<PAGE> 1
As filed with the Securities and Exchange Commission on December 9, 1996
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
BEAUTICONTROL COSMETICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-2036343
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
2121 Midway 75006
Carrollton, Texas (Zip Code)
(Address of Principal Executive Offices)
1996 INCENTIVE STOCK OPTION PLAN
1996 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plans)
--------------------
RICHARD W. HEATH
President
BeautiControl Cosmetics, Inc.
2121 Midway
Carrollton, Texas 75006
(214) 458-0601
(Name, address and telephone number, including area code, of agent for service)
Copy to:
DAVID H. ODEN
Haynes and Boone, L.L.P.
3100 NationsBank Plaza
Dallas, Texas 75202
(214) 651-5000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================
Proposed Proposed
Title of Securities Amount Maximum Offering Maximum Aggregate Amount of
To Be Registered To Be Registered Price per Share(1) Offering Price(1) Registration Fee(1)
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.10 par value .... 270,000 $13 1/2 $3,645,000 $1,105
==============================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(h)(1) solely for the purpose of
calculating the registration fee, based the average of the high and low
price of the Common Stock, as registered on the NASDAQ National Market,
on December 2, 1996.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS OR OTHER
DOCUMENTS CONTAINING THE INFORMATION SPECIFIED IN PART I OF FROM S-8 WITH
RESPECT TO SECURITIES COVERED BY THIS REGISTRATION STATEMENT WILL BE USED IN
CONNECTION WITH SECURITIES PREVIOUSLY REGISTERED ON FORM S-8 UNDER REGISTRATION
STATEMENTS NOS. 33-12005, 33-24363, 33-48626, AND 33-83500.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended November 30, 1995.
(b) Quarterly Report on Form 10-Q for the quarter ended February 28,
1996; Quarterly Report on Form 10-Q for the quarter ended May 31,
1996; and Quarterly Report on Form 10-Q for the quarter ended
August 31, 1996.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A as filed with the
Commission on April 21, 1986.
(d) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange
Act of 1934, prior to the filing of a post-effective amendment
that indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is empowered by Section 145 of the Delaware General
Corporation Law, subject to the procedures and limitations stated therein, to
indemnify any person 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
civil, criminal or administrative by reason of the fact that such person is or
was an officer, employee, agent or director of the Registrant, or is serving at
the request of the Registrant as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person 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
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The Registrant may
indemnify any such person against expenses (including attorneys' fees) in an
action by or in right of the Registrant under the same conditions, except that
no indemnification is permitted without judicial approval if such person is
adjudged to be liable to the Registrant. To the extent such person is
successful on the merits or otherwise in the defense of any action referred to
above, the Registrant must indemnify him against the expenses which he actually
and reasonably incurred in connection therewith.
The Registrant's Certificate of Incorporation provides that, to the
fullest extent permitted by the Delaware General Corporation Law, a director of
the Registrant shall not be liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director.
- 2 -
<PAGE> 3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Exhibit
-------
<S> <C>
3.1 Restated Certificate of Incorporation dated February 22,
1986.
3.2 Certificate of Amendment to Restated Certificate of
Incorporation dated April 7, 1987.
3.3 Certificate of Amendment to Restated Certificate of
Incorporation dated April 3, 1992.
3.4 By-laws of the Registrant as amended on March 21, 1991.
5.1 Opinion of Haynes and Boone.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Haynes and Boone (included in Exhibit 5.1).
24.1 Power of Attorney of the directors (included on the
signature page of this registration statement).
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such information
in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
- 3 -
<PAGE> 4
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
- 4 -
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on October 15, 1996.
BEAUTICONTROL COSMETICS, INC.
By: /s/ Richard W. Heath
-------------------------------------
Richard W. Heath
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Richard W. Heath and M. Douglas Tucker, and each of
them (with full power to each of them to act alone), his or her true and lawful
attorneys-in-fact and agents, with full power of substitution, for him or her
and on his or her behalf and in his or her name, place and stead, in any and
all capacities, to sign, execute, and file with the Securities and Exchange
Commission and any state securities regulatory board or commission any
documents relating to the proposed issuance and registration of the securities
offered pursuant to this registration statement on Form S-8 under the
Securities Act of 1933, including any amendment or amendments relating thereto,
with all exhibits and any and all documents required to be filed with respect
thereto with any regulatory authority, granting unto said attorneys, and each
of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises in order to
effectuate the same as fully to all intents and purposes as he or she might or
could do if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his or her
substitute or substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Richard W. Heath President, Chief Executive October 15, 1996
- --------------------------- Officer and Director
Richard W. Heath
/s/ Jinger L. Heath Chairman of the Board October 15, 1996
- --------------------------- and Director
Jinger L. Heath
/s/ J. Robert Ward-Burns Executive Vice President, October 15, 1996
- --------------------------- Chief Operating Officer,
J. Robert Ward-Burns and Director
/s/ M. Douglas Tucker Senior Vice President - Finance October 15, 1996
- --------------------------- and Chief Financial Officer
M. Douglas Tucker (Principal Financial
and Accounting Officer)
/s/ Charles M. Diker Director October 15, 1996
- ---------------------------
Charles M. Diker
/s/ Robert S. Folsom Director October 15, 1996
- ---------------------------
Robert S. Folsom
</TABLE>
- 5 -
<PAGE> 6
<TABLE>
<S> <C> <C>
/s/ Denise I. Lites Director October 15, 1996
- ---------------------------
Denise I. Lites
/s/ A. Starke Taylor, Jr. Director October 15, 1996
- ---------------------------
A. Starke Taylor, Jr.
/s/ Joel T. Williams, Jr. Director October 15, 1996
- ---------------------------
Joel T. Williams, Jr.
/s/ Joe Haggar, III Director October 15, 1996
- ---------------------------
Joe Haggar, III
</TABLE>
- 6 -
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Exhibit
- --------- -------
<S> <C>
3.1 Restated Certificate of Incorporation dated February 22, 1986.
3.2 Certificate of Amendment to Restated Certificate of Incorporation
dated April 7, 1987.
3.3 Certificate of Amendment to Restated Certificate of Incorporation
dated April 3, 1992.
3.4 By-laws of the Registrant as amended on March 21, 1991.
5.1 Opinion of Haynes and Boone.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Haynes and Boone (included in Exhibit 5.1).
24.1 Power of Attorney of the directors (included on the signature
page of this registration statement).
</TABLE>
<PAGE> 1
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
BEAUTICONTROL COSMETICS, INC.
The Corporation's original Certificate of Incorporation was filed with
the Secretary of State on January 16, 1986.
FIRST: The name of the Corporation is BeautiControl Cosmetics, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which a corporation 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 11,000,000 shares, of which 10,000,000 shares shall
be Common Stock, par value $0.10 per share ("Common Shares"), and 1,000,000
shares shall be Preferred Stock, $0.10 par value ("Preferred Stock").
FIFTH: From time to time the Corporation may issue and may sell its
authorized shares for such consideration per share (with respect to shares
having a par value, not less than the par value thereof), either in money or
money's worth of property or services, or for such other considerations,
whether greater or less, now or from time to time hereafter permitted by law,
as may be fixed by the Board of Directors; and all shares so issued shall be
fully paid and nonassessable.
No holder of any shares of any class shall as such holder have any
preemptive right to subscribe for or purchase any other shares or securities of
any class, whether now or hereafter authorized, which at any time may be
offered for sale or sold by the Corporation.
Each holder of record of the Common Shares of the Corporation shall be
entitled to one vote for every Common Share standing in his name on the books
of the Corporation.
The Corporation may issue Preferred Stock from time to time in one or
more series as the Board of Directors may establish by the adoption of a
resolution or resolutions relating thereto, each series to have such voting
powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions providing for the issue of such
series adopted by the Board of Directors pursuant to authority to do so, which
authority is hereby granted to the Board of Directors.
<PAGE> 2
SIXTH: The duration of the Corporation is to be perpetual.
SEVENTH: Except as otherwise fixed by or pursuant to the provisions of
this Certificate of Incorporation relating to the rights of the holders of
Preferred Stock to elect directors under specified circumstances, the number of
directors shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the then authorized
number of directors of the Corporation (as determined in accordance with the
By-laws). No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director. The directors
shall be classified with respect to the time for which they severally hold
office, into three classes, as nearly equal in number as possible, as shall be
provided in the manner specified in the By-laws, one class to be originally
elected for a term expiring at the annual meeting of stockholders to be held in
1986, another class to be originally elected for a term expiring at the annual
meeting of stockholders to be held in 1987, and another class to be originally
elected for a term expiring at the annual meeting of stockholders to be held in
1988, with the members of each class to hold office until their successors have
been elected and qualified. At each annual meeting of stockholders, the
successors of the class of directors whose term expires at that meeting shall
be elected to hold office for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election. No
director need be a stockholder.
Except as otherwise fixed by or pursuant to the provisions of this
Certificate of Incorporation relating to the rights of the holders of Preferred
Stock to elect directors under specified circumstances, any director may be
removed from office with or without cause by the affirmative vote of the
holders of at least 66 2/3% of the voting power of the then outstanding shares
of capital stock of the Corporation entitled to vote generally in the election
of directors (the 'Voting Stock"), voting together as a single class.
Notwithstanding the foregoing, whenever the holders of the Preferred
Stock shall have the right to elect directors at an annual or special meeting
of stockholders the election term of office, filling of vacancies, and other
features of such directorships shall be governed by the terms of this
Certificate of Incorporation applicable thereto or the resolution or
resolutions of the Board of Directors relating to the issuance of Preferred
Stock, and such directors so elected shall not be divided into classes pursuant
to this Article unless expressly provided by such terms or resolution or
resolutions.
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 66 2/3% of the
Voting Stock, voting together as a single class, shall be required to amend or
repeal, or adopt any provision inconsistent with, this Article SEVENTH.
2
<PAGE> 3
EIGHTH: The Board of Directors shall, except as otherwise provided by
law, this Certificate of Incorporation or the By-laws, exercise the powers of
the Corporation.
Except as otherwise required by law, special meetings of common
stockholders may be called only by the Chief Executive Officer or by the Board
of Directors pursuant to a resolution approved by a majority of the then
authorized number of directors of the Corporation. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 66 2/3% of the Voting Stock, voting together as
a single class, shall be required to amend or repeal, or adopt any provision
inconsistent with, any provision of this paragraph.
No contract or other transaction of the Corporation shall be void,
voidable, fraudulent or otherwise invalidated, impaired or affected, in any
respect, by reason of the fact that any one or more of the officers, directors
or stockholders of the Corporation shall individually be party or parties
thereto or otherwise interested therein, or shall be officers, directors or
stockholders of any other corporation or corporations which shall be party or
parties thereto or otherwise interested therein; provided that such contract or
other transactions be duly authorized or ratified by the Board of Directors,
with the assenting vote of a majority of the disinterested directors then
present, or, if only one such is present, with his assenting vote.
NINTH: No stockholder action may be taken except at an annual or
special meeting of stockholders of the corporation, and stockholders may not
take any action by written consent in lieu of a meeting.
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 66 2/3% of the
Voting Stock, voting together as a single class, shall be required to amend or
repeal, or adopt any provision inconsistent with, this Article NINTH.
TENTH: Unless required by law or demanded by a stockholder of the
Corporation entitled to vote at a meeting of stockholders or determined by the
chairman of such meeting to be advisable, the vote on any question need not be
by ballot. On a vote by ballot, each ballot shall be signed by the stockholder
voting, or his proxy if there be such proxy, and shall state the number of
shares voted by such stockholder or proxy.
ELEVENTH: The Corporation shall indemnify to the full extent authorized
or permitted by law any person made, or threatened to be made, a party to any
action or proceeding (whether civil or criminal or otherwise) by reason of the
fact that he, his testator or intestate, is or was a director or officer of the
Corporation or by reason of the fact that such director or officer, at the
request of the Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
in any capacity. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers may be
entitled by law.
3
<PAGE> 4
TWELFTH: (1) Except as set forth in Section (2) of this Article
TWELFTH:
(a) any merger or consolidation of the Corporation or any of
its subsidiaries with or into any other corporation; or
(b) any sale, lease, exchange, pledge, transfer or other
disposition of all or substantially all of the property and assets of
the Corporation or any of its subsidiaries to or with any other
corporation, person or other entity; or
(c) any sale, lease, exchange, pledge, transfer or other
disposition to the Corporation or any of its subsidiaries of any assets,
cash, securities or other property of any other corporation, person or
other entity in exchange for securities of the Corporation or any of its
subsidiaries; or
(d) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation; or
(e) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its subsidiaries or any
other transaction which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any
class of equity or convertible securities of the Corporation or any
subsidiary which is directly or indirectly owned by any corporation,
person or other entity which is the beneficial owner, directly or
indirectly, of 10% or more of the Voting Stock;
shall require the affirmative vote of the holders of shares representing at
least 66 2/3% of the Voting Stock, voting together as a single class. Such
affirmative vote, as provided in this Article TWELFTH, shall be in lieu of any
lesser vote of the holders of the stock of the Corporation otherwise provided
by law or any agreement or contract to which the Corporation is a party, and
shall be in addition to any affirmative vote of the holders of any particular
class or series of Voting Stock required by law or fixed by or pursuant to this
Certificate of Incorporation.
(2) The provisions of this Article TWELFTH shall not apply to any
transaction described in clauses (a), (b), (c), (d) or (e) of Section (1) of
this Article TWELFTH if:
(a) the Board of Directors of the Corporation shall have
approved such transaction prior to the time that such corporation,
person or other entity, or any Affiliate (as herein defined) thereof,
became the beneficial owner, directly or indirectly, of 10% or more of
the Voting Stock, or
(b) a majority of the outstanding shares of stock of such
other corporation is owned of record or beneficially, directly or
indirectly, by the Corporation or its subsidiaries.
4
<PAGE> 5
(3) For the purpose of this Article TWELFTH:
(a) An "Affiliate" of, or a person "Affiliated" with, a
specified person, is a person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under
common control with, the person specified.
(b) The term 'Associate," used to indicate a relationship with
any person, means (1) any corporation or organization (other than the
Corporation or a Subsidiary of the Corporation) of which such person is
an officer or partner or is, directly or indirectly, the beneficial
owner of 10% or more of any class of equity securities, (2) any trust or
other estate in which such person has a substantial beneficial interest
or as to which such person serves as trustee or in a similar fiduciary
capacity, and (3) any relative or spouse of such person, or any relative
of such spouse, who has the same home as such person.
(c) A person shall be a "beneficial owner" of any Voting
Stock:
(1) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or
(2) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants or
options, or otherwise, or (ii) any right to vote pursuant to any
agreement, arrangement or understanding; or
(3) which is beneficially owned, directly or
indirectly, by any other person with which such person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any security or any class of the Corporation or any
of its Subsidiaries.
Also for purposes of this Article TWELFTH, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of clauses (c)(2)(i) and (c)(3) of Section (3) of this Article
TWELFTH, but shall not include any other shares which may be issuable either
immediately or at some future date pursuant to any agreement, or upon exercise
or conversion of rights, warrants or options, or otherwise.
A majority of the Board of Directors of the Corporation shall have the
power and duty to determine for the purposes of this Article TWELFTH, on the
basis of information known to them after reasonable inquiry, whether (i) any
corporation, person or other entity "beneficially owns", directly or
indirectly, 10% or more of Voting Stock and (ii) any corporation, person or
other entity is an Affiliate or
5
<PAGE> 6
Associate of another. Any such determination made in good faith shall be
conclusive and binding for all purposes of this Article TWELFTH.
(4) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
66 2/3% of the Voting Stock, voting together as a single class, shall be
require, to amend or repeal, or adopt any provision inconsistent with, this
Article TWELFTH.
THIRTEENTH: The Board of Directors shall have the power to adopt,
amend, and repeal the By-laws of the Corporation. Notwithstanding anything in
this Certificate or the By-laws of this Corporation to the contrary (and
notwithstanding that a lesser percentage may be specified by law or in the By-
laws), any provision of the By-laws that is consistent with any provision of
this Certificate of Incorporation that requires the affirmative vote of at
least 66 2/3% of the Voting Stock, voting together as a single class, to amend,
repeal or adopt any provision inconsistent therewith shall not be amended or
repealed, and no provision inconsistent therewith shall be adopted, without the
affirmative vote of the holders of at least 66 2/3% of the Voting Stock, voting
together as a single class.
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 66 2/3% of the
Voting Stock, voting together as a single class, shall be required to amend or
repeal, or adopt any provision inconsistent with, this Article THIRTEENTH.
FOURTEENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
FIFTEENTH: This Restated Certificate of Incorporation was duly adopted
on February 22, 1986, pursuant to the provisions of Section 242 and Section 245
of the General Corporation Law of the State of Delaware.
Dated: February 22, 1986.
By: RICHARD W. HEATH
--------------------------------------
Richard W. Heath, President
ATTEST:
By: VICKI S. MILLER
--------------------------------
Vicki S. Miller, Secretary
6
<PAGE> 1
EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
BEAUTICONTROL COSMETICS, INC.
BeautiControl Cosmetics, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware
(the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the following resolutions setting forth a proposed
amendment of the Restated Certificate of Incorporation of the Corporation,
declaring said amendment to be advisable and directing that said amendment be
submitted to the stockholders of the Corporation for consideration thereof were
adopted by Unanimous Consent of the Board of Directors of the Corporation,
dated February 9, 1987. The resolutions setting forth the proposed amendment
are as follows:
"RESOLVED, that Article Eleventh of the Restated Certificate of
Incorporation be, and it hereby is, amended by adding thereto the
following paragraph:
"To the fullest extent permitted by the Delaware General
Corporation Law, as it now exists or may hereafter be amended, a
director of the Corporation shall not be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Any repeal or modification of this paragraph by the
stockholders of the Corporation shall be prospective only and shall not
adversely affect any limitation on the personal liability of a director
of the Corporation existing at the time of such repeal or modification."
and, be it
FURTHER RESOLVED, that the foregoing amendment to the Restated
Certificate of Incorporation of the Corporation be submitted to the
stockholders of the Corporation for their consideration at the next
Annual Meeting of Stockholders of the Corporation in accordance with
Section 242 of the Delaware General Corporation Law."
SECOND: That thereafter, an Annual Meeting of the Stockholders of the
Corporation was duly called and held on March 26, 1987, upon notice in
accordance with Section 222 of the General Corporation Law of the State of
Delaware and the Bylaws of the Corporation at which meeting the necessary-
number of shares as required by statute were voted in favor of the amendment.
<PAGE> 2
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under
or by reason of said amendment.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Richard W. Heath, its President, and Vicki S. Miller, its Secretary,
this 30th day of March, 1987.
BEAUTICONTROL COSMETICS, INC.
By: RICHARD W. HEATH
--------------------------------------
President
ATTEST: VICKI S. MILLER
----------------------------------
Secretary
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EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
BEAUTICONTROL COSMETICS, INC.
BeautiControl Cosmetics, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware
(the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the following resolutions setting forth a proposed
amendment of the Restated Certificate of Incorporation of the Corporation,
declaring said amendment to be advisable and directing that said amendment be
submitted to the stockholders of the Corporation for consideration thereof were
adopted by the Board of Directors of the Corporation, on February 26, 1992.
The resolutions setting forth the proposed amendment are as follows:
"RESOLVED, that Article Fourth of the Restated Certificate of
Incorporation be, and it hereby is, amended to read as follows:
'FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 21,000,000 shares, of which
20,000,000 shares shall be Common Stock, par value $0.10 per share
("Common Shares"), and 1,000,000 shares shall be Preferred Stock, $0.10
par value ("Preferred Stock").'
and, be it
FURTHER RESOLVED, that the amendment be submitted to the
Corporation's stockholders for their consideration at the upcoming
Annual Meeting of Stockholders to be held April 2, 1992."
SECOND: That thereafter, an Annual Meeting of the Stockholders of the
Corporation was duly called and held on April 2, 1992, upon notice in
accordance with Section 222 of the General Corporation Law of the State of
Delaware and the Bylaws of the Corporation, at which meeting the necessary
number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under
or by reason of said amendment.
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Richard W. Heath, its President, and Vicki S. Miller, its Secretary,
on April 3, 1992.
BEAUTICONTROL COSMETICS, INC.
By: RICHARD W. HEATH
--------------------------------------
President
Attest: VICKI S. MILLER
----------------------------------
Secretary
2
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EXHIBIT 3.4
As Amended On
March 21, 1991
BY-LAWS
OF
BEAUTICONTROL COSMETICS, INC.
ARTICLE I
OFFICES
Section 1. Delaware Office. The office of BeautiControl Cosmetics,
Inc. (hereinafter called the Corporation) within the State of Delaware shall be
in the City of Wilmington, County of New Castle.
Section 2. Other Offices. The Corporation may also have an office or
offices and keep the books and records of the Corporation, except as may
otherwise be required by law, in such other place or places, either within or
without the State of Delaware, as the Board of Directors of the Corporation
(hereinafter called the Board) may from time to time determine or the business
of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of stockholders of the
Corporation shall be held at the office of the Corporation in the State of
Delaware or at such other place, within or without the State of Delaware, as
may from time to time be fixed by the Board or specified or fixed in the
respective notices or waivers of notice thereof.
Section 2. Annual Meetings. The annual meeting of stockholders of
the Corporation for the election of directors and for the transaction of such
other business as may properly come before the meeting shall be held at such
date and time as may be fixed by the Board from time to time. If the annual
meeting for the election of directors shall not be held on the day designated,
the Board shall call a special meeting of stockholders as soon as practicable
for the election of directors.
Section 3. Special Meetings. Special meetings of stockholders,
unless otherwise provided by law, may be called at any time only by the Board
pursuant to a resolution adopted by a majority of the then authorized number of
directors (as determined in accordance with Section 2 of Article III of these
By-laws), or by the Chief Executive Officer. Any such call must specify the
matter or matters to be acted upon at such meeting and only such matter or
matters shall be acted upon thereat.
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Section 4. Notice of Meetings. Except as may otherwise be required
by law, notice of each meeting of stockholders, annual or special, shall be in
writing, shall state the purpose or purposes of the meeting, the place, date
and hour of the meeting and, unless it is the annual meeting, shall indicate
that the notice is being issued by or at the direction of the person or persons
calling the meeting, and a copy thereof shall be delivered or sent by mail, not
less than 10 or more than 60 days before the date of said meeting, to each
Stockholder entitled to vote at such meeting. If mailed, such notice shall be
directed to the Stockholder at his address as it appears on the stock record of
the Corporation, unless he shall have filed with the Secretary a written
request that notices to him be mailed to some other address, in which case it
shall be directed to him at such other address. Unless (i) the adjournment is
for more than thirty days, or (ii) the Board shall fix a new record date for
any adjourned meeting after the adjournment, notice of such adjourned meeting
need not be given if the time and place to which the meeting shall be adjourned
were announced at the meeting at which the adjournment was taken.
Section 5. Quorum. At each meeting of stockholders of the
Corporation, the holders of a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote shall be present or
represented by proxy to constitute a quorum for the transaction of business,
except as otherwise provided by law.
Section 6. Adjournments. In the absence of a quorum at any meeting
of stockholders or any adjournment or adjournments thereof, the chairman of the
meeting or a majority in interest of those present or represented by proxy and
entitled to vote may adjourn the meeting from time to time until a quorum shall
be present or represented by proxy. At any such adjourned meeting at which a
quorum shall be present or represented by proxy, any business may be transacted
which might have been transacted at the meeting as originally called if a
quorum had been present or represented by proxy thereat.
Section 7. Order of Business. The order of business at all meetings
of stockholders shall be as determined by the chairman of the meeting.
Section 8. Voting. Except as otherwise provided in the Certificate
of Incorporation, at each meeting of stockholders, every Stockholder of the
Corporation shall be entitled to one vote for every share of capital stock
standing in his name on the stock records of the Corporation (i) at the time
fixed pursuant to Section 6 of Article VII of these By-laws as the record date
for the determination of stockholders entitled to vote at such meeting, or (ii)
if no such record date shall have been fixed, then at the close of business on
the date next preceding the day on which notice thereof shall be given, At each
meeting of stockholders, all matters (except as otherwise provided in Section 4
of Article III of these By-laws and except in cases where a larger vote is
required by law or by the Certificate of Incorporation of the Corporation or
these By-laws) shall be decided by a majority of the votes cast at such meeting
by the holders of shares present or represented by proxy and entitled to vote
thereon, a quorum being present.
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Section 9. Inspectors. For each election of directors by the
stockholders and in any case in which it shall be advisable, in the opinion of
the Board, that the voting upon any other matter shall be conducted by
inspectors of election, the Board shall appoint two inspectors of election.
If, for any such election of directors or the voting upon any such other
matter, any inspector appointed by the Board shall be unwilling or unable to
serve, or if the Board shall fail to appoint inspectors, the chairman of the
meeting shall appoint the necessary inspector or inspectors. The inspectors so
appointed, before entering upon the discharge of their duties, shall be sworn
faithfully to execute the duties of inspectors with strict impartiality, and
according to the best of their ability, and the oath so taken shall be
subscribed by them. Such inspectors shall determine the number of shares
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum, the validity and effect of proxies, and
shall receive votes or ballots, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes or
ballots, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. on request of the chairman
of the meeting or any Stockholder entitled to vote thereat, the inspectors
shall make a report in writing of any challenge, question or matter determined
by them and shall execute a certificate of any fact found by them. No director
or candidate for the office of director shall act as an inspector of election
of directors. Inspectors need not be stockholders.
Section 10. New Business. Any new business to be taken up at any
annual meeting of stockholders shall be stated in writing and filed with the
Secretary at least ten (10) days before the date of the annual meeting, and all
business so stated, proposed and filed shall be considered at the annual
meeting, but no other proposal shall be acted upon at the annual meeting of
stockholders. Any stockholder may make any other proposal at the annual
meeting, and the proposal may be discussed and considered, but unless stated in
writing and filed with the Secretary at least ten (10) days before the meeting
such proposal shall be postponed for action at an adjourned, special or annual
meeting of stockholders taking place thirty (30) days or more thereafter. This
provision shall not prevent the consideration and approval or disapproval at
the annual meeting of stockholders of reports of officers, directors and
committees, but in connection with such reports no new business shall be acted
upon at such annual meeting unless stated as herein provided.
Section 11. Certain Rules of Procedure Relating to Stockholder
Meetings. All stockholder meetings, annual or special, shall be governed in
accordance with the following rules:
(i) Only stockholders of record will be permitted to present
motions from the floor at any meeting of stockholders.
(ii) The chairman of the meeting shall preside over and conduct
the meeting in a fair and reasonable manner, and all
questions of procedure or conduct of the meeting shall be
decided solely by the chairman of the meeting. The
chairman of the meeting shall
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have all power and authority vested in a presiding officer
by law or practice to conduct an orderly meeting. Among
other things, the chairman of the meeting shall have the
power to adjourn or recess the meeting, to silence or
expel persons to insure the orderly conduct of the
meeting, to declare motions or persons out of order, to
prescribe rules of conduct and an agenda for the meeting,
to impose reasonable time limits on questions and remarks
by any stockholder, to limit the number of questions a
stockholder may ask, to limit the nature of questions and
comments to one subject matter at a time as dictated by
any agenda for the meeting, to limit the number of
speakers or persons addressing the chairman of the meeting
or the meeting, to determine when the polls shall be
closed, to limit the attendance at the meeting to
stockholders of record, beneficial owners of stock who
present letters from the record holders confirming their
status as beneficial owners, and the proxies of such
record and beneficial holders, and to limit the number of
proxies a stockholder may name.
Section 12. Requests for Stockholder List and Corporation Records.
Stockholders shall have those rights afforded under the General Corporation Law
of the State of Delaware to inspect a list of stockholders and other related
records and make copies or extracts therefrom. Such request shall be in
writing in compliance with Section 220 of the General Corporation Law of the
State of Delaware. In addition, any stockholder making such a request must
agree that any information so inspected, copied or extracted by the stockholder
shall be kept confidential, that any copies or extracts of such information
shall be returned to the Corporation and that such information shall only be
used for the purpose stated in the request. Information so requested shall be
made available for inspecting, copying or extracting at the principal executive
offices of the Corporation. Each stockholder desiring a photostatic or other
duplicate copies of any of such information requested shall make arrangements
to provide such duplicating or other equipment necessary in the city where the
Corporation's principal executive offices are located. Alternative
arrangements with respect to this Section 12 may be permitted in the discretion
of the Chief Executive officer of the Corporation or by vote of the Board of
Directors.
ARTICLE III
DIRECTORS
Section 1. Powers. The business of the Corporation shall be managed
under the direction of the Board. The Board may exercise all such authority
and powers of the Corporation and do all such lawful acts and things as are not
by law or otherwise directed or required to be exercised or done by the
stockholders.
Section 2. Number, Election and Terms. The authorized number of
directors may be determined from time to time by vote of a majority of the then
authorized
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number of directors; provided however, that such number shall not be less than
five nor more than nine. The directors, shall be classified with respect to
the time for which they severally hold office, into three classes, as nearly
equal in number as possible, as determined by the Board, one class to be
originally elected for a term expiring at the annual meeting of stockholders to
be held in 1986, another class to be originally elected for a term expiring at
the annual meeting of stockholders to be held in 1987, and another class to be
originally elected for a term expiring at the annual meeting of stockholders to
be held in 1988, with the members of each class to hold office until their
successors have been elected and qualified. At each annual meeting of
stockholders, the successors of the class of directors whose term expires at
that meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election. No decrease in the number of directors constituting the Board shall
shorten the term of any incumbent director.
Section 3. Nominating Procedure for Directors and Qualifications.
(a) Nominating Procedure. Nominations for the election of directors
may be made by the Board of Directors or a committee appointed by the
Board of Directors or by any stockholder entitled to vote in the
election of directors generally. However, any stockholder entitled to
vote in the election of directors generally may nominate one or more
persons for election as directors at a meeting of stockholders only if
written notice of such stockholder's intent to make such nomination or
nominations has been given to the Secretary of the Corporation not later
than (1) with respect to an election to be held at an annual meeting of
stockholders, at least sixty (60) days in advance of such meeting and
(2) with respect to an election to be held at a special meeting of
stockholders, no later than ten (10) days after the date on which notice
of such meeting was first sent to stockholders. Each such notice shall
set forth (i) the name, age, residence address and business address of
the nominating stockholder and of the person or persons to be nominated;
(ii) a representation that the nominating stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (iii) a description of all
arrangements or understandings between the nominating stockholder and
each nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made
by the stockholder or such nominees are to be elected; (iv) such other
information regarding each nominee proposed by such stockholder as would
be required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission, had the nominee
been nominated, or intended to be nominated, by the Board of Directors
or a committee thereof; (v) a statement as to each proposed nominee and
a statement as to the nominating stockholder stating whether the nominee
or stockholder has been a participant in any proxy contest or other
change of corporate control within the past ten (10) years, and , if so,
the statement shall indicate the principals involved, the subject matter
of the contest, the outcome
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thereof and the relationship of the nominee and the stockholder to the
principals; (vi) if any shares of the Corporation's stock owned of
record or beneficially, directly or indirectly, by each proposed nominee
or the nominating stockholder were acquired in the last two years, a
statement of the dates of acquisition and amounts acquired on each date;
(vii) a description of any arrangement or understanding of each nominee
and of the nominating stockholder with any person regarding future
employment by the nominee or stockholder with the Corporation or any
future transaction to which the Corporation will or may be a party;
(viii) a statement as to each nominee and a statement as to the
nominating stockholder as to whether or not the nominee or stockholder
will bear any part of the expense incurred in any proxy solicitation,
and, if so, the amount thereof; (ix) the consent of each nominee to
serve as a director of the Corporation if so elected; and (x) any plans
or proposals that each nominee or the nominating stockholder may have
that relate to or may result in the acquisition or disposition of
securities of the Corporation, an extraordinary corporate transaction
(such as a merger, reorganization or liquidation) involving the
Corporation or any of its subsidiaries, a sale or transfer of a material
amount of assets of the Corporation or of any of its subsidiaries, any
change in the Board of Directors or management of the Corporation
(including any plans of proposals to change the number or term of
directors or to fill any existing vacancies on the Board), any material
change in the present capitalization or dividend policy of the
Corporation, any change in the Corporation's Certificate of
Incorporation or By-laws, causing a class of securities of the
Corporation to be delisted from a national securities exchange or to
cease to be quoted on an inter-dealer quotation system of a registered
national securities association, a class of equity securities of the
Corporation becoming eligible for termination of registration pursuant
to Section 12(g)(4) of the Securities Exchange Act of 1934, or any other
material change in the Corporation's business or corporate structure or
any action similar to those listed above. The Board of Directors of the
Corporation may disqualify any nominee who fails to provide it with
complete and accurate information as required above. The chairman of
the meeting may, in his discretion, determine and declare to the meeting
that a nomination not made in accordance with the foregoing procedure
shall be disregarded.
(b) Certain Qualifications. No person shall be a member of the Board
of Directors (i) who owns, together with his family residing with him,
directly or indirectly, more than one percent (1%) of the outstanding
shares of any other entity, or an affiliate or subsidiary thereof, that
competes with the Corporation or any of its subsidiaries, (ii) who is a
director, officer, employee, agent, nominee, attorney or investment
banker of or for any other entity, or an affiliate or subsidiary
thereof, that competes with the Corporation or any of its subsidiaries
or (iii) who has or is the nominee of anyone who has any contract,
arrangement or understanding with any other entity, or an affiliate of
subsidiary thereof, that competes with the Corporation or any of its
subsidiaries or with any officer, employee, agent, nominee, attorney or
other
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representative thereof, that he will reveal or in any way utilize
information obtained as a director or that he will directly or
indirectly attempt to effect or encourage any action of the Corporation.
Notwithstanding any limitation in this subsection 3(b), the Board of
Directors in their discretion may waive any or all of the above
requirements. Directors do not have to be stockholders of the
Corporation.
Section 4. Election. At each meeting of stockholders for the
election of directors at which a quorum is present, the persons receiving a
plurality of the votes cast shall be elected directors.
Section 5. Place of Meetings. Meetings of the Board shall be held at
the Corporation's office in the State of Delaware or at such other place,
within or without such State, as the Board may from time to time determine or
as shall be specified or fixed in the notice or waiver of notice of any such
meeting.
Section 6. Regular Meetings. Regular meetings of the Board shall be
held in accordance with a yearly meeting schedule as determined by the Board;
or such meetings may be held on such other days and at such other times as the
Board may from time to time determine. Notice of regular meetings of the Board
need not be given except as otherwise required by these By-laws.
Section 7. Special Meetings Special meetings of the Board may be
called by the Chief Executive Officer and shall be called by the Secretary at
the request of any two of the other directors.
Section 8. Notice of Meetings. Notice of each special meeting of the
Board (and of each regular meeting for which notice shall be required), stating
the time, place and purposes thereof, shall be mailed to each director,
addressed to him at his residence or usual place of business, or shall be sent
to him by telex, cable or telegram so addressed, or shall be given personally
or by telephone, on twenty-four hours notice, or such shorter notice as the
person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 9. Quorum and Manner of Acting. The presence of at least a
majority of the authorized number of directors shall be necessary and
sufficient to constitute a quorum for the transaction of business at any
meeting of the Board. If a quorum shall not be present at any meeting of the
Board, a majority of the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. Except where a different vote is required by law, the
act of a majority of the directors present at any meeting at which a quorum
shall be present shall be the act of the Board. Any action required or
permitted to be taken by the Board may be taken without a meeting if all the
directors consent in writing to the adoption of a resolution authorizing the
action. The resolution and the written consents thereto by the directors shall
be filed with the minutes of the proceedings of the Board. Any one or more
directors may participate in any meeting of the Board by means of a conference
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telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at a meeting of
the Board.
Section 10. Resignation. Any directors may resign at any time by
giving written notice to the Corporation, provided, however, that written
notice to the Board, the Chairman of the Board, the Chief Executive Officer or
the Secretary shall be deemed to constitute notice to the Corporation. Such
resignation shall take effect upon receipt of such notice or at any later time
specified therein, and, unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make it effective.
Section 11. Compensation of Directors. The Board may provide for the
payment to any of the directors, other than officers or employees of the
Corporation, of a specified amount for services as a director or member of a
committee of the Board, or of a specified amount for attendance at each regular
or special Board meeting or committee meeting, or of both, and all directors
shall be reimbursed for expenses of attendance at any such meeting; provided,
however, that nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section 12. Evaluation of Business Combinations. The Board of
Directors of the Corporation, when evaluating any offer of another party to
make a tender or exchange offer for any equity security of the Corporation or
to otherwise effect a transaction described in Paragraph (1) of Article TWELFTH
of the Corporation's Certificate of Incorporation), shall, in connection with
the exercise of its judgment as to what is in the best interests of the
Corporation as a whole, be authorized to give due consideration to such factors
as the Board of Directors determines to be relevant, including, without
limitation:
(i) the interests of the Corporation's stockholders;
(ii) whether the proposed transaction violates federal or state
law;
(iii) an analysis of not only the consideration being offered in
the proposed transaction, in relation to the then-current
market price for the outstanding capital stock of the
Corporation, but also in relation to the market for the
capital stock of the Corporation over a period of years,
the estimated price which might be achieved in a
negotiated sale of the Corporation as a whole or in part
or through orderly liquidation, the premiums over market
price for the securities of other corporations in other
similar transactions, current political, economic and
other factors bearing on securities prices and the
Corporation's financial condition and future prospects;
and
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(iv) the social, legal and economic effects upon employees,
suppliers, customers and others having similar
relationships with the Corporation and the communities in
which the Corporation conducts its business.
In connection with any such evaluation, the Board of Directors is
authorized to conduct its investigation and to engage in such legal proceedings
as the Board of Directors may determine.
ARTICLE IV
COMMITTEES OF THE BOARD
Section 1. Designation, Powers and Name. The Board of Directors may,
by resolution passed by a majority of the whole Board, designate one or more
committees, including, if they shall so determine, an Executive Committee, each
such committee to consist of one or more of the directors of the Corporation.
If an Audit Committee or a Compensation Committee is designated, each such
committee shall consist of one or more directors of the Corporation who are not
employees of the Corporation. The committee shall have and may exercise such
of the powers of the Board of Directors in the management of the business and
affairs of the corporation as may be provided in such resolution; provided,
however, that no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation (except that a committee may, to
the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the Board of Directors, fix any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation), adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending
the By-laws of the corporation; and, provided further, that, unless the
resolution establishing the committee expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock. The committee may authorize the seal of the corporation to
be affixed to all papers which may require it. The Board of Directors may
designate one or more directors as alternate member of any committee, who may
replace any absent or disqualified member at any meeting.
Section 2. Minutes. Each committee of directors shall keep regular
minutes of its proceedings and report the same to the Board of Directors when
required.
Section 3. Compensation. Members of special or standing committees
may be allowed compensation for attending committee meetings, if the Board of
Directors shall so determine.
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Section 4. Action by Consent; Participation by Telephone or Similar
Equipment. Unless the Board shall otherwise provide, any action required or
permitted to be taken by any committee may be taken without a meeting if all
members of the committee consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents thereto by the
members of the committee shall be filed with the minutes of the proceedings of
the committee. Unless the Board shall otherwise provide, any one or more
members of any such committee may participate in any meeting of the committee
by means of conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other.
Participation by such means shall constitute presence in person at a meeting of
the committee.
Section 5. Changes in Committees; Resignations; Removals. The Board
shall have power, by the affirmative vote of a majority of the authorized
number of directors, at any time to change the members of, to fill vacancies
in, and to discharge any committee of the Board. Any member of any such
committee may resign at any time by giving notice to the Corporation, provided,
however, that notice to the Board, the Chairman of the Board, the Chief
Executive Officer, the Chairman of such committee or the Secretary shall be
deemed to constitute notice to the Corporation. Such resignation shall take
effect upon receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective. Any member of any such committee may be
removed at any time, either with or without cause by the affirmative vote of a
ma]ority of the authorized number of directors at any meeting of the Board
called for that purpose.
ARTICLE V
OFFICERS
Section 1. Officers. The officers of the Corporation shall be a
Chairman of the Board (if such office is created by resolution adopted by the
Board and who may also be designated the Chief Executive Officer), a President
(who may also be designated the Chief Executive Officer), one or more Vice
Presidents (any one or more of whom may be designated Executive Vice President
or Senior Vice President), a Secretary and a Treasurer. The Board of Directors
may appoint such other officers and agents, including Assistant Vice
Presidents, Assistant Secretaries and Assistant Treasurers, as it shall deem
necessary, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined by the Board. Any two or
more offices, other than the offices of President and Secretary, may be held by
the same person. No officer shall execute, acknowledge, verify or countersign
any instrument on behalf of the corporation in more than one capacity, if such
instrument is required by law, by these By-laws or by any act of the
Corporation to be executed, acknowledged, verified or countersigned by two or
more officers. The Chairman of the Board and the President shall be elected
from among the directors. With the foregoing exceptions, none of the other
officers need be a
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director, and none of the officers need be a stockholder of the Corporation
unless otherwise required by the Certificate of Incorporation.
Section 2. Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at its first
regular meeting held after the annual meeting of stockholders or as soon
thereafter as conveniently practicable. Each officer shall hold office until
his successor shall have been elected or appointed and shall have qualified or
until his death or the effective date of his resignation or removal, or until
he shall cease to be a director in the case of the Chairman of the Board or the
President.
Section 3. Removal and Resignation. Any officer or agent elected or
appointed by the Board of Directors may be removed without cause by the
affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Any officer may resign at any time by giving written
notice to the Corporation. Any such resignation shall take effect at the date
of the 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 4. Vacancies. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
Section 5. Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors or pursuant to its
direction; and no officer shall be prevented from receiving such salary by
reason of his also being a director.
Section 6. Chairman of the Board. The Chairman of the Board (if such
office is created by resolution adopted by the Board and who may also hold the
office of President or other offices) shall have such duties as the Board of
Directors may prescribe. In the Chairman's absence, such duties shall be
attended to by the President.
Section 7. President. The President shall preside at all meetings of
the Board of Directors and at all meetings of the stockholders. The President
shall be the Chief Executive Officer of the Corporation and shall perform such
duties and exercise such powers as usually appertain to such title and such
other duties as may be prescribed by the stockholders, the Board of Directors
or the Executive Committee (if any) from time to time. The President shall
have the power to appoint and remove subordinate officers, agents and
employees, including Assistant Secretaries and Assistant Treasurers except that
the President may not remove those elected or appointed by the Board of
Directors. The President shall keep the Board of Directors and the Executive
Committee (if any) fully informed and shall consult them concerning the
business of the Corporation. The President may sign, with the Secretary or
another officer of the Corporation thereunto authorized y the Board of
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Directors, certificates for shares of the Corporation and any deeds, bonds,
mortgages, contracts, checks, notes, drafts or other instruments the issue or
execution of which shall have been authorized by resolution of the Board of
Directors, except in cases where the signing and execution thereof has been
expressly delegated by these By-laws or by the Board of Directors to some other
officer or agent of the Corporation, or shall be required by law to be
otherwise executed. The President shall vote, or give a proxy to any other
officer of the Corporation to vote, all shares of stock of any other
corporation standing in the name of the Corporation. In general, the President
shall perform all other duties normally incident to or as usually appertain to
the office of President and such other duties as may be prescribed by the
stockholders, the Board of Directors or the Executive Committee (if any) from
time to time.
Section 8. Vice Presidents. In the absence of the President, or in
the event of his inability or refusal to act, the Executive Vice President (or
in the event there shall be no Vice President designated Executive Vice
President, any vice President designated by the Board) shall perform the duties
and exercise the powers of the President. Any Vice President may sign, with
the Secretary or Assistant Secretary, certificates for shares of the
Corporation and any deeds, bonds, mortgages, contracts, checks, notes, drafts
or other instruments the issue or execution of which shall have been authorized
by resolution of the Board of Directors, except in cases where the signing and
execution thereof has been expressly delegated by these By-laws or by the Board
of Directors to some other officer or agent of the Corporation, or shall be
required by law to e otherwise executed. The Vice Presidents shall perform
such other duties as from time to time may be assigned to them by the Chairman
of the Board (if any), the President, the Board of Directors or the Executive
Committee (if any).
Section 9. Secretary. The Secretary shall (a) record the proceedings
of the meetings of the stockholders, the Board of Directors and committees of
directors in the permanent minute books of the Corporation kept for that
purpose; (b) see that all notices are duly given in accordance with the
provisions of these By-laws and as required by law; (c) be custodian of the
corporate records and of the seal of the Corporation, and see that the seal of
the Corporation or a facsimile thereof is affixed to all certificates for
shares of the Corporation prior to the issue thereof and 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; (d) keep or
cause to be kept a register of the post office address of each stockholder
which shall be furnished by such stockholder; (e) sign with the Chairman of the
Board (if any), the President, or an Executive Vice President or Vice
President, certificates for shares of the Corporation and any deeds, bonds,
mortgages, contracts, checks, notes, drafts or other instruments the issue or
execution of which shall have been authorized by resolution of the Board of
Directors, except in cases where the signing and execution thereof has been
expressly delegated by these By-laws or by the Board of Directors to some other
officer or agent of the Corporation, or shall be required by law to be
otherwise executed; (f) have general charge of the stock transfer books of the
Corporation; and (g) in general, perform all duties normally incident to the
office of Secretary and such other duties as from time to time may be assigned
by the
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Chairman of the Board (if any), the President, the Board of Directors or the
Executive Committee (if any).
Section 10. Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his or her duties in
such sum and with such surety or sureties as the Board of Directors shall
determine. The Treasurer shall (a) have charge and custody of and be
responsible for all funds and securities of the Corporation; receive and give
receipts for monies due and payable to the Corporation from any source
whatsoever and deposit all such monies in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of Section 4 of Article VI of these By-laws; (b) prepare,
or cause to be prepared, for submission at each regular meeting of the Board of
Directors, at each annual meeting of the stockholders, and at such other times
as may be required by the Board of Directors, the Chairman of the Board (if
any), the President or the Executive Committee (if any), a statement of
financial condition of the Corporation in such detail as may be required; (c)
sign with the Chairman of the Board (if any), the President, or an Executive
Vice President or Vice President, certificates for shares of the Corporation
and any deeds, bonds, mortgages, contracts, checks, notes, drafts or other
instruments the issue or execution of which shall have been authorized by
resolution of the Board of Directors, except in cases where the signing and
execution thereof has been expressly delegated by these By-laws or by the Board
of Directors to some other officer or agent of the Corporation, or shall be
required by law to be otherwise executed; and (d) in general, perform all the
duties incident to the office of Treasurer and such other duties as from time
to time may be assigned by the Chairman of the Board (if any), the President,
the Board of Directors or the Executive Committee (if any).
Section 11. Assistant Secretary or Treasurer. The Assistant
Secretaries and Assistant Treasurers shall, in general, perform such duties as
shall be assigned to them by the Secretary or the Treasurer, respectively, or
by the Chairman of the Board (if any), the President, the Board of Directors or
the Executive Committee (if any). The Assistant Secretaries and Assistant
Treasurers shall, in the absence of the Secretary or Treasurer, respectively,
or in their respective inability or refusal to act, perform all functions and
duties which such absent officers may delegate, but such delegation shall not
relieve the absent officer from the responsibilities and liabilities of their
office. The Assistant Secretaries may sign, with the Chairman of the Board (if
any), the President or Executive Vice President or Vice President, certificates
for shares of the Corporation and any deeds, bonds, mortgages, contracts,
checks, notes, drafts or other instruments the issue or execution of which
shall have been authorized by a resolution of the Board of Directors, except in
cases where the signing and execution thereof has been expressly delegated by
these By-laws or by the Board of Directors to some other officer or agent of
the Corporation, or shall be required by law to be otherwise executed. The
Assistant Treasurers shall respectively, if required by the Board of Directors,
give bonds for the faithful discharge of their duties in such sums and with
such sureties as the Board of Directors shall determine.
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ARTICLE VI
CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
Section 1. Contracts. The Board may authorize any officer or
officers, agent or agents, in the name and on behalf of the Corporation, to
enter into any contract or to execute and deliver any instrument, which
authorization may be general or confined to specific instances; and, unless so
authorized by the Board, no officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement or to pledge
its credit or to render it liable pecuniarily for any purpose or for any
amount.
Section 2. Checks, etc. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidences of indebtedness of the Corporation, shall be
signed in the name and on behalf of the Corporation in such manner as shall
from time to time be authorized by the Board, which authorization may be
general or confined to specific instances.
Section 3. Loans. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board, which authorization may be general or confined to
specific instances. All bonds, debentures, notes and other obligations or
evidences of indebtedness of the Corporation issued for such loans shall be
made, executed and delivered as the Board shall authorize.
Section 4. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as may be selected by or
in the manner designated by the Board. The Board or its designees may make
such special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these By-laws, as may be deemed expedient.
ARTICLE VII
CAPITAL STOCK
Section 1. Stock Certificates. Each Stockholder shall be entitled to
have, in such form as shall be approved by the Board, a certificate or
certificates signed by the Chairman of the Board and the Chief Executive
Officer or the President and by either the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary (except that, when any such
certificate is countersigned by a transfer agent or registered by a registrar
other than the Corporation itself or any employee, the signatures of any such
officers may be facsimiles, engraved or printed), which may be sealed with the
seal of the Corporation (which seal may be a facsimile, engraved or printed),
certifying the number of shares of capital stock of the Corporation owned by
such Stockholder. In case any officer who has signed or whose facsimile
signature has been placed upon any such certificate shall have ceased to be
such officer before
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such certificate is issued, such certificate may be issued by the Corporation
with the same effect as if he were such officer at the date of its issue.
Section 2. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make or cause to have prepared or made, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the address of each
Stockholder and the number of shares registered in the name of each
Stockholder. Such list shall be open to the examination of any Stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten 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 time thereof, and may be inspected by any
Stockholder of the Corporation who is present.
Section 3. Stock Ledger. The stock ledger of the Corporation shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 2 of this Article VII or the books
of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 4. Transfers of Capital Stock. Transfers of shares of
capital stock of the Corporation shall be made only on the stock record of the
Corporation by the holder of record thereof or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation or the transfer agent thereof, and only on surrender of the
certificate or certificates representing such shares, properly endorsed or
accompanied by a duly executed stock transfer power. The Board may make such
additional rules and regulations as it may deem expedient concerning the issue
and transfer of certificates representing shares of the capital stock of the
Corporation.
Section 5. Lost Certificates. The Board of Directors may direct a
new certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
Section 6. Fixing of Record Date. 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, or entitled to receive payment of any
dividends or other distribution or allotment of any rights, or entitled to
exercise any
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rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix, in advance, a record
date, which shall not be more than sixty days nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
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 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
interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by law.
ARTICLE VIII
DIVIDENDS
Section 1. Declaration. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. Reserve. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors from time to time, in their absolute discretion
think proper as a reserve or reserves to meet contingencies or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Board of Directors shall think conducive to the
interests of the Corporation, and the Directors may modify or abolish any such
reserve in the manner in which it was created.
ARTICLE IX
INDEMNIFICATION
Section 1. Third Party Actions. 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, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that such person is or was a
director, trustee, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
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judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person 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 such person's 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
such person 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 such person's conduct was unlawful.
Section 2. Derivative Actions. 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 by or in the right of the
Corporation to procure a judgment in the Corporation's favor by reason of the
fact that such person is or was a director, trustee, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees) and amounts paid in settlement actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to amounts paid in settlement, the settlement of
the suit or action was in the best interests of the corporation; provided,
however, that no indemnification shall be made in respect of any claim, issue
or matter as to which such shall have been adjudged to be liable for gross
negligence or willful misconduct in the performance of such person's duty to
the Corporation unless and only to the extent that, the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of such liability, but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses as such court shall deem proper. The termination of any action or
suit by judgment or settlement shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interest of the
Corporation.
Section 3. Successful Defense. To the extent that a director,
trustee, officer, employee or agent of the Corporation has been successful on
the merits or otherwise, in whole or in part, in defense of any action, suit or
proceeding referred to in Sections (1) and (2) of this Article IX, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by such person in connection therewith.
Section 4. Authorization. Any indemnification under Sections (1) and
(2) of 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, trustee, officer, employee or agent is proper
in the circumstances because
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such person has met the applicable standard of conduct set forth above in
Sections (1) and (2) of this Article IX. Such determination shall be made (a)
by the Board of Directors of the Corporation by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, or (b) if such a quorum is not obtainable, by a majority vote of
directors who were not parties to such action, suit or proceeding, or (c) by
independent legal counsel (selected by one or more of the directors, whether or
not a quorum and whether or not disinterested) in a written opinion, or (d) by
the shareholders. Anyone making such a determination under this Section 4 may
determine that a person has met the standard therein set forth as to some
claims, issues or matters but not as to others, and may reasonably prorate
amounts to be paid as indemnification.
Section 5. Advances. Expenses incurred in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation, at any
time or from time to time in advance of the final disposition of such action,
suit or proceeding as authorized in the manner provided in Section 4 of this
Article IX upon receipt of an undertaking by or on behalf of the director or
officer 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. Such expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the Board of Directors deems appropriate.
Section 6. Non-Exclusivity. The indemnification provided by this
Article IX shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any law, by-law, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in such
person's 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,
trustee, officer, employee or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
Section 7. Insurance. The Corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a
director, trustee, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee, officer,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise, against any liability asserted against such person and
incurred by such person in any such capacity or arising out of such person's
status as such, whether or not the Corporation would have the power to
indemnify such person against such liability.
Section 8. "Corporation" Defined. For purposes of this Article IX,
references to the "corporation" shall include, in addition to the 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,
trustee, officers, employees or agents, so that any person who is or was a
director, trustee, officer, employee or agent of such constituent corporation
or of any entity a majority of the voting stock of which is owned by such
constituent corporation, or is or was serving at the request of such
constituent
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corporation as a director, trustee, 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 such person would have with respect
to such constituent corporation if its separate existence had continued.
Section 9. "Other Enterprises" Defined. For purposes of this Article
IX, references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the corporation" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the corporation"
as referred to in this Article IX.
ARTICLE X
SEAL
The Corporation's seal shall be circular in form and shall include the
words "BeautiControl Cosmetics, Inc., Delaware, 1985, Seal."
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice is required by law, the Certificate of Incorporation
or these By-laws, to be given to any director, member of a committee or
Stockholder, 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. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called
or convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waive of notice.
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ARTICLE XII
AMENDMENTS
These By-laws or any of them may be amended or supplemented in any
respect at any time, either (a) at any meeting of stockholders, provided that
any amendment or supplement proposed to be acted upon at any such meeting shall
have been described or referred to in the notice of such meeting, or (b) at any
meeting of the Board, provided that any amendment or supplement proposed to be
acted upon at any such meeting shall have been described or referred to in the
notice of such meeting or an announcement with respect thereto shall have been
made at the last previous Board meeting, and provided further that no amendment
or supplement adopted by the Board shall vary or conflict with any amendment or
supplement adopted by the stockholders. Notwithstanding the preceding
sentence, the affirmative vote of the holders of at least 66 2/3% of the voting
power of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to amend or repeal, or adopt any provisions
inconsistent with, Section 3 of Article II of these By-laws, of Section 2 of
Article III of these By-laws, the third sentence of Section 9 of Article III of
these By-laws, or this sentence.
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EXHIBIT 5.1
[HAYNES AND BOONE, L.L.P. LETTERHEAD]
December 4, 1996
BeautiControl Cosmetics, Inc.
2121 Midway
Carrollton, Texas 75006
Gentlemen:
We have acted as counsel to BeautiControl Cosmetics, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8, as it may be amended (the "Registration
Statement"), filed with the Securities and Exchange Commission (the
"Commission") on or about December 4, 1996, under the Securities Act of 1933
relating to the registration of 270,000 shares (the "Shares") of Common Stock,
par value $.10 per share (the "Common Stock"), of the Company that may be
issued from time to time upon the exercise of options granted under the 1996
Incentive Stock Option Plan and the 1996 Non-Qualified Stock Option Plan
(collectively referred to as the "Plans.").
We have examined (i) the Certificate of Incorporation and the Bylaws of the
Company; (ii) minutes and records of the corporate proceedings of the Company
with respect to the adoption of the Plans and the issuance of the Shares or
options pursuant to the Plans; (iii) certificates of certain officers and
directors of the Company; (iv) the Plans and the forms of agreements pertaining
thereto; and (v) such other documents as we have deemed necessary for the
expression of the opinions contained herein. In rendering the opinion set
forth below, we have assumed that all stock option exercise prices will exceed
$.10, the par value of the Shares.
Based upon the foregoing, and having due regard for such legal considerations
as we deem relevant, we are of the opinion that the 270,000 Shares, when issued
in accordance with the terms of the Plans and the option agreements relating to
the Shares, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement.
Very truly yours,
/s/ HAYNES AND BOONE, L.L.P.
HAYNES AND BOONE, L.L.P.
<PAGE> 1
EXHIBIT 32.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated December 27, 1995 accompanying the consolidated
financial statements of BeautiControl Cosmetics, Inc. and subsidiaries
appearing in the 1995 Annual Report of the Company to its stockholders included
in the Annual Report on Form 10-K for the year ended November 30, 1995 which is
incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration Statement of the aforementioned
report.
GRANT THORNTON LLP
Dallas, Texas
September 30, 1996
