<PAGE>
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) December 9, 1996
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Brylane, L.P.; Brylane Capital Corp.
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(Exact name of registrant as specified in its charter)
Delaware 33-69532 13-3794198
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(State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of incorporation)
463 Seventh Avenue, 21st Floor, New York, New York 10018
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 613-9500
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Not Applicable
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(Former name or former address, if changed since last report.)
Page 1 of 12 Pages
Exhibit index begins at page 9.
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
(a) On December 9, 1996 (the "Closing Date"), Brylane, L.P., a
Delaware limited partnership ("Brylane"), completed the acquisition of the
Chadwick's of Boston catalog division (the "Business") of The TJX Companies,
Inc., a Delaware corporation ("TJX"), pursuant to the terms of the following
agreements (collectively, the "Agreements"): (1) the Asset Purchase Agreement
dated October 18, 1996 by and among TJX, Chadwick's, Inc., a Massachusetts
corporation and wholly-owned subsidiary of TJX ("Chadwick's"), and Brylane (as
amended by Amendment No. 1 thereto dated as of December 9, 1996, the "Purchase
Agreement"); and (2) the Asset Purchase Agreement dated October 18, 1996 by and
between CDM Corp., a Nevada corporation and a wholly-owned subsidiary of
Chadwick's ("CDM"), and Brylane. The Business is a catalog business devoted to
off-price women's regular size apparel and related accessories. The Agreements
provided for the sale by TJX and CDM to Brylane of real property, fixtures and
equipment (consisting primarily of the land, building and equipment related to
Chadwick's West Bridgewater telemarketing and fulfillment center), certain
accounts receivable, inventory, supplies, books and records, certain trademark
and proprietary rights, permits, certain prepaid expenses and prepaid rent,
certain other personal property and certain contract rights and leases relating
to the Business (the "Acquisition").
Brylane paid to Chadwick's and CDM an aggregate of $222,800,419 in
cash ($192,143,419 and $30,700,000, respectively) and issued to Chadwick's a
convertible subordinated note in the principal amount of $20,000,000, which note
matures in 2006 and bears interest at an initial rate of 6% per annum (the
"Purchase Price"), in return for the assets relating to the Business. In
connection with the Acquisition, Brylane received $51,328,900 of new equity
contributed by affiliates of Freeman Spogli & Co. Incorporated (the majority
owner of Brylane), Leeway & Co., NYNEX and WearGuard Corporation. Brylane also
entered into a new Credit Agreement dated as of December 9, 1996 among Brylane,
the lenders listed therein, Morgan Guaranty Trust Company of New York, as
administrative agent, and Merrill Lynch Capital Corporation, as documentation
agent (the "Credit Agreement"), which consists of (i) a $213 million five-year
term loan, (ii) a $70 million six-year and one quarter term loan (collectively,
the "Term Loans"), and (iii) a $125 million five-year revolving credit facility
with a $75 million sublimit for letters of credit. The Term Loans were used to
fund a portion of the cash paid in connection with the Acquisition, as well as
to repay Brylane's existing indebtedness under its old bank credit facility.
Also in connection with the Acquisition, Brylane entered into that
certain Accounts Receivable Purchase Agreement dated as of December 9, 1996
between Brylane and Alliance Data Systems Corporation ("ADS"), pursuant to which
ADS will purchase accounts receivable generated by the Chadwick's deferred
billing program in an aggregate amount up to $100 million at any one time. ADS
will purchase the receivables on a limited
2
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recourse basis at a discount from face value. Brylane will pay to ADS
transaction costs including a fee of $0.03 per purchased account, and carrying
costs equal to LIBOR plus 0.8% or a defined prime rate plus 15 basis points.
The Purchase Price was determined by representatives of Brylane, TJX
and Chadwick's based upon a determination of the fair market value of the assets
of the Business and by means of arm's-length bargaining between such parties.
There was no material relationship between Brylane or any of its
affiliates (including their respective officers, directors, partners and
authorized representatives, and any associate of any such individuals), on the
one hand, and TJX, Chadwick's, CDM or any of their respective affiliates
(including their respective officers and directors, and any associate of any
such officer or director), on the other hand.
(b) Prior to the Acquisition, TJX operated the Business as a catalog
business devoted to the marketing and sale of off-price women's regular size
apparel and related accessories. Chadwick's also operates two outlet stores
located in Brockton, Massachusetts and in Nashua, New Hampshire. Brylane
intends to continue the operation of the Business from Chadwick's current
facilities (located in West Bridgewater, Massachusetts) in substantially the
same manner and for the same purposes.
Except as described above, none of the assets acquired by Brylane
constituted plant, equipment or other physical property.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED.
As of the date hereof, it is impractical for Brylane to provide the
required audited financial information. Brylane will file the required audited
financial information under cover of Form 8-K/A as soon as practicable, but not
later than February 22, 1997.
(b) PRO FORMA FINANCIAL INFORMATION.
As of the date hereof, it is impractical for Brylane to provide the
required pro forma financial information. Brylane will file the required pro
forma financial information under cover of Form 8-K/A as soon as practicable,
but not later than February 22, 1997.
(c) EXHIBITS.
3
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2.1 Asset Purchase Agreement dated October 18, 1996 by and among TJX,
Chadwick's and Brylane.*
2.2 Amendment Number One dated as of December 9, 1996 by and among
TJX, Chadwick's and Brylane to the Asset Purchase Agreement dated
October 18, 1996.*
2.3 Asset Purchase Agreement dated October 18, 1996 by and between
CDM and Brylane.*
3.1 Certificate of Incorporation of C.O.B. Management Services, Inc.,
a Delaware corporation and wholly-owned subsidiary of Brylane
("C.O.B. Management").
3.2 Bylaws of C.O.B. Management.
3.3 Certificate of Incorporation of Chadwick's Tradename Sub, Inc., a
Delaware corporation and wholly-owned subsidiary of Brylane
("Tradename Sub").
3.4 Bylaws of Tradename Sub.
3.5 Amendment No. 7 dated October 14, 1996 to the Agreement of
Limited Partnership dated August 30, 1993, as amended (the
"Partnership Agreement"), by and among Brylane, VGP Corporation,
a Delaware corporation ("VGP"), VLP Corporation, a Delaware
corporation ("VLP"), WearGuard Corporation, a Delaware
corporation ("WearGuard"), and Lane Bryant Direct Holding, Inc.,
a Delaware corporation (as successor in interest to Lane Bryant
Direct, Inc., a Delaware corporation, Lerner Direct, Inc., a
Delaware corporation, and Roaman's, Inc., a Delaware corporation)
("Lane Bryant Direct").*
3.6 Amendment No. 8 dated December 5, 1996 to the Partnership
Agreement by and among Brylane, VGP, VLP, Lane Bryant Direct,
WearGuard, Chadwick's, Leeway & Co., a Massachusetts partnership,
as nominee for the Long-Term Investment Trust, a trust governed
by the laws of the State of New York ("Leeway & Co."), and NYNEX
Master Trust, a trust governed by the laws of the State of New
York ("NYNEX").*
3.7 Certificate of Amendment of Certificate of Incorporation of VP
Holding Corporation, a Delaware corporation ("VP Holding"), as
filed
4
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with the Office of the Secretary of State of Delaware on December
5, 1996.*
3.8 Certificate of Designation of the Series A Convertible Redeemable
Preferred Stock of VP Holding as filed with the Office of the
Secretary of State of the State of Delaware on December 6, 1996.*
4.1 Fourth Supplemental Indenture, dated as of December 9, 1996, by
and among Brylane, Brylane Capital Corp., a Delaware corporation
("Finance Corp."), C.O.B. Management, Tradename Sub, and United
States Trust Company of New York, as trustee (the "Trustee"),
under the Indenture dated as of August 30, 1993, as amended, by
and among Brylane, Finance Corp., the Guarantors named on the
signature pages thereto, and the Trustee.*
10.1 Services Agreement dated as of December 9, 1996 by and between
Brylane and TJX.*
10.2 Amendment No. 1 to Trademark License Agreement dated as of
December 9, 1996 by and among Lanco, Inc., a Delaware corporation
("Lanco"), Lernco, Inc., a Delaware corporation ("Lernco"),
Limited Stores, Inc., a Delaware corporation ("Limited Stores"),
Lane Bryant, Inc., a Delaware corporation ("Lane Bryant"), Lane
Bryant Direct (as successor corporation to Lane Bryant Direct,
Inc. and Lerner Direct, Inc.) and Brylane.*
10.3 Inventory Purchase Agreement dated as of December 9, 1996 by and
between Brylane and TJX.*
10.4 Stock Subscription Agreement for Preferred Stock dated as of
December 9, 1996 by and between VP Holding Corporation and
Dhananjaya K. Rao.*
10.5 Stock Subscription Agreement for Preferred Stock dated as of
December 9, 1996 by and between VP Holding Corporation and Carol
Meyrowitz.*
10.6 Employment Agreement dated as of December 9, 1996 between Brylane
and Dhananjaya K. Rao.*
10.7 Employment Agreement dated as of December 9, 1996 between Brylane
and Carol Meyrowitz.*
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10.8 Credit Agreement dated as of December 9, 1996 by and among
Brylane, the lenders listed therein, Morgan Guaranty Trust
Company of New York ("Morgan Guaranty"), as administrative
agent, and Merrill Lynch Capital Corporation, as documentation
agent (the "Credit Agreement").*
10.9 Form of Tranche A Term Note to be executed by Brylane in favor
of each of the various Lenders (as defined in the Credit
Agreement).*
10.10 Form of Tranche B Term Note to be executed by Brylane in favor
of each of the various Lenders (as defined in the Credit
Agreement).*
10.11 Guarantee Agreement dated as of December 9, 1996 by and among
B.L. Catalog Distribution, Inc., a Delaware corporation ("B.L.
Catalog"), B.L. Management Services, Inc., a Delaware
corporation ("B.L. Management"), B.N.Y. Service Corp., a
Delaware corporation ("Service Corp."), Finance Corp., K.S.
Management Services, Inc., a Delaware corporation ("K.S.
Management"), C.O.B. Management, Tradename Sub, B.L. Catalog
Distribution Partnership, an Indiana general partnership
("Catalog Partnership"), and B.L. Management Services
Partnership, a New York general partnership ("Management
Partnership"), as guarantors, and Morgan Guaranty, as
administrative agent for the lenders and the Issuing Banks (as
defined in the Credit Agreement).*
10.12 Pledge Agreement dated as of December 9, 1996 by and among
Brylane, B.L. Catalog, B.L. Management, Service Corp., Finance
Corp., K.S. Management, C.O.B. Management and Tradename Sub, as
pledgors, and Morgan Guaranty, as security agent.*
10.13 Security Agreement dated as of December 9, 1996 by and among
Brylane, B.L. Catalog, B.L. Management, Service Corp., Finance
Corp., K.S. Management, C.O.B. Management, Tradename Sub,
Catalog Partnership and Management Partnership, as grantors, and
Morgan Guaranty, as security agent.*
10.14 Trademark Collateral Agreement dated as of December 9, 1996 by
and among Lanco, Lernco, Limited Stores, Lerner Stores, Inc.,
Lane Bryant, and Morgan Guaranty, as security agent for the
lenders party to the Credit Agreement.*
6
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10.15 Accounts Receivable Purchase Agreement dated as of December 9,
1996 between Brylane and ADS.*
10.16 Unit Subscription Agreement dated as of December 5, 1996 by and
among Brylane, VP Holding, FS Equity Partners II, L.P., a
California limited partnership ("FSEP II"), FS Equity Partners
III, L.P., a Delaware limited partnership ("FSEP III"), FS
Equity Partners International, L.P., a Delaware limited
partnership ("FSEP International"), VGP, VLP, WearGuard, Leeway
& Co. and NYNEX.*
10.17 First Amended and Restated Incorporation and Exchange Agreement
dated as of December 9, 1996 by and among FSEP II, FSEP III,
FSEP International, Lane Bryant Direct, The Limited, Inc., a
Delaware corporation, WearGuard, Leeway & Co., NYNEX, Chadwick's
and Brylane (with exhibits attached thereto, including forms of
Registration Rights Agreement, Stockholders Agreement and
Amended and Restated Agreement of Limited Partnership).*
10.18 Brylane, L.P. Convertible Subordinated Note dated as of December
9, 1996 issued to Chadwick's in the principal amount of
$20,000,000 (with form of Brylane Inc. and Brylane, L.P. Note
attached as an exhibit thereto).*
99.1 Press Release of Brylane dated October 21, 1996.
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* To be filed by amendment.
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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.
BRYLANE, L.P.
BRYLANE CAPITAL CORP.
Dated: December 20, 1996 By: /s/ Robert A. Pulciani
----------------------
Robert A. Pulciani
Authorized Representative of Brylane, L.P.,
and Executive Vice President,
Chief Financial Officer, Secretary and
Treasurer of Brylane, L.P. and Brylane
Capital Corp.
(On behalf of the Registrants and as the
principal financial and accounting officer
of the Registrants)
8
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
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<S> <C> <C>
2.1 Asset Purchase Agreement dated October 18, 1996 by and
among TJX, Chadwick's and Brylane.*
2.2 Amendment Number One dated as of December 9, 1996 by
and among TJX, Chadwick's and Brylane to the Asset
Purchase Agreement dated October 18, 1996.*
2.3 Asset Purchase Agreement dated October 18, 1996 by and
between CDM and Brylane.*
3.1 Certificate of Incorporation of C.O.B. Management Services,
Inc., a Delaware corporation and wholly-owned subsidiary of
Brylane ("C.O.B. Management").
3.2 Bylaws of C.O.B. Management.
3.3 Certificate of Incorporation of Chadwick's Tradename Sub,
Inc., a Delaware corporation and wholly-owned subsidiary of
Brylane ("Tradename Sub").
3.4 Bylaws of Tradename Sub.
3.5 Amendment No. 7 dated October 14, 1996 to the Agreement
of Limited Partnership dated August 30, 1993, as amended
(the "Partnership Agreement"), by and among Brylane, VGP
Corporation, a Delaware corporation ("VGP"), VLP
Corporation, a Delaware corporation ("VLP"), WearGuard
Corporation, a Delaware corporation ("WearGuard"), and
Lane Bryant Direct Holding, Inc., a Delaware corporation (as
successor in interest to Lane Bryant Direct, Inc., a Delaware
corporation, Lerner Direct, Inc., a Delaware corporation, and
Roaman's, Inc., a Delaware corporation) ("Lane Bryant
Direct").*
3.6 Amendment No. 8 dated December 5, 1996 to the Partnership
Agreement by and among Brylane, VGP, VLP, Lane Bryant
Direct, WearGuard, Chadwick's, Leeway & Co., a
Massachusetts partnership, as nominee for the Long-Term
Investment Trust, a trust governed by the laws of the State of
New York ("Leeway & Co."), and NYNEX Master Trust, a
trust governed by the laws of the State of New York
("NYNEX").*
</TABLE>
9
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<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
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<S> <C> <C>
3.7 Certificate of Amendment of Certificate of Incorporation of
VP Holding Corporation, a Delaware corporation ("VP
Holding"), as filed with the Office of the Secretary of State of
Delaware on December 5, 1996.*
3.8 Certificate of Designation of the Series A Convertible
Redeemable Preferred Stock of VP Holding as filed with the
Office of the Secretary of State of the State of Delaware on
December 6, 1996.*
4.1 Fourth Supplemental Indenture, dated as of December 9,
1996, by and among Brylane, Brylane Capital Corp., a
Delaware corporation ("Finance Corp."), C.O.B.
Management, Tradename Sub, and United States Trust
Company of New York, as trustee (the "Trustee"), under the
Indenture dated as of August 30, 1993, as amended, by and
among Brylane, Finance Corp., the Guarantors named on the
signature pages thereto, and the Trustee.*
10.1 Services Agreement dated as of December 9, 1996 by and
between Brylane and TJX.*
10.2 Amendment No. 1 to Trademark License Agreement dated as
of December 9, 1996 by and among Lanco, Inc., a Delaware
corporation ("Lanco"), Lernco, Inc., a Delaware corporation
("Lernco"), Limited Stores, Inc., a Delaware corporation
("Limited Stores"), Lane Bryant, Inc., a Delaware corporation
("Lane Bryant"), Lane Bryant Direct (as successor corporation
to Lane Bryant Direct, Inc. and Lerner Direct, Inc.) and
Brylane.*
10.3 Inventory Purchase Agreement dated as of December 9, 1996
by and between Brylane and TJX.*
10.4 Stock Subscription Agreement for Preferred Stock dated as of
December 9, 1996 by and between VP Holding Corporation
and Dhananjaya K. Rao.*
10.5 Stock Subscription Agreement for Preferred Stock dated as of
December 9, 1996 by and between VP Holding Corporation
and Carol Meyrowitz.*
10.6 Employment Agreement dated as of December 9, 1996
between Brylane and Dhananjaya K. Rao.*
10.7 Employment Agreement dated as of December 9, 1996
between Brylane and Carol Meyrowitz.*
</TABLE>
10
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<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
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<S> <C> <C>
10.8 Credit Agreement dated as of December 9, 1996 by and
among Brylane, the lenders listed therein, Morgan
Guaranty Trust Company of New York ("Morgan Guaranty"),
as administrative agent, and Merrill Lynch Capital
Corporation, as documentation agent (the "Credit
Agreement").*
10.9 Form of Tranche A Term Note to be executed by Brylane
in favor of each of the various Lenders (as defined in
the Credit Agreement).*
10.10 Form of Tranche B Term Note to be executed by Brylane in
favor of each of the various Lenders (as defined in the Credit
Agreement).*
10.11 Guarantee Agreement dated as of December 9, 1996 by and
among B.L. Catalog Distribution, Inc., a Delaware
corporation ("B.L. Catalog"), B.L. Management Services,
Inc., a Delaware corporation ("B.L. Management"),
B.N.Y. Service Corp., a Delaware corporation ("Service
Corp."), Finance Corp., K.S. Management Services, Inc.,
a Delaware corporation ("K.S. Management"), C.O.B.
Management, Tradename Sub, B.L. Catalog Distribution
Partnership, an Indiana general partnership ("Catalog
Partnership"), and B.L. Management Services
Partnership, a New York general partnership
("Management Partnership"), as guarantors, and Morgan
Guaranty, as administrative agent for the lenders and
the Issuing Banks (as defined in the Credit
Agreement).*
10.12 Pledge Agreement dated as of December 9, 1996 by and
among Brylane, B.L. Catalog, B.L. Management, Service
Corp., Finance Corp., K.S. Management, C.O.B.
Management and Tradename Sub, as pledgors, and Morgan
Guaranty, as security agent.*
10.13 Security Agreement dated as of December 9, 1996 by and
among Brylane, B.L. Catalog, B.L. Management, Service
Corp., Finance Corp., K.S. Management, C.O.B.
Management, Tradename Sub, Catalog Partnership and
Management Partnership, as grantors, and Morgan
Guaranty, as security agent.*
10.14 Trademark Collateral Agreement dated as of December 9,
1996 by and among Lanco, Lernco, Limited Stores, Lerner
Stores, Inc., Lane Bryant, and Morgan Guaranty, as
security agent for the lenders party to the Credit
Agreement.*
</TABLE>
11
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<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
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<S> <C> <C>
10.15 Accounts Receivable Purchase Agreement dated as of
December 9, 1996 between Brylane and ADS.*
10.16 Unit Subscription Agreement dated as of December 5, 1996
by and among Brylane, VP Holding, FS Equity Partners II,
L.P., a California limited partnership ("FSEP II"), FS Equity
Partners III, L.P., a Delaware limited partnership
("FSEP III"), FS Equity Partners International, L.P., a
Delaware limited partnership ("FSEP International"), VGP,
VLP, WearGuard, Leeway & Co. and NYNEX.*
10.17 First Amended and Restated Incorporation and Exchange
Agreement dated as of December 9, 1996 by and among
FSEP II, FSEP III, FSEP International, Lane Bryant Direct,
The Limited, Inc., a Delaware corporation, WearGuard,
Leeway & Co., NYNEX, Chadwick's and Brylane (with
exhibits attached thereto, including forms of Registration
Rights Agreement, Stockholders Agreement and Amended and
Restated Agreement of Limited Partnership).*
10.18 Brylane, L.P. Convertible Subordinated Note dated as of
December 9, 1996 issued to Chadwick's in the principal
amount of $20,000,000 (with form of Brylane Inc. and
Brylane, L.P. Note attached as an exhibit thereto).*
99.1 Press Release of Brylane dated October 21, 1996.
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</TABLE>
* To be filed by amendment.
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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
C.O.B. MANAGEMENT SERVICES, INC.
First: The name of the corporation is C.O.B. Management Services,
Inc. (the "Corporation").
Second: The address of the registered office of the Corporation in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle 19801. The name and address of the
Corporation's registered agent in the State of Delaware is The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle 19801.
Third: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may now or hereafter be organized under the
General Corporation Law of the State of Delaware as set forth in Title 8 of the
Delaware Code.
Fourth: The total number of shares of stock which the Corporation
shall have authority to issue is one thousand (1,000), consisting of one
thousand (1,000) shares of common stock, $.01 par value per share.
Fifth: The business and affairs of the Corporation shall be managed
by and under the direction of the Board of Directors. The exact number of
directors of the Corporation shall be fixed by or in the manner provided in the
Bylaws of the Corporation (the "Bylaws").
Sixth: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized:
(a) to adopt, repeal, rescind, alter or amend in any respect the
Bylaws, and to confer in the Bylaws powers and authorities upon the directors of
the Corporation in addition to the powers and authorities expressly conferred
upon them by statute;
<PAGE>
(b) from time to time to set apart out of any funds or assets of the
Corporation available for dividends an amount or amounts to be reserved as
working capital or for any other lawful purpose and to abolish any reserve so
created and to determine whether any, and, if any, what part, of the surplus of
the Corporation or its net profits applicable to dividends shall be declared in
dividends and paid to its stockholders, and all rights of the holders of stock
of the Corporation in respect of dividends shall be subject to the power of the
Board of Directors so to do;
(c) subject to the laws of the State of Delaware, from time to time
to sell, lease or otherwise dispose of any part or parts of the properties of
the Corporation and to cease to conduct the business connected therewith or
again to resume the same, as it may deem best; and
(d) in addition to the powers and authorities hereinbefore and by the
laws of the State of Delaware conferred upon the Board of Directors, to execute
all such powers and to do all acts and things as may be exercised or done by the
Corporation; subject, nevertheless, to the express provisions of said laws, of
the Certificate of Incorporation of the Corporation and its Bylaws.
Seventh: Meetings of stockholders of the Corporation may be held
within or without the State of Delaware, as the Bylaws may provide. The books
of the Corporation may be kept (subject to any provision of applicable law)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the Bylaws.
Eighth: The Corporation reserves the right to adopt, repeal, rescind,
alter or amend in any respect any provision contained in this Certificate of
Incorporation in the manner now or hereafter prescribed by applicable law, and
all rights conferred on stockholders herein are granted subject to this
reservation.
Ninth: A director of the Corporation shall not be personally liable
to the Corporation or 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
2
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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) under Section 174 of the Delaware General Corporation Law, as the
same exists or hereafter may be amended or (iv) for any transaction from which
the director derived an improper personal benefit. If the Delaware General
Corporation Law hereafter is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of
the Corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended Delaware
Corporation Law. No amendment to or repeal of this Article Ninth shall apply to
or have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
Tenth: The name and mailing address of the incorporator of the
Corporation are:
Ashley S. Newsom, Esq.
c/o Riordan & McKinzie
300 South Grand Avenue, 29th Floor
Los Angeles, California 90071-3155
I, the undersigned, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this Certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 14th day of November, 1996.
/s/ Ashley S. Newsom
----------------------------------
Ashley S. Newsom, Incorporator
3
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EXHIBIT 3.2
BYLAWS
OF
C.O.B. MANAGEMENT SERVICES, INC.
ARTICLE I
Offices
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Section 1.1 Registered Office. The registered office of C.O.B.
-----------------
Management Services, Inc. (the "Corporation") in the State of Delaware shall be
at 1209 Orange Street, in the City of Wilmington, County of New Castle 19801,
and the name of the registered agent at that address shall be The Corporation
Trust Company.
Section 1.2 Principal Executive Office. The principal executive
--------------------------
office of the Corporation shall be at 463 Seventh Avenue, in the City of New
York, County of New York 10018.
Section 1.3 Other Offices. The Corporation may also have an
-------------
office or offices at such other place or places, either within or without the
State of Delaware, as the board of directors of the Corporation (the "Board of
Directors") may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
Stockholders
------------
Section 2.1 Annual Meetings. An annual meeting of stockholders
---------------
shall be held for the election of directors at such date, time and place, either
within or without the State of Delaware, as may be designated by the Board of
Directors from time to time. In the absence of any such designation,
stockholders' meetings shall be at the principal executive office
<PAGE>
of the Corporation. Any other proper business may be transacted at the annual
meeting.
Section 2.2 Special Meetings. Special meetings of stockholders
----------------
may be called at any time by the Board of Directors, the Chairman of the Board,
the President or the holders of shares entitled to cast not less than 10% of the
votes at such meeting. Special meetings may not be called by any other person
or persons. Each special meeting shall be held at such date and time as is
requested by the person or persons calling the meeting, within the limits fixed
by law.
Section 2.3 Notice of Meetings. Whenever stockholders are
------------------
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the written
notice of any meeting shall be given not less than 10 nor more than 60 days
before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his or
her address as it appears on the records of the Corporation.
Section 2.4 Adjournments. Any meeting of stockholders, annual or
------------
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than 30 days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 2.5 Quorum. At each meeting of stockholders, except where
------
otherwise provided by law, the Certificate of Incorporation or these Bylaws, the
holders of a majority of the outstanding shares of each class of stock entitled
to vote at the meeting, present in person or represented
2
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by proxy, shall constitute a quorum. For purposes of the foregoing, two or more
classes or series of stock shall be considered a single class if the holders
thereof are entitled to vote together as a single class at the meeting. In the
absence of a quorum the stockholders so present may, by majority vote, adjourn
the meeting from time to time in the manner provided by Section 2.4 of these
Bylaws until a quorum shall attend. Shares of its own capital stock belonging on
the record date for the meeting to the Corporation or to another corporation, if
a majority of the shares entitled to vote in the election of directors of such
other corporation is held, directly or indirectly, by the Corporation, shall
neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
Section 2.6 Organization. Meetings of stockholders shall be
------------
presided over by the Chairman of the Board, if any, or in his absence by the
President, or in his absence by a Vice President, or in the absence of the
foregoing persons by a chairman designated by the Board of Directors, or in the
absence of such designation by a chairman chosen at the meeting. The Secretary
shall act as secretary of the meeting, but in his absence the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 2.7 Voting; Proxies. Unless otherwise provided in the
---------------
Certificate of Incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in question. If the Certificate of
Incorporation provides for more or less than one vote for any share on any
matter, every reference in these Bylaws to a majority or other proportion of
stock shall refer to such majority or other proportion of the votes of such
stock. A stockholder may vote the shares owned of record by him either in
person or by proxy executed in writing (which shall include writings sent by
telex, telegraph, cable, facsimile transmission or other means of electronic
transmission) by the stockholder himself or his duly authorized attorney-in-
fact; provided, however, that any such telex, telegram, cablegram, facsimile
transmission or other means of electronic transmission must
3
<PAGE>
either set forth or be submitted with information from which it can be
determined that the telex, telegram, cablegram, facsimile transmission or other
means of electronic transmission was authorized by the stockholder. If it is
determined that such telexes, telegrams, cablegrams, facsimile transmissions or
other electronic transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall specify the
information upon which they relied. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission created pursuant to
the foregoing sentences of this Section 2.7 may be substituted or used in lieu
of the original writing or transmission for any and all purposes for which the
original writing or transmission could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission. Execution of the
proxy may be accomplished by the stockholder or his authorized officer,
director, employee or agent signing such writing or causing his or her signature
to be affixed to such writing by any reasonable means including, but not limited
to, by facsimile signature. No such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides 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 stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary of the Corporation. Voting at meetings of
stockholders need not be by written ballot and need not be conducted by
inspectors unless required by Section 2.10 of these Bylaws or unless the holders
of a majority of the outstanding shares of all classes of stock entitled to vote
thereon present in person or by proxy at such meeting shall so determine. At all
meetings of stockholders for the election of directors or otherwise, all
elections and questions shall, unless otherwise provided by law, by the
Certificate of Incorporation or these Bylaws, be decided by the vote of the
holders of a majority of the outstanding shares of all classes of stock entitled
to vote thereon present in person or by proxy at the meeting.
4
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Section 2.8 Fixing Date for Determination of Stockholders of
------------------------------------------------
Record. 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 to express consent to corporate action in writing without a meeting,
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 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action. If no record date is fixed: (1)
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; (2) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting (to the extent such
action by the stockholders is permitted by these Bylaws) when no prior action by
the Board of Directors is necessary, shall be the day on which the first written
consent is expressed; and (3) 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 or Directors may fix a new record date for the adjourned meeting.
Section 2.9 List of Stockholders Entitled to Vote. The Secretary
-------------------------------------
shall prepare and make, at least 10 days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder for any purpose germane to the meeting during
ordinary business hours for a period of at least 10 days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the
5
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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.
Section 2.10 Inspectors of Election. Before any meeting of
----------------------
stockholders, the Board of Directors may appoint any persons other than nominees
for office to act as inspectors of election at the meeting or its adjournment.
If the Corporation has a class of voting stock that is (1) listed on a national
securities exchange, (2) authorized for quotation on an interdealer quotation
system of a registered national securities exchange, or (3) held of record by
more than 2,000 stockholders, the Board of Directors shall, in advance of any
meeting of stockholders, appoint one or more inspectors other than nominees for
office to act at the meeting. If no inspectors of election are appointed, the
chairman of the meeting may, and on the request of any stockholder or his proxy
shall, appoint inspectors of election at the meeting. The number of inspectors
shall be either one or three. If inspectors are appointed at a meeting on the
request of one or more stockholder or proxies, the holders of a majority of
shares or other proxies present at the meeting shall determine whether one or
three inspectors are to be appointed. If any person appointed as inspector
fails to appear or fails or refuses to act, the vacancy may be filled by
appointment by the Board of Directors before the meeting, or by the meeting
chairman at the meeting. Each inspector, before entering upon the discharge of
his duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his ability.
The duties of these inspectors shall be as follows: (i) ascertain the
number of shares outstanding and the voting power of each; (ii) determine the
shares represented at a meeting and the validity of proxies and ballots; (iii)
count all votes and ballots; (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors; and (v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
6
<PAGE>
The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be announced at
the meeting. No ballot, proxies or votes, nor any revocations thereof or changes
thereto shall be accepted by the inspectors after the closing of the polls.
Except as otherwise required by applicable law, in determining the
validity and counting of proxies and ballots, the inspectors shall be limited to
an examination of the proxies, any envelopes submitted with those proxies, any
information provided in accordance with Section 2.7 hereof, ballots and the
regular books and records of the Corporation.
Section 2.11 Consent of Stockholders in Lieu of Meeting. Unless
------------------------------------------
otherwise provided in the Certificate of Incorporation, any action required by
law to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice or
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
Board of Directors
------------------
Section 3.1 Powers. The business and affairs of the Corporation
------
shall be managed by or under the direction of the Board of Directors, except as
may be otherwise provided by law or in the Certificate of Incorporation.
Section 3.2 Number of Directors. The Board of Directors shall
-------------------
consist of one or more members, the members
7
<PAGE>
thereof to be determined from time to time by resolution of the Board of
Directors. Directors need not be stockholders.
Section 3.3 Election and Term of Office. Each director shall hold
---------------------------
office until the annual meeting of stockholders next succeeding his election and
until his successor is elected and qualified. No decrease in the authorized
number of directors shall shorten the term of any incumbent directors.
Section 3.4 Election of Chairman of the Board. At the
---------------------------------
organizational meeting immediately following the annual meeting of stockholders,
the directors shall elect a Chairman of the Board from among the directors who
shall hold office until the corresponding meeting of the Board of Directors in
the next year and until his successor shall have been elected or until his
earlier resignation or removal. Any vacancy in such office may be filled for the
unexpired portion of the term in the same manner by the Board of Directors at
any regular or special meeting.
Section 3.5 Vacancies and Additional Directorships. Newly created
--------------------------------------
directorships resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled solely by the
affirmative vote of a majority of the remaining directors then in office, even
though such majority is less than a quorum of the Board of Directors. Any
director elected in accordance with the preceding sentence shall, if elected to
fill a vacancy, hold office for the remainder of the full term of the departed
director and, if elected to a newly created directorship, hold office until the
next annual meeting of stockholders, and, in either case, until such director's
successor shall have been elected and qualified.
Section 3.6 Regular Meetings. Regular meetings of the Board of
----------------
Directors may be held at such places within or without the State of Delaware and
at such times as the Board of Directors may from time to time determine and, if
so determined, notice thereof need not be given.
Section 3.7 Special Meetings. Special meetings of the Board of
----------------
Directors may be held at any time or place within or
8
<PAGE>
without the State of Delaware whenever called by the Chairman of the Board,
if any, by the President, or by any director. Reasonable notice thereof shall be
given by the person or persons calling the meeting.
Section 3.8 Telephonic Meetings Permitted. Members of the Board
-----------------------------
of Directors, or any committee thereof, as the case may be, may participate in a
meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this Bylaw shall constitute presence in person at such meeting.
Section 3.9 Quorum; Vote Required for Action. At all meetings of
--------------------------------
the Board of Directors a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business. The vote of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors unless the Certificate of Incorporation or these
Bylaws shall require a vote of a greater number. In case at any meeting of the
Board of Directors a quorum shall not be present, the members of the Board of
Directors present may adjourn the meeting from time to time until a quorum shall
attend.
Section 3.10 Organization. Meetings of the Board of Directors
------------
shall be presided over by the Chairman of the Board, if any, or in his absence
by the President, or in their absence by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the chairman
of the meeting may appoint any person to act as secretary of the meeting.
Section 3.11 Action by Directors Without a Meeting. Unless
-------------------------------------
otherwise restricted by the Certificate of Incorporation or these Bylaws, any
action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board of Directors or of such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or committee.
9
<PAGE>
Section 3.12 Compensation of Directors. The Board of Directors
-------------------------
shall have the authority to fix the compensation of directors.
Section 3.13 Removal. Subject to the provisions of the Certificate
-------
of Incorporation, any director may be removed from office at any time, either
with or without cause, by the affirmative vote of the stockholders having a
majority of the voting power of the Corporation given at a special meeting of
the stockholders called for the purpose.
ARTICLE IV
Committees
----------
Section 4.1 Committees. The Board of Directors may, by resolution
----------
passed by a majority of the Board of Directors, designate one or more
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 the committee. In the absence or disqualification of a
member of a committee, 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 place of any such absent or disqualified member. Any such committee,
to the extent provided in the resolution of the Board of Directors, 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 and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of dissolution,
removing or indemnifying directors or amending these Bylaws; and, unless the
resolution expressly so provides, no such committee shall have
10
<PAGE>
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 4.2 Committee Rules. Unless the Board of Directors
---------------
otherwise provides, each committee designated by the Board of Directors may
adopt, amend and repeal rules for the conduct of its business. In the absence
of a provision by the Board of Directors or a provision in the rules of such
committee to the contrary, a majority of the entire authorized number of members
of such committee shall constitute a quorum for the transaction of business, the
vote of a majority of the members present at a meeting at the time of such vote
if a quorum is then present shall be the act of such committee, and in other
respects each committee shall conduct its business in the same manner as the
Board of Directors conducts its business pursuant to Article III of these
Bylaws.
ARTICLE V
Officers
--------
Section 5.1 Officers; Election. As soon as practicable after the
------------------
annual meeting of stockholders in each year, the Board of Directors shall elect
a President and a Secretary, and it may, if it so determines, elect from among
its members a Chairman of the Board. The Board of Directors may also elect one
or more Executive Vice Presidents, one or more Vice Presidents, one or more
Assistant Secretaries, a Treasurer or Chief Financial Officer and one or more
Assistant Treasurers or Assistant Chief Financial Officers and may give any of
them such further designations or alternate titles as it considers desirable.
Any number of offices may be held by the same person.
Section 5.2 Term of Office; Resignation; Removal; Vacancies.
-----------------------------------------------
Except as otherwise provided in a resolution of the Board of Directors electing
any officer, each officer shall hold office until the first meeting of the Board
of Directors after the annual meeting of stockholders next succeeding his
election, and until his successor is elected and qualified or until his earlier
death, resignation or removal. Any officer may resign at any time upon written
notice to the Board of Directors or to the President or the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein,
and unless otherwise specified therein no acceptance of such resignation
11
<PAGE>
shall be necessary to make it effective. The Board of Directors may remove any
officer with or without cause at any time. Any such removal shall be without
prejudice to the contractual rights of such officer, if any, with the
Corporation, but the election of an officer shall not of itself create
contractual rights. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise may be filled for the unexpired portion
of the term by the Board of Directors at any regular or special meeting.
Section 5.3 Powers and Duties. The officers of the Corporation
-----------------
shall have such powers and duties in the management of the Corporation as shall
be stated in these Bylaws or in a resolution of the Board of Directors which is
not inconsistent with these Bylaws and, to the extent not so stated, as
generally pertain to their respective offices, subject to the control of the
Board of Directors. The Secretary shall have the duty to record the proceedings
of the meetings of stockholders, the Board of Directors and any committees in a
book to be kept for that purpose and shall have custody of the corporate seal of
the Corporation with the authority to affix such seal to any instrument
requiring it. The Board of Directors may require any officer, agent or employee
to give security for the faithful performance of his duties.
ARTICLE VI
Indemnification of Directors, Officers,
---------------------------------------
Employees and Other Corporate Agents
------------------------------------
Section 6.1 Actions, Suits or Proceedings Other Than Those by or
----------------------------------------------------
in the Right of the Corporation. The Corporation may indemnify, in the manner
- -------------------------------
and to the full extent permitted by law, 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, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
12
<PAGE>
director, officer, employee or agent 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, that he had reasonable cause to believe that his conduct was
unlawful.
Section 6.2 Actions, Suits or Proceedings by or in the Right of
---------------------------------------------------
the Corporation. The Corporation may 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 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, officer, employee
or agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise or by reason
of any action alleged to have been taken or omitted in such capacity against
costs, charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or in his behalf in connection with the defense or settlement of
such action or suit and any appeal therefrom 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 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 adjudication of liability
but in view or all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
13
<PAGE>
Chancery of the State of Delaware or such other court shall deem proper.
Section 6.3 Expenses Incurred. To the extent that a 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
Sections 6.1 and 6.2 above, or in defense of any claim, issue or matter therein,
he may be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 6.4 Determination of Indemnification. Any indemnification
--------------------------------
provided under Sections 6.1 and 6.2 above (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, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct in Sections 6.1 and 6.2 above. Such determination shall be made (1) 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 (2) if such a quorum
is not obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders of the
Corporation.
Section 6.5 Advance of Expenses. Costs and expenses (including
-------------------
attorneys' fees) incurred by or on behalf of a director, officer, employee or
agent in defending or investigating a civil or criminal action, suit, proceeding
or investigation may be paid by the Corporation in advance of the final
disposition of such matter, if such director, officer, employee or agent shall
undertake in writing to repay any such advances in the event that it is
ultimately determined that he is not entitled to indemnification.
Section 6.6 Non-exclusivity. The right of indemnity and
---------------
advancement of expenses provided herein shall not be deemed exclusive of any
other rights to which any person seeking indemnification or advancement of
expenses from the Corporation may be entitled under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. Any agreement for
14
<PAGE>
indemnification of or advancement of expenses to any director, officer, employee
or agent or other person may provide rights of indemnification or advancement of
expenses which are broader or otherwise different from those set forth herein.
Section 6.7 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 or as a member of any committee or
similar body 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 to indemnify him against such liability under
the provisions of this Article or applicable law.
Section 6.8 Inclusion of Constituent Corporation. For purposes of
------------------------------------
this Article VI, 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, 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 VI 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 6.9 Inclusion of Other Terms. For purposes of this
------------------------
Article VI, reference to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a person
with respect to any employee benefit plan; and references to "serving at the
request of the Corporation" shall include any services as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to any
employee benefit plan, its
15
<PAGE>
participants, or beneficiaries; and a person who acted in good faith and in a
manner he 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 VI.
Section 6.10 Continuation of Indemnification. The indemnification
-------------------------------
and advancement of expenses provided by, or granted pursuant to, this Article VI
may, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and may inure
to the benefit of the heirs, executors and administrators of such a person.
ARTICLE VII
Stock
-----
Section 7.1 Certificates. 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 of the Board, if any, or the President, or a
Vice President, and by the Treasurer or Chief Financial Officer or an Assistant
Treasurer or Assistant Chief Financial Officer, if any, or the Secretary or an
Assistant Secretary, of the Corporation, certifying the number of shares owned
by him in the Corporation. Any or all signatures 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 7.2 Lost, Stolen or Destroyed Stock Certificates; Issuance
------------------------------------------------------
of New Certificates. The Corporation may issue a new certificate of stock in
- -------------------
the place of any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against
16
<PAGE>
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 such new certificate.
ARTICLE VIII
Miscellaneous
-------------
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall
-----------
be determined by the Board of Directors.
Section 8.2 Seal. The Corporation may have a corporate seal which
----
shall have the name of the Corporation inscribed thereon and shall be in such
form as may be approved from time to time by the Board of Directors. The
corporate seal may be used by causing it or a facsimile thereof to be impressed
or affixed or in any other manner reproduced.
Section 8.3 Waiver of Notice of Meetings of Stockholders,
---------------------------------------------
Directors and Committees. Whenever notice is required to be given by law or
- ------------------------
under any provision of the Certificate of Incorporation or these Bylaws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the Certificate
of Incorporation or these Bylaws. Unless either proper notice of a meeting of
the Board of Directors, or any committee thereof, has been given or else the
persons entitled thereto have waived such notice (either in writing or by
attendance as set forth above), any business transacted at such meeting shall be
null and void.
Section 8.4 Interested Directors; Quorum. No contract or
----------------------------
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any
17
<PAGE>
other corporation, partnership, association or other organization in which one
or more of its directors or officers are directors or officers or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if: (1) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum, (2) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders, or (3) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
Section 8.5 Form of Records. Any records maintained by the
---------------
Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
Section 8.6 Amendment of Bylaws. These Bylaws may be amended or
-------------------
repealed, and new Bylaws adopted, by the Board of Directors, but the
stockholders entitled to vote may adopt additional Bylaws and may amend or
repeal any Bylaw whether or not adopted by them.
18
<PAGE>
Section 8.7 Gender. Any reference to the masculine gender in
------
these Bylaws shall be construed to mean the feminine gender, as the situation
may demand.
19
<PAGE>
EXHIBIT 3.3
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 11/12/1996
960328262 - 2682804
CERTIFICATE OF INCORPORATION
----------------------------
OF
Chadwick's Tradename Sub, Inc.
------------------------------
---------
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and
the acts amendatory thereof and supplemental thereto, and known, identified, and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the "corporation")
-----
is Chadwick's Tradename Sub, Inc.
SECOND: The address, including street, number, city, and county, of the
------
registered office of the corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington 19904, County of New Castle; and the name of the
registered agent of the corporation in the State of Delaware at such address is
Corporation Service Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
-----
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
------
have authority to issue is three thousand. The par value of such shares is one
cent. All such shares are of one class and are shares of Common Stock.
Each share of stock of the corporation shall entitle the holder thereof to
a preemptive right, for a period of thirty days, to subscribe for, purchase, or
otherwise acquire any shares of stock of the same class of the corporation or
any equity and/or voting shares of stock of any class of the corporation which
the corporation proposes to issue or any rights or options which the
corporation proposes to grant for the purchase of shares of stock of the same
class of the corporation or of equity and/or voting shares of any class of stock
of the corporation or for the purchase of any shares of stock, bonds,
securities, or obligations of the corporation which are convertible into or
exchangeable for, or which carry any rights to subscribe for, purchase, or
otherwise acquire shares of stock of the same class of the corporation or equity
and/or voting shares of stock of any class of the corporation, whether now or
hereafter
-1-
<PAGE>
authorized or created, whether having unissued or treasury status, and whether
the proposed issue, reissue, transfer, or grant is for cash, property, or any
other lawful consideration; and after the expiration of said thirty days, any
and all of such shares of stock, rights, options, bonds, securities, or
obligations of the corporation may be issued, reissued, transferred, or granted
by the Board of Directors, as the case may be, to such persons, firms,
corporations, and associations, and for such lawful consideration, and on such
terms, as the Board of Directors in its discretion may determine. As used
herein, the terms "equity shares" and "voting shares" shall mean, respectively,
shares of stock which confer unlimited dividend rights and shares of stock
which confer unlimited voting rights in the election of one or more directors.
FIFTH: The name and the mailing address of the incorporator are as follows:
-----
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
Erin Callahan 84 State Street
Boston, MA 02109
</TABLE>
SIXTH: The corporation is to have perpetual existence.
-----
SEVENTH: Whenever a compromise or arrangement is proposed between this
-------
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
(S) 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
(S) 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
EIGHTH: For the management of the business and for the conduct of the
------
affairs of the corporation, and in further definition, limitation, and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
-2-
<PAGE>
1. The management of the business and the conduct of the affairs of the
corporation shall be vested in its Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be fixed by, or in the
manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total
number of directors" shall be deemed to have the same meaning, to wit, the total
number of directors which the corporation would have if there were no
vacancies. No election of directors need be by written ballot.
2. After the original or other Bylaws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of (S) 109 of the General Corporation Law of the State of Delaware,
and, after the corporation has received any payment for any of its stock, the
power to adopt, amend, or repeal the Bylaws of the corporation may be exercised
by the Board of Directors of the corporation; provided, however, that any
provision for the classification of directors of the corporation for staggered
terms pursuant to the provisions of subsection (d) of (S) 141 of the General
Corporation Law of the State of Delaware shall be set forth in an initial Bylaw
or in a Bylaw adopted by the stockholders entitled to vote of the corporation
unless provisions for such classification shall be set forth in this certificate
of incorporation.
3. Whenever the corporation shall be authorized to issue only one class
of stock, each outstanding share shall entitle the holder thereof to notice of,
and the right to vote at, any meeting of stockholders. Whenever the corporation
shall be authorized to issue more than one class of stock, no outstanding share
of any class of stock which is denied voting power under the provisions of the
certificate of incorporation shall entitle the holder thereof to the right to
vote at any meeting of stockholders except as the provisions of paragraph (2) of
subsection (b) of (S) 242 of the General Corporation Law of the State of
Delaware shall otherwise require; provided, that no share of any such class
which is otherwise denied voting power shall entitle the holder thereof to vote
upon the increase or decrease in the number of authorized shares of said class.
NINTH: The personal liability of the directors of the corporation is
-----
hereby eliminated to the fullest extent permitted by the provisions of paragraph
(7) of subsection (b) of (S) 102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by the
-----
provisions of (S) 145 of the General Corporation Law of the State of Delaware,
as the same may be amended and supplemented, indemnify any and all persons whom
it shall have power to indemnify under said section from and against any and all
of the expenses, liabilities, or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
-3-
<PAGE>
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of such a person.
ELEVENTH: From time to time any of the provisions of this certificate
--------
of incorporation may be amended, altered, or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and
all rights at any time conferred upon the stockholders of the corporation by
this certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
Signed on November 07, 1996.
/s/ Erin Callahan
---------------------------
Erin Callahan, Incorporator
-4-
<PAGE>
EXHIBIT 3.4
BY-LAWS
OF
CHADWICK'S TRADENAME SUB, INC.
Section 1. LAW, CERTIFICATE OF INCORPORATION
AND BY-LAWS
1.1. These by-laws are subject to the certificate of incorporation of
the corporation. In these by-laws, references to law, the certificate of
incorporation and by-laws mean the law, the provisions of the certificate of
incorporation and the by-laws as from time to time in effect.
Section 2. STOCKHOLDERS
2.1. Annual Meeting. The annual meeting of stockholders shall be
--------------
held within thirteen months after the previous annual meeting, on whatever date
the board specifies each year, unless that day be a legal holiday at the place
where the meeting is to be held, in which case the meeting shall be held at the
same hour on the next succeeding day not a legal holiday, or at such other date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect a board of
directors and transact such other business as may be required by law or these
by-laws or as may properly come before the meeting.
2.2. Special Meetings. A special meeting of the stockholders may be
----------------
called at any time by the chairman of the board, if any, the president or the
board of directors. A special meeting of the stockholders shall be called by
the secretary, or in the case of the death, absence, incapacity or refusal of
the secretary, by an assistant secretary or some other officer, upon application
of the chairman of the board, the president or a majority of the directors. Any
such application shall state the purpose or purposes of the proposed meeting.
Any such call shall state the place, date, hour, and purposes of the meeting.
2.3. Place of Meeting. All meetings of the stockholders for the
----------------
election of directors or for any other purpose shall be held at such place
within or without the State of Delaware as may be determined from time to time
by the chairman of the board, if any, the president or the board of directors.
Any adjourned session of any meeting of the stockholders shall be held at the
place designated in the vote of adjournment.
2.4. Notice of Meetings. Except as otherwise provided by law, a
------------------
written notice of each meeting of stockholders stating the place, day and hour
thereof and, in the case of a special meeting, the purposes for which the
meeting is called, shall be given not less then ten nor more than sixty days
before the meeting, to each stockholder entitled to vote thereat, and to each
stockholder who, by law, by the certificate of incorporation or by these by-
laws, is entitled to notice, by leaving such notice with him or at his residence
or usual place of
<PAGE>
business, or by depositing it in the United States mail, postage prepaid, and
addressed to such stockholder at his address as it appears in the records of the
corporation. Such notice shall be given by the secretary or by an officer or
person designated by the board of directors or, in the case of a special
meeting, by the officer calling the meeting. As to any adjourned session of any
meeting of stockholders, notice of the adjourned meeting need not be given if
the time and place thereof are announced at the meeting at which the adjournment
was taken except that if the adjournment is for more than thirty days or if
after the adjournment a new record date is set for the adjourned session, notice
of any such adjourned session of the meeting shall be given in the manner
heretofore described. No notice of any meeting of stockholders or any adjourned
session thereof need be given to a stockholder if a written waiver of notice,
executed before or after the meeting or such adjourned session by such
stockholder, is filed with the records of the meeting or if the stockholder
attends such meeting without objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the stockholders or any adjourned session thereof need be specified
in any written waiver of notice.
2.5. Quorum of Stockholders. At any meeting of the stockholders a
----------------------
quorum as to any matter shall consist of a majority of the votes entitled to be
cast on the matter, except where a larger quorum is required by law, by the
certificate of incorporation or by these by-laws. Any meeting may be adjourned
from time to time by a majority of the votes properly cast upon the question,
whether or not a quorum is present. If a quorum is present at an original
meeting, a quorum need not be present at an adjourned session of that meeting.
Shares of its own stock belonging to the corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly, by the corporation,
shall neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of any corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
2.6. Action by Vote. When a quorum is present at any meeting, a
--------------
plurality of the votes properly cast for election to any office shall elect to
such office and a majority of the votes properly cast upon any question other
than an election to an office shall decide the question, except when a larger
vote is required by law, by the certificate of incorporation or by these by-
laws. No ballot shall be required for any election unless requested by a
stockholder present or represented at the meeting and entitled to vote in the
election.
2.7. Action without Meetings. Unless otherwise provided in the
-----------------------
certificate of incorporation, any action required or permitted to be taken by
stockholders for or in connection with any corporate action may be taken without
a meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of
-2-
<PAGE>
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted and shall be
delivered to the corporation by delivery to its registered office in Delaware by
hand or certified or registered mail, return receipt requested, to its principal
place of business or to an officer or agent of the corporation having custody of
the book in which proceedings of meetings of stockholders are recorded. Each
such written consent shall bear the date of signature of each stockholder who
signs the consent. No written consent shall be effective to take the corporate
action referred to therein unless written consents signed by a number of
stockholders sufficient to take such action are delivered to the corporation in
the manner specified in this paragraph within sixty days of the earliest dated
consent so delivered.
If action is taken by consent of stockholders and in accordance with
the foregoing, there shall be filed with the records of the meetings of
stockholders the writing or writings comprising such consent.
If action is taken by less than unanimous consent of stockholders,
prompt notice of the taking of such action without a meeting shall be given to
those who have not consented in writing and a certificate signed and attested to
by the secretary that such notice was given shall be filed with the records of
the meetings of stockholders.
In the event that the action which is consented to is such as would
have required the filing of a certificate under any provision of the General
Corporation Law of the State of Delaware, if such action had been voted upon by
the stockholders at a meeting thereof, the certificate filed under such
provision shall state, in lieu of any statement required by such provision
concerning a vote of stockholders, that written consent has been given under
Section 228 of said General Corporation Law and that written notice has been
given as provided in such Section 228.
2.8. 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, objecting
to or 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 provides 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. The authorization of a proxy may but
need not be limited to specified action, provided, however, that if a proxy
limits its authorization to a meeting or meetings of stockholders, unless
otherwise specifically provided such proxy shall entitle the holder thereof to
vote at any adjourned session but shall not be valid after the final adjournment
thereof.
-3-
<PAGE>
2.9. Inspectors. The directors or the person presiding at the
----------
meeting may, but need not, appoint one or more inspectors of election and any
substitute inspectors to act at the meeting or any adjournment thereof. Each
inspector, 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,
if any, 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, 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 inspectors shall make a report in writing of any
challenge, question or matter determined by them and execute a certificate of
any fact found by them.
2.10. List of Stockholders. The secretary shall prepare and make, at
--------------------
least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting, arranged in alphabetical order
and showing the address of each stockholder and the number of shares registered
in his name. The stock ledger shall be the only evidence as to who are
stockholders entitled to examine such list or to vote in person or by proxy at
such meeting.
Section 3. BOARD OF DIRECTORS
3.1. Number. The number of directors which shall constitute the
------
whole board shall not be less than one nor more than nine in number.
Thereafter, within the foregoing limits, the stockholders at the annual meeting
shall determine the number of directors and shall elect the number of directors
as determined. Within the foregoing limits, the number of directors may be
increased at any time or from time to time by the stockholders or by the
directors by vote of a majority of the directors then in office. The number of
directors may be decreased to any number permitted by the foregoing at any time
either by the stockholders or by the directors by vote of a majority of the
directors then in office, but only to eliminate vacancies existing by reason of
the death, resignation or removal of one or more directors. Directors need not
be stockholders.
3.2. Tenure. Except as otherwise provided by law, by the certificate
------
of incorporation or by these by-laws, each director shall hold office until the
next annual meeting and until his successor is elected and qualified, or until
he sooner dies, resigns, is removed or becomes disqualified.
3.3. Powers. The business and affairs of the corporation shall be
------
managed by or under the direction of the board of directors who shall have and
may exercise all the powers of the corporation and do all such lawful acts and
things as are not by law, the certificate of
-4-
<PAGE>
incorporation or these by-laws directed or required to be exercised or done by
the stockholders.
3.4. Vacancies. Vacancies and any newly created directorships
---------
resulting from any increase in the number of directors may be filled by vote of
the stockholders at a meeting called for the purpose, or by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. When one or more directors shall resign from the board, effective at
a future date, a majority of the directors then in office, including those who
have resigned, shall have power to fill such vacancy or vacancies, the vote or
action by writing thereon to take effect when such resignation or resignations
shall become effective. The directors shall have and may exercise all their
powers notwithstanding the existence of one or more vacancies in their number,
subject to any requirements of law or of the certificate of incorporation or of
these by-laws as to the number of directors required for a quorum or for any
vote or other actions.
3.5. Committees. The board of directors may, by vote of a majority
----------
of the whole board, (a) designate, change the membership of or terminate the
existence of any committee or committees, each committee to consist of one or
more of the directors; (b) designate one or more directors as alternate members
of any such committee who may replace any absent or disqualified member at any
meeting of the committee; and (c) determine the extent to which each such
committee shall have and may exercise the powers of the board of directors in
the management of the business and affairs of the corporation, including the
power to authorize the seal of the corporation to be affixed to all papers which
require it and the power and authority to declare dividends or to authorize the
issuance of stock; excepting, however, such powers which by law, by the
certificate of incorporation or by these by-laws they are prohibited from so
delegating. In the absence or disqualification of any member of such committee
and his alternate, if any, the member or members thereof present at any meeting
and not disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Except as the
board of directors may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by the board or such
rules, its business shall be conducted as nearly as may be in the same manner as
is provided by these by-laws for the conduct of business by the board of
directors. Each committee shall keep regular minutes of its meetings and report
the same to the board of directors upon request.
-5-
<PAGE>
3.6. Regular Meetings. Regular meetings of the board of directors
----------------
may be held without call or notice at such places within or without the State of
Delaware and at such times as the board may from time to time determine,
provided that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting of the
directors may be held without call or notice immediately after and at the same
place as the annual meeting of stockholders.
3.7. Special Meetings. Special meetings of the board of directors
----------------
may be held at any time and at any place within or without the State of Delaware
designated in the notice of the meeting, when called by the chairman of the
board, if any, the president, or by one-third or more in number of the
directors, reasonable notice thereof being given to each director by the
secretary or by the chairman of the board, if any, the president or any one of
the directors calling the meeting.
3.8. Notice. It shall be reasonable and sufficient notice to a
------
director to send notice by mail at least forty-eight hours or by telegram at
least twenty-four hours before the meeting addressed to him at his usual or last
known business or residence address or to give notice to him in person or by
telephone at least twenty-four hours before the meeting. Notice of a meeting
need not be given to any director if a written waiver of notice, executed by him
before or after the meeting, is filed with the records of the meeting, or to any
director who attends the meeting without protesting prior thereto or at its
commencement the lack of notice to him. Neither notice of a meeting nor a
waiver of a notice need specify the purposes of the meeting.
3.9. Quorum. Except as may be otherwise provided by law, by the
------
certificate of incorporation or by these by-laws, at any meeting of the
directors a majority of the directors then in office shall constitute a quorum;
a quorum shall not in any case be less than one-third of the total number of
directors constituting the whole board. Any meeting may be adjourned from time
to time by a majority of the votes cast upon the question, whether or not a
quorum is present, and the meeting may be held as adjourned without further
notice.
3.10. Action by Vote. Except as may be otherwise provided by law, by
--------------
the certificate of incorporation or by these by-laws, when a quorum is present
at any meeting the vote of a majority of the directors present shall be the act
of the board of directors.
3.11. Action Without a Meeting. Any action required or permitted to
------------------------
be taken at any meeting of the board of directors or a committee thereof may be
taken without a meeting if all the members of the board or of such committee, as
the case may be, consent thereto in writing, and such writing or writings are
filed with the records of the meetings of the board or of such committee. Such
consent shall be treated for all purposes as the act of the board or of such
committee, as the case may be.
-6-
<PAGE>
3.12. Participation in Meetings by Conference Telephone. Members of
-------------------------------------------------
the board of directors, or any committee designated by such board, may
participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other or by any other means permitted
by law. Such participation shall constitute presence in person at such meeting.
3.13. Compensation. In the discretion of the board of directors,
------------
each director may be paid such fees for his services as director and be
reimbursed for his reasonable expenses incurred in the performance of his duties
as director as the board of directors from time to time may determine. Nothing
contained in this section shall be construed to preclude any director from
serving the corporation in any other capacity and receiving reasonable
compensation therefor.
3.14. Interested Directors and Officers.
---------------------------------
(a) No contract or transaction between the corporation and one or
more of its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of the corporation's directors or officers are directors or officers, or
have a financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
(1) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the board of
directors or the committee, and the board or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or
(2) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the corporation as
of the time it is authorized, approved or ratified, by the board of directors, a
committee thereof, or the stockholders.
(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
-7-
<PAGE>
Section 4. OFFICERS AND AGENTS
4.1. Enumeration; Qualification. The officers of the corporation
--------------------------
shall be a president, a treasurer, a secretary and such other officers, if any,
as the board of directors from time to time may in its discretion elect or
appoint including without limitation a chairman of the board, one or more vice
presidents and a controller. The corporation may also have such agents, if any,
as the board of directors from time to time may in its discretion choose. Any
officer may be but none need be a director or stockholder. Any two or more
offices may be held by the same person. Any officer may be required by the
board of directors to secure the faithful performance of his duties to the
corporation by giving bond in such amount and with sureties or otherwise as the
board of directors may determine.
4.2. Powers. Subject to law, to the certificate of incorporation and
------
to the other provisions of these by-laws, each officer shall have, in addition
to the duties and powers herein set forth, such duties and powers as are
commonly incident to his office and such additional duties and powers as the
board of directors may from time to time designate.
4.3. Election. The officers may be elected by the board of directors
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at their first meeting following the annual meeting of the stockholders or at
any other time. At any time or from time to time the directors may delegate to
any officer their power to elect or appoint any other officer or any agents.
4.4. Tenure. Each officer shall hold office until the first meeting
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of the board of directors following the next annual meeting of the stockholders
and until his respective successor is chosen and qualified unless a shorter
period shall have been specified by the terms of his election or appointment, or
in each case until he sooner dies, resigns, is removed or becomes disqualified.
Each agent shall retain his authority at the pleasure of the directors, or the
officer by whom he was appointed or by the officer who then holds agent
appointive power.
4.5. Chairman of the Board of Directors, President and Vice
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President. Unless the board of directors otherwise specifies, the chairman of
the board, if any, shall be the chief executive officer and shall have direct
charge of all business operations of the corporation and, subject to the control
of the directors, shall have general charge and supervision of the business of
the corporation.
The president shall have such duties and powers as shall be designated
from time to time by the board of directors and, if no chairman of the board is
then serving, shall be the chief executive officer.
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Unless the board of directors otherwise specifies, the chairman of the
board, or if there is none the president, shall preside, or designate the person
who shall preside, at all meetings of the stockholders and of the board of
directors.
Any vice presidents shall have such duties and powers as shall be set
forth in these by-laws or as shall be designated from time to time by the board
of directors or by the chief executive officer.
4.6. Treasurer and Assistant Treasurers. Unless the board of
----------------------------------
directors otherwise specifies, the treasurer shall be the chief financial
officer of the corporation and shall be in charge of its funds and valuable
papers, and shall have such other duties and powers as may be designated from
time to time by the board of directors or by the chief executive officer. If no
controller is elected, the treasurer shall, unless the board of directors
otherwise specifies, also have the duties and powers of the controller.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the board of directors, the chief executive
officer or the treasurer.
4.7. Controller and Assistant Controllers. If a controller is
------------------------------------
elected, he shall, unless the board of directors otherwise specifies, be the
chief accounting officer of the corporation and 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, the chief executive officer or the treasurer.
Any assistant controller shall have such duties and powers as shall be
designated from time to time by the board of directors, the chief executive
officer, the treasurer or the controller.
4.8. Secretary and Assistant Secretaries. The secretary shall record
-----------------------------------
all proceedings of the stockholders, of the board of directors and of committees
of the board of directors in a book or series of books to be kept therefor and
shall file therein all actions by written consent of stockholders or directors.
In the absence of the secretary from any 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. Unless a transfer agent has been
appointed the secretary shall keep or cause to be kept the stock and transfer
records of the corporation, which shall contain the names and record addresses
of all stockholders and the number of shares registered in the name of each
stockholder. He shall have such other duties and powers as may from time to
time be designated by the board of directors or the chief executive officer.
Any assistant secretaries shall have such duties and powers as shall
be designated from time to time by the board of directors, the chief executive
officer or the secretary.
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Section 5. RESIGNATIONS AND REMOVALS
5.1. Any director or officer may resign at any time by delivering his
resignation in writing to the chairman of the board, if any, the president, or
the secretary or to a meeting of the board of directors. Such resignation shall
be effective upon receipt unless specified to be effective at some other time,
and without in either case the necessity of its being accepted unless the
resignation shall so state. A director (including persons elected by directors
to fill vacancies in the board) may be removed from office with or without cause
by the vote of the holders of a majority of the shares issued and outstanding
and entitled to vote in the election of directors. The board of directors may
at any time remove any officer either with or without cause. The board of
directors may at any time terminate or modify the authority of any agent. No
director or officer resigning and (except where a right to receive compensation
shall be expressly provided in a duly authorized written agreement with the
corporation) no director or officer removed shall have any right to any
compensation as such director or officer for any period following his
resignation or removal, or any right to damages on account of such removal,
whether his compensation be by the month or by the year or otherwise; unless, in
the case of a resignation, the directors, or, in the case of removal, the body
acting on the removal, shall in their or its discretion provide for
compensation.
Section 6. VACANCIES
6.1. If the office of the chairman of the board, the president or the
treasurer or the secretary becomes vacant, the directors may elect a successor
by vote of a majority of the directors then in office. If the office of any
other officer becomes vacant, any person or body empowered to elect or appoint
that officer may choose a successor. Each such successor shall hold office for
the unexpired term, and in the case of the chairman of the board, the president,
the treasurer and the secretary until his successor is chosen and qualified or
in each case until he sooner dies, resigns, is removed or becomes disqualified.
Any vacancy of a directorship shall be filled as specified in Section 3.4 of
these by-laws.
Section 7. CAPITAL STOCK
7.1. Stock Certificates. Each stockholder shall be entitled to a
------------------
certificate stating the number and the class and the designation of the series,
if any, of the shares held by him, in such form as shall, in conformity to law,
the certificate of incorporation and the by-laws, be prescribed from time to
time by the board of directors. Such certificate shall be signed by the
chairman or vice chairman of the board, if any, or the president or a vice
president and by the treasurer or an assistant treasurer or by the secretary or
an assistant secretary. Any of or all the signatures on the certificate may be
a facsimile. In case an officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed on such certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
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issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent, or registrar at the time of its issue.
7.2. Loss of Certificates. In the case of the alleged theft, loss,
--------------------
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the corporation against any claim on account thereof, as
the board of directors may prescribe.
Section 8. TRANSFER OF SHARES OF STOCK
8.1. Transfer on Books. Subject to the restrictions, if any, stated
-----------------
or noted on the stock certificate, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation or its transfer
agent of the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
board of directors or the transfer agent of the corporation may reasonably
require. Except as may be otherwise required by law, by the certificate of
incorporation or by these by-laws, the corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to receive notice
and to vote or to give any consent with respect thereto and to be held liable
for such calls and assessments, if any, as may lawfully be made thereon,
regardless of any transfer, pledge or other disposition of such stock until the
shares have been properly transferred on the books of the corporation.
It shall be the duty of each stockholder to notify the corporation of
his post office address.
8.2. Record Date and Closing Transfer Books. In order that the
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corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, the board of directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the board of directors, and
which record date shall not be more than sixty nor less than ten days before the
date of such meeting. If no such record date is fixed by the board of
directors, the record date for determining the 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. 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.
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In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the board of
directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the board of
directors. If no such record date has been fixed by the board of directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the board of directors is
required by the General Corporation Law of the State of Delaware, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by delivery to its
registered office in Delaware by hand or certified or registered mail, return
receipt requested, to its principal place of business or to an officer or agent
of the corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. If no record date has been fixed by the board of
directors and prior action by the board of directors is required by the General
Corporation Law of the State of Delaware, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the board of
directors adopts the resolution taking such prior action.
In order that the corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or 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 a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record
date shall be not more than sixty days prior to such payment, exercise or other
action. If no such record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the board of directors adopts the resolution relating thereto.
Section 9. CORPORATE SEAL
9.1. Subject to alteration by the directors, the seal of the
corporation shall consist of a flat-faced circular die with the word "Delaware"
and the name of the corporation cut or engraved thereon, together with such
other words, dates or images as may be approved from time to time by the
directors.
Section 10. EXECUTION OF PAPERS
10.1. Except as the board of directors may generally or in particular
cases authorize the execution thereof in some other manner, all deeds, leases,
transfers, contracts, bonds, notes, checks, drafts or other obligations made,
accepted or endorsed by the corporation shall be signed by the chairman of the
board, if any, the president, a vice president or the treasurer.
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Section 11. FISCAL YEAR
11.1. The fiscal year of the corporation shall end on the 31st of
December.
Section 12. AMENDMENTS
12.1. These by-laws may be adopted, amended or repealed by vote of a
majority of the directors then in office or by vote of a majority of the stock
outstanding and entitled to vote. Any by-law, whether adopted, amended or
repealed by the stockholders or directors, may be amended or reinstated by the
stockholders or the directors.
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EXHIBIT 99.1
[LETTERHEAD OF BRYLANE, L.P.]
FOR IMMEDIATE RELEASE
BRYLANE, L.P. TO ACQUIRE CHADWICK'S OF BOSTON, LTD
NEW YORK, Oct. 21, 1996 -- Brylane, L.P. today announced it has reached a
definitive agreement to acquire Chadwick's of Boston, Ltd. from The TJX
Companies, Inc. Chadwick's of Boston is the nation's largest catalog retailer of
off-price women's apparel with sales of approximately $465 million in 1995.
Brylane is one of the nation's leading catalog retailers of women's and men's
apparel through its Lane Bryant, Roaman's, Lerner, Sue Brett and KingSize
catalogs. Brylane, L.P. was established in 1993 as a joint venture between
Freeman Spogli & Co., management, and The Limited, Inc. and recorded $600
million in sales in 1995. The combined company's sales will exceed $1.1 billion.
Brylane will purchase the assets of Chadwick's, excluding certain accounts
receivable, for approximately $223 million in cash and a $20 million convertible
subordinated note. Financing for the transaction will be provided through bank
facilities underwritten by J.P. Morgan & Co. and Merrill Lynch Capital Markets.
In addition, Freeman Spogli & Co., the majority owner of Brylane, has committed
to provide $50 million of equity financing.
"Chadwick's of Boston is a very exciting addition to our present business, which
will significantly expand our position in the regular-size apparel catalog
market," said Peter Canzone, Chairman and CEO of Brylane. "The company's
exceptionally talented management team and quality workforce have made
Chadwick's one of the most recognized brand names in women's apparel catalog
retailing. Through its consistent merchandising focus and excellent marketing
skills, Chadwick's has developed one of the largest customer bases in the
catalog industry."
Chadwick's and its 2,500 employees will continue to operate from its facilities
located in West Bridgewater, Massachusetts, Brylane has fulfillment and
telemarketing centers in Indianapolis, Indiana and additional telemarketing
centers in Greenwood, Indiana and San Antonio, Texas. Brylane's corporate
offices are located in New York City. In October 1995, Brylane acquired the
KingSize big and tall men's apparel catalog business, which is based in
Hingham, Massachusetts.
Merrill Lynch & Co. and Lazard Freres & Co. provided advisory services to
Brylane in connection with the transaction.
# # #
Contact: Peter Canzone
Brylane, L.P.
(212) 613-9601
