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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) April 3, 1998
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Commission file number: 1-12703
Brylane Inc.
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(Exact name of registrant as specified in its charter)
Delaware 13-3794198
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(State or other jurisdiction (I.R.S. Employer 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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Page 1 of 7 Pages
Exhibit index begins at page 7.
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT.
On April 3, 1998, as a result of a series of transactions described
below, REDAM LLC, a Delaware limited liability company ("REDAM") and a wholly
owned, indirect subsidiary of Pinault-Printemps-Redoute, S.A., a societe anonyme
organized and existing under the laws of the Republic of France ("PPR"),
purchased an aggregate of 8,010,917 shares of common stock, par value $0.01 per
share (the "Common Stock") of Brylane Inc., a Delaware corporation ("Brylane")
for $51 per share as follows:
(1) pursuant to that certain Stock Purchase Agreement (the "FS Stock
Purchase Agreement"), dated as of February 19, 1998, by and among FS Equity
Partners II, L.P., FS Equity Partners III, L.P. and FS Equity Partners
International, L.P. (collectively, the "FS Entities"), the FS Entities sold and
REDAM, as assignee of PPR under the FS Stock Purchase Agreement, purchased an
aggregate of 4,389,294 shares of Common Stock (such shares of Common Stock, the
"FS Shares");
(2) pursuant to that certain Stock Purchase Agreement (the "M&P Stock
Purchase Agreement"), dated as of February 19, 1998, by and between PPR and M&P
Distributing Company ("M&P"), M&P sold and REDAM, as assignee of PPR under the
M&P Stock Purchase Agreement, purchased 2,573,762 shares of Common Stock (such
shares of Common Stock, the "MP Shares");
(3) pursuant to Stock Purchase Agreements, each dated April 3, 1998,
by and between PPR and two other stockholders of Brylane who were parties to a
Stockholders Agreement dated as of February 26, 1997, REDAM purchased an
aggregate of 514,752 additional shares of Common Stock (such shares of Common
Stock, the "Tag-Along Shares"); and
(4) concurrently with the closings under the FS Stock Purchase
Agreement and the M&P Stock Purchase Agreement, REDAM purchased an aggregate of
533,109 additional shares of Common Stock (collectively, the "Management
Shares," and together with the Tag-Along Shares, the MP Shares and the FS
Shares, the "Shares") from certain members of Brylane's management.
The aggregate purchase price paid by REDAM for the Shares was
$408,556,767. These funds were obtained by REDAM as a capital contribution from
its parent entity which borrowed such funds from PPR, which obtained such funds
from a drawdown on an existing line of credit with Banque Nationale de Paris,
Natexis, Union European du Credit Industriel et Commercial, Credit Commercial de
France, Credit du Nord and Credit Mutuel.
As contemplated by the FS Stock Purchase Agreement and the M&P Stock
Purchase Agreement, PPR and Brylane entered into a Governance Agreement with
PPR, dated as of April 3, 1998 (the "Governance Agreement") at the time of the
purchase of the Shares. Pursuant to the FS Stock Purchase Agreement and the M&P
Stock Purchase Agreement,
2
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five nominees of PPR were elected as directors of Brylane on April 3, 1998 to
serve until Brylane's next annual meeting and until their successors are duly
elected and qualified, and the directors of Brylane who were nominees of the FS
Entities and M&P resigned. The five individuals elected as directors are Serge
Weinberg, President and Chief Executive Officer of PPR, Hartmut Kramer, Chairman
and Chief Executive Officer of La Redoute S.A., Richard Simonin, Chairman and
Chief Executive Officer of Redoute France, Antoine Metzger, Chief Financial
Officer of La Redoute, and Johannes Loning, Vice-President in charge of
Corporate Development of La Redoute. The other directors of Brylane are Peter J.
Canzone, President, Chief Executive Officer and Chairman of the Board of Brylane
and Judith E. Campbell, William C. Johnson and Peter M. Starrett, each of whom
are Independent Directors (as defined below).
Pursuant to the Governance Agreement, during a standstill period of
three years (which period is subject to early termination in certain
circumstance set forth in the Governance Agreement), PPR and its affiliates are
subject to certain limitations and restrictions relating to (x) solicitations or
public proposals to effect a merger or other business combination or sale of all
or substantially all of the assets of Brylane and (y) acquisitions of additional
shares of Common Stock limited to approximately 47.5% of the outstanding shares
of Common Stock (including shares already beneficially owned by PPR). In
addition, under the Governance Agreement, (i) Brylane is required to use its
best efforts to have the Board of Directors of Brylane (the "Board") include up
to five nominees of PPR in the slate of nominees presented by the Board for
election at each stockholder meeting at which directors are to be elected (the
"PPR Directors"), subject to the resignation of specified numbers of PPR
Directors in the event ownership of Common Stock by PPR or its affiliates falls
below certain thresholds set forth in the Governance Agreement; (ii) PPR and
Brylane are required to use their best efforts to assure that the Board will
include (a) at least three directors who are independent of PPR, Freeman Spogli
& Co., The Limited, Inc. (of which M&P is an affiliate) and Brylane's management
(the "Independent Directors") and (b) Brylane's Chief Executive Officer; (iii)
PPR has specified representation on the committees of the Board; and (iv) until
the first anniversary of the Governance Agreement, certain specified officers of
Brylane may not be terminated without cause unless two-thirds of the directors
then in office approve such termination.
In addition, pursuant to the Governance Agreement, PPR has agreed
that, as long as at least two-ninths or an equivalent proportion of the Brylane
directors are PPR Directors, (i) any transaction with PPR or its affiliates must
be on arm's-length terms and approved by a majority of the Independent
Directors; (ii) any amendment, repeal or other modification of the Governance
Agreement or any other agreement or instrument of Brylane, including Brylane's
charter or bylaws, which would have the effect of altering the terms of the
Governance Agreement in any manner adverse to the stockholders of Brylane (other
than PPR) must be approved by a majority of the Independent Directors; (iii)
dispositions of any assets of Brylane or any business combination, spin-off or
other transaction pursuant to which PPR would receive consideration different
from that received by other holders of Common Stock must be approved by a
majority of the Independent Directors; and (iv) any corporate opportunity
(merger or acquisition) relating to the United States mail order business which
PPR or its affiliates receive
3
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must first be presented to and considered by Brylane. If, within 20 days of
being presented with an opportunity described in clause (iv) of the preceding
sentence, Brylane chooses not to pursue such opportunity or Brylane chooses to
pursue such opportunity and fails to consummate a transaction with respect to
such opportunity within 45 days of being presented with the opportunity, PPR
and/or its affiliates may pursue such opportunity. In addition, if any PPR
business that is primarily mail order desires to enter the United States mail
order business, Brylane will be offered a right of first refusal with respect to
such business in the United States, and if, within 20 days of being presented
with such opportunity, Brylane chooses not to pursue such opportunity or Brylane
chooses to pursue such opportunity and fails to consummate a transaction with
respect to such opportunity within 45 days of being presented with the
opportunity, PPR and/or its affiliates may pursue such opportunity. PPR will not
interfere with any merger or acquisition opportunities that Brylane receives on
its own (other than through participating in any decision made by the Board).
Concurrently with the purchase of the Shares, Brylane and PPR entered
into a registration rights agreement, dated as of April 3, 1998 (the
"Registration Rights Agreement"), pursuant to which Brylane has granted PPR
certain registration rights to facilitate the resale of the Shares under certain
conditions. Under the Registration Rights Agreement, PPR and its affiliates are
entitled to two demand registrations.
In connection with the transactions described above, on April 2, 1998,
the Board of Brylane adopted amendments to Brylane's Bylaws (i) to fix the
number of directors at nine, (ii) to include a definition of Independent
Director (as described above), (iii) to provide that vacancies in the position
of Independent Director be filled by the remaining Independent Directors and
(iv) to provide that during the Standstill Period, in addition to the vote
required by Section 3.9 of Brylane's Bylaws, certain actions require the
approval of a majority of the Independent Directors.
As of April 3, 1998, PPR may be deemed to beneficially own 8,010,917
Shares because of REDAM's acquisition of the Shares. Based upon the 18,329,948
shares of Common Stock outstanding as of April 3, 1998, PPR beneficially owns
approximately 43.7% of the outstanding Common Stock.
A copy of each of the Bylaws, as amended, of Brylane, the Governance
Agreement and the Registration Rights Agreement are attached hereto as Exhibits
or incorporated herein by reference, and the description herein of such
documents are qualified in their respective entireties by reference to such
documents.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS.
3.1 Bylaws of Brylane Inc., as amended April 3, 1998.
4.1+ Governance Agreement by and between Brylane Inc. and
Pinault-Printemps-Redoute, S.A. dated as of April 3, 1998.
4.2+ Registration Rights Agreement between Brylane Inc. and
Pinault-Printemps-Redoute, S.A. dated as of April 3, 1998.
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+ Filed as an exhibit to the Schedule 13D with respect to the Common Stock of
Brylane Inc. filed by Pinault-Printemps-Redoute, S.A. on April 13, 1998.
5
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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 INC.
Dated: April 17, 1998 By: /s/ Robert A. Pulciani
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Robert A. Pulciani
Executive Vice President,
Chief Financial Officer,
Secretary and Treasurer
(On behalf of the Registrant
and as the principal financial
and accounting officer of the
Registrant)
6
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
3.1 Bylaws of Brylane Inc., as amended April 3, 1998.
4.1+ Governance Agreement by and between Brylane Inc. and
Pinault-Printemps-Redoute, S.A. dated as of April 3, 1998.
4.2+ Registration Rights Agreement between Brylane Inc. and
Pinault-Printemps-Redoute, S.A. dated as of April 3, 1998.
</TABLE>
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+ Filed as an exhibit to the Schedule 13D with respect to the Common Stock of
Brylane Inc. filed by Pinault-Printemps-Redoute, S.A. on April 13, 1998.
7
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EXHIBIT 3.1
AS AMENDED
THROUGH APRIL 3, 1998
BYLAWS
OF
BRYLANE INC.
ARTICLE I
Offices
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Section 1.1 Registered Office. The registered office of Brylane
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Inc. (the "Corporation") in the State of Delaware shall be at 1209 Orange
Street, in the City of Wilmington, County of New Castle, 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 located at such place within or outside of
the State of Delaware as the board of directors of the Corporation (the "Board
of Directors") from time to time shall designate.
Section 1.3 Other Offices. The Corporation may also have an office
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or offices at such other place of places, either within or without the State of
Delaware, as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE II
Stockholders
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Section 2.1 Annual Meetings. An annual meeting of stockholders
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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 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 or the Chairman of the Board and
shall be called by the Secretary upon the written request of the holders of
shares entitled to cast not less than 50% of the votes at such meeting. Such
request shall state the purpose or purposes of the proposed meeting. Special
meetings may not be called by any other person or persons. Each special
<PAGE>
meeting shall be held at such date and time as is requested by the person or
persons calling the meeting, within the limits set forth in these bylaws or
fixed by law.
Section 2.3 Notice of Meetings.
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(a) 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 address as it appears on the records of the
Corporation.
(b) Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 2.4 Adjournments. Any meeting of stockholders, annual or
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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 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.
2.
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Section 2.6 Organization. Meetings of stockholders shall be
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presided over by the Chairman of the Board, if any, or in his absence by the
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, and subject to the General Corporation Law of the
State of Delaware, as the same exists or may hereafter be amended ("Delaware
Law"), 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. A stockholder may vote the shares owned of record
by him (whether at a meeting of stockholders or by expressing consent to
corporate action in writing without a meeting) 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 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
3.
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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.
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 or to express consent to corporate action in
writing without a meeting 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
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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 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 inter-dealer quotation
system of a registered national securities exchange, or (3) held of record by
more than
4.
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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 upon the request
of one or more stockholders 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.
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.
------------------------------------------
(a) 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 and
5.
<PAGE>
delivered to the Corporation by delivery to its registered office in Delaware,
its principal place of business or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. 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.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent, and no written consent shall be effective to
take the corporate action referred to therein unless, within 60 days of the
earliest dated consent delivered in the manner required by this Section and
Delaware Law to the Corporation, written consents signed by a sufficient number
of holders to take action are delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded.
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 not more than nine members, the exact number to be determined,
subject to Section 3.15 of these Bylaws, 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.
6.
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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 and notified to each Director, regular meetings may thereafter be
held without further notice being given.
Section 3.7 Special Meetings. Special meetings of the Board of
----------------
Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board, if any, by the President,
or upon the written request of two directors. At least three days' 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.
7.
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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.
Section 3.12 Compensation of Directors. The Board of Directors
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shall have the authority to fix the compensation of directors.
Section 3.13 Removal. Subject to the provisions of the Certificate
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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 either at a special meeting of
the stockholders called for the purpose or by a consent in writing in accordance
with Section 2.11 hereof.
Section 3.14 Resignation. Any director may resign at any time by
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giving written notice to the Board of Directors or to the Secretary of the
Corporation. The resignation of any director shall take effect upon receipt of
notice thereof or at such later time as shall be specified in such notice; and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 3.15 Independent Director. The Board of Directors shall
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include two "Independent Directors" as defined herein until a candidate to be
the third Independent Director shall have been identified and appointed as a
director, from and after which date the Board of Directors shall include three
Independent Directors. The term "Independent Director" shall mean William C.
Johnson and Peter M. Starrett as well as any other person who is not a member of
the Corporation's management, and who is not affiliated with Pinault Printemps-
Redoute, S.A., a company organized under the laws of France ("PPR"), Freeman
Spogli & Co. Incorporated, or The Limited, Inc., a Delaware corporation, or any
of their respective affiliates (including any individual who in the past three
years has been an officer, employee, consultant of, or advisor to, any of the
foregoing). Notwithstanding any other provision in these Bylaws, any vacancy in
the position of Independent Director resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of the remaining Independent Directors or Independent Director then in office.
Any Independent 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 Independent Director and, if elected to a newly created
directorship, hold office until the next annual meeting of stockholders, and in
either case, until such Independent Director's successor shall have been duly
elected and qualified.
Section 3.16 Independent Director Vote Required.
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8.
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(a) Notwithstanding any other provision of these Bylaws, during the
Standstill Period as defined in Section 3.16(b) below, in addition to the vote
required by Section 3.9 of these Bylaws, the following actions require the vote
of a majority of the Independent Directors: (i) adoption of annual capital
expenditure budgets for the Corporation and its subsidiaries and material
deviations therefrom; (ii) any amendment of the Corporation's Certificate of
Incorporation or these Bylaws; (iii) any sale, lease, transfer or other
disposition (other than in the ordinary course of business consistent with past
practice), in one or more related transactions, of the assets of the Corporation
or any subsidiary thereof, the book value of which assets exceeds 25% of the
consolidated assets of the Corporation and its subsidiaries; and (iv) any
merger, consolidation, liquidation or dissolution of the Corporation or any
subsidiary thereof, other than any such merger or consolidation of any
subsidiary of the Corporation with and into the Corporation or another wholly
owned subsidiary of the Corporation;
(b) The "Standstill Period" shall be the period commencing on April 3,
1998 and ending on the earlier of (x) April 2, 2001 at 10:00 a.m. New York City
time or (y) the earliest of:
(i) the occurrence of any event of default on the part of the
Corporation or any subsidiary under any debt agreements, instruments,
or arrangements which event of default would reasonably be expected to
result in a material adverse effect on the results of operations,
condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Corporation and its subsidiaries
considered as one enterprise and, in the case of a non-monetary event
of default, which event of default cannot be, or is not, cured by the
Corporation within the applicable cure period under such debt
agreement, instrument or arrangement;
(ii) the acquisition by any person or Group (as such term is used
in Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "1934 Act")) other than PPR or any affiliate thereof of, or the
announcement or commencement of a tender or exchange offer by any
person or Group other than PPR or any affiliate (as such term is
defined in Rule 12b-2 promulgated under the 1934 Act) thereof to
acquire, beneficial ownership (as determined pursuant to Rule 13d-3
promulgated under the 1934 Act) of more than 20% of the outstanding
shares of any class of capital stock of the Corporation entitled to
vote generally in the election of directors;
9.
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(iii) the commencement by any person or Group (not
affiliated with PPR) of an "election contest" (as such term is
used in Regulation 14A under the 1934 Act disregarding clause
(iv) of Rule 14a-1(l)(2)) or the seeking through other means of
the removal of any directors from office; and
(iv) the written submission by any person or Group other
than PPR or any affiliate thereof of a proposal to the
Corporation (including to the Board of Directors or any agent,
representative or affiliate of the Corporation) with respect to,
or otherwise expressing an interest in pursuing, a merger,
consolidation or other business combination of the Corporation,
sale of all or substantially all of the assets of the Corporation
or significant recapitalization or significant reorganization of
the Corporation (any of the foregoing, a "Covered Transaction");
provided, however, that the Standstill Period shall not terminate
if, as soon as practicable after receipt of any such proposal, a
majority of the Independent Directors determines that such
proposal is not in the best interest of the Corporation and its
stockholders and for so long as a majority of the Independent
Directors continues to reject such proposal as a result of such
determination.
ARTICLE IV
Committees
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Section 4.1 Committees. The Board of Directors may, by resolution
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passed by a majority of the whole 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. 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
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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 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
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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. Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors when required.
ARTICLE V
Officers
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Section 5.1 Officers; Election. As soon as practicable after the
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annual meeting of stockholders in each year, the Board of Directors shall elect
a President, a Secretary and 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, except that no one person shall hold the offices of President and
Secretary.
Section 5.2 Term of Office; Resignation; Removal; Vacancies.
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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 shall
be necessary to make it effective. The Board of Directors
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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
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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
Stock
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Section 6.1 Certificates. Every holder of stock in the Corporation
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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 6.2 Lost, Stolen or Destroyed Stock Certificates; Issuance
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of New Certificates. The Corporation may issue a new certificate of stock in
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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 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.
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ARTICLE VII
Miscellaneous
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Section 7.1 Fiscal Year. The fiscal year of the Corporation shall
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be determined by the Board of Directors.
Section 7.2 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 7.3 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 7.4 Interested Directors; Quorum. Subject to Delaware Law,
----------------------------
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 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
13.
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(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 7.5 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.
Any such records of the Corporation may be kept within or without of the State
of Delaware as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
Section 7.6 Dividends. Subject to limitations contained in
---------
Delaware Law or the Certificate of Incorporation, the Board of Directors may
declare and pay dividends upon the shares of capital stock of the Corporation,
which dividends may be paid either in cash, in property or in shares of the
capital stock of the Corporation.
Section 7.7 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.
Section 7.8 Gender. Any reference to the masculine gender in these
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Bylaws shall be construed to mean the feminine gender, as the situation may
demand.
14.
