BY-LAWS
OF
DESIGNS, INC.
Section 1. CERTIFICATE OF INCORPORATION AND BY-LAWS
1.1 These By-Laws are subject to the Certificate of Incorporation of
the Corporation. In these By-Laws, references to the Certificate of
Incorporation and By-Laws mean the provisions of the Certificate of
Incorporation and the By-Laws as are from time to time in effect.
Section 2. OFFICES
2.1 REGISTERED OFFICE. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
2.2 Other Offices. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
Section 3. STOCKHOLDERS
3.1 LOCATION OF MEETINGS. All meetings of the stockholders shall be
held at such place either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors. Any adjourned session of
any meeting shall be held at the place designated in the vote of adjournment.
3.2 ANNUAL MEETING. The annual meeting of stockholders shall be held
for the election of directors on the second Tuesday in June in each year, unless
that day be a legal holiday at the place where the meeting is to be held, in
which case the meeting shall be held at the same hour on the next succeeding day
not a legal holiday, or at such other date and time as shall be designated from
time to time by the Board of Directors. Any other business as may be required or
permitted by law or these By-Laws may properly come before the annual meeting.
3.3 SPECIAL MEETING IN PLACE OF ANNUAL MEETING. If the election for
directors shall not be held on the day designated by these By-Laws, the
directors shall cause the election to be held as soon thereafter as convenient,
and to that end, if the annual meeting is omitted on the day herein provided
therefor or if the election of directors shall not be held thereat, a special
meeting of the stockholders may be held in place of such omitted meeting or
election, and any business transacted or election held at such special meeting
shall have the same effect as if transacted or held at the annual meeting, and
in such case all references in these By-Laws to the annual meeting of the
stockholders, or to the annual election of directors, shall be deemed to refer
to or include such special meeting. Any such special meeting shall be called and
the purposes thereof shall be specified in the call, as provided in Section 3.4.
3.4 NOTICE OF ANNUAL MEETING. Written notice of the annual meeting
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting. Such notice may specify the business
to be transacted and actions to be taken at such meeting. No action shall be
taken at such meeting unless such notice is given, or unless waiver of such
notice is given by the holders of outstanding stock having not less than the
minimum number of votes necessary to take such action at a meeting at which all
shares entitled to vote thereon were voted. Prompt notice of all action taken in
connection with such waiver of notice shall be given to all stockholders not
present or represented at such meeting.
3.5 SPECIAL MEETINGS. Except as otherwise required by law and subject
to the rights, if any, of the holders of any series of preferred stock, special
meetings of the stockholders of the Corporation may be called only by the Board
of Directors pursuant to a resolution approved by the affirmative vote of a
majority of the directors then in office.
3.6 NOTICE OF SPECIAL MEETING. Written notice of a special meeting of
stockholders stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not less than ten nor
more than sixty days before the date of the meeting to each stockholder entitled
to vote at such meeting. No action shall be taken at such meeting unless such
notice is given, or unless waiver of such notice is given by the holders of
outstanding stock having not less than the minimum number of votes necessary to
take such action at a meeting at which all shares entitled to vote thereon were
voted. Prompt notice of all action taken in connection with such waiver of
notice shall be given to all stockholders not present or represented at such
meeting.
3.7 STOCKHOLDER LIST. The Secretary shall prepare and make, 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 who is present.
3.8 QUORUM OF STOCKHOLDERS. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise required by
law, or by the Certificate of Incorporation or by these By-Laws. Except as
otherwise provided by law, no stockholder present at a meeting may withhold his
shares from the quorum count by declaring his shares absent from the meeting.
3.9 ADJOURNMENT. Any meeting of stockholders may be adjourned from time
to time to any other time and to any other place at which a meeting of
stockholders may be held under these By-Laws, which time and place shall be
announced at the meeting, by a majority of votes cast upon the question, whether
or not a quorum is present. At such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
3.10 PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a stockholder
is entitled to participate, whether by waiving notice of any meeting, objecting
to or voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after three years from
its date unless such proxy provides for a longer period. Except as otherwise
provided by law, a stockholder may revoke any proxy which is not irrevocable by
attending the meeting for which the proxy was given and voting in person or by
filing an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date with the Secretary of the Corporation. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and, if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. The authorization of a proxy may but need
not be limited to specified action, provided, however, that if a proxy limits
its authorization to a meeting or meetings of stockholders, unless otherwise
specifically provided such proxy shall entitle the holder thereof to vote at any
adjourned session but shall not be valid after the final adjournment thereof.
3.11 INSPECTORS. The directors or the person presiding at the meeting
may, but need not, appoint one or more inspectors of election and any substitute
inspectors to act at the meeting or any adjournment thereof. Each inspector,
before entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors, if any,
shall determine the number of shares of stock outstanding and the voting power
of each, the shares of stock represented at the meeting, the existence of a
quorum and the validity and effect of proxies, and shall receive votes, ballots
or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, 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 person
presiding at the meeting, the inspectors shall make a report in writing of any
challenge, question or matter determined by them and execute a certificate of
any fact found by them.
3.12 ACTION BY VOTE. When a quorum is present at any meeting, whether
the same be an original or an adjourned session, a plurality of the votes
properly cast for election to any office shall elect to such office and a
majority of the votes properly cast upon any question other than an election to
an office shall decide the question, except when a larger vote is required by
law, by the Certificate of Incorporation or by these By-Laws. No ballot shall be
required for any election unless requested by a stockholder present or
represented at the meeting and entitled to vote in the election.
3.13 ACTION WITHOUT MEETINGS. Unless otherwise provided in the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
3.14 MATTERS TO BE CONSIDERED AT ANNUAL MEETINGS. At any annual meeting
of stockholders or any special meeting in lieu of annual meeting of stockholders
(for purposes of this Section 3.14 and Section 4.16 hereof, hereinafter referred
to as an "Annual Meeting"), only such business shall be conducted, and only such
proposals shall be acted upon, as shall have been properly brought before such
Annual Meeting. To be considered as properly brought before an Annual Meeting,
business must be: (a) specified in the notice of the Annual Meeting, (b)
otherwise properly brought before the annual meeting by, or at the direction of,
the Board of Directors, or (c) otherwise properly brought before the Annual
Meeting by any holder of record (both as of the time notice of such proposal is
given by the stockholder as set forth below and as of the record date for the
Annual Meeting in question) of any shares of capital stock of the Corporation
entitled to vote at such Annual Meeting who complies with the requirements set
forth in this Section 3.14.
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting by a stockholder of record of any
shares of capital stock entitled to vote at such Annual Meeting, such
stockholder shall: (i) give timely notice as required by this Section 3.14 to
the Secretary of the Corporation and (ii) be present at such Annual Meeting,
either in person or by a representative. A stockholder's notice shall be timely
if delivered to, or mailed to and received by, the Corporation at its principal
executive office not less than seventy-five days nor more than one hundred
twenty days prior to the anniversary date of the immediately preceding Annual
Meeting (for purposes of this Section 3.14 and Section 4.16 hereof, hereinafter
referred to as the "Anniversary Date"); provided, however, that in the event the
Annual Meeting is scheduled to be held on a date more than thirty days before
the Anniversary Date or more than sixty days after the Anniversary Date, a
stockholder's notice shall be timely if delivered to, or mailed to and received
by, the Corporation at its principal executive office not later than the close
of business on the later of (A) the seventy-fifth day prior to the scheduled
date of such Annual Meeting or (B) the fifteenth day following the day on which
public announcement of the date of such Annual Meeting is first made by the
Corporation.
For purposes of these By-Laws, "public announcement" shall mean: (i)
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service, (ii) a report or other document filed
publicly with the Securities and Exchange Commission (including, without
limitation, a Form 8-K), or (iii) a letter or report sent to all stockholders of
record of the Corporation at the time of the mailing of such letter or report.
A stockholder's notice to the Secretary shall set forth as to each
matter proposed to be brought before an Annual Meeting: (i) a brief description
of the business the stockholder desires to bring before such Annual Meeting and
the reasons for conducting such business at such Annual Meeting, (ii) the name
and address, as they appear on the Corporation's stock transfer books, of the
stockholder proposing such business, (iii) the class and number of shares of the
Corporation' s capital stock beneficially owned by the stockholder proposing
such business, (iv) the names and addresses of the beneficial owners, if any, of
any capital stock of the Corporation registered in such stockholder's name on
such books, and the class and number of shares of the Corporation's capital
stock beneficially owned by such beneficial owners, (v) the names and addresses
of other stockholders known by the stockholder proposing such business to
support such proposal, and the class and number of shares of the Corporation's
capital stock beneficially owned by such other stockholders, and (vi) any
material interest of the stockholder proposing to bring such business before
such meeting (or any other stockholders known to be supporting such proposal) in
such proposal.
If the Board of Directors or a designated committee thereof determines
that any stockholder proposal was not made in a timely fashion in accordance
with the provisions of this Section 3.14 or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
Section 3.14 in any material respect, such proposal shall not be presented for
action at the Annual Meeting in question. If neither the Board of Directors nor
such committee makes a determination as to the validity of any stockholder
proposal in the manner set forth above, the presiding officer of the Annual
Meeting shall determine whether the stockholder proposal was made in accordance
with the terms of this Section 3.14. If the presiding officer determines that
any stockholder proposal was not made in a timely fashion in accordance with the
provisions of this Section 3.14 or that the information provided in a
stockholders notice does not satisfy the information requirements of this
Section 3.14 in any material respect, such proposal shall not be presented for
action at the Annual Meeting in question. If the Board of Directors, a
designated committee thereof or the presiding officer determines that a
stockholder proposal was made in accordance with the requirements of this
Section 3.14, the presiding officer shall so declare at the Annual Meeting and
ballots shall be provided for use at the Annual Meeting with respect to such
proposal.
Notwithstanding the foregoing provisions of this Section 3.14, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations thereunder with respect to the matters set forth in this Section
3.14, and nothing in this Section 3.14 shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation' s proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
3.15. INSPECTION OF STOCKHOLDER CONSENTS. In the event of the delivery
to the Corporation of the requisite written stockholder consents to take
corporate action and/or any related revocation or revocations, the Corporation
shall engage nationally recognized independent inspectors of elections for the
purpose of promptly performing a ministerial review of the validity of such
consents and revocations. For the purpose of permitting the inspectors to
perform such review, no action by written consent without a meeting shall be
effective until such date as the independent inspectors certify to the
Corporation that the consents delivered to the Corporation constitute at least
the minimum number of votes that would be necessary to take the corporate
action. Nothing contained in this paragraph shall in any way be construed to
suggest or imply that the Board of Directors or any stockholder shall not be
entitled to contest the validity of any consent or revocation thereof, whether
before or after such certification by the independent inspectors, or to take any
other action (including, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
Section 4. DIRECTORS
4.1 NUMBER; QUALIFICATIONS. The Board of Directors shall consist of one
or more members, the number thereof to be determined from time to time by
resolution of the Board of Directors. Directors need not be stockholders.
4.2 ELECTION; VACANCIES. The Board of Directors shall initially consist
of persons elected as such by the incorporator. At the first annual meeting of
stockholders and at each annual meeting thereafter, the stockholders shall elect
directors to replace those directors whose terms then expire. Vacancies and any
newly created directorships resulting from any increase in the number of
directors may be filled by vote of the stockholders at a meeting called for the
purpose, or by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. When one or more directors shall resign
from the Board, effective at a future date, a majority of the directors then in
office, including those who have resigned, shall have power to fill such vacancy
or vacancies, the vote or action by writing thereon to take effect when such
resignation or resignations shall become effective. The directors shall have and
may exercise all their powers notwithstanding the existence of one or more
vacancies in their number, subject to any requirements of law or of the
Certificate of Incorporation or of these By-Laws as to the number of directors
required for a quorum or for any vote or other actions.
4.3 TENURE. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each director shall hold office until the
next annual meeting and until his successor is elected and qualified, or until
he sooner dies, resigns, is removed or becomes disqualified.
4.4 POWERS. The business of the Corporation shall be managed by or
under the direction of the Board of Directors which shall have and may exercise
all the powers of the Corporation and do all such lawful acts and things as are
not by law, the Certificate of Incorporation or these By-Laws directed or
required to be exercised or done by the stockholders.
4.5 COMMITTEES. The Board of Directors may, by vote of a majority of
the whole Board, (a) designate, change the membership of or terminate the
existence of any committee or committees, each committee to consist of one or
more of the directors; (b) designate one or more directors as alternate members
of any such committee who may replace any absent or disqualified member at any
meeting of the committee; and (c) determine the extent to which each such
committee shall have and may exercise the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation,
including the power to authorize the seal of the Corporation to be affixed to
all papers which require it and the power and authority to declare dividends or
to authorize the issuance of stock; excepting, however, such powers which by
law, by the Certificate of Incorporation or by these By-Laws they are prohibited
from so delegating. In the absence or disqualification of any member of such
committee and his alternate, if any, the member or members thereof present at
any meeting and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Except as
the Board of Directors may otherwise determine, any committee may make rules for
the conduct of its business, but unless otherwise provided by the Board or such
rules, its business shall be conducted as nearly as may be in the same manner as
is provided by these By-Laws for the conduct of business by the Board of
Directors. Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors upon request.
4.6 REGULAR MEETING. Regular meetings of the Board of Directors may be
held without call or notice at such place within or without the State of
Delaware and at such times as the Board may from time to time determine,
provided that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting of the
directors may be held without call or notice immediately after and at the same
place as the annual meeting of the stockholders.
4.7 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
held at any time and at any place within or without the State of Delaware
designed in the notice of the meeting, and may be called only by the Secretary
upon the request of persons constituting a majority of the Special Committee of
the Board of Directors formed by resolution adopted by the Board of Directors on
December 1, 1998, reasonable notice thereof being given to each director by the
Secretary or any member of such Special Committee.
4.8 NOTICE. It shall be reasonable and sufficient notice to a director
to send notice by mail at least forty-eight hours or by telegram at least
twenty-four hours before the meeting, addressed to him at his usual or last
known business or residence address or to give notice to him in person or by
telephone at least twelve hours before the meeting. Notice of a meeting need not
be given to any director if a written waiver of notice, executed by him before
or after the meeting, is filed with the records of the meeting, or to any
director who attends the meeting without protesting prior thereto or at its
commencement the lack of notice to him. Neither notice of a meeting nor a waiver
of a notice need specify the purposes of the meeting.
4.9 QUORUM. Except as may be otherwise provided by law, by the
Certificate of Incorporation or by these By-Laws, at any meeting of the
directors a majority of the directors then in office shall constitute a quorum;
a quorum shall not in any case be less than one-third of the total number of
directors constituting the whole Board. Any meeting may be adjourned from time
to time by a majority of the votes cast upon the question, whether or not a
quorum is present, and the meeting may be held as adjourned without further
notice.
4.10 ACTION BY VOTE. Except as may be otherwise provided by law, by the
Certificate of Incorporation or by these By-Laws, when a quorum is present at
any meeting the vote of a majority of the directors present shall be the act of
the Board of Directors.
4.11 ACTION WITHOUT A MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all the members of the Board or of such
committee, as the case may be, consent thereto in writing, and such writing or
writings are filed with the records of the meetings of the Board or of such
committee. Such consent shall be treated for all purposes as the act of the
Board or of such committee, as the case may be.
4.12 PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Unless
otherwise restricted by the Certificate of Incorporation or these By-Laws,
members of the Board of Directors or of any committee thereof, may participate
in a meeting of such Board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Such participation shall constitute presence in
person at such meeting.
4.13 COMPENSATION. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix from time to time the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors and the performance of their responsibilities as directors and may be
paid a fixed sum for attendance at each meeting of the Board of Directors and/or
a stated salary as director. No such payment shall preclude any director from
serving the Corporation or its parent or subsidiary corporations in any other
capacity and receiving compensation therefor. The Board of Directors may also
allow compensation for members of special or standing committees for service on
such committees.
4.14 INTERESTED DIRECTORS AND OFFICERS.
(a) No contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of the Corporation's directors or officers are directors or officers, or
have a financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the Board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
(1) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or
(2) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof, or the stockholders.
(b) Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
4.15 RESIGNATION OR REMOVAL OF DIRECTORS. Unless otherwise restricted
by the Certificate of Incorporation or by law, any director or the entire Board
of Directors may be removed, with or without cause, by the holders of a majority
of the stock issued and outstanding and entitled to vote at an election of
directors. Any director may resign at any time by delivering his resignation in
writing to the President or the Secretary or to a meeting of the Board of
Directors. Such resignation shall be effective upon receipt unless specified to
be effective at some other time; and without in either case the necessity of its
being accepted unless the resignation shall so state. No director resigning and
(except where a right to receive compensation shall be expressly provided in a
duly authorized written agreement with the Corporation) no director removed
shall have any right to receive compensation as such director for any period
following his resignation or removal, or any right to damages on account of such
removal, whether his compensation be by the month or by the year or otherwise;
unless in the case of a resignation, the directors, or in the case of removal,
the body acting on the removal, shall in their or its discretion provide for
compensation.
4.16 DIRECTOR NOMINATIONS. Nominations of candidates for election as
directors of the Corporation at any Annual Meeting may be made only (a) by, or
at the direction of, a majority of the directors then in office or (b) by any
holder of record (both as of the time notice of such nomination is given by the
stockholder as set forth below and as of the record date for the Annual Meeting
in question) of any shares of the capital stock of the Corporation entitled to
vote at such Annual Meeting who complies with the timing, informational and
other requirements set forth in this Section 4.16. Any stockholder who has
complied with the timing, informational and other requirements set forth in this
Section 4.16 and who seeks to make such a nomination, or such stockholder's
representative, must be present in person at the Annual Meeting. Only persons
nominated in accordance with the procedures set forth in this Section 4.16 shall
be eligible for election as directors at an Annual Meeting.
Nominations, other than those made by, or at the direction of, the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section 4.16. A stockholder's
notice shall be timely if delivered to, or mailed to and received by, the
Corporation at its principal executive office not less than seventy-five days
nor more than one hundred twenty days prior to the Anniversary Date; provided,
however, that in the event the Annual Meeting is scheduled to be held on a date
more than thirty days before the Anniversary Date or more than sixty days after
the Anniversary Date, a stockholder's notice shall be timely if delivered to, or
mailed and received by, the Corporation at its principal executive office not
later than the close of business on the later of (i) the seventy-fifth day prior
to the scheduled date of such Annual Meeting or (ii) the fifteenth day following
the day on which public announcement of the date of such Annual Meeting is first
made by the Corporation.
A stockholder's notice to the Secretary shall set forth as to each
person whom the stockholder proposes to nominate for election or re-election as
a director: (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the Corporation' s capital stock which are
beneficially owned by such person on the date of such stockholder notice, and
(iv) the consent of each nominee to serve as a director if elected. A
stockholder' s notice to the Secretary shall further set forth as to the
stockholder giving such notice: (i) the name and address, as the appear on the
Corporation's stock transfer books, of such stockholder and of the beneficial
owners (if any) of the Corporation's capital stock registered in such
stockholder' s name and the name and address of other stockholders known by such
stockholder to be supporting such nominee(s), (ii) the class and number of
shares of the Corporation's capital stock which are held of record, beneficially
owned or represented by proxy by such stockholder and by any other stockholders
known by such stockholder to be supporting such nominee(s) on the record date
for the Annual Meeting in question (if such date shall then have been made
publicly available) and on the date of such stockholder' s notice, and (iii) a
description of all arrangements or understandings between such 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 such
stockholder.
If the Board of Directors or a designated committee thereof determines
that any stockholder nomination was not made in accordance with the terms of
this Section 4.16 or that the information provided in a stockholder's notice
does not satisfy the informational requirements of this Section 4.l6 in any
material respect, then such nomination shall not be considered at the Annual
Meeting in question. If neither the Board of Directors nor such committee makes
a determination as to whether a nomination was made in accordance with the
provisions of this Section 4.16, the presiding officer of the Annual Meeting
shall determine whether a nomination was made in accordance with such
provisions. If the presiding officer determines that any stockholder nomination
was not made in accordance with the terms of this Section 4.16 or that the
information provided in a stockholder's notice does not satisfy the
informational requirements of this Section 4.16 in any material respect, then
such nomination shall not be considered at the Annual Meeting in question. If
the Board of Directors, a designated committee thereof or the presiding officer
determines that a nomination was made in accordance with the terms of this
Section 4.16, the presiding officer shall so declare at the Annual Meeting and
ballots shall be provided for use at the Annual Meeting with respect to such
nominee.
Notwithstanding anything to the contrary in the second sentence of the
second paragraph of this Section 4.16, in the event that the number of directors
to be elected to the Board of Directors of the Corporation is increased and
there is no public announcement by the Corporation naming all of the nominees
for director or specifying the size of the increased Board of Directors at least
seventy-five days prior to the Anniversary Date, a stockholder's notice required
by this Section 4.16 shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if such notice shall be
delivered to, or mailed to and received by, the Corporation at its principal
executive office not later than the close of business on the fifteenth day
following the day on which such public announcement is first made by the
Corporation.
No person shall be elected by the stockholders as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 4.16. Election of directors at an Annual Meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or presiding officer
at such Annual Meeting. If written ballots are to be used, ballots bearing the
names of all the persons who have been nominated for election as directors at an
Annual Meeting in accordance with the procedures set forth in this Section 4.16
shall be provided for use at such Annual Meeting.
Section 5. NOTICES
5.1 FORM OF NOTICE. Whenever, under the provisions of law, or of the
Certificate of Incorporation or of these By-Laws, notice is required to be given
to any director or stockholder, such notice may be given by mail, addressed to
such director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Unless written notice by mail is required by law, written notice may also be
given by telegram, cable, telecopy, commercial delivery service, telex or
similar means, addressed to such director or stockholder at his address as it
appears on the records of the Corporation, in which case such notice shall be
deemed to be given when delivered into the control of the persons charged with
effecting such transmission, the transmission charge to be paid by the
Corporation or the person sending such notice and not by the addressee. Oral
notice or other in-hand delivery (in person or by telephone) shall be deemed
given at the time it is actually given.
5.2 WAIVER OF NOTICE. Whenever notice is required to be given under the
provisions of law, the Certificate of Incorporation or these By-Laws, a written
waiver thereof, signed by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. 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 meeting of the stockholders, directors or members of a
committee of the directors need be specified in any written waiver of notice.
Section 6. OFFICERS AND AGENTS
6.1 ENUMERATION; QUALIFICATION. The officers of the Corporation shall
be a Chairman of the Board of Directors, a President, a Treasurer, a Secretary
and such other officers, if any, as the Board of Directors from time to time may
in its discretion elect or appoint including without limitation one or more Vice
Presidents. Any officer may be, but none need be, a director or stockholder. Any
two or more offices may be held by the same person. Any officer may be required
by the Board of Directors to secure the faithful performance of his duties to
the Corporation by giving bond in such amount and with sureties or otherwise as
the Board of Directors may determine.
6.2. POWERS AND DUTIES OF THE OFFICERS.
(A) CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at
all meetings of the Board of Directors and stockholders of the
Corporation, shall generally supervise the affairs of the
Corporation and see that all orders and resolutions of the Board
of Directors are carried into effect, and, together with the
President, shall have general supervision and direction of the
other officers, employees and agents of the Corporation, subject
to the control of the Board of Directors. The Chairman shall be
ex officio a member of all committees of the Board of Directors
except the Audit Committee, and shall have particular
responsibility for supervision of the Corporation's investor
relations, financial and legal affairs, and shall have such other
powers and perform such other duties and functions as may from
time to time be assigned by the Board of Directors.
(B) PRESIDENT. The President shall be the Chief Executive Officer of
the Corporation, responsible for the general day-to-day
management of the business of the Corporation. The President
shall preside at all meetings of the Board of Directors and
stockholders of the Corporation in the absence of the Chairman of
the Board, and, together with the Chairman of the Board, shall
have general supervision and direction of the other officers,
employees and agents of the Corporation, subject to the control
of the Board of Directors. The President shall from time to time
make such reports of the affairs and operations of the
Corporation as the Board of Directors may direct and shall have
such other powers and perform such other duties and functions as
may from time to time be assigned by the Board of Directors.
(C) SENIOR VICE PRESIDENTS. Each Senior Vice President shall have
such powers and perform such duties and functions as may from
time to time be assigned by the Board of Directors. One Senior
Vice President shall be designated by the Board of Directors to,
in the event of the President's absence or disability, perform
all the duties and exercise the powers of the President.
(D) VICE PRESIDENTS. Each Vice President shall have such powers and
perform such duties and functions as may from time to time be
assigned by the Board of Directors.
(E) SECRETARY. The Secretary shall attend all meetings of the Board
of Directors and of the stockholders of the Corporation and shall
keep the minutes thereof in appropriate books. The Secretary
shall give or cause to be given notice of all meetings of
stockholders, and special meetings of the Board of Directors to
the extent otherwise provided in the By-Laws, and shall perform
such other duties as may be incidental to the office of Secretary
or as may from time to time be assigned by the Board of
Directors. The Secretary shall keep in safe custody the seal of
the Corporation and affix it to any instrument when authorized by
the Board of Directors. The Secretary shall have custody of the
books and records of the Corporation, except such books and
records as may be in the custody of the Treasurer or another
person authorized by the Board of Directors to have such custody.
(F) TREASURER. The Treasurer shall have the custody of the corporate
funds and securities of the Corporation and shall be responsible
for the keeping of full and accurate accounts of receipts and
disbursements in books belonging to the Corporation, for the
deposit of all moneys and other valuable effects in the name and
to the credit of the corporation, and for the disbursement of the
funds of the Corporation subject to the order of the Board of
Directors. The Treasurer shall render to the Chairman of the
Board, the President and the Board of Directors whenever they may
so require an account of all his or her transactions as Treasurer
and of the financial condition of the Corporation. The Treasurer
shall, if required by the Board of Directors, give the
Corporation a bond in such sum or sums and with such surety or
sureties as shall be satisfactory to the Board of Directors,
conditioned upon the faithful performance of his or her duties.
(G) ASSISTANT SECRETARIES. The Board of Directors may appoint one or
more Assistant Secretaries who shall perform the duties and
exercise the powers of the Secretary in the Secretary's absence
or disability and have such other powers and perform such other
duties and functions of the Secretary as may from time to time be
assigned by the Board of Directors.
(H) ASSISTANT TREASURERS. The Board of Directors may appoint one or
more Assistant Treasurers who shall perform the duties and
exercise the powers of the Treasurer in the Treasurer's absence
or disability and have such other powers and perform such other
duties and functions of the Treasurer as may from time to time be
assigned by the Board of Directors.
(I) SUBORDINATE OFFICERS. The Corporation may have such subordinate
officers as the Board of Directors may from time to time deem
desirable. Each such officer shall hold office for such period
and perform such duties as the Board of Directors, the Chairman
of the Board or an officer designated pursuant to this Section 6
may prescribe.
(J) DELEGATION OF DUTIES. In case of the absence of any officer of
the Corporation, or for any other reason that the Board of
Directors may deem sufficient, the Chairman of the Board, the
President or the Board of Directors may confer for the time-being
the powers or duties, or any of them, of such officer upon any
other officer. In the absence of an officer, that officer's
duties shall be performed and his or her authority may be
exercised by the next most senior officer, with seniority
expressed by the order of appearance in this Section 6.2, and,
within a category, by seniority in a particular position, with
the right reserved to the Board of Directors to make such
designation or supersede any designation so made.
6.3 ELECTION. The Board of Directors at its first meeting after each
annual meeting of stockholders, or special meeting in place of an annual
meeting, shall choose a Chairman, a President, a Secretary and a Treasurer.
Other officers may be appointed by the Board of Directors at such meeting, at
any other meeting or by written consent. At any time or from time to time, the
directors may delegate to any officer their power to elect or appoint any other
officer or any agents.
6.4 TENURE. Each officer shall hold office until the first meeting of
the Board of Directors following the next annual meeting of the stockholders and
until his successor is elected and qualified unless a shorter period shall have
been specified in terms of his election or appointment, or in each case until he
sooner dies, resigns, is removed or becomes disqualified. Each agent of the
Corporation shall retain his authority at the pleasure of the directors, or the
officer by whom he was appointed or by the officer who then holds agent
appointive power.
6.5 RESIGNATION AND REMOVAL. Any officer may resign at any time by
delivering his resignation in writing to the President or the Secretary or to a
meeting of the Board of Directors. Such resignation shall be effective upon
receipt unless specified to be effective at some other time, and without in any
case the necessity of its being accepted unless the resignation shall so state.
The Board of Directors may at any time remove any officer either with or without
cause. The Board of Directors may at any time terminate or modify the authority
of any agent. No officer resigning and (except where a right to receive
compensation shall be expressly provided in a duly authorized written agreement
with the Corporation) no officer removed shall have any right to any
compensation as such officer for any period following his resignation or
removal, or any right to damages on account of such removal, whether his
compensation be by the month or by the year or otherwise; unless in the case of
a resignation, the directors, or in the case of removal, the body acting on the
removal, shall in their or its discretion provide for compensation.
6.6 VACANCIES. If the office of the Chairman, the President, the
Treasurer or the Secretary becomes vacant, the directors may elect a successor
by vote of a majority of the directors then in office. If the office of any
other officer becomes vacant, any person or body empowered to elect or appoint
that office may choose a successor. Each such successor shall hold office for
the unexpired term of his predecessor, and in the case of the Chairman, the
President, the Treasurer and the Secretary until his successor is chosen and
qualified, or in each case until he sooner dies, resigns, is removed or becomes
disqualified.
Section 7. CAPITAL STOCK
7.1 STOCK CERTIFICATES. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the series,
if any, of the shares held by him, in such form as shall, in conformity to law,
the Certificate of Incorporation and the By-Laws, be prescribed from time to
time by the Board of Directors. Such certificate shall be signed by the
President or a Vice-President and (i) the Treasurer or an Assistant Treasurer or
(ii) the Secretary or an Assistant Secretary. Any of or all the signatures on
the certificate may be a facsimile. In case an officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed on such
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent, or registrar at the time
of its issue.
7.2 LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon 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 or certificates, 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
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or 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 8. TRANSFER OF SHARES OF STOCK
8.1 TRANSFER ON BOOKS. Subject to any restrictions with respect to the
transfer of shares of stock, shares of stock may be transferred on the books of
the Corporation by the surrender to the Corporation or its transfer agent of the
certificate therefor properly endorsed or accompanied by a written assignment
and power of attorney properly executed, with necessary transfer stamps affixed,
and with such proof of the authenticity of signature as the Board of Directors
or the transfer agent of the Corporation may reasonably require. Except as may
be otherwise required by law, by the Certificate of Incorporation or by these
By-Laws, the Corporation shall be entitled to treat the record holder of stock
as shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to receive notice and to vote or to give any
consent with respect thereto and to be held liable for such calls and
assessments, if any, as may lawfully be made thereon, regardless of any
transfer, pledge or other disposition of such stock until the shares have been
properly transferred on the books of the Corporation.
It shall be the duty of each stockholder to notify the Corporation of
his post office address.
Section 9. GENERAL PROVISIONS
9.1 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 to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors 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 to which
such record date relates. 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. If no record date is fixed,
(a) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held;
(b) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is expressed; and
(c) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to such purpose.
9.2 DIVIDENDS. Dividends upon the capital stock of the Corporation may
be declared by the Board of Directors at any regular or special meeting or by
written consent, pursuant to law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
9.3 PAYMENT OF DIVIDENDS. 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 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 directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
9.4 CHECKS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
9.5 FISCAL YEAR. The fiscal year of the Corporation shall end the
Saturday closest to the 31st of January unless otherwise determined by the Board
of Directors.
9.6 SEAL. The Board of Directors may, by resolution, adopt a corporate
seal. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the word "Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
The seal may be altered from time to time by the Board of Directors.
Section 10. INDEMNIFICATION
10.1 It being the intent of the Corporation to provide maximum
protection available under the law to its officers and directors, the
Corporation shall indemnify its officers and directors to the full extent the
Corporation is permitted or required to do so by the General Corporation Law of
Delaware as the same exists or hereafter may be amended. Such indemnification
shall include payment by the Corporation, in advance of the final disposition of
a civil or criminal action, suit or proceedings, of expenses incurred by a
director or officer in defending any such action, suit or proceeding upon
receipt of any undertaking by or on behalf of such director or officer to repay
such payment if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation. The Corporation may accept any such undertaking
without reference to the financial ability of the person to make such repayment.
As used in this paragraph, the terms "director" and "officer" include their
respective heirs, executors, and administrators.
Section 11. AMENDMENTS
11.1 These By-Laws may be altered, amended or repealed or new By-Laws
may be adopted by the stockholders or by the Board of Directors when such power
is conferred upon the Board of Directors by the Certificate of Incorporation, at
any regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or of the Board of Directors. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
