BYLAWS
OF
DMI FURNITURE, INC.
1. Offices
1.1 Registered Office. The Corporation shall have and maintain
in Delaware a registered office which shall be the business
office of the Corporation's registered agent in Delaware.
1.2 Other Offices. The Corporation may have such other offices
at such places, both within and without Delaware, as the Board of
Directors may from time to time designate or as the business of
the Corporation may from time to time require.
2. Meetings of Stockholders
2.1 Meeting Place. All meetings of the stockholders shall be
held at such place, either within or without Delaware, as the
Board of Directors may from time to time designate and as stated
in the notice of the meeting.
2.2 Annual Meetings. An annual meeting of the stockholders
shall be held for the election of directors at such date and time
during each fiscal year of the Corporation as the Board of Direc
tors shall designate and as stated in the notice of the annual
meeting. In addition to the election of directors, the stock
holders shall transact such other business as may properly be
brought before the meeting.
2.3 Special Meetings. Unless otherwise prescribed by law, by
the Corporation's Certificate of Incorporation, or by these
Bylaws, special meetings of the stockholders may be called for
any purpose or purposes by (a) the Chairman of the Board, if any,
or (b) the President or the Secretary upon the written request of
a majority of the members of the Board of Directors.
2.4 Meeting Notices.
(a) Except as otherwise provided by law, by the Corporation's
Certificate of Incorporation, or by these Bylaws, written notice
of any annual or special meeting of the stockholders shall state
the place, date, and time thereof and, in the case of a special
meeting, the purpose or purposes for which the meeting is called,
and shall be given to each stockholder of record entitled to vote
at such meeting not less than ten nor more than sixty days before
the meeting.
(b) Notice of any meeting of stockholders (whether annual or
special) to act upon an amendment to the Corporation's
Certificate of Incorporation, upon a reduction of the Corpora
tion's stated capital, upon a plan of merger or consolidation
involving the Corporation, or upon a sale of all or substantially
all of the Corporation's assets shall be given to each stock
holder of record entitled to vote at such meeting not less than
ten nor more than sixty days before the date of such meeting.
Any such notice shall be accompanied by a copy of the proposed
amendment or of the plan of reduction, merger, consolidation, or
sale.
2.5 List of Stockholders. At least ten days (but not more than
fifty days) before any meeting of the stockholders, the officer
or transfer agent in charge of the stock transfer books of the
Corporation shall prepare and make a complete alphabetical list
of the stockholders entitled to vote at the meeting, showing the
address of each stockholder and the number of shares registered
in the name of each stockholder. The list so prepared shall be
maintained 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, and shall be open to inspection by any
stockholder, for any purpose germane to the meeting, during ordi
nary business hours for a period of at least ten days before the
meeting. The list shall remain open throughout the meeting and
may, except as otherwise provided by law, be inspected by any
stockholder or proxy of a stockholder who is present in person at
such meeting.
2.6 Presiding Officers; Order of Business.
(a) The Chief Executive Officer, if any, shall preside at all
meetings of the stockholders at which the Chief Executive Officer
is present. If the Chief Executive Officer is not present at a
meeting of the stockholders, the following officer or person
shall preside (in descending order of preference): (1) the
Chairman of the Board, if any, (2) the President, (3) a Vice
President or director specifically designated by the Board of
Directors to preside at the meeting, or (4) a stockholder chosen
at the meeting by stockholders present in person or by proxy who
own a majority of the shares of capital stock of the Corporation
entitled to vote and represented at the meeting.
(b) If present at the meeting, the Secretary of the Corporation
shall serve as secretary of the meeting. If the Secretary of the
Corporation is not present at the meeting, a person designated by
the officer or person presiding over the meeting shall serve as
secretary of the meeting.
(c) Unless otherwise ordered by the officer or person presiding
over the meeting, the following order of business shall be
observed insofar as is practicable and consistent with the
purposes of the meeting:
(1) Call of the meeting to order.
(2) Presentation of proof of mailing of notice of the meeting
and, if the meeting is a special meeting, the call thereof.
(3) Presentation of proxies.
(4) Determination and announcement that a quorum is present.
(5) Reading and approval (or waiver thereof) of the minutes of
the previous meeting.
(6) Reports, if any, of officers of the Corporation.
(7) Election of directors, if the meeting is an annual meeting
or a meeting called for such purpose.
(8) Consideration of the specific purpose or purposes for which
the meeting has been called (other than the election of
directors).
(9) Transaction of such other business as may properly come
before the meeting.
(10) Adjournment.
2.7 Quorum; Adjournments.
(a) Except as otherwise provided by law, by the Corporation's
Certificate of Incorporation, or by these Bylaws, the holders of
a majority of the shares of capital stock of the Corporation
issued and outstanding and entitled to vote at any given meeting
present in person or by proxy shall be necessary to, and shall
constitute a quorum for, the transaction of business at all
meetings of the stockholders.
(b) If a quorum is not present in person or by proxy at any
meeting of stockholders, the stockholders entitled to vote
thereat, present in person or by proxy, shall have the power to
adjourn the meeting from time to time, without notice of the
adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken, until a quorum is
present in person or by proxy.
(c) If a meeting is adjourned in accordance with Section 2.7(b)
of these Bylaws and a quorum is present in person or by proxy at
such adjourned meeting, the stockholders may transact at the
adjourned meeting any business which might have been transacted
at the original meeting. But if the adjournment is for more than
thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to
vote at the adjourned meeting.
2.8 Voting.
(a) At any meeting of stockholders, every stockholder having the
right to vote on a particular subject matter shall be entitled to
vote in person or by proxy on that subject matter. Except as
otherwise provided by law or by the Corporation's Certificate of
Incorporation, each stockholder of record shall be entitled to
one vote (on each matter submitted to a vote) for each share of
capital stock registered in his or her name on the books of the
Corporation.
(b) As to the election of directors, the candidate or
candidates, up to the number of directors to be elected, receiv
ing the highest number of votes shall be elected.
(c) As to all other matters and except as otherwise provided by
law or by the Corporation's Certificate of Incorporation, the
vote of the holders of a majority of the issued and outstanding
shares of the capital stock of the Corporation entitled to vote
on that matter, present in person or by proxy, shall decide any
question brought before the meeting.
2.9 Action by Consent. Any action required or permitted to be
taken at any meeting of the stockholders may be taken without a
meeting, without prior notice and without a vote, if a written
consent in lieu of such meeting, setting forth the action so
taken, is signed before or after such action by the holders of
issued and outstanding shares of the capital stock of the
Corporation 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. All written consents shall be filed with the minutes of
the meetings of the stockholders.
2.10 Introduction of Business at a Meeting of Stockholders.
At an annual or special meeting of stockholders, only such
business shall be conducted, and only such proposals shall be
acted upon, as shall have been properly brought before an annual
or special meeting of stockholders. Notwithstanding anything in
these By-Laws to the contrary, no business shall be conducted at
a meeting of stockholders except in accordance with the procedure
set forth in this Section 2.10. If the facts warrant, the
chairman of the meeting shall determine and declare to the
meeting that the business was not properly brought before the
meeting in accordance with the procedures described by the By-
Laws, and if the chairman of the meeting should so determine, the
chairman shall so declare to the meeting and any such business
not properly brought before the meeting shall not be considered.
(a) Special Meetings. To be properly brought before a
special meeting of stockholders and acted upon at the meeting,
business must be specified in the notice of the special meeting
(or any supplement thereto) given by or at the direction of the
Board of Directors, the Chairman or the President pursuant to
Section 2.4 of these By-Laws.
(b) Annual Meetings. At an annual meeting of
stockholders, only such business shall be conducted, and only
such proposals shall be acted upon, as shall have been properly
brought before the annual meeting of stockholders (1) by, or at
the direction of, the Board of Directors, or (2) by any
stockholder of the Corporation who was a stockholder of record at
the time of giving of notice of the annual meeting, who is
entitled to vote at the annual meeting and who otherwise complies
with all procedures and requirements set forth in this Section
2.10.
(c) Stockholders' Notice. For business to be properly
brought before an annual meeting of stockholders by a
stockholder, the stockholder must have given timely notice
thereof in writing to the President or Secretary of the
Corporation. To be timely, a stockholder's notice must be
received at the principal executive offices of the Corporation
not fewer than 60 days, nor more than 90 days, before the
scheduled date of the annual meeting regardless of any
postponement, deferral or adjournment of that meeting to a later
date; provided, however, that if fewer than 70 days notice or
prior public disclosure of the date of the annual meeting is made
or given to stockholders, notice by the stockholder to be timely
must be received not later than the close of business on the
tenth day following the earlier of the day on which such notice
of the date of the meeting was mailed or the day on which such
public disclosure was made. A stockholder's notice shall set
forth as to each matter the stockholder proposes to bring before
an annual meeting of stockholders:
(1) a brief description of the business desired
to be brought before the annual meeting,
(2) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business
and any other stockholders known by such stockholder to be
supporting such proposal,
(3) the class and number of shares of the
Corporation which are beneficially owned by such stockholder on
the date of such stockholder's notice and by any other
stockholders known by such stockholder to be supporting such
proposal on the date of such stockholder's notice, and
(4) any material interest of the stockholder in
such proposal.
2.11 Nomination of Directors. Only persons nominated in
accordance with the procedures set forth in this Section 2.11
shall be eligible for election as directors. No person shall be
eligible for election as a director of the Corporation unless
nominated in accordance with procedures set forth in this Section
2.11. If the facts warrant, the chairman of the meeting shall,
determine and declare to the meeting that a nomination was not
made in accordance with the procedures prescribed by the By-Laws,
and if the chairman should so determine, the chairman of the
meeting shall so declare to the meeting and the defective
nomination shall be disregarded. Nominations of persons for
election to the Board of Directors may be made at a meeting of
stockholders by, or at the direction of, the Board of Directors
or by any stockholder of the Corporation who is entitled to vote
for the election of directors at such meeting and who complies
with the notice procedures set forth in this Section 2.11.
(a) Stockholder Notice. Nominations by stockholders
shall be made pursuant to timely notice in writing to the
President or Secretary of the Corporation. To be timely, a
stockholder's notice must be received at the principal executive
offices of the Corporation not fewer than 60 days, nor more than
90 days, prior to the scheduled date of a meeting, regardless of
any postponement, deferral or adjournment of that meeting to a
later date; provided, however, that if fewer than 70 days notice
or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must
be so delivered or received not later than the close of business
on the tenth day following the earlier of the day on which such
notice of the date of such meeting was mailed or the day on which
such public disclosure was made. A stockholder's notice shall
set forth:
(1) as to each person whom the stockholder
proposes to nominate for election or reelection as a director
(A) the name, age, business address and
residence address of such person,
(B) the principal occupation or employment
of such person,
(C) the class and number of shares of the
Corporation which are beneficially owned by such person on the
date of such stockholder's notice, and
(D) any other information relating to such
person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in
each case, pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (including without limitation
such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected);
and
(2) as to the stockholder giving the notice
(A) the name and address, as they appear on
the Corporation's books, of such stockholder and any other
stockholders known by such stockholder to be supporting such
nominees, and
(B) the class and number of shares of the
Corporation which are beneficially owned by such stockholder on
the date of such stockholder's notice and by any other
stockholders known by such stockholder to be supporting such
nominees on the date of such stockholder's notice.
(b) Exceptions Pursuant to Corporate Law. This
Section 2.11 shall not apply to the election of a director to a
directorship which may be filled by the Board of Directors under
the General Corporation Law of the State of Delaware.
2.12 Inspectors of Elections; Opening and Closing. The
Board of Directors by resolution shall appoint, or shall
authorize an officer of the Corporation to appoint, one or more
inspectors, which inspector or inspectors may include individuals
who serve the Corporation in other capacities, including, without
limitation, as officers, employees, agents or representatives, to
act at the meetings of stockholders and make a written report
thereof. One or more persons may be designated as alternate
inspector(s) to replace any inspector who fails to act. If no
inspector or alternate has been appointed to act or is able to
act at a meeting of stockholders, the chairman of the meeting
shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging such person's duties, shall take
and sign an oath faithfully to execute the duties of inspector
with strict impartiality and according to the best of such
person's ability. The inspector(s) shall have the duties
prescribed by law. The chairman of the meeting shall fix and
announce at the meeting the date and time of the opening and the
closing of the polls for each matter upon which the stockholders
will vote at a meeting.
3. Board of Directors
3.1 Number of Directors. Subject to any provision of the
Corporation's Certificate of Incorporation governing the number
of the Corporation's directors, the exact number of the Corpo
ration's directors may be fixed, increased, or decreased from
time to time by a resolution adopted by the vote of the directors
at the meeting, or by consent in lieu of a meeting, at which, or
by which, the time and place of the annual meeting of stockhold
ers are designated. Directors need not be stockholders or resi
dents of Delaware.
3.2 Term. At each annual meeting of the Corporation's
Stockholders, the Corporation's directors shall be elected to
serve for a term of one year and until their successors have been
elected and qualified.
3.3 Chief Executive Officer; Chairman. The Board of Directors
may from time to time select from among its members a Chief
Executive Officer and a Chairman of the Board who shall serve
during the pleasure of the Board of Directors. The Chief Execu
tive Officer, if any, shall preside at all meetings of the Board
of Directors. If there is no Chief Executive Officer or if the
Chief Executive Officer is not present at the meeting, the fol
lowing shall preside (in descending order of preference): (1) the
Chairman of the Board, if any, (2) the President, or (3) a direc
tor selected by a majority of the directors present at a meeting
at which a quorum is present.
3.4 Meetings. The Board of Directors may hold meetings, both
regular and special, either within or without Delaware. Regular
meetings of the Board of Directors may be held without notice at
such time and at such place as the Board shall from time to time
determine. Special meetings of the Board of Directors may be
called by the Chairman of the Board or by the President on two
days' notice to each director, either personally or by telephone
or telegram, or on seven days notice to each director by mail or
overnight courier. The President or the Secretary shall call a
special meeting of the Board of Directors in like manner and on
like notice at the written request of any two directors.
3.5 Quorum and Voting. Except as otherwise provided by law or
by the Corporation's Certificate of Incorporation, a majority of
the total number of directors shall constitute a quorum for the
transaction of business, and the vote of a majority of the
directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors. If less than a quorum
is present at any meeting of the Board of Directors, the direc
tors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a
quorum is present.
3.6 Vacancies. Except as otherwise provided in these Bylaws,
vacancies and newly created directorships may be filled by a
majority of the directors then in office, although less than a
quorum, or by the sole remaining director. When one or more
directors shall resign from the Board of Directors, effective at
a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill
such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective. Each
director so chosen shall hold office until the earliest end of
his or her tenure as prescribed by these Bylaws, the Corpora
tion's Certificate of Incorporation or otherwise by law.
3.7 Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken
without a meeting and without prior notice if a written consent
in lieu of such meeting, setting forth the action so taken, is
signed either before or after such action by all directors. All
written consents shall be filed with the minutes of the
proceedings of the Board of Directors.
3.8 Telephone Meetings. The Board of Directors may participate
in meetings by means of conference telephone or similar
communications equipment, whereby all directors participating in
the meeting can hear each other at the same time, and participa
tion in any such meeting shall constitute presence in person by
such director at such meeting. A written record shall be made of
all actions taken at any meeting conducted by means of a confer
ence telephone or similar communications equipment.
3.9 Directors' Age Qualification. A person shall not be elected
a director in or after the month in which that person becomes 72
years old. Notwithstanding the preceding sentence, a director in
office may be elected to one additional term of not more than one
year after the director becomes 72 years old, but before the
month in which that director becomes 73 years old, if nominated
by all of the directors then in office who otherwise would meet
the age qualification requirements of this section.
4. Committees
4.1 Establishment of Committees. The Board of Directors may, by
resolution duly adopted by a majority of the whole Board, appoint
such committee or committees as it shall deem advisable and with
such limited authority as the Board of Directors shall from time
to time determine.
4.2 Miscellaneous.
(a) The Board of Directors shall have the power at any time and
from time to time to fill vacancies in, to change the membership
of, or to discharge any committee.
(b) Unless prohibited by law, the provisions of Section 3.7
("Action by Consent") and of Section 3.8 ("Telephone Meetings")
shall apply to all committees from time to time created by the
Board of Directors.
5. Officers
5.1 Positions. The Corporation may have a Chief Executive
Officer and a Chairman of the Board, and shall have a President,
one or more Vice Presidents, a Secretary, and a Treasurer, all of
whom shall be chosen by the Board of Directors. The Corporation
may also have such assistant officers as the Board of Directors
may deem necessary, all of whom shall be elected by the Board of
Directors. Any number of offices may be held by the same person.
5.2 Rights and Duties--General. The election of any officer of
the Corporation shall not of itself create any contract rights
for any such officer with respect to that officer's position or
employment by the Corporation. All officers of the Corporation
shall exercise such powers and perform such duties as the Board
of Directors may from time to time direct.
5.3 Term of Office; Removal. Each officer of the Corporation
shall hold office at the pleasure of the Board of Directors and
any officer may be removed, with or without cause, at any time.
The Board of Directors may fill any vacancy in any office for the
unexpired portion of the office term.
5.4 Chief Executive Officer. The Chief Executive Officer, if
any, shall perform such executive, supervisory, and management
function and duties as the Board of Directors may from time to
time assign.
5.5 Chairman of the Board. The Chairman of the Board, if any,
shall perform such executive, supervisory, and management
functions and duties as the Board of Directors may from time to
time assign.
5.6 President. The President shall:
(a) Subject to the direction of the Board of Directors, have
general charge and authority over the business of the
Corporation;
(b) Have authority acting alone, except as otherwise directed by
the Board of Directors, to sign and deliver any document on
behalf of the Corporation; and
(c) Have such other powers and duties as the Board of Directors
may assign.
5.7 Vice President(s). The Vice President, or if there be more
than one Vice President, the Vice Presidents in the order of
their seniority by designation (or if not designated, in the
order of their seniority of election), shall perform the duties
of the President in his absence. The Vice President(s) shall
have such other powers and duties as the Board of Directors or
the Chief Executive Officer, if any, or the President, if there
is no Chief Executive Officer, may assign.
5.8 Secretary. The Secretary shall:
(a) Issue notices of all meetings for which notice is required
to be given;
(b) Keep the minutes of all meetings and have charge of the
corporate record books; and
(c) Have such other duties and powers as the Board of Directors
or the Chief Executive Officer, if any, or the President, if
there is no Chief Executive Officer, may assign.
5.9 Treasurer. The Treasurer shall:
(a) Have the custody of all funds and securities of the
Corporation;
(b) Keep adequate and correct accounts of the Corporation's
affairs and transactions; and
(c) Have such other duties and powers as the Board of Directors
or the Chief Executive Officer, if any, or the President, if
there is no Chief Executive Officer, may assign.
6. Notices
6.1 Written Notice--Form; Delivery. Any written notice required
or permitted to be given to any director, officer, stockholder,
or committee member shall be either personally delivered or given
by first-class mail or overnight courier with postage prepaid, in
any case addressed to the recipient at his or her address as it
appears in the records of the Corporation. Personally delivered
notices shall be deemed given at the time they are delivered at
the address of the named recipient as it appears in the records
of the Corporation, mailed notices shall be deemed given at the
time they are deposited in the United States mail, and notices
given by overnight courier shall be deemed given at the time they
are delivered to the courier. Notice to a director may also be
given by telegram sent to his or her address as it appears on the
records of the Corporation and shall be deemed given at the time
delivered at such address.
6.2 Waiver; Effect of Attendance. Whenever any notice is
required to be given by law, by the Corporation's Certificate of
Incorporation, or by these Bylaws, a written waiver thereof,
signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be the equivalent
of the giving of such notice. Any stockholder who attends a
meeting of stockholders in person, or who is represented at such
meeting by a proxy, or any director or committee member who
attends a meeting of the Board of Directors or of a committee
thereof, shall be deemed to have had timely and proper notice of
the meeting, unless such stockholder (or his or her proxy),
director, or committee member attends for the express purpose of
objecting to the transaction of any business on the grounds that
the meeting is not lawfully called or convened.
7. Indemnification
The Corporation shall indemnify each person who may be
indemnified (individually an "Indemnitee" and collectively the
"Indemnitees") pursuant to Section 145 ("Section 145") of the
General Corporation Law of the State of Delaware, as amended from
time to time (or any successor provision thereto), to the fullest
extent permitted by Section 145. In each and every situation in
which the Corporation may do so under Section 145, the Corpora
tion hereby obligates itself to so indemnify the Indemnitees, and
in each case, if any, in which the Corporation must make certain
investigations on a case-by-case basis before indemnification,
the Corporation hereby obligates itself to pursue such investiga
tions diligently, it being the specific intention of these Bylaws
to obligate the Corporation to indemnify each Indemnitee to the
fullest extent permitted by law at any time and from time to
time. To the extent not prohibited by Section 145 (or any other
provision of the General Corporation Law of the State of Dela
ware, as amended from time to time), the Indemnitees shall not be
liable to the Corporation except for their own individual willful
misconduct or actions taken in bad faith.
8. General Provisions
8.1 Registered Stockholders. Except as otherwise provided by
law, the Corporation shall be entitled to recognize the exclusive
right of a person who is registered on its books as the owner of
shares of its capital stock to receive dividends or other
distributions (to the extent otherwise distributable or
distributed), to vote (in the case of voting stock) as such
owner, and to hold liable for calls and assessments a person who
is registered on its books as the owner of shares of its capital
stock. The Corporation shall not be bound to recognize any other
person's equitable or legal claim to, or interest in, such
shares. The Corporation (or its transfer agent) shall not be
required to send notices or dividends to a name or address other
than the name or address of the stockholders appearing on the
stock ledger maintained by the Corporation (or by the transfer
agent or registrar, if any), unless any such stockholder shall
have notified the Corporation (or the transfer agent or regis
trar, if any), in writing, of another name or address at least
ten days before the mailing of such notice or dividend.
8.2 Dividends. Subject to the provisions of the Corporation's
Certificate of Incorporation and of the General Corporation Law
of the State of Delaware, as amended from time to time, the Board
of Directors may declare dividends upon the capital stock of the
Corporation at any regular or special meeting, and such dividends
may be paid in cash, in property, or in shares of the capital
stock of the Corporation.
8.3 Fiscal Year. Subject to change at any time at the direction
of the Board of Directors, the fiscal year of the Corporation
shall end on the Saturday nearest August 31 in each calendar
year.
8.4 Amendment of Bylaws. As provided by the Corporation's
Certificate of Incorporation, the Board of Directors shall have
the power to make, alter, and repeal these Bylaws, and to adopt
new bylaws, in all cases by an affirmative vote of a majority of
the whole Board of Directors, provided that notice of the pro
posal to make, alter, or repeal these Bylaws, or to adopt new
bylaws, is included in the notice of the meeting of the Board of
Directors at which such action takes place.
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