Attached files
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8-K - BLYTH INC | annualmeeting8k061010.htm |
EX-3.1 - BLYTH INC | exhibit31.htm |
Exhibit
3.2
BLYTH,
INC.
Incorporated
under the laws
of
the State of Delaware
AMENDED
AND RESTATED BY-LAWS
As
adopted on June 10, 2010
AMENDED
AND RESTATED BY-LAWS
TABLE
OF CONTENTS
ARTICLE
I Offices
|
1
|
|
SECTION
1.
|
Registered
Office
|
1
|
SECTION
2.
|
Other
Offices
|
1
|
ARTICLE
II Meeting of Stockholders; Stockholders’ Consent in Lieu of
Meeting
|
1
|
|
SECTION
1.
|
Annual
Meetings
|
1
|
SECTION
2.
|
Special
Meetings
|
1
|
SECTION
3.
|
Notice
of Meetings
|
1
|
SECTION
4.
|
Quorum
|
2
|
SECTION
5.
|
Organization.
|
3
|
SECTION
6.
|
Order
of Business
|
3
|
SECTION
7.
|
Conduct
of Business at Meetings
|
3
|
SECTION
8.
|
Voting
|
3
|
SECTION
9.
|
Inspection
|
4
|
SECTION
10.
|
List
of Stockholders
|
4
|
SECTION
11.
|
Stockholders’
Consent in Lieu of Meeting
|
4
|
ARTICLE
III Board of Directors
|
5
|
|
SECTION
1.
|
General
Powers
|
5
|
SECTION
2.
|
Qualification
of Directors
|
5
|
SECTION
3.
|
Number
of Directors
|
5
|
SECTION
4.
|
Election
and Term of Office
|
5
|
SECTION
5.
|
Vacancies
|
5
|
SECTION
6.
|
Resignation
of Directors
|
5
|
SECTION
7.
|
Removal
of Directors
|
5
|
SECTION
8.
|
Meetings.
|
6
|
SECTION
9.
|
Directors’
Consent in Lieu of Meeting
|
7
|
SECTION
10.
|
Action
by Means of Conference Telephone or Similar Communications
Equipment
|
7
|
SECTION
11.
|
Committees
|
7
|
SECTION
12.
|
Compensation
|
7
|
ARTICLE
IV Officers
|
7
|
|
SECTION
1.
|
Executive
Officers
|
7
|
SECTION
2.
|
Authority
and Duties
|
7
|
SECTION
3.
|
Other
Officers
|
8
|
SECTION
4.
|
Term
of Office, Resignation and Removal.
|
8
|
SECTION
5.
|
Vacancies
|
8
|
SECTION
6.
|
The
Chairman
|
8
|
SECTION
7.
|
Chief
Executive Officer
|
8
|
SECTION
8.
|
The
President
|
8
|
SECTION
9.
|
The
Secretary
|
8
|
SECTION
10.
|
The
Treasurer
|
9
|
ARTICLE
V Contracts, Checks, Drafts, Bank Accounts, Etc.
|
9
|
|
SECTION
1.
|
Execution
of Documents
|
9
|
SECTION
2.
|
Deposits
|
9
|
SECTION 3.
|
Proxies
with Respect to Stock or Other Securities of Other
Corporations
|
9
|
ARTICLE
VI Shares and Their Transfer; Fixing Record Date
|
9
|
|
SECTION
1.
|
Certificates
for Shares
|
9
|
SECTION
2.
|
Record
|
10
|
SECTION
3.
|
Transfer
and Registration of Stock.
|
10
|
SECTION
4.
|
Addresses
of Stockholders
|
10
|
SECTION
5.
|
Lost,
Stolen or Destroyed Certificates
|
10
|
SECTION
6.
|
Transfer
Agents and Registrars
|
10
|
SECTION
7.
|
Regulations
|
10
|
SECTION
8.
|
Fixing
Date for Determination of Stockholders of Record.
|
11
|
ARTICLE
VII Seal
|
11
|
|
ARTICLE
VIII Fiscal Year
|
11
|
|
ARTICLE
IX Indemnification and Insurance
|
12
|
|
SECTION
1.
|
Indemnification.
|
12
|
SECTION
2.
|
Insurance
|
13
|
ARTICLE
X Amendment
|
13
|
AMENDED
AND RESTATED BY-LAWS
OF
BLYTH,
INC.
ARTICLE
I
Offices
Section
1. Registered
Office. The
registered offices of BLYTH INC. (the “Corporation”), in the State of Delaware
shall be at Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801, and the registered agent in charge thereof shall be The
Corporation Trust Company.
Section
2. Other
Offices. The
Corporation may also have an office or offices at any other place or places
within or outside 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
Meeting of Stockholders;
Stockholders’
Consent in Lieu of
Meeting
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 come before the meeting in
accordance with the Amended and Restated Certificate of Incorporation of the
Corporation (as the same may be amended and/or restated from time to time, the
“Certificate of Incorporation of the Corporation”) and these Amended and
Restated By-Laws (the “Restated By-Laws”), shall be held at such place, date and
hour as shall be fixed by the Board of Directors (the “Board”) and designated in
the notice or waiver of notice thereof, except that no annual meeting need be
held if all actions, including the election of directors, required by the
General Corporation Law of the State of Delaware (the “Delaware Statute”) to be
taken at a stockholders’ annual meeting are taken by written consent in lieu of
meeting pursuant to Section 11 of this Article II. The annual meeting
of stockholders of the Corporation shall not be called or held otherwise than as
provided in the Certificate of Incorporation of the Corporation and in these
Restated By-Laws.
Section
2. Special
Meetings. Except
as otherwise provided in the Certificate of Incorporation of the Corporation,
special meetings of the stockholders for any purpose or purposes may be called
only by the Chairman, the Chief Executive Officer, the President or the record
holders of at least 35% of the voting power of the issued and outstanding
capital stock of the Corporation, to be held at such place, date and hour as
shall be designated in the notice or waiver of notice
thereof. Special meetings of stockholders of the Corporation shall
not be called or held otherwise than as provided in the Certificate of
Incorporation of the Corporation and in these Restated By-Laws.
Section
3. Notice of
Meetings. Except
as otherwise required by statute, the Certificate of Incorporation of the
Corporation or these Restated By-Laws, notice of each annual or special meeting
of the stockholders shall be given to each stockholder of record entitled to
vote at such meeting not less than 10 nor more than 60 days before the day on
which the meeting is to be held, by delivering written notice thereof to him,
her or it personally, or by mailing a copy of such notice, postage prepaid,
directly to him, her or it at his, hers or its address as it appears in the
records of the Corporation, or by transmitting such notice thereof to him, her
or it at such address by telegraph, cable, telecopy, electronic mail or other
electronic transmission. If mailed, the notice shall be given when
deposited in the United States mail, postage prepaid, if telegraphed, the notice
shall be deemed to have been
1
given
when the contents of the telegram are transmitted to the telegraph service with
instructions that the telegram immediately be dispatched, if telecopied, the
notice shall be deemed to have been given upon transmission, if sent by
electronic mail, the notice shall be deemed to have been given when directed to
an electronic mail address at which the stockholder has consented to receive
notice; and in each case shall be directed to each stockholder at his, her or
its address as it appears on the books of the Corporation. Every such
notice shall state the place, the date and hour of the meeting, and, in case of
a special meeting, the purpose or purposes for which the meeting is
called. Notice of any meeting of stockholders shall not be required
to be given to any stockholder who shall attend such meeting in person or by
proxy, except for express purpose of objecting at the beginning thereof to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall, in person or by attorney thereunto authorized, waive
such notice in writing, either before or after such meeting. Except
as otherwise provided in these Restated By-Laws, neither the business to be
transacted at, nor the purpose of, any meeting of the stockholders need be
specified in any such notice or waiver of notice. Notice of any
adjourned meeting of stockholders shall not be required to be given, except when
expressly required by law.
Section
4. Quorum.
(a) At each
meeting of the stockholders, except where otherwise provided by statute, the
Certificate of Incorporation of the Corporation or these Restated By-Laws, the
holders of a majority of the voting power of the outstanding stock of the
Corporation entitled to vote at such meeting, present in person or represented
by proxy, shall constitute a quorum for the transaction of business brought
before the meeting in accordance with the Certificate of Incorporation of the
Corporation and these Restated By-Laws and, a quorum being present, the
affirmative vote of the holders of a majority in voting power present in person
or represented by proxy and entitled to vote shall be required to effect action
by stockholders; provided, however, except as
otherwise provided in Section 5 of ARTICLE III (relating to vacancies), each
director shall be elected by the vote of the majority of the votes cast with
respect to that director’s election at any meeting for the election of directors
at which a quorum is present, provided that if the number of nominees exceeds
the number of directors to be elected at such meeting (a “Contested Election”),
the directors shall be elected by the vote of a plurality of the votes
cast. For purposes of this Section 4, a majority of votes cast shall
mean that the number of votes cast “for” a director’s election exceeds the
number of votes cast “against” that director’s election (with “abstentions” not
counted as a vote cast either “for” or “against” that director’s
election).
(b) If a
nominee for director who is an incumbent director does not receive the vote
required by Article II, Section 4(a) of these bylaws at any meeting at which he
or she has been nominated for election and no successor has been elected at such
meeting, the director shall promptly tender his or her resignation to the
Board. The Nominating and Corporate Governance Committee (or such
other committee designated by the Board pursuant to these Restated By-laws)
shall make a recommendation to the Board as to whether to accept or reject the
tendered resignation, or whether other action should be taken. The
Nominating and Corporate Governance Committee in making its recommendation, and
the Board in making its decision, may each consider any factors or other
information that they consider appropriate and relevant. The director
who tenders his or her resignation shall not participate in the recommendation
of the Nominating and Corporate Governance Committee or the decision of the
Board with respect to his or her resignation. If such incumbent
director's resignation is not accepted by the Board of Directors, such director
shall continue to serve until the next annual meeting and until his or her
successor is duly elected, or his or her earlier resignation or
removal. If a director's resignation is accepted by the Board
pursuant to this Section 4(b), or if a nominee for director is not elected and
the nominee is not an incumbent director, then the Board, in its sole
discretion, may fill any resulting vacancy pursuant to the provisions of Section
5 of Article III of these Restated By-Laws or may decrease the size of the Board
of Directors pursuant to the provisions of Section 3 of Article III of these
Restated By-laws.
(c) The
stockholders present at any duly organized meeting of stockholders may continue
to do business until adjournment, notwithstanding the withdrawal of such number
of stockholders as would leave less than a quorum remaining. In the
absence of a quorum, a majority in interest of the stockholders present in
person or presented by proxy and entitled to vote, or, in the absence of all the
stockholders entitled to vote, any officer entitled to preside at, or act as
secretary of, such meeting, shall have the power to adjourn the meeting from
time to time, until stockholders holding the requisite amount of stock to
constitute a quorum shall be present or represented. Any meeting of
stockholders of the Corporation may be adjourned from time to time, without
notice other than by announcement at the meeting by the chairman of the meeting
at which such adjournment is taken, and
2
at any
such adjourned meeting at which a quorum shall be present any action may be
taken that could have been taken at the meeting originally called; provided, however, that 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 adjourned
meeting.
Section
5. Organization.
(a) Unless
otherwise determined by the Board, at each meeting of the stockholders, one of
the following shall act as chairman of the meeting and preside thereat, in the
following order of precedence:
(i) the
Chairman;
(ii) the Chief
Executive Officer;
(iii) the
President; or
(iv) any
director, officer or stockholder of the Corporation designated by the Chairman,
or if such officer has not done so, then by the Chief Executive Officer, or if
such officer has not done so, then by the President, or if such officer has not
done so, by a resolution adopted by the Board.
(b) The
Secretary or, if he shall be presiding over such meeting in accordance with the
provisions of this Section 5 or if he shall be absent from such meeting, the
person (who shall be an Assistant Secretary, if an Assistant Secretary has been
appointed and is present) whom the chairman of such meeting shall appoint, shall
act as secretary of such meeting and keep the minutes thereof.
Section
6. Order of
Business. The
chairman of the meeting shall have sole authority to prescribe the agenda and
rules of order for the conduct of any meeting of stockholders of the Corporation
and to determine all questions arising thereat relating to the order of business
and the conduct of the meeting, except as otherwise required by applicable
law.
Section
7. Conduct of Business at
Meetings. Except
as otherwise provided by applicable law, at any annual or special meeting of
stockholders of the Corporation, only such business shall be conducted as shall
have been properly brought before the meeting. Except as otherwise
provided in the Certificate of Incorporation of the Corporation, in order to be
properly brought before the meeting, such business must have either
been: (A) specified in the written notice of the meeting (or any
supplement thereto) given to stockholders of record on the record date for such
meeting by or at the direction of the Board; (B) brought before the meeting at
the direction of the Chairman, the Chief Executive Officer, the President or the
Board; or (C) specified in a written notice given by or on behalf of a
stockholder of record on the record data for such meeting entitled to vote
thereat or a duly authorized proxy for such stockholder, in accordance with all
of the requirements provided in Section 8 of Article V of the Certificate of
Incorporation of the Corporation.
Section
8. Voting. Subject
to the provisions of any applicable law and except as otherwise provided in the
Certificate of Incorporation of the Corporation or in the resolution or
resolutions adopted by the Corporation or in the resolution or resolutions
adopted by a majority of the Board then in office providing for the issue of any
series of Preferred Stock pursuant to the Certificate of Incorporation of the
Corporation, all voting rights shall be vested solely in the Corporation’s
Common Stock, par value $.02 per share (the “Common Stock”). The
holders of shares of Common Stock shall be entitled to vote upon the election of
directors and upon any other matter submitted to the stockholders for a
vote. Each share of Common Stock issued and outstanding shall be
entitled to one noncumulative vote in person or by proxy for each share of
Common Stock of the Corporation held by him and registered in his name on the
books of the Corporation on the date fixed pursuant to Section 8 of Article VI
as the record date for the determination of stockholders entitled to vote at
such meeting. A fraction of a share of Common Stock shall not be
entitled to any voting rights whatsoever. Persons holding stock in a
fiduciary capacity shall be entitled to vote the shares so held. A
person whose stock is pledged shall be entitled to vote, unless, in the transfer
by the pledgor on the books of the Corporation, he has expressly empowered the
pledge to vote thereon, in which case only the pledgee or his proxy may
represent such stock and vote thereon. If shares or other
securities
3
having
voting power stand in the record of two or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants by the
entirety or otherwise, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary shall be given
written notice to the contrary and furnished a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided, their
acts with respect to voting shall have the following effect:
(a) if only
one votes, his act binds all;
(b) if more
than one votes, the act of the majority so voting binds all; and
(c) if more
than one votes, but the vote is evenly split on any particular matter, such
shares shall be voted in the manner provided by law.
If the
instrument so filed shows that any such tenancy is held in unequal interests, a
majority or even-split for the purposes of this Section 8 shall be a majority or
even-split in interest. The Corporation shall not vote directly or
indirectly any share of its own capital stock. Any vote of stock may
be given by the stockholder entitled thereto in person or by his proxy appointed
by an instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized, delivered to the secretary of the meeting; provided, however, that no
proxy shall be voted after three years from its date, unless said proxy provides
for a longer period. Unless demanded by a stockholder present in
person or by proxy at any meeting and entitled to vote thereon, the vote on any
question need not be by ballot. Upon a demand by any such stockholder
for a vote by ballot upon any question, such vote by ballot shall be
taken. On a vote by ballot, each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and shall state the
number of shares voted.
Section
9. Inspection. The
chairman of the meeting may at any time appoint one or more inspectors to serve
at any meeting of the stockholders. Any inspector may be removed, and
a new inspector or inspectors appointed, by the Board at any
time. Such inspector or inspectors shall open and close the polls,
receive and take in charge proxies, decide upon the qualifications of voters,
accept, reject and count votes, declare the results of such vote, and subscribe
and deliver to the secretary of the meeting a certificate stating the number of
shares of stock issued and outstanding and entitled to vote thereon and the
number of shares voted for and against the question,
respectively. Inspectors need not be stockholders of the Corporation,
and any director or officer of the Corporation may be an inspector on any
question other than a vote for or against his election to any position with the
Corporation or on any other mater in which he may be directly
interested. Before acting as herein provided, each inspector shall
subscribe an oath faithfully to execute the duties of an inspector with strict
impartiality and according to the best of his ability.
Section
10. List of
Stockholders. It
shall be the duty of the Secretary or other officer of the Corporation who shall
have charge of its stock ledger to prepare and make, at least 10 days before
every meeting of the stockholders, a complete list of the stockholders entitled
to vote thereat, 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 any such meeting, during ordinary
business hours, for a period of at least 10 days prior to such meeting, either
at a place within the city where such 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. Such 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
11. Stockholders’ Consent in
Lieu of Meeting. Any
action required by the Delaware Statute to be taken at any annual or special
meeting of the 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 and without a vote, by a consent in writing, as
permitted by the Delaware Statute.
4
ARTICLE
III
Board of
Directors
Section
1. General
Powers. The
business, property and affairs of the Corporation shall be managed by or under
the direction of the Board, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation of the Corporation directed or required to be
exercised or done by the stockholders.
Section
2. Qualification of
Directors. Each
Director shall be at least 18 years of age. Directors need not be
stockholders of the Corporation.
Section
3. Number of
Directors. The
Board shall consist of not less than three individuals, the exact number to be
fixed from time to time by the Board pursuant to a resolution adopted by a
majority of directors then in office.
Section
4. Election and Term of
Office. The
directors, other than those who may be elected by the holders of any Preferred
Stock, shall, commencing with the annual meeting of stockholders scheduled to be
held in calendar year 2011 (the “2011 Annual Meeting”), be elected at each
annual meeting of stockholders for a term expiring at the next annual meeting of
stockholders following their election and shall remain in office until their
successors shall have been elected and qualified or until their earlier death,
resignation, retirement, disqualification or removal. The term of office of each
director serving on the Board of Directors immediately prior to the election of
directors at the 2011 Annual Meeting (other than any directors elected by
holders of Preferred Stock) shall expire at the 2011 Annual Meeting,
notwithstanding that any such director may have been elected for a term that
extended beyond the date of the 2011 Annual Meeting, but such director may
remain in office beyond the expiration of such term expiring at the 2011 Annual
Meeting until a successor is elected and qualified or until such director’s
earlier death, resignation, retirement, disqualification or
removal. Any director elected to fill a vacancy resulting from an
increase in the number of directors or from the death, resignation, retirement,
disqualification or removal of a director or other cause shall hold office for a
term expiring at the next annual meeting of stockholders following his or her
appointment to the Board of Directors or until such director’s earlier death,
resignation, retirement, disqualification or removal.
Section
5. Vacancies. Subject
to the rights of holders of shares of any series of Preferred Stock, any vacancy
in the Board caused by death, resignation, removal, retirement, disqualification
or any other cause (including an increase in the number of directors) may be
filled solely by resolution adopted by a majority of the Board then in office,
whether or not such majority constitutes less than a quorum, or by a sole
remaining director; provided that, any vacancy
created by a removal of a director of the Corporation pursuant to Section 6 of
Article V of the Certificate of Incorporation of the Corporation may be filled
by action of the stockholders taken at the same meeting at which the vacancy was
created; such action to be upon the affirmative vote of the holders of not less
than a majority of the voting power of the outstanding capital stock of the
Corporation entitled to vote in the election of directors, voting as a single
class.
Section
6. Resignation of
Directors. Any
director may resign at any time. Such resignation shall be made in
writing and shall take effect at the time specified therein, and if no time be
specified, shall take effect at the time of its receipt by the Chairman, the
Chief Executive Officer, the President or the Secretary of the
Corporation. The acceptance of a resignation shall not be necessary
to make it effective.
Section
7. Removal of
Directors. Subject
to the rights of holders of any series of Preferred Stock to elect directors or
to remove directors so elected, a duly elected director of the Corporation may
be removed from such position with or without cause; any such removal may be
effected only by the affirmative vote of the holders of at least a majority of
the voting power of the outstanding capital stock of the Corporation entitled to
vote in the election of directors, voting as a single class.
5
Section 8. Meetings.
(a) Annual
Meetings. As soon as practicable after each annual election of
directors, the Board shall meet for the purpose of organization and the
transaction of other business, unless it shall have transacted all such business
by written consent pursuant to Section 9 of this Article III.
(b) Special
Meetings. Special meetings of the Board may be called by the
Chairman, the Chief Executive Officer or the President and shall be called at
the request of any two directors, and any such meeting shall be held at such
time and at such place as shall be specified in the notice of
meeting.
(c) Notice of
Meetings. Subject to the provisions of paragraph (a) of this
Section 8, notice shall be given to each director of each meeting, including the
time, place and purpose of such meeting. Notice of each such meeting
shall be mailed to each director, addressed to him or her at his or her
residence or usual place of business, at least two days before the date on which
such meeting is to be held, or shall be sent to him or her at such place by
telecopy, telegraph, cable, wireless, electronic mail or other form of
electronic transmission, or be delivered personally or by telephone not later
than 24 hours before the meeting, but notice need not be given to any director
who shall attend such meeting, except if such director shall attend for the
express purpose of objecting at the beginning thereof to the transaction of any
business because the meeting is not lawfully called or convened. If
mailed, the notice shall be deemed to have been given when deposited in the
United States mail, postage prepaid, if telegraphed, the notice shall be deemed
to have been given when the contents of the telegram are transmitted to the
telegraph service with instructions that the telegram immediately be dispatched,
if telecopied, the notice shall be deemed to have been given upon transmission,
if sent by electronic mail, the notice shall be deemed to have been given when
sent. A written waiver of notice, signed by the person entitled
thereto, whether before or after the time of the meeting stated therein, shall
be deemed equivalent to notice.
(d) Place of
Meetings. The Board may hold its meetings at such place or
places within or outside the State of Delaware as the Board may from time to
time determine, or as shall be designated in the respective notices or waivers
of notice thereof.
(e) Quorum and Manner of
Acting. Except as otherwise required by applicable law or by
the Certificate of Incorporation of the Corporation or by these Restated
By-Laws, a majority of the total number of directors then in office shall be
present in person at any meeting of the Board in order to constitute a quorum of
the transaction of business at such meeting, and the vote of a majority of those
directors present at any such meeting at which a quorum is present shall be
necessary for the passage of any resolution or act of the Board.
(f) Organization. At
each meeting of the Board, one of the following shall act as chairman of the
meeting and preside thereat, in the following order of precedence:
(i) the
Chairman;
(ii) the Chief
Executive Officer (if a director);
(iii) he
President (if a director); or
(iv) any
director designated by a majority of the directors present.
The
Secretary or, in the case of his absence, an Assistant Secretary, if an
Assistant Secretary has been appointed and is present, or any person whom the
chairman of the meeting shall appoint shall act as secretary of such meeting and
keep the minutes thereof.
(g) Order of
Business. Unless otherwise determined by the Board, the order
of business and rules of order at any meeting of the Board shall be determined
by the chairman of the meeting.
6
(h) Adjournment. Any
meeting of the Board may be adjourned from time to time by a majority of the
directors present, whether or not they shall constitute a quorum, and no notice
shall be required of any adjourned meeting beyond the announcement of such
adjournment at the meeting.
Section
9. Directors’ Consent in Lieu
of Meeting. Any
action required or permitted to be taken at any meeting of the Board or any
committee thereof may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by all the directors then in office or members of such
committee, as the case may be, and such consent is filed with the minutes of the
proceedings of the Board or such committee, as the case may be.
Section
10. Action by Means of
Conference Telephone or Similar Communications Equipment. Members
of the Board or any committee thereof may participate in a meeting of the Board
or such committee, as the case may be, by means of conference telephone or
similar communications equipment by which all persons participating in the
meeting can hear each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
Section
11. Committees. The
Board may, by resolution or resolutions passed by a majority of the whole Board,
designate one or more committees, each such committee to consist of one or more
directors of the Corporation, which to the extent provided in said resolution or
resolutions shall have and may exercise the powers of the Board in the
management of the business and affairs of the Corporation and may authorize the
seal of the Corporation to be affixed to all papers which may require it, such
committee or committees to have such name or names as may be determined from
time to time by resolution adopted by the Board. A majority of all
the members of any such committee may determine its action and fix the time and
place of its meetings, unless the Board shall otherwise provide. Any
member of a committee appointed pursuant to this Section 11 shall serve at the
pleasure of the Board, which shall have the power at any time by the vote of a
majority of the Board then in office to remove any member, with or without
cause, and to fill vacancies in the membership of a committee. No
committee appointed pursuant to this Section 11 shall have the power to fill any
vacancy in the membership of such committee. Any committee appointed
pursuant to this Section 11 shall exist at the pleasure of the Board, which
shall have the power at any time by the vote of a majority of the Board to
change the powers and duties of any such committee or to dissolve
it.
Section
12. Compensation. Each
director, in consideration of his or her serving as such, shall be entitled to
receive from the Corporation such compensation as the Board shall from time to
time determine, which may include reimbursement for reasonable expenses incurred
by him or her in attending meetings of the Board. Each director who
shall serve as a member of any committee of the Board, in consideration of his
or her serving as such, shall be entitled to such additional compensation as the
Board shall from time to time determine, which may include reimbursement for
reasonable expenses incurred by him or her in attending meetings of such
committee. Nothing herein contained shall be construed to preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE
IV
Officers
Section
1. Executive
Officers. The
principal officers of the Corporation shall be a Chairman, a Chief Executive
Officer, a President, a Secretary, and a Treasurer, and may include such other
officers as the Board may appoint pursuant to Section 3 of this Article
IV. To the extent permitted by law, any two or more offices may be
held by the same person.
Section
2. Authority and
Duties. All
officers, as between themselves and the Corporation, shall have such authority
and perform such duties in the management of the Corporation as may be provided
in these Restated By-Laws or, to the extent so provided, by the
Board.
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Section 3. Other
Officers. The
Corporation may have such other officers, agents and employees as the Board may
deem necessary, including one or more Assistant Secretaries, one or more
Assistant Treasurers and one or more Vice Presidents, each of whom shall hold
office for such period, have such authority, and perform such duties as the
Board, the Chairman, the Chief Executive Officer or the President may from time
to time determine. The Board may delegate to any principal officer
the power to appoint and define the authority and duties of, or remove, any such
officers, agents or employees.
Section
4. Term of Office, Resignation
and Removal.
(a) All
officers shall be elected or appointed by the Board and shall hold office for
such term as may be prescribed by the Board or the appointing officer, as the
case may be. Each officer shall hold office until his successor has
been elected or appointed and qualified or until his earlier death or
resignation or removal in the manner hereinafter provided. The Board
may require any officer to give security for the faithful performance of his
duties.
(b) Any
officer may resign at any time by giving written notice to the Board, the
Chairman, the Chief Executive Officer, the President or the
Secretary. Such resignation shall take effect at the time specified
therein or, if the time by not specified, at the time it is accepted by action
of the Board. Except as aforesaid, the acceptance of such resignation
shall not be necessary to make it effective.
(c) All
officers and agents elected or appointed by the Board shall be subject to
removal at any time by the Board of the Corporation with or without
cause.
Section
5. Vacancies. If
the office of Chairman, Chief Executive Officer, President, Secretary or
Treasurer becomes vacant for any reason, the Board shall fill such vacancy, and
if any other office becomes vacant, the Board may fill such
vacancy. Any officer so appointed or elected by the Board shall serve
only until such time as the unexpired term of his predecessor shall have
expired, unless reelected or reappointed by the Board.
Section
6. The
Chairman. The
Chairman shall give counsel and advice to the Board and the officers of the
Corporation on all subjects concerning the welfare of the Corporation and the
conduct of its business and shall perform such other duties as the Board may
from time to time determine or are or may at any time be authorized or required
by law. The Chairman shall be Chairman of the
Board. Unless otherwise determined by the Board, such officer shall
preside at all meetings of stockholders of the Corporation and the Board at
which such officer is present.
Section
7. Chief Executive
Officer. The
Chief Executive Officer shall be the chief executive officer of the Corporation
and, subject to the control of the Board, shall have general charge and control
of the business and affairs of the Corporation and shall see that all orders and
resolutions of the Board are carried into effect. Such officer shall
perform all other duties and enjoy all other powers which are commonly incident
to the office of Chief Executive Officer or are delegated to such officer from
time to time by the Board or are or may at any time be authorized or required by
law.
Section
8. The
President. The
President shall be the chief operating officer of the Corporation and, subject
to the control of the Board, shall have general charge of the management of the
business and affairs of the Corporation. Such officer shall perform
all other duties and enjoy all other powers which are commonly incident to the
office of President or which are delegated to such officer by the
Board.
Section
9. The
Secretary. The
Secretary shall, to the extent practicable, attend all meetings of the Board and
all meetings of the stockholders and shall record all votes and the minutes of
all proceedings in a book to be kept for that purpose. Such officer
may give, or cause to be given, notice of all meetings of the stockholders and
of the Board, and shall perform such other duties as may be prescribed by the
Board, the Chairman, the Chief Executive Officer or the President, under whose
supervisions such officer shall act. Such officer shall keep in safe
custody the seal of the Corporation and affix the same to any duly authorized
instrument requiring it and, when so affixed, it shall be attested by his or her
signature or by the signature of the
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Treasurer
or, if appointed, an Assistant Secretary or an Assistant
Treasurer. Such officer shall keep in safe custody the certificate
books and stockholder records and such other books and records as the Board may
direct, and shall perform all other duties incident to the office of Secretary
and such other duties as from time to time may be assigned to him or her by the
Board, the Chairman, the Chief Executive Officer or the President.
Section
10. The
Treasurer. The
Treasurer shall have the care and custody of the corporate funds and other
valuable effects, including securities, shall keep full and accurate accounts of
receipts and disbursements in books belonging to 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. The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board, taking proper vouchers for such disbursements,
shall render to the Chairman, Chief Executive Officer, President and directors,
at the regular meetings of the Board, or whenever they may require it, an
account of all his or her transactions as Treasurer and of the financial
condition of the Corporation and shall perform all other duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
to him or her by the Board, the Chairman, the Chief Executive Officer or the
President.
ARTICLE
V
Contracts, Checks, Drafts,
Bank Accounts, Etc.
Section
1. Execution of
Documents. The
Board shall designate, by either specific or general resolution, the officers,
employees and agents of the Corporation who shall have the power to execute and
deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other
orders for the payment of money and other documents for and in the name of the
Corporation, and may authorize such officers, employees and agents to delegate
such power (including authority to redelegate) by written instrument to other
officers, employees or agents of the Corporation; unless so designated or
expressly authorized by these Restated By-Laws, no officer, employee or agent
shall have any power or authority to bind the Corporation by any contract or
engagement, to pledge its credit or to render it liable pecuniarily for any
purpose or amount.
Section
2. 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 or Treasurer, or
any other officer of the Corporation to whom power in this respect shall have
been given by the Board, shall select.
Section
3. Proxies with Respect to
Stock or Other Securities of Other Corporations. The
Board shall designate the officers of the Corporation who shall have authority
from time to time to appoint an agent or agents of the Corporation 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, and to vote or consent with respect to such stock or
securities. Such designated officers may instruct the person or
persons so appointed as to the manner of exercising such powers and rights, and
such designated officers may execute or cause to be executed in the name and on
behalf of the Corporation and under its corporate seal or otherwise, such
written proxies, powers of attorney or other instruments as they may deem
necessary or proper in order that the Corporation may exercise its powers and
rights.
ARTICLE
VI
Shares and Their Transfer;
Fixing Record Date
Section
1. Certificates for
Shares. Every
owner of stock of the Corporation shall be entitled to have a certificate
certifying the number and class of shares owned by him in the Corporation, which
shall be in such form as shall be prescribed by the
Board. Certificates shall be numbered and issued in consecutive order
and shall be signed by, or in the name of, the Corporation by the Chairman, the
President or any Vice President, and
9
by the
Treasurer (or an Assistant Treasurer, if appointed) or the Secretary (or an
Assistant Secretary, if appointed). Any or all of the signatures on
the certificate may be a facsimile. In case any officer, officers,
transfer agent or registrar who shall have signed, or whose facsimile signature
shall have been placed upon, any such certificate or certificates shall cease to
be such officer, officers, transfer agent or registrar of the Corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed, or whose facsimile
signature shall have been placed upon, such certificate had not ceased to be
such officer, officers, transfer agent or registrar of the
Corporation.
Section
2. Record. A
record in one or more counterparts shall be kept of the name and address of the
person, firm or corporation owning the shares represented by each certificate
for stock of the Corporation issued, the number of shares represented by each
such certificate, the date thereof and, in the case of cancellation, the date of
cancellation. Except as otherwise expressly required by law, the
person in whose name shares of stock stand on the stock record of the
Corporation shall be deemed the owner thereof for all purposes regarding the
Corporation.
Section
3. Transfer and Registration of
Stock.
(a) The
Transfer of stock and certificates which represent the stock of the Corporation
shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code
(the Uniform Commercial Code), as amended from time to time.
(b) Registration
of transfers of shares of the Corporation shall be made only on the books of the
Corporation upon request of the registered holder thereof, or of his or her
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary of the Corporation, and upon the surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a stock power
duly executed, with such proof or guarantee of the authenticity of the signature
as the Corporation or its agents may reasonably require.
Section
4. Addresses of
Stockholders. Each
stockholder shall designate to the Secretary an address at which notices of
meetings and all other corporate notices may be served or mailed to him or her,
and, if any stockholder shall fail to designate such address, corporate notices
may be served upon him or her by mail directed to him or her at his post-office
address, if any, as the same appears on the share record books of the
Corporation or at his or her last known post-office address.
Section
5. Lost, Stolen or Destroyed
Certificates. The
Secretary (or an Assistant Secretary, if appointed), Treasurer (or an Assistant
Treasurer, if appointed), chief financial officer or other duly authorized
officer may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon making of an affidavit of the fact by
the person claiming the certificate or certificates to be lost, stolen or
destroyed. In such officer’s discretion, and as a condition precedent
to the issuance of any such new certificate or certificates, such officer may
require that the owner of such lost, stolen or destroyed certificate or
certificates, or such person’s legal representative, give the Corporation and
its transfer agent or agents, registrar or registrars a bond in such form and
amount as such officer may direct as indemnity against any claim that may be
made against the Corporation and its transfer agent or agents, registrar or
registrars, and that the owner requesting such new certificate or certificates
obtain a final order or decree of a court of competent jurisdiction as such
owner’s right to receive such new certificate or certificates.
Section
6. Transfer Agents and
Registrars. The
Corporation may have one or more transfer agents and one or more registrars of
its stock, whose respective duties the Board may, from time to time,
define. No certificate of stock shall be valid until countersigned by
a transfer agent, if the Corporation shall have a transfer agent, or until
registered by the registrar, if the Corporation shall have a
registrar. The duties of transfer agent and registrar may be
combined.
Section
7. Regulations. The
Board may make such rules and regulations as it may deem expedient, not
inconsistent with these Restated By-Laws, concerning the issue, transfer and
registration of certificates for stock of the Corporation.
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Section 8. Fixing Date for
Determination of Stockholders of Record.
(a) 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, the Board may
fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board, and which record date
shall be not more than 60 nor less than 10 days before the date of such
meeting. If no record date is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. 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 may fix a new record date for the adjourned meeting.
(b) In order
that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board may fix a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board, and which date shall be not more than
10 days after the date upon which the resolution fixing the record date is
adopted by the Board. If no record date has been fixed by the Board,
the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board is
required by the Delaware Statute, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in this State,
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. Delivery made to the Corporation’s registered office shall
be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board and prior
action by the Board is required by the Delaware Statute, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action.
(c) In order
that the Corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders 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 may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record
date shall be not more than 60 days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
ARTICLE
VII
Seal
The Board
may provide a corporate seal, which shall be in the form of a circle and shall
bear the full name of the Corporation, the year of incorporation of the
Corporation and the words and figures “Corporate Seal - -
Delaware.”
ARTICLE
VIII
Fiscal
Year
The
fiscal year of the Corporation shall end on the 31st day
of January in each year unless otherwise determined by the Board.
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ARTICLE
IX
Indemnification and
Insurance
Section
1. Indemnification.
(a) As
provided in the Certificate of Incorporation of the Corporation, to the fullest
extent permitted by the Delaware Stature as the same exists or may hereafter be
amended, a director of this Corporation shall not be liable to the Corporation
or its stockholders for breach of fiduciary duty as a director.
(b) Without
limitation of any right conferred by paragraph (a) of this Section 1, each
person who was or is made a party or is threatened to be made a party to or is
otherwise involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a “proceeding”), by reason of the fact that he or she is or was a
director, officer, or employee of the Corporation or is or was serving at the
request of the Corporation as a director, officer or employee of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
“indemnitee”), whether the basis of such proceeding is alleged action in an
official capacity while serving as a director, officer or employee or in any
other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware Statute, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
permitted prior thereto), against all expense, liability and loss (including
attorneys’ fees, judgments, fines, excise taxes or amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in connection therewith and
such indemnification shall continue as to an indemnitee who has ceased to be a
director, officer or employee and shall inure to the benefit of the indemnitee’s
heirs, testators, intestates, executors and administrators; provided, however, that such
person acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Corporation, and with respect to a
criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful; provided further, however, that no
indemnification shall be made in the case of an action, suit or proceeding by or
in the right of the Corporation in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such director, officer,
employee or agent is liable to the Corporation, unless a court having
jurisdiction shall determine that, despite such adjudication, such person is
fairly and reasonably entitled to indemnification; provided further, however, that, except
as provided in Section 1(c) of this Article IX with respect to proceedings to
enforce rights to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) initiated by such
indemnitee was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Article
IX shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition (hereinafter an “advancement of expenses”); provided further, however, that, if the
Delaware Statute requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an “undertaking”) by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a “final adjudication”) that such
indemnitee is not entitled to be indemnified for such expenses under this
Section or otherwise.
(c) If a
claim under Section (b) of this Article IX is not paid in full by the
Corporation with 60 days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or
in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of any undertaking, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In any
suit brought by the indemnitee to enforce a right to indemnification hereunder
(but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that the indemnitee has not met
the applicable standard of conduct set forth in the Delaware
Statute. In any suit by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation
shall
12
(d) be
entitled to recover such expenses upon a final adjudication that the indemnitee
has not met the applicable standard of conduct set forth in the Delaware
Statute. Neither the failure of the Corporation (including the Board,
independent legal counsel, or the stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the Delaware Statute, nor an actual
determination by the Corporation (including the Board, independent legal
counsel, or the stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the
indemnitee to, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to the indemnified, or to such advancement of
expenses, under this Section or otherwise shall be on the
Corporation.
(e) The
rights to indemnification and to the advancement of expenses conferred in this
Article IX shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, the Certificate of Incorporation of the
Corporation, agreement, vote of stockholders or disinterested directors or
otherwise.
Section
2. Insurance. The
Corporation may purchase and maintain insurance, at its expense, to protect
itself and any person who is or was a director, officer, employee or agent of
the Corporation or any person who is or was serving at the request of the
Corporation as a director, officer, employer or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
Statute.
ARTICLE
X
Amendment
These
Restated By-Laws of the Corporation shall be subject to alteration, amendment or
repeal, in whole or in part, and new Restated By-Laws not inconsistent with the
Delaware Statute or any provision of the Certificate of Incorporation of the
Corporation may be made, by the affirmative vote of: (i) stockholders holding
not less than 66-2/3% of the voting power of the Corporation then entitled to
vote on such issue; or (ii) the affirmative vote of not less than a majority of
the Board of the Corporation then in office.
* * * *
*
* *
*
*
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