock repurchase program and distribution of the Rights, a
copy of which is filed as Exhibit 99 to this Current Report on Form 8-K.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit No. Exhibit
----------- -------
3 Restated By-Laws of United Retail Group, Inc., as amended
on September 14, 1999 (together with form of amendment to
By-laws).
4 Rights Agreement, dated as of September 14, 1999,
between United Retail Group, Inc. and Continental Stock
Transfer & Trust Company, as Rights Agent, is
incorporated herein by reference to the exhibit to the
Company's Registration Statement on Form 8-A, dated
September 15, 1999.
99 Press Release issued by the Company on September 15, 1999.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
UNITED RETAIL GROUP, INC.
By: __________________________________________
Name: George R. Remeta
Title: Vice Chairman, Chief Administrative
Officer and Secretary
Date: September 15, 1999
INDEX TO EXHIBITS
Exhibit No. Exhibit
----------- -------
3 Restated By-Laws of United Retail Group, Inc., as amended
on September 14, 1999 (together with form of amendment to
By-laws).
4 Rights Agreement, dated as of September 14, 1999, between
United Retail Group, Inc. and Continental Stock Transfer &
Trust Company, as Rights Agent, is incorporated herein by
reference to the exhibit to the Company's Registration
Statement on Form 8-A, dated September 15, 1999.
99 Press Release issued by the Company on September 15, 1999.
RESTATED
BY-LAWS
OF
UNITED RETAIL GROUP, INC.
(a Delaware Corporation)
(as amended September 14, 1999)
---------
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in
the corporation shall be entitled to have a certificate signed by, or in
the name of, the corporation by the Chairman or Vice-Chairman of the board
of directors, if any, or by the President or a Vice-President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the corporation certifying the number of shares owned by him
in the corporation. Any and all signatures on any such certificate may be
facsimiles. 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.
The corporation may issue a new certificate of stock in place of
any certificate theretofore issued by it, alleged to have been lost,
stolen, or destroyed, and the board of directors may require the owner of
any lost, stolen, or destroyed certificate, or his legal representative, to
give the corporation a bond sufficient to indemnify the corporation against
any claim that may be made against it on account of the alleged loss,
theft, or destruction of any such certificate or the issuance of any such
new certificate.
2. FRACTIONAL SHARE INTERESTS. The corporation may, but shall
not be required to, issue fractions of a share. If the corporation does
not issue fractions of a share, it shall (1) arrange for the disposition of
fractional interests by those entitled thereto, (2) pay in cash the fair
value of fractions of a share as of the time when those entitled to receive
such fractions are determined, or (3) issue scrip or warrants in registered
or bearer form which shall entitle the holder to receive a certificate for
a full share upon the surrender of such scrip or warrants aggregating a
full share. A certificate for a fractional share shall, but script or
warrants shall not unless otherwise provided therein, entitle the holder to
exercise voting rights, to receive dividends thereon, and to participate in
any of the assets of the corporation in the event of liquidation, in each
case to the extent of such fraction. The board of directors may cause
scrip or warrants to be issued subject to the conditions that they shall
become void if not exchanged for certificates representing full shares
before a specified date, or subject to the conditions that the shares for
which scrip or warrants are exchangeable may be sold by the corporation and
the proceeds thereof distributed to the holders of scrip or warrants, or
subject to any other conditions which the board of directors may impose.
3. STOCK TRANSFER. Upon compliance with provisions restricting
the transfer or registration of transfer of shares of stock, if any,
transfers of shares of stock of the corporation shall be made only by the
registered holder thereof, or by his attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary of the corporation
or with a transfer agent or a registrar, if any, and on surrender of the
certificate or certificates for such shares of stock properly endorsed and
the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS. For the purpose of
determining the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or to express consent
to corporate action in writing without a meeting (if authorized by the
provisions of the certificate of incorporation or a certificate filed under
Section 151(g) of the General Corporation Law), or entitled to receive
payment of any dividend or other distribution or the 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 directors may fix, in advance a record date which shall not be
more than 60 days nor less then 10 days before the date of such meeting,
nor more than 60 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 entitled
to express consent to corporate action in writing without a meeting (if
authorized by the provisions of the certificate of incorporation or a
certificate filed under Section 151(g) of the General Corporation Law),
when no prior action by the board of directors is necessary, shall be the
day on which the first written consent is expressed; and 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 any meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of directors
may fix a new record date of the adjourned meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the
right to participate or vote thereat or to consent or dissent in writing in
lieu of a meeting (if authorized by the provisions of the certificate of
incorporation or a certificate filed under Section 151(g) of the General
Corporation Law), as the case may be, the term "share" or "shares" or
"share of stock" or "shares of stock" or "stockholder" or "stockholders"
refers to an outstanding share or shares of stock and to a holder or
holders of record of outstanding shares of stock when the corporation has
only one class of shares of stock outstanding; and said reference is also
intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class upon which
or upon whom the certificate of incorporation or a certificate filed under
Section 151(g) of the General Corporation Law confers the right to vote on
matters presented to the stockholders where there are two or more classes
or series of shares of stock or upon which or upon whom the General
Corporation Law confers such rights notwithstanding that the certificate of
incorporation or a certificate filed under Section 151(g) of the General
Corporation Law may provide for more than one class or series of shares of
stock, one or more of which are limited or denied such rights thereunder.
As used herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof the terms "share" or "shares" or "share of
stock" or "shares of stock" or "stockholder" or "stockholders" refers to
any outstanding share or shares of stock or holder or holders of record of
outstanding shares of stock, regardless of whether such stock or holder of
stock possesses the right to vote.
6. STOCKHOLDER MEETINGS.
- TIME OF ANNUAL MEETINGS. The annual meeting shall be held
on the date and at the time fixed, from time to time, by vote of the
directors.
- BUSINESS AT ANNUAL MEETING; ADVANCE NOTICE. No business may
be transacted at an annual meeting of stockholders, other than business
that is either (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the board of directors (or any
duly authorized committee thereof), (b) otherwise properly brought before
the annual meeting by or at the direction of the board of directors (or any
duly authorized committee thereof) or (c) otherwise properly brought before
the annual meeting by any stockholder of the corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for
in this Section 6 and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) who complies
with the notice procedures set forth in this Section 6.
In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to
the Secretary of the corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the corporation not less than ninety (90) days prior to the anniversary
date of the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date
that is not within thirty (30) days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received not
later than the close of business on the tenth (10th) day following the day
on which such notice of the date of the annual meeting was mailed or such
public disclosure of the date of the annual meeting was made, whichever
first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to
bring before the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record
address of such stockholder, (iii) the class or series and number of shares
of capital stock of the corporation which are owned beneficially or of
record by such stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by
such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before
the meeting. In addition, notwithstanding anything in this Section 6 to
the contrary, a stockholder intending to nominate one or more persons for
election as a director at an annual or special meeting must comply with the
provisions relating thereto contained in this Section 6 for such nomination
or nominations to be properly brought before such meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 6, provided,
however, that, once business has been properly brought before the annual
meeting in accordance with such procedures, nothing in this Section 6 shall
be deemed to preclude discussion by any stockholder of any such business.
If the Chairman of an annual meeting determines that business was not
properly brought before the annual meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the business was
not properly brought before the meeting and such business shall not be
transacted.
- SPECIAL MEETINGS. Special meetings may be called by the
Chairman of the board of directors, by at least five directors or by any
officer instructed by at least five directors to call the meeting. The
business to be conducted at a special meeting shall be limited to the
business set forth in the notice of meeting.
- PLACE. Annual meetings and special meetings shall be held
at such place, within or without the State of Delaware, as the board of
directors may, from time to time, fix. Whenever the board of directors
shall fail to fix such place, the meeting shall be held at the headquarters
office of the corporation.
- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, stating the place, date, and hour of the meeting and
stating the place within the city or other municipality or community at
which the list of stockholders (whether or not entitled to vote at the
meeting) and warrant holders of the corporation may be examined. The
notice of an annual meeting shall state that the meeting is called for the
election of directors and for the transaction of other business which may
properly come before the meeting, and shall (if any other action which
could be taken at a special meeting is to be taken at such annual meeting)
state the purpose or purposes. The notice of a special meeting shall in all
instances state clearly the purpose or purposes for which the meeting is to
be called. The notice of any meeting shall also include, or be accompanied
by, any additional statements, information, or documents prescribed by the
General Corporation Law. Except as otherwise provided by the General
Corporation Law, a copy of the notice of any meeting shall be given,
personally or by mail, not less than 10 days nor more than 60 days before
the date of the meeting, unless the lapse of the prescribed period of time
shall have been waived, and directed to each stockholder and warrant
holder, whether or not such stockholder is entitled to vote at a meeting of
stockholders, at his record address or at such other address which he may
have furnished by request in writing to the Secretary of the corporation.
Notice by mail shall be deemed to be given when deposited, with postage
thereon prepaid, in the United States mail. If a meeting is adjourned to
another time, not more than 30 days hence, and/or to another place, and if
an announcement of the adjourned time and/or place is made at the meeting,
it shall not be necessary to give notice of the adjourned meeting unless
the board of directors, after adjournment, fixes a new record date for the
adjourned meeting. Notice need not be given to any stockholder or warrant
holder who submits a written waiver of notice signed by him before or after
the time stated therein. Attendance of a stockholder or warrant holder at
a meeting of stockholders shall constitute a waiver of notice of such
meeting, except when the stockholder attends the 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 annual or
special meeting of the stockholders need be specified in any written waiver
of notice.
- STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least 10 days before
every meeting of stockholders, a complete list of the stockholders,
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 period of at
least 10 days prior to the meeting, either at a place within the city or
other municipality or community 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 by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by this section or
the books of the corporation, or to vote at any meeting of stockholders.
- CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority
and if present and acting: the Chairman of the board, if any, the
Vice-Chairman of the board, if any, the President, or the Executive
Vice-Presidents in order of seniority, or, if none of the foregoing is in
office and present and acting, by a chairman to be chosen by the
stockholders. The Secretary of the corporation, or in his absence, an
Assistant Secretary, shall act as secretary of every meeting, but if
neither the Secretary nor an Assistant Secretary is present the Chairman of
the meeting shall appoint a secretary of the meeting.
- NOMINATIONS. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as directors
of the corporation, except as may be otherwise provided in the certificate
of incorporation with respect to the right of holders of preferred stock of
the corporation to nominate and elect a specified number of directors in
certain circumstances. Nominations of persons for election to the board of
directors may be made at any annual meeting of stockholders, or at any
special meeting of stockholders called for the purpose of electing
directors, (a) by or at the direction of the board of directors (or any
duly authorized committee thereof) or (b) by any stockholder of the
corporation (i) who is a stockholder of record on the date of the giving of
the notice provided for in this Section 6 and on the record date for the
determination of stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth below in this Section 6.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given
timely notice thereof in proper written form to the Secretary of the
corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the corporation (a) in the case of an annual meeting, not less than ninety
(90) days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close of business on
the tenth (10th) day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs; and (b) in the case of a
special meeting of stockholders called for the purpose of electing
directors, not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the special meeting was
mailed or public disclosure of the date of the special meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder
proposes to nominate for election as a director (i) the name, age, business
address and residence address of the person, (ii) the principal occupation
or employment of the person, (iii) the class or series and number of shares
of capital stock of the corporation which are owned beneficially or of
record by the person and (iv) any other information relating to the person
that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving the notice (i)
the name and record address of such stockholder, (ii) the class or series
and number of shares of capital stock of the corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nominations are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by
proxy at the meeting to nominate the persons named in its notice and (v)
any other information relating to such stockholder that would be required
to be disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve
as a director if elected.
No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in
this Section 6. If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
- PROXY REPRESENTATION. Every stockholder may authorize
another person or persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or
dissent without a meeting. Every proxy must be signed by the stockholder
or by his attorney-in-fact. No proxy shall be voted or acted upon after
three years from its date unless such proxy provided for a longer period.
A duly executed proxy shall be irrevocable if it states that it is
irrevocable and, if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is
an interest in the stock itself or an interest in the corporation
generally.
- INSPECTORS. The directors, in advance of any meeting, shall
appoint one or more inspectors of election to act at the meeting or any
adjournment thereof. If an inspector or inspectors are not appointed, the
person presiding at the meeting shall appoint one or more inspectors. In
case any person who may be appointed as an inspector fails to appear or
act, the vacancy shall be filled by appointment made by the directors in
advance of the meeting or at the meeting by the person presiding thereat.
Each inspector, if any, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector
at such meeting with strict impartiality and according to the best of his
ability. The inspectors shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented
at the meeting, the existence of a quorum, and the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and determine
all challenges and questions arising in connection with the right to vote,
count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the person presiding at the
meeting, the inspector or inspectors shall make a report in writing of any
challenge, question or matter determined by him or them and execute a
certificate of any fact found by him or them.
- QUORUM. The holders of shares representing a majority of
votes of the outstanding shares shall constitute a quorum at a meeting of
stockholders for the transaction of any business. The stockholders present
may adjourn to a later time despite the absence of quorum.
- VOTING. Each share of stock shall entitle the holder
thereof to such number of votes as set forth in the certificate of
incorporation or a certificate filed under Section 151(g) of the General
Corporation Law. In the election of directors, a plurality of the votes
cast shall elect. Any other action shall be authorized by a majority of
the votes cast except where the General Corporation Law prescribes a
different percentage of votes and/or a different exercise of voting power,
and except as may be otherwise prescribed by the provisions of the
certificate of incorporation or a certificate filed under Section 151(g) of
the General Corporation Law or these By-laws. In the election of
directors, and for any other action, voting need not be by ballot.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business and affairs of the
corporation shall be managed by or under the direction of the board of
directors of the corporation. The board of directors shall have the
authority to fix the compensation of the members thereof. The use of the
phrase "whole board" herein refers to the total number of directors which
the corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a
stockholder, or a citizen or resident of the United States or the State of
Delaware. The number of directors constituting the whole board shall be
nine.
3. ELECTION AND TERM.
(a) RESIGNATION. Any director may resign at any time upon
written notice to the corporation.
(b) TERM. Directors who are elected at an annual meeting
of stockholders, and directors who are elected in the interim to fill
vacancies and newly created directorships, shall hold office until the next
annual meeting of stockholders or until their successors are elected and
qualified or until their earlier resignation or removal.
(c) VACANCIES. In the interim between annual meetings of
stockholders or of special meetings of stockholders called for the election
of directors and/or for the filling of any vacancies in that connection,
newly created directorships and any vacancies in the board of directors may
be filled by the vote of a majority of all the remaining directors then in
office although less than a quorum, or by the sole remaining director.
4. MEETINGS.
(a) TIME. Meetings shall be held at such time as the board
of directors or person calling the meeting shall fix, except that the first
meeting of a newly elected board of directors shall be held as soon after
its election as the directors may conveniently assemble. Regular meetings
for the following year shall be scheduled at the first meeting of a newly
elected board of directors.
(b) PLACE. Meetings shall be held at such place within or
without the State of Delaware as shall be fixed by the board or person
calling the meeting.
(c) CALL. No call shall be required for regular meetings
for which the time and place have been fixed. Special meetings may be
called by or at the direction of the Chairman of the board, if any, the
Vice-Chairman of the board, if any, or the President, or by at least
one-third of the directors in office or by any officer instructed by at
least one-third of the directors in office to call the meeting.
(d) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice
shall be required for regular meetings for which the time and place have
been fixed. Written notice of the time, place and purpose shall be given
for special meetings at least 72 hours in advance. Written notice shall be
sent to each director by United States mail postage prepaid, overnight
delivery service, telecopier transmission or e-mail and shall be effective
upon receipt. Notice shall be sent to the respective addresses designated
in writing by the respective directors or, in the absence of such
designation, to the last known addresses. Notice need not be given to any
director or to any member of a committee of directors who submits a written
waiver of notice signed by him before or after the time for the meeting
stated therein. Attendance of any such person at a meeting shall
constitute a waiver of notice of such meeting, except when he 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 regular or special meeting of the directors need be
specified in any written waiver of notice, provided, however, that a waiver
of notice shall be effective only with respect to the purpose stated in the
notice of the meeting.
(e) QUORUM AND ACTION. A majority of the whole board shall
constitute a quorum. A majority of the directors present, whether or not a
quorum is present, may adjourn to another time and place. Except as herein
otherwise provided, and except as otherwise provided by the General
Corporation Law, the vote of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the board of
directors. The quorum and voting provisions herein stated shall not be
construed as conflicting with any provisions of the General Corporation
Law, the certificate of incorporation and these By-laws which govern a
meeting of directors held to fill vacancies and newly created directorships
in the board of directors or action of disinterested directors.
(f) HIGHER VOTE FOR CERTAIN ACTIONS BY THE BOARD OF
DIRECTORS. The affirmative vote of a majority of the directors in office
who have not disqualified themselves because of a potential conflict of
interest shall be required to approve the adoption of a resolution (i)
removing either the Chairman of the board or the President of the
corporation from office, (ii) proposing an amendment to or a repeal of any
provision of, or the adoption of any new provision of, the certificate of
incorporation of the corporation, of any certificate filed under Section
151(g) of the General Corporation Law, or of these By-laws or (iii)
authorizing the filing of any certificate under Section 151(g) of the
General Corporation Law.
(g) CHAIRMAN OF THE MEETING. The Chairman of the board of
directors, if any and if present and acting, shall preside at all meetings.
Otherwise, the Vice-Chairman of the board of directors, if any and if
present and acting, or the President, if present and acting, or any other
director chosen by the board of directors, shall preside.
5. COMMITTEES.
(a) MEMBERSHIP. The board of directors by majority vote of
the whole board shall designate the following standing committees: an
executive committee, a nominating committee, a compensation committee, a
benefit committee, a finance committee and an audit committee, and may
designate additional standing committees. The director presiding at any
meeting of the board of directors may name two or more directors as an ad
hoc committee to render advice on matters not within the powers and
authority of any standing committee.
(b) QUORUM. The majority of the authorized number of
directors that comprises a standing committee shall constitute a quorum of
that committee. No alternate members of committees shall be designated.
(c) AUTHORITY. To the extent provided in the resolution of
the board of directors establishing such committee, a standing committee
shall have and may exercise the powers and authority of the board of
directors in the management of the business and affairs of the corporation
and may authorize the seal of the corporation to be affixed to all papers
which may require it; provided, however, no committee may (i) exercise the
powers and authority of the board of directors in contravention of Section
141 of the General Corporation Law, (ii) take any action which requires
higher than usual vote of the board of directors, as provided in Article
II, Section 4(f) of these By-Laws, except that the executive committee
shall be permitted to act with respect to the filing of certificates under
Section 151(g) of the General Corporation Law or (iii) repeal or amend any
resolution adopted by the board of directors. Ad hoc committees shall be
advisory and shall not exercise the powers and authority of the board of
directors.
(d) VOTE. Each committee shall act by vote of a majority
of directors comprising the Committee present at a meeting at which a
quorum is present.
(e) MEETINGS.
(i) Meetings of standing committees shall be held at
such time as the committee or person calling the meeting shall fix.
(ii) Meetings of standing committees shall be held at
such place within or without the State of Delaware as shall be fixed by the
committee or person calling the meeting.
(iii) Committee meetings may be called by or at the
direction of any committee member or by any officer instructed by any
committee member.
(iv) Written notice of the time, place and purpose
shall be given for committee meetings at least 72 hours in advance to each
committee member with a copy to the Secretary. Written notice shall be
sent to each committee member by United States mail postage prepaid,
overnight delivery service, telecopier transmission or e-mail and shall be
effective upon receipt. Notice shall be sent to the respective addresses
designated in writing by the respective committee members or, in the
absence of such designation, to the last known addresses. Notice need not
be given to any committee member who submits a written waiver of notice
signed by him before or after the time for the meeting stated therein.
Attendance of any such person at a meeting shall constitute a waiver of
notice of such meeting, except when he 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 a committee need be specified in any written waiver of notice, provided,
however, that a waiver of notice shall be effective only with respect to
the purpose stated in the notice of the meeting.
(v) A majority of committee members present at a
committee meeting, even if less than a quorum, may adjourn a meeting to
another time and place. The quorum and voting provisions herein stated
shall not be construed as conflicting with any provisions of the General
Corporation Law, the certificate of incorporation and these By-Laws which
govern action of disinterested directors.
(f) REPORTS. The chairman of each committee shall make a
report on its activities at each meeting of the board of directors.
6. WRITTEN ACTION. Any action required or permitted to be
taken at any meeting of the board of directors or any committee thereof may
be taken without a meeting if all 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.
7. ELECTRONIC COMMUNICATION. Any member or members of the
board of directors or of any committee may participate in a meeting of the
board of directors, or any such committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other.
8. REMOVAL. Subject to the rights of the holders of shares of
any class or series of preferred stock, any director or the entire board of
directors may be removed as provided in the certificate of incorporation
and any certificate filed under Section 151(g) of the General Corporation
Law.
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a Chairman of
the Board, a President, a Secretary, and, if deemed necessary, expedient or
desirable by the board of directors, a Vice-Chairman of the Board,
Executive Vice-Presidents, Senior Vice-Presidents, one or more other
Vice-Presidents, one or more Assistant Secretaries, one or more Assistant
Treasurers, and such other officers with such titles as the resolution of
the board of directors choosing them shall designate. Except as may
otherwise be provided in the resolution of the board of directors choosing
him, no officer other than the Chairman or Vice-Chairman of the Board, if
any, need be a director. Any number of offices may be held by the same
person.
Unless otherwise provided in the resolution choosing him, each
officer shall be chosen for a term which shall continue until the meeting
of the board of directors following the next annual meeting of stockholders
and until his successor shall have been chosen and qualified. Any officer
may be removed, with or without cause, by such vote of the directors as may
be prescribed in the by-laws. Any vacancy in any office may be filled by
the board of directors.
The Chairman of the Board shall be the Chief Executive Officer of
the corporation and shall have general supervision over the property,
business and affairs of the corporation and over its several officers,
subject, however, to the control of the board of directors. He shall, if
present, preside at all meetings of the stockholders and of the board of
directors and of all committees of which he is a member. He may sign, with
the Secretary, Treasurer or any other proper officer of the corporation
thereunto authorized by the board of directors, certificates for shares in
the corporation. He may sign, execute and deliver in the name of the
corporation, or authorize other employees to sign, execute and deliver, all
deeds, mortgages, bonds, leases, contracts, or other instruments either
when specially authorized by the board of directors or when required or
deemed necessary or advisable by him in the ordinary conduct of the
corporation's normal business, except in cases where the signing and
execution thereof shall be required by law or otherwise to be signed or
executed by some other officer or agent, and he may cause the seal of the
corporation, if any, to be affixed to any instrument requiring the same.
The Secretary or Assistant Secretary of the corporation shall
record all of the proceedings of all meetings and the actions in writing of
stockholders, directors and committees of directors, and shall exercise
such additional authority and perform such additional duties as the board
of directors shall assign to him.
All other officers of the corporation shall perform such duties
in the management and operation of the corporation as are assigned to them
by the Chairman of the board of directors or by the board of directors.
ARTICLE IV
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
1. INDEMNIFICATION RESPECTING THIRD PARTY CLAIMS. The
corporation, to the full extent permitted and in the manner required by the
laws of the State of Delaware as in effect at the time of the adoption of
this Article or as such laws may be amended from time to time, shall
indemnify any person who was or is made a party to or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding (including any appeal thereof), whether civil, criminal,
administrative or investigative in nature (other than an action by or in
the right of the corporation), by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation, or, if at a
time when he was a director, officer employee or agent of the corporation,
is or was serving at the request of the corporation as a director, officer,
partner, fiduciary, employee or agent (a "Subsidiary Officer") of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise (an "Affiliated Entity"), against expenses (including
attorneys' fees and disbursements), costs, judgments, fines, penalties and
amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in
good faith and in a manner such person 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 or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement or 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 such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, that
such person had reasonable cause to believe that his or her conduct was
unlawful.
2. INDEMNIFICATION RESPECTING DERIVATIVE CLAIMS. The
corporation, to the full extent permitted, and in the manner required, by
the laws of the State of Delaware as in effect at the time of the adoption
of this Article or as such laws may be amended from time to time, shall
indemnify any person who was or is made a party to or is threatened to be
made a party to any threatened, pending or completed action or suit
(including any appeal thereof) brought in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation, or, if at
a time when he was a director, officer, employee or agent of the
corporation, is or was serving at the request of the corporation as a
Subsidiary Officer of an Affiliated Entity against expenses (including
attorneys' fees and disbursements) and costs actually and reasonably
incurred by such person in connection with such action or suit if such
person acted in good faith and in a manner such person 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 of
the State of Delaware 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 and costs as
the Court of Chancery of the State of Delaware or such other court shall
deem proper.
3. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Any
indemnification under Section 1 or 2 of this Article (unless ordered by a
court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification is proper under the
circumstances because such person has met the applicable standard of
conduct set forth in Section 1 or 2 of this Article. Such determination
shall be made, with respect to a person who is a director or officer at the
time of such determination, (i) by a majority vote of the directors who are
not parties to the action, suit or proceeding in respect of which
indemnification is sought, even though less than a quorum, or (ii) by a
committee of such directors designated by majority vote of such directors,
even though less than a quorum, or (iii) if there are no such directors or
if such directors so direct, by independent legal counsel in a written
opinion, or (iv) by the stockholders. In the event a request for
indemnification is made by any person referred to in Section 1 or Section
2, the corporation shall cause such determination to be made not later than
60 days after such request is made.
4. RIGHT TO INDEMNIFICATION UPON SUCCESSFUL DEFENSE AND FOR
SERVICE AS A WITNESS.
(a) Notwithstanding the other provisions of this Article,
to the extent that a present or former director, officer, employee or agent
of the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 1 or 2 of
this Article, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees and
disbursements) and costs actually and reasonably incurred by such person in
connection therewith.
(b) To the extent any person who is or was a director or
officer of the corporation has served or prepared to serve as a witness in
any action, suit or proceeding (whether civil, criminal, administrative or
investigative in nature) or in any investigation by the corporation or the
board of directors thereof or a committee thereof or by any securities
exchange on which securities of the corporation are or were listed by
reason of his services as a director or officer of the corporation or as a
Subsidiary Officer of any Affiliated Entity (other than in a suit commenced
by such person), the corporation shall indemnify such person against
expenses (including attorneys' fees and disbursements) and costs actually
and reasonably incurred by such person in connection therewith within 30
days after receipt by the corporation from such person of a statement
requesting such indemnification, averring such service and reasonably
evidencing such expenses and costs. The corporation may indemnify any
employee or agent of the corporation to the same extent it may indemnify
any director or officer of the corporation pursuant to the foregoing
sentence of this paragraph.
5. ADVANCE OF EXPENSES. Expenses and costs incurred by any
person referred to in Section 1 or Section 2 of this Article in defending a
civil, criminal, administrative or investigative action, suit or proceeding
shall 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 such person to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the
corporation as authorized by this Article.
6. INDEMNIFICATION NOT EXCLUSIVE. The provision of
indemnification to or the advancement of expenses and costs to any person
under this Article, or the entitlement of any person to indemnification or
advancement of expenses and costs under this Article, shall not limit or
restrict in any way the power of the corporation to indemnify or advance
expenses and costs to such person in any other way permitted by law or be
deemed exclusive of, or invalidate, any right to which any person seeking
indemnification or advancement of expenses and costs may be entitled under
any law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's capacity as an officer,
director, employee or agent of the corporation and as to action in any
other capacity while holding any such position.
7. ACCRUAL OF CLAIMS; SUCCESSOR. The indemnification provided
or permitted under this Article shall apply in respect of any expense,
cost, judgment, fine, penalty or amount paid in settlement, whether or not
the claim or cause of action in respect thereof accrued or arose before or
after the effective date of this Article. The right of any person who is
or was a director, officer, employee or agent of the corporation to
indemnification under this Article shall continue after he shall have
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, distributees, executors, administrators and other
legal representatives of such person.
8. CORPORATE OBLIGATIONS; SUCCESSORS. This Article shall be
deemed to create a binding obligation on the part of the corporation to its
current and former officers and directors and their heirs, distributees,
executors, administrators and other legal representatives, and such persons
in acting in such capacities shall be entitled to rely on the provisions of
this Article, without giving notice thereof to the corporation.
9. 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, or to represent the interests of, the corporation as a Subsidiary
Officer of any Affiliated Entity, against any liability asserted against
such person and incurred by such person in any such capacity, or arising
out of such person's status as such, whether or not the corporation would
have the power to indemnify such person against such liability under the
provisions of this Article or applicable law.
10. DEFINITIONS OF CERTAIN TERMS.
(a) For purposes of this Article, 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 corporate existence had
continued, would have been permitted under applicable law to indemnify its
directors, officers, 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, or to represent the interests of, such
constituent corporation as a director, officer, employee or agent of any
Affiliated Enterprise shall stand in the same position under the provisions
of this Article with respect to the resulting or surviving corporation as
such person would have with respect to such constituent corporation if this
separate existence had continued.
(b) For purposes of this Article, references to "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; references to "serving at the request of the
corporation" shall include any service as a director, officer, fiduciary,
employee or agent of the corporation which imposes duties on, or involves
services by, such director, officer, fiduciary, employee or agent with
respect to an employee benefit plan, its participants, or beneficiaries;
and a person who acted in good faith and in a manner such person reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
Article.
ARTICLE V
CORPORATE SEAL
The corporate seal shall be in such form as the board of
directors shall prescribe.
ARTICLE VI
FISCAL YEAR
The fiscal year of the corporation shall begin on the Sunday
which follows the Saturday which is closest to January 31st in any calendar
year and shall end on the Saturday closest to January 31st in the following
calendar year, or shall be for such other period as the board of directors
from time to time may designate.
ARTICLE VII
CONTROL OVER BY-LAWS
Subject to the provisions of the certificate of incorporation,
any certificate filed under Section 151(g) of the General Corporation Law
and Article II, Section 4 of these By-laws, and the provisions of the
General Corporation Law, the power to amend, alter or repeal these By-laws
and to adopt new By-laws may be exercised by the board of directors.
FORM OF AMENDMENT TO THE BY-LAWS APPROVED
BY THE BOARD OF DIRECTORS OF
UNITED RETAIL GROUP, INC.
September 14, 1999
Amendments to the By-Laws
RESOLVED, that Article I, Section 6 of the By-Laws be, and it
hereby is, amended to add a new clause after the clause entitled " TIME OF
ANNUAL MEETINGS." to read as follows:
"-- BUSINESS AT ANNUAL MEETING; ADVANCE NOTICE FOR NEW BUSINESS.
No business may be transacted at an annual meeting of stockholders,
other than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of
the board of directors (or any duly authorized committee thereof), (b)
otherwise properly brought before the annual meeting by or at the
direction of the board of directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual meeting
by any stockholder of the corporation (i) who is a stockholder of
record on the date of the giving of the notice provided for in this
Section 6 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the
notice procedures set forth in this Section 6.
In addition to any other applicable requirements, for business
to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written
form to the Secretary of the corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices
of the corporation not less than ninety (90) days prior to the
anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the stockholder in
order to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which such
notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first
occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes
to bring before the annual meeting (i) a brief description of the
business desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting, (ii) the
name and record address of such stockholder, (iii) the class or series
and number of shares of capital stock of the corporation which are
owned beneficially or of record by such stockholder, (iv) a
description of all arrangements or understandings between such
stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and
any material interest of such stockholder in such business and (v) a
representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting.
In addition, notwithstanding anything in this Section 6 to the
contrary, a stockholder intending to nominate one or more persons for
election as a director at an annual or special meeting must comply
with the provisions relating thereto contained in this Section 6 for
such nomination or nominations to be properly brought before such
meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 6, provided,
however, that, once business has been properly brought before the
annual meeting in accordance with such procedures, nothing in this
Section 6 shall be deemed to preclude discussion by any stockholder of
any such business. If the Chairman of an annual meeting determines
that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the business was not properly brought before the
meeting and such business shall not be transacted.";and further
RESOLVED, that Article I, Section 6 of the By-Laws be, and it
hereby is, further amended to revise the clause designated " CALL OF
SPECIAL MEETINGS." to read as follows:
"-- SPECIAL MEETINGS. Special meetings may be called by the
Chairman of the board of directors, by at least five directors or by
any officer instructed by at least five directors to call the meeting.
The business to be conducted at a special meeting shall be limited to
the business set forth in the notice of meeting."; and further
RESOLVED, that Article II, Section 6 of the By-Laws be, and it
hereby is, amended to replace the clause designated " NOMINATIONS." with
the following:
"-- NOMINATIONS. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors of the corporation, except as may be otherwise provided in
the certificate of incorporation with respect to the right of holders
of preferred stock of the corporation to nominate and elect a
specified number of directors in certain circumstances. Nominations of
persons for election to the board of directors may be made at any
annual meeting of stockholders, or at any special meeting of
stockholders called for the purpose of electing directors, (a) by or
at the direction of the board of directors (or any duly authorized
committee thereof) or (b) by any stockholder of the corporation (i)
who is a stockholder of record on the date of the giving of the notice
provided for in this Section 6 and on the record date for the
determination of stockholders entitled to vote at such meeting and
(ii) who complies with the notice procedures set forth below in this
Section 6.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have
given timely notice thereof in proper written form to the Secretary of
the corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices
of the corporation (a) in the case of an annual meeting, not less than
ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that in
the event that the annual meeting is called for a date that is not
within thirty (30) days before or after such anniversary date, notice
by the stockholder in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the day
on which such notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting was made,
whichever first occurs; and (b) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later
than the close of business on the tenth (10th) day following the day
on which notice of the date of the special meeting was mailed or
public disclosure of the date of the special meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder
proposes to nominate for election as a director (i) the name, age,
business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class or
series and number of shares of capital stock of the corporation which
are owned beneficially or of record by the person and (iv) any other
information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving the
notice (i) the name and record address of such stockholder, (ii) the
class or series and number of shares of capital stock of the
corporation which are owned beneficially or of record by such
stockholder, (iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the
nominations are to be made by such stockholder, (iv) a representation
that such stockholder intends to appear in person or by proxy at the
meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by
a written consent of each proposed nominee to being named as a nominee
and to serve as a director if elected.
No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set
forth in this Section 6. If the Chairman of the meeting determines
that a nomination was not made in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be
disregarded."; and further
RESOLVED, that Article I, Section 6 of the By-Laws be, and it
hereby is, amended to revise the clause designated "--INSPECTORS." to read
as follows:
"- INSPECTORS. The directors, in advance of any meeting, shall
appoint one or more inspectors of election to act at the meeting or
any adjournment thereof. If an inspector or inspectors are not
appointed, the person presiding at the meeting shall appoint one or
more inspectors. In case any person who may be appointed as an
inspector fails to appear or act, the vacancy shall be filled by
appointment made by the directors in advance of the meeting or at the
meeting by the person presiding thereat. Each inspector, if any,
before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. The
inspectors shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum, and the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request of the
person presiding at the meeting, the inspector or inspectors shall
make a report in writing of any challenge, question or matter
determined by him or them and execute a certificate of any fact found
by him or them."; and further
RESOLVED, that the By-Laws be, and they hereby are, amended to
delete in its entirety Section 7 of Article I thereof; and further
RESOLVED, that the By-Laws be, and they hereby are, amended to
delete in its entirety clause (f) of Section 4 of Article II thereof and to
re-letter appropriately the remaining clauses of Section 4 of Article II;
and further
RESOLVED, that, after the re-lettering referred to in the
immediately preceding resolution, the By-Laws be, and they hereby are,
amended to revise clause (f) of Section 4 of Article II thereof, by
changing the word "proposing" appearing in subclause (iii) thereof to the
word "authorizing"; and further
RESOLVED, that the By-Laws be, and they hereby are, amended to
revise Section 5 of Article II thereof to read as follows:
5. COMMITTEES.
(a) MEMBERSHIP. The board of directors by majority vote of
the whole board shall designate the following standing
committees: an executive committee, a nominating committee, a
compensation committee, a benefit committee, a finance committee
and an audit committee, and may designate additional standing
committees. The director presiding at any meeting of the board
of directors may name two or more directors as an ad hoc
committee to render advice on matters not within the powers and
authority of any standing committee.
(b) QUORUM. The majority of the authorized number of
directors that comprises a standing committee shall constitute a
quorum of that committee. No alternate members of committees
shall be designated.
(c) AUTHORITY. To the extent provided in the resolution of
the board of directors establishing such committee, a standing
committee shall have and may exercise the powers and authority
of the board of directors in the management of the business and
affairs of the corporation and may authorize the seal of the
corporation to be affixed to all papers which may require it;
provided, however, no committee may (i) exercise the powers and
authority of the board of directors in contravention of Section
141 of the General Corporation Law, (ii) take any action which
requires higher than usual vote of the board of directors, as
provided in Article II, Section 4(f) of these By-Laws, except
that the executive committee shall be permitted to act with
respect to the filing of certificates under Section 151(g) of
the General Corporation Law or (iii) repeal or amend any
resolution adopted by the board of directors. Ad hoc committees
shall be advisory and shall not exercise the powers and
authority of the board of directors.
(d) VOTE. Each committee shall act by vote of a majority of
directors comprising the Committee present at a meeting at which
a quorum is present.
(e) MEETINGS.
(i) Meetings of standing committees shall be held at
such time as the committee or person calling the meeting shall
fix.
(ii) Meetings of standing committees shall be held at
such place within or without the State of Delaware as shall be
fixed by the committee or person calling the meeting.
(iii) Committee meetings may be called by or at the
direction of any committee member or by any officer instructed
by any committee member.
(iv) Written notice of the time, place and purpose shall
be given for committee meetings at least 72 hours in advance to
each committee member with a copy to the Secretary. Written
notice shall be sent to each committee member by United States
mail postage prepaid, overnight delivery service, telecopier
transmission or e-mail and shall be effective upon receipt.
Notice shall be sent to the respective addresses designated in
writing by the respective committee members or, in the absence
of such designation, to the last known addresses. Notice need
not be given to any committee member who submits a written
waiver of notice signed by him before or after the time for the
meeting stated therein. Attendance of any such person at a
meeting shall constitute a waiver of notice of such meeting,
except when he 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 a committee need be specified in any
written waiver of notice, provided, however, that a waiver of
notice shall be effective only with respect to the purpose
stated in the notice of the meeting.
(v) A majority of committee members present at a
committee meeting, even if less than a quorum, may adjourn a
meeting to another time and place. The quorum and voting
provisions herein stated shall not be construed as conflicting
with any provisions of the General Corporation Law, the
certificate of incorporation and these By-Laws which govern
action of disinterested directors.
(f) REPORTS. The chairman of each committee shall make a report
on its activities at each meeting of the board of directors."; and
further
RESOLVED, that the By-Laws be, and they hereby are, amended to
revise Sections 1, 2, 3 and 4(a) of Article IV to read as follows:
"1. INDEMNIFICATION RESPECTING THIRD PARTY CLAIMS. The
corporation, to the full extent permitted and in the manner required
by the laws of the State of Delaware as in effect at the time of the
adoption of this Article or as such laws may be amended from time to
time, shall indemnify any person who was or is made a party to or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (including any appeal thereof), whether
civil, criminal, administrative or investigative in nature (other than
an action by or in the right of the corporation), by reason of the
fact that such person is or was a director, officer, employee or agent
of the corporation, or, if at a time when he was a director, officer
employee or agent of the corporation, is or was serving at the request
of the corporation as a director, officer, partner, fiduciary,
employee or agent (a "Subsidiary Officer") of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise (an "Affiliated Entity"), against expenses (including
attorneys' fees and disbursements), costs, judgments, fines, penalties
and amounts paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person 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 or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement or 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 such person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
that such person had reasonable cause to believe that his or her
conduct was unlawful.
2. INDEMNIFICATION RESPECTING DERIVATIVE CLAIMS. The
corporation, to the full extent permitted, and in the manner required,
by the laws of the State of Delaware as in effect at the time of the
adoption of this Article or as such laws may be amended from time to
time, shall indemnify any person who was or is made a party to or is
threatened to be made a party to any threatened, pending or completed
action or suit (including any appeal thereof) brought in the right of
the corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director, officer, employee or agent
of the corporation, or, if at a time when he was a director, officer,
employee or agent of the corporation, is or was serving at the request
of the corporation as a Subsidiary Officer of an Affiliated Entity
against expenses (including attorneys' fees and disbursements) and
costs actually and reasonably incurred by such person in connection
with such action or suit if such person acted in good faith and in a
manner such person 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 of the
State of Delaware 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 and costs as the Court of Chancery of the State of
Delaware or such other court shall deem proper.
3. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Any
indemnification under Section 1 or 2 of this Article (unless ordered
by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification is proper
under the circumstances because such person has met the applicable
standard of conduct set forth in Section 1 or 2 of this Article. Such
determination shall be made, with respect to a person who is a
director or officer at the time of such determination, (i) by a
majority vote of the directors who are not parties to the action, suit
or proceeding in respect of which indemnification is sought, even
though less than a quorum, or (ii) by a committee of such directors
designated by majority vote of such directors, even though less than a
quorum, or (iii) if there are no such directors or if such directors
so direct, by independent legal counsel in a written opinion, or (iv)
by the stockholders. In the event a request for indemnification is
made by any person referred to in Section 1 or Section 2, the
corporation shall cause such determination to be made not later than
60 days after such request is made.
4. RIGHT TO INDEMNIFICATION UPON SUCCESSFUL DEFENSE AND FOR
SERVICE AS A WITNESS.
(a) Notwithstanding the other provisions of this Article, to
the extent that a present or former director, officer, employee or
agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
Section 1 or 2 of this Article, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
(including attorneys' fees and disbursements) and costs actually and
reasonably incurred by such person in connection therewith."
Contact: George R. Remeta
Vice Chairman and Chief Administrative Officer
United Retail Group, Inc.
201-909-2110
Investor Relations: Lynn Morgen/Carolyn Capaccio/Teresa Kollappallil
Press: Michael McMullan
Morgen-Walke Associates, Inc.
212-850-5600
UNITED RETAIL GROUP AUTHORIZES STOCK BUYBACKS
Rochelle Park, New Jersey, September 15, 1999 - United Retail Group, Inc.
(NASDAQ-NMS: "URGI") announced that its Board of Directors has authorized
the Company's repurchase of up to 1,600,000 shares of its Common Stock,
representing 12% of shares outstanding. Purchases may be made from time to
time on the Nasdaq National Market System and in negotiated or block
transactions, and will be paid for from the Company's cash reserves.
Raphael Benaroya, Chairman, President and Chief Executive Officer, said:
"We continue to remain very confident in the growth potential created by
the Company's branded merchandising and marketing initiatives. At present,
we regard our common stock as being undervalued. Therefore, in light of
the Company's strong cash position, we believe that stock repurchases at
opportune prices are a judicious use of capital in our shareholders' best
interest."
Separately, the Board adopted a Shareholder Rights Plan. Rights will be
distributed as a dividend at the rate of one Right for each share of Common
Stock, par value $0.001 per share, of the Company held by shareholders of
record as of the close of business on September 27, 1999. The Rights will
expire on September 28, 2009.
The Rights Plan was not adopted in response to any effort to acquire
control of the Company.
Each Right initially will entitle shareholders to buy one unit of a share
of a series of preferred stock for $65. The Rights generally will be
exercisable only if a person or group acquires beneficial ownership of 15%
or more of the Company's Common Stock in the future or commences a tender
or exchange offer upon consummation of which such person or group would
beneficially own 15% or more of the Company's Common Stock.
United Retail Group, Inc. is a specialty retailer of large-size women's
fashion apparel, footwear and accessories featuring AVENUE(R) brand
merchandise. The Company operates 499 stores under its AVENUE(R) trade
name.
The release above contains certain forward-looking statements concerning
the Company's operations and performance. Such forward-looking statements
are subject to various risks and uncertainties that could cause actual
results to differ materially from those currently anticipated by the
Company. Such factors may include, but are not limited to, possible
miscalculation of fashion trends, shifting shopping patterns, extreme or
unseasonable weather conditions, economic downturns, and weakness in
overall consumer demand, as well as competitive pressures. These, and
other factors, are detailed in the Company's Annual Report on Form 10-K for
the fiscal year ended January 30, 1999. The release above is neither an
offer to purchase shares nor a solicitation of an offer to sell shares.
###
