Neiman Marcus 2009 Annual Report Download - page 156

case of the foregoing clauses (i) and (ii), such changes referred to therein have a disproportionate effect on the Company and its
subsidiaries taken as a whole relative to other participants in the industries in which the Company and its subsidiaries operate.
SECTION 3.2 Certificate of Incorporation and By-laws. The Company has heretofore furnished or otherwise made available
to Parent a complete and correct copy of the restated certificate of incorporation (the "Certificate of Incorporation") and the by-laws
(the "By-Laws") of the Company and the organizational documents of each Material Subsidiary, in each case as currently in effect.
The Certificate of Incorporation, By-Laws and other organizational documents of the Company and each Material Subsidiary are in
full force and effect and no other organizational documents are applicable to or binding upon the Company. The Company is not in
violation of any provisions of its Certificate of Incorporation or By-Laws. None of the Material Subsidiaries is in violation of its
certificate of incorporation, bylaws or other organizational document in any material respect.
SECTION 3.3 Capitalization
(a) The authorized capital stock of the Company consists of (i) 100,000,000 Class A Shares, (ii) 100,000,000 Class B Shares,
(iii) 50,000,000 Class C Shares and (iv) 50,000,000 shares of preferred stock, par value $0.01 per share (the "Preferred Stock"), of
which (x) 100,000 of such shares are designated as Series A Junior Participating Preferred Stock and have been reserved for issuance
upon the exercise of the rights distributed to the holders of Class A Common Stock pursuant to the Company's Amended and Restated
Rights Agreement, dated as of August 8, 2002 (the "Rights Plan"), between the Company and Mellon Investor Services LLC, as
Rights Agent, (y) 100,000 of such shares are designated as Series B Junior Participating Preferred Stock and have been reserved for
issuance upon the exercise of the rights distributed to the holders of Class B Common Stock pursuant to the Rights Plan and (z) 50,000
of such shares are designated as Series C Junior Participating Preferred Stock (collectively, the "Junior Participating Preferred Stock")
and have been reserved for issuance upon the exercise of the rights (collectively with the rights issued to holders of Class A Common
Stock and Class B Common Stock pursuant to the Rights Plan, the "Company Rights") distributed to the holders of Class C Common
Stock pursuant to the Rights Plan. As of April 28, 2005 (the "Capitalization Date"), (i) 29,525,199 shares of Class A Common Stock
were issued and outstanding, all of which were validly issued, fully paid and nonassessable and were issued free of preemptive rights,
(ii) 19,422,379 shares of Class B Common Stock were issued and outstanding, all of which were validly issued, fully paid and
nonassessable and were issued free of preemptive rights, (iii) no shares of Class C Common Stock were outstanding and (iv) no shares
of Preferred Stock were outstanding. As of April 28, 2005, an aggregate of 5,019,656 Class A Shares were reserved for issuance upon
or otherwise deliverable in connection with the grant of equity-based awards or the exercise of outstanding Options issued pursuant to
the Company's 2005 Stock Incentive Plan, 1997 Incentive Plan and 1987 Stock Incentive Plan (the "Company Stock Plans") and the
Deferred Compensation Plans. Section 3.3(a) of the Company Disclosure Schedule sets forth, as of the date specified thereon, each
equity-based award and Option outstanding