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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Bolle Inc.
(Exact name of registrant as specified in its charter)
Delaware 13-373-4135
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(State of incorporation or organization) (IRS Employer Identification No.)
555 Theodore Fremd Avenue, Suite B-302
Rye, New York 10580
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to be so registered Name of each exchange on which
each class is to be registered
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form
relates: 333-40279
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
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(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered
The information required by this Item 1 is incorporated by reference to
Amendment No. 4 to the Registrant's Registration Statement on Form S-1 (File
No. 333-40279) as filed with the Securities and Exchange Commission (the
"Commission") on February 13, 1998 and to the Registrant's Prospectus, as filed
with the Commission pursuant to Rule 424(b) on March 10, 1998.
Item 2. Exhibits
1. Amended and Restated Certificate of Incorporation
2. Certificate of Designations of the Series B Preferred Stock
3. Amended and Restated Bylaws
4. Specimen of Stock Certificate
5. Letter Agreement dated July 9, 1997 by and among Martin E. Franklin
on the one hand, and each of Robert Bolle, Maurice Bolle, Franck
Bolle, Brigitte Bolle, Patricia Bolle Passaquay and Christelle Roche,
on the other hand (collectively, the "Sellers"). Incorporated by
reference to Exhibit 4.3 to Amendment No. 3 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-40279).
6. Letter Agreement by and among Martin E. Franklin and each of the
Sellers.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
(Registrant) Bolle Inc.
Date: March 11, 1998
By: /s/ Martin E. Franklin
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Name: Martin E. Franklin
Title: Chairman of the Board
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EXHIBIT INDEX
1. Amended and Restated Certificate of Incorporation
2. Certificate of Designations of the Series B Preferred Stock
3. Amended and Restated Bylaws
4. Specimen of Stock Certificate
6. Letter Agreement by and among Martin E. Franklin and each of the
Sellers.
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EXHIBIT 1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
BOLLE INC.
BOLLE INC., a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
1. The name of the corporation is BOLLE INC., and the name under which the
corporation was originally incorporated is BOLLE, INC. The date of the filing
of its original Certificate of Incorporation with the Secretary of State was
February 3, 1997.
2. This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of this
corporation by increasing the total number of shares of stock which the
Corporation shall have authority to issue to 30,000,000 shares of common stock,
having a par value of $.01 per share and 200,000 shares of preferred stock
having a par value of $.01 per share.
3. The text of the Certificate of Incorporation as amended or supplemented
heretofore is further amended hereby to read as herein set forth in full:
FIRST: The name of the Corporation (hereinafter referred to as the
"Corporation") is
BOLLE INC.
SECOND: The address, including street, number, city and county, of
the registered office of the Corporation in the State of Delaware is 1013
Centre Road, Wilmington, Delaware 19805, County of New Castle, and the
name of the registered agent of the Corporation in the State of Delaware
is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 30,000,000 shares of common stock, having
a par value of $.01 per share and 200,000 shares of preferred stock having
a par value of $.01 per share. To the extent not otherwise provided for
by, and not inconsistent with, this Certificate of Incorporation, there is
hereby expressly vested in the Board of Directors the authority to fix in
the resolution or resolutions providing for the issue of each series of
such
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preferred stock, the voting power and the designations, preferences
and relative, participating, operational or other rights of each such
series, and the qualifications, limitations or restrictions thereof.
Shares of preferred stock may be issued from time to time in one or more
series as may from time to time be determined by the Board of Directors,
each such series to be distinctly designated.
a. Series A Preferred Stock. There shall be created a series of
preferred stock of the Corporation, which shall be designated "Series A
Preferred Stock" and shall consist of Sixty Four Thousand One Hundred
Twenty (64,120) shares, and have the powers, designations, preferences and
relative, participating, and other rights of the shares of such series,
and the qualifications, limitations and restrictions thereof, as set forth
below:
Section 1. Dividends. The holders of the Series A Preferred
Stock shall not be entitled to dividends.
Section 2. Rights on Liquidation. In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the
Corporation (any such event being hereinafter referred to as a
"Liquidation"), before any distribution of assets of the Corporation
shall be made to or set apart for the holders of Common Stock, the
holders of Series A Preferred Stock shall be entitled to receive
payment out of such assets of the Corporation in an amount equal to
the greater of (i) One Thousand French Francs (FF1,000) per share of
Series A Preferred Stock or (ii) the French Franc equivalent of US
$172.41 per share of Series A Preferred Stock (such greater amount
being referred to as the "Liquidation Preference" for the Series A
Preferred Stock). If the assets of the Corporation available for
distribution to the holders of the Series A Preferred Stock shall not
be sufficient to make in full the payment herein required, such
assets shall be distributed pro-rata among the holders of Series A
Preferred Stock based on the aggregate Liquidation Preference of the
shares of Series A Preferred Stock held by each such holder. If the
assets of the Corporation available for distribution to the holders
of Series A Preferred Stock shall exceed the distribution required to
be made to the holders of Series A Preferred Stock as herein
described, such excess assets shall be distributed pro-rata among the
holders of Common Stock and the holders of Series A Preferred Stock
shall not participate in any such excess distribution in their
capacity as holders of Series A Preferred Stock.
Section 3. Conversion. The holders of any share of Series A
Preferred Stock shall not have the
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right to convert any such shares into shares of Common Stock of the
Corporation.
Section 4. Redemption.
(a) Optional Redemption. Following notice pursuant to Section
4(c) hereof given to all holders of Series A Preferred Stock during
the period that shares of Series A Preferred Stock are outstanding
(the "Redemption Period"), the Corporation may at the option of the
Board of Directors of the Corporation, redeem, out of funds legally
available therefor, in whole or in part the shares of Series A
Preferred Stock. The Corporation shall effect any such redemption by
paying in cash for each such share to be redeemed an amount equal to
the Liquidation Preference, per share, on such shares being redeemed
on the Redemption Date (as hereinafter defined) (such per share
amount is hereinafter referred to as the "Redemption Amount").
(b) Mandatory Redemption. (i) Subject to the terms of the Senior
Indebtedness (as defined below), on the third anniversary date from
the issuance of the Series A Preferred Stock, the Corporation shall
redeem, out of funds legally available therefor, all of the shares of
the Series A Preferred Stock (if not previously redeemed) at the
Redemption Amount per share pursuant to the terms of this Section 4
following notice pursuant to Section 4(c) hereof given to all holders
of Series A Preferred Stock.
(ii) Notwithstanding anything to the contrary contained herein,
in the event that the Corporation's EBITDA (as defined below) exceeds
US$18,400,000 for the year ended December 31, 1998 and Bollee Inc.
will be in compliance with the terms of Bolle Inc.'s senior
indebtedness pursuant to the terms of the credit agreement among the
Corporation, the lenders executing a signature thereto and
NationsBank, National Association, as Agent, entered into in
connection with the Corporation becoming a separate public company as
a result of a spinoff by BEC Group, Inc., as may be amended from time
to time (the "Senior Indebtedness") after taking into account the
redemption pursuant to the terms of this Section 4(b)(ii), to the
extent that Bolle Inc. will have at least US$2,000,000 available to
borrow pursuant to the terms of the Senior Indebtedness after taking
into account such redemption, the Corporation shall redeem, out of
funds legally available therefor, the shares of the Series A
Preferred Stock (if not previously redeemed) at the Redemption Amount
per share pursuant to the terms of this Section 4 herein following
notice given within ten days after the Determination Date (as defined
below) in respect of the year ended
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December 31, 1998 pursuant to Section 4(c) hereof given to all
holders of Series A Preferred Stock. The determination of EBITDA
required to be made under this Section 4, shall be made by the
Corporation within ninety days following the Corporation's year end
(the "Determination Date").
(iii) Notwithstanding anything to the contrary contained herein,
in the event that the Corporation's EBITDA exceeds US$24,700,000 for
the year ended December 31, 1999 Bolle Inc. will be in compliance
with the terms of the Senior Indebtedness after taking into account
the redemption pursuant to the terms of this Section 4(b)(iii), to
the extent that Bolle Inc. will have at least US$2,000,000 available
to borrow pursuant to the terms of the Senior Indebtedness after
taking into account such redemption, the Corporation shall redeem,
out of funds legally available therefor, the shares of the Series A
Preferred Stock (if not previously redeemed) at the Redemption Amount
per share pursuant to the terms of this Section 4 herein following
notice given within ten days after the Determination Date in respect
of year ended December 31, 1999 pursuant to Section 4(c) hereof given
to all holders of Series A Preferred Stock.
(iv) For purposes of this Section 4, "EBITDA" means, with
respect to the Corporation and its subsidiaries for any period of
computation thereof, the sum of, without duplication, (i)
consolidated net income, (ii) consolidated interest expense, (iii)
taxes on income, (iv) amortization, and (v) depreciation, all
determined on a consolidated basis in accordance with generally
accepted accounting principles on a consistent basis.
(c) Redemption Procedures. In the event of any redemption
pursuant hereto, the Corporation shall effect such redemption as
described below. During the Redemption Period, and at least 10 days
prior to the date fixed for any redemption of Series A Preferred
Stock pursuant to Section 4(a) or 4(b) above (the "Redemption Date"),
written notice shall be sent to each holder of record of Series A
Preferred Stock to be redeemed, notifying such holder of the
redemption to be effected, specifying the Redemption Date, the
Redemption Amount, the place at which payment may be obtained and
calling upon such holder to surrender to the Corporation, in the
manner and at the place designated, his certificate or certificates
representing the shares to be redeemed (the "Redemption Notice"). On
or after the Redemption Date, each holder of Series A Preferred Stock
to be redeemed shall surrender to the Corporation the certificate or
certificates representing such
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shares, in the manner and at the place designated in the
Redemption Notice, and thereupon the Redemption Amount of such shares
shall be payable to the order of the person whose name appears on
such certificate or certificates as the owner thereof and each
surrendered certificate shall be cancelled. In the event less than
all the shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the unredeemed shares.
(d) Status of Redeemed or Purchased Shares. Any shares of the
Series A Preferred Stock at any time purchased, redeemed or otherwise
acquired by the Corporation shall not be reissued and shall be
retired.
(e) Sale of Business. In the event that the Corporation does not
give notice on or before the third anniversary date from the issuance
of the Series A Preferred Stock, that it will redeem the Series A
Preferred Stock in full pursuant to the provisions of Section 4(c)
hereof, the holders of more than 90% of the Series A Preferred Stock
shall have the right, until the Series A Preferred Stock has been
redeemed, (i) subject to the terms and provisions of the agreements
entered into in connection with the Senior Indebtedness, to appoint a
majority of the members of the Board of Directors of the Corporation,
so long as the Corporation is privately or closely held, and (ii)
subject to the terms and provisions of the agreements entered into in
connection with the Senior Indebtedness, to cause the Corporation to
use commercially reasonable efforts to either obtain cash in order to
redeem in full the Series A Preferred Stock or to effect a
commercially reasonable sale of the Corporation's assets or the
merger, consolidation or other reorganization of the Corporation as
soon as reasonably practicable thereafter.
SECTION 5. Voting Rights. Subject to the provisions of Section
4(c)(i) hereof, the holders of the Series A Preferred Stock shall not
be entitled to vote except as to matters in respect of which they
shall at the time be indefeasibly vested by statute with such right.
SECTION 6. Protective Provisions. So long as any shares of
Series A Preferred Stock are outstanding, the Corporation shall not,
without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of at least 90% of the then
outstanding shares of Series A Preferred Stock:
(i) alter or change the rights, preferences or privileges
of the shares of Series A
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Preferred Stock so as to affect adversely the shares of such
series; and
(ii) the Corporation shall not issue any class or series of
Preferred Stock that ranks Senior to or pari passu with the Series A
Preferred Stock with respect to dividend, redemption or liquidation
rights.
SECTION 7. TRANSFERABILITY. The holders of shares of the Series
A Preferred Stock are entitled to transfer shares of the Series A
Preferred Stock to any of the other holders of shares of Series A
Preferred Stock, subject to strict compliance with all applicable
laws.
FIFTH: The name and the mailing address of the incorporator is as
follows:
Name Mailing Address
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Peter H. Trembath c/o BEC Group, Inc.
1601 Valley View Lane
Dallas, TX 75234
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between
this Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation
under Section 279 of Title 8 of the Delaware Code order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of
creditors, and/or the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders of this
Corporation, as the case may be, and also on this Corporation.
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EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and
regulation of the powers of the Corporation and of its directors and of
its stockholders or any class thereof, as the case may be, it is further
provided:
1. The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of
Directors. The number of directors which shall constitute the
whole Board of Directors shall be fixed by, or in the manner
provided in, the By-laws. The phrase "whole Board" and the
phrase "total number of directors" shall be deemed to have the
same meaning to wit, the total number of directors which the
Corporation would have if there were no vacancies.
2. After the original or other By-laws of the Corporation
have been adopted, amended, or repealed, as the case may be, in
accordance with the provisions of Section 109 of the General
Corporation Law of the State of Delaware, and, after the
Corporation has received any payment for any of its stock, the
power to adopt, amend, or repeal the By-laws of the Corporation
may be exercised by the Board of Directors of the Corporation;
provided, however, that any provision for the classification of
directors of the Corporation for staggered terms pursuant to the
provisions of subsection (d) of Section 141 of the General
Corporation Law of the State of Delaware shall be set forth in
the initial By-laws or in by-laws adopted by the stockholders
entitled to vote of the Corporation unless provisions for such
classification shall be set forth in this Certificate of
Incorporation.
3. Whenever the Corporation shall be authorized to issue
only one class of stock, each outstanding share shall entitle
the holder thereof to notice of, and the right to vote at, any
meeting of stockholders. Whenever the Corporation shall be
authorized to issue more than one class of stock, no outstanding
share of any class of stock which is denied voting power under
the provisions of the certificates of incorporation shall
entitle the holder thereof to the right to vote at any meeting
of the stockholders except as the provisions of paragraph (2) of
the subsection (b) of (section) 242 of the General Corporation
Law of the State of Delaware shall otherwise require;
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provided, that no share of any such class which is otherwise
denied voting power shall entitle the holder thereof
to vote upon the increase or decrease in the number of
authorized shares of said class.
4. Elections of directors need not be by written ballot.
NINTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of
subsection (b) of Section 102 of the General Corporation Law of the State
of Delaware, as the same may be amended and supplemented.
TENTH: (a) The Corporation shall, to the fullest extent permitted by
the General Corporation Law, as the same may be amended and supplemented,
indemnify any and all persons whom it shall have the power to indemnify
under the General Corporation Law from and against any and all of the
expenses, liabilities or other matters referred to in or covered by the
General Corporation Law, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may
be entitled under any By-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) Expenses incurred in defending a civil or criminal action, suit
or proceeding shall (in the case of any action, suit or proceeding against
a director of the Corporation) or may (in the case of any action, suit or
proceeding against an officer, trustee, employee or agent) be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board upon receipt of an undertaking by or
on behalf of the indemnified person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article.
(c) No director shall be personally liable to the Corporation or any
stockholder for monetary damages for breach of fiduciary duty as director,
except for any matter in respect of which such director (a) shall be
liable under Section 174 of the General Corporation Law or successor
provisions thereto, or (b) shall be liable by reason that, in addition to
any and all other requirements for liability, he
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(i) shall have breach his duty of loyalty to the Corporation or its
stockholders;
(ii) shall not have acted in good faith or, in failing to act,
shall not have acted in good faith;
(iii) shall have acted in a manner involving intentional misconduct
or a knowing violation of the law or, in failing to act, shall have acted
in a manner involving intentional misconduct or knowing violation of the
law; or
(iv) shall have derived an improper personal benefit.
ELEVENTH: The Board of Directors shall have the power to make, add
to, delete from, alter and repeal the Corporation's By-laws.
TWELFTH: The Corporation expressly elects not to be governed by
Section 203 of the Delaware General Corporation Law.
THIRTEENTH: From time to time any of the provisions of this
Certificate of Incorporation may be amended, altered or repealed after
authorization by the Board of Directors and the affirmative vote of the
holders of record of a majority of all of the issued and outstanding
shares of the Corporation entitled to vote in respect thereof, and other
provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted in the manner and at the time prescribed by
said laws, and all rights at any time conferred upon the stockholders of
the Corporation by this Certificate of Incorporation are granted subject
to the provisions of this Article Fourteenth.
4. This Amended and Restated Certificate of Incorporation was duly adopted
by unanimous written consent of the holders of the Corporation's common stock
and Series A Preferred Stock in accordance with the applicable provisions of
Sections 228, 242 and 245 of the General Corporation Law of the State of
Delaware.
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IN WITNESS WHEREOF, said BOLLE INC. has caused this certificate to be
signed and attested by Ian G.H. Ashken, its Chief Financial Officer, this 12th
day of February, 1998.
BOLLE INC.
By: /s/ Ian G.H. Ashken
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Name: Ian G.H. Ashken
Title: Chief Financial Officer
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EXHIBIT 2
CERTIFICATE OF DESIGNATIONS
OF THE
SERIES B PREFERRED STOCK
OF BOLLE INC.
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Pursuant to Section 151 of the
General Corporation Law of the
State of Delaware
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The undersigned, Peter H. Trembath, does hereby certify as follows:
FIRST: That he is the duly elected and acting Secretary of Bolle Inc., a
Delaware corporation (the "corporation").
SECOND: That the following resolution was duly adopted by the Board of
Directors of the corporation:
RESOLVED, that pursuant to authority conferred upon the Board of Directors
of the corporation in accordance with the General Corporation Law of the State
of Delaware and the provisions of the Restated Certificate of Incorporation of
the corporation (the "Restated Certificate"), there is hereby created a new
series of preferred stock of the corporation, which shall be designated "Series
B Preferred Stock" and shall consist of Ten Thousand (10,000) shares, and have
the powers, designations, preferences and relative, participating, and other
rights of the shares of such series, and the qualifications, limitations and
restrictions thereof, as set forth below.
Section 1. Dividends.
(a) The holders of the Series B Preferred Stock, shall be entitled to
accrue cumulative cash dividends, whether or not declared by the Board of
Directors of the corporation, at the dividend rate per annum as set forth in
Section 1(b) below and no more, on each share of Series B Preferred Stock,
payable semi-annually on June 30 and December 31 of each year commencing
December 31, 1997, such dividends shall be cumulative, so that if at any time
dividends per semi-annum at the applicable dividend rate, on each share, shall
not have been declared and paid, or set apart for payment, for all preceding
dividend periods, the deficiency shall be declared and paid, or set apart for
payment, before any dividends shall be declared and paid, or set apart for
payment, on the common stock (the "Common Stock") of the
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corporation or the Series A Preferred Stock (the "Series A Stock") of the
corporation.
(b) The dividend rate (the "Dividend Rate") for the Series B Preferred
Stock shall be at the per annum rate of:
(i) 5% of the Liquidation Preference per share per annum during the
period commencing on the date of issuance of shares of the Series B Preferred
Stock through December 31, 1997;
(ii) 6% of the Liquidation Preference per share per annum during the
period commencing January 1, 1998 through June 30, 1998;
(iii) 7% of the Liquidation Preference per share per annum during the
period commencing July 1, 1998 through December 31, 1998;
(iv) 8% of the Liquidation Preference per share per annum during the
period commencing January 1, 1999 through June 30, 1999;
(v) 9% of the Liquidation Preference per share per annum during the
period commencing July 1, 1999 through December 31, 1999; and
(vi) 10% of the Liquidation Preference per share per annum commencing
January 1, 2000 and thereafter until the Series B Preferred Stock shall have
been redeemed.
(c) Any unpaid dividends (whether declared or accruing) on Series B
Preferred Stock will bear interest at the applicable Dividend Rate commencing
from the date that such dividend has accrued up to and including the date on
which such dividend is paid. Holders of Series B Preferred Stock will not
receive any dividends other than the preferred dividends provided for in this
Section 1, and will not participate with the Common Stock in the payment of
dividends.
(d) Subject to the provisions of this Section 1(d), the corporation will
use its commercially reasonable efforts in good faith to declare and pay
accrued dividends on the shares of Series B Preferred Stock as set forth in
this Section 1. The corporation shall only declare or pay any dividends on the
Series B Preferred Stock out of funds legally available therefor and to the
extent that the corporation is permitted to declare or pay such
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dividends under the terms and conditions of its senior indebtedness pursuant to
the terms of the credit agreement among the corporation, the lenders executing
a signature thereto and NationsBank, National Association, as Agent, entered
into in connection with the corporation becoming a separate public company as a
result of a spinoff by BEC Group, Inc., as may be amended from time to time
(the "Senior Indebtedness").
SECTION 2. Rights on Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the corporation (any such
event being hereinafter referred to as a "Liquidation"), before any
distribution of assets of the corporation shall be made to or set apart for the
holders of Common Stock or Series A Stock, the holders of Series B Preferred
Stock shall be entitled to receive payment out of such assets of the
corporation in an amount equal to Five Thousand Five Hundred French Francs
(FF5,500) per share of Series B Preferred Stock (such amount being referred to
as the "Liquidation Preference" for the Series B Preferred Stock), plus any
accumulated and unpaid dividends thereon (whether or not earned or declared) on
the Series B Preferred Stock. If the assets of the corporation available for
distribution to the holders of Series B Preferred Stock shall not be sufficient
to make in full the payment herein required, such assets shall be distributed
pro-rata among the holders of Series B Preferred Stock based on the aggregate
Liquidation Preference of the shares of Series B Preferred Stock held by each
such holder. If the assets of the corporation available for distribution to the
holders of Series B Preferred Stock shall exceed the distribution required to
be made to the holders of Series B Preferred Stock as herein described, such
excess assets shall be distributed pro-rata among the holders of Common Stock
and the holders of Series B Preferred stock shall not participate in any such
excess distribution.
SECTION 3. Conversion. The holders of any share of Series B Preferred
Stock shall not have the right to convert any such shares into shares of Common
Stock of the corporation.
Section 4. Redemption.
(a) Optional Redemption. (i) Cash Redemption. Following notice pursuant
to Section 4(c)(ii) hereof given to all holders of Series B Preferred Stock
during the period (the "Redemption Period") so long as shares of Series B
Preferred Stock are outstanding, the corporation may at the option of the Board
of Directors of the corporation, redeem, out of funds legally available
therefor, in whole or in part the shares of Series B Preferred Stock. The
corporation shall effect any such redemption
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by paying in cash (the "Cash Redemption") for each such share to be redeemed an
amount equal to the Liquidation Preference, per share, plus any accumulated and
unpaid dividends thereon (whether or not earned or declared) on such shares to
the Redemption Date (as hereinafter defined) (such total amounts are
hereinafter referred to as the "Redemption Price").
(ii) Debt Redemption. Following notice pursuant to Section
4(c)(iii) below hereof given to all holders of Series B Preferred Stock during
the period (the "Debt Redemption Period") commencing January 1, 1998 and so
long as shares of Series B Preferred Stock are outstanding, the corporation
may, at the option of the Board of Directors of the corporation, redeem in
whole or in part the shares of Series B Preferred Stock. The corporation shall
effect any such redemption (the "Debt Redemption") by issuing to the holders of
the Series B Preferred Stock a subordinated debt instrument (the "Subordinated
Debt"). Except as otherwise provided in Section 4(e) below, the Subordinated
Debt shall contain substantially the same powers, designations, preferences and
relative, participating, or other rights, and qualifications, limitations and
restrictions as the Series B Preferred Stock including, but not limited to,
mandatory redemption and Cash Redemption rights, Liquidation rights and the
protections provided in Section 6 hereof.
(b) Mandatory Redemption. Notwithstanding anything contained herein
to the contrary, the corporation shall redeem, out of funds legally available
therefor, the Series B Preferred Stock (if not previously redeemed) pursuant to
the terms of Section 4 herein following notice pursuant to Section 4(c)(ii)
hereof given to all holders of Series B Preferred Stock, upon the earlier
occurrence of (i) on the earlier of (A) the third anniversary date from the
issuance of the Series B Preferred Stock if redemption is then permitted under
the terms and conditions of the corporation's Senior Indebtedness, (B) such
later date as redemption is first permitted under the terms and conditions of
the corporation's Senior Indebtedness; or (ii) the closing of any equity
financing by the corporation (a "Public Offering"), but only to the extent of
the net cash proceeds of such financing by the corporation and no more than the
Redemption Price of the then outstanding shares of Series B Preferred Stock,
and provided further, that such redemption would not violate any of the terms
and conditions of the corporation's Senior Indebtedness; or (iii) a Change of
Control (as defined in the agreements relating to the corporation's Senior
Indebtedness), which has resulted in the corporation's payment in full of all
amounts due with respect to
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its Senior Indebtedness. Subject to the provisions of this Section 4(b), the
corporation will use its commercially reasonable efforts in good faith to
redeem the Series B Preferred Stock when required to be redeemed pursuant to
the terms of this Section 4(b). The corporation shall effect any such Cash
Redemption by paying in cash for each such share to be redeemed an amount equal
to the Liquidation Preference, per share, plus any accumulated and unpaid
dividends thereon (whether or not earned or declared) on such shares to the
Redemption Date. The corporation shall use its commercially reasonable efforts
to close a Public Offering during 1998.
(c) Redemption Procedures. (i) General. In the event of any
redemption pursuant hereto, the corporation shall effect such redemption as
follows. The number of shares subject to redemption shall be allocated pro rata
among the holders of outstanding shares of Series B Preferred Stock based upon
the number of shares held by each such holder.
(ii) Cash Redemption Procedures. During the Redemption Period,
and at least 10 days prior to the date fixed for any redemption of Series B
Preferred Stock pursuant to Section 4(a)(i) above (the "Redemption Date"),
written notice shall be sent to each holder of record of Series B Preferred
Stock to be redeemed, notifying such holder of the redemption to be effected,
specifying the Redemption Date, the Redemption Price, the place at which
payment may be obtained and calling upon such holder to surrender to the
corporation, in the manner and at the place designated, his certificate or
certificates representing the shares to be redeemed (the "Redemption Notice").
On or after the Redemption Date, each holder of Series B Preferred Stock to be
redeemed shall surrender to the corporation the certificate or certificates
representing such shares, in the manner and at the place designated in the
Redemption Notice, and thereupon the Redemption Price of such shares shall be
payable to the order of the person whose name appears on such certificate or
certificates as the owner thereof and each surrendered certificate shall be
cancelled. In the event less than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares.
(iii) Debt Redemption Procedures. During the Debt Redemption
Period, and at least 10 days prior to the date fixed for any redemption of
Series B Preferred Stock pursuant to Section 4(a)(ii) above (the "Debt
Redemption Date"), written notice shall be sent to each holder of record of
Series B Preferred Stock, notifying such holder of the redemption to be
effected, specifying
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the Debt Redemption Date, and calling upon such holder to surrender to the
corporation, in the manner and at the place designated, his certificate or
certificates representing the shares to be redeemed (the "Debt Redemption
Notice"). On or after the Debt Redemption Date, each holder of Series B
Preferred Stock to be redeemed shall surrender to the corporation the
certificate or certificates representing such shares, in the manner and at the
place designated in the Debt Redemption Notice, and thereupon the Subordinated
Debt instrument shall be delivered to the person whose name appears on such
certificate or certificates as the owner thereof and each surrendered
certificate shall be cancelled. In the event less than all the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares.
(iv) From and after the close of business on the Redemption Date
or the Debt Redemption Date, as the case may be, unless there shall have been a
default in payment of the Redemption Price or issuance of the Subordinated Debt
instrument, as the case may be, all rights of the holders of the shares of
Series B Preferred Stock designated for redemption as holders of Series B
Preferred Stock (except the right to receive the Redemption Price without
interest or the Subordinated Debt instrument, as the case may be, upon
surrender of their certificate or certificates) shall cease with respect to
such shares, and such shares shall not thereafter be transferred on the books
of the corporation or be deemed to be outstanding for any purpose whatsoever.
(d) Status of Redeemed or Purchased Shares. Any shares of the Series
B Preferred Stock at any time purchased, redeemed or otherwise acquired by the
corporation shall not be reissued and shall be retired.
(e) Gross-Up Factor. In the event of any Debt Redemption pursuant to
Section 4(a)(ii) above, the interest rates from time to time payable on such
Subordinated Debt shall be equal to the Dividend Rates in effect from time to
time per Section 1(b) increased by a factor based upon the amount directly
attributable to the corporation's tax savings expected to be received from the
corporation's deduction of interest payments in respect of the Subordinated
Debt in computing the corporation's taxable income in respect of each year that
the Subordinated Debt is outstanding (the "Gross Up Factor"). The
determinations required to be made under this Section 4(e), including whether
and when a Gross-Up Factor is required and the amount of such Gross-Up Factor
and the marginal combined Federal, state and local income tax rate and other
assumptions to be utilized in arriving at such determination, shall
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be made by the corporation's independent auditors (the "Accounting Firm"),
which shall provide detailed supporting calculations both to the corporation
and the holders of the Subordinated Debt within ninety (90) days after the
corporation's year end. All fees and expenses of the Accounting Firm shall be
born solely by the corporation. Any Gross-Up Factor, as determined pursuant to
this Section 4(e), shall accrue for the benefit to the holders of the
Subordinated Debt as of the relevant dates set forth in such Section 1(b) and
all accrued interest and Gross Up Factor shall accumulate and be paid in
accordance with Section 1, including (without limitation) the provisions of
Section 1(c). Any determination by the Accounting Firm shall be binding upon
the corporation and the holders of the Subordinated Debt.
Section 5. Voting Rights. The holders of the Series B Preferred Stock
shall not be entitled to vote except as to matters in respect of which they
shall at the time be indefeasibly vested by statute with such right.
Section 6. Protective Provisions. (a) So long as any shares of Series
B Preferred Stock are outstanding, the corporation shall not, without first
obtaining the approval (by vote or written consent, as provided by law) of the
holders of at least 90% of the then outstanding shares of Series B Preferred
Stock:
(i) alter or change the rights, preferences or privileges of the
shares of Series B Preferred Stock so as to affect adversely the shares of such
series;
(ii) declare or pay a dividend or otherwise make a distribution
on any security issued by the corporation which is junior to the Series B
Preferred Stock including the Series A Stock with respect to dividends or upon
liquidation (other than dividends or distributions payable in Common Stock or
other securities or rights convertible into or entitling the holder thereof to
receive, directly or indirectly, additional shares of Common Stock of the
corporation).
(iii) the corporation shall not enter into any agreements that
prohibit the corporation from declaring or paying dividends hereunder or
redeeming the Series B Preferred Stock other than the Senior Indebtedness
and any other agreements in effect as of the date of issuance of the Series B
Preferred Stock.
(iv) the corporation shall not issue any class or series of
Preferred Stock that ranks Senior to or pari
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passu with the Series B Preferred Stock with respect to dividend, redemption or
liquidation rights.
(b) in the event that the corporation does not redeem the Series B
Preferred Stock for cash in full on or before the third anniversary date from
the issuance of the Series B Preferred Stock, the corporation shall be
prohibited from issuing or incurring any Indebtedness for Money Borrowed (as
defined below) which ranks senior to or pari passu with the Series B Preferred
Stock, other than senior bank indebtedness (including Senior Indebtedness) not
to exceed $30 million in theaggregate, until the corporation redeems for cash
in full the Series B Preferred Stock. For purposes of this Section 6(iv),
Indebtedness for Money Borrowed shall mean all indebtedness in respect of money
borrowed, evidenced by a promissory note, bond, debenture or similar written
obligation for the payment of money, other than trade payables, capital leases,
the deferred purchase price of any property or asset, conditional sales or
similar title retention agreements incurred in the ordinary course of business.
SECTION 7. Transferability. The holders of shares of the Series B
Preferred Stock are entitled to transfer shares of the Series B Preferred
Stock, subject to strict compliance with all applicable laws.
SECTION 8. Priority. The Series B Preferred Stock ranks senior to the
Series A Stock with respect to dividend, redemption and liquidation rights and
otherwise.
IN WITNESS WHEREOF, Bolle Inc. has caused this Certificate of
Designations of the Series B Preferred Stock to be signed by Peter H. Trembath,
its Secretary, this 2nd day of March, 1998.
BOLLE INC.
By: /s/ Peter H. Trembath
-----------------------------
Name: Peter H. Trembath
Title: Secretary
<PAGE>
EXHIBIT 3
BOLLE INC.
Incorporated under the Laws of
the State of Delaware
BY-LAWS
ARTICLE I
OFFICES
The registered office of Bolle Inc. (the "Corporation") in Delaware shall
be at 1013 Centre Road in the City of Wilmington, County of New Castle, in the
State of Delaware, and Corporation Service Company shall be the registered
agent of this Corporation in charge thereof. The Corporation may also have such
other offices at such other places, within or without the State of Delaware, as
the Board of Directors may from time to time designate or the business of the
Corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Subject to change by resolution of the Board
of Directors, the annual meeting of the Stockholders of the Corporation for the
purpose of electing directors and for the transaction of such other business as
may be brought before the meeting shall be held on the 30th day of June of each
year, or as soon after such date as may be practicable. If said day be a legal
holiday, said meeting shall be held on the next succeeding business day. The
meeting may be held at such time and such place within or without the State of
Delaware as shall be fixed by the Board of Directors and stated in the notice
of the meeting. At the annual meeting any business may be transacted and any
corporate action may be taken, whether stated in the notice of meeting or not,
except as otherwise expressly provided by statute or the Certificate of
Incorporation.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders for
any purpose may be called at any time by a majority of the Board of Directors,
by the Chairman of the Board, or by the President, and shall be called by the
Chairman of the Board or by the President at the request of the holders of a
majority of the outstanding shares of capital stock entitled to vote. Special
meetings shall be held at such place or places within or without the State of
Delaware as shall from time to time be designated by the Board of Directors and
stated in the notice of such meeting. At a special meeting no business shall be
transacted and no corporate action shall be taken other than that stated in the
notice of the meeting.
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SECTION 3. NOTICE OF MEETINGS. Except as otherwise expressly required
by law or the Certificate of Incorporation of the Corporation, written notice
stating the place and time of the meeting and the purpose or purposes of such
meeting, shall be given by the Secretary to each stockholder entitled to vote
thereat, by personal delivery or by mailing the same to him at his address as
it appears on the records of the Corporation not less than ten (10) nor more
than sixty (60) days prior to the meeting. 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; and if any stockholder shall, in
person or by attorney thereunto duly authorized, waive notice of any meeting,
in writing or by telephone or facsimile, whether before or after such meeting
be held, the notice thereof need not be given to him. The attendance of any
stockholder at a meeting, in person or by proxy, without protesting prior to
the conclusion of the meeting the lack of notice of such meeting, shall
constitute a waiver of notice by him. Notice of any adjourned meeting of
stockholders need not be given except as provided in Section 5 of this Article
II.
SECTION 4. QUORUM. Any number of stockholders, together holding at
least a majority of the capital stock of the Corporation issued and outstanding
and entitled to vote, who shall be present in person or represented by proxy at
any meeting duly called, shall constitute a quorum for the transaction of all
business, except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws. Where a separate vote by a class or classes
is required, a majority of the outstanding shares of such class or classes,
present in person or represented by proxy, shall constitute a quorum entitled
to take action with respect to that vote on that matter and the affirmative
vote of the majority of shares of such class or classes present in person or
represented by proxy at the meeting shall be the act of such class.
SECTION 5. ADJOURNMENT. At any meeting of stockholders, whether or
not there shall be a quorum present, the holders of a majority of the shares
voting at the meeting, whether present in person at the meeting or represented
by proxy at the meeting, may adjourn the meeting from time to time. Except as
provided by law, notice of such adjourned meeting need not be given otherwise
than by announcement of the time and place of such adjourned meeting at the
meeting at which the adjournment is taken. At any adjourned meeting at which a
quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally called.
SECTION 6. CONDUCT. The Chairman of the Board or, in his absence or
non-election, the Vice Chairman or, in his absence or non-election, the
President or, in the absence of both the foregoing officers, a Vice President
shall call meetings of the stockholders to order and shall act as Chairman of
such meetings. In the absence of all of the foregoing officers, holders of a
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majority in number of the shares of the capital stock of the Corporation
present in person or represented by proxy and entitled to vote at such meeting
shall elect a Chairman, who may be the Secretary of the Corporation. To the
maximum extent permitted by the law, such presiding person shall have the power
to set procedural rules, including but not limited to rules respecting the time
allotted to allow shareholders to speak, governing all aspects of the conduct
of such meetings. The Secretary of the Corporation shall act as secretary of
all meetings of the stockholders; but in the absence of the Secretary, the
Chairman may appoint any person to act as secretary of the meeting.
SECTION 7. VOTING. Each stockholder shall, except as otherwise
provided by law or by the Certificate of Incorporation, at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of
capital stock entitled to vote held by such stockholder, but no proxy shall be
voted on after three years from its date, unless said proxy provides for a
longer period. Directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy at the meeting and entitled to
vote on the election of directors. Any other action shall be authorized by a
vote of a majority of the votes cast except where the General Corporation Law
prescribes a different percentage of votes and/or a different exercise of
voting power, and except as may be otherwise prescribed by the provisions of
the Certificate of Incorporation and these By-Laws.
SECTION 8. STOCKHOLDERS LIST. The officer of the Corporation who has
charge of the stock ledger of the Corporation shall prepare and make a complete
list of the stockholders entitled to vote at any meeting of stockholders,
arranged in alphabetical order with the address of each and the number of
shares held by each, which shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole thereof and may be inspected by any stockholder
who is present. The stock ledger of the Corporation shall be the only evidence
as to who are the stockholders entitled to examine the ledger, the list
required by this Section 8 of Article II or the books of the Corporation, or to
vote in person or by proxy at any meeting of stockholders.
SECTION 9. ADDRESS OF STOCKHOLDERS. Each stockholder shall designate
to the Secretary of the Corporation an address at which notices of meetings and
all other corporate notices may be served upon or mailed to him, and if any
stockholder shall fail to designate such address, corporate notices may be
served upon
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him by mail directed to him at his last known post office address.
SECTION 10. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
In order that the Corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, to
express consent to corporate action in writing without a meeting, to receive
payment of any dividend or other distribution or allotment of any rights, to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date which shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting, nor more than sixty days (60)
prior to any other action, and only such stockholders as shall be stockholders
of record on the date so fixed shall be entitled to such notice of and to vote
at such meeting and any adjournment thereof, to express consent to any such
corporate action, to receive payment of such dividend or to receive such
allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid. If the stock transfer books are to be
closed for the purpose of determining stockholders entitled to notice of or to
vote at a meeting in the case of a merger or consolidation, the books shall be
closed at least twenty days before such meeting.
SECTION 11. INSPECTORS OF ELECTION. The Board of Directors may at any
time appoint one or more persons to serve as Inspectors of Election at the next
succeeding annual meeting of stockholders or at any other meeting or meetings
and the Board of Directors may at any time fill any vacancy in the office of
Inspector. If the Board of Directors fails to appoint Inspectors or this office
becomes vacant and is not filled by the Board of Directors, the Chairman of any
meeting of the stockholders may appoint one or more temporary Inspectors for
such meeting. All proxies shall be filed with the Inspectors for such meeting.
All proxies shall be filed with the Inspectors of Election of the meeting
before being voted upon.
SECTION 12. ACTION BY CONSENT. Unless otherwise provided in the
Certificate of Incorporation or restricted by the rules of the National
Association of Securities Dealers, Inc., any action required to be taken at any
meeting of stockholders, or any action which may be taken at any meeting of
such stockholders, 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 the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the
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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.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have
not consented in writing. Action taken pursuant to this paragraph shall be
subject to the provisions of Section 228 of the General Corporation Law.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The property, affairs and business of the
Corporation shall be managed by or under the direction of the Board of
Directors. Any business may be transacted and any corporate action may be taken
at any regular or special meeting of the Board of Directors at which a quorum
shall be present, whether such business or proposed action be stated in the
notice of such meeting or not, unless special notice of such business or
proposed action shall be required by statute. The Board of Directors shall have
the power and authority to authorize the officers of the Corporation to enter
into such agreements as the Board of Directors shall deem appropriate including
the power and authority to authorize the seal of the Corporation to be affixed
to all papers that may require it.
SECTION 2. NUMBER, QUALIFICATION AND TERM OF OFFICE. The number of
directors shall be at least two and not more than twelve, except as may
otherwise be provided in the Certificate of Incorporation of the Corporation.
Directors need not be stockholders. The directors shall be elected by the
stockholders at the annual meeting of stockholders. Each director chosen at an
annual meeting shall, except as hereinafter provided, hold office until the
next annual election and until his successor shall have been elected and shall
qualify, or until his death or until he shall resign or shall have been removed
in the manner hereinafter provided. The Chairman of the Board, if one be
elected, and the Vice Chairman of the Board, if one be elected, shall be chosen
from among the directors. The number of directors may be increased or decreased
by action of the directors.
SECTION 3. QUORUM AND MANNER OF ACTION. Except as otherwise provided
by law or these By-Laws, a majority of the entire Board of Directors shall be
required to constitute a quorum for the transaction of business at any meeting.
At any meeting at which a quorum is present, the vote of a majority of the
members present shall be the act of the Board of Directors unless the act of a
greater number is specifically required by law or by the Certificate of
Incorporation or these By-Laws. In the absence of a quorum, a majority of the
directors present may adjourn any meeting from time to time until a quorum be
had.
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Notice of any adjourned meeting need not be given. The directors shall act
only as a board and individual directors shall have no power as such.
SECTION 4. NOTICE AND PLACE OF MEETINGS. The Board of Directors may
hold its meetings, have one or more offices and keep the books and records of
the Corporation at such place or places within or without the State of Delaware
as the Board may from time to time determine or as shall be specified or fixed
in the respective notices or waivers of notice thereof. Notice of any special
meeting, and, except as the Board of Directors may otherwise determine by
resolution, notice of any regular meeting also, shall be mailed to each
director addressed to him at his residence or usual place of business at least
three days before the day on which the meeting is to be held, or if delivered
to him personally, or transmitted by telecopies, overnight mail, telegraph,
cable, wireless, telephone or orally, not later than twenty-four hours before
the day on which the meeting is to be held. No notice of the annual meeting of
the Board of Directors shall be required if it is held immediately after the
annual meeting of the stockholders and if a quorum is present.
SECTION 5. REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held for the election of officers and the transaction of
other business as soon as practicable after each annual meeting of
stockholders, and other regular meetings of said Board shall be held at such
times and places as said Board shall direct.
SECTION 6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors or by the
President.
SECTION 7. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board or of any committee thereof may be taken
without a meeting, if a written consent thereto 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 committee.
SECTION 8. CONDUCT. At each meeting of the Board of Directors, the
Chairman of the Board or in his absence, the Vice Chairman of the Board, or in
his absence, the President, or in his absence or non-election, a director
chosen by a majority of the directors present shall act as Chairman. The
Secretary or, in his absence, an Assistant Secretary or, in the absence of both
the Secretary and an Assistant Secretary, any person appointed by the Chairman
shall act as Secretary of the meeting
SECTION 9. RESIGNATIONS. Any director of the Corporation may resign
at any time by giving written notice to the Board of Directors, the President
or the Secretary of the Corporation. The resignation of any director shall take
effect at the time specified therein; and unless otherwise specified
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therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 10. REMOVAL OF DIRECTORS. Except as otherwise provided by
law, any director may be removed with or without cause, by the affirmative vote
of a majority of the shares of capital stock entitled to vote, either by
written consent or by consents or at any special meeting of the stockholders
called for that purpose, and the office of such director shall forthwith become
vacant.
SECTION 11. VACANCIES. Any vacancy in the Board of Directors caused
by death, resignation, removal, disqualification, an increase in the number of
directors or any other cause shall be filled by a majority of the directors
then in office, though less than a quorum, or by a sole remaining director,
provided, however, that the stockholders removing any director may at the same
meeting fill the vacancy caused by such removal, and provided, further, that if
the directors fail to fill any such vacancy, the stockholders may at any
special meeting called for that purpose fill such vacancy. Directors chosen in
accordance with this Section 11 of Article III shall hold office until the next
annual election of directors and until their successors are duly elected and
qualified, or until their earlier resignation or removal.
SECTION 12. COMPENSATION OF DIRECTORS. The directors shall not
receive any stated salary for their services as directors. However, directors
may receive such reasonable sums for their services and expenses as may be
directed by resolution of the Board; provided that nothing herein contained
shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for their services and
expenses.
SECTION 13. PARTICIPATION IN MEETINGS. Members of the Board of
Directors or of any committee may participate in any meeting of the Board or
committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence
in person at such meeting.
SECTION 14. INTERESTED DIRECTORS. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted by
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such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts to
his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board
of Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
COMMITTEES
SECTION 1. EXECUTIVE COMMITTEE. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate two or more of
their number to constitute an Executive Committee to hold office at the
pleasure of the Board, which Committee shall, during the intervals between
meetings of the Board of Directors, have and exercise all of the powers of the
Board of Directors in the management of the business and affairs of the
Corporation, subject only to such restrictions or limitations as the Board of
Directors may from time to time specify, or as limited by the Delaware
Corporation Law, and shall have power to authorize the seal of the Corporation
to be affixed to all papers which may require it.
Any member of the Executive Committee may be removed at any time, with or
without cause, by a resolution of a majority of the whole Board of Directors.
Any person ceasing to be a director shall ipso facto cease to be a member of
the Executive Committee.
Any vacancy in the Executive Committee occurring from any cause whatsoever may
be filled from among the directors by a resolution of a majority of the whole
Board of Directors.
SECTION 2. AUDIT COMMITTEE. The Board of Directors shall, by
resolution passed by a majority of the whole Board, designate two or more of
their number to constitute an Audit Committee.
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Any member of the Audit Committee may be removed at any time, with or without
cause, by a resolution of a majority of the whole Board of Directors.
Any person ceasing to be a director shall ipso facto cease to be a member of
the Executive Committee.
Any vacancy in the Audit Committee occurring from any cause whatsoever may be
filled from among the directors by a resolution of a majority of the whole
Board of Directors.
SECTION 3. OTHER COMMITTEES. Other committees, whose members need not
be directors, may be appointed by the Board of Directors or the Executive
Committee, which committees shall hold office for such time and have such
powers and perform such duties as may from time to time be assigned to them by
the Board of Directors or the Executive Committee.
Any member of such a committee may be removed at any time, with or without
cause, by the Board of Directors or the Executive Committee.
Any vacancy in a committee occurring from any cause whatsoever may be filled by
the Board of Directors or the Executive Committee.
SECTION 4. RESIGNATION. Any member of a committee may resign at any
time. Such resignation shall be made in writing and shall take effect at the
time specified therein, or, if no time be specified, at the time of its receipt
by the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective unless so specified therein.
SECTION 5. QUORUM. A majority of the members of a committee shall
constitute a quorum. The act of a majority of the members of a committee
present at any meeting at which a quorum is present shall be the act of such
committee. The members of a committee shall act only as a committee, and the
individual members thereof shall not have any powers as such.
SECTION 6. RECORD OF PROCEEDINGS, ETC. Each committee shall keep a
record of its acts and proceedings, and shall report the same to the Board of
Directors when and as required by the Board of Directors.
SECTION 7. ORGANIZATION, MEETINGS, NOTICES, ETC. A committee may hold
its meetings at the principal office of the Corporation, or at any other place
which a majority of the committee may at any time agree upon. Each committee
may make such rules as it may deem expedient for the regulation and carrying on
of its meetings and proceedings. Unless otherwise ordered by the Executive
Committee, any notice of a meeting of such committee may be given by the
Secretary of the Corporation or by the chairman of the committee and shall be
sufficiently given if mailed to each member at his residence or usual place of
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business at least two days before the day on which the meeting is to be held,
or if sent to him by telegraph, cable, wireless, telephone or orally not later
than twenty-four hours before the time at which the meeting is to be held.
SECTION 8. COMPENSATION. The members of any committee shall be
entitled to such compensation as may be allowed them by resolution of the Board
of Directors.
ARTICLE V
OFFICERS
SECTION 1. NUMBER. The officers of the Corporation shall be a
Chairman of the Board, a Vice Chairman of the Board, a Chief Executive Officer,
a Chief Financial Officer and a Secretary. In addition, the Board may elect one
or more Vice Presidents, Treasurers, Assistant Treasurers, Assistant
Secretaries and such other officers as may be appointed in accordance with the
provisions of Section 3 of this Article V. Any number of offices may be held by
the same person, as the directors may determine.
SECTION 2. ELECTION, TERM OF OFFICE AND QUALIFICATIONS. The officers,
except as provided in Section 3 of this Article V, shall be elected annually by
the Board of Directors at their first meeting after each annual meeting of the
stockholders of the Corporation. Each officer, except such officers as may be
appointed in accordance with the provisions of Section 3 of this Article V,
shall hold office until his successor shall have been duly elected and
qualified, or until his death or until he shall have resigned or shall have
become disqualified or shall have been removed in the manner hereinafter
provided.
SECTION 3. SUBORDINATE OFFICER. The Board of Directors or the Chief
Executive Officer may from time to time appoint such other officers (including,
without limitation, a Treasurer, Assistant Treasurers, or Assistant
Secretaries), and such agents and employees of the Corporation as may be deemed
necessary or desirable. Such officers, agents and employees shall hold office
for such period and upon such terms and conditions, have such authority and
perform such duties as provided in these By-Laws or as the Board of Directors
or the Chief Executive Officer may from time to time prescribe. The Board of
Directors or the Chief Executive Officer may from time to time authorize any
officer to appoint and remove agents and employees and to prescribe the powers
and duties thereof.
SECTION 4. REMOVAL. Any officer of the Corporation may be removed,
either with or without cause, by the affirmative vote of a majority of the
Board of Directors.
SECTION 5. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors, the
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Chief Executive Officer or the Secretary. Any such resignation shall take
effect at the date of receipt of such notice or at any later time specified
therein; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 6. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed in these By-Laws for
regular election or appointment to such office.
SECTION 7. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be
the Chief Executive Officer of the Corporation and shall preside, if present,
at all meetings of the stockholders and shall preside, if present, at all
meetings of the stockholders and at all meetings of the Board of Directors and
shall perform such other duties and have such other powers as from time to time
may be assigned by the Board of Directors or prescribed by these By-Laws.
SECTION 8. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board
shall, at the request of the Chairman of the Board or in his absence or
disability, perform the duties of the Chairman of the Board and when so acting
shall, have all the powers of, and be subject to all restrictions upon, the
Chairman of the Board and shall perform such other duties and have such other
powers as from time to time may be assigned to him by the Chairman of the Board
or prescribed by these By-Laws.
SECTION 9. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
have general direction of the affairs of the Corporation and general
supervision over its several officers, subject, however, to the control of the
Board of Directors, and in general shall perform such duties and, subject to
the other provisions of these By-Laws, have such powers incident to the office
of Chief Executive Officer and perform such other duties and have such other
powers as from time to time may be assigned to him by the Board of Directors.
SECTION 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall be responsible to the Board of Directors and the Chief Executive Officer
for all financial control and internal audit of the Corporation and its
subsidiaries. He shall perform such other duties as may be assigned to him by
the Board of Directors, the Chief Executive Officer or prescribed by these
By-Laws, and shall be responsible to a designated Vice President only for the
routine administrative matters pertaining to the duties of his office. The
Chief Financial Officer shall, in the absence of an appointed Treasurer,
perform the duties and functions of the Treasurer.
SECTION 11. VICE PRESIDENT. A Vice President may sign with the Chief
Financial Officer or the Secretary or an Assistant
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Secretary certificates of stock of the Corporation and shall have such other
powers and shall perform such other duties as from time to time may be assigned
to him by the Board of Directors or the Chief Executive Officer or prescribed
by these By-Laws.
SECTION 12. SECRETARY. The Secretary shall keep or cause to be kept,
in books provided for the purpose, the minutes of the meetings of the
stockholders, the Board of Directors and any committee when so required, shall
see that all notices are duly given in accordance with the provisions of these
By-Laws and as required by law, shall be custodian of the records and the seal
of the Corporation and see that the seal is affixed to all documents, the
execution of which on behalf of the Corporation under its seal is duly
authorized in accordance with the provisions of these By-Laws, shall keep or
cause to be kept a register of the post office address of each stockholder, may
sign with the Chairman of the Board, the Chief Executive Officer or any Vice
President certificates of stock of the Corporation, and in general shall
perform such duties and have such powers incident to the office of Secretary
and shall perform such other duties and have such other powers as from time to
time may be assigned to him by the Board of Directors or the Chief Executive
Officer or prescribed by these By-Laws.
SECTION 13. ASSISTANT SECRETARY. Any Assistant Secretary shall, at
the request of the Secretary or in his absence or disability, 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 and shall perform such
other duties and have such other powers as from time to time may be assigned to
him by the Chief Executive Officer, the Secretary or the Board of Directors or
prescribed by these By-Laws.
SECTION 14. TREASURER. The Treasurer, if any, shall have charge and
custody of, and be responsible for, all funds and securities of the
Corporation, and deposit all such funds in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of these By-Laws, shall at all reasonable times exhibit his
books of account and records, and cause to be exhibited the books of account
and records of any corporation controlled by the Corporation to any of the
directors of the Corporation upon application during business hours at the
office of the Corporation, or such other corporation, where such books and
records are kept, shall, if called upon to do so, receive and give receipts for
monies due and payable to the Corporation from any source whatsoever, may sign
with the Chairman of the Board, the Chief Executive Officer or any Vice
President certificates of stock of the Corporation, and in general shall
perform such duties and have such powers incident to the office of Treasurer
and such other duties and have such other powers as from time to time may be
assigned to him by the Board of Directors or the Chief Executive Officer or
prescribed by these By-Laws.
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SECTION 15. ASSISTANT TREASURER. Any Assistant Treasurer shall, at
the request of the Treasurer or in his absence or disability, 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 and shall perform such
duties and have such other powers as from time to time may be assigned to him
by the Chief Executive Officer, the Treasurer or the Board of Directors or
prescribed by these By-Laws.
SECTION 16. OTHER OFFICERS. Such officers as the Board of Directors
may choose shall perform such duties and have such powers as may be appropriate
to such officer or as from time to time may be assigned to them by the Board of
Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their
respective duties and powers.
SECTION 17. COMPENSATION. The compensation of the officers shall be
fixed from time to time by the Board of Directors, or by any committee upon
whom power in that regard may be conferred by the Board of Directors. No
officer shall be prevented from receiving such compensation by reason of the
fact that he is also a director of the Corporation.
SECTION 18. AUTHORITY OF OFFICERS. The officers of the Corporation
shall have such duties and authority as set forth in these By-Laws and as shall
be determined from time to time by the Board of Directors.
ARTICLE VI.
CAPITAL STOCK
SECTION 1. ISSUE OF CERTIFICATES OF STOCK. Certificates for shares of
the capital stock of the Corporation shall be in such form not inconsistent
with law as shall be approved by the Board of Directors. They shall be numbered
in order of their issue and shall be signed by the Chairman of the Board or the
Chief Executive Officer or any Vice President and the Treasurer or any
Assistant Treasurer, or the Secretary or any Assistant Secretary of the
Corporation, and the seal of the Corporation or a facsimile thereof shall be
impressed or affixed or reproduced thereon, provided, however, that where such
certificates are signed by a transfer agent or an assistant transfer agent or
by a transfer clerk acting on behalf of the Corporation and a registrar, the
signature of any such Chairman of the Board, Chief Executive Officer, Vice
President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may
be facsimile. In case any officer, 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 or officers 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
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Corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature shall have
been used thereon had not ceased to be such officer or officers of the
Corporation.
SECTION 2. UNCERTIFIED SHARES. Subject to any conditions imposed by
the Delaware General Corporation Law, the Board of Directors of the Corporation
may provide by resolution or resolutions that some or all of any or all classes
or series of the stock of the Corporation shall be uncertified shares. Within a
reasonable time after the issuance or transfer of any uncertified shares, the
Corporation shall send to the registered owner thereof any written notice
prescribed by the General Corporation Law.
SECTION 3. FRACTIONAL SHARE INTERESTS. The Corporation may, but shall
not be required to, issue fractions of a share. If the Corporation does not
issue fractions of a share, it shall (i) arrange for the disposition of
fractional interests by those entitled thereto, (2) pay in cash the fair value
of fractions of a share as of the time when those entitled to receive such
fractions are determined, or (3) issue scrip or warrants in registered form
(either represented by a certificate or uncertificated) or bearer form
(represented by a certificate) which shall entitle the holder to receive a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share or an uncertificated fractional share shall,
but scrip or warrants shall not unless otherwise provided therein, entitle the
holder to exercise voting rights, to receive dividends thereon, and to
participate in any of the assets of the corporation in the event of
liquidation. The Board of Directors may cause scrip or warrants to be issued
subject to the conditions that they shall become void if not exchanged for
certificates representing the full shares or uncertificated full shares before
a specified date, or subject to the conditions that the shares for which scrip
or warrants are exchangeable may be sold by the Corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or subject to any
other conditions which the Board of Directors may impose.
SECTION 4. REGISTRATION AND TRANSFER OF STOCK. The shares of capital
stock of the Corporation shall be issued in registered form. The name of each
person owning a share of the capital stock of the Corporation shall be entered
on the books of the Corporation together with the number of shares held by him,
the numbers of the certificates covering such shares and the dates of issue of
such certificates. The shares of stock of the Corporation shall be transferable
on the books of the Corporation by the holders thereof in person, or by their
duly authorized attorneys or legal representatives, on surrender and
cancellation of certificates for a like number of shares, accompanied by an
assignment or power of transfer endorsed thereon or attached thereto, duly
executed, and with such proof of the authenticity
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of the signature as the Corporation or its agents may reasonably require. A
record shall be made of each transfer. A person in whose name shares of stock
stand on the books of the Corporation shall be deemed the owner thereof as
regards the Corporation, and the Corporation shall not be bound to recognize
any equitable or other claim to or interest in such shares on the part of any
other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the State of Delaware.
SECTION 5. LOST, STOLEN AND DESTROYED CERTIFICATES. The holder of any
stock issued by the Corporation shall immediately notify the Corporation of any
loss, theft, or destruction of the certificate therefor or the failure to
receive a certificate of stock issued by the Corporation, and the Board of
Directors or the Secretary of the Corporation may, in its or his discretion,
cause to be issued to such holder a new certificate or certificates of stock,
upon compliance with such rules, regulations and/or procedures as may be
prescribed or have been prescribed by the Board of Directors with respect to
the issuance of new certificates in lieu of such lost, stolen or destroyed
certificate or certificates of stock issued by the Corporation which are not
received. The Board of Directors or the Secretary of the Corporation may, in
its or his discretion, require the owner of the lost, stolen or destroyed
certificate, or his legal representatives, to give the Corporation a bond, in
such sum not exceeding double the value of the stock and with such surety or
sureties as they may require, to indemnify it against any claim that may be
made against it by reason of the issue of such new certificate and against all
other liability in the premises, or may remit such owner to such remedy or
remedies as he may have under the laws of the State of Delaware.
SECTION 6. TRANSFER AGENT AND REGISTRAR; REGULATIONS. The Corporation
shall, if and whenever the Board of Directors shall so determine, maintain one
or more transfer offices or agencies, each in the charge of a transfer agent
designated by the Board of Directors, where the shares of the capital stock of
the Corporation shall be directly transferable, and also one or more registry
offices, each in the charge of a registrar designated by the Board of
Directors, where such shares of stock shall be registered, and no certificate
for shares of the capital stock of the Corporation, in respect of which a
Registrar and/or Transfer Agent shall have been designated, shall be valid
unless countersigned by such Transfer Agent and registered by such Registrar,
if any. The Board of Directors shall also make such additional rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of certificates for shares of the capital stock of the
Corporation.
SECTION 7. BENEFICIAL OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for
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calls and assessments a person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or other claim to or whether
or not it shall have express or other notice thereof, except as otherwise
provided by law.
SECTION 8. STOCKHOLDER APPROVALS. Except as otherwise expressly
required by law, any stock option or purchase plan pursuant to which stock may
be acquired by officers or directors of the Company must be approved by the
affirmative vote of a majority of the outstanding shares entitled to vote
thereon, provided that, where such option or purchase plan applies generally to
security holders of the Company or broadly to other employees of the Company,
stockholder approval shall not be required.
ARTICLE VII
DIVIDENDS, SURPLUS, ETC.
SECTION 1. GENERAL DISCRETION TO DIRECTORS. The Board of Directors
shall have power to fix and vary the amount to be set aside or reserved as
working capital of the Corporation, or as reserves, or for other proper
purposes of the Corporation, and, subject to the requirements of the
Certificate of Incorporation, to determine whether any, if any, part of the
surplus or net profits of the Corporation shall be declared as dividends and
paid to the stockholders, and to fix the date or dates for the payment of
dividends.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall
commence on the first day of January and end on the last day of December.
SECTION 2. NOTICE. Except as otherwise expressly provided, any notice
required by these By-Laws to be given shall be sufficient if given by
depositing the same in a post office or letter box in a sealed postpaid wrapper
addressed to the person entitled thereto at his address, as the same appears
upon the books of the Corporation, or by telegraphing or cabling the same to
such person at such addresses; and such notice shall be deemed to be given at
the time it is mailed, telegraphed or cabled.
SECTION 3. WAIVERS OF NOTICE. Whenever any notice of any nature is
required by law, the provisions of the Certificate of Incorporation or these
By-Laws to be given, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
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SECTION 4. QUALIFYING IN FOREIGN JURISDICTION. The Board of Directors
shall have the power at any time and from time to time to take or cause to be
taken any and all measures which they may deem necessary for qualification to
do business as a foreign corporation in any one or more foreign jurisdictions
and for withdrawal therefrom.
SECTION 5. PROXIES. Except as otherwise provided in these By-Laws or
in the Certificate of Incorporation of the Corporation, and unless otherwise
provided by resolution of the Board of Directors, the Chairman of the Board may
appoint from time to time an attorney or attorneys, or agent or agents, of the
Corporation, on behalf and in the name of the Corporation, to cast the votes
which the Corporation may be entitled to cast as a stockholder or otherwise in
any other corporation any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of
such other corporation, or to consent in writing to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause
to be executed on behalf and in the name of the Corporation and under its
corporate seal, or otherwise, all such written proxies or other instruments as
he may deem necessary or proper in the premises.
SECTION 6. CORPORATE SEAL. The Board of Directors shall provide a
suitable seal containing the name of the Corporation, which seal shall be in
the charge of the Secretary and which may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise. If and when so
directed by the Board of Directors, a duplicate of the seal may be kept and be
used by an officer of the Corporation designated by the Board.
SECTION 7. DISBURSEMENTS. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name
of the Corporation, shall be signed by such officer or officers, agent or
agents of the Corporation, and in such manner, as shall from time to time be
designated by resolution of the Board of Directors.
SECTION 8. DEPOSITS. All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such bank or banks, trust
companies or other depositories as the Board of Directors may select, and, for
the purpose of such deposit, checks, drafts, warrants and other orders for the
payment of money which are payable to the order of the Corporation, may be
endorsed for deposit, assigned and delivered by any officer of the Corporation,
or by such agents of the Corporation as the Board of Directors or the Chairman
of the Board may authorize for that purpose.
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ARTICLE IX
INDEMNIFICATION
SECTION 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER
THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this
Article IX, the Corporation shall indemnify any person (to the full extent
permitted by the laws of the State of Delaware, as amended from time to time)
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he 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 any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
SECTION 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR
IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this Article IX, the
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit,
proceeding or claim by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprises against expenses (including attorney's fees and expenses) actually
and reasonably incurred by him and to the extent permitted by applicable law in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation; except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
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adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnification for such
expenses and amounts which the Court of Chancery or such other court shall deem
proper.
SECTION 3. AUTHORIZATION OF INDEMNIFICATION. Any indemnification
under this Article IX (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in Section 1 or Section 2 of this Article IX, as the case may be. Such
determination and determinations under Section 5 or 6 of this Article IX shall
be made (i) by the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, or (ii)
if such a quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders. To the extent, however, that a director
or officer, employee or agent of the Corporation has been successful on the
merits or otherwise in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees and expenses)
actually and reasonably incurred by him in connection therewith, without the
necessity of authorization in the specific case.
SECTION 4. GOOD FAITH DEFINED.
(a) For purposes of any determination under Section 3 of this
Article IX, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, or, with respect to any criminal action or proceeding, to have
had no reasonable cause to believe his conduct was unlawful, if his action is
based on the records or books of account of the Corporation or another
enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise or on information or records given or reports
made to the Corporation or another enterprise by an independent certified
public account or by an appraiser or other expert selected with reasonable care
by the Corporation or another enterprise. The term "another enterprise" as used
in this Section 4 shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which such person
is or was serving at the request of the Corporation as a director, officer,
agent or employee.
(b) References in this Article IX to "penalties" include any
excise taxes assessed on a person with respect to an employee benefit plan;
references in this Article IX to "serving at the request of the Corporation"
include any service as a director or officer (or if appropriate an employee or
agent) or former director or officer (or if appropriate a former employee
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or agent) of the Corporation which imposes duties on, or involves services by,
such person with respect to an employee benefit plan or its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
participants or beneficiaries of such an employee benefit plan shall be deemed
to have acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation.
(c) The provisions of this Section 4 shall not be exclusive or
to limit in any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Sections 1 or 2 of this
Article IX, as the case may be.
SECTION 5. Indemnification upon Application; Procedure Upon
Application; Etc. Except as otherwise provided in the proviso to Section 2 of
this Article IX:
(d) Any indemnification under Section 1 or 2 of this Article IX
shall be made no later than 45 days after receipt by the Corporation of the
written request by the director, officer, employee or agent or the former
director, officer, employee or agent, unless a determination is made within
said 45-day period in accordance with Section 3 of this Article IX that such
person has not met the applicable standard of conduct set forth in Section 1 or
2 of this Article IX.
(e) The right to indemnification under Section 1 or 2 of this
Article IX or advances under Section 6 of this Article IX shall be enforceable
by the director, officer, employee or agent or former director, officer,
employee or agent in any court of competent jurisdiction. The burden of proving
that indemnification is not appropriate shall be on the Corporation. Neither
the absence of any prior determination that indemnification is proper in the
circumstances, nor a prior determination that indemnification is not proper in
the circumstance, shall be a defense to the action or create a presumption that
the director or officer, or former director or officer, has not met the
applicable standard of conduct. The expenses (including attorneys' fees and
expenses) incurred by the director, officer, employee or agent in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such action (or in any action or claim brought by him to recover
under any insurance policy or policies referred to in Section 9 of this Article
IX) shall also be indemnified by the Corporation.
(f) If any person is entitled under any provision of this
Article IX to indemnification by the Corporation for some or a portion of
expenses, judgments, fines, penalties or amounts paid in settlement incurred by
him, but not, however, for the total amount thereof, the corporation shall
nevertheless
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indemnify such person for the portion of such expense, judgments, fines,
penalties and amounts to which he is entitled.
SECTION 6. EXPENSES PAYABLE IN ADVANCE. Expenses (including
attorneys' fees and expenses) incurred by an officer, director, employee or
agent or a former officer, director, employee or agent in defending a civil or
criminal action or investigating a threatened or pending action, suit or
proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors in
the specific case upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article IX; provided, however, that if he
seeks to enforce his rights in a court of competent jurisdiction pursuant to
Section 5(b) of this Article IX, said understanding to repay shall not be
applicable or enforceable unless and until there is a final court determination
that he is not entitled to indemnification as to which all rights of approval
have been exhausted or have expired.
SECTION 7. CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION.
Notwithstanding any other provision of this Article IX, no person shall be
entitled to indemnification under this Article IX or to advances under Section
6 of this Article IX with respect to any action, suit, proceeding or claim
brought or made by him against the Corporation, other than an action, suit,
proceeding or claim seeking, or defending such person's right to,
indemnification and/or expense advances pursuant to this Article IX or
otherwise.
SECTION 8. NON-EXCLUSIVITY AND SURVIVAL OF INDEMNIFICATION. The
indemnification and advancement of expenses provided by, or granted pursuant
to, this Article IX shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any By-law, agreement, contract, vote of stockholders or disinterested
directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity
and as to action in another capacity while holding office, it being the policy
of the Corporation that indemnification and expense advances to the persons
specified in Section 1 and 2 of this Article IX shall be made to the fullest
extent permitted by law and, accordingly, in the event of any change in law, by
legislation or otherwise, permitting greater indemnification and/or expense
advances to any such person, the provisions of this Article IX shall be
construed so as to require such greater indemnification and/or expense
advances. The provisions of this Article IX shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 or 2 of this
Article IX but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State of
21
<PAGE>
Delaware, or otherwise. The indemnification and advancement of expenses
provided by or granted pursuant to this Article IX shall continue as to a
person who has ceased to be a director or officer (or if appropriate an
employee or agent) and shall inure to the benefit of the heirs, executors and
administrators of such person.
SECTION 9. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power or the obligation to indemnify him against such liability
under the provisions of this Article IX or the provisions of Section 145 of the
General Corporation Law of the State of Delaware. The Corporation shall not be
obligated under this Article IX to make any payment in connection with any
claim made against any person if and to the extent that such person has
actually received payment therefore under any insurance policy or policies.
SECTION 10. MEANING OF "CORPORATION" FOR PURPOSES OF ARTICLE IX. For
purposes of this Article IX, references to "the Corporation" shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents, so that any person who
is or was a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article IX with respect to the resulting
or surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
SECTION 11. LIMITATION ON ACTIONS. No legal action shall be brought
and no cause of action shall be asserted by or on behalf of the Corporation or
any affiliate of the Corporation against any person who is or was a director or
officer of the Corporation after the expiration of two years from the date of
accrual of such cause of action, and any claim or cause of action of the
Corporation or its affiliates shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such two-year period;
provided, however, that if any shorter period of limitations is otherwise
applicable to any such shorter period shall govern.
SECTION 12. SEVERABILITY. The provisions of this Article IX shall be
severable in the event that any provision hereof (including any provision
within a single section,
22
<PAGE>
subsection, clause, paragraph or sentence) is held invalid, void or otherwise
unenforceable on any ground by any court of competent jurisdiction. In the
event of any such holding, the remaining provisions of this Article IX shall
continue in effect and be enforceable to the fullest extent permitted by law.
ARTICLE X.
AMENDMENTS
These By-Laws may be altered, amended or repealed, in whole or in
part, or new By-Laws may be adopted by either the stockholders or by the Board
of Directors, provided, however, that notice of such alteration, amendment,
repeal or adoption of new By-Laws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. All such amendments
must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of
Directors then in office.
<PAGE>
EXHIBIT 4
[SPECIMEN COMMON STOCK CERTIFICATE]
[FACE OF CERTIFICATE]
COMMON STOCK COMMON STOCK
NUMBER SHARES
[BOLLE LOGO]
INCORPORATED UNDER THE LAWS OF SEE REVERSE FOR
THE STATE OF DELAWARE CERTAIN DEFINITIONS
CUSIP 097937 10 6
This Certifies that
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE $.01
PER SHARE OF
Bolle Inc. transferable only on the books of the Corporation by the holder
hereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed
This certificate is not valid unless countersigned by the Transfer Agent
and Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated: [SEAL OF BOLLE INC.] /s/ Peter H. Trembath
Secretary
Countersigned and Registered:
National City Bank /s/ Martin E. Franklin
(CLEVELAND, OHIO) TRANSFER AGENT Chairman of the Board
AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
[BACK OF CERTIFICATE]
The Corporation is authorized to issue more than one class of stock or
more than one series of any class. The Corporation will furnish without charge
to each stockholder who so requests the powers, designations, preferences and
relative, participating, optional, or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -______Custodian ______
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors
JT TEN - as joint tenants with Act_________________________
right of survivorship and (State)
not as tenants in common
Additional abbreviations may also be used though not in the above list.
For Value received, _______________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- ------------------------------------------------------------------------- Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
- ---------------------------------------------------------------------- Attorney
to transfer the said stock on the books of the within-named
Corporation with full power of substitution in the premises.
Dated,
----------------
--------------------------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE, IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE
WHATEVER.
SIGNATURE(S) GUARANTEED:
- ------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION,
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
<PAGE>
EXHIBIT 6
December 15, 1997
Mr. Robert Bolle
Mr. Maurice Bolle
Mr. Franck Bolle
Mr. Patricia Bolle Passaquay
Ms. Brigitte Bolle
Mrs. Christelle Roche
Re:
Dear Sirs/Madame:
With regard to my letter, dated July 9, 1997, a copy of which is attached
hereto as Exhibit I, please be advised that all representations and agreements
set forth in said letter shall apply both to those shares I own of BEC Group,
Inc. (to be named "Lumen Technologies, Inc." in the future) common stock
referenced therein and shares of common stock of Bolle Inc. I may own hereafter
as a result of the proposed spinoff of Bolle Inc.
Very truly yours,
/s/ Martin E. Franklin
Martin E. Franklin
<PAGE>
EXHIBIT I
[TO BE EXECUTED AT CLOSING]
July 9th, 1997
To the Series A
Preferred Stockholders
listed on the signature
pages hereof:
Re: BEC Group, Inc./Acquisition of Bolle
Etablissements S.N.C. ("Bolle France")
--------------------------------------
Gentlemen:
The undersigned is the owner of 1,295,564 shares (the "Shares") of
Common Stock, $.01 par value per share ("Common Stock") of BEC Group, Inc. (the
"Company"). The undersigned understands that the Company intends to acquire all
of the issued and outstanding shares of Bolle France (the "Transactions")
pursuant to the terms of the Share Purchase Agreement (the "Agreement"), dated
June 4, 1997, as amended, among BEC Group, Inc., Bolle Inc. and the Sellers
therein named.
In order to induce you to close the Transactions contemplated in the
Agreement, the undersigned agrees, for the benefit of the Company and you, that
immediately following the closing of the Transactions, the undersigned will
not, without the prior written consent of the holders of at least 90% of the
then outstanding shares of Series A Preferred Stock (the "90% Holders"), sell
any of the Shares owned by the undersigned on the date hereof until the date
that all of the shares of Series A Preferred Stock or the Subordinated Debt (as
defined in the Certificate of Designation of the Series A Preferred Stock as
filed with the Secretary of State of Delaware as of the date hereof (the
"Certificate")) including all accrued but unpaid dividends and/or interest, if
any, are redeemed in full (whether in cash or other cash equivalent accepted by
all of the Holders) by the Company.
Notwithstanding the foregoing, the undersigned may transfer any shares
either (i) to his immediate family members, or (ii) to trusts for his sole
benefit or the sole benefit of such immediate family members and to
partnerships in which such immediate family members and/or trusts are sole
partners; provided, however, that prior to any such transfer, each transferee
shall execute an agreement, whereby each transferee shall agree to receive and
hold such Shares subject to the restrictions set forth herein. In addition, the
undersigned may transfer any Shares (i) on death by Will or intestacy; (ii) to
charitable foundations up to a value of $50,000 per annum; or
<PAGE>
(iii) in transactions involving all the stockholders of the Company on a pro
rata basis, provided, however, that in the event of any such transaction which
results in the undersigned receiving any stock consideration in exchange for
the Shares, in part or in whole, such stock consideration received shall be
subject to the restrictive provisions set forth herein. For the purposes of
this paragraph, "immediate family" shall mean the spouse, lineal descendant,
father, mother, brother or sister of the undersigned.
Notwithstanding anything to the contrary contained herein, in the
event of a partial redemption of the Series A Preferred Stock or Subordinated
Debt, as the case may be, (whether in cash or other cash equivalent accepted by
all of the Holders) the undersigned shall be permitted to sell his Shares on a
pro rata basis in proportion to the aggregate Liquidation Preference (as
defined in the Certificate) of such number of shares of Series A Preferred
Stock redeemed and/or the principal amount of the Subordinated Debt that is
repaid (whether in cash or other cash equivalent accepted by all of the
Holders) compared to the aggregate Liquidation Prefernce of the total number of
shares of such Series A Preferred Stock originally issued.
The undersigned confirms that he understands that the holders of the
Series A Preferred Stock of the Company will rely upon the representations set
forth in this agreement in proceeding with the Transaction. This letter
agreement shall be binding on the undersigned.
Very truly yours,
[by] /s/ Ian G.H. Ashken
Martin E. Franklin
-2-
<PAGE>
The foregoing is accepted and agreed to as of the date first above written:
By: /s/ Robert Bolle
------------------------------------
Robert Bolle
58 Route de Marchon
01100 Oyonnax
By: /s/ Maurice Bolle
------------------------------------
Maurice Bolle
13 Rue Balland
01100 Oyonnax
By: /s/ Franck Bolle
------------------------------------
Franck Bolle
4 Boulevard Dupuy
01100 Oyonnax
By: /s/ Patricia Bolle
------------------------------------
Patricia Bolle
6 Rue du General de Gaulle
01100 Oyonnax
By: /s/ Brigitte Bolle
------------------------------------
Brigitte Bolle
25 Bis, Boulevard de la Saussaye
92200 Neuilly-sur Scinc
By: /s/ Christelle Roche
------------------------------------
Christelle Roche
2 Rue Macretet
01100 Arbent
-3-
