AMENDED AND RESTATED
BYLAWS
OF
MICHAELS STORES, INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The initial registered office of the
corporation shall be at such place as is designated in the Certificate of
Incorporation (herein, as amended from time to time, so called) and thereafter
the registered office may be at such other place as the Board of Directors may
from time to time designate by resolution.
SECTION 2. OTHER OFFICES. The corporation may also have offices at
such other place both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
STOCKHOLDERS
SECTION 1. MEETINGS. All meetings of the stockholders for the election
of Directors shall be held at the principal office of the corporation or at such
other place, within or without the State of Delaware, as may be fixed from time
to time by the Board of Directors. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
SECTION 2. ANNUAL MEETING. An annual meeting of the stockholders shall
be held on such date in each fiscal year of the corporation as the Board of
Directors will select, if not a legal holiday, and if a legal holiday, then on
the next secular day following, at which meeting the stockholders shall elect a
Board of Directors, and transact such other business as may properly be brought
before the meeting.
SECTION 3. LIST OF STOCKHOLDERS. At least ten days before each meeting
of stockholders, a complete list of the stockholders entitled to vote at said
meeting, arranged in alphabetical order, with the address of and the number of
voting shares held by each, shall be prepared by the officer or agent having
charge of the stock transfer books. Such list shall be kept on file 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 for a period
of ten days prior to such meeting and shall be subject to inspection by any
stockholder at any time during usual business hours. Such list shall be
produced and kept open at the time and place of the meeting during the whole
time thereof, and shall be subject to the inspection of any stockholder who may
be present. The Board of Directors may fix in advance a record date for the
purpose of determining stockholders entitled to notice of or to vote at a
meeting of stockholders, such record date to be not less than ten nor more than
sixty days prior to such meeting. In the absence of any action by the Board of
Directors, the close of business on the day next preceding the day on which
notice is given shall be the record date.
SECTION 4. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by the General Corporation
Law of the State of Delaware (herein called "the Act"), or by the Certificate of
Incorporation, or by these Bylaws (herein, as amended from time to time, so
called), may be called by the President or, the Board of Directors, or shall be
called by the President or Secretary at the request in writing of the holders
entitled to cast at least one-third of the votes which all stockholders are
entitled to cast at the particular meeting. Such request shall state the
purpose or purposes of the proposed meeting. Business transacted at all special
meetings shall be confined to the purposes stated in the notice of the meeting
unless all stockholders entitled to vote are present and consent.
SECTION 5. NOTICE. Written or printed notice stating the place, day
and hour of any meeting of the stockholders and, in case of a special meeting,
the purpose or purposes for which the meeting is called, shall be delivered not
less than ten nor more than sixty days before the date of the meeting, either
personally or by mail, by or at the direction of the President, the Secretary,
or the officer or person calling the meeting, to each stockholder of record
entitled to vote at the meeting.
SECTION 6. QUORUM. At all meetings of the stockholders, the presence
in person or by proxy of the holders of a majority of the shares issued and
outstanding and entitled to vote shall be necessary and sufficient to constitute
a quorum for the transaction of business except as otherwise provided by the
Act, by the Certificate of Incorporation or by these Bylaws. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
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SECTION 7. VOTING. When a quorum is present at any meeting, the vote
of the holders of a majority of the shares having voting power present in person
or represented by proxy at such meeting shall decide any questions brought
before such meeting, unless the question is one upon which, by express provision
of the Act or of the Certificate of Incorporation or of these Bylaws (including,
but not limited to, Article III of these Bylaws), a different vote is required,
in which case such express provision shall govern and control the decision of
such question. The stockholders present in person or by proxy at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
SECTION 8. PROXY. Each outstanding share, regardless of class, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
stockholders, except to the extent that the voting rights of the shares of any
class or classes are limited or denied by the Certificate of Incorporation. At
any meeting of the stockholders, every stockholder having the right to vote
shall be entitled to vote in person, or by proxy appointed by an instrument in
writing subscribed by such stockholder, or by his duly authorized attorney in
fact, and bearing a date not more than three years prior to said meeting, unless
said instrument provides for a longer period. Such proxy shall be filed with
the Secretary of the corporation prior to or at the time of the meeting.
A duly elected proxy shall be 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.
SECTION 9. ACTION BY CONSENT. Any action required or permitted to be
taken at a meeting of the stockholders of the corporation by the Act,
Certificate of Incorporation or these Bylaws may be taken without a meeting, 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.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. BOARD OF DIRECTORS. The business and affairs of the
corporation shall be managed by its Board of Directors who may exercise all such
powers of the corporation and do all such
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lawful acts and things as are not by the Act or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or done by
the stockholders.
SECTION 2. NUMBER OF DIRECTORS; ELECTION. The exact number of
Directors shall be fixed by resolution of the Board of Directors from time to
time, none of whom need be stockholders or residents of the State of Delaware.
The Directors shall be elected by plurality vote at the annual meeting of the
stockholders, except as may be provided from time to time in the Certificate of
Incorporation (or, in the case of vacancies, below), and each Director elected
shall hold office until his successor shall be elected and shall qualify.
SECTION 3. VACANCIES. Any Director may be removed either for or
without cause, as provided in the Certificate of Incorporation. Newly created
directorships resulting from any increase in the authorized number of directors
and any vacancies occurring in the Board of Directors caused by death,
resignation, retirement, disqualification or removal from office of any
Directors or otherwise, may be filled by the vote of a majority of the Directors
then in office, though less than a quorum, or a successor or successors may be
chosen at a special meeting of the stockholders called for that purpose, and
each successor Director so chosen shall hold office until the next election of
the class for which such directors shall have been chosen and until their
successors shall be elected and qualified.
ARTICLE IV
MEETINGS OF THE BOARD
SECTION 1. MEETINGS. The Directors of the corporation may hold their
meetings, both regular and special, at such times and places as are fixed from
time to time by resolution of the Board of Directors.
SECTION 2. ANNUAL MEETING. The first meeting of each newly elected
Board of Directors shall be held without further notice immediately following
the annual meeting of stockholders, and at the same place, unless by unanimous
consent of the Directors then elected and serving such time or place shall be
changed.
SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from time
to time be determined by resolution of the Board.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President or by a
majority of the Directors in office. The purpose
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of any special meeting shall be specified in the notice or any waiver of notice.
Each notice of a meeting of the Board of Directors may be delivered personally
or by telephone to a director not later than the day before the day on which the
meeting is to be held; sent to a Director at his residence or usual place of
business, or at any other place of which he will have notified the Corporation
by telegram, telex, cable, wireless, facsimile or similar means at least 24
hours before the time at which the meeting is to be held; or posted to him at
such place by prepaid first class or air mail, as appropriate, at least three
days before the day on which the meeting is to be held. Notice of a meeting of
the Board of Directors need not be given to any Director who submits a signed
waiver of notice, whether before or after the meeting, or who attends the
meeting without protesting, prior to or at its commencement, the lack of notice
to him.
SECTION 5. QUORUM. At all meetings of the Board of Directors the
presence of a majority of the number of Directors then constituting the Board of
Directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the affirmative vote of at least a majority of the
Directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by the
Act or by the Certificate of Incorporation or by these Bylaws. If a quorum shall
not be present at any meeting of Directors, the Directors present there at may
adjourn the meeting from time to time without notice other than announcement at
the meeting, until a quorum shall be present.
SECTION 6. EXECUTIVE COMMITTEE. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate an Executive
Committee, to consist of two or more Directors of the corporation, one of whom
shall be designated as chairman, who shall preside at all meetings of such
Committee. To the extent provided in the resolution of the Board of Directors,
the Executive Committee shall have and may exercise all of the authority of the
Board of Directors in the management of the business and affairs of the
corporation, except where action of the Board of Directors as a whole is
expressly required by the Act or by the Certificate of Incorporation and shall
have power to authorize the seal of the corporation to be affixed to all papers
which may require it. The Executive Committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required. Any
member of the Executive Committee may be removed, for or without cause, by this
affirmative vote of a majority of the whole Board of Directors. If any vacancy
or vacancies occur in the Executive Committee caused by death, resignation,
retirement, disqualification, removal from office or otherwise, the vacancy
shall the filled by the affirmative vote of a majority of the whole Board of
Directors.
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SECTION 7. OTHER COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate other committees, each
committee to consist of two or more Directors of the corporation, which
committees shall have such power and authority and shall perform such functions
as may be provided in such resolution. Such committee or committees shall have
such name or names as may be designated by the Board and shall keep regular
minutes of their proceedings and report the same to the Board of Directors when
required.
SECTION 8. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board of Directors, the Executive Committee or any
other committee of the Board of Directors, may be taken without such a meeting
if a consent in writing, setting forth the action so taken, is signed by all the
members of the Board of Directors or the Executive Committee or such other
committee, as the case may be and the writing or writings are filed with the
minutes of proceedings of the Board or Committee.
SECTION 9. COMPENSATION DIRECTORS. Directors, as such, shall not
receive any stated salary for their services, but may receive such compensation
and reimbursements as may be determined from time to time by resolution of the
Board; provided that nothing herein contained shall be construed to preclude any
Director from serving the corporation in any other capacity and receiving
compensation therefor.
ARTICLE V
NOTICE OF MEETINGS
SECTION 1. FORM OF NOTICE. Whenever under the provisions of the Act or of
the Certificate of Incorporation or of these Bylaws, notice is required to be
given to any Director or stockholder, and no provision is made as to how such
notice shall be given, it shall not be construed to mean personal notice, but
any such notice may be given in writing, by mail, postage prepaid, addressed to
such Director or stockholder at such address as appears on the books of the
corporation. Any notice required or permitted to be given by mail shall be
deemed to be given at the time when the same be thus deposited in the United
States mails is aforesaid.
SECTION 2. WAIVER. Whenever any written notice is required to be given
to any stockholder or Director of the corporation, under the provisions of the
Act or of the Certificate of Incorporation or of these Bylaws, a waiver thereof
in writing signed by the person or persons entitled to such notice, whether
before or after the time stated in such notice, shall be deemed equivalent to
the giving of such notice.
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SECTION 3. TELEPHONE MEETINGS. Stockholders, members of the Board of
Directors or members of any committee designated by the Board of Directors may
participate in and hold meetings of such stockholders, 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.
ARTICLE VI
OFFICERS
SECTION 1. IN GENERAL. The officers of the corporation shall be
elected by the Board of Directors and shall be a President, a Vice President, a
Secretary and a Treasurer. The Board of Directors may also elect a Chairman of
the Board, Vice Chairman of the Board, additional Vice Presidents, Assistant
Vice Presidents, a Controller, and one or more Assistant Secretaries and
Assistant Treasurers. Any two or more offices may be held by the same person.
SECTION 2. ELECTION. The Board of Directors, at its first meeting
after each annual meeting of stockholders, shall elect a President from its
members and shall, by resolution, designate one of such officers to be the Chief
Executive Officer of the corporation. At such meeting the Board of Directors
shall also elect one or more Vice Presidents, a Secretary and a Treasurer, none
of whom need be a member of the Board of Directors.
SECTION 3. OTHER OFFICERS AND AGENTS. The Board of Directors may also
elect and appoint such other officers and agents as it shall deem necessary, who
shall be elected and appointed for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board.
SECTION 4. SALARIES. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors or by the Executive
Committee, if so authorized by the Board.
SECTION 5. TERM OF OFFICE AND REMOVAL. Each officer of the corporation
shall hold office until his death, or his resignation or removal from office, or
the election and qualification of his successor, whichever shall first occur.
Any officer or agent elected or appointed by the Board of Directors may be
removed by the Board of Directors, whenever in its judgment the best interest of
the corporation will be served thereby. If the office of any officer becomes
vacant for any reason, the vacancy may be filled by the Board of Directors.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if any,
shall preside at all meetings of the Board at which
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he may be present and shall be ex officio a member of all standing committees
and shall perform such other duties as may be assigned to him by the Board of
Directors.
SECTION 7. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board,
if any, shall have such powers and perform such duties as the Board of Directors
or the Executive Committee may from time to time prescribe or as the Chairman of
the Board or the Chief Executive Officer may from time to time delegate to him.
In the absence or disability of the Chairman of the Board, the Vice Chairman of
the Board shall perform the duties and exercise the powers of the Chairman of
the Board.
SECTION 8. PRESIDENT. The President shall be the chief administration
officer of the corporation and shall preside at all meetings of the
stockholders. In the absence of the Chairman of the Board or the Vice Chairman
of the Board, if any, he shall preside at all meetings of the Board of
Directors. He shall be ex officio a member of all standing committees and shall
execute bonds, mortgages, and all other contracts or instruments requiring a
seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed, and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the corporation. The President shall perform such
other duties as from time to time may be assigned to him by the Board of
Directors and by the Chief Executive Officer of the corporation.
SECTION 9. CHIEF EXECUTIVE OFFICER. The Chief Executive officer of the
corporation shall have, subject only to the Board of Directors and the Executive
Committee, general and active management and supervision of the business and
affairs of the corporation and shall see that all orders and resolutions of the
Board of Directors and the Executive Committee are carried into effect. He
shall have all powers and duties of supervision and management usually vested in
the general manager of a corporation, including the supervision and direction of
all other officers of the corporation and the power to appoint and discharge
agents and employees.
SECTION 10. VICE PRESIDENTS. Each Vice President shall have such power
and perform such duties as the Board of Directors or the Executive Committee may
from time to time prescribe, or as the Chief Executive officer may from time to
time delegate to him. In the absence or disability of the President, a Vice
President designated by the Board of Directors shall perform the duties and
exercise the powers of the President.
SECTION 11. SECRETARY. The Secretary shall attend all meetings of the
shareholders and record all votes and the minutes of all proceedings in a book
to be kept for that purpose. The
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Secretary shall perform like duties for the Board of Directors and the Executive
Committee when required. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors and
shall perform such other duties as may be prescribed by the Board of Directors
or the Chief Executive Officer, under whose supervision he shall be. He shall
keep in safe custody the seal of the corporation.
SECTION 12. ASSISTANT SECRETARIES. Each Assistant Secretary shall have
such power and perform such duties as the Board of Directors may from time to
time prescribe. Unless otherwise provided by the Board of Directors, in the
absence or disability of the Secretary, any Assistant Secretary may perform the
duties and exercise the powers of the Secretary.
SECTION 13. TREASURER. The Treasurer shall have the custody of all
corporate funds and securities, shall keep full and accurate accounts of
receipts and disbursements of the corporation, and shall deposit all moneys and
other valuable effects in the name and to the credit of the corporation in such
depositories as may be designated by the Board of Directors. He shall disburse
the funds of the corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, shall render to the Chief Executive
Officer and Directors, at the regular meetings of the Board, or whenever they
may require it, an account of all his transactions as Treasurer and of the
financial condition of the corporation, and shall perform such other duties as
the Board of Directors may prescribe.
SECTION 14. ASSISTANT TREASURERS. Each Assistant Treasurer shall have
such powers and perform such duties as the Board of Directors may from time to
time prescribe. Unless otherwise provided by the Board of Directors, in the
absence or disability of the Treasurer, any Assistant Treasurer may perform the
duties and exercise the powers of the Treasurer.
SECTION 15. CONTROLLER. The Controller shall share with the Treasurer
responsibility for the financial and accounting books and records of the
corporation, shall report to the Treasurer, and shall perform such other duties
as the Board of Directors or the Executive Committee or the Chief Executive
Officer may from time to time prescribe.
SECTION 16. BONDING. If required by the Board of Directors, all or
certain of the officers shall give the corporation a bond, in such form, in such
sum, and with such surety or sureties as shall be satisfactory to the Board, for
the faithful performance of the duties of their office and for the restoration
to the corporation, in case of their death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and
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other property of whatever kind in their possession or under their control
belonging to the corporation.
ARTICLE VII
CERTIFICATES OF SHARES
SECTION 1. FORM OF CERTIFICATES. Certificates, in such form as may be
determined by the Board of Directors, representing shares to which stockholders
are entitled shall be delivered to each stockholder. Such certificates shall be
consecutively numbered and shall be entered in the stock book of the corporation
as they are issued. Each certificate shall state on the face thereof the
holder's name, the number, class of shares, and the par value of such shares or
a statement that such shares are without par value. They shall be signed by the
President or a Vice President and the Secretary or an Assistant Secretary, and
may be sealed with the seal of the corporation or a facsimile thereof. If any
certificate is countersigned by a transfer agent, or an assistant transfer agent
or registered by a registrar, either of which is other than the corporation or
an employee of the corporation, the signatures of the corporation's officer may
be facsimiles. In case any officer or officers who have signed, or whose
facsimile signature or signatures have been used on such certificates, shall
cease to be such officer or officers of the corporation, whether because of
death, resignation or otherwise, before such certificate or certificates have
been delivered by the corporation or its agents, such certificate or
certificates may nevertheless be adopted by the corporation and be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures have been used thereon
had not ceased to be such officer or officers of the corporation.
SECTION 2. LOST CERTIFICATES. The Board of Directors may direct that a
new certificate be issued in place of any certificate theretofore issued by the
corporation alleged to have been lost, stolen or destroyed and the Board of
Directors may require the owner of such lost, stolen or destroyed certificate,
or his legal representative, to give the corporation a bond, in such form, in
such sum, and with such surety or sureties as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
SECTION 3. TRANSFER OF SHARES. Shares of stock shall be transferable
only on the books of the corporation by the holder thereof in person or by his
duly authorized attorney, lawfully constituted in writing. No transfer shall be
made which is inconsistent with law.
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SECTION 4. REGISTERED SHAREHOLDERS. The corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends upon the outstanding shares of the
corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting. Dividends may be declared and paid in cash, in property, or in shares
of the corporation, subject to the provisions of the Act and the Certificate of
Incorporation. The Board of Directors may fix in advance a record date for the
purpose of determining stockholders entitled to receive payment of any dividend,
such record date to be not more than sixty days prior to the payment date of
such dividend, or the Board of Directors may close the stock transfer books for
such purpose for a period of not more than sixty days prior to the payment date
of such dividend. In the absence of any action by the Board of Directors, the
date upon which the Board of Directors adopts the resolution declaring such
dividend shall be the record date.
SECTION 2. RESERVES. There may be created by resolution of the Board
of Directors out of the net profits of the corporation such reserve or reserves
as the Directors from time to time, in their discretion, think proper to provide
for contingencies, or to equalize dividends, or to repair or maintain any
property of the corporation, or for such other purpose as the Directors shall
think beneficial to the corporation, and the Directors may modify or abolish any
such reserve in the manner in which it was created.
SECTION 3. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
SECTION 4. SEAL. The corporation shall have a seal, and said seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. Any officer of the corporation shall have authority to
affix the seal to any document requiring it.
SECTION 5. ANNUAL STATEMENT. The Board of Directors shall present at
each annual meeting, and when called for by vote of the
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stockholders at any special meeting of the stockholders, a full and clear
statement of the business and condition of the corporation.
SECTION 6. CHECKS. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
ARTICLE IX
INDEMNITY
SECTION 1. INDEMNIFICATION. The corporation shall indemnify its
directors to the fullest extent permitted by the Act and may, if and to the
extent authorized by the Board of Directors, so indemnify its officers and any
other person whom it has the power to indemnify against any liability, expense
or other matter whatsoever.
SECTION 2. INDEMNIFICATION ADDITIONAL TO OTHER RIGHTS. The rights of
indemnification provided for in this Article IX shall be in addition to any
rights to which any such Director, officer or employee may be entitled under any
agreement, vote of stockholders, the Certificate of Incorporation, or as a
matter of law or otherwise.
ARTICLE X
AMENDMENTS
SECTION 1. BY STOCKHOLDERS. These Bylaws may be amended or repealed by
the vote of stockholders entitled to at least a majority of the votes which all
stockholders are entitled to cast thereon, at any regular or special meeting of
the stockholders, duly convened after notice to the stockholders of the purpose.
SECTION 2. BY THE BOARD OF DIRECTORS. These Bylaws may also be amended
or repealed by the Board of Directors by the vote of a majority of Directors,
except as such power may be limited by any one or more bylaws adopted by the
stockholders.
Adopted:
/s/ Mark V. Beasley
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Secretary
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