Exhibit 3.1
BY-LAWS OF THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.
As Amended and Restated
October 6, 2005
BY LAWS
OF
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
ARTICLE I.
OFFICES.
SECTION 1. Principal Office. The principal office of The Great Atlantic &
Pacific Tea Company, Inc. (hereinafter called the Corporation) in the State of
Maryland shall be 1300 Mercantile Bank & Trust Building, 2 Hopkins Plaza in the
City of Baltimore. The name of the resident agent in charge thereof is United
States Corporation Company.
SECTION 2. Other Offices. The Corporation may also have an office or
offices in the Borough of Montvale, in the State of New Jersey, and at such
other place or places either within or without the State of Maryland as the
Board of Directors may from time to time determine, or the business of the
Corporation may require.
ARTICLE II.
MEETING OF STOCKHOLDERS.
SECTION 1. Annual Meetings. The annual meeting of the stockholders for the
election of directors and for the transaction of such other business as may
properly be brought before such meeting shall be held on such date between the
thirtieth day of June and the thirty-first day of July in each year as may be
fixed by the Board of Directors, at such time and place as may be designated by
the Board of Directors in the notice thereof.
SECTION 2. Special Meetings. A special meeting of the stockholders for any
purpose or purposes may be called at any time by the Chief Executive Officer,
the Chairman of the Board, or the President and shall be called by the Secretary
upon written request of three or more members of the Board of Directors or of
the holders of shares entitled to not less than twenty-five per cent of all the
votes entitled to be cast at any such meeting. Such request shall state the
purpose or purposes of such meeting and the matters proposed to be acted on
thereat. No special meeting need be called upon the request of the holders of
shares entitled to cast less than a majority of all votes entitled to be cast at
such meeting, to consider any matter which is substantially the same as a matter
voted upon at any special meeting of the stockholders held during the preceding
twelve months. Each such special meeting shall be held at such time and place as
may be designated in the notice thereof.
SECTION 3. Notice of Meetings. Notice of time and place of each meeting of
the stockholders shall be given to each stockholder entitled to vote at such
meeting at least fifteen and not more than ninety days before the day on which
the meeting is to be held by mailing such notice in a postage prepaid envelope
addressed to him at his post office address as it appears on the records of the
Corporation. The notice of a meeting of the stockholders shall also
state briefly the objects and purposes thereof as required by law. Any
stockholder may at any time, in writing or by telegraph or cable, waive any
notice required to be given him under Article 23 of the Annotated Code of
Maryland, the Certificate of Incorporation, or these By-Laws.
SECTION 4. Quorum. At each meeting of the stockholders, except as otherwise
expressly provided by statute or the Certificate of Incorporation, the holders
of record of a majority of the issued and outstanding shares of stock of the
Corporation entitled to vote at such meeting, present either in person or by
proxy, shall constitute a quorum for the transaction of business. If there be no
such quorum present, the holders of a majority of such shares so present or
represented may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of voting stock shall be
present. At such adjourned meeting at which the requisite amount of voting stock
shall be represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 5. Organization. At each meeting of the stockholders, the Chairman
of the Board shall act as Chairman and preside thereat. In his absence, the
following shall act in his stead in the order of precedence stated: The Chief
Executive Officer, the President, the Executive Vice Presidents (if any) in
order of seniority of service with the Corporation, the Vice Presidents in order
of seniority of service with the Corporation, the Treasurer, or the Assistant
Treasurer. The Secretary, or in his absence, the Assistant Secretary or in the
absence of both, such person as the Chairman may designate, shall act as
secretary of such meeting and keep the minutes thereof.
SECTION 6. Voting. Except as otherwise provided in the Certificate of
Incorporation, each stockholder shall at each meeting of the stockholders be
entitled to one vote in person or by proxy for each share of stock of the
Corporation entitled to be voted thereat held by him and registered in his name
on the books of the Corporation, on such date as may be fixed pursuant to
Section 4 of Article VI as the record date for the determination of stockholders
entitled to notice of and to vote at such meeting. At all meetings of the
stockholders all matters to be voted upon, except those the manner of deciding
which is otherwise expressly regulated by statute or the Certificate of
Incorporation, shall be decided by the vote of a majority in interest of the
stockholders present in person or by proxy and entitled to vote on such matters.
Except in the case of votes for the election of directors and for other matters
expressly so regulated by statute, the vote at any meeting of the stockholders
on any question need not be by ballot, unless demanded by a stockholder present
in person or by proxy and entitled to vote on such matters.
SECTION 7. List of Stockholders. It shall be the duty of the Secretary who
shall have charge of the stock ledger of the Corporation, either directly or
through a transfer agent appointed by the Board of Directors, to prepare and
make a complete list of the stockholders entitled to vote at any meeting. Such
list shall be kept at the place of election during the meeting.
SECTION 8. Inspectors of Election. Before, or at each meeting of the
stockholders, the Chairman of such meeting shall appoint two Inspectors of
Election to act thereat. Each Inspector of Election so appointed shall first
subscribe an oath or affirmation faithfully to execute the duties of an
Inspector of Election at such meeting with strict impartiality and according to
the best of his ability. Such Inspectors of Election shall take charge of the
ballots at such
-2-
meeting and after the balloting thereat on any question shall count the ballots
cast thereon and shall make a report in writing to the Secretary of such meeting
of the results thereof.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. General Powers. The property, business and affairs of the
Corporation shall be managed by the Board of Directors.
SECTION 2. Number, Qualification and Term of Office. The number of
directors shall be determined by the vote of a majority of the entire Board of
Directors, but such number shall not be decreased to less than three. Any
decrease in the number of directors shall not affect the tenure in office of any
director. Each director shall hold office until the annual meeting of the
stockholders next following his election and until his successor shall have been
elected and qualified or until his death, resignation or removal.
SECTION 3. Resignation and Removal of Directors. Any director may resign at
any time by giving notice to the Chief Executive Officer, the Chairman of the
Board, the President or the Secretary, in writing. Any such resignation shall
take effect at the time specified therein, or, if no time is so specified, upon
its receipt. The acceptance of such resignation shall not be necessary to make
it effective. At any meeting of stockholders, duly called and at which a quorum
is present, the stockholders may, by the affirmative vote of the holders of a
majority of the votes entitled to be cast thereon, remove any director or
directors from office and may elect a successor or successors to fill any
resulting vacancies for the unexpired terms of removed directors.
SECTION 4. Vacancies. Any vacancy on the Board of Directors may be filled
by vote of the majority of the remaining directors, except that a vacancy
occurring by reason of an increase in the number of directors may be filled by
vote of a majority of the entire Board, and each director so chosen shall hold
office until the next annual meeting of stockholders and until his successor
shall have been elected and qualified or until his death, resignation or
removal.
SECTION 5. Meetings. As soon as practical after each annual meeting of
stockholders for the election of directors, the Board of Directors shall meet
for the purpose of organizing, for the election of officers, and for the
transaction of such other business as may come before the meeting. In addition
to such meeting of the Board of Directors, regular meetings of the Board of
Directors for the purpose of transacting such business as may properly come
before the meeting shall be held at such times as shall be designated by the
Board of Directors. All meetings of the Board of Directors shall be held at such
places as the Board may designate.
SECTION 6. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chief Executive Officer, the
Chairman of the Board, or the President, or by the Secretary on the written
request of three directors. Notice of such meeting shall be given to each
director at least one day before the day on which the meeting is to be held,
which notice shall designate the time and place of such meeting. Any director
may at
-3-
any time, upon notice to the Secretary, waive any notice required to be given
him under Article 23 of the Annotated Code of Maryland, the Certificate of
Incorporation, or these By-Laws, and attendance by a director at any meeting
constitutes a waiver of the notice required for such meeting.
SECTION 7. Organization. At each meeting of the Board of Directors, the
Chairman and the Secretary shall be those persons who would have acted in such
offices, respectively, at a meeting of the stockholders, as provided for in
Section 5 of Article II of these By-Laws.
SECTION 8. Quorum and Manner of Acting. One-half of the whole Board of
Directors shall constitute a quorum for the transaction of business at any
meeting, and the act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors.
SECTION 9. Compensation. All directors may be allowed a fixed sum for
attendance at each meeting of the Board of Directors as may be fixed by
resolution of the Board and reimbursement for expenses incurred in connection
with the performance of their duties. Directors who are not employees of the
Corporation or of any of its subsidiaries may also be paid such annual
compensation as may be fixed by resolution of the Board. Members of the
Executive Committee or of other committees designated by the Board of Directors
may be allowed a fixed sum and expenses incurred for attending meetings of such
committees and, if they are not employees of the Corporation or of any of its
subsidiaries, may also be paid such annual compensation as may be fixed by
resolution of the Board of Directors. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefore.
SECTION 10. Committees of Board of Directors.
(A) The Executive Committee.
There shall be an Executive Committee, composed of not less than five nor
more than seven directors. During the intervals between the meetings of the
Board of Directors, the Executive Committee shall have all the powers of the
Board and may exercise such powers when the exercise thereof prior to the next
regular meeting of the Board of Directors is deemed by the Executive Committee
to be necessary in the management and direction of the business and affairs of
the Corporation.
The Executive Committee shall be elected by a majority of the Board of
Directors at the first meeting of the Board following an annual meeting of
stockholders. A majority of the members of the Executive Committee shall be
composed of directors who are not employees of the Corporation or any of its
subsidiaries and alternates for such members, who shall themselves be directors
who are not employees of the Corporation or any of its subsidiaries, shall also
be elected. In the absence from a meeting of the Executive Committee of any
non-employee member or members thereof, available alternates shall serve in the
order their respective names shall appear in the resolution electing them, and
shall act and vote in the stead of any such absent non-employee member or
members.
-4-
The Executive Committee shall keep minutes of its meetings and a copy of
such minutes (or a summary thereof) shall be forwarded promptly to each
director, and all action by the Executive Committee shall be reported to the
Board of Directors at its next meeting.
(B) Other Committees.
The Board of Directors may by resolution designate other committees
composed of three or more of its members, which resolution shall set forth the
powers of such committees. All action by such other committees shall be reported
to the Board of Directors at its next meeting.
(C) General.
A majority of the members of each committee shall constitute a quorum, but
in the absence of a quorum the remaining members present may designate one or
more other directors to act at such meetings in the place of absent members,
subject to the provisions of Subsection A of this Section 10.
Each committee may fix its rules of procedure, determine its manner of
acting and fix the time and place of its meetings and specify what notice
thereof, if any, shall be given, unless the Board of Directors shall otherwise
by a resolution provide.
The Board of Directors shall have the power to change the membership of any
committee (including the Executive Committee) at any time, to fill vacancies
therein, to discharge any such committee, and to remove any member thereof,
either with or without cause, at any time.
SECTION 11. Any action required or permitted to be taken at any meeting of
the Board of Directors or any committee thereof may be taken without a meeting,
if written consent to such action is signed by all members of the Board or of
such committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the Board or such committee.
The Board of Directors or any committee designated thereby may participate
in a meeting of the Board or such committee, as the case may be, by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the Corporation shall be a Chief Executive
Officer, a Chairman of the Board, a President, a Chief Financial Officer, one or
more Vice Presidents, a Secretary, a Treasurer and a Controller. The Board may
also elect one or more Vice Chairmen, one or more Executive Vice Presidents, one
or more Senior Vice Presidents, one or more Assistant Secretaries and Assistant
Treasurers, and such other officers as the Board may
-5-
deem appropriate. Without limiting the generality of the foregoing, if the Board
of Directors has designated the Chairman as an Executive Chairman pursuant to
Section 6 of this Article IV, then such person shall have, in addition to the
duties set forth in these By-Laws, such duties, powers and authority as
determined by the Board of Directors. The same person may hold more than one
office, except that the same person shall not hold simultaneously the offices of
President and Vice President or Chief Executive Officer and Chief Financial
Officer.
SECTION 2. Election and Term of Office. The officers shall be elected
annually by the Board of Directors. Each officer shall hold office until the
next annual election of officers and until his successor shall have been elected
and qualified.
SECTION 3. Resignations and Removal. Any officer may at any time resign in
the same manner as provided for a director in Section 3 of Article III. Any
officer may be removed, either with or without cause, at any time, by the vote
of a majority of the whole Board of Directors.
SECTION 4. Vacancies. A vacancy in any office because of death,
resignation, removal or any other cause may be filled for the unexpired portion
of the term at any meeting of the Board of Directors.
SECTION 5. The Chief Executive Officer. The Chief Executive Officer shall
have general and active supervision over the business and affairs of the
Corporation, its officers (other than the Chairman of the Board, who shall be
subject to the supervision of the Board of Directors), employees and agents,
subject to the control of the Board of Directors, and, if a member of the Board
of Directors, shall be an ex-officio member of all committees of the Board of
Directors, with the exception of any committee having compensation or audit
oversight responsibilities.
SECTION 6. The Chairman of the Board. The Chairman of the Board shall act
as Chairman and preside at all meetings of the stockholders and the Board of
Directors, and in general shall perform such duties as are incident to the
office of Chairman of the Board. The Board of Directors may designate the
Chairman as an Executive Chairman of the Board and may assign to such Executive
Chairman such duties, powers and authority as determined by the Board of
Directors.
SECTION 7. The President. The President in general shall perform such
duties as are incident to the office of President and shall have such additional
duties as may from time to time be assigned to him by the Board of Directors,
the Chief Executive Officer, or the Chairman of the Board.
SECTION 8. Chief Financial Officer. The Chief Financial Officer shall have
charge of the financial affairs of the Corporation and shall have such duties as
may from time to time be assigned to him by the Board of Directors, the Chief
Executive Officer, the Chairman of the Board, or the President.
-6-
SECTION 9. Executive Vice Presidents. The Executive Vice Presidents shall
have such powers and perform such duties as may from time to time be assigned to
them by the Board of Directors, the Chief Executive Officer, the Chairman of the
Board, or the President.
SECTION 10. Senior Vice Presidents. The Senior Vice Presidents shall have
such powers and perform such duties as may from time to time be assigned to them
by the Board of Directors, the Chief Executive Officer, the Chairman of the
Board, or the President.
SECTION 11. The Vice Presidents. The Vice Presidents shall have such powers
and perform such duties as may from time to time be assigned to them by the
Board of Directors, the Chief Executive Officer, the Chairman of the Board, or
the President.
SECTION 12. The Secretary. The Secretary shall record or cause to be
recorded all the proceedings of the meetings of the stockholders of the
Corporation and the Board of Directors in a book or books to be kept for that
purpose; shall see that all notices are duly given in accordance with the
provisions of these By-Laws or as required by statute or the Certificate of
Incorporation; shall have custody of the books and other records (other than the
accounting records) and of the seal of the Corporation and shall see that the
books, records and other documents required by law (including the stock ledger
and the records of the issue, transfer and registration of certificates for
shares of stock) are properly kept and filed; shall see that the seal of the
Corporation is affixed to all documents the execution of which on behalf of the
Corporation under its seal is duly authorized and shall attest such seal; and in
general shall perform all duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him by the Board of
Directors, the Chief Executive Officer, the Chairman of the Board, or the
President.
SECTION 13. Assistant Secretaries. At the request of the Secretary, or in
the case of his absence or inability to act, the Assistant Secretary shall
perform the duties of the Secretary and, when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the Secretary.
SECTION 14. The Treasurer. The Treasurer shall have such duties as may from
time to time be assigned to him by the Board of Directors, the Chief Executive
Officer, the Chairman of the Board, the President, or the Chief Financial
Officer. He shall have the authority to enter into and execute on the
Corporation's behalf all banking arrangements.
SECTION 15. Assistant Treasurers. At the request of the Treasurer, or in
case of his absence or inability to act, the Assistant Treasurer shall perform
the duties of the Treasurer and, when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the Treasurer.
SECTION 16. The Controller. The Controller shall have such powers and
perform such duties as may from time to time be assigned to him by the Board of
Directors, the Chief Executive Officer, the Chairman of the Board, the
President, or the Treasurer.
-7-
SECTION 17. Salaries. The salaries of the officers shall be fixed from time
to time by the Board of Directors or by any committee or officer to which or to
whom the Board of Directors shall delegate authority so to do.
ARTICLE V.
NOTES, CHECKS, PROXIES, ETC.
SECTION 1. Loans. Loans may be contracted on behalf of the Corporation by
those officers duly authorized by a resolution of the Board of Directors. Such
authorization will pertain not only to the borrowing of funds but also to the
execution and delivery by such officers of bonds, debentures, promissory notes,
or other evidences of indebtedness of the Corporation relating thereto.
SECTION 2. Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money issued in the name of the Corporation shall be signed by such
officer or officers, or by such agent or agents as may be authorized so to do
from time to time by the Board of Directors, the Chief Executive Officer, the
Chairman of the Board, the President, the Chief Financial Officer, or the
Treasurer.
SECTION 3. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation or
otherwise as the Board of Directors, the Chief Executive Officer, the Chairman
of the Board, the President, the Chief Financial Officer, or the Treasurer shall
direct in such banks, trust companies or other depositories as the Board of
Directors or such officers may select or as may be selected by any officer or
officers, or agent or agents, to whom power in that respect shall have been
delegated by the Board of Directors.
SECTION 4. Proxies in Respect of Stock or Other Securities of Other
Corporations. Unless otherwise provided by resolution adopted by the Board of
Directors, the Chief Executive Officer or, in his absence, the President may
from time to time appoint on behalf of the Corporation by a proxy in writing an
attorney or attorneys, or an agent or agents, to exercise in the name and on
behalf of the Corporation the powers and rights which the Corporation may have
as the holder of stock or other securities in any other corporation to vote or
consent in respect of such stock or other securities, and the Chief Executive
Officer, or in his absence, the President may instruct the person or persons so
appointed as to the manner of exercising such powers and rights.
ARTICLE VI.
CAPITAL STOCK.
SECTION 1. Certificates of Stock. Each stockholder shall be entitled to a
certificate or certificates which shall represent and certify the number of
shares of stock owned by him in the Corporation. Each certificate shall be
signed by the Chairman of the Board or President and countersigned by the Chief
Financial Officer or the Treasurer and shall be sealed with the corporate seal
which may be a facsimile; provided, however, that where such certificate
-8-
is signed by a transfer agent acting on behalf of the Corporation and a
registrar, the signature of any such officer may be by facsimile. In case any
officer who has signed any certificate, or whose facsimile signature has been
used thereon, ceases to be an officer of the Corporation before the certificate
is issued, the certificate may nevertheless be issued by the Corporation with
the same effect as if the officer had not ceased to be such officer as of the
date of its issue.
SECTION 2. Transfers of Shares. Each transfer of shares of stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the Corporation, or with a
transfer agent appointed as provided in Section 3 of this Article, upon the
payment of all taxes thereon and the surrender of the certificate or
certificates for such shares properly endorsed. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
owner in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof.
SECTION 3. Regulations; Transfer Agents, etc. The Board of Directors may
make such rules and regulations as it may deem expedient, not inconsistent with
these By-Laws, concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation. It may appoint one or more transfer
agents and one or more registrars, and may require all certificates for shares
of stock of the Corporation to bear the signature or signatures of any of them.
SECTION 4. Record Date. The Board of Directors may fix in advance a date,
not exceeding ninety days preceding the date of any meeting of stockholders, or
the date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital stock
shall go into effect, or a date for obtaining any consent of stockholders for
any purpose, as a record date for the determination of the stockholders entitled
to notice of, and to vote at, any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend, notwithstanding any transfer
of any stock on the books of the Corporation after any such record date fixed as
aforesaid.
SECTION 5. Lost, Destroyed and Mutilated Certificates. The holder of any
shares of stock of the Corporation shall immediately notify the Corporation of
any loss, destruction or mutilation of the certificate therefor, and the Board
of Directors may, by resolution, or regulation adopted pursuant to Section 3 of
this Article, after the expiration of such period of time as it may determine to
be advisable, cause to be issued to him a new certificate or certificates for
shares of stock, upon the surrender of the mutilated certificate or, in case of
loss or destruction of the certificate, upon satisfactory proof of such loss or
destruction, and the Board of Directors may, by such resolution or regulation,
require the owner of the lost, destroyed or mutilated certificate, or his legal
representatives, to give the Corporation a bond in such sum and with such surety
or sureties as it may direct, to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss, destruction or
mutilation of any such certificate or the issuance of such new certificate.
SECTION 6. Examination of Books by Stockholders. The Board of Directors
shall, subject to any applicable statutes, have the power to determine whether
and to what extent
-9-
and at what times and places and under what conditions and regulations the
accounts and books and documents of the Corporation or any of them, shall be
open to the inspection of the stockholders; and no stockholder shall have any
right to inspect any account or book or documents of the Corporation, except as
conferred by any such statute unless and until authorized so to do by resolution
of the Board of Directors.
ARTICLE VII.
SEAL.
The Board of Directors shall provide a corporate seal which shall be in the
form of a circle and shall bear the full name of the Corporation and words and
figures indicating the year and state in which the Corporation was incorporated
and such other words or figures as the Board of Directors may approve and adopt.
ARTICLE VIII.
FISCAL YEAR.
The fiscal year of the Corporation shall end on the last Saturday in
February of each year.
ARTICLE IX.
AMENDMENTS.
Subject to Article X, Section 5 of the By-Laws, these By-Laws may be
altered, amended or repealed and new By-Laws adopted by the stockholders or by
the Board of Directors by a majority vote at any meeting called for that
purpose, but no amendment adopted by the stockholders shall thereafter be
altered or repealed by the Board of Directors.
ARTICLE X.
INDEMNIFICATION.
SECTION 1. Indemnification of Directors and Officers. In furtherance of
Article VIII of the Corporation's Certificate of Incorporation, the Corporation
shall indemnify its directors and officers, whether serving the Corporation or,
at its request, any other entity, in any capacity, to the maximum extent
required or permitted by Maryland law now or hereafter in force, including the
advance of expenses under the procedures and to the maximum extent permitted by
law.
SECTION 2. Indemnification of Other Employees and Agents. The Corporation
may indemnify other employees and agents to such extent as shall be authorized
by the Board of Directors and be permitted by law.
-10-
SECTION 3. Rights Not Exclusive. The foregoing rights of indemnification
shall not be exclusive of any other rights to which those seeking
indemnification may be entitled and shall continue as to a person who has ceased
to be an officer, director, agent or employee, and shall inure to the benefit of
the heirs, executors and administrators of such person.
SECTION 4. General. The Board of Directors may take such action as is
necessary to carry out these indemnification provisions and is expressly
empowered to adopt, approve and amend from time to time such resolutions or
contracts implementing such provisions or such further indemnification
arrangements as may be permitted by law.
SECTION 5. Effect of Amendment or Repeal. No amendment or repeal of this
Article X of the Corporation's By-Laws shall apply to or have any effect on any
right to indemnification provided hereunder with respect to acts or omissions
occurring prior to such amendment or repeal.
-11-